The main legal point established in the judgment is the determination of the mandatory nature of the conditions stipulated in the tender notification, based on the wordings of the relevant provision and supported by various legal precedents.

R. SUBBIAH,J.

1. The writ appeal is directed against the order, dated 16.11.2009 passed in W.P(MD)No.7447 of 2009 whereby the learned single Judge allowed the writ petition filed by the first respondent in this appeal by quashing the impugned order dated 06.03.2009. Aggrieved over the same, the present appeal has been filed by the third party after obtaining leave from this Court.

2. Thequestions that fall for consideration in this writ appeal is that whether the conditions stipulated in the tender notification to furnish the names of key personnel at the time of the evolution of the pre-qualification bid is mandatory in nature or directory in nature and whether the second respondent namely, the Superintending Engineer is a competent authority to pass the impugned order.

3. Brief facts which are necessary to decide the issue involved in this appeal are as follows:

a) It is the case of the first respondent that he was the P.W.D.Contractor. He had completed civil works allotted to him by the P.W.D Tender Award Committee. He had executed so many anti sea erosion works in Kanyakumari, Tuticorin and Tirunelveli Districts during the years 1984 to 2009. His tender for the construction of rubble mound sea wall at Rajakkamankalamthurai for 1100m in Agasteeswaram Taluk, Kanyakumari District has been accepted by the Tender Award Committee for a total value of Rs.1,43,98,169/-. He has completed the allotted work to the satisfaction of the respondents within the period of six months against the agreement period of 12 months.

b) Whileso, on 02.02.2009, the Superintending Engineer, the third respondent herein for and on behalf of the Government of Tamil Nadu issued a tender notification vide No.10SE/TBC/TNY/2008-2009 for the construction of Groyne (Balance work) at Enayamputhenthurai in Vilavancode Taluk, Kanyakumari District. Based on the said notification, he submitted the tender application in a sealed cover along with another cover containing 15 documents as the proof of prequalification. Apart from the first respondent another person who had participated in the tender was the appellant herein. On the same day, at about 3.30 p.m., the third respondent opened the sealed cover containing documents to verify the prequalification in the presence of his representative namely, Parameshwaran. Another prequalification cover of one Mathias, the appellant herein was also opened at that time.

c) Subsequently, on 27.02.2009, the first respondent sent a notice to the third respondent informing that he was fully qualified for the tender and requested him to accept his pre-application documents for the effective participation in the tender. But the first respondent was informed by the third respondent by letter dated 06.03.2009 that the pre-qualification application was not approved by the second respondent by endorsement dated 24.02.2009 since the first respondent pre-qualification application was not satisfied. The first respondent was also informed that he has not produced all documents regarding key personnel available with him and during scrutiny it was found that the first respondent had produced false documents regarding key personnel.

d) It is the contention of the first respondent that he had approved the very same key personnel for the very same work at Rajakkamankalamthurai and they have attended the work upto the completion of the same. Since the first respondent did not have any contract work, the key personnel are having some other appointment with other contractors. When the first respondent had seen tender notification in the newspaper, immediately he contacted the key personnel and asked their willingness and sent consent letter on post and the same has been enclosed by him with his pre-qualification application.

e) The first respondent has filed writ petition in W.P.No.(MD)No.2314 of 2009, challenging the endorsement dated 24.02.2009 made by the second respondent in the evolution report, dated 23.02.2009, culminating in th