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Judgment
K.A. Swami, C.J.—This Writ Appeal is preferred against the order dt. 15-3-1995 passed in W.P. No. 20941 of 1994, In fact there were
two writ petitions filed by the Appellant, namely W.P. Nos. 20941 and 21039 of 1994. In W.P. No. 20941/94 the Petitioner sought for the issue
of a writ of mandamus, directing the Respondents 1 and 2 to furnish the tender schedule relating to the tender notification of the Respondents 1 and
2 under reference O.A. No. 3/94-Mu-Va-Tho-A dated 18-11-1994 for providing (1) edgeline marking by machine with yellow thermoplastic
paint in Km. 78/4 to 89/2 of National Highways-45 (Madras-Trichy Dindigul Road) (2) edgeline marking by machine with yellow thermoplastic
paint in Km. 138/4 to 149/0 of National Highways-45 (Madras-Trichy-Dindigul Road) to the Appellant''s company. In W.P. No. 21039/94, the
Petitioner sought for the issue of a writ of mandamus directing the Respondents 1 and 2 not to open the tenders received, pursuant to the aforesaid
notification dt. 18-11-1994. The learned single Judge has rejected both the writ petitions. As the tender documents were opened after the said writ
petitions were disposed of and the contract has been awarded to V. Kamalakannan and P. Janakiraman, W.P. No. 21039/94 has become
infructuous. Hence, the Petitioner has not filed any appeal against the order rejecting the said writ petition.
During the course of hearing of the appeal C.M.P. No. 4769/95 has been filed for impleading V. Kamalakkannan and P. Janakiraman, who
have been awarded the contract. Accordingly the proposed Respondents were served with copies of petition and they are represented through
their respective counsel. We have heard both sides as their presence is also necessary and allow the petition for impleading. Accordingly they have
been impleaded as additional Respondents in the writ appeal and they also argued the appeal on merits.
Having regard to the contentions urged on both sides, the following points arise for consideration:
(1) Whether the Appellant/Petitioner approached the Divisional Engineer, National Highways-45, Chengalpattu on 13-12-1994 seeking a copy of
the tender schedule, for the purpose of submitting the tender pursuant to the tender notice 3/94-95 S.D.O. dated 18-11-94 produced at page 39
of the typed set of papers filed by Respondents 1 and 2;
(2) Whether the contract awarded to additional Respondents 3 and 4 are liable to be interfered with?
(3) Whether the practice of prescribing condition in the tender notice itself, that the contractor seeking the tender schedule should satisfy the
eligibility conditions before the tender schedule is issued, is in accordance with law?
Point No. 1: The first Respondent-Officer on Special duty N.H.45, Execution Circle, Chengalpattu, issued the tender notice under reference
No. 3/94-95-S.D.O. dated 18-11-1994 calling for tenders in respect of the following works:
Providing edge line marking by machine with yellow thermoplastic paint in Km.78/4 to 79/2 of National Highways-45 (Madras-Trichy-Dindigul
Road); and
Providing edge line marking by machine with yellow thermoplastic paint in Km. 138/84 to 149/0 of National Highways-45 (Madras-Trichy-
Dindigul Road)."" Tender schedules were required to be obtained in person on depositing to the sub-treasury the amount mentioned against each
work and the tenders were required to be submitted between 12.12.1994 to 19.12.1994.
The conditions of eligibility for seeking tender schedule are as follows:
Registered contractor of this Department with Class II.
The contractor should engage Technical Personnel, possessing adequate knowledge and experience in the preparation and application of hot
applied thermoplastic paint. Bio-data in proof of the knowledge in this field of work should be furnished.
Necessary performance certificate should have been obtained from an officer not less than the Executive Engineer of P.W. D/C.P.W. D. or
State/Central Government Organisation.
The case of the Appellant is that on 13.12.1994 it sent its representative, by name B. Anandasekaran, to obtain the tender documents along
with 16 documents, such as certificates, income tax certificate, expert certificate, registration certificate along with the request letter dt. 13-12-94
but the Divisional Engineer refused to issue the tender schedule and stated that the tender schedule would be issued only on the recommendation of
the Minister and that therefore, it sent a letter dated 15.12.1994 by registered posts requesting the superintending Engineer to issue the tender
schedule, along with the necessary documents and bank drafts for a sum of Rs. 2,160/- and even thereafter the Superintending Engineer refused to
give tender schedule and hence it approached this Court for the reliefs as stated above.
The learned single Judge has considered the contentions of the Appellant/Petitioner and has held as follows at paragraph 19 of his judgment:
Although there is nothing on record to show that the representatives of the Petitioner in W.P. No. 20941 of 1994 went in person to the second
Respondent on 13-12-1994, sending a letter by registered post on 15-12-1994 along with demand draft seeking tender schedule and filing of this
writ petition and having regard to the similar writ petitions filed earlier, the probability of the Petitioner''s representatives approaching the second
Respondent on 13-12-1994 seeking for tender schedule is more. Otherwise there is no reason as to why the Petitioner should send a letter by
registered post along with demand draft on 15-12-1994.
The learned Government Pleader appearing for Respondents 1 and 2 submits that as all the relevant circumstances and records, having a
bearing on the question whether the Appellant sent its representation to the 3rd Respondent on 13.12.1994 has not been brought to the notice of
the learned single Judge, the findings of the learned single Judge require to be reconsidered as it is open to the Respondents 1 and 2 to support the
ultimate decision of the learned single Judge by other grounds also, on demonstrating that the finding recorded is not correct. If that be so, it cannot
at all be disputed that the issue that arises for consideration is as to whether the finding recorded by the learned single Judge, as extracted above, is
justified on the records placed in the writ petitions, which are also the records placed before us. It may be pointed out here that it is the definite
case of the Appellant that he sent its representative B. Anandasekaran along with the letter with certain documents, as mentioned in paragraph 8 of
the affidavit, to which we have already adverted to in the earlier portion of this judgment. We do not find the letter sent by the Appellant on 13-12-
1994 to the Divisional Engineer along with its representative B. Anandasekaran, as no such letter is produced, No doubt in paragraphs 8 and 9 of
the affidavit filed in support of the writ petition, there is a specific reference about such a letter but a copy of that letter which would have clinched
the issue, has not been produced. In addition to this the Superintending Engineer, to whom the letter dt. 15-12-1994 was sent by registered post
along with certain documents and bank draft has been immediately replied on 16.12.1994. In the said letter dt. 15-12-1994 sent by registered
post by the Petitioner it has been stated thus:
By Registered Post with A/D.
Date: 15th December, 1994.
To
The Superintending Engineer
Highways and Rural Works Department,
NH.45, Execution Circle,
Chinglepet 603001.
Dear Sir,
We are herewith submitting our request to furnish us the tender schedule for the following works:
Providing edgeline marking by machine with yellow thermoplastic paint in Km. 78/4 to 89/2 of National Highways, 45, Madras-Trichy-Dindigul
Road.
Providing edgeline marking by machine with yellow thermoplastic paint in Km.38/4 to 149/0 of National Highwaqys-45, Madras-Trichy-
Dindigul Road.
We are herewith enclosing the necessary particulars as called for in the tender notification. We further bring to your kind notice that on an earlier
occasion we had approached the Hon''ble High Court by way of Writ Petition Nos. 12974 and 15091 of 1991 and the Department filed a counter
affidavit and based on the said counter, the following orders came to be passed by the Hon''ble High Court by order dated 16.12.1992.
Therefore, we are entitled to get the tender schedule for the above mentioned works immediately and oblige. The requisite fee is enclosed herewith
in the form of Demand Drafts each for Rs. 2,160/- including postage charges for the above works.
N.B.: This request is being made through post since tender schedules were not given when our representative Shri B. Anandhasekar and Shri R.
Sugumar met the Divisional Engineer, NH45, at Chinglepet at 13.12.1994.
Encl.:
Latest income tax Certificate.
Two Nos. D/Ds. each for Rs. 2,160/- Nos. 347687 and 347688.
Registration Certificates two Nos.
16 Nos. of Credential Certificates.
Kindly acknowledge receipt of this letter and send us the Tender schedules by post to reach us well in advance.
In the aforesaid letter, neither in the note nor in the body of the letter, the letter sent by the Appellant on 13.12.1994 to the Divisional Engineer has
been referred to. In addition to that, the Superintending Engineer has immediately sent a reply on 16.12.1994 under reference No. 3990/94/JDO-
1 and the said letter reads thus:
Subs: National Highways-45 - Providing edgeline marking in km. 78/4-89/2 and km 138/4-148/0 of National Highways 45 - Tender - Issue of
Tender schedules - Regarding.
Ref: 1. Tender Notice No. 3/94-95/SDO dt. 18-11-1994.
Your letter dt. 15-12-94.
In one of the para of above letter concluding part of the judgment for writ petitions in W.P. No. 12974 and 15091 of 1991 of the Honourable
High Court of Madras has been noted. The above judgment says that the Petitioner reserves the liberty to take part in any future proposals to give
the work on tender basis.
In this connection, it is pointed out that the Petitioner can take part in the tender, provided he satisfies all the conditions stipulated in the tender
notice. As your firm has not satisfied the conditions imposed in the tender notice, your firm does not qualify for receiving the tender schedule from
the Divisional Engineer (NH 45) Chengalpattu.
As per condition 9 of the tender notice, tender schedule will not be sent through post. It is ascertained from the Divisional Engineer NH 45,
Chengalpattu that no tenderer including your representatives Thiruvalargal B. Anandasekar and B. Sukumar had approached with requisition letter
and chalan for the issue of tender schedule on 13.12.1994.
As your request does not satisfy the conditions laid down in the tender notice your request to issue tender schedule by post cannot be complied
with. Further the two demand drafts for Rs. 2,160/- (Rupees two thousand one hundred and sixty only) each is returned herewith as it is not
admissible.
The receipt of the two demand drafts noted below may please be acknowledged.
From the above said letter it is clear that the allegation of the Appellant, as contained in the letter dt. 15-12-1994, that a request was sent seeking
for tender schedules on 13-12-1994, had been specifically denied. The Superintending Engineer in his letter dt. 16-12-1994 has further stated that
as the Appellant has not satisfied with the tender conditions, tender schedules were not supplied to the Appellant, and accordingly the two demand
drafts sent by the Appellant were also returned. It is not in dispute that the said reply has been received by the Appellant on 19-12-1994. No
doubt there is a reference to this in the writ petition but subsequently the same had been produced by the learned Government Pleader during the
course of hearing of the writ petitions and it is not in controversy.
These facts have not been taken into consideration by the learned single judge, while recording the finding that the case of the Appellant that it
approached the Divisional Engineer on 13.12.1994 for obtaining tender schedule is probabilised. We are of the view, that the assertion of the
Appellant in this regard cannot be accepted having regard to the several circumstances adverted to by us above. If really the Petitioner had
approached the Divisional Engineer along with the letter dt. 13-12-1994 on 13-12-1994 itself, the said letter could have been the first document
produced in the writ petition along with the letter dt. 15.12.1994, and the non-production of the request letter dt.13-12-1994 by the Appellant will
result in drawing adverse inference against the Appellant. In addition to this Respondents 2 and 3 in their counter affidavit have denied the fact that
the representatives of the Appellant had ever approached the Divisional Engineer on 13-12-1994 seeking for the tender schedules. The Bank
drafts required to be given towards cost offender schedules and actually said to have been given in this case (copies of which have been made
available in the typed set of papers of the Appellant) disclose that the drafts bear the date 15-12-94 and this circumstance also would be the claim
of the Appellant that it had made a request for Tender schedules on 13-12-94. Accordingly point No. 1 is answered against the
Petitioner/Appellant.
Point No. 2: When Point No. 1 is held against the Appellant, the question of issuing the tender schedules by post as per the tender conditions
does not arise, therefore, the refusal on the part of the Superintending Engineer in sending the tender schedule by post cannot be held to be illegal.
In that event, only two tenderers were available before the authorities regarding the work in question, which have been accepted. Therefore, we do
not consider it necessary to go into the question whether acceptance of the tenders, submitted by the Respondents 3 and 4 was proper or not?
Point No. 3: We have been coming across very often with the tender notifications calling for the tenders prescribing conditions that the
contractor who seeks for issue of tender schedule must satisfy the authorities that he satisfies the eligibility conditions. We also normally find that
the authority, who is empowered to issue the tender schedule is inferior to the authority, who is empowered to accept the tender on scrutiny and
selection of the tender out of the several tenders. We see no reason or logic in prescribing a condition that the contractor shall satisfy eligibility
conditions before the authority who is entrusted with the duty to issue tender schedules. Such a power cannot legitimately be conferred upon the
authority subordinate to the authority, who is empowered to accept tenders, to decide whether the contractor who has submitted the tender,
satisfies the condition of eligibility.'' This function is part and parcel, or, an integral part of the function to accept or reject the tender. Therefore, it
cannot at all been trusted to another authority. If the contractor does not satisfy the eligibility conditions, his tender can be rejected outright. By
issuing the tender schedule on obtaining prescribed fees, the State will not be losing anything nor it can be said that there will be any other
administrative difficulty or legal difficulty in the matter of consideration of the tenders.
In the instant case, the Officer, who is empowered to issue tender schedule is the Divisional Engineer and he is empowered to decide as to
whether the contractor satisfies all the eligibility conditions, before issuing the tender schedules, whereas the authority to consider and scrutinise the
tender schedules is the Superintending Engineer. By empowering an inferior officer to decide about the eligibility of the contractor before issuing the
tender schedules the superior officer who is empowerd to decide as to the acceptability of such tender schedule, is deprived of deciding as to
whether the contractor satisfies all the conditions of eligibility and at the same time, it enables the inferior officer to deny tender schedules even to
those contractors, who satisfy all the eligibility conditions and to issue tender schedules to those who are not eligible. Thus he can act arbitrarily.
Such a situation would give rise to undesirable and. anomalous situation. Many times allegations of corruption are also made. As a result thereof,
public interest suffers. Good contractors may be kept out and only those who toe the line of the officialdom may be preferred. It is not possible to
comprehend how such a procedure advances public interest and benefits the administration except creating vested interests and excluding
competent honest and sincere, contractors and preventing competitive tenders and limiting the selection to a very few tenders. Such a situation is
not at all conducive and good to any administration. Therefore, we are of the view, that hereafter, for obtaining the tender schedules, the State may
prescribe the eligibility conditions which a contractor submitting his tender must satisfy and the same has to be decided only at the time of issuing
tender schedules. There should not be any preliminary stage to decide as to the eligibility of the contractors even to get tender schedules. However,
it may be open to the State Government to prescribe two stages for consideration and scrutiny of the tenders by the same authority, i.e., the first
stage to decide as to the eligibility of tenderers and the second stage to open and scrutinise the tenders of those tenderers who satisfy the eligibility
conditions. Therefore, the tenderers can be directed to submit two covers - one cover relating to conditions of eligibility and another cover
containing the tender quotations. The eligibility shall be decided on opening the first cover, such of those tenderers who satisfy the eligibility
conditions, the tender quotations submitted by them alone can be opened for consideration. This practice will not only avoid unnecessary delay and
it will also avoid arbitrariness on the part of the officer, who is empowered 40 determine whether a particular contractor should be furnished with
the tender schedule or not. At the same time, this will also yield good revenue to the State, because all those who intend to apply can get the tender
schedule, of course on payment of requisite fees. Tender documents are not given for there asking. If such a practice is followed in issuing the
tender schedules it will also avoid malpractice as complaints of malpractice are very often made in such matters, in the proceedings under Article
226 of the Constitution of India. We direct that the procedure indicated as above should be followed in future. Subject to the above observations
and directions, this writ appeal is dismissed. No costs. A copy of the judgments be sent to the State Government for compliance.