IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 WP(C).No. 16627 of 2009(W) -------------------------- PETITIONER(S): --------------- KOTTARAKKARA PUBLIC WORKS SKILLED WORKERS LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD., Q-459, KOTTARAKKARA, REPRESENTED BY THE SECRETARY, DEEPA DAVID. BY ADV. SRI.P.SANKARANKUTTY NAIR SRI.T.V.AJAYAKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, ROADS DIVISION, KOLLAM. 3. ASSISTANT EXECUTIVE ENGINEER, ROADS SUB DIVISION, KOTTARAKKARA. 4. M.K.SANTHOSH, MINI MANDIRAM, KARINGANNOOR P.O., OYOOR. 5. ROBIN P.ALEX, SHREYAS, THRIPPILAZHIKAM, KUNDARA. 6. MOHANAN NAIR, CHENGUVILA PUTHEN VEEDU, ANAKOTTOOR P.O., KOTTARAKKARA. ADV. SRI.K.ANAND (A.201) FOR R5 SMT.LATHA KRISHNAN FOR R5 GOVERNMENT PLEADER FOR R1-3 SRI.M.A.ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16627 of 2009 APPENDIX EXT.P1- TRUE COPY OF THE GOVERNMENT ORDER NO.G.O.[MC] 135/97/CO- OP.DATED 13.11.97 EXT.P2- TRUE COPY OF THEJUDGMENT DATED 5.2.09 IN W.P.(C).36527/08 EXT.P3- TRUE COPY OF THE TENDER NOTIFICATION DATED 5.5.09 OF THE 3RD RESPONDENT EXT.P4- TRUE COPY OF THE REPRESENTATION DATED 26.5.09 OF THE PETITIONER TO THE 3RD RESPONDENT EXT.P4(a)- TRUE COPY OF THE REPRESENTATION DATED 26.5.09 EXT.P4(b)- TRUE COPY OF THE REPRESENTATION DATED 26.5.09 EXT.P4(c)- TRUE COPY OF THE REPRESENTTION DATED 26.5.09 EXT.P4(d)- TRUE COPY OF THE REPRESENTATION DATED 26.5.09 EXT.P4(e)- TRUE COPY OF THE REPRESENTATION DATED 26.5.09 EXT.P4(F)- TRUE COPY OF THE REPRESENTATION DATED 5.6.09 (TRUE COPY) P.A TO JUDGE V.GIRI, J ....................... W.P.(C).16627/2009 ....................... Dated this the 28th day of August, 2009 JUDGMENT Petitioner is a Labour Contract Society. It responded to Ext.P3 notification issued by the 3rd respondent inviting tenders for 19 pre-monsoon maintenance works in Kottarakkara Taluk. Tenders were opened by the 3rd respondent and it was found that the 4th respondent had submitted the lowest tenders for the works shown as Sl.Nos. 1, 3 and 11 in Ext.P3. Similarly the 5th respondent had quoted the lowest rates for the works shown as Sl. Nos. 5 and 6 in Ext.P3. The 4th respondent had quoted at 41.4% below the PAC and the 5th respondent had quoted at 40% below the PAC. 2. Petitioner sent Ext.P4 series expressing its willingness to execute the work at 10% above the lowest tender namely at 30% below the estimate rate. 3. Similarly the 6th respondent had quoted for the work at serial No.14 at 22% below the estimate rate. Petitioner W.P.(C).16627/09 2 had vide Ext.P4(e) intimated its willingness to execute the work at 10% above the lowest tender. Ultimately a decision has been taken by the 3rd respondent to award the contract in favour of the lowest tenderers namely respondents 4, 5 and 6. This has been challenged in the writ petition. 4. The case of the petitioner essentially rested on Ext.P1 Government Order which affords a price preference in favour of Labour Contract Societies. Clause 8(b) of Ext.P1 inter alia provides that if a private contractor has quoted the lowest rate, the Labour Contract Society which has quoted for the work will be given preference in awarding contracts and in doing so, the Labour Contract Society will be awarded the work at 10% above the lowest tender. It is pointed out that in spite of expression of willingness by the petitioner to do the work at the rate 10% above the lowest tender, its tender was not accepted. 5. Counter affidavit has been filed by the Government W.P.(C).16627/09 3 and by the 5th respondent. I heard Mr.Ajaykumar, learned counsel for the petitioner, Mr.M.A.Asif, learned senior Government Pleader and Mr.Anand, learned counsel appearing for the party respondent. 6. Learned Government Pleader contends that Ext.P1 has been amended by Ext.R1(a) Government Order which provides that preference should be shown to a Labour Contract Society, only if the difference between the rates quoted by a Society and the lowest tenderer is not more that 10%. It is further contended by the learned Government Pleader that as evidenced by Ext.R1(d), the contracts which were awarded to the petitioner for another work was terminated at its risk and cost. This is one of the reasons not to prefer the petitioner. 7. Learned counsel for the petitioner submits that Ext.R1(a) order cannot be relied since it has been stayed by this Court in W.P.(C).13449/2004 as evidenced by Exts.P5 and P6 interim orders. W.P.(C).16627/09 4 8. It cannot be gainsaid that Ext.R1(a) provides for a different procedure from what is mentioned in Ext.P1. I am unable to accept the submission made by the learned counsel for the petitioner that Ext.P1 order cannot be considered to be in existence by reason of Exts.P5 and P6 orders of stay. Order of stay was passed in the year 2004 and the writ petition is stated to be pending. It is trite law that an order of stay as such does not result in the effacement or invalidation of an order. An order of stay only operates as one keeping in abeyance the consequences contemplated by the impugned order. 9. The order of stay in Ext.P5 cannot be treated as one which completely precludes the Government from relying on Ext.R1(a) order. I find it difficult to accept the position that Ext.P5 order of stay should be given effect to in such a manner that notwithstanding Ext.R1(a) Government Order providing for a different procedure, and notwithstanding the fact that Ext.R1(a) has brought about a change in the stores purchase manual, the said order should not be given effect to in any contract, tendered by W.P.(C).16627/09 5 any of the departments of the Government, for the sole reason that a Labour Contract Society also participates in such tender. I am of the view that Exts.P5 and P6 should be confined to the subject matter of the writ petition in which the order of stay has been passed and at any rate, Ext.R1(a) order cannot be treated as not in existence, even in relation to a tender issued in the year 2009. 10. I also find force in the submission made by the learned Government Pleader that it may not be unreasonable on the part of the tendering authority to take into account Ext.R1(b) proceedings by which another contract which was awarded to the petitioner was terminated at its risk and cost. It cannot be said that the tendering authority will have to ignore even Ext.R1(b), and necessarily go by the price preference clause which is contained in Ext.P9. 11. In the ultimate analysis, I am of the view that public interest would not be sacrificed but would be sub served, if the Government is given an opportunity to W.P.(C).16627/09 6 accept the lower offers from eligible persons, in respect of the works tendered and in not being compelled to accept a higher offer by another tenderer for the sole reason that it was a Labour Contract Society. At any rate, I do not think that the facts revealed in the present case calls for an interference with the award of contract by the 3rd respondent in favour of respondents 4, 5 and 6. I find no merit in the writ petition. It is accordingly dismissed. V.GIRI, Judge mrcs