Three Star Poultry Farm Vs. Governmnent of Tamil Nadu - Court Judgment

Excerpt:
in the high court of judicature at madras dated : 25.04.2014 coram the honourable mr.justice n.paul vasanthakumar and the honourable mr.justice m.sathyanarayanan writ appeal nos.574 and 776 of 2013 and writ petition no.13320 of 2013 and m.p.nos.1, 2, 4, 6 and 7 of 2013 and 1 and 2 of 2014 in w.a.no.574 of 2013 and m.p.nos.1, 2, 4 and 5 of 2013 and 1 and 2 of 2014 in w.a.no.776 of 2013 and m.p.nos.1 and 4 of 2013 in w.p.no.13320 of 2013 three star poultry farm represented by its managing director p.veera pillai 7/107-1, n.pudupatti trichy main road namakkal taluk 637 020.appellant in wa5742013 1.s.n.n.poultry farm represented by its proprietor s.n.nityanandan 5/3 sanampalayam annur 641 653 coimbatore north taluk 2.s.s.poultry farm represented by its managing partner s.puvanendran.....

Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.04.2014 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN WRIT APPEAL Nos.574 and 776 of 2013 and WRIT PETITION No.13320 of 2013 and M.P.Nos.1, 2, 4, 6 and 7 of 2013 and 1 and 2 of 2014 in W.A.No.574 of 2013 and M.P.Nos.1, 2, 4 and 5 of 2013 and 1 and 2 of 2014 in W.A.No.776 of 2013 and M.P.Nos.1 and 4 of 2013 in W.P.No.13320 of 2013 Three Star Poultry Farm represented by its Managing Director P.Veera Pillai 7/107-1, N.Pudupatti Trichy Main Road Namakkal Taluk 637 020.Appellant in WA5742013 1.S.N.N.Poultry Farm represented by its Proprietor S.N.Nityanandan 5/3 Sanampalayam Annur 641 653 Coimbatore North Taluk 2.S.S.Poultry Farm represented by its Managing Partner S.Puvanendran Kuppitchipalayam Maraparai Post via.

Vaiyappamalai Thiruchengodu Taluk Namakkal District 637 410 3.Mother Poultry Farm represented by its Proprietor V.Vijayalakshmi 6/2F, Kummampatti Road Valayapatti Post Namakkal Taluk 637 020 4.K.Ramachandran 5.K.Sakthivel 6.K.Jayapal 7.C.Shanmugam 8.R.Kandasamy 9.R.Nachimuthu 10.R.P.S.Farms & Exports (P) LTD.Represented by its Managing Director P.Sundaram 1/121 Ganapathi Nagar N.Pudhupatti 637 407 Namakkal Taluk 11.K.S.P.Poultry Farms represented by its Managing Director K.S.Ponnusamy 3/76, Koilpalayam Sakthinaickenpalayam Thiruchengodu Taluk Namakkal District 12.Sr.Vanmathi Poultry Farms represented by its Proprietor N.Ettiyannan 188 Azhagu Nagar Namakkal 637 001 13.Subbu Poultry Farm represented by its Proprietor R.Subbu 3/30 Nochipatti Peramandampalayam Paramathi Velur Taluk 14.S.V.Poultry Farm represented by its Proprietor K.Chinnadurai 2, Kattuvalavu East Namagiripettai 637 408 Rasipuram Taluk 15.Gounder Feeds represented by its Managing Partner P.Kumaravel 3/211 Muthukalipatti Rasipuram Taluk 637 401 16.Sr.Thangam Poultry Farm represented by its Partner V.Pownambal 1/260, R.Pudupalayam Rasipuram Taluk 637 408 17.Thulasi Poultry Farm represented by its Partner S.N.Nityanandam 5/3 Sanampalayam Annur 641 653 Coimbatore North Taluk 18.Sr.Venkateswara Agencies represented by its Managing Partner C.Raju 5/133, Selliyayipalayam Karaikurichipudur Namakkal Taluk 637 020 19.Geetha Poultry Farm represented by its Partner R.Ganapathi 2/97 West Street Kondamanaickenpatti Namakkal Taluk 637 405 20.Raj Poultry Farm represented by its Managing Partner P.Arumugam 1/25 Khadi Board Colony Namakkal 637 001 21.Jaya Poultry Farm represented by its Partner M.Anand 2/96 West Street Kondamanaickenpatti Namakkal Taluk 637 405.Appellants in WA7762013 R.Chinnusamy .Petitioner in WP133202013 vs 1.The Governmnent of Tamil Nadu represented by its Principal Secretary Social Welfare and Nutritious Meal Programme (NMP-3) Department Chennai 600 009 2.Integrated Child Development Services Scheme represented by the Principal Secretary/Special Commissioner Taramani, Chennai 600 113.Respondents 1 & 2 in WA574and 776/2013 and WP133202013 3.Arogya Food Ltd represented by its Deputy General Manager Flat No.3G, Shreevari Apartment No.18A, Abdul Razaq Street Saidapet, Chennai 600 015.

4.Fair Deal Food Ventures Private Limited G1, J.R.L.Builders No.11-D, Saraswathi Nagar Main Road Adambakkam, Chennai 600 088.Respondents 3 & 4 in WA574and 776/2013 5.Natural Food Products 3/234, Muthukalipatti Post Rasipuram Taluk 637 401 Namakkal District 6.Suvarnabhoomi Enterprises PVT.Ltd S.F.No.46/1, Door No.2/217, 2/218, 2/219, 2/220, Pullagoundampatty Post Thiruchengodu, Namakkal District 7.Christy Friedgram Industry Private Ltd., A2-A3, SIDCO Industrial Estate Andipalayam, Thiruchengodu 637 214 8.T.S.Kumarasamy 9.The Director of Social Welfare Chintadripet, Chennai 2.

(RR5 to 9 in WA7762013 impleaded as party respondents vide order of Court dated 7.6.2013 made in MP No.3/2013 and RR5 to 7 in WP133202013 impleaded as per order dated 29.1.2014 in MP No.2/2013) .Respondents 5 to 9 in WA7762013 & Respondents 3 to 7 in WP133202013 Writ appeals preferred under Section 15 of the Letters Patent against the orders of this Court dated 21.3.2013 and 27.3.2013 made in W.P.Nos.6896 and 7586/2013.

Writ petition filed under Article 226 of the Constitution of India praying for a writ of prohibition prohibiting the respondents 1 and 2 herein from executing or allowing the exploitation of the contract for supply of eggs in favour of the respondents 3 and 4 or any tenderer who fails to fully satisfy all the qualifying conditions prescribed under the Tender Notification in Tender No.Roc.3566/NMP/2012, dated 18.2.2013.

For Appellant in WA5742013 : Mr.K.Duraisamy Senior Counsel for Mr.Kandan Duraisamy For Appellants in WA7762013 and For Petitioner in WP133202013 : Mr.A.K.Ganguli Senior Advocate for M/s.Muthumani Doraisami For Respondents : Mr.P.H.Arvind Pandian Additional Advocate General Assisted by Mrs.A.Sr.Jayanthi Special Government Pleader and Mr.Adithiya Reddy Government Advocate for State Government Mr.Karthick Mukundan for R3 in WA574& 776/13 Mr.L.Chandrakumar for R4 in WA574& 776/13 Mr.G.Masilamani Senior Counsel for Mr.K.Kumeresh Babu in WA574& 776/13 Mr.Sathish Parasaran for RR7 & 8 in WA574& 776/2013 and for RR5 & 6 in WP133202013 Mr.Mani Sundara Gopal for Mr.M.Kempraj for R4 in WP133202013 Mr.M.S.Krishnan Senior Counsel for Mrs.Lesi Saravanan for R3 in WP133202013 and for Mr.S.Ramachandran for R5 in WA574& 776/13 COMMON

JUDGMENT

Writ appeals and the writ petition pertain to floating of tender for procurement of AGMARK quality eggs under Puratchi Thalaivar MGR Nutritious Meal Programme and Integrated Child Development Services Scheme (IDCDSS) for a period of one year from 1.5.2013 to 30.4.2014 and awarding the same to some of the private respondents.

2.W.P.Nos.6896 and 7586 of 2013 filed challenging the legality of G.O.Ms.No.264, Social Welfare and Nutritious Meal Programme (NMP-3) Department, dated 17.10.2012, and the tender notification dated 18.2.2013, came to be dismissed on 21.3.2013 and 27.3.2013 respectively, and challenging the said ordeRs.W.A.Nos.574 and 776 of 2013 respectively were filed and were disposed of by the FiRs.Bench of this Court vide common order dated 30.4.2013, as infructuous.

M/s.Three Star Poultry Farm aggrieved by the dismissal of W.A.No.574/2013, filed SLP Nos.17129 and 17130/2013 and after leave was granted, those petitions were numbered as Civil Appeal Nos.4606 and 4607/2013 and the appellant in W.A.No.776/2013 has also filed SLP No.17975/2013 and after leave was granted, it was numbered as Civil Appeal No.4608/2013.

All these Civil Appeals were taken up together for final disposal and after hearing the learned Senior Counsel appearing for the appellants, and the learned Senior Counsel appearing for the respondents 5 and 6, the Hon'ble Supreme Court of India has allowed the appeals and set aside the common judgment passed in W.A.Nos.574 and 776/2013, and remanded the matter to this Court for hearing and disposal on merits at the earliest and also granted liberty to the appellant in C.A.Nos.4606 and 4607/2013 to implead the respondents 5 and 6 as party respondents.

3.The facts necessary for the disposal of the writ appeals and writ petition are as follows: 3(i) The fiRs.respondent has passed G.O.Ms.No.264, Social Welfare and Nutritious Meal Programme (NMP-3) Department dated 17.10.2012, re-introducing State Level Tender System for procurement of eggs under Puratchi Thalaivar MGR Nutritious Meal Programme and Integrated Child Development Services Scheme (IDCDSS).The contents of the said Government Order would disclose that it has traced the history of the scheme of supplying boiled egg in the Noon Meal under Nutritious Meal Programme which was introduced in the year 1989, and taking into consideration that certain issues have been brought to the notice of the Government regarding the existing terms and conditions of the tender for procurement of eggs and also the information of the Accountant General with regard to incurring of huge expenditure towards multiple advertisements for issuing district-wise tender for all districts and after deliberation and consultation with the concerned departments and also weighing the pros and cons of district-wise tender viz-a-viz the state level tender, has decided to adopt State Level Single Tender by following Rule No.31 of the Tamil Nadu Transparency in Tender Act, 1998, (Tamil Nadu Act 43/1998).3(ii) In terms of the said Government Order, tender notice was issued for supply of eggs (hen) as per AGMARK specifications for a period of one year and the tender document contains the details and procedure for making a bid for supply of eggs.

3(iii) One R.Chinnusamy filed W.P.No.32302/2012, V.Nachimuthu filed W.P.No.32303/2012 and V.Muthu filed W.P.No.32741/2012 challenging G.O.Ms.No.264 dated 17.10.2012, issued by the fiRs.respondent, and consequential tender notification No.Roc.3566/NMP/2012, on the file of the second respondent.

Notices were ordered to the respondents and counter affidavits were also filed.

The learned Judge on an elaborate consideration of factual aspects and legal position, has dismissed all the writ petitions vide common order dated 10.1.2013.

3(iv) Tvl.

Chinnusamy and Nachimuthu aggrieved by the dismissal of W.P.Nos.32302 and 32303/2012, had filed W.A.Nos.2011 and 2012/2013 respectively.

In the interregnum, the last date fixed in respect of the above said tender notice, expired on 10.12.2012, and therefore, the fiRs.respondent floated a fresh tender in tender No.Roc.3566/NMP/2012 with identical terms and conditions as that of the earlier tender notice and the last date for submission of tender was fixed as 25.3.2013.

3(v) The aggrieved parties viz.

Chinnusamy and Nachimuthu, who filed W.A.Nos.2011 and 2012/2013 respectively, had withdrawn the said writ appeals and both the appeals were dismissed as withdrawn on 10.1.2014 and 10.2.2014 respectively.

3(vi) As already stated above, Three Star Poultry Farm represented by its Managing Partner Thiru P.Veera Pillai, filed W.P.No.6896/2013 and S.N.N.Poultry Farm, represented by its Proprietor S.N.Nityanandan, has filed W.P.No.7586/2013 challenging G.O.Ms.No.264 dated 17.10.2012, and the tender document bearing No.Roc.3566/NMP/2012 dated 18.2.2013.

Both the writ petitions were dismissed on 21.3.2013 and 27.3.2013 respectively, by taking into consideration the earlier common order dated 10.1.2013, made in W.P.Nos.32302, 32303 and 32741/2012, wherein the challenge made to the very same Government Order as well as earlier tender notification of 2012, came to be dismissed.

The appeals in W.A.Nos.574 and 776/2013 also came to be dismissed as infructuous and SLPs preferred against the said ordeRs.after leave, were numbered as Civil Appeals and were disposed of by a common order by the Hon'ble Supreme Court of India remanding the matter once again to this Court for fresh adjudication on merits.

3(vii) The respective appellants/writ petitioners in their affidavits filed in support of W.P.Nos.6896 and 7586/2013 respectively, have submitted among other things, that there is no justification on the part of the fiRs.respondent/State Government to change the system from that of district-wise procurement to state level procurement and it would encourage only monopoly and at the same time, gravely affect the livelihood of the small poultry farmers like the writ petitioneRs.It is further contended that the conditions contained in the tender notice, have been prescribed only to suit the need of the respondents 3 and 4 therein and the terms and conditions provided under the impugned Government Order as well as the tender notice, are unfair and unreasonable and prevented the small-time egg producers from participating in the bid.

It is also the stand of the appellants/writ petitioners that the condition prescribing possession of AGMARK certificate and the date of submission of tender, is contrary to letter and spirit of the provision of AGMARK and in any event, the condition ought to have been prescribed that they should supply as per AGMARK specification instead of the condition that they should possess AGMARK Certificate on the date of tender.

The appellants would further state that it is impossible for a single contractor to supply eggs throughout the State for a period of one year and hence pray for quashment of the impugned Government Order as well as the tender notice dated 18.2.2013.

3(viii) Pendency of both the writ appeals, M/s.Natural Food Products and Suvarnabhoomi Enterprises PVT.Ltd., who were successful biddeRs.were awarded contract for supply of AGMARK quality eggs for a period of one year from 1.5.2013 to 30.4.2014 and therefore, they were also impleaded as respondents.

3(ix) Pendency of W.A.No.574/2013, the following miscellaneous petitions were filed:- (a) M.P.No.1/2013 to stay of all further proceedings pursuant to the impugned G.O.Ms.No.264 dated 17.10.2012, and tender document dated 18.2.2013; (b) M.P.No.2/2013 to raise additional grounds; (c) M.P.No.3/2013 to implead M/s.Natural Food Products and Suvarnabhoomi Enterprises PVT.Ltd., which were ordered on 7.6.2013; (d) M.P.No.4/2013 to grant an order of ad-interim injunction restraining the respondents 1 and 2 from executing or allowing the exploitation of the contract for supply of eggs pursuant to the impugned tender notification dated 18.2.2013; (e) M.P.No.5/2013 to implead M/s.Christy Friedgram Industry Private Ltd., - ordered on 7.6.2013; (f) M.P.No.6/2013 to grant an order of status-quo as on 28.4.2013 restraining the respondents from further exploiting the contract pursuant to the letter dated 30.4.2013 issued by the Director of Social Welfare; (g) M.P.No.7/2013 to call for the entire records from the file of the respondents 1 and 2 and Director of Social Welfare relating to the floating of tender during November, 2012 and February, 2013 and (h) M.P.No.1/2014 to amend the prayer in W.P.No.6896/2013 praying for declaration declaring G.O.Ms.No.264 dated 17.10.2012, and tender document dated 18.2.2013, and consequential selection of respondents 5 and 6 as successful bidders as per the proceedings of the 9th respondent dated 30.4.2013, as unconstitutional, illegal, arbitrary, etc.3(x) Similarly in W.A.No.776/2013, the following miscellaneous petitions were filed:- (a) M.P.No.1/2013 to stay G.O.Ms.No.264 dated 18.2.2013; (b) M.P.No.2/2013 to raise additional grounds in the writ appeal; (c) M.P.No.3/2013 to implead Natural Food Products and others  ordered on 7.6.2013; (d) M.P.No.4/2013 to maintain status quo as on 28.4.2013, restraining the respondents from further exploiting the contract pursuant to the letter dated 30.4.2013 issued by the Director of Social Welfare; (e) M.P.No.5/2013 to call for the entire records from the file of the respondents 1 and 2 and Director of Social Welfare relating to the floating of tender during November, 2012 and February, 2013 and (f) M.P.No.1/2014 to amend the prayer in W.P.No.7586/2013 praying for declaration declaring G.O.Ms.No.264 dated 17.10.2012, and tender document dated 18.2.2013, and consequential selection of respondents 5 and 6 as successful bidders as per the proceedings of the 9th respondent dated 30.4.2013, as unconstitutional, illegal, arbitrary, etc.3(xi) The official respondents viz.

Respondents 1, 2 and 9, had filed their counter in M.P.Nos.1 and 1/2013 in W.A.Nos.574 and 776/2013 and in M.P.No.1/2014 as well as in M.P.Nos.5 to 7/2013 in W.A.No.574/2013.

Similarly the respondents 1, 2 and 9 had filed their counter in M.P.Nos.3 to 5/2013 and M.P.No.1/2014 in W.A.No.776/2013 wherein they took the following stand: (a) The amendment of prayer sought for in W.P.No.6896/2013 as well as in W.P.No.7586/2013 came into being at the belated stage several months after the filing of the writ petitions and order of notice and in fact, only at the time of final hearing of the appeals and it is purely an abuse of process of Court and by amending the prayer, the respective appellants seek to extend the scope of the writ appeals and change the entire character of the proceedings at a belated stage.

(b) The entire tender process was carried out transparently and all the District Collectors were appraised as early as on 30.4.2013, with regard to the award of tender in favour of the respondents 5 and 6 viz.

M/s.Natural Food Products and Suvarnabhoomi Enterprises PVT.Ltd., and the appellants on their own admission, were very well aware of the selection and award of tender in favour of the respondents 5 and 6 and but for the reasons best known to them, have not chosen to take steps to attack the award of tender in their favour and much belatedly filed petitions for their impleadment.

(c) The challenge made to the G.O.Ms.No.264 dated 17.10.2012, and the earlier tender notification of 2012 by Tvl.

Chinnusamy, Nachimuthu and Muthu, has ended in failure by way of dismissal of their writ petitions by a common order dated 10.1.2013, and the further challenge made by Chinnusamy and Nachimuthu in W.A.Nos.2011 and 2012/2013, has also ended in failure on account of dismissal of the said writ appeals as withdrawn on 10.1.2014 and 10.2.2014 respectively, and therefore, it is not open to the appellants to make a challenge to the impugned G.O.as well as that of the earlier tender notification of 2012 and the said finding rendered in the above said writ petitions, became final.

(d) The respective appellants in these appeals have not even participated in the tender process and therefore, it is not open to them to make a challenge to the impugned G.O.as well as the second tender notification.

(e) Selection of capable suppliers by adhering to relevant tender process in accordance with the Tamil Nadu Transparency in Tender Act and Rules framed thereunder, is the prerogative of the Department for the particular job and the appellants are not having any right to challenge the said function of the Department.

(f) The pros and cons in the district-wise tender and State level tender were considered and discussed in detail by the officials of the concerned department coupled with the objections/opinion expressed by the Accountant General of Tamil Nadu, and taking into consideration all important and relevant aspects only, a decision has been taken to float State wide tender by passing G.O.Ms.No.264 dated 17.10.2012, and the said Government Order also contains reasons as to the floating of State wide tender in place of district-wise tender and therefore, it cannot be faulted with.

(g) The requirement of AGMARK certification is a policy decision and it was taken in terms of the guidelines given by National Egg Co-ordination Committee (NECC) and other relevant parameters and it would result in supply of good quality eggs and admittedly, the appellants are not having AGMARK certification and therefore, it is not open to them to challenge the Government Order as well as the second tender notification.

The Tender Inviting Authority and Tender Accepting Authority are two different officials and the second respondent is not a part of the Tender Scrutiny Committee; but he is given power only to constitute a Scrutiny Committee in terms of G.O.Ms.No.264 dated 17.10.2012, and therefore, no malafide can be attributed.

(h) As per Clause 10(viii) of tender document, consortium bidding has been allowed and it would result in pooling of qualifications and joint participation in the tender and it is also a business practice and it cannot be faulted with.

(i) The respondents 5 and 6 after awarding of the contract pursuant to the tender notification of 2013, so far performed their obligations to the satisfaction of the authority and the contract expires on 30.4.2014, and steps have been taken to float tender for awarding contract for the year 2014-2015.

3(xii) The third respondent has filed his counter affidavit in M.P.Nos.1 and 1/2013 in W.A.Nos.574 and 776/2013 stating among other things, that in view of the dismissal of W.P.No.32302/2012 batch etc., on 10.1.2013, wherein, the challenge made by Tvl.

Chinnusamy, Nachimuthu and V.Muthu has ended in failure, the settled issue cannot be re-agitated once again by the appellants, who had not even participated in the tender process, and on that ground, the writ petitions themselves are not maintainable.

It is further stated that in the second tender notification, the third respondent has not even participated and therefore their impleadment is wholly unnecessary.

3(xiii) The third respondent viz.

Arogya Food Limited, has also filed their counter in M.P.Nos.3 to 5/2013 and with regard to the allegation made against one T.S.Kumarasamy, has denied the said allegation as false and also took a stand that he is not controlling the powers of M/s.Arogya Food Limited.

3(xiv) M/s.Fair Deal Food Ventures Private Limited had also filed their counter affidavits in M.P.No.4/2013 in W.A.No.574/2013 as well as in M.P.No.6/2013 in W.A.No.776/2013, stating among other things, that in view of the dismissal of W.P.No.32302/2012 batch etc., on 10.1.2013, the writ petitions themselves are not maintainable and in respect of second tender notification dated 18.2.2013, they have not participated.

It is further contended by the fourth respondent viz.

M/s.Fair Deal Food Ventures Private Limited, that Thiru T.S.Kumarasamy is one of their Directors and he is also a Director of many other Companies and there is no legal impediment on his part to become a Director in many companies at the same time and in fact, the fourth respondent being an independent company, participated in the earlier tender process by submitting two Demand Drafts and the previous tender expired on 10.12.2012, and thereafter, the Government has floated a fresh tender dated 18.2.2013, in which, they did not participate.

3(xv) In the miscellaneous petitions praying for amendment and raising additional grounds, allegations are levelled against T.S.Kumarasamy and he has filed his counter affidavit in M.P.No.3/2013 in W.A.No.574/2013 as well as in M.P.No.5/2013 in W.A.No.776/2013 stating among other things, that he is a majority shareholder in M/s.Christy Firedgram Industry Private Limited and all the material facts have been disclosed at the time of submission of tender and the constitution of independent companies with the object of dealing with different facet of business cannot be faulted with and such constitution is neither illegal nor uncommon and in fact, the Tender Scrutiny Committee was expressly informed about the shareholding pattern of the sixth respondent viz.

Suvarnabhoomi Enterprises PVT.LTD.It is further contended that the seventh respondent viz.

Chrisaty Friedgram Industry Private Limited, has no connection whatsoever, either with the tender forming subject matter of the present litigation, or with the proceedings allegedly pending in the State of Karnataka, or with any other tender/contract in the State of Karnataka, though the appellants took a stand that one of the constituents, in which, Mr.Kumarasamy is a major stakeholder, has been facing criminal prosecution.

It is further stated that the petitioner in W.P.No.32302/2012 Mr.R.Chinnusamy, is nothing but a person set up by the present appellants and he is acting in concert with them solely with an ulterior motive to destabilize the very tender process initiated by the second respondent, and on-going State level supply of eggs for the Noon Meal Scheme for the State of Tamil Nadu and in fact, W.P.No.6896/2013 is the verbatim reproduction of the very same averments found in W.P.No.32302/2012 filed by Chinnusamy, and it would also exhibit the unbarring nexus between them.

Insofar as the allegations levelled that one of the firMs.which effected supply in State of Karnataka, has been blacklisted and facing criminal prosecution in the said State, it is stated that except an enquiry pending on the file of the City Civil Court, Bangalore, in the form of Section 9 Application, no proceeding has been taken against the firm and he took a categorical stand that neither himself nor any of his group companies has been blacklisted by the State of Karnataka.

The eighth respondent viz.

Mr.Kumarasamy, also took a stand that he has bid only through the sixth respondent viz.

Suvarnabhoomi Enterprises PVT.Ltd., and would further add that he is having stakes in the sixth and seventh respondent companies, but he did not have stake in the fifth respondent viz.

M/s.Natural Food Products.

The eighth respondent also took a stand that he is neither a proprietor nor necessary party for adjudication of the issued involved in these writ appeals, and therefore, the impleading petitions have to be dismissed and the writ petitions themselves are not maintainable.

3(xvi) The fifth respondent viz.

Natural Food Products, had also filed their counter in both the writ appeals contending that the present tender notification is verbatim reproduction of the earlier tender notification and the said tender notification of 2012 as well as G.O.Ms.No.264 dated 17.10.2012, were earlier put to challenge in W.P.No.32302/2012 batch etc., and all the writ petitions were dismissed on 10.1.2013, and the said decision has become final and the appellants viz.

Three Star Poultry Farm, though participated in the earlier tender process, has not chosen to make challenge to the earlier tender notification and therefore, it is not open to them to make a challenge to the Government Order as well as the present tender notification, which is similar to that of the earlier tender notification, and on merits of the case, it is contended by Natural Food Products that the policy decision has been taken to float State wide tender and after fulfillment of the conditions only, contract has been awarded and it has been supplying eggs as per the requirement of the contract since 1.5.1013 and it is going on very smoothly.

3(xvii) The sixth respondent viz.

Suvarnabhoomi Enterprises PVT.Ltd., had also filed their counter in both the writ appeals stating among other things, that Mr.T.S.Kumarasamy is one of their Directors and neither his wife nor his daughter is shareholder/Director of the said Company.

It is further stated in the said counter affidavit, that to their knowledge, M/s.Christy Friedgram Industries PVT.Ltd., has not been blacklisted by the Government of Karnataka and Mr.T.S.Kumarasamy is also a Director of M/s.Fair Deal Food Ventures PVT.LTD.and there is no bar for a person to be a Director in different companies and the Board of Directors by passing resolution, have decided to participate in the present tender and since they have fulfilled all the eligibility criteria, they have been awarded contract along with Natural Food Products.

It is also stated that the nexus between Mr.R.Chinnusamy  petitioner in W.P.No.32302/2012 as well as W.P.No.13320/2013, and the appellants has been revealed clearly as the information obtained by Mr.R.Chinnusamy under Right To Information Act, has been utilised by the present appellants and he has been set up by the present appellants to file the earlier writ petition and since he has become unsuccessful, the appellants themselves came into picture and filed the present cases and the said act is not at all fair.

Insofar as the prescription of AGMARK certificate and the production and supply of eggs are concerned, the sixth respondent contended that it is not only the Bureau of Indian Standards, Southern Regional Office is entitled to HACCP certificate, but also various other bodies have been conferred to issue such a certificate by National Accreditation Board for Certification bodies and the sixth respondent herein has been issued with HACCP certificate by an agency viz.

TCL Private Limited, which has been filed along with the bid documents.

The sixth respondent also took a stand that the appellants did not choose to avail the earliest opportunity of challenging the Government Order as well as the earlier tender notification, but had belatedly filed the writ petitions for the reason that the earlier writ petition filed by Mr.R.Chinnusamy, has ended in failure and that is why, they have come out in open and filed the present cases.

Insofar as the stand taken by the appellants that they are small poultry farmers and by awarding contract to respondents 5 and 6, small traders/poultry farmers like them, would become extinct, it is stated in the counter, that the total number of egg production in the State of Tamil Nadu is approximately 3,50,00,000 eggs per day and only 60,00,000 eggs were procured from among the successful bidders and the remaining eggs are sold in open market and therefore, it is absolutely impossible to create monopoly in the egg trade.

4.Mr.K.Duraisamy, learned Senior Counsel appearing for the appellant in W.A.No.574/2013 and Mr.A.K.Ganguli, learned Senior Counsel appearing for the appellant in W.A.No.776/2013, made the following submissions: (i) No tenable reasons have been put forth as to the change of policy from district-wise tender to State wide tender and the recommendation of the Principal Secretary of the Government dated 14.5.2012, addressed to the Director of Social Welfare and also to the Special Commissioner, ICDS, has not at all been taken into consideration while passing the impugned Government Order.

(ii) One of the reasons adduced for floating the State wide tender, is to discourage cartel formation and it may not be eliminated in the State wide tender also and such a formation is possible.

(iii) As per the impugned Government Order, Tender Inviting Authority, Tender Accepting Authority and the Tender Scrutiny Committee are headed by the same Officer and therefore, there cannot be any independent assessment of the tenders submitted by the respective parties.

(iv) The prescription of condition in Clause 10(viii).that if the qualification criteria prescribed under Clause 2 can be fulfilled by any of the Partners or Directors or constituents of the bidding entity, the same will be treated as qualification of such bidding entity has been tailor-made to suit the needs of the successful bidder viz.

respondents 5 and 6.

(v) The constitution of M/s.Fair Deal Food Ventures Private Limited and M/s.Arogya Food Limited would indicate that Thiru T.S.Kumarasamy is a major stakeholder and he has also provided unsecured loan to M/s.Arogya Food Limited and though Arogya Food Limited and Fair Deal Food Ventures Private Limited were successful bidders in respect of the earlier tender notification of 2012, they have not even deposited the security deposits and the earnest money deposit made by them, have not even been forfeited and it also exhibits that undue favouritism has been shown to the companies, in which, Mr.T.S.Kumarasamy is having a major stake.

(vi) The successful tenderers viz.

M/s.Natural Food Products and Suvarnabhoomi Enterprises PVT.Ltd., had obtained AGMARK certification on 19.3.2013, which is much after the publication of the tender notification dated 18.2.2013, and admittedly, they did not fulfill the eligibility criteria and in spite of that, they have been awarded contract for supply of eggs.

(vii) Mr.T.S.Kumarasamy is the sole proprietor of Christy Friedgram Industry, which has been entrusted with the supply of food to the children under ICDS Scheme in the State of Karnataka and from the publications in the newspapers and news item appeared in Tamil Magazine, they have been accused of supplying sub-standard foods and it was unearthed by Lokayukta of Karnataka and a FIR has also been filed against M/s.Christy Friedgram Industry and contracts awarded to them, have also been cancelled and the said material fact has been suppressed while submitting tender in respect of the second tender notification dated 18.2.2013.

5.Therefore, it is contended by the respective learned Senior Counsel appearing for the appellants, that in view of the above said infirmities and illegalities, the impugned Government Order, the second tender notification dated 18.2.2013, as well as the award of contract for supply of eggs in favour of M/s.Natural Food Products and Suvarnabhoomi Enterprises PVT.Ltd., have to be quashed and appropriate orders in the circumstances of the case, may be passed.

6.Mr.P.H.Arvind Pandian, learned Additional Advocate General, appearing for the official respondents, has invited the attention of this Court to the contents of G.O.Ms.No.264 dated 17.10.2012, and would submit that the Government Order contains reasons for resorting to State wide tender and in fact, before passing the said Government Order, consultations and deliberations have been done among the officials of various departments and taking into consideration the requirement of supply of huge quantity of eggs on time with great emphasis of quality, the said Government Order came to be passed and the conditions in the tender notification are in tune with the objects sought to be achieved under the said Government Order.

7.It is the further submission of the learned Additional Advocate General that admittedly, Tvl.

Chinnusamy, Nachimuthu and Muthu had filed W.P.Nos.32302, 32303 and 32741/2012 respectively, wherein, they made a challenge to G.O.Ms.No.264 dated 17.10.2012, and the earlier tender notification of 2012, and the said writ petitions, after hot contest, came to be dismissed on 10.1.2013, and Tvl.

Chinnusamy and Nachimuthu made a further challenge by filing W.A.Nos.2011 and 2012/2013 respectively, and for reasons best known to them, have chosen to withdraw the writ appeals without seeking liberty to agitate the same issue by filing fresh writ petitions and on the same cause of action and both the writ appeals were dismissed as withdrawn on 10.1.2014 and 10.2.2014 respectively, and the said writ petitioners especially Thiru R.Chinnusamy, has been set up by the present appellants and by adopting a clever and ingenious method, they come out in open and filed the present writ petitions challenging the very same Government Order and the second tender notification, which contains same terms and conditions as that of the earlier tender notification, and since the matter has attained finality, the same cannot be agitated once again by a different person with a malafide and oblique motive.

8.Insofar as the relief sought for by the appellants for amendment of prayer, it is the submission of the learned Additional Advocate General that it came to be filed very belatedly and such a petition to amend the prayer in disposing of the writ petition is not at all maintainable and by raising a new and additional ground, the entire cause of action has been changed and the same is impermissible in law.

Insofar as the non-forfeiture of earnest money deposit in respect of the earlier tenderers viz.

Arogya Food Limited and Fair Deal Food Ventures PVT.Ltd., the decision has been deferred on account of pendency of the present litigation and as soon as these litagtions reached finality, appropriate steps will be taken in accordance with the tender conditions.

9.Mr.G.Masilamani, learned Senior Counsel assisted by Mr.K.Kumeresh Babu, appearing for the sixth respondent in writ appeals, apart from reiterating the points urged by the learned Additional Advocate General, has contended that the amendment of prayer cannot be permitted as it creates a fresh cause of action and any consequential relief cannot be connected to the main relief in the writ petition and in this case, it is not so.

The writ petitions filed by the appellants in W.P.Nos.6896/2013 and 7586/2013, are not in the nature of public interest litigation and on that sole ground, the writ petitions are not at all maintainable and admittedly, they did not participate in the tender process relating to the impugned tender notification of 2013 and therefore, they cannot be termed as aggrieved persons.

It is wrong to state that the tender conditions are tailor-made to suit the needs of the respondents 5 and 6 for the reason that the impugned Government Order caused broader guidelines as to how the procurement of large quantity of eggs have to be done and the tender notification contains very many number of conditions to ensure the supply of huge quantity of eggs with AGMARK specification on time to the centres located in various Districts and after awarding the contract, the sixth respondent has supplied eggs on time and their contract is also going to end very soon on 30.4.2013, and so far, no complaints have been made against them by the procuring agency viz.

Government.

10.It is the further submission of the learned Senior Counsel appearing for the sixth respondent, that it is a policy decision taken by the State Government to go for State level procurement and to ensure quality of the eggs supplied, which would be consumed by the children under Noon Meal Scheme as well as ICDS Scheme, AGMARK quality has been prescribed and the said decision being a policy decision, cannot be faulted with and it is not open to the appellants, who have not even participated in the second tender process, to make a challenge to the tender conditions and in reality, they want alteration of tender conditions to suit their needs and the same is impermissible in law.

11.As regards the prescription of condition under Clause 10(viii).it is the submission of the learned Senior Counsel appearing for the sixth respondent, that the said practice is in vogue in supply of articles of huge quantity and the experience of the constituents is also a welcome addition for the supply of quality articles on time and there is nothing sinister or wrong about the said condition.

12.It is the further submission of the learned Senior Counsel appearing for the sixth respondent, that though the appellants urged that there was cartel formation, when district-wise supply was in vogue and therefore, various entities themselves formed a cartel and for quite number of yeaRs.they ensured that nobody had participated and supplied goods and there is possibility of cartelization in the State wide tender, there would not be any such possibility in the present system, and therefore, it is not open to them to urge the said point.

13.Insofar as the stand taken by the appellants that they are small poultry farmers and huge supply of eggs would lead to monopoly, the learned Senior Counsel has drawn the attention of this Court to the counter affidavit of the sixth respondent, wherein, it is stated that the total egg production per day in the State of Tamil Nadu is 3,50,00,000 eggs and only 60,00,000 eggs are procured per day for supplying nutrients to children and admittedly, the appellants are supplying eggs in commercial market to various States and therefore, it cannot be stated that they are aggrieved.

14.Mr.M.S.Krishnan, learned Senior Counsel appearing for Natural Food Products, which is one of the successful biddeRs.apart from adopting the arguments of the learned Additional Advocate General and learned Senior Counsel appearing for the sixth respondent, has contended that none of the writ petitioners have participated in the earlier tender process and they had set up one Chinnusamy to file W.P.No.32302/2012, wherein, an unsuccessful challenge was made to G.O.Ms.No.264 dated 17.10.2012, as well as to the earlier tender notification of 2012 and two other writ petitions were filed for similar reliefs and all were dismissed by a common order dated 10.1.2013, and the two writ appeals preferred against the said ordeRs.were also dismissed as withdrawn and without any liberty to file a fresh writ petition on the same cause of action and that is why, the appellants herein have chosen to file the present writ petitions, which were also rightly dismissed.

15.It is further contended by the learned Senior Counsel that no specific pleadings are made against the successful biddeRs.but only general allegations are made without any basis and the entire selection process was transparent and in accordance with the terms of the impugned Government Order and the tender notification and after satisfying that the successful bidders had fulfilled the eligibility criteria only, they have been awarded contracts and they have supplied goods to the satisfaction of the authorities for nearly 11 months and the contract period is also to be over by 30.4.2014 and therefore, the baseless allegations levelled by the appellants herein, deserve condemnation and the present litigation is nothing but an abuse of process of law and hence he prays for dismissal of both the writ appeals with exemplary costs.

16.Mr.Sathish Parasaran, learned Counsel appearing for the respondents 7 and 8 in the writ appeals, has invited the attention of this Court to the counter affidavits filed by them, and would contend that baseless and wild allegations are levelled against Thiru T.S.Kumarasamy and in fact, arbitration proceeding in respect of the transaction, which took place in Karnataka, has already commenced and a retired High Court Judge has been appointed as Arbitrator.

It is further submitted by the learned Counsel that the experience gained by Mr.T.S.Kumarasamy in the State of Karnataka, has not even been referred to in respect of the present tender notification and the allegation with regard to blacklisting, is nothing but false and concocted and the Government Order as well as the tender conditions do not prohibit participation of constituents, who are having rich experience in supply of other food articles, and the said condition came to be incorporated keeping in mind the large quantity of supply of eggs with quality and delivery on time and it is a trade practice adopted in almost all tender notifications and it cannot be faulted with.

17.Mr.Karthick Mukundan, learned Counsel appearing for the third respondent in writ appeals, and Mr.L.Chandrakumar, learned Counsel appearing for the fourth respondent in writ appeals, had also adopted the arguments of the learned Additional Advocate General, learned Senior Counsel appearing for the respondents 5 and 6 viz.

M/s.Natural Food Products and M/s.Suvarnabhoomi Enterprises PVT.LTD.18.The respective learned Senior Counsel appearing for the appellants, had placed reliance upon the following decisions:- (i) AIR1959SUPREME COURT65(MESSRs.GHAIO MAL AND SONS V.

STATE OF DELHI AND OTHERS).(ii) (2006) 6 SUPREME COURT CASES581(EMPLOYEES' STATE INSURANCE CORPN.

AND OTHERS V.

JARDINE HENDERSON STAFF ASSOCIATION AND OTHERS).(iii) (2000) 5 SUPREME COURT CASES141(JAI MANGAL ORAON V.

MIRA NAYAK AND OTHERS).(iv) (2007) 8 SUPREME COURT CASES1(RELIANCE ENERGY LTD.AND ANOTHER V.

MAHARASHTRA STATE ROAD DEVELOPMENT CORPN.

LTD.AND OTHERs.and (v) (2012) 10 SUPREME COURT CASES1(NATURAL RESOURCES ASSOCIATION, IN RE, SPECIAL REFERENCE No.1 OF2012.

19.The learned Additional Advocate General and the respective learned Senior Counsel appearing for the successful biddeRs.have placed reliance upon the following decisions: I.

(i) (2011) 9 SCALE271(SHAGUN MAHILA UDYOGIK SAHAKARI SANSTHA MARYADIT V.

STATE OF MAHARASHTRA AND OTHERS).(ii) MANU/TN/0381/2002 (SHEELA SELWYN V.

CHENNAI METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD AND OTHERS).(iii) MANU/KA/1040/2011 (RINAC INDIA LIMITED V.

STATE OF KARNATAKA AND ANOTHER).(iv) (1995) 1 SUPREME COURT CASES478(NEW HORIZONS LIMITED AND ANOTHER V.

UNION OF INDIA AND OTHERs.and (v) (2013) 3 MLJ675(OVEYAM RANJAN AND OTHERS V.

UNION OF INDIA AND OTHERS).II.

(i) (1999) 1 SUPREME COURT CASES492(RAUNAQ INTERNATIONAL LTD.V.I.V.R.CONSTRUCTION LTD.AND OTHERS).(ii) (2004) 4 SUPREME COURT CASES19(DIRECTORATE OF EDUCATION AND OTHERS V.

EDUCOMP DATAMATICS LTD.AND OTHERS).(iii) AIR2005SUPREME COURT2653(GLOBAL ENERGY LTD.AND ANOTHER V.

M/S.ADANI EXPORTS LTD.AND OTHERS).(iv) (2005) 1 SUPREME COURT CASES679(ASSOCIATION OF REGISTRATION PLATES V.

UNION OF INDIA AND OTHERS).(v) (2009) 7 SUPREME COURT CASES561(VILLIANUR IYARKKAI PADUKAPPU MAIYAM V.

UNION OF INDIA AND OTHERS).(vi) (2002) 2 SUPREME COURT CASES333(BALCO EMPLOYEES' UNION (REGD.) V.

UNION OF INDIA AND OTHERS).(vii) (1995) 1 SUPREME COURT CASES478(NEW HORIZONS LIMITED AND ANOTHER V.

UNION OF INDIA AND OTHERS).(viii) (2009) 1 SUPREME COURT CASES589(GANPATI RV-TALLERES ALEGRIA TRACK PRIVATE LIMITED V.

UNION OF INDIA AND ANOTHER).(ix) (1988) 4 SUPREME COURT CASES534(BHARAT SINGH V.

STATE OF HARYANA).(x) (2010) 12 SUPREME COURT CASES609(RAJASTHAN PRADESH VAIDYA SAMITI V.

UNION OF INDIA) and (xi) (2011) 7 SUPREME COURT CASES639(STATE OF MADHYA PRADESH V.

NARMADA BACHAO ANDOLAN AND ANOTHER).III.

(i) (2006) 4 SUPREME COURT CASES (STANDARD CHARTERED BANK AND OTHERS V.

DIRECTORATE OF ENFORCEMENT AND OTHERs.and (ii) 2003-4-L.W.652 (THIRUMALA TIRUPATI DEVASTHANAMS AND ANOTHER V.

THALLAPPAKA ANANTHACHARYULU AND OTHERS).20.W.P.No.13320 of 2013: Thiru R.Chinnusamy  petitioner in W.P.No.32302/2012, which ended in dismissal along with the connected writ petitions in W.P.Nos.32303 and 32741/2012, has filed W.P.No.13320/2013 praying for issuance of a writ of prohibition prohibiting the respondents 1 and 2 from executing or allowing the exploitation of the contract for supply of eggs in favour of the respondents 3 and 4 viz.

M/s.Natural Food Products and Suvarnabhoomi Enterprises PVT.Ltd., or any tenderer who fails to satisfy all the qualifying conditions prescribed under the tender notification dated 18.2.2013.

21.In the affidavit filed in support of the said writ petition, it has been stated among other things, that the system of procurement of eggs was on monthly basis for each district and it had been in vogue for quite number of years and the said system was successful and it was changed by issuance of G.O.Ms.No.264 dated 17.10.2012, and the conditions and qualifications prescribed in the tender document, are impracticable and the same were prescribed only with an object of avoiding genuine producers/suppliers of eggs from participating in the tender process and to favour certain tendereRs.It is further contended that M/s.Three Star Poultry Farm filed W.P.No.6896/2013 and it was dismissed and challenging the same, W.A.No.574/2013 was also filed and the conditions prescribed are tailor-made to suit the needs of the respondents 3 and 4 and the respondents 3 and 4 have not even satisfied the conditions prescribed in the tender conditions.

22.Pending disposal of the writ petition, the writ petitioner prayed for interim injunction restraining the respondents from executing or allowing the exploitation of the contract for supply of eggs.

23.The writ petitioner also filed M.P.No.2/2013 for impleadment of M/s.Christy Friedgram Industry Private Limited, Mr.T.S.Kumarasamy and the Director of Social Welfare and also filed M.P.No.4/2013 to call for the entire records regarding the floating of tenders during November, 2012 and February, 2013.

24.Common counter affidavit has been filed by the official respondents 1 and 2 reiterating their stand taken in W.A.Nos.574 and 776/2013, and as regards Clause 10(viii).the official respondents took a stand that the qualification and experience of the constituents of respondents 3 and 4 has been taken into consideration as they are fulfilling 7 years experience from the date of commencement of supply of egg or any other food material to any Government Department and consequently, they have satisfied the condition.

It is further stated in the counter affidavit filed by the official respondents, that the third respondent was having AGMARK certification (CA License No.A/2-4695) at the time of submission of tender and as per the qualification and experience of the constituents of the respondents 3 and 4 that they have satisfactorily executed the contract for a value of not less than Rs.90 crorres in a single contract for supply of egg or any other food material to any Government Department and as per the terms and conditions of the tender, any tenderer can pool the experience, qualification of other persons and participate in the tender and by taking into consideration the qualification and experience of constituents of respondents 3 and 4 that they have delivered eggs or any other food material for a minimum number of 200 delivery points every month or preceding three yeaRs.the bids made by the respondents 3 and 4, were accepted.

It is further stated that the work has been awarded to successful tenderers viz.

Respondents 3 and 4, and they have also started commencement of supplies.

25.The third respondent viz.

Natural Food Products, had filed their counter reiterating their stand taken in the above said writ appeals, and would further state that the agreement for supply of eggs after award of contract, was executed as early as on 29.4.2013, and commencement of supply was made from 1.5.2013 onwards.

The third respondent also raised a preliminary objection that the present writ petitioner viz.

R.Chinnusamy, is neither a participant in the present tender process nor an aggrieved party in respect of the award of contract in their favour and he has no locus standi to file the writ petition and in view of the dismissal of his earlier writ petition in W.P.No.32302/2012, he is not entitled to maintain the present writ petition.

It is further stated that the present writ petitioner appears to be fully aware of the dismissal of W.P.No.6896/2013 filed by M/s.Three Star Poultry Farm, and W.P.No.7586/2013 filed by M/s.S.N.N.Poultry Farm, and he has been set up by the appellants and the present writ petition has been filed with an oblique motive to disturb the on-going supply of eggs.

It is further contended by the third respondent that it has fulfilled all the relevant parameters and conditions stipulated in the Government Order as well as in the tender notification and on a proper evaluation, he has been awarded contract for supply of eggs.

26.The fourth respondent viz.

Suvarnabhoomi Enterprises PVT.Ltd., had filed their counter reiterating their stand taken in W.A.Nos.574 and 776/2013, and would contend that they rely upon the experience of their Director viz.

Mr.T.S.Kumarasamy, who has got requisite experience and qualification, and thus satisfied the qualification criteria mentioned in Clause 2(iii) read with Clause 10(viii) of the tender document.

It is further stated that Thiru T.S.Kumarasamy already executed contract with the Government for having delivered food materials to more than 200 delivery points and the experience of the constituent was also taken into account for awarding the contract.

It is further contended that since the writ petitioner has not even participated in the present tender process, he cannot be termed as an aggrieved person or an interested person and on that ground also, he is not entitled to maintain the writ petition.

27.This Court paid its anxious consideration and best attention to the rival submissions and also perused the materials available on record in the form of typed-set of documents, as well as the decisions relied on by the respective learned Senior Counsel appearing for the appellants, learned Additional Advocate General appearing for the official respondents, and the respective learned Senior Counsel/Counsel appearing for the private respondents.

28.The following questions arise for determination in these writ appeals and writ petition: (i) Whether G.O.Ms.No.264, Social Welfare and Nutritious Meal Programme (NMP-3) Department, dated 17.10.2012, has been issued on a proper consideration of relevant aspects and due application of mind.

(ii) Whether the conditions prescribed in the impugned tender notification dated 18.2.2013, are unreasonable, irrational and open to challenge?.

(iii) Whether the amendment of prayer sought for by the appellants, can be allowed?.

(iv) Whether W.P.No.13320/2013 is maintainable?.

29.QUESTION No.(i):- 29(i) The fiRs.respondent has written a letter dated 14.5.2012, to the Director of Social Welfare regarding restructuring of tender and sought to clarify the following points: 1) Egg prices show huge monthly or weekly variations.

Hence better price discounting is possible only through monthly tenders and not quarterly or weekly tendeRs.2) The possibility of cartelization is much higher in State level tender than district tenders as in the later, relatively smaller players who have the capacity to supply to one or few districts can also participate.

3) A district wide tender can factor in transportation costs better than a Zone based tender.

4) It is always better that the procuring authority and the quality enforcement authority is the same.

5) There is no guarantee that the State level tender will not end in prices higher than NECC rates.

6) The present system is working well.

In the absence of any clear advantage from a different system there is no need to disturb a well functioning system.

7) State level half yearly tender is neither feasible nor advisable because of I.

Wide fluctuation in prices II.

Already the prices go up at the start of the month due to our monthly tender.

If it is a half yearly tender, then there is every probability of a rate raise and the quantity being contracted at that price for a six months period.

8) Hence a State level quarterly tender is the only option available, which also does not seem to offer any concrete advantages over the existing system.

9) If State level tender is resorted to it can be done as trial in one Zone of five to six districts, and the advantages over existing system may be compared and then if advantageous, it may be expanded to the rest of the State.

10) Villupuram or Thiruvannamalai are having problems in procurement.

In that case monthly tender or Zonal base as indicated above may be implemented in the Zone covering these two contiguous districts.

The periodicity of the tenders may be at least monthly, given the frequent price fluctuations. 29(ii) Thereafter, G.O.Ms.No.264 Social Welfare and Nutritious Meal Programme (NMP-3) Department, dated 17.10.2012, was issued by the fiRs.respondent and in reference No.13, the above said letter dated 14.5.2012, has also been referred.

In paragraph No.4 of the above said Government Order, it has been stated that the Director of Social Welfare, who was consulted in the matter, has stated that the State Level Tender System has both advantageous and disadvantageous and the advantageous are that cartel formation by the contractors may be avoided, expenditure on advertisement and staff cost at district level may be reduced and more organisations will participate in the tender and disadvantageous are that separate arrangement has to be made to monitor the supply and quality of egg and if any court case is filed for any reason in State Level Tender, the distribution of eggs in all districts will be affected.

In paragraph No.5 of the said Government Order, the Principal Secretary/Special Commissioner, ICDS Scheme, has stated that the centralized tender system will bring savings in advertisement cost and saves time for calling and finalizing the tender at all district levels and cartelization can be avoided in the system and the system has disadvantageous also like creation of monopoly in egg trade due to huge production capacity and the cost and this will eliminate small and medium poultry farmeRs.In paragraph No.6 of the Government Order, all the above mentioned issues among otheRs.were discussed by the Chief Secretary with the Principal Secretaries, Finance Department, Social Welfare and Nutritious Meal Programme Department and Special Commissioner for ICDS on 30.8.2012, and data collected, were critically analyzed and based on detailed deliberation, decisions were arrived.

29(iii) A perusal of the Government Order would disclose that pros and cons in the floating of State Level Tender have been analyzed and discussed in detail and in depth and the Government has decided to accept the proposal/recommendation of State level tender system and ordered as follows: 8....I.State Level Single tender system which was in vogue prior to 2006 shall be introduced and the Principal Secretary/Special Commissioner, Integrated Child Development Services Scheme may make procurement of eggs by following the provisions of Rule 31 of Tamil Nadu TIT Act 1998 and Rules 2000.

II.

With a view to procure good quality eggs, appropriate Indian standards with numbers may be incorporated in the technical specifications of product so as to comply with the provisions of Rule 13 (2) (d) of TIT Act, 1998 and Rules, 2000.

The procurement of quality eggs should be ensured by specifying procurement of only 'AGMARK' Quality eggs in the technical specifications of tender document.

III.

The contract period shall be fixed for one year by strictly complying with the following conditions:- a.

Suppliers should be asked to indicate a single and firm price valid for entire period of one year duration.

This method of price fixation will absorb month to month fluctuation in the market price of the egg and at the same time it will also counter year to year increase in the price of eggs.b.The quotation through open tender system should be compared with the average National Egg Co-ordination Committee rates and reasonableness of the rate quoted should be decided.

IV.

In view of the special provision available for Integrated Child Development Services scheme under Rule-31 of the Tamil Nadu Transparency Act in Tenders 1998 and Rules 2000, Principal Secretary/Special Commissioner of Integrated Child Development Services scheme shall be the Tender Inviting Authority as per section 7(1) of the Act.V.A Committee shall be constituted under the Chairmanship of the Special Commissioner Integrated Child Development Services Scheme which shall act as Tender Accepting Authority as per section 7(2) of the Act.

This committee will have following composition:- 1 The Principal Secretary/ Special Commissioner of Integrated Child Development Services Scheme Chairman 2 The Director of Social Welfare Member 3 Joint/Deputy Secretary, Finance Department Member 4 Joint Director/Deputy Director, Animal Husbandry Department, Chennai Region Member 5 Chief Accounts Officer, o/o Integrated Child Development Services Scheme Member VI.

In order to satisfy the requirement of Rule-24 of the Tamil Nadu Transparency in Tender Rules 2000, Special Commissioner of Integrated Child Development Services scheme may constitute a Tender scrutiny Committee within the Department so as to act as per rule-24(1) and rule 24(2).VII.

The matters such as allocation of funds, maintenance of accounts and coordination of various aspects of the scheme and its field level monitoring will vest with the Director of Social Welfare.

VIII.

The Principal Secretary/Special Commissioner, Integrated Child Development Services scheme should work out the detailed tender conditions with due regards to pre qualifications, technical specifications, technical capabilities, financial conditions, experience and production capacities, penal provision and all other relevant details through tender scrutiny committee.

IX.

The District Collectors concerned will be monitoring the supply and quality of eggs.

They will be assisted by a District Level Monitoring Committee and Block level Committee as contemplated in G.O (Ms.No.95, dated 16-06-2004.

These Block level and District level committees shall continue to monitor the supply and quality of Eggs with minor modifications.

The composition of District level committee will be as follows:- (a) District Level Committee 1 District Collector Chairman 2 PA to Collector (Nutritious Meal Programme) Member 3 District Programme Officer, Integrated Child Development Services Scheme Member 4 Deputy Director/Assistant Director (Animal Husbandry) Member The District Collector shall invite a MLA and a Panchayat President on rotation basis to be a part of the monitoring committee.

(b) Block Level Committee 1 Assistant Director (Panchayat) Chairman 2 Block Development Officer (BP) Member-Secretary 3 Child Development Project Officer (ICDS) Member A representative of Panchayat Presidents/ Councilors may be invited on rotation basis to serve in the Block level committee.

(c) The following issues should be taken care of by the monitoring committees:- i) In order to avoid rotten or spoiled eggs, the quality of eggs should be checked at the supply point itself.

ii) The arrival of eggs to the centres should be monitored and deficiencies, if any, should be intimated to the collectors concerned immediately.

Iii) The committee should also ensure that good quality eggs are given to the students and children regularly as per the schedule fixed by the Government.

iv) These should take all other precautionary vigil for better implementation of this scheme.X.The District Collectors concerned shall take immediate necessary action for deficiencies pointed out.

The quality lapses should be viewed seriously and appropriate penal provision including penal deduction shall be recommended to the Director of social welfare.

In case of repeated and serious lapses, blacklisting of such supplier should be resorted to.

XI.

The Government further direct that the procedures and guidelines already fixed in the above read and other Government orders should be followed scrupulously in order to secure continuous and uninterrupted supply of egg to the students and children.

9.

This order issues with the concurrence of the Finance Department vide its U.O.No.58024/SW/2012, Dated : 16.10.2012. 29(iv) After passing of the said Government Order, the Department of Integrated Child Development Services Scheme has floated Tender document in Tender No.Roc.3566/NMP/2012 for procurement of 60,00,000 eggs (hen) per day as per AGMARK specification for a period of one year to the beneficiaries all over Tamil Nadu under Puratchi Thalaivar Dr.

M.G.R.Nutritious Meal Programme and under Integrated Child Development Services Scheme.

The contents of the said tender document read that there are 24 references and Annexures I to X have to be filled up by the intending biddeRs.The issuance of tender is governed by the Tamil Nadu Transparency in Tenders Act, 1998, and the Rules framed thereunder and in case of any conflict between the terms and conditions in the tender document and the above said statute, the statute shall prevail.

Clause 2 speaks about the qualifying conditions and as per Clause 2(i).the tenderer should be producer or supplier of eggs (hen) as per AGMARK specifications and should have been supplying eggs (hen) or any other food materials (any date before the publication of tender) and the tenderer should possess AGMARK specification for eggs (hen) at any date before the publication of tender and the tenderer should have been certified by the competent authority (i.e.certificate of grading issued by Directorate of Marketing & Inspection as per Agricultural Produce (Grading & Marking) Act & Rules in proof of their technical capabilities for supply of eggs (hen) of at least 60% of tender quantity as per AGMARK specification).Sub-clause 4 of Clause 2 stipulates that the tenderer should have satisfactorily executed a contract with any Department of Government, for having supplied Eggs (hen) or any other food materials as per specifications for a value not less than Rs.90 Crore in a single contract.

Sub-clause 6 of Clause 2 stipulates that the tenderer should have satisfactorily executed a contract with any Department of Government, for having delivered Eggs (hen) or any other food materials for a minimum number of 200 delivery points every month during the preceding three yeaRs.Sub-clause 8(a) of Clause 2 stipulates that the annual turnover of Eggs (hen) or any other food materials should not be less than Rs.75 Crore per annum, during the preceding three completed financial years and duly certified by the Chartered Accountant.

The tender document also stipulates that to prove quality control competency, the tenderer should have supplied Eggs (hen) or any other food material to any Department of Government under the Technical Project Consultancy Arrangement entered with any Government Food Research Laboratory during the preceding three years and the Project Consultancy Arrangement entered with any Government Food Research Laboratory for supply of Eggs (hen) or any other food material, should be valid as on date.

The tenderer should also have experience in Hazard Analysis Critical Control Point (HACCP) Practices for egg (hen) or any other food material during the preceding three years and it should possess a valid HACCP certificate for the supply of Eggs (hen) or any other food material as per AGMARK Specification issued by any National Accreditation Board for Certification Bodies (NABCB) and to prove hygiene practices, the tenderer should also have valid BIS product license at least during the preceding three years for egg (hen) or any other food material as per IS24911998 Standards.

29(v) The above said Clauses would disclose that great care has been bestowed by the Government for ensuring supply of huge quantity of quality eggs on time without any hiccups as the successful tenderer has to deliver 60 lakhs eggs (hen) per day to various centres.

29(vi) Clause 5 of the tender document speaks about the Earnest Money Deposit (EMd.and Clause 6 speaks about the submission of tender under two cover system viz.

Technical bid and financial bid.

Clause 10 speaks about other conditions and sub-clauses (viii) and (ix) of Clause 10 read thus: viii) As per the settled Law and Practice, if the qualification criteria specified under clause 2 is fulfilled by any of the Partners or Directors or constituents of the bidding entity, the same will be treated as the qualification of such bidding entity.

In this regard, the Tenderer should submit an undertaking from such persons/constituents for extending and making use of such qualification and facilities for execution of the contract by the bidding entity.

ix) Even if the tenderer assigns their work, the obligation for execution of the contract shall remain vested with the tenderer. 29(vii) The elaborate conditions stipulated in the tender document, are in consonance with G.O.Ms.No.264 dated 17.10.2012.

The primordial attack to the said Government Order is on the ground that it is wholly irrational and unreasonable and the norms are vague and subjective and it would definitely result in undue discriminatory treatment and the norms also destroy the entire new system itself.

It is the submission of the respective learned Senior Counsel appearing for the appellants, that district-wise procurement is more advantageous than the State level procurement and there is a possibility of formation of cartel in the State level tender also and since huge quantity of eggs have to be procured by floating a State wide tender, only persons/concerns, who are having much volume of business, can participate leaving aside the small poultry farmers like them and in fact, the conditions have been tailor-made to suit their needs.

29(viii) It is very pertinent to point out at this juncture, that Tvl.

R.Chinnusamy (petitioner in WP No.13320/2013).V.Nachimuthu and V.Muthu had filed W.P.Nos.32302, 32303 and 32741/2012 respectively praying for issuance of a writ of certiorari for quashment of G.O.Ms.No.264 dated 17.10.2012, and the tender notification No.3566/ROC/NMP/2012, on the file of the Principal Secretary/Special Commissioner, ICDS Scheme, Chennai 113, and counter affidavits were filed by the official respondents as well as by the private respondents viz.

respondents 3 and 4 in the writ appeals, who were successful biddeRs.and all the writ petitions were dismissed by a common order dated 10.1.2013.

29(ix) A perusal of the above said common order would disclose that the points urged by the appellants herein as to the validity of G.O.Ms.No.264 dated 17.10.2012, were also urged and number of judgments rendered by the Hon'ble Supreme Court of India as to the evaluation of tender and interference with the policy decision of the Government, were cited.

The learned Judge on an in-depth analysis of factual aspects and legal position, has found that normally a policy decision of the State cannot be interfered with unless the decision is contrary to any statutory provision or the Constitution and the Courts cannot examine relative merits and the terms of the tender prescribing eligibility criteria, cannot ultimately be interfered with unless the terms are totally arbitrary.

The learned Judge has also placed reliance upon the decision of the Hon'ble Supreme Court reported in AIR2005SC2653(GLOBAL ENERGY LTD.AND ANOTHER V.

M/S.ADANI EXPORTS LTD.AND OTHERS).wherein, it has been held that the terms of the invitation to tender are not open to judicial scrutiny and the Courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice.

29(x) Tvl.Chinnusamy and Nachimuthu aggrieved by the dismissal of their writ petitions in W.P.Nos.32302 and 32303/2012 respectively, had filed appeals in W.A.Nos.2011 and 2012/2013 respectively, and they have chosen to withdraw those writ appeals and accordingly, both the appeals were dismissed as withdrawn on 10.1.2014 and 10.2.2014 respectively.

29(xi) It is to be noted at this juncture, that Thiru R.Chinnusamy-appellant in W.A.No.2011/2013, while withdrawing the writ appeal, has not obtained any liberty to file a fresh writ petition on the same cause of action and it has a bearing on W.P.No.13320/2013 filed by him, which is also tagged along with these appeals for disposal.

29(xii) Though number of decisions have been placed before this Court by the respective learned Senior Counsel appearing for the appellants, and the respective learned Senior Counsel/Counsel appearing for the private respondents as well as by the learned Additional Advocate General, it is not necessary to refer to all the decisions as the legal position with regard to the interference in Government policy decision as well as the evaluation of tender has been settled long back by the Hon'ble Supreme Court of India and all subsequent decisions reiterate and reaffirm the same view.

In (2014) 3 SUPREME COURT CASES493(SANJAY KUMAR SHUKLA V.

BHARAT PETROLEUM CORPORATION LIMITED AND OTHERS).the selection and award of dealership of retail outlet by the Bharat Petroleum Corporation Limited, was put into issue.

The unsuccessful bidder made a challenge with regard to his non-selection, before the High Court of Patna and the matter was remanded once again for fresh adjudication and aggrieved by the same, the person, who has become successful in the selection process, as well as the aggrieved person viz.

the seventh respondent therein filed two appeals before the Patna High Court and the Division Bench found that the seventh respondent is entitled and therefore, appeals have been filed before the Hon'ble Supreme Court of India.

The Hon'ble Supreme Court of India after placing reliance upon the decisions reported in (1999) 1 SCC492(RAUNAQ INTERNATIONAL LTD.V.I.V.R.CONSTRUCTION LTD.).(2000) 2 SCC617(AIR INDIA LTD.V.COCHIN INTERNATIONAL AIRPORT LTD.).(2005) 6 SCC138(MASTER MARINE SERVICES (P) LTD.V.METCALFE & HODGKINSON (P) LTD.) and (2012) 6 SCC464(TEJAS CONSTRUCTIONS AND INFRASTRUCTURE (P) LTD.V.MUNICIPAL COUNCIL, SENDHWA).has held thus: 19.We have felt it necessary to reiterate the need of caution sounded by this Court in the decisions referred to hereinabove in view of the serious consequences that the entertainment of a writ petition in contractual matteRs.unless justified by public interest, can entail.

Delay in the judicial process that seems to have become inevitable could work in different ways.

Deprivation of the benefit of a service or facility to the public; escalating costs burdening the public exchequer and abandonment of half completed works and projects due to the ground realities in a fast-changing economic/market scenario are some of the pitfalls that may occur. 29(xiii) This Court in the earlier paragraphs, has held that pros and cons of State level tender as well as district-wise tender were considered, analysed and discussed in detail by the Chief Secretary with the concerned Departments and a conscious decision has been taken with due application of mind to revert back to State level tender system and accordingly, G.O.Ms.No.264 dated 17.10.2012, came to be passed.

It is a settled position of law that quasi judicial order should disclose reasons for decision, whereas in respect of administrative ordeRs.at least the files should disclose the reasons for such a decision.

29(xiv) In the case on hand, G.O.Ms.No.264 contains all the reasons as to why the State level tender system is adopted for procurement of 60 lakhs eggs (hen) per day for the requirement of Nutritious Meal Programme and ICDS Scheme and since the said Government Order came to be passed after taking into consideration all relevant and important factORS.it cannot be said that the Government Order is passed with an oblique motive to favour somebody.

It is also a settled position of law that allegation of malafide is to be alleged and strictly proved and in the case on hand, it was not so.

29(xv) The challenge made to G.O.Ms.No.264 as well as the tender notification of 2012 in W.P.Nos.32302, 32303 and 32741/2012, has ended in failure in the form of dismissal of the writ petitions by a common order dated 10.1.2013, and the writ appeals in W.A.Nos.2011 and 2012/2013 preferred against the order dismissing the writ petitions in W.P.Nos.32302 and 32303/2012, were also dismissed as withdrawn.

29(xvi) It is also the vehement submission of the learned Senior Counsel appearing for the private respondents, that in fact, the present appellants had engaged the services of Mr.R.Chinnusamy, who filed W.P.No.32302/2012, and he has failed in his venture and therefore, they came out in open and filed W.P.Nos.6896 and 7586/2013 for the very same relief.

29(xvii) This Court finds some force in their submission and at this juncture, it is relevant to consider some of the miscellaneous petitions filed by the respective appellants in these writ appeals.

M.P.Nos.2 and 2/2013 in W.A.Nos.574 and 776/2013 are filed to permit the appellants to raise additional grounds, after the impleadment of the successful bidders in respect of the earlier tender notification as well as the successful bidders in respect of the present tender notification viz.

respondents 5 and 6, and the constituents of the said companies and their Director also.

29(xviii) With regard to the AGMARK certificate given for Table Egg in Tamilnadu, V.Nachimuthu, the petitioner in W.P.No.32303/2012, has filed an application under RTI Act and the Department of Agriculture and Cooperation, Directorate of Marketing and Inspection, Ministry of Agriculture, Government of India, has furnished certain information on 17.5.2013.

Similarly, Thiru R.Chinnusamy, the petitioner in W.P.No.32302/2012, has filed an application before the Commissioner of ICDS Scheme seeking information as to the participation of persons in the tender, tender price quoted by them and the deposit of earnest money, etc.One P.Nagappan, S/o.

Palani Naicker, Namakkal, has also obtained information from the Commissioner of ICDS Scheme, with regard to the constituents of Natural Food Products and Suvarnabhoomi Enterprises PVT.LTD.The constituents of Suvarnabhoomi Enterprises PVT.Ltd., as well as Arogya Food Ltd., were downloaded from the web-site of Ministry of Corporate AffaiRs.Government of India and the appellants had used the information obtained by Tvl.

R.Chinnusamy and V.Nachimuthu, for raising the additional grounds.

The submission in this regard, is that the conditions are so tailor-made so as to suit the needs of the respondents 5 and 6 and therefore, their selection is arbitrary.

As regards the reasonableness of the conditions in the tender notification, it will be dealt while deciding Question No.(ii).29(xix) The Hon'ble Supreme Court of India in the decision reported in (2005) 1 SUPREME COURT CASES679(ASSOCIATION OF REGISTRATION PLATES V.

UNION OF INDIA AND OTHERS).has held that Article 14 of the Constitution prohibits the Government from arbitrarily choosing a contractor at its will and pleasure.

It has to act reasonably, fairly and in public interest in awarding contract.

At the same time, no person can claim a fundamental right to carry on business with the Government.

All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated against, to the detriment of public interest. The Hon'ble Supreme Court of India has further held that In the matter of formulating conditions in the tender document and awarding a contract of the nature of ensuring supply of high security registration plates (in the case on hand  supply of 60 lakhs eggs (hen) per day).greater latitude is required to be conceded to the State authorities.

Certain preconditions or qualifications of the tenderers have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work.

Unless the action of tendering authority is found to be malicious and a misuse of its statutory power, tender conditions are unassailable. 29(xx) In the considered opinion of the Court, the ratio laid down in the above cited decision, is squarely applicable to the facts of the case for the reason that G.O.Ms.No.264 dated 17.10.2012, came to be issued by the fiRs.respondent after elaborate discussion and consideration of all relevant aspects including pros and cons of State wide as well as District-wise tender systems and as already pointed out in the earlier paragraphs, though the order is administrative in nature, it contains elaborate reasons as to the passing of the said Government Order and therefore, it cannot be said that the Government Order is arbitrary or discriminatory or passed in favour of a particular person/group of persons and challenge made to the said Government Order in W.P.Nos.32302, 32303 and 32741/2012 also ended in failure and it has also reached finality and therefore, the very same issue cannot be re-agitated once again by a different individual.

29(xxi) It is very important to note at this juncture, that none of the appellants had participated in the tender process and so also Mr.Chinnusamy-the petitioner in W.P.No.13320/2013 and admittedly, the present litigations are not public interest litigations as the appellants are litigating the matter purely on account of commercial interest and no tenable grounds not even in the form of additional grounds, have been made out and the petitions in M.P.Nos.2 and 2/2013 in both the appeals, are liable to be dismissed.

Therefore, Question No.(i) is answered in negative and against the appellants.

30.QUESTION No.(ii):- 30(i) The main plank of attack is with regard to the prescription of AGMARK quality eggs in the technical specifications and it is the submission of the respective learned Senior Counsel appearing for the appellants, that the concerned authority without ascertaining as to whether any manufacturer or producer within the State or even outside the State had the requisite AGMARK specification, has chosen to impose such a condition and by prescribing the said condition, has also deprived small poultry farmers like them from participating in the tender process.

It was also contended that the introduction of new qualification i.e., by addition of the words supplier of any other food materials as an alternate for supply of eggs, has totally undermined the purport of the Government Order and such condition came to be incorporated only with a view to benefit a few persons and conditions are also tailor-made to suit their needs.

In support of the said submission, attention of this Court was also drawn to the constituents of five participants viz.

(1) Aishwarya Feeds; (2) Appu Food Products; (3) Arogya Foods Ltd., (4) Fair Deal Food Ventures PVT.LTD.and (5) K.S.Foods and Feeds.

It is the stand of the appellants that the fiRs.three participants were dummies and they did not even pay the earnest money deposit and in respect of the third and fourth participants, Thiru T.S.Kumarasamy is the major stakeholder and he has also given unsecured loan of Rs.5.50 lakhs and the person really behind the successful biddeRs.is Mr.T.S.Kumarasamy.

30(ii) Insofar as the second tender notification is concerned, it is once again reiterated that T.S.Kumarasamy is behind the scene and he is operating the whole show and AGMARK certificates of the successful bidders viz.

respondents 5 and 6, were obtained only on 19.3.2013, much after the tender date and they do not have Bureau of Indian Standards (BIS) Certificate also and certificates produced by them, relate to some other BIS specification.

In response to the said submission, the respective learned Senior Counsel appearing for the private respondents, as well as the learned Additional Advocate General invited the attention of this Court to the counter affidavits filed by them, and contended that the minimum requirement of eggs might touch as low as 4,74,066 per day and the maximum indicates 61,75,460 when both Anganwadi Centres and Noon Meal Centres are functional and Anganwadi Centres function for 365 days in a year and the Noon Meal Centres function only 220 days in a year and the statistics collected, show the following drawbacks or deficiencies in the district level procurement.

(1) District Level tender document simply contains 2-3 pages and does not have a detailed mention about the technical capabilities of the tenderer, manpower capabilities of the tenderer, technical facilities or any other hygienic standard in the document.

When the tender document itself does not have such details in exhaustive manner, it is clear that such issues becomes non-enforced at the District level.

(2) Although the Government direction in G.O.(Ms.No.499, Backward Classes, SW & NMP Department, dated 26.05.1989 specified that the minimum weight of the egg to be supplied in the Noon Meal Scheme to be 46 graMs.however, the tender documents at some Districts level has no mention about the minimum weight of 46 grams of egg to be supplied.

The appropriate Indian standard with the numbers is mandatory as per rule 13 (2) (b) of the Tamil Nadu Transparency in Tenders and Rules 2000 herein after referred to as the rules.

Thus the existing District Level Tender documents clearly violates the above Act.

The appropriate Indian standard for the egg is AGMARK specifications which is not mentioned anywhere in the tender documents at District level.

(3) The tender documents does not mention anything about the ratio of supplies between L1 and L2 tenderers as 60% and 40% as contended by the petitioner in para -6 (g).The very fact that in most of the Districts the single supplier is supplying the eggs clearly indicates that this particular clause is observed more in violation.

(4) In para-6(c) of the averment, petitioner relies singularly on the certificate from the Joint Director, Animal Husbandry.

Actually this certificate is merely a certificate on production capacity of the supplier based on the number of birds reared in the said poultry farm.

The Joint Director, Animal Husbandry will not be competent to mention about quality of supplies and his certification on hygienic conditions will not be sufficient.

The Joint Director, Animal Husbandry may not be able to identify and indicate the presence of deadly bacteria like salmonella in the feeder stock.

(5) Existing tender indicates that the tenderer should have been producer for a period of one year and mere one year experience for supply of 60 lakhs eggs in a month, in a district may not be a sufficient basis to come to a reasonable conclusion on the capacity of the supplier.

(6) It is submitted that contention of the petitioner that there has been no instances of short supply of eggs or complaints about supply of eggs at any point of time since the year 2004 is not correct.

There have been number of instances reported in the newspapers and as well reported to the Government as follows:- (a) Many complaints have been received about the quality of egg supplied to Noon Meal Programme Centres.

Supply of bad and rotten egg has resulted in students swooning and admitted in Hospitals in places like Neyveli.

(b) The suppliers have indulged in strike resulting in disruption of supply of eggs to the Noon Meal Programme Centres in places like The Nilgiris.

(c) There are complaints that the size of eggs supplied is very small called Bullet Egg and below the weight of 45 grams specified in the various Government Orders. 30(iii) It is further stated in the above counter affidavits, that in order to avoid the above lapses and with a view to ensure supply of quality eggs with standard specifications, a decision has been taken to revert back to the system of centralized tender system so as to bring in uniformity in quality and sustain regular supply from capable egg producers and suppliers and it has been specifically pointed out in the counter affidavits filed by the fiRs.respondent in the writ petitions filed by Chinnusamy and Nachimuthu, as to the formation of cartel when the district-wise tender system was in force in Kanniyakumari, Thoothukudi and Theni Districts.

Insofar as the prescription of AGMARK quality is concerned, it is the stand of the official respondents that the avowed object of the Government is to ensure good quality, safe and nutrition food for the children under the Noon Meal Programme and AGMARK specifications and HACCP specifications coupled with BIS specifications would ensure proper and quality supply of eggs and it cannot be satisfied by all the traders and it also implies that the traders have been playing a major and direct role in providing eggs to the Noon Meal Scheme.

Moreover, AGMARK specifications should be certified by Director of Marketing and Inspection on the date of tender and in case the tenderer is also supplying other food materials in addition to eggs, the AGMARK specification for such food material should also be obtained before the date of publication.

It is the further stand of the official respondents that the National Egg Co-ordination Committee declares a reasonable price for eggs by taking into consideration the reasonable return to the farmers and middlemen and suppliers and it is the basis for fixation of price by the tender floating authorities and prescription of AGMARK specification also ensures good quality eggs and avoid Bullet Egg (small size).30(iv) In the light of the stand taken by the official respondents as well as by the private respondents especially by the official respondents that in order to ensure that eggs supplied are of best quality, which may ultimately be consumed by children, the said condition was imposed, this Court is of the view that imposition of such condition is perfectly valid in public interest.

30(v) Insofar as the prescription of condition found in Clause 10(viii) of the Tender Document, which provides for counting the experience of Partners/Directors/Constituents of the bidding entity, it is the stand of the successful bidders that Thiru T.S.Kumarasamy has not suppressed anything and has disclosed all factors and he has also possessed required experience, technical and financial capabilities and also gave an undertaking to extend his experience and facilities for the purpose of bidding.

Insofar as the stand taken by the appellants that one of the concerns, in which, Mr.T.S.Kumarasamy is having interest, has supplied food articles in Karnataka and it was blacklisted and criminal prosecution was also launched, it is the stand of the learned Senior Counsel appearing for the sixth respondent in the writ appeals, that it is an arbitrational dispute and M/s.Christy Friedgram Industry Private Limited, which had effected supplies in the State of Karnataka, filed an application under Section 9 of the Arbitration Act before the Civil Court at Bangalore and later on, it was withdrawn consequent upon the appointment of an Arbitrator, who is a retired Judge of the High Court, and the matter is pending adjudication and the experience gained for supply of food articles in the State of Karnataka has also not been cited as experience in the present tender also.

Mr.T.S.Kumarasamy himself has filed counter affidavit stating among other things, that he is having stakes in Fair Deal Food Ventures Private Limited, but did not have any stakes in Natural Food Products, which were successful bidders in respect of the earlier tender notification, and registration of FIR would not lead to any presumption that the concerned unit is guilty.

30(vi) Mr.Sathish Parasaran, learned Counsel appearing for the respondents 7 and 8 in the miscellaneous petitions, which have been filed in the writ appeals for impleadment of M/s.Christy Friedgram Industry Private Limited, Mr.T.S.Kumarasamy and the Director of Social Welfare, has vehemently contended that except the fact that they are the constituents of the successful biddeRs.they have not directly participated in the tender and wild allegations are levelled against them without any basis/substance and the appellants have no locus standi to raise those allegations for the reason that they have not even participated in the tender process and since the present litigation is not a public interest litigation, it is not open to them to contend whatever they want in the absence of any material.

Though their impleadment was strongly opposed, this Court was of the view that opportunity should be given to the parties sought to be impleaded, by filing their counter affidavits and they had also filed their counter affidavits taking a stand that the matter in issue is pending arbitration before the retired Judge of the High Court at Bangalore and therefore, the petitions for impleading filed in these writ appeals, were ordered on 7.6.2013.

30(vii) Insofar as the merits of the allegations levelled against them, this Court is of the view that M/s.Christy Friedgram Industry has got Certification Marks License vide No.CM/L-6646785 and it has submitted an application dated 10.12.2012, for renewal of license and it has been renewed from 23.1.2013 to 22.1.2015 and the Tender Accepting Authority also on a careful scrutiny, has accepted that the successful bidder has fulfilled all criteria in terms of the tender notification and the annexure attached thereto, and awarded the contract and in the absence of any specific materials showing malafide or arbitrariness, it cannot be said that some foul-play has been done in awarding the contract.

30(viii) M.P.Nos.2 and 2/2013 in W.A.Nos.574 and 776/2013 have been filed to raise additional grounds and the materials gathered by way of information furnished under RTI Act, have been utilised to raise additional grounds.

A perusal of the typed-set of documents annexed to the said petitions, would disclose that one P.Rajendran, Advocate, has filed an application under RTI Act with regard to the awarding of contract in respect of the earlier tender and the petitioner in W.P.No.32302/2012 viz.

R.Chinnusamy, has also filed an application in respect of the second tender notification dated 18.2.2013, and based on the information furnished under RTI Act, additional grounds have been raised.

This Court in the earlier paragraph, has stated that the services of Mr.R.Chinnusamy has been utilised by the present appellants to get information under RTI Act in respect of the second tender notification and thereafter, they filed the above said miscellaneous petitions to raise additional grounds.

The additional grounds mainly pertain to floating of State level tender, AGMARK specifications and non-fulfillment of eligibility criteria by the successful bidders in the earlier tender notification as well as by the successful bidders in the impugned tender notification dated 18.2.2013, and the difficulties faced by the small/minimum agriculturists on account of floating of State level tender.

All the said grounds/issues have been dealt with and therefore, no prejudice would be caused to the private respondents in the event of ordering the said miscellaneous petitions.

30(ix) Now coming to the primordial issue as to the challenge made to the contents of the impugned tender notification dated 18.2.2013, in the considered opinion of the Court, the grounds of challenge are unsustainable both in law and on facts for the following reasons.

30(x) Tvl.

Chinnusamy, Nachimuthu and Muthu made a challenge to G.O.Ms.No.264 dated 17.10.2012, as well as to the earlier tender notification of 2012 by filing W.P.Nos.32302, 32303 and 32741/2012 and after hot contest, all the writ petitions were dismissed by common order dated 10.1.2013, upholding the validity of the Government Order as well as the said tender notification.

The appeals preferred by Chinnusamy and Nachimuthu, were dismissed as withdrawn and as already pointed out, no liberty has been obtained by the said persons for filing fresh petitions on the same cause of action.

The present impugned tender notification dated 18.2.2013, is the verbatim reproduction of the earlier tender notification of 2012 except the dates.

30(xi) This Court in the earlier paragraphs, has also observed that services of Chinnusamy and Nachimuthu have been utilised to get information under Right To Information Act and thereafter, the additional grounds were raised after notices were ordered in the writ appeals.

30(xii)The scope of interference by the Courts in contractual matters has already been settled by the Honourable Supreme Court in very many decisions.

(a) In (1994) 6 SCC651(TATA CELLULAR V.

UNION OF INDIA) in paragraph 94, the Supreme Court held thus: (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 matter 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.

Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tieRs.More often than not, such decisions are made qualitatively by experts.

(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. (b) In (1999) 1 SCC492(RAUNAQ INTERNATIONAL LTD.V.I.V.R.CONSTRUCTION LTD.).the Supreme Court reiterated the said principle and held that the writ Court would not be justified in interfering with the commercial transaction in which the State is one of the parties to the same except where there is substantial public interest involved and in cases where the transaction is mala fide.

(c) In (2000) 2 SCC617(AIR INDIA V.

COCHIN INTERNATIONAL AIRPORT LTD.).the supreme Court held that the award of contract is essential in commercial transaction, which involves commercial consideration and results in commercial decision.

In paragraph 7, it is further held, 7..........The State can choose its own method to arrive at a decision.

It can fix its own terms of invitation to tender and that is not open to judicial scrutiny........ (d) In (2004) 4 SUPREME COURT CASES19(DIRECTORATE OF EDUCATION V.

EDUCOMP DATAMATICS LTD.AND OTHERS).the point that arose for consideration, was the extent of judicial review in exercise of jurisdiction under Article 226 of the Constitution of India to the terms of tender prescribing eligibility criteria and whether the High Court could change the terms incorporated in the tender notice on the ground of its being inappropriate and that the objective would be better served by adopting different eligibility criteria?.

The Hon'ble Supreme Court of India has taken into consideration the decisions in Tata Cellular's case and Air India's case (cited in (a) and ) above) and the decision in (2000) 5 SCC287(MONARCH INFRASTRUCTURE (P) LTD.V.COMMISSIONER, ULHASNAGAR MUNICIPAL CORPORATION) and observed as follows: 11.

This principle was again restated by this Court in Monarch Infrastructure (P) Ltd.v.Commr., Ulhasnagar Municipal Corpn.

(2000) 5 SCC287 It was held that the terms and conditions in the tender are prescribed by the Government bearing in mind the nature of contract and in such matters the authority calling for the tender is the best judge to prescribe the terms and conditions of the tender.

It is not for the courts to say whether the conditions prescribed in the tender under consideration were better than the ones prescribed in the earlier tender invitations.

12.

It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny, the same being in the realm of contract.

That the Government must have a free hand in setting the terms of the tender.

It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere.

The courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias.

It is entitled to pragmatic adjustments which may be called for by the particular circumstances.

The courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical.

The courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide.

13.

Directorate of Education, Government of NCT of Delhi had invited open tender with prescribed eligibility criteria in general terms and conditions under tender document for leasing of supply, installation and commissioning of computer systeMs.peripherals and provision of computer education services in various government/government-aided senior secondary, secondary and middle schools under the Directorate of Education, Delhi.

In the year 2002-03, 748 schools were to be covered.

Since the expenditure involved per annum was to the tune of Rs.100 crores, the competent authority took a decision after consulting the Technical Advisory Committee for finalisation of the terms and conditions of the tender documents providing therein that tenders be invited from firms having a turnover of more than Rs.20 crores over the last three yeaRs.The hardware cost itself was to be Rs.40-45 crores.

The Government introduced the criterion of turnover of Rs.20 crores to enable the companies with real competence having financial stability and capacity to participate in the tender, particularly in view of the past experience.

We do not agree with the view taken by the High Court that the term providing a turnover of at least Rs.20 crores did not have a nexus with either the increase in the number of schools or the quality of education to be provided.

Because of the increase in the number of schools the hardware cost itself went up to Rs.40-50 crores.

The total cost of the project was more than Rs.100 crores.

A company having a turnover of Rs.2 crores may not have the financial viability to implement such a project.

As a matter of policy the Government took a conscious decision to deal with one firm having financial capacity to take up such a big project instead of dealing with multiple small companies which is a relevant consideration while awarding such a big project.

Moreover, it was for the authority to set the terms of the tender.

The courts would not interfere with the terms of the tender notice unless it was shown to be either arbitrary or discriminatory or actuated by malice.

While exercising the power of judicial review of the terms of the tender notice the court cannot say that the terms of the earlier tender notice would serve the purpose sought to be achieved better than the terms of tender notice under consideration and order change in them, unless it is of the opinion that the terms were either arbitrary or discriminatory or actuated by malice.

The provision of the terms inviting tenders from firms having a turnover of more than Rs.20 crores has not been shown to be either arbitrary or discriminatory or actuated by malice. (emphasis supplied) (e) Similar view was taken by the Hon'ble Supreme Court of India in the decision reported in AIR2005SUPREME COURT2653(GLOBAL ENERGY LTD.AND ANOTHER V.

M/S.ADANI EXPORTS LTD.AND OTHERS).wherein, it has been held that The terms of the invitation to tender are not open to judicial scrutiny and the Courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice. (f) In (2007) 14 SCC517(JAGADISH MANDAL V.

STATE OF ORISSA).in paragraph 22, it is held thus, 22..............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; (ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226. (g) In AIR2009SC2894(MEERUT DEVELOPMENT AUTHORITY V.

ASSOCIATION OF MANAGEMENT STUDIES).it was held that the tender is an offer.

It is something which invites and communicated to the intending tenderers to notify their acceptance.

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

(f) The decisions in (a) to (c).(f) and (g) above were followed in the decision of the Supreme Court reported in (2012) 6 SCC464(TEJAS CONSTRUCTIONS & INFRASTRUCTURE (P) LTD.V.MUNICIPAL COUNCIL, SENDHWA) and dismissed similar challenge by holding that in the absence of any mala fide or arbitrariness in the process of evaluation of bids and determination of the eligibility of the biddeRs.the Court shall not interfere.

30(xiii) In the light of the ratio laid down in the above cited decisions, coupled with the appreciation of facts, which have been discussed in detail in the earlier paragraphs, it cannot be said that the conditions contained in the impugned tender notification dated 18.2.2013, are arbitrary and tailor-made to suit the needs of the particular or concerned individual so as to enable them to get contract.

30(xiv) The respective learned Senior Counsel appearing for the appellants, had also attacked Clause No.10(viii) of the tender document by submitting that the introduction of new qualification by adding the words supplier of any other food materials as an alternative for supply of eggs, totally vitiates the objects sought to be achieved by issuing the impugned Government Order and there may not be any participation of constituents.

Similar issue arose for consideration in the judgment reported in (1995) 1 SCC478(NEW HORIZONS LIMITED AND ANOTHER V.

UNION OF INDIA AND OTHERs.and the Hon'ble Supreme Court of India held as follows: 26.Even if it be assumed that the requirement regarding experience as set out in the advertisement dated 22-4-1993 inviting tenders is a condition about eligibility for consideration of the tender, though we find no basis for the same, the said requirement regarding experience cannot be construed to mean that the said experience should be of the tenderer in his name only.

It is possible to visualise a situation where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name.

That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration.

Similarly, a company incorporated under the Companies Act having past experience may undergo reorganisation as a result of merger or amalgamation with another company which may have no such past experience and the tender is submitted in the name of the reorganised company.

It could not be the purport of the requirement about experience that the experience of the company which has merged into the reorganised company cannot be taken into consideration because the tender has not been submitted in its name and has been submitted in the name of the reorganised company which does not have experience in its name.

Conversely there may be a split in a company and persons looking after a particular field of the business of the company form a new company after leaving it.

The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience.

The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field.

While considering the requirement regarding experience it has to be borne in mind that the said requirement is contained in a document inviting offers for a commercial transaction.

The terms and conditions of such a document have to be construed from the standpoint of a prudent businessman.

When a businessman enters into a contract whereunder some work is to be performed he seeks to assure himself about the credentials of the person who is to be entrusted with the performance of the work.

Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company he will look into the background of the company and the persons who are in control of the same and their capacity to execute the work.

He would go not by the name of the company but by the persons behind the company.

While keeping in view the past experience he would also take note of the present state of affairs and the equipment and resources at the disposal of the company.

The same has to be the approach of the authorities while considering a tender received in response to the advertisement issued on 22-4-1993.

This would require that fiRs.the terms of the offer must be examined and if they are found satisfactory the next step would be to consider the credentials of the tenderer and his ability to perform the work to be entrusted.

For judging the credentials past experience will have to be considered along with the present state of equipment and resources available with the tenderer.

Past experience may not be of much help if the machinery and equipment is outdated.

Conversely lack of experience may be made good by improved technology and better equipment.

The advertisement dated 22-4-1993 when read with the notice for inviting tenders dated 26-4-1993 does not preclude adoption of this couRs.of action.

If the Tender Evaluation Committee had adopted this approach and had examined the tender of NHL in this perspective it would have found that NHL, being a joint venture, has access to the benefit of the resources and strength of its parent/owning companies as well as to the experience in database management, sales and publishing of its parent group companies because after reorganisation of the Company in 1992 60% of the share capital of NHL is owned by Indian group of companies, namely, TPI, LMI, WML, etc.and Mr Aroon Purie and 40% of the share capital is owned by IIPL, a wholly-owned subsidiary of Singapore TeleCo.which was established in 1967 and is having long experience in publishing the Singapore telephone directory with yellow pages and other directories.

Moreover, in the tender it was specifically stated that IIPL will be providing its unique integrated directory management system along with the expertise of its managers and that the managers will be actively involved in the project both out of Singapore and resident in India. (emphasis supplied) 30(xv) In (2009) 1 SUPREME COURT CASES589(GANPATI RV-TALLERES ALEGRIA TRACK PRIVATE LIMITED V.

UNION OF INDIA AND ANOTHER).the eligibility of joint venture company came up for consideration and the Hon'ble Supreme Court of India has taken into consideration the similar view taken in New Horizons' case (cited supra).30(xvi) This Court has also perused the original files and is of the view that the Tender Accepting Authority on a threadbare analysis of all the materials, has taken into consideration the experience of constituents for effecting supply and considering the limited scope of judicial review, is not inclined to say that fair procedure has not been adopted.

Though the appellants made serious allegations against Mr.T.S.Kumarasamy as to the blacklisting of his firm by the State of Karnataka and launching of criminal prosecution, the same has been stoutly denied by the person in his counter affidavit, and the materials placed before this Court, would also disclose that arbitral proceeding has already commenced and it is pending adjudication.

It is also to be pointed out that the experience gained by the unit, has not been cited as experience by that constituent while submitting it's bid.

Therefore, the said ground raised by the appellants, is not tenable.

30(xvii) The private respondents viz.

M/s.Natural Food Products and Suvarnabhoomi Enterprises PVT.Ltd., were declared as successful bidders and they have started supplying eggs as per the ratio given in the acceptance order and they are effecting supply from 1.5.2013 and the contract is going to end on 30.4.2014.

It is represented by the learned Additional Advocate General that they are also floating a new tender for the year 2014-2015 and so far no complaints have been received with regard to the quality of supply and time schedule.

The said submission is placed on record.

30(xviii) Insofar as the submission made by the respective learned Senior Counsel appearing for the appellants, that on account of floating of State wide tender, monopoly has been created in favour of big suppliers and small poultry farmers were affected.

It is to be pointed out that as against the total production of eggs in the State viz.

3,50,00,000 per day, only 60,00,000 eggs are supplied by the successful tenderers per day and therefore, it cannot be stated that the small poultry farmers are solely depending on the tenders floated by the second respondent.

The huge quantity of supply would necessarily lead to procurement and such a procurement from small poultry farmers cannot also be ruled out subject to their satisfying AGMARK and HACCP specifications and it is being a commercial venture, there is bound to be up and down in the business and even on that ground also, it is not open to the appellants to make such a kind of complaint and as pointed out in the counter affidavit filed by the official respondents, there was monopolized supply when district-wise tender system was in vogue, and only on a thorough evaluation, the State Government took a conscious policy decision in public interest, to float State wide tender and such couRs.cannot be faulted with.

30(xix) The writ petition in W.P.No.6896/2013 as well as the writ petition in W.P.No.7586/2013 are nothing but old wine in new bottle as similar challenge made in earlier writ petitions in W.P.No.32302/2012 batch etc., ended in failure and it has also reached finality as two writ appeals preferred against the said order, have been withdrawn.

Since the issue has reached finality, the appellants claiming to be the third parties to the said litigation, cannot reopen and re-agitate the very same issue once again.

Hence Question No.(ii) is answered in negative and against the appellants.

31.QUESTION No.(iii):- In view of the findings in respect of question Nos.(i) and (ii).the amendment of prayer sought for by the appellants in the miscellaneous petitions, need not be ordered and this question is answered accordingly.

32.QUESTION No.(iv) - W.P.No.13320/2013:- 32(i) Thiru R.Chinnusamy  petitioner in W.P.No.32302/2012, which came to be dismissed along with two other writ petitions on 10.1.2013, has filed this writ petition praying for issuance of a writ of prohibition prohibiting the respondents from executing or allowing the exploitation of the contract for supply of eggs in favour of the respondents 3 and 4 or any tenderer, who fails to fully satisfy all the qualifying conditions prescribed under the tender notification dated 18.2.2013, and the facts leading to the filing of the writ petition, have been narrated in the earlier paragraph.

The counter affidavits have also been filed by the respondents reiterating their earlier stand in their counter affidavits filed in the above miscellaneous petitions in the writ appeals.

32(ii) Pendency of the writ petition, M.P.No.2/2013 has been filed to implead M/s.Christy Friedgram Industry Private Limited, Thiru T.S.Kumarasamy and The Director of Social Welfare and M.P.No.3/2013 praying for status-quo and M.P.No.4/2013 to call for the records on the file of the respondents 1 and 2 with regard to the floating of tender during November, 2012, and February, 2013.

This Court in the earlier portion of this order, has elaborately dealt with the order dated 10.1.2013, made in W.P.Nos.32302/2012 batch etc., wherein a categorical finding has been given as to the validity of G.O.Ms.No.264 dated 17.10.2012, as well as the tender notification of 2012.

As already pointed out, the writ appeal in W.A.No.2011/2013 filed by the present petitioner challenging the legality of the said order, was dismissed as withdrawn on 10.1.2014, and admittedly, he has not sought for liberty to file fresh writ petition on the same cause of action.

But, cleverly, the petitioner has filed this writ of prohibition and in effect, he seeks to agitate the matter once again and in this present writ petition, though he lost in the earlier round of litigation on account of dismissal of W.P.No.32302/2012, the writ petitioner has chosen to challenge the tender notification on the same grounds raised by the appellants in W.A.Nos.574 and 776/2013, and this Court has given elaborate reasons as to the unsustainability of the points urged by the appellants in these appeals, and the same reasons would apply ipso facto to this writ petition also and hence the points urged in this writ petition, need not be separately dealt with.

32(iii) The learned Additional Advocate General as well as the respective learned Senior Counsel appearing for the private respondents, and the other learned Counsel appearing for the private respondents, would urge that the writ petition itself is not maintainable and it is purely an abuse of process of law.

This Court finds considerable force in the said submission.

32(iv) It is a well settled position of law that a writ of prohibition will be issued to prevent a Tribunal or Authority from proceeding further when it acts without or in excess of jurisdiction or acting in violation of the principles of natural justice and acts under a law, which itself is declared as ultra vires or unconstitutional and none of the ingredients present to entertain this writ petition.

The writ petitioner by adopting ingenuous method, wants to circumvent the earlier order dated 10.1.2013, made in W.P.No.32302/2012 and cleverly couched the prayer in this writ petition.

It is very pertinent to point out at this juncture, that the writ petitioner is not a participant either in the earlier tender or in the present tender and it is not a public interest litigation also.

The petitioner in effect, is espousing the cause and rather supporting the cause of the appellants in W.A.Nos.574 and 776/2013, and it seems to be a preplanned attack.

32(v) The prayer sought for in M.P.No.4/2013, on the face of it, is unsustainable for the reason that the earlier tender notification of November, 2012 and the impugned tender notification dated 18.2.2013, is similar in all respects except the last date for submission of tender.

The petitioner having suffered an adveRs.order dated 10.1.2013, in W.P.No.32302/2012 and that the writ appeal filed in W.A.No.2011/2013 against the said order, also having been dismissed as withdrawn on 10.1.2014, without liberty to agitate the matter once again, is precluded from filing this writ petition and therefore, the prayer sought for by the petitioner in the above said miscellaneous petition, also cannot be sustained.

Even otherwise, the points urged in the writ petition, have been raised by the appellants in the above said writ appeals and this Court had elaborately dealt with the same in the earlier paragraphs and has given a finding that both the writ appeals deserve dismissal.

The counter affidavit filed by the official respondents, are elaborate and exhaustive dealing with all the points urged by the appellants as well as by the writ petitioner and the original files produced, also supported the same.

32(vi) The Hon'ble Supreme Court of India in the decision reported in (2011) 2 SUPREME COURT CASES575(TRANSPORT AND DOCK WORKERS UNION AND OTHERS V.

MUMBAI PORT TRUST AND ANOTHER).has dealt with the issue of longer working hours for customs employee after a certain date, to enhance competitiveness of public sector viz.

Port Trust, and also considered the scope of judicial review in respect of the policy/policy decision/policy matter and held as follows: 39.In our opinion, there is often a misunderstanding about Article 14 of the Constitution, and often lawyers and Judges tend to construe it in a doctrinaire and absolute sense, which may be totally impractical and make the working of the executive authorities extremely difficult if not impossible.

40.As Lord Denning observed: This power to overturn executive decision must be exercised very carefully, because you have got to remember that the executive and the local authorities have their very own responsibilities and they have the right to make decisions.

The courts should be very wary about interfering and only interfere in extreme cases, that is, cases where the court is sure they have gone wrong in law or they have been utterly unreasonable.

Otherwise you would get a conflict between the courts and the Government and the authorities, which would be most undesirable.

The courts must act very warily in this matter. (See Judging the World by Garry Sturgess Philip Chubb.) 41.

In our opinion Judges must maintain judicial self-restraint while exercising the powers of judicial review of administrative or legislative decisions.

In view of the complexities of modern society, wrote Justice Frankfurter, while Professor of Law at Harvard University, and the restricted scope of any mans experience, tolerance and humility in passing judgment on the worth of the experience and beliefs of others become crucial faculties in the disposition of cases.

The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitation in personal experience and imagination operate as limitations of the Constitution.

These insights Mr Justice Holmes applied in hundreds of cases and expressed in memorable language: It is misfortune if a Judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seem to him to be fiRs.principles are believed by half his fellow men to be wrong. 42.

In writing a biographical essay on the celebrated Justice Holmes of the US Supreme Court in Dictionary of American Biography, Justice Frankfurter wrote: It was not for him (Holmes) to prescribe for society or to deny it the right of experimentation within very wide limits.

That was to be left for contest by the political forces in the State.

The duty of the Court was to keep the ring free.

He reached the democratic result by the philosophic route of scepticism by his disbelief in ultimate answers to social questions.

Thereby he exhibited the judicial function at its purest. (See Essays on Legal History in Honour of Felix Frankfurter edited by Morris D.

Forkosch.) 43.

In our opinion adjudication must be done within the system of historically validated restraints and conscious minimisation of the Judges preferences.

The Court must not embarrass the administrative authorities and must realise that administrative authorities have expertise in the field of administration while the Court does not.

In the words of Chief Justice Neely, former Chief Justice of the West Virginia Supreme Court of Appeals: I have very few illusions about my own limitations as a Judge.

I am not an accountant, electrical engineer, financer, banker, stockbroker or system management analyst.

It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation.

It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator. 44.In administrative matters the Court should, therefore, ordinarily defer to the judgment of the administrators unless the decision is clearly violative of some statute or is shockingly arbitrary.

In this connection, Justice Frankfurter while Professor of Law at Harvard University wrote in The Public and its Government: With the great men of the Supreme Court constitutional adjudication has always been statecraft.

As a mere Judge, Marshall had his superiors among his colleagues.

His supremacy lay in his recognition of the practical needs of the Government.

The great Judges are those to whom the Constitution is not primarily a text for interpretation but the means of ordering the life of a progressive people. 45.In the same book Justice Frankfurter also wrote: In simple truth, the difficulties that the Government encounters from law do not inhere in the Constitution.

They are due to the Judges who interpret it.

That document has ample resources for imaginative statesmanship, if Judges have imagination for statesmanship. 46.In legal scholarship, RosCo.Pound challenged the rigid formalism of Justice Field.

Pound strongly argued against a jurisprudence founded upon immutable fiRs.principles and sought in the social sciences and related fields a means for making the law responsive to a changing world.

47.

As observed by Justice Frankfurter: It would be comfortable to discover a Procrustean formula.

If such were the process of constitutional adjudications in this most sensitive field, it would furnish an almost automatic task of applying mechanical formula and would hardly call for the labors of Marshall or Taney, of Holmes or Cardozo.

To look for such talismanic formula is to assume that the broad guarantees of the Constitution can fulfil their purpose without the nourishment of history. 48.In Kesavananda Bharati v.

State of Kerala (1973) 4 SCC225: AIR1973SC1461(vide AIR para 1547) Khanna, J.

observed: (SCC p.

821, para 1535) 1535.

In exercising the power of judicial review, the courts cannot be oblivious of the practical needs of the Government.

The door has to be left open for trial and error. 32(vii) In the light of the reasons assigned above, the present writ petition is purely an abuse of process of law and also lacks merit and substance and Question No.(iv) is answered in negative and against the writ petitioner.

33.This Court on a threadbare analysis and exhaustive consideration of all the rival submissions and the materials placed before it, is of the considered view that the official respondents have kept in mind the public interest and adopted fair procedure in floating State wide tender and awarded contract in favour of the respondents 5 and 6 viz.

M/s.Natural Food Products and Suvarnabhoomi Enterprises PVT.LTD.This Court has also taken into consideration the submissions made on behalf of the official respondents that the contract awarded pursuant to the impugned tender notification dated 18.2.2013, is coming to an end on 30.4.2014, and so far no major complaints have emanated in respect of the quality of the articles supplied, and delivery schedule and is of the considered view that the writ appeals as well as the writ petition lack merit and deserve dismissal.

34.In the result, the writ appeals are dismissed confirming the orders dated 21.3.2013 and 27.3.2013, made in W.P.Nos.6896 and 7586/2013.

The writ petition No.13320/2013 is also dismissed.

No costs.

M.P.Nos.2 and 2/2013 in W.A.Nos.574 and 776/2013 are ordered and the other connected MPs are dismissed.

(N.P.V.,J.) (M.S.N.,J.) 25-4-2014 Index: yes Internet: yes Note to Office: Issue today (25.4.2014) b/o bbr nsv To: 1.The Principal Secretary to Government Social Welfare and Nutritious Meal Programme (NMP-3) Department Chennai 600 009 2.The Principal Secretary/Special Commissioner Integrated Child Development Services Scheme Taramani, Chennai 600 113.

3.The Director of Social Welfare Chintadripet, Chennai 2.

N.PAUL VASANTHAKUMAR, J.

AND M.SATHYANARAYANAN, J.

nsv Judgment in W.A.Nos.574 and 776/2013 and W.P.No.13320/2013 Dt: 25-4-2014