IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 WP(C).No. 8301 of 2011(K) ------------------------------------- PETITIONER: ------------------- P.M.HASSANKUTTY, S/O.MEERA RAWTHER, AGED 57 YEARS, WASTE PAPER MERCHANT, PARAPALLIL HOUSE, KUMMANAM P.O., KOTTAYAM DISTRICT-686 035. BY ADVS. SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR), SRI.LUIZ GODWIN D'COUTH, SRI.K.P.CHANDRASEKHAR. RESPONDENTS: ------------------------ 1. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM, PIN-695 001. 4. THE CONTROLLER OF STATIONERY, OFFICE OF THE CONTROLLER OF STATIONERY, THIRUVANANTHAPURAM, PIN-695 033. 5. THE ASSISTANT CONTROLLER OF STATIONERY, OFFICE OF THE CONTROLLER OF STATIONERY, THIRUVANANTHAPURAM, PIN-695 033. 6. P.S.MOHAN KUMAR, PARVATHY BHAVAN, THRITHODYTHANAM, CHANGANASSERY, PIN-686 105. R1 TO R5 BY GOVT. PLEADER SRI. T.K. ARAVINDAKUMAR BABU, R6 BY ADV. SRI.M.P.MADHAVANKUTTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/08/2011, ALONG WITH W.P.(C). NO.19882/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.8301/2011-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT IN W.P.(C).11653/2007. EXT.P.2: COPY OF THE JUDGMENT IN W.A. NO. 1911/2007. EXT.P.3: COPY OF THE COUNTER AFFIDAVIT IN W.P.(C).12359/08 FILED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS ALONG WITH CERTAIN DOCUMENTS. EXT.P.4: COPY OF THE JUDGMENT IN W.P.(C).NO.12359/08. EXT.P.5: COPY OF THE NOTIFICATION DTD 29/01/2010. EXT.P.6: COPY OF THE DEED OF AGREEMENT EXECUTED BY THE R.6 BY THE STATIONERY DEPARTMENT. EXT.P.7: COPY OF THE GOVERNMENT LETTER DTD. 10/03/2011. EXT.P.8: COPY OF THE JUDGMENT IN REVIEW PETITION NO. 311/2011 OF THE HON'BLE HIGH COURT OF KERALA. EXT.P.9: COPY OF THE TENDER FORM SUBMITTED BY SRI. C.K. RAJENDRAN. RESPONDENTS' EXHIBITS: EXT.R4.A: COPY OF THE G.O. G(RT).NO.141/2010/H. EDN. DTD. 20/01/2010. EXT.R4.B: COPY OF THE TENDER PUBLICATIONS MADE IN THE KERALA GAZETTE DTD. 02/03/2010. EXT.R4.C: COPY OF THE TENDER PUBLICATIONS MADE IN THE KERALA KAUMUDI DAILY DTD. 23/02/2010. EXT.R4.D: COPY OF THE TENDER PUBLICATIONS MADE IN THE HINDU DTD. 27/02/2010. EXT.R4.E: COPY OF THE TENDER PUBLICATIONS MADE IN MADHYAMAM DTD. 21/02/2010. EXT.R4.F: COPY OF THE REQUEST LETTER DTD. 10/03/2010. EXT.R6.A: COPY OF THE ORDER BEARING NO. 1093/D1/10/STATIONARY DTD. 06/05/2010 ISSUED BY THE R.4. EXT.R6.B: COPY OF THE CIRCULAR BEARING NO.1093/D1/2010 STATIONARY DTD. 04/03/2011. EXT.R6.C: COPY OF THE JUDGMENT DTD. 11/03/2011 IN W.P.(C).NO.32602/2010 BEFORE THIS HON'BLE COURT. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC, J ....................................................... W.P.(C)s.8301 & 19882/2011 .............................................. Dated this the 2nd day of August, 2011 JUDGMENT These writ petitions are filed by waste paper merchants. 2. In W.P.(C).8301/2011 the prayer sought is to quash Exts.P5 to P7 and to direct the third respondent to take steps for the disposal of the valued S.S.L.C answer papers for the year 2008-09and 2009-10 by inviting tenders. The case of the petitioner in W.P.(C). 8301/2011 is that by Ext.P5 dated 29.1.2010, tenders were invited for the disposal of the valued S.S.L.C answer papers for the year 2010-11. It is stated that in pursuance to Ext.P5, Ext.P6 agreement was entered into with the sixth respondent and that Ext.P7 was issued to him enabling him to remove the valued answer papers for the years 2008-09, 2009-10 and 2010-11. 3. According to the petitioner, tenders did not cover the answer papers for the academic years 2008-09 and 2009-10. It was therefore, that the prayer for quashing Exts.P5 to P7 was sought, with a consequential prayer requiring the respondents to invite bids W.P.(C)s.8301 & 19882/11 2 for the disposal of the answer papers for the years 2008-09 and 2009-10. 4. Similar contentions are raised by the petitioner in W.P.(C). 19882/2011. He also contends that in response to the tender, he has submitted his tender and quoted Rs.21.80/- per Kg of valued S.S.L.C answer papers, whereas ignoring his tender, the tender was awarded to the fourth respondent herein, who is the sixth respondent in W.P.(C).8301/2011, accepting his offer for Rs.13.99 per Kg. Along with the I.A.19646/2011, petitioner has also produced circular dated 4.3.2011 communicated to the DEO by endorsement dated 10.6.2011, which allows the authorities to dispose of the valued S.S.L.C answer papers and question papers in the Technical Education Departments also. Petitioner contends that by Ext.P5, the scope of the tender notice dated 29.1.2010 is enlarged and therefore, Ext.P5 is also illegal. 5. As far as the petitioner in W.P.(C).8301/2011 is concerned, he did not participate in Ext.P1 tender notice referred to above. W.P.(C)s.8301 & 19882/11 3 6. In so far as the petitioner in W.P.(C).19882/2011 is concerned, the learned Government Pleader confirms that though the petitioner had offered Rs.21.80/- along with the tender, he did not make the Earner Money Deposit which was a mandatory requirement. It is submitted that it was therefore, that the tender submitted by the petitioner was rejected and the fourth respondent being the next highest offerer, his tender was accepted and awarded to him. 7. In the above view of the matter, on the materials now available before this Court, I cannot accept the plea of the petitioner in W.P. (C).19882/2011 that a higher offer made by him was not considered and that a lower offer made by the party respondent was accepted. 8. Now what remains for consideration is the contention of the petitioners that the tender notice permitted disposal of the valued S.S.L.C answer papers for the academic year 2010-11 and that the answer papers of the previous years, namely 2008-09 and 2009- W.P.(C)s.8301 & 19882/11 4 10, could not have been disposed of. By Ext.P1 tender notice in W.P.(C).19882/2011, tenders were invited for disposal of the valued answer papers likely to be available in the Educational Institutions during the year 2010-11. Although it is the contention of the petitioners that what is tendered by the tender notice is the answer papers which are likely to be available during the year 2010-11, I am inclined to accept the version given by the respondent that what was intended to be disposed of by this tender notice, was the entire answer papers which were likely to be available for disposal during the year mentioned in the tender notice. Tender notice does not disclose that the answer papers likely to be available are of any particular academic year. Therefore, the contention of the petitioners that, under the tender notice valued S.S.L.C answer papers of the academic years 2008-09 and 2009-10 could not have been disposed of, does not merit acceptance, and for that reason, I do not find any merit in that contention of the petitioners. 9. In so far as Ext.P5 circular, produced along with I.A.19646/2011 in W.P.(C).19882/2011 is concerned, prima facie, I W.P.(C)s.8301 & 19882/11 5 am inclined to agree with the learned counsel for the petitioner. However the writ petition has not been amended incorporating any challenge to Ext.P5 nor does the writ petition contain the prayer seeking to invalidate Ext.P5. In such a situation, this Court will not be justified in entering into the merits of the contentions against Ext.P5. If the petitioner is aggrieved, it is open to the petitioner to seek his remedies against Ext.P5 in appropriate proceedings. Reserving the aforesaid liberty of the petitioner in W.P.(C). 19882/2011 to challenge Ext.P5, the writ petitions are dismissed. ANTONY DOMINIC, Judge mrcs