Dismissed

Thajudheen.a v. State of Kerala

Kerala HC13 Mar 2018WA/623/2018

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a writ appeal challenging the rejection of a contractor's technical bid. The court held that the tendering authority correctly treated the delayed submission of physical documents as a breach of an essential condition and refused to interfere.

What did the court decide?

The writ appeal was dismissed with no order for costs.

Thajudheen.a Vs State of Kerala — Public Procurement and Tenders | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE MR.ANTONY DOMINIC

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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TUESDAY, THE 13TH DAY OF MARCH 2018 / 22ND PHALGUNA, 1939

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WA.No.623 of 2018 IN WPC.8006/2018

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AGAINST THE JUDGMENT IN WP(C)8006/2018 of HIGH COURT OF KERALA DATED 09-03-2018

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APPELLANT/PETITIONER IN W.P(C)NO.8006/2018

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THAJUDHEEN.A GOVT. CONTRACTOR, THOPPIL VEEDU, THOLIKKUZHI, ADAYAMON - P.O, THIRUVANANTHAPURAM - 695 614.

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BY ADVS.SRI.AJITH KRISHNAN

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SRI.S.MOHAMMED AL RAFI

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RESPONDENTS/RESPONDENTS IN WP(C) 8006/18:

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STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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THE CHIEF ENGINEER, NATIONAL HIGHWAY, PUBLIC OFFICE, THIRUVANANTHAPURAM - 695 033.

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THE SUPERINTENDING ENGINEER NATIONAL HIGHWAY,SOUTH CIRCLE, PMG JUNCTION, THIRUVANANTHAPURAM - 695 033.

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R BY SR. GOVERNMENT PLEADER SRI.TEK CHAND

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC, C.J. & DAMA SESHADRI NAIDU, J.

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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Writ Appeal No.623 of 2018

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13^th day of March 2018

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JUDGMENT

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Dama Seshadri Naidu, J.

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Appellant Thajudeen, a PWD Contractor, with A-Class registration in Public Works Department, responded to the Superintending Engineer’s tender notice, dated 1.2.2018. As seen from Ext.P1 notice inviting tender, the bidder needs to upload all the relevant scanned-documents, besides sending those documents physically to the authorities to reach by 11 a.m., on 26.02.2018.

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Here, Thajudeen could send the documents through speed post; they reached the Superintending Engineer’s office on 26.2.2018, but beyond 5.30 p.m. Therefore, while scrutinizing the technical bids, the officer concerned noted against Thajudeen’s name that he 'failed to comply with the technical specification'. From summarized reasons, we can gather that the hardcopy of documents did not reach on time.

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Aggrieved by the rejection, Thajudeen filed W.P.(C) No.8006 of 2018, which a learned Single Judge dismissed through the judgment dated 9.3.2018. Further aggrieved, Thajudeen is before us.

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Writ Appeal No.623 of 2018

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: 2 :

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Thajudeen’s counsel has submitted that the documents said to have reached the SE’s office late had stood uploaded. So there could be no question about their genuineness. He has also drawn our attention to another condition: the authorities after verifying the scanned hard copies could as well insist on the contractor’s producing the originals. Therefore, the rejection, contends the learned counsel, is hyper-technical.

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In fact, the authorities ought to have, further goes Thajudeen’s contention, received the documents that reached them just a few hours beyond the stipulated time. In other words, the learned counsel has espoused the proposition that once there is substantial compliance with the tender conditions, the minor ones which could not affect the issue substantially cannot be reckoned as a cause to defeat the contractor’s right.

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Heard the learned counsel for the appellant and the learned Government Pleader, besides perusing the record.

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Regrettably, we cannot subscribe to the view canvassed by Thajudeen: there had been substantial compliance. The rule of the game, as rightly described by the learned Single Judge, demands a fair play and strict adherence to the tender conditions. In other words, on the contractor’s fulfilling the tender conditions, there could be no scope for subjectivity. For whatever is merely technical for some may be very substantial for someone

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Writ Appeal No.623 of 2018

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: 3 :

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else. And, in such circumstances, any unguided and uncanalised discretion by the contractor in complying with the tender conditions will certainly lead to anomalous situations and decisional anarchy.

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That said, we cannot laydown as an invariable proposition that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail and is not entitled to waive even a technical irregularity of little or no significance. The requirement in a tender notice, according to the Supreme Court in Poddar Steel Corporation vs Ganesh Engineering Works¹ , can be classified into two categories: those that lay down the essential conditions of eligibility, and the those that are merely ancilliary or subsidiary. In the first case, the authority issuing the tender may have to enforce them rigidly; in the other case, it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition.

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Here the authorities have taken a consistent stand that Thajudeen’s failure to supply the physical copies of the documents on time amounts to breach of an essential condition. We cannot say that the authority’s stand is unreasonable or arbitrary.

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1AIR 1991 SC 1579

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Writ Appeal No.623 of 2018

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: 4 :

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So we find no reason to interfere with the judgment impugned.

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Accordingly, we dismiss the writ appeal.

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SD/-