TaxTMI 
TaxTMI 
2024 (2) TMI 947
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....levant mandatory criteria which has resulted in rejection of his technical bid reads as under:- "11) For Type A :- Average annual Sales Turn Over in any two (02) years out of last Five (05) Financial years i.e. 2017-18, 2018-19, 2019-20, 2020-21 & 2021-22 should not be less than Rs. 2.00 crore (A1 category of stations) and Rs. 1.00 crore (A categroy of stations), from Catering business in India involving production/sale/service of food items. Trader/ Stockiest/ Distributors are not eligible. For Type B :- Average annual Sales Turn Over in any two years out of last 05 Financial years i.e. 2017-18, 2018-19, 2019-20, 2020-21 & 2021-22 should not be less than Rs. 10.00 crore from Catering business in India involving production/sale/ service of food items. Trader/ Stockiest/ Distributors are not eligible. Turnover of the bidder should not NIL (Zero) in any of the five (05) financial years as above. Please enclose- (i.) Certificate of sales turnover clearly indicating the sales from Catering business as per enclosed "Annexure-B2" for last completed five financial years, duly certified by the Chartered Accountant. (ii.) Also enclose Ba....
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....ssessing Officer as per the aforesaid section. It is submitted that as per Section 44AB of Income Tax Act if the annual turnover is less than Rupees One Crore, then filing of audited balance sheet and profit & loss sheet was not required, therefore, by imposing such a condition in the NIT, respondents have asked the petitioner to perform an act which otherwise is not required under the Income Tax Act. It is further submitted that even the Chartered Accountant of petitioner has given a certificate that although the balance sheet and profit & loss account of petitioner was audited but it was not submitted before the Income Tax Department. Thus, it is submitted that rejection of technical bid of petitioner is bad and the same is liable to be set aside. 5. To buttress his contentions, counsel for petitioner has also relied upon a judgment passed by Rajasthan High Court, Bench at Jaipur in the case of M/s Ram Khiladi Gurjar Vs. Rajasthan State Cooperative Marketing Federation Ltd. (Rajfed) decided on 27/11/2018 in S.B. Civil Writs No. 25605/2018 as well as judgments passed by Supreme Court in the case of Shree Sidhbali Steels Limited and Others reported in (2011) 3 SCC 193 and State ....
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....st after they had appeared in the same and were unsuccessful. This Court held as follows: (SCC p. 493, para 9) "9. ... Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, theymhave filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted." 7. In Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256], this Court held as follows: (SCC p. 584, para 16) "16. ... Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Co....
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....Court held that : (SCC p. 107, para 18) "18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar v. Rajiv Govil, (1991) 3 SCC 368 : 1991 SCC (L&S) 1052 and Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724 : (2007) 2 SCC (L&S) 345.)" 14. The same view was reiterated in Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227 : (2009) 1 SCC (L&S) 627 wherein it was held to be well settled that the candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful. 15. In Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256, the same principle was reiterated in the following observations : (SCC p. 584, para 16) "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or proce....
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.... 10 SCC 521 : 6 SCEC 745, it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493 : (2015) 3 SCC (L&S) 274, this Court held that : (SCC p. 500, para 17) "17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted." This principle has been reiterated in a recent judgment in Mad....
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....onsidered opinion that by participating in NIT and having failed to succeed, petitioner cannot take a somersault by challenging the condition of NIT. 20. Under these circumstances, it is held that the petitioner is estopped from challenging the conditions of NIT. 21. So far as the judgment relied upon by petitioner passed by Rajasthan High Court in the case of M/s Ram Khiladi Gurjar (supra) is concerned, this Court with all humility at its command is not inclined to rely on the same. 22. In the case of M/s Ram Khiladi Gurjar (supra), doctrine of estoppel, jurisdiction of Court under Article 226 of Constitution of India in respect of contractual matter and the jurisdiction of this Court to modify the condition of NIT has not been taken into consideration at all. 23. Be that whatever it may be. 24. The next question for consideration is as to whether the respondent/ Department is entitled to incorporate the condition in NIT as per their requirement or not and what is the scope of interference under Article 226 of Constitution of India? 25. The Supreme Court in the case of Uflex Limited Vs. Government of Tamil Nadu and others reported in (2022) 1 SCC 165 has held as ....
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....uthority, makes awarding of contracts by government and public sectors a cumbersome exercise, with long drawn out litigation at the threshold. The private sector is competing often in the same field. Promptness and efficiency levels in private contracts, thus, often tend to make the tenders of the public sector a non-competitive exercise. This works to a great disadvantage to the Government and the public sector. 38. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. (2016) 16 SCC 818, this Court has expounded further on this aspect, while observing that the decision-making process in accepting or rejecting the bid should not be interfered with. Interference is permissible only if the decision-making process is arbitrary or irrational to an extent that no responsible authority, acting reasonably and in accordance with law, could have reached such a decision. It has been cautioned that constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute their view for that of the administrative authority. Mere disagreement with the decision- making process would not suffice. 39. Another asp....
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....ning of the Court of Appeal, the Board will make some general observations about the process of implication. The court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended.... *** 19. ... In Trollope & Colls Ltd. v. North West Metropolitan Regional Hospital Board [Trollope & Colls Ltd. v. North West Metropolitan Regional Hospital Board, (1973) 1 WLR 601 (HL)] Lord Pearson, with whom Lord Guest and Lord Diplock agreed, said: (WLR p. 609 B-D) "...the court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves, however desirable the improvement might be. The court's function is to interpret and apply the contract which the parties have made for themselves. If the express terms are perfectly clear and free from ambiguity, there is no choice to be made betw....
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....lied terms is a concept, which is necessitated only when the Penta test referred to aforesaid comes into play. There has to be a strict necessity for it. In the present case, we have really only read the contract in the manner it reads. We have not really read into it any "implied term" but from the collection of clauses, come to a conclusion as to what the contract says. The formula for energy charges, to our mind, was quite clear. We have only expounded it in accordance to its natural grammatical contour, keeping in mind the nature of the contract." 43. We have considered it appropriate to, once again, emphasise the aforesaid aspects, especially in the context of endeavours of courts to give their own interpretation to contracts, more specifically tender terms, at the behest of a third party competing for the tender, rather than what is propounded by the party framing the tender. The object cannot be that in every contract, where some parties would lose out, they should get the opportunity to somehow pick holes, to disqualify the successful parties, on grounds on which even the party floating the tender finds no merit. 27. The Supreme Court in the case of Tata Cellula....