R.Kangavel, S/O.S.Ramanathan v. The Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 06.10.2016 DELIVERED ON : 20.10.2016

CORAM:

THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Writ Petition(MD)Nos.14295, 15223 to 15225 of 2016 and WMP (MD) No.10603 & 10604 in W.P.(MD) No.14295 of 2016, 11209 & 11210 in WP (MD) No.15223 of 2016, 11211 & 11212 of 2016 in W.P. (MD) No.15224 of 2016 and 11213 to 11215 of 2016 in W.P.(MD) No.15225 of 2016 R.Kanagavel ... Petitioner in all the Writ Petitions Vs.

1.The Secretary to Government, Public Works Department, Secretariat, Chennai - 600 009.

2.The Tender Awarding Committee, Rep. By its Chairman, The Engineer in Chief, Public Works Department, Chepauk, Chennai - 600 005.

3.The Chief Engineer - Buildings, Public Works Department, Trichy Region, Trichy.

4.The Superintending Engineer (Electrical Circle), Public Works Department, Trichy - 1. ... Respondents 1 to 4 in all the Writ Petitions M/s.Sathtyamoorthy & Co., 40-D, Surya Garden, Trichy Road, Namakkal - 637 001. ... 5th Respondent in W.P.(MD)Nos.15223 and 15224 of 2016 M/s.PSK Engineering Construction Company & Corporation, Naducombai Post, Kalappanaickenpatti via, Namakkal - 637 404. ... 5th Respondent in W.P.(MD)No.15225 of

Prayer in W.P.(MD) No.14295 of 2016: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus directing the Respondents 2 to 4 to finalize the tender process by opening the price bid submitted by the Petitioner in respect of T.Nos.282, 283 and 284 in respect of Short Term Tender Notice No.57/2015-16 dated 17.02.2016 issued by the 4th Respondent.

Common Prayer in W.P.(MD) Nos.15223 to 15225 of 2016: Writ Petitions are filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, calling the records relating to the proceedings of 2nd Respondent made in 242nd Meeting of 2nd Respondent dated 08.07.2016 and the consequential proceedings of the 4th Respondent made in Letter No:DB/DO/F.No.1/2016-17 dated 05.08.2016.

For Petitioner in all the : Mr.Parthasarathy, Senior Counsel for Mr.K.Govindarajan.

For Respondents 1 to 4 in : Mr.M.Govindan, W.P.(MD) No.14295 of 2016 Special Government Pleader. For Respondents 1 to 4 in : Mr.R.Anandharaj, W.P.(MD) Nos.15223 to Government Advocate.

15225 of 2016 For 5th Respondent in : Mr.T.V.Ramanujam, W.P.(MD) Nos.15223 & Senior Counsel for 15224 of 2016 Mr.R.Thirumalai.

For 5th Respondent in : Mr.V.Raghavachari W.P.(MD) No.15225 of 2016 COMMON ORDER W.P.(MD) No.14295 of 2016 has been filed by the petitioner seeking a direction to Respondents 2 to 4 to finalize the tender process, by opening the price bid submitted by the Petitioner, in respect of T.Nos.282, 283 and 284 in respect of Short Term Tender Notice No.57/2015-16 dated 17.02.2016 issued by the 4th Respondent. W.P.(MD) Nos.15223 to 15225 of 2016 have been filed seeking to quash the proceedings of the 2nd Respondent made in the 242nd Meeting, dated 08.07.2016, and the consequential proceedings of the 4th Respondent made in Letter No:DB/DO/F.No.1/2016-17 dated 05.08.2016.

2.Since the issues involved in all these writ petitions are one and the same, they are disposed of by this common order.

3.The case of the petitioner, in brief, as follows: The petitioner is a Class I Contractor in the Electrical side of Public Works Department and he undertakes various mega electrical projects of the Public Works Department. Earlier, the 4th respondent invited tenders for providing internal and external electrification, HT arrangement, Intercom arrangements, Air Conditioning facilities, lightning Diverter and generator arrangements for the New Government Medical College and Hospital at Pudukkottai in Pudukkottai District. The above tender notification was also issued in daily newspapers and the last date for submission of tenders was 25.02.2016. Out of the 6 tenders, the petitioner participated in 3 tenders, namely, Tender Nos.282, 283 and 284.

The tender was called in two cover system, namely, qualification bid and price bid and only if qualification bid is satisfied, the price bid cover would be opened. As per the notification, EMD was fixed as Rs.4,61,000/-, Rs.1,68,500/- and Rs.1,44,900/-, respectively, for the above three tenders, but the petitioner paid a sum of Rs.93,51,000/-, Rs.44,17,000/- and Rs.36,04,000/- respectively, since the petitioner quoted less amount than the bid amount fixed by the official respondents, as per condition No.8.2 of Special Conditions. Even though it is notified by the official respondents that the tenders would be opened on 25.02.2016 at 03.30 p.m., the tenders were opened 2 days later. Even after opening the tenders, it was not finalized for more than 6 months.

In the mean time, the petitioner came to understand that some persons were undertaking Electrical works in the Medical College premises with the blessings of the official respondents. Hence, he sent a representation, dated 15.07.2016, to the official respondents with specific allegation of ongoing electrical works in the site. The 3rd respondent sent a reply for his representation, on 18.07.2016, stating that the petitioner sent only blank white paper in the postal cover and also stating that another representation is undated and not signed by anybody. Since the tenders were not finalized for more than 6 months, the petitioner filed the Writ Petition in W.P.(MD) No.14295 of 2016, seeking a direction to open the price bid and finalize the tender process. The above Writ Petition came up for admission before this Court on 08.08.

2016 and the matter was adjourned to 09.08.2016, at the request of the learned Additional Government Pleader. On 09.08.2016, the impugned order passed by the second respondent, dated 08.07.2016 and the consequential proceedings of the 4th respondent, dated 05.08.2016, were produced before this Court. According to the petitioner, respondents 2 to 4 did not finalize the tender process until 05.08.2016 and only after filing of the writ petition, they finalized the tender process after 05.08.2016, with ante dated proceedings and the tenders were awarded in favour of the 5th respondents in the other three writ petitions. A perusal of the proceedings of the 4th respondent, dated 05.08.2016, amply prove that the 2nd respondent decided the issue on 05.08.

2016 at Chennai and on the same day, the 4th respondent issued the letter of acceptance in favour of 5th respondent.

qualification bid was not decided on 08.07.2016, but only after filing of the writ petition (W.P.(MD) No.14295 of 2016). Hence, the decision of the 2nd respondent and the consequential proceedings of the 4th respondent are against law and conditions of tender invitation. According to the petitioner, he has shown bank balance Rs.2,00,00,000/- which is an admitted fact, and it satisfies the tender condition. But, while evaluating the qualification bid, value of all the 3 bids were taken together and a conclusion has been arrived that the petitioner did not have the required source to do the work. Admittedly, though tenders were called for 6 different works, application for each tender is separate and requirement of EMD and other qualification is also independent one.

Since the 2nd respondent evaluated each tender separately, there is no need to club the values of 3 tenders so as to verify the working capital of participants as against the total value of 3 tenders and there is no such clause available in the tender notification. As the tender conditions are binding both the participants and authorities, any deviation in evaluating the tender process is illegal and against the settled principles of law. The second respondent adopted a novel method to disqualify the petitioner and thereby his price bid was not at all opened. Since the petitioner paid more EMD as he quoted less value than the bid price, the authorities decided to omit the petitioner since the 5th respondent is already started the electrical work in the site.

Besides that, rejection of the petitioner at the stage of qualification bid and at the cost of personal benefit to respondents 2 to 4 has caused huge financial loss to the public exchequer. The petitioner has further stated that the rejection of his qualification bid on the ground that he was not having required working Capital is against the tender conditions and the approach adopted by the second respondent in evaluating 3 items together, when the notice inviting tender was made for 6 items, is not proper one. The petitioner satisfied all the 3 tenders, separately and the same was not considered by the 2nd respondent and the higher payment made by petitioner as EMD is also to be considered as working capital by the respondents.

Respondents 2 to 4 did not act in terms of the Tamil Nadu Transparency in Tender Act, 1998 and the Rules made thereunder, hence the order passed by the respondents 2 to 4 are liable to be quashed. 4.The 4th respondent Superintending Engineer, has filed a counter in W.P.(MD) No.14295 of 2016 and contended that the petitioner participated in the tender process and submitted his bid in two cover system, namely, (i) Qualification Bid; and (ii) Price Bid. The qualification bid was opened on 25.02.2016 and it was sent to the Higher Level Committee for its scrutiny. Due to the general election and the pendency of a writ petition in W.P. (MD) No.3838 of 2016, the Higher Level Committee took a decision only on 08.07.2016 and it was communicated to the 4th respondent on the very same day.

bid was not opened. The price bid for the qualified persons were opened by the 4th respondent on 15.07.2016 and the same was sent to the Higher Level Committee for its scrutiny and for consequential approval. The Higher Level Committee scrutinized the qualification as well as the price bids and relevant documents and finalized the tender process. The Higher Level Committee communicated the final decision on the tenders, by finalizing the successful bidder vide its communication in proceedings, dated 05.08.2016. Petitioner's qualification bid was rejected on 08.07.2016 on the ground that the petitioner has not satisfied the required working capital as per tender condition under Clause V. The petitioner furnished document, namely, O.D. limit from Corporation Bank, Madurai, dated 15.02.2016, for Rs.

2 Crores as against the required working capital of Rs.2.76 Crores, and the result of the tender process was communicated to the petitioner on 09.08.2016 and the petitioner also acknowledged the same on 12.08.2016 and after receipt of the communication from the Higher Level Committee, dated 05.08.2016, the successful bidder executed an agreement on 05.08.2016 and 06.08.2016 and the work commenced on 06.08.2016 and now they completed 20-30% of the work. Since it is a Short Term Tender Notice, the time prescribed by the Tamil Nadu Transparency in Tenders Act, 1998 and the Rules made thereunder need not be followed and the Short Term Tender Notice was approved by the department vide its letter No.DB/HDO/F.23/2016 dated 17.02.2016.

Since the petitioner has already participated in the tender process, now, it is not open to him to raise the above ground. The 4th respondent has also stated that it is not correct to state that some persons were undertaking the Electrical works at Pudukottai Medical College sites with the blessings of official respondents even before the final decision. The alleged representation sent by the petitioner in postal covers, one cover contained two white papers and another cover contained the petitioner's letter and the same was also without authorized signature. Hence, the alleged representation cannot be treated as communication. According to the fourth respondent, the qualification bids have been opened by him on 25.02.2016 and it was sent to the State Level Committee for its 242nd Meeting, dated 08.07.

2016, which decided the qualification bid. The Price Bid of all the qualified persons were opened on 15.07.2016 and were sent to the Higher Level Committee for its 243rd tender award committee meeting held on 05.08.2016 and it finalized the bid on 05.08.2016 vide its proceedings No.DB/DO/F.No.1/2016-17. In turn, this respondent sent communication to the successful bidder, vide proceedings No.DB/DO/F.No.1/2016-17 dated 05.08.2016 and the successful bidder commenced the work after executing the work agreement and now the work is under progress. So far as the tenders under challenge are concerned, the following persons were participated: "The following persons participated in tender No. 282. 1.M/s.Sri Raja Engineering Contractors, Madurai Road, Theni.

2.M/s.PSK Engineering Construction & Co., Kalapanaickenpatty, Namakkal District.

3.M/s.Karthikeyan Electricals, Jot Water Channel Road, Meenakshi Thope, Madurai.

Out of the above three persons, following two persons were decided as qualified persons for tender No.282.

1.M/s.Sri Raja Engineering Contractors, Madurai Road, Theni.

2.M/s.PSK Engineering Construction & Co., Kalapanaickenpatty, Namakkal District.

The following persons participated in tender in Tender No.283. 1.M/s. P&C Projects (P) Ltd., Perundurai Road, Erode. 2.M/s.Karthikeyan Electricals, Jot Water Channel Road, Meenakshi Thope, Madurai.

3.M/s.V.Sathyamoorthy & Co., Surya Garden, Trichy Road, Namakkal District.

Out of that M/s.V.Sathyamoorthy & Co., Surya Garden, Trichy Road, Namakkal District was selected as qualified person. In relation to Tender No.284 the following four persons were participated.

1.M/s. P&C Projects (P) Ltd., Perundurai Road, Erode. 2.M/s.V.Sathyamoorthy & Co., Surya Garden, Trichy Road, Namakkal District.

3.M/s.Prajah Properties & Project Pvt. Ltd., Pallava Garden Old Pallavaram, Chennai.

4.M/s.Karthikeyan Electricals, Hot Water Channel Road, Meenakshi Thope, Madurai.

Out of that M/s.V.Sathyamoorthy & Co., Surya Garden, Trichy Road, Namakkal District, was selected as qualified person for tender No.284.

Thereafter, price bid was opened on 15.07.2016 by the 4th respondent and the same was sent to the Tender Accepting Committee on 20.07.2016 and it was finalized in favour of following persons on 05.08.2016 1.Tender No.282: - M/s.PSK Engineering Construction & Co., Kalapanaickenpatty, Namakkal District.

2.Tender No.283: - M/s.V.Sathyamoorthy & Co., Trichy Road, Namakkal District.

3.Tender No.284: - M/s.V.Sathyamoorthy & Co., Trichy Road, Namakkal District.

and as decided by the Higher Level Committee, the work orders were issued by the 4th respondent on 05.08.2016 and the work was commenced on 05.08.2016 and 06.08.2016."

5.The 4th respondent also filed a common Additional counter affidavit in W.P.(MD) Nos.15223 to 15225 of 2016 stating that the petitioner participated in all the three tenders, namely, Tender Nos.282 to 284 and shown the bank balance as Rs.2 Crores. In the meeting held on 08.07.2016, the Tender Accepting Authority worked

out the required working capital, comprising outstanding value and the present tender value. Thus the required working capital was worked out to be Rs.276.26 lakhs by taking into account the one month requirement of the tenders for which the petitioner had applied and the outstanding value of the petitioners to decide on the financial resourcefulness on the assumption that whether the tenderer have the financial capacity in the event of tenders being awarded to him. Thus, it is worked out as follows: A.Outstanding works 1.Work at Anna University 25.19 lakhs 2.Work at Madurai Tamil Sangam 2.96 lakhs Total of A 28.15 lakhs B.Tendered works:

1.Residential Qtrs, Pudukottai - 317 lakhs/6 months 52.83 lakhs 2.Institution, Pudukottai - 269 lakhs/6 months 44.95 lakhs 3.Hospital, Pudukottai - 902 lakhs/6 months 150.33 lakhs Total of B 248.11 lakhs Total of A + B 276.26 lakhs Since the financial capacity in the form of Working Capital required for the petitioner was assessed at Rs.276.26 lakhs, whereas the Petitioner submitted, a certificate from Corporation Bank, Madurai, for Rs.200 lakhs only, hence the petitioner was disqualified in the Qualification Bid and the other Tenderers, who were found to be satisfied on the working capital criteria, were allowed to the next stage of Price Bid in the Two Cover system.

The 4th respondent has further stated that the same method of calculating working capital is followed in all other tenders invited by the respondents for construction of New Government Medical College and Hospital, both at Karur and Pudukkottai. The petitioner having applied for 3 tenders, strangely chose to submit a much lesser Bank Balance to meet the working capital and further, the petitioner did not inform the tender inviting authorities as to what Rs.2 Crores stands for, and there is no malafide or bias as alleged by the petitioner. They followed the procedure, scrupulously and since the petitioner did not qualify in the qualification bid, his tenders have been rightly rejected. 6.The third respondent also filed a common counter affidavit in W.P.(MD) No.

15223 to 15225 of 2016, reiterating the averments made by the 4th respondent in his counter affidavit and additional counter affidavit.

7.The 5th respondents in W.P.(MD) Nos.15223 and 15224 of 2016 also filed counter affidavits stating that the decision of Tender Advisory Authority is based on objective factors and it depends upon the subjective satisfaction of the Tender Advisory

Committee. The Tender Accepting Authority had detailed about the eligibility of the qualification bid and found that the petitioner did not satisfy the same and further has given reason which was also communicated to the petitioner. Against the impugned order, an appeal is provided for under the Tamil Nadu Transparency in Tenders Act, 1998 and hence the petitioner, without availing the appeal remedy, which is effective and efficacious remedy, cannot maintain writ petitions. The Tender Awarding Committee is a Higher Level Committee, consisting of Senior officials and they have taken a decision as per the Tamil Nadu Transparency in Tenders Act and the petitioner cannot find fault with that. 8.Mr.

Parthasarathy, learned Senior Counsel, appearing for the Writ Petitioner in all the writ petitions would submit that the official respondents did not follow the procedure contemplated under the Tamil Nadu Transparency in Tenders Act, 1998 and the Rules made thereunder and they have deliberately rejected the petitioner's tenders without assigning any reason and the long delay in finalizing the tender also creates doubts on the genuineness of the official respondents in finalizing the tenders and only after filing of the first writ petition, the official respondents have hurriedly concluded everything and rejected the petitioner's tenders.

Learned Senior Counsel also submitted that even before the tender is being awarded, the 5th respondent commenced works in the site, and it was duly informed to the official respondents, which clearly shows the malafide intention on the part of the respondents and it also shows that the official respondents were predetermined to award tenders to the selected contractor, and subsequently rejected the petitioner's tenders. Learned Senior Counsel further submitted that even as per working capital requirement assessed by the official respondents, the total working capital requirement arrived at for all the 3 tenders is Rs.276.26 lakhs, where as the petitioner has submitted his working capital at Rs.

2 Crores and in the above circumstances, the official respondents ought to have considered one of the tenders for the above amount and even for the first tender, the petitioner working capital meets the requirement, but the official respondents considered all the tenders together and rejected all the tenders submitted by the petitioner, which is highly arbitrary and also done with malafide intention. Learned Senior counsel further submitted that at least at the time of opening the tenders, the official respondents ought to have restricted the petitioner's working capital for the first tender and qualified him to participate in the price tender, but, since the petitioner's price bid was less than the other tenderers, the official respondents, with malafide intention, have rejected all the tenders.

9.Per contra, Mr.V.Raghavachari, learned counsel appearing for the 5th respondent in W.P.(MD) No.15225 of 2016 submitted that admittedly the working capital requirement for the above 3 items

works out to Rs.2,76,26,000/-, but the petitioner could produce his working capital only for Rs.2 Crores, which is less than the total working capital requirement and hence, the authorities are right in rejecting his qualification bid. Learned counsel further submitted that the contention of the petitioner that at least working capital facility provided for by petitioner would satisfy for any one of the tenders also could not be accepted, since the petitioner had deliberately submitted his working capital facility only for Rs.2 Crores for all the tenders together and he did not submit separate working capital facility for each tender. It is his submission that at least the petitioner could have restricted his offer for one tender, but without making any such application, the petitioner's above request cannot be considered at this stage.

Learned counsel further submitted that after execution of the agreement, the 5th respondent has now commenced the work and almost 40% of the work has been completed and at this stage, the request of the petitioner to set aside the tender cannot be accepted. 10.Mr.T.V.Ramanujam, learned Senior Counsel, appearing for the 5th respondent in W.P.(MD) No.15223 and 15224 of 2016 relying on the counter affidavit contended that clubbing all the 3 tenders, together the petitioner filed his working capital and he has not restricted his claim for any one of the works and now, it is not open to him to contend that his working capital must be restricted to any one of the tenders.

Learned Senior Counsel further submitted that after execution of the tender agreement the 5th respondent has commenced the work and at this stage the order awarding tender cannot be set aside. Apart from that, it is his submission that admittedly, when the petitioner does not have the required qualification, the authorities have rightly rejected his qualification bid and there is no malafide in the act of the respondents.

(i) Seimens Public Communication Networks Pvt. Ltd. and another v. Union of India (UOI) and others [(2008) 16 SCC 215], (ii) P.Ramadas v. The Officer-in-charge, Materials Management Division: Cauvery Asset Oil and Natural Gas Commission Limited [(2011) 6 MLJ 7], (iii) V.S.N.Benarji, Engineers & Contractors v. State of Andhra Pradesh and Ors [AIR 1998 AP 29], (iv) Subas Chandra Panda v. Superintending Engineer, Rural Works and Ors. [AIR 2004 Ori 124], (v) State of Bihar and Others v. Jain Plastics and Chemicals Ltd., [(2002) 1 SCC 216], (vi) Rama Muthuramalingam, State Propaganda Committee Member v. The Deputy Superintendent of Police and Others [AIR 2005 Mad 1] and (vii) AIR India Ltd., v. Cochin International Airport Ltd. & Others [(2000) 2 SCC 617].

11.Learned Special Government Pleader appearing for the official respondents would submit that the respondents 1 to 4 have considered all the tender applications only in accordance with law and as per the Tamil Nadu Transparency in Tenders Act, 1998 and since the petitioner did not qualify for qualification bid his price bid has been rejected and therefore there is no malafide in the act of the official respondents in rejecting his application. He further contended that as against the order passed by the official respondents, there is an appeal provided for under Section 11 of the Tamil Nadu Transparency in Tenders Act, 1998 and without availing the alternative remedy, the petitioner cannot invoke the writ jurisdiction and hence, the writ petitions are liable to be dismissed.

12.I have considered the rival submissions and also perused the materials on record.

13.Having regard to the submissions made by the learned counsel on either side, the following issues arise for consideration in the present writ petitions.

1. Whether the official respondents are right in rejecting the petitioner's qualification bid, without considering the petitioner's working capital for any one of the tenders?

2. Whether the action of the respondents 2 to 4 is vitiated by malafide and bias?

3. Whether there is any procedural error while processing the tenders by the official respondents? and

4. Whether the writ petitions are maintainable without availing the alternative remedy of filing appeal under Section 11 of the Tamil Nadu Transparency in Tenders Act, 1998? 14.Before considering the rival submissions, it is necessary to consider the position of law as laid down by the Hon'ble Supreme Court and this Court regarding the scope of interference of this Court in awarding contract under Article 226 of the Constitution of India.

15.In Tata Cellular v. Union of India [(1994) 6 SCC 651], the Hon'ble Supreme Court has observed as under: "94. (1) The modern trend points to judicial restraint in administrative action.

(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible.

(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. ...

(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi- administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.

(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."

16.The Hon'ble Supreme Court in Michigan Rubber (India) Ltd., v. The State of Karnataka and Others [(2012) 8 SCC 216] held as follows:

"23) From the above decisions, the following principles emerge:

(a) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;

(b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited;

(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted;

(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has

the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government.

24) Therefore, a Court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"; and (ii) Whether the public interest is affected. If the answers to the above questions are in negative, then there should be no interference under Article 226."

17. Keeping the above principles in mind, the points arise for consideration in the present writ petitions are to be examined.

18. It is an admitted fact that the official respondents called for tenders for providing Internal and External Electrification and Generator arrangement for the New Government Medical College and Hospital at Pudukkottai in Pudukottai District. As per the notice inviting tenders, it is a Short Term Tender. It consists of 6 packages and the writ petitioner applied for 3 packages, namely Tender Nos.282 to 284. Approximate value for the work in Tender No.282 is Rs.9,02,00,000/-, and approximate values for Tender No.283 is Rs.3,17,00,000/- and for Tender No.284 is Rs.2,69,67,000/-.

19.Tender condition No.5, which relates to working capital availability of the tenderer, reads as follows: "5.The applicant shall have working capital available at least sufficient to finance one month current activity on the assumption that this work is awarded to the applicant on being qualified.

Definition:

a. Working capital means the amount available in the Bank Accounts of the applicant on the date of submission of application plus the unutilized amount of overdraft/credit facility extended to the applicant by the Nationalized/Scheduled Banks.

b. One month current activity means, sum total of the value of the unfinished portion of works already

committed by the applicant and being executed by the applicant - (outstanding value) - divided by the balance period available for completion of each of the committed works under execution plus the value of the work for which the qualification Tender & Price tender is called for divided by the number of months stipulated for its completion.

c. Outstanding value of committed works means the total value of each project under execution minus the value of work completed as on the date of submission of qualification schedule."

20.As per the total required working capital for one month for all the above 3 works is Rs.2,76,26,000/-. The petitioner, while applying for the above three contracts, produced a certificate issued by the Corporation Bank, Madurai, dated 15.02.2016, in providing O.D. limit to an extent of Rs.2 Crores and the petitioner submitted the above certificate issued by the Corporation Bank for all the 3 tenders he had applied. Admittedly, at the time of submitting the tender, the petitioner produced the above certificate for all the tenders in common. In the above circumstances, Higher Level Committee, while considering the qualification bid submitted by the petitioner, has rejected all his tenders on the ground that the total working capital comes to Rs.2,76,26,000/-, but the working capital available for the petitioner is only Rs.2 Crores.

Hence, he is not qualified. 21.Now, the contention of the learned Senior Counsel for the petitioner is that even though there is no dispute regarding the total requirement of working capital, since the petitioner produced a certificate for Rs.2 Crores, the official respondents ought to have considered the above amount at least for any one of the tenders and therefore the official respondents are not right in rejecting all the tenders. The above contention of the learned Senior Counsel for the petitioner cannot be accepted for the simple reason that when the petitioner had applied for 3 packages, separately, he ought to have satisfied the working capital requirement for each package, separately, by filing separate proof/evidence for his working capital in respect of each tender. Admittedly, he produced the certificate for Rs.

2 Crores in total for all the 3 contracts. At the time of application or atleast in the later point of time petitioner ought to have informed the respondents, restricting his above working capital for any one of the tenders, but the petitioner did not take any steps for the same. Since the petitioner produced evidence of working capital in common, now cannot raise his objection that the petitioner's working capital ought to have been considered for any one of the tenders.

22.Being a seasoned contractor, the petitioner ought to have carefully considered the working capital requirement, in each tender and ought to have applied separately, in order to qualify

himself to participate in the further tender process. Having failed to do so at the time of filing tender, now the petitioner cannot raise this plea at this stage. Hence, the contention of the writ petitioner cannot be countenanced.

23.So far as the next contention of the learned Senior Counsel for the petitioner that the authorities did not provide time as contemplated under the Tamil Nadu Transparency in Tender Act, 1998 and Rules framed thereunder is concerned, it is only a Short Term Tender as provided under the Rules and the official respondents also got approval as required under the Rules. Hence, the time limit prescribed under the Rules is not applicable to the present tenders.

24.Further, the reason for the delay in considering the tenders by the Higher Level Committee has been explained by the official respondents that due to the pendency of a writ petition and general election there was delay in convening the Higher Level Committee. After convening the Higher Level Committee, the Committee met on 08.07.2016 and the tenders were finalized, and the delay in finalizing the tenders no way prejudice the petitioner.

25.So far as the allegations of malafide and bias is concerned, even though there is a delay in considering the tenders, the Tender Awarding Committee, in the meeting held on 08.07.2016, has elaborately considered the qualification criteria of all the tenderers. Since the petitioner did not qualify in the pre-qualifying criteria, as his available working capital was less than the required working capital, the Committee rejected the petitioner's tenders. As discussed earlier, there is nothing wrong in the decision taken by the Tender Awarding Committee. Apart from that, so far as allegations of malafide and bias is concerned, except vague averments in the affidavit, there is no substantial evidence available to establish malafide against the official respondents. The Committee followed the procedure while considering the tenders and there is no procedural irregularity in awarding the tender.

26.So far as the contention of the petitioner that even before awarding contracts the work has been started, it was not supported by evidence. Hence, the said contention also could not be considered, at this stage.

27.Apart from that, as rightly contended by the learned counsel for respondents as against the order passed by the Tender Accepting Authority, an appeal is provided under Section 11 of the Tamil Nadu Transparency in Tender Act, 1998 to the Government and the petitioner without availing the alternative remedy cannot maintain the writ petition.

28.Considering all the above facts, I find no merit in the writ petitions and they deserve to be dismissed. 29.In the result, all the Writ Petitions are dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.

Sd/- Assistant Registrar(Writs) /True copy/ Sub Assistant Registrar To 1.The Secretary to Government, Public Works Department, Secretariat, Chennai - 600 009.

2.The Engineer in Chief, Public Works Department, Chepauk, Chennai - 600 005.

3.The Chief Engineer - Buildings, Public Works Department, Trichy Region, Trichy.

4.The Superintending Engineer (Electrical Circle), Public Works Department, Trichy - 1.

+1cc to MR.K.Govindarajan, Advocate SR.No.62466 +2cc to Mr.R.Thirumalai, Advocate SR.No.62662 & 62663 +1cc to Mr.V.Raghavachari, Advocate SR.No.62091 sj sm:DB:17.11.2016:15P/9c order in Writ Petition(MD)Nos.14295, 15223 to 15225 of 2016 and WMP (MD) No.10603 & 10604 in W.P.(MD) No.14295 of 2016, 11209 & 11210 in WP (MD) No.15223 of 2016, 11211 & 11212 of 2016 in W.P. (MD) No.15224 of 2016 and 11213 to 11215 of 2016 in W.P.(MD) No.15225 of 2016 Delivered on 20.10.2016