IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.608 of 2008 PAPPU SAH Versus THE BIHAR STATE FOOD & CIVIL SUUPLIES CORP.Ltd., & ORS. ----------- For the appellant: Mr. Bindhyachal Singh For the respondent nos. 1 to 3 : Mr. R.S. Pradhan, Sr. Advocate Mr. A.N.Rai For the respondent nos. 4 & 5: Mr. Braj Kishore Prasad Sinha, G.P. III For the respondent no.6: Mr. B.K.Chaudhary, Sr. Advocate Mr. Arun Kumar --- P R E S E N T Hon'ble the Chief Justice And Hon'ble Mr. Justice C.K.Prasad --- Dated, the 1st September, 2008 This appeal is directed against the order dated 14th July, 2008, whereby the single judge allowed the writ petition filed by the present respondent no.6. In the writ petition, the present respondent no.6 (hereinafter to be referred as ‘the original writ petitioner) challenged the memorandum dated 28th September, 2007, issued by the District Magistrate, West Champaran, Bettiah and the consequential advertisement for fresh tender published in the newspaper on 25th November, 2007. 2. The Bihar State Food and Civil Supplies Corporation (for short, ‘the Corporation’) invited tenders for appointment of Transporting and Handling Agent vide advertisement dated 24th March, 2007, for one year from the date of entering into an agreement for the 2 district of Bettiah. 3. It transpires from the available material that after completion of exercise, the name of one Sheoshankar Prasad for appointment of Transporting and Handling Agent was recommended. Sheoshankar Prasad is the petitioner’s brother. Before finalization for appointment of Transporting and Handling Agent could be done, some complaints were received and, accordingly, the matter was sent for inquiry to the District Magistrate, Bettiah. The District Magistrate suggested re-tender of the entire process to avoid any dispute and, accordingly, a fresh advertisement was issued by the Corporation on 25th November, 2007. In the fresh tender process, the petitioner applied and so also few others including the present appellant (hereinafter to be referred as ‘the intervenor’). The District Transport Committee considered the tenders and proposed the names of the petitioner, the intervenor and Sheoshankar Prasad (brother of the petitioner) for award of contract. The petitioner also challenged the cancellation of the first tender vide order of the District Magistrate dated 28th September, 2007 before this court in writ petition being CWJC. No.15992 of 2007. On the application of the intervenor, intervention was granted at his instance in the writ petition. 4. The single judge held that the order dated 28th September, 2007 cancelling the process under first tender dated 24th March, 2007, was bad in law and the issuance of advertisement of re- 3 tender on 25th November, 2007 could not be sustained. He , accordingly, directed the Corporation to take a decision in accordance with law on the basis of the earlier recommendation dated 8th June, 2007 made by the District Transport Committee and consequential recommendation dated 9th June, 2007 of the District Magistrate, West Champaran, Bettiah. 5. By a supplementary affidavit filed by the petitioner in opposition to the appeal, certain facts have been sought to be brought on record about the antecedent of the appellant. Inter alia, it is stated that the appellant is facing criminal cases and in view of pendency of criminal cases against him, he is not eligible to be appointed as Transporting and Handling Agent by the Corporation. Reliance is sought to be placed on Clause - 6 of the advertisement. 6. In our considered opinion, it is not necessary to go into the antecedents of the appellant in the appeal and whether he is eligible to be appointed as Transporting and Handling Agent or not. What is pertinent to be noticed by us is that the petitioner subsequent to the order dated 28th September, 2007 cancelling the entire tender process pursuant to the notice dated 24th March, 2007, applied again under re- tender process initiated vide notice dated 25th November, 2007. We wanted to know from the senior counsel for the petitioner (respondent no.6 herein) as to whether application made by the petitioner pursuant to re- tender notice dated 25th November, 2007, was without prejudice 4 to his rights and contentions to the cancellation order dated 28th September, 2007 or not. Senior Counsel could not show us that the application made by the present appellant pursuant to the re-tender notice dated 25th November, 2007 was without prejudice. In the entire petition, there is not even whisper in this regard. Since, admittedly, subsequent to the cancellation order dated 28th September, 2007, re- tender notice was issued on 25th November, 2007, and the petitioner applied thereunder, he is estopped from challenging the cancellation order dated 28th September, 2007. 7. It is trite principle of law that a party cannot approbate and reprobate; he cannot blow hot and cold. On the one hand, he challenged the cancellation order dated 28th September, 2007 and on the other hand he applied again under the re-tender notice dated 25th November, 2007 without prejudice. As a matter of fact, by his conduct , the petitioner has waived his objections, if any, to any illegality that might have crept in cancellation order dated 28th September, 2008. He can also be held to have acquiesced with the process of re-tender pursuant to notice dated 25th November, 2007. In this fact situation, we find that there was no justification in canceling the process under the re-tender notice dated 25th November, 2007 nor any order could have been passed directing the respondents to complete the tender process pursuant to the first tender notice dated 24th March, 2007. 5 8. Initially, we thought of directing the Corporation to complete the process and finalize the appointment of Transporting and Handling Agents pursuant to the re-tender notice dated 25th November, 2007 but on a deeper thought and in view of the categorical stand of the Corporation articulated by the senior counsel that at present Transporting and Handing Agent work has not been given to any one and it is being done internally by the Corporation itself and that if the court directs, the process under the fresh tender notice can be completed by 30th September, 2008, we formed the view that the fresh tender would serve the cause of justice. 9. We , accordingly, quash and set aside the order dated 14th July, 2008 passed by the single judge. The Corporation is directed to initiate a fresh process for appointment of Transporting and Handling Agent immediately and complete the same as early as possible and in no case later than 30th September, 2008 and enter into an agreement with the successful bidder/s effective from 1st October, 2008. The parties shall bear their own cost. R.M. Lodha, CJ. C. K. Prasad, J. Neyaz/