IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 WP(C).No. 28910 of 2008(N) -------------------------- PETITIONER(S): --------------- 1. C.H.PAVITHRAN, PALAKKUNNU, BEKAL, KASARAGOD. 2. MANOHARAN.P.V., M.R.NIVAS, MORAZHA.P.O., KANNUR 670 331. BY ADV. SRI.A.K.ABDUL AZEEZ RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, NATIONAL HIGHWAY DIVISION, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENTING ENGINEER, NATIONAL HIGHWAY NORTH CIRCLE, KOZHIKODE. GOVERNMENT PLEADER FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/01/2009, COURT ON 23/01/2009 DELIVERED THE FOLLOWING: ANTONY DOMINIC,J. ----------------------- W.P.(C).No.28910 OF 2008 ------------------------ Dated this the 23rd day of January, 2009. JUDGMENT Prayer in this writ petition is to quash clause (3) of Ext.P3 notification and to declare that the introduction of clause (3) in Ext.P3, is unconstitutional. 2. Petitioners state that they are `A' category contractors and Exts.P1 and P2 are the licences issued in their favour. Ext.P5 is a notification issued by the respondents inviting tenders for the work in connection with the National Highway-17. Clause (3) of Ext.P5 provides that, Contractor should have undertaken and completed work for the amount of 60% of the value of the work notified in the tender, within a period of 5 years. According to the petitioners, on the ground that they did not satisfy the said condition, the 3rd respondent declined to issue tender documents stating that the petitioners are not WP(c).No28910/08 2 qualified to undertake the work. 3. Petitioners submit that the system of pre-qualification contained in Ext.P5 is illegal. According to them, Ext.P6 Government Order dated 9.6.1999, provides the guidelines for inviting tenders and going by Ext.P6, for works up to Rs.500 lakhs, open tender system is what is provided for. Therefore, it is contended that, there cannot be any pre-qualification for tenders involving works, the PAC of which is less than 500 lakhs. 4. A statement has been filed on behalf of the 3rd respondent. First of all, it is contended that Ext.P6 relied on by the petitioners is not relevant for Public Works Department which invited Ext.P5 tender. It is stated that Ext.P6 is the Government Order concerning Irrigation Department and as far as Public Works Department is concerned, for works the PAC of which is above 100 lakhs, pre-qualification is necessary. According to the 3rd respondent, prior experience of the Government Contractor is specified to ensure that the WP(c).No28910/08 3 efficient Contractors with proved track record are chosen for awarding work. Another contention that is raised in the statement is that all contractors having valid `A' class registration in PWD and who applied in writing before 1 p.m on 22.9.1995 have been issued tender documents. It is the specific case of the respondents that Petitioners herein have not requested for tender documents and it was therefore that they were not issued the tender forms. 5. Petitioners have not produced any document to show that they had asked for tender documents and that it was declined to be issued to them. In such a situation, this court is not in a position to hold that, the petitioners had asked for tender documents and that the 3rd respondent declined to issue the same to the petitioners. If that be the position, the case of the petitioners in this behalf cannot be accepted. 6. Secondly, on the very face of it, Ext.P6 is an order pertaining to Irrigation Department and even according to the petitioners, Ext.P5 tender in question has been issued by the WP(c).No28910/08 4 Public Works Department of the Government of Kerala. It is the specific case of the respondents that in so far as the Public Works Department is concerned, invitation of tender and its evaluation is covered by circular dated 22.7.1997, which provides that when cost of project is 100 lakhs or more, tender for execution of work shall be invited from A class contractors, pre-qualified according to the procedure laid down in the said circular. 7. Since the tender in question has been invited by the public Works Department, I am not persuaded to accept the contention of the petitioners that, it is Ext.P6 Government Order, concerning the Irrigation Department, which is what is relevant in so far as the Public Works Department is concerned. If that be so, the case of the petitioners that, for works having valued less than 500 lakhs, open tender should be invited and for that reason pre-qualification norms specified in Ext.P5 are illegal and unconstitutional, cannot be accepted. WP(c).No28910/08 5 In the light of the above, I am not persuaded to accept the plea of the petitioners in this writ petition. Writ Petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WP(c).No28910/08 6