IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 WA.No. 2376 of 2009 ---------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.28684/2009 Dated 15/10/2009 ..................................... APPELLANT(S): PETITIONER IN WPC. ------------------------------------------------------ JOJY VASU,S/O.VASU, AGED 34,KRIPA SADANAM,VIKAS NAGAR, SREEKARIYAM P.O.,THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): RESPONDENT IN WPC.& ADDL.R SOUGHT TO BE IMPLEADED ------------------------------------------------------------------------------------------------------------- 1. CHIEF ENGINEER (PROJECTS), HILL LIFECARE LIMITED, AKKULAM FACTORY,THIRUVANANTHAPURAM 695 017. *2. DEPUTY GENERAL MANAGER (DGM), HILL LIFECARE LIMITED, AKKULAM FACTORY,THIRUVANANTHAPURAM 695 017. *2ND RESPONDENT IMPLEADED AS PER ORDER DATED 27/10/2009 IN IA 1091/2009. ADV. SRI.V.KRISHNA MENON ADV. SRI. E.K. MADHAVAN, SC FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/01/2010, THE COURT ON 29/01/2010, DELIVERED THE FOLLOWING: tga KURIAN JOSEPH, Ag.C.J. & THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.A.No.2376 OF 2009 ------------------------------------------- Dated this the 29th day of January, 2010 JUDGMENT Thottathil B.Radhakrishnan,J. 1.The appellant challenges the dismissal of his writ petition filed seeking judicial review of the rejection of the tenders submitted by him pursuant to Exts.P4, P5, P6 and P8 notifications by the first respondent, the Chief Engineer (Projects) of HLL Lifecare Limited. 2.The learned single Judge initially required the company to produce the covers in which the petitioner submitted his tenders. On perusing those materials, it was held that tenders were submitted by the petitioner after the time stipulated for submission of tenders and therefore, it could not have been acted upon. The company was found to be, therefore, within WA.2376/09 2 its rights to invite fresh tenders. The learned Judge held that the petitioner, who did not comply with the tender conditions set forth in Exts.P4 to P6, cannot be heard to contend that the works should be awarded to him. The writ petition was accordingly dismissed and in view of the rejection of the petitioner's tenders, learned Judge ordered the respondents to take steps to refund the EMD paid by the petitioner. 3.In the writ appeal, this Court permitted the respondents to open the subsequent bids. That has been done pending the writ appeal and a third party is the successful bidder. However, pursuant to the interim orders in force, the work is yet to be awarded. 4.The respondents who did not have opportunity to place counter affidavit before the learned single Judge was permitted as per the interim order dated 27.10.2009 in the writ appeal, to place counter affidavit. Accordingly, they have WA.2376/09 3 filed counter affidavit on 16.11.2009, after having served its copy to the petitioner. In the counter affidavit, over and above the facts noticed by the learned single Judge, the respondents have specifically taken the stand that on scrutiny of the tenders, the appellant was found to be unqualified in as much as the experience certificate submitted by him was not in conformity with the tender conditions. The appellant has submitted an experience certificate of two years instead of five years as required in terms of the tender conditions. 5.With the aforesaid counter affidavit, it was noticed, among other things, that the works covered by Exts.P4 to P6 are construction of Club Hall, road tarring work and construction of retaining wall and that with the materials then available on record, the petitioner/appellant could not show that he had the work experience of five years. Even in the writ appeal, he had asserted that he is a 'B' class contractor under the Government WA.2376/09 4 of Kerala and that 'B' class registration is given for having five years' experience in the relevant field of civil works. 6.The appellant was heard through his learned counsel on 5.1.2010. Going by the minutes of proceedings of that day, after arguing the matter for some time, the appellant wanted to produced materials to establish that one can become a 'B' class contractor under the State Government only if he possesses five years' experience in civil work. That request was allowed on 5.1.2010 and the case was adjourned to 12.1.2010. Thereafter, though not in writing, we required the indulgence of the learned senior Government Pleader to obtain a specific idea about 'B' class certification, from the State Government authorities. In the mean while, learned counsel for the appellant attempted to show before us that rules for registration for contractors executing works, other than electrical, in the Kerala Public Works Department, provide for classification of contractors into four separate categories for WA.2376/09 5 the purpose of registration on the basis of financial resources, experience and records. This, among other things, show that 'B' category contractors are persons who are entitled to tender for all works in a circle, the estimated probable amount of contract of which is not more than a particular amount. With that, the learned senior Government Pleader obtained a communication from the Superintending Engineer of the Kerala PWD, Judicial Buildings Circle, Ernakulam as No.F2- 118/09 dated 19.1.2010. That shows that the rules for registration of contractors are framed on 4.2.1971, subsequently amended from time to time and the main criteria for registration as a contractor is the financial stability and experience in executing work. The Superintending Engineer gives a 'B' class registration after judiciously verifying these two criteria with supporting documents/certificates of experience issued by his junior colleagues directly implementing the projects in the field. Qualifications of degree in Engineering, diploma/certificate of engineering WA.2376/09 6 courses, machineries and equipments in hand are also weighed for giving direct registration of 'B' class for PWD contractors. The performance with 'C' class registration is also verified if found necessary, however, that 'C' class registration is not a must for 'B' class registration. 7.With the aforesaid, it needs to be immediately noticed that in spite of the specific counter affidavit alleging that the appellant did not possesses the prescribed experience, no reply affidavit or other pleadings controverting that stand of the respondents is placed on record. 8.Learned counsel appearing for the appellant argued that a condition which does not appear to be essential can be waived and that one shall not be discriminated against, detrimental to public interest. The parameters of judicial review was held to be inclusive of sufficient room for proving arbitrariness and favouritism. In support, reference is made to B.S.N.Joshi & WA.2376/09 7 Sons Ltd. v. Nair Coal Services Ltd. [(2006) 11 SCC 548], Association of Registration Plates v. Union of India [(2005) 1 SCC 679] and Siemons Public Communication Pvt. Ltd. v. Union of India [AIR 2009 SC 1204]. 9. Per contra, learned counsel for the respondents argued that in matters relating to judicial review of award of contracts, writ jurisdiction is not to be exercised except in case of palpable perversity in the exercise of administrative power and it having been shown that the petitioner has no material to prove that he was qualified in terms of the tender notifications, there is no reason to interfere with the decision of the learned single Judge. Learned counsel for the respondents referred to Siemons (supra) and stated that a contract being a commercial transaction and evaluation of tenders and awarding contracts being essentially commercial functions, principles of equity and natural justice would not be the guiding factors and the courts will not interfere in exercise of WA.2376/09 8 power of judicial review even in cases where there is a procedural lacunae unless it is shown that the decision relating to award of the contract is not bonafide and is against public interest. It is pithily pointed out that the entire facts could not be placed by the respondents before the learned single Judge only because of the short span in which the writ petition was disposed of at the stage of admission without them being given an opportunity to file counter affidavit and that they are entitled to impeach the grounds raised in the writ petition by filing counter affidavit. It is further pointed out that there is no denial of the plea in their counter affidavit filed in the writ appeal that the petitioner did not possesses the necessary qualification. 10.Learned counsel for the petitioner did not pointedly attack the findings of the learned single Judge that the tenders were not received within the time prescribed. The tender documents Exts.P4 to P6 specifically provide that the tenders WA.2376/09 9 will be received by 3 p.m. and it will be opened at 3.30 p.m. The finding of the learned Judge that the tenders were received only at 3.27 p.m. is not disputed. It cannot be disputed also. That was a finding of fact rendered after the learned judge after perusing the cover which contained the tenders and the endorsement thereon. Therefore, that finding of the learned Judge is based on materials on record. Having found that the tender was not submitted within time, the learned Judge refused to further proceed with the complaint of the writ petitioner. This is clearly a decision taken in the discretion under Article 226 of the Constitution of India. The exercise of that discretion cannot be treated as one unavailable on the records or resulting in injustice, warranting interference in an intra-institutional appeal under Section 5 of the Kerala High Court Act. That discretion having been exercised, we do not find any ground to visit that discretion in any manner. WA.2376/09 10 11.Be that as it may, it also needs to be noticed that Exts.P4 to P6 are three different notices inviting tenders for civil works. The eligibility criteria is a minimum of five years of experience in the relevant field. Even assuming that the petitioner has placed on record material in support of experience as claimed by him, all that we have on record is Ext.P2 work experience, issued from private sector, showing that the petitioner has successfully completed one commercial building and residential building between January, 2007 and May, 2007. The only material on which the petitioner would say that he has five years' experience is the 'B' class certificate issued by the PWD. That certificate is issued only in January, 2009. That, by itself, does not conclude that the petitioner has five years' experience. The submission on his behalf that 'B' class certification pre-supposes that he has five years' experience is not substantiated. A reading of the materials submitted through the learned Government Pleader has also not brought any result in favour of the petitioner. In this view of the WA.2376/09 11 matter also, we do not find any ground to interfere with the impugned judgment. 12.The notices inviting tenders prescribe eligibility criteria of minimum five years' experience in the relevant field. For the construction of Club Hall, the experience required is in the relevant field of civil works. For the road tarring work, the minimum experience prescribed is in the relevant field of road tarring works. Going by the PAC, the work of construction of Club Hall is valued at Rs.18 lakhs and the PAC for the work of road tarring is estimated at Rs.15 lakhs. The relevant experience for the construction of retaining wall, the PAC for which is Rs.8 lakhs, and the relevant experience in the field of road tarring work cannot be equated to the experience merely in the field of civil works, to wit, construction of buildings. Therefore, even going by the certificates produced by the petitioner which tend to evidence that he had done construction works of buildings, it will be impermissible and WA.2376/09 12 unreasonable for the writ court to compel the respondents, who represent a Central Government undertaking, to act on the 'B' class certification issued by the State Government and consider the petitioner as having sufficient experience in the relevant field of road tarring works. Also for this reason, we find no infirmity in the impugned judgment warranting interference in appeal. For the aforesaid reasons this writ appeal fails. The same is accordingly dismissed. No costs. The appellant/writ petitioner is entitled to receive the EMD in terms of the direction of the learned single Judge. Sd/- KURIAN JOSEPH, Ag. Chief Justice Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.29/01.