IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 WP(C).No. 24871 of 2011(H) -------------------------- PETITIONER(S): ---------------------- 1. M/S.PADAVATHIL DISTRIBUTIONS, OLASA P.O., KOTTAYAM REPRESENTED BY ITS MANAGING PARTNER MR.STEPHEN THOMAS, AGED 53 YEARS, S/O.JOSEPH THOMAS. 2. M/S.P.M.ASSOCIATES, NENMONEY TEMPLE ROAD, THYCAUD P.O., GURUVAYOOR, REPRESENTED BY ITS MANAGING PARTNER, MR.P.V.MOHAMMED NASEER. 3. M/S.STAR TRADING CORPORATION, POOTHOL, THRISSUR, REPRESENTED BY ITS PROPRIETOR T.A.SAJEEV. 4. M/S.PADAVAM TRADERS, OLASA P.O., KOTTAYAM REPRESENTED BY ITS PROPRIETOR, MR.P.T.JOSEH. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE SRI.K.A.NOUSHAD SRI.P.G.PRAMOD SRI.ONEAL SABU RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF SOCIAL WELFARE GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRCTOR, OFFICE OF THE DIRECTOR OF SOCIAL WELFARE, SOCIAL WELFARE BHAVAN, POOJAPPURA, THIRUVANANTHAPURAM-690 512. 3. MODERN INDUSTRIES, VANIYAKKAD, MANNAM P.O., N.PARAVUR, ERNAKULAM, PIN-683 520. 4. PAI & COMPANY, PAICO BUILDINGS, PRESS ROAD, THIRUVANANTHAPURAM-695 001. GOVT.PLEADER SRI.T.K.ARAVINDKUMAR BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.24871/11 APPENDIX PETITIONERS' EXHIBITS EXT.P1: A TRUE COPY OF THE TENDER NOTIFICATION DT 11.1.11 PUBLISHED BY THE 2ND RESPONDENT ALONG WITH THE APPENDIX TO COVERING THE DETAILS OF THE ITEMS TO BE DISTRIBUTED. EXT.P2: A TRUE COPY OF THE TABULATION SHEET PREPARED AT THE TIME OF OPENING THE BIDS. EXT.P3: A TRUE COPY OF THE MINUTES PREPARED BY THE TECHNICAL COMMITTEE IN ITS METING HELD ON 21.2.11. EXT.P4: TRUE COPY OF THE JUDGMENT DATED 27.7.11 IN WPC NO.9407/11 OF THIS HON'BLE COURT. EXT.P5: A TRUE COPY OF THE LETTER DT 9.6.11 ISSUED BY THE GOVERNMENT TO 2ND RESPONDENT. EXT.P6: A TRUE COPY OF THE LETER DT 27.7.11 ISSUED BY THE 1ST RESPONDENT. EXT.P7: A TRUE COPY OF THE LETTER DT 9.8.11 ISSUED BY THE 2ND RESPONDENT REQUESTING TO TAKEBACK THE SAMPLES AND TO SUBMIT NEW SAMPLES. EXT.P8: A TRUE COPY OF THE REPRESENTATIONS DT 22.8.11 SUBMITTED BY THE 1ST PETITIONER TO RECONSIDER THE DECISION IN EXT.P7. EXT.P9: A TRUE COPY OF THE LETTER DT 20.8.11 IN ISSUED BY THE 2ND RESPONDENT EXTENDING THE TIME FOR SUBMITTING THE SAMPLES UPTO 24.9.11. EXT.P10: TRUE COPY OF THE LETTER DATED 5.9.11 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER. EXT.P11: TRUE COPY OF THE REPRESENTATION DT 22.8.11 SUBMITTED BY THE PETITIONER AND SIGNED BY THE CONCERNED OFFICER IN THE OFFICE 1ST RESPONDENT. EXT.P12: A COPY OF THE JUDGMENT DT 17.8.11 IN WPC NO.22300/2011 OF THIS HON'BLE COURT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 24871 OF 2011 ===================== Dated this the 19th day of September, 2011 J U D G M E N T Ext.P1 is a tender notice invited by the respondents for the supply of pre school kits to the 32,268 anganavadis in the State. Petitioners and respondents 4 and 5 submitted their tenders. At this stage, it is to be noticed that in the tender conditions, apart from indicating the specifications of the product to be supplied, there was no condition that the tenderer should make available samples of the product offered. 2. According to the petitioners, all the participants who responded to Ext.P1 produced samples of some of the products offered. The tenders were evaluated by a Technical Committee and Ext.P2 is stated to be the evaluation sheet. Ext.P3 is the minutes of the the Technical Committee, which made recommendations for the acceptance of some of the tenders. This document also shows that some of the tenders were rejected for non production of the samples. 3. The present grievance of the petitioners is concerning Exts.P5, P6 and P7 by which the tenderers are given a fresh WPC No. 24871/11 :2 : opportunity to produce sample of the products offered by them. It is contended that either the official respondents should proceed with the samples already offered or they should give opportunity to all the offerers to submit samples and also revised tenders. 4. In my view, the question that calls for consideration is whether the respondents can be faulted for having given an opportunity to the tenderers for producing samples of the product tendered by them. First of all, Ext.P1 does not contain any condition that the tenderers should produce samples of the products along with the tenders submitted. If that be so, the Tender Committee could not have rejected any tender on the ground that the tenderer did not produce samples of the product tendered by them. Therefore, to that extent, the procedure adopted by the Tender Committee as reflected in Ext.P3 does not seem to be correct. 5. In the absence of a tender condition requiring the tenderers to produce the samples along with the tender, once the bids are evaluated, in order to ensure quality of the product offered, if the tenderers are called upon to produce samples, such a procedure adopted by the awarder cannot be said to be WPC No. 24871/11 :3 : illegal. In this case, this precisely is what has been done and I also notice that in order to ensure fairness on their part, in Ext.P5, official respondents have extended such opportunity to all the tenderers, which means that even those who have already produced samples are also now given an opportunity to produce fresh samples. Thus, not only that there is no procedural irregularity but also fairness is ensured in the matter. 6. As far as the complaint of the petitioners that if such a procedure is adopted, all should be given an opportunity to make fresh offers is concerned, I do not find any merit to accept such contention. Neither under the tender conditions nor under the General Law of Contract, can a tenderer ask for such right. Therefore, I do not find any merit in the writ petition. Writ petition is dismissed. ANTONY DOMINIC, JUDGE Rp