K. Anil Kumar v. Kerala State Civil Supplies Corporation Limited (Supplyco) and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938** ## **WP(C).No. 23748 of 2016 (P)** **---------------------------PETITIONER(S):** **-------------** **K.ANIL KUMAR, S/O. GOVINDANKUTTY, AGED 45 YEARS, KOMATTIL HOUSE, POOTHOLE P.O, THRISSUR DISTRICT PIN 680 004** **BY ADVS.SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA SRI.M.B.SOORI** ## **RESPONDENT(S):** **--------------** ## **1. THE KERALA STATE CIVIL SUPPLIES** **CORPORATION LIMITED(SUPPLYCO) MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, ERNAKULAM-PIN 682 020 REPRESENTED BY ITS CHAIRMAN** ## **2. THE REGIONAL MANAGER** **THE KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED,(SUPPLYCO) REGIONAL OFFICE, YAMBOO TOWERS, NEAR MALAYALA MANORAM, T.B ROAD, PALAKKAD, PIN 678 014** ## **3. THE DEPOT MANAGER** **THE KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED, (SUPPLICO)DISTRICT DEPOT,KURIACHIRA, THRISSUR DISTRICT** ## **4. METTI, THEKKETHALA HOUSE,** **KORATTI P.O,THRISSUR DISTRICT - PIN 680 308** **R1 TO R3 BY ADV. SHRI N.D.PREMACHANDRAN,SC, BY SMT.MOLLY JACOB,SC, R4 BY ADV. SRI.G.SREEKUMAR (CHELUR)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-11-2016, THE COURT ON 18-11-2016 DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 23748 of 2016 (P)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** |**EXHIBIT P1:**|**TRUE COPY OF THE ORDER BEARING NO A2 617/15**| |---|---| ||**DATED 9-3-2015 ISSUED BY THE 2ND RESPONDENT**| |**EXHIBIT P2:**|**TRUE COPY OF THE TENDER NOTICE BEARING NO.**| ||**A2.617/15(4) DATED 7-06-2016**| |**EXHIBIT P3:**|**TRUE COPY OF THE NOTICE BEARING NO A2 617/15**| ||**DATED 4-07-2015 ISSUED BY THE 2ND RESPONDENT**| |**RESPONDENT(S)'**|**EXHIBITS**<br>**:**| |**-----------------------**|| |**EXT.R1(a):**|**COPY OF THE TERMS AND CONDITIONS OF TENDER**| |**EXT.R1(b):**|**COPY OF THE COMPARISON STATEMENT**| ||**//TRUE COPY//**| ||**P.A. TO JUDGE**| **bp** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C). No.23748 of 2016 ----------------------------------------------Dated this the 18[th] day of November, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P2 and all further proceedings pursuant thereto, to the extent it proposed to award the works allotted to the petitioner as per Ext.P1, for transporting and handling CMR from various mills to Thrissur Depot and for transporting sugar from Thrissur and Chalakudy railheads to the depots, at the rates agreed between the parties, and for other related reliefs. 2. Brief facts for the disposal of the writ petition are as follows; petitioner is a transporting Contractor. In the year 2015, a tender was invited dated 20.02.2015 by the 2[nd] respondent for transportation of goods to various destinations under the jurisdiction of the 2[nd] respondent. Petitioner submitted tender and became successful and issued Ext.P1 work order. As per Ext.P1, petitioner was to handle the transporting contract and handling CMR from various mills to W.P.(C). No. 23748 of 2016 2 Thrissur depot etc. etc. and the period of contract is three years from the date of execution of the agreement, which is expiring in the year 2018. Accordingly an agreement was executed between the petitioner and 2[nd] respondent, which is not produced in this writ petition stating that, copy of the same is not provided to the petitioner. 3. Apart from petitioner, another contractor was also appointed. She was appointed as the contractor for transporting and handling of food grains under various Government Schemes from Food Corporation of India to various Supplyco depots and outlets at the rates agreed between them. It is stated, the said contractor abandoned the work and accordingly, the said contract has been terminated. However, the petitioner was carrying out the work in accordance with Ext.P1. 4. While so, 2[nd] respondent published Ext.P2 tender notice dated 7.6.2016 inviting tender for transportation of various items of goods from and to various depots and outlets W.P.(C). No. 23748 of 2016 3 throughtout the areas coming under him. According to the petitioner, the said tender was invited presumably to carry out the works originally granted to the Contractor, who was terminated consequent to abandonment of contract. It is also stated in the said contract, 2[nd] respondent included the transportation of goods awarded to the petitioner as per Ext.P1 as well. 5. Petitioner also participated in Ext.P2. Apart from the petitioner, six other contractors have also submitted tenders. However, it is understood that, on opening the tenders all other contractors were invited for negotiation and the petitioner was not invited, evident from Ext.P3. So much so, petitioner understood that, on the basis of negotiation, steps are taken to award the contract to 4[th] respondent. Therefore, it is the contention of the petitioner, entire actions of the 2[nd] respondent in pursuance to Ext.P2 tender notice is illegal and arbitrary and it is thus challenging the said notification, petitioner has filed this writ petition. W.P.(C). No. 23748 of 2016 4 6. Respondents 1 to 3 have filed a joint counter affidavit admitting that, Ext.P1 work order is issued to the petitioner. It is also admitted, the work awarded to the transporting contractor along with work order issued to the petitioner as per Ext.P1 was terminated. It is also stated, the Depot Manager, Chavakkad has informed that the transporting contract for Chavakkad Sub Depot is going to be expired on 9.1.2016 and requested to take necessary steps to appoint new contractors. Due to careless handling of the bags by the contractors, breakage and spilling of food grains transported from FCI godowns and mills has caused huge loss and the same has to be incurred by Supplyco for re-bagging. Till June 2016, an amount of Rs.1,83,275/- has been incurred by the Supplyco in that head. Since there was no clause in the existing tender conditions for re-bagging, a new clause was included in the tender conditions. For implementing the above clause and since the existing contract of Chavakkad Sub Depot was expiring and since the contract with the previous W.P.(C). No. 23748 of 2016 5 contractor was terminated, Supplyco was forced to invite new tender for appointment of transporting contract for Thrissur Depot. The new tender has been invited without terminating the existing contract and petitioner has also participated in the new tender. Since the contract with the petitioner was not terminated, he is continuing his work even now. Therefore, it is contended that, petitioner is not legally entitled to turn around and challenge Ext.P2 tender proceedings, in which he participated. 7. Petitioner has participated in the tender and has submitted rates/bid for all the destinations, which included handling and transportation of various Supplyco authorized Mills from various Depots/Sub Depots, Thrissur. Tenderers quoted less rates was only invited for negotiation. As per the new contract, the rates offered is much lower than the existing approved contract rate, evident from Ext.R1(b). The allegations made by the petitioner with respect to inviting of tender as per Ext.P2 are all denied by the respondents. W.P.(C). No. 23748 of 2016 6 8. Fourth respondent has also filed a counter affidavit in similar lines and also stated that she has participated in the tender by virtue of Ext.P2 invitation and she became the successful bidder. It is also stated, if the petitioner was aggrieved by Ext.P2 tender invitation, petitioner ought to have challenged the same. Therefore, respondents seeks dismissal of the writ petition. 9. Heard learned counsel for petitioner, respective counsel appearing for respondents and perused the documents on record and the pleadings put forth by respective parties. 10. The sole question to be considered is whether, petitioner, who participated in Ext.P2 tender is legally entitled to challenge the same stating that the invitation of the tender itself is bad, since already petitioner is carrying on the work as per Ext.P1 work order, which is also part of Ext.P2 invitation. 11. Learned counsel for petitioner contended that even W.P.(C). No. 23748 of 2016 7 though petitioner participated in Ext.P2 tender proceedings that will not in any manner prevents the petitioner to challenge the tender proceedings after the proceedings are over. According to the petitioner, work order was issued to the petitioner for a period of three years as per Ext.P1 and the same expires only in the year 2018. It is also submitted, having entered into a contract, it was not legally permissible for the 2[nd] respondent to invite fresh tender incorporating the contract awarded to the petitioner as per Ext.P1. Therefore, according to the petitioner, the whole exercise undertaken by the 2[nd] respondent is illegal and arbitrary warranting interference of this court exercising the power conferred under Article 226 of the Constitution of India 12. Learned counsel for respondents 1 to 3 per contra submitted that, having participated in the tender knowing fully well that, the contract awarded to the petitioner as per Ext.P1 work order is also included in Ext.P2, petitioner is not entitled to turn around and challenge the same. Learned W.P.(C). No. 23748 of 2016 8 counsel for 4[th] respondent also raised similar contentions. 13. Taking note of the respective submissions, I am of the considered opinion that, when petitioner participated in tender as per Ext.P2 invitation, petitioner was aware of the fact that, the tender awarded to the petitioner as per Ext.P1 is also included in Ext.P2 tender notice. While doing so, petitioner is well aware that, since other tenderers will also submit bid, he is at risk. Having decided to take the risk and participated in the tender, in my considered opinion, petitioner cannot later turn around and contend that, the invitation of the tender itself is bad. In that regard learned counsel for the 1[st] respondent has invited my attention to the judgment in **Madan Lal and others v. State of J & K and others** [(1995) 3 SCC 486], wherein the selection process was challenged by a candidate, who participated in the selection proceedings and held as follows in paragraph 9: “Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates W.P.(C). No. 23748 of 2016 9 being concerned respondents herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the concerned Members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, that they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioners appeared at the examination without protest and when he found that he would not succeed in examination he W.P.(C). No. 23748 of 2016 10 filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.” 14. Therefore, on an appreciation of the facts and circumstances and the principles of law laid down by the Apex Court in the aforesaid judgment, I am of the considered opinion that, petitioner who participated in the tender proceeding, with a ray of hope , knowingly fully well, there is every likelihood of the tender being awarded to a different person, was taking risk. Moreover, petitioner was also hopeful of securing a larger contract by participating in Ext.P2 tender. Therefore, the petitioner cannot blow hot and cold at the same time. Having done so, at a later point of time, he is not at liberty to turn around and challenge the notification contending since he was awarded with the work for a period of three years, the subsequent notification inviting tender for the said work also cannot be sustained under law. Moreover, petitioner has no case that lowest tenderer was not selected. Admittedly 4[th] respondent is the W.P.(C). No. 23748 of 2016 11 lowest tenderer. Therefore, no manner of illegality can be attributed on the part of the 2[nd] respondent in selecting the 4[th] respondent as per Ext.P2. 15. Viewed in that manner, I am also of the considered opinion, there is no illegality, arbitrariness or other unfairness on the part of the 2[nd] respondent, in not accepting the tender of the petitioner. Writ petition fails and accordingly it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** smv 07.11.2016