S.Duraisamy v. The Deputy Collector / District Manager
Case at a glance
Provisions considered
- Constitution of India art. 226
Judgment
1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 09-03-2011CORAM:THE HON'BLE MR.JUSTICE B.RAJENDRAN W.P.(MD).No.817 of 2011andM.P.(MD).Nos.1&2 of 2011S.Duraisamy...PetitionerVs1.The Deputy Collector / District Manager, TASMAC, Nagercoil.
The Senior Regional Manager, TASMAC, Near Aravind Eye Hospital, Annanagar, Madurai-625 020.
Livingston...Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus to call for the records in Na.Ka.No.1691/A/2009, dated 12.01.2011 on the file of the first respondent and quash the same as illegal and unlawful and consequently, direct the first respondent to declare that the petitioner is the successful bidder in the tender dated 14.12.2010For Petitioner:: Mr.V.RaghavachariFor R.1 & 2:: Mr.V.Karthikeyan for Mr.J.RavindranFor R.3:: Mr.T.Jeen Joseph ORDERThe petitioner has come forward with a prayer that he was aparticipant in the auction in question for transport of liquor bottles from wholesale go down to a retail go down shop of the first and second respondents for one year from 27.12.2010 to 10.01.2012. The tender was called for on 14.12.2010. The tender notification contained some conditions. According to petitioner, he complied with all the conditions and applied for the same. But his application was rejected on the ground that the employee provident fund number (for short EPF.No.) was not given in his application. He would only contend that this is an onerous condition which cannot be imposed by the respondents. They cannot expect the contractor to have the EPF.No of the employees and therefore, he challenges the very notification and grant of contract, on his rejection of the application. https://hcservices.ecourts.gov.in/hcservices/
Mr.V.Karthikeyan for Mr.J.Ravindran took notice and fileda counter today. He would only contend that the department has taken apolicy decision in the meeting of the Managing Director with SeniorRegional Managers and District Managers, TASMAC held on 25.11.2010 to impose the conditions in all the tender notifications insofar as the transport of contracts is concerned to include that every contractor who seeks for a contract should have registered with the provident fund department and obtained an EPF.No. and the same should be mentioned in the application. Therefore, it is a legal condition incorporated in the tender notification by the respondents. Since the petitioner has not registered with the Employees Provident Fund Department and consequently, he has not given his EPF.No. in his application, his application was rightly rejected by the respondents. 3. Apart from that, he would mainly contend that having participated in the auction with the conditions imposed by the respondents, he cannot now challenge the very condition itself at this distance point of time.
He garnered support from a decision of the Supreme Court reported in Dhananjay Malik and others Vs. State of Uttaranchal and others (2008) 4 SCC 171. 4. The third respondent is a successful bidder and he would contend that he has been rightly given the contract after fulfilling the necessary conditions imposed by the respondents. Heard all the parties. 5. The only short point arises for consideration in this WritPetition is that when the tender notification contains certain conditions and a person having participated in the tender with his eyes open accepting the conditions can he now turn around after his application being rejected? In this connection, as rightly pointed out by the learned counsel for the respondents 1 and 2 that the department has taken apolicy decision in the review meeting to include such condition and only thereafter, the said condition was imposed even at the time of issuance of tender notification.6.
It is profitable to extract the relevant paragraphs, in Dhananjay Malik and others Vs. State of Uttaranchal and others, reported in (2008) 4 SCC 171, to decide the issue in question:- “7. It is not disputed that the respondent-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.......9.In the present case, as already pointed out, therespondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance https://hcservices.ecourts.gov.in/hcservices/ 3with the Rules.
If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.” 7. In view of the decision cited supra and also in view of the fact that the petitioner had already participated in the auction and declared as unsuccessful bidder, he cannot challenge the notification at this point of time. Therefore, the application of the petitioner was rightly rejected by the respondents on the ground that he has not given his EPF.No. as per the tender notification. 8. In view of the foregoing reasons, this Writ Petitionstands dismissed. Consequently, the connected miscellaneous petitions are also closed. No costs. Sd/-Deputy Registrar (Accounts)/True Copy/Assistant RegistrarTo1.The Deputy Collector / District Manager, TASMAC, Nagercoil. 2. The Senior Regional Manager, TASMAC, Near Aravind Eye Hospital, Annanagar, Madurai-625 020.+ 1 cc to Mr.J.Ravindran, Advocate, SR No.5668+ 1 cc to Mr.T.Jeen Joseph, Advocate, SR No.5718W.P.(MD).No.817 of 201109-03-2011ssmRJ/28.3.113p/5c
Precedent status how later indexed judgments have treated this case
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