K,M. ABDULLA KUNHI v. CHIEF ENGINEER

CHIEF ENGINEER PUBLIC WORKS DEPARTMENT (NATIONAL HIGHWAYS), MUSEUM P.O., THIRUVANANTHAPURM, PIN - 695033 THE SUPERINTENDING ENGINEER PWD ROADS, NORTH CIRCLE KOZHIKODE, PIN - 673647 THE CHIEF ENGINEER (BUILDINGS) PUBLIC WORKS DEPARTMENT PUBLIC OFFICE, MUSEUM P.O THIRUVANANTHAPURAM - 695033 THE CHIEF ENGINEER (ROADS) PUBLIC WORKS DEPARTMENT PUBLIC OFFICE, MUSEUM P.O THIRUVANANTHAPURAM - 695033 STATE OF KERALA REPRESENTED BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM, PIN - 695001 BY ADV. SRI. SUNIL KUMAR KURIAKOSE, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 33092 of 2023 : 2 : JUDGMENT Amidst the various allegations, averments, and assertions made and urged in this writ petition, what the petitioner, in fact, is trying to impel before this Court is that the rejection of his pre-qualification credentials – with respect to a bid he has submitted pursuant to a notification published by the Public Works Department (PWD) – has been done without even offering him an opportunity of showing cause as to why it should not be done, even though such is so specifically mandated as per Ext.P13, notification, particularly in Clause 5.3 thereof.

2. Sri.Dinesh Rao A. – learned counsel for the petitioner, explained that, even though the Authorities have awarded certain marks to his client under various heads, they are all untenable and factually incorrect; and that, had his client been given an opportunity of explaining, this could have been rectified without leaving any room for doubt. He explained that, in fact, since no such opportunity was given to him, the petitioner was constrained to approach this Court; and that his pleadings on record, including his reply affidavit, would disclose what he wanted to express before the competent Authorities. He thus prayed that Ext.P12 be quashed and that the Authorities be directed to offer his client an W.P.(C).No. 33092 of 2023 : 3 : opportunity of clarification, with respect to his bid documents and credentials, as required under Ext.P13.

3. Sri.Sunil Kumar Kuriakose – learned Government Pleader, in response, submitted that, even though Ext.P12 has been issued without offering an opportunity of explaining to the petitioner, it would cause him no prejudice because, the documents presented by him establish beyond doubt that he is not entitled to any more marks than what has been now awarded. He submitted that this has been explained in the counter affidavit filed by the competent Authority before this Court; and hence prayed that this writ petition be dismissed.

4. As is perspicuous from the afore narrative, the disputation between the parties is as to the manner in which the marks have been allotted to the petitioner. I do not propose to enter into the merits of the same since, I cannot do so, while acting under Article 226 of the Constitution of India.

5. Suffice to say, going by Ext.P13 and in particular, Clause

5.3 thereof, a process for clarification is provided, whereby, to assess the examination, evaluation and comparison of bids, the Authority can ask for an explanation from the bidder, and his response will have to be then taken into account. In fact, this is conceded by the learned Government Pleader, though he argues W.P.(C).No. 33092 of 2023 : 4 : that such a process need not have been done in this case.

6. However, it has to be borne in mind that, even going by Ext.P12 – which is the order impugned, the competent Authorities have found that the petitioner's credentials are not up to the level required on the basis of the documents presented and the marks eligible to be thus allotted. However, in the reply affidavit, the petitioner has explained why this is not so; and am, therefore, of the firm view that he ought to have been given an opportunity of addressing these issues before the Authorities, before Ext.P12 had been issued.

7. Solely in the afore perspective and without entering into the merits of any of the rival contentions and leaving them all open, I allow this writ petition and direct the petitioner to place all his objections to Ext.P12 before the 2nd respondent; and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, the same shall be assessed by the said Authority, after hearing him; thus culminating in appropriate proceedings and necessary action, specifically in terms of Clause

5.3 of Ext.P13. The resultant proceedings in this regard shall be issued and communicated to the petitioner without any avoidable delay, but not later than two weeks thereafter. Until such time as the afore is done, and the resultant W.P.(C).No. 33092 of 2023 : 5 : proceedings communicated to the petitioner, the interim order granted by this Court on 18.10.2023, will continue to be in operation. Sd/- DEVAN RAMACHANDRAN JUDGE W.P.(C).No. 33092 of 2023 : 6 : APPENDIX OF WP(C) 33092/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P 8 Exhibit P9 Exhibit P10 Exhibit P11 Exhibit P12 A TRUE COPY OF THE NOTICE INVITING TENDER DATED 31.07.2023 ISSUED BY THE 2ND RESPONDENT A TRUE COPY OF THE COMPLETION CERTIFICATE DATED 29.09.2021 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT PERTAINING TO WORK CRF 2018-19 IMPROVEMENTS TO CHOYYANKODE - MUKKADA - BEEMANADI ROAD IN KASARAGOD DISTRICT THE EXPERIENCE CERTIFICATE ISSUED BY THE GENERAL MANAGER, KERALA STATE CONSTRUCTION CORPORATION LIMITED DATED 06.05.2019 A TRUE COPY OF THE LIST OF PLANT AND EQUIPMENT AVAILABLE ON CONTRACT WORK WITH THE PETITIONER THE FORM OF TENDER AND DECLARATIONS SUBMITTED BY THE PETITIONER THE BANK CERTIFICATE ISSUED BY DHANALAKSHMI BANK AND DATED 08.09.2023 A TRUE COPY OF THE PRELIMINARY AGREEMENT DATED 8TH SEPTEMBER, 2023 EXECUTED BETWEEN THE PETITIONER AND THE 2ND RESPONDENT THE RECEIPT ISSUED BY THE 1ST RESPONDENT FOR HAVING ACCEPTED THE BID SUBMITTED BY THE PETITIONER AND DATED 8TH SEPTEMBER, 2023 A CERTIFICATE ISSUED BY CHARTERED ACCOUNTANT SHOWING THE ANNUAL TURNOVER, GROSS RECEIPT AND NET PROFIT OF THE PETITIONER FOR THE PAST 10 YEARS FROM VARIOUS CONTRACT WORKS AND DATED 27.01.2023 THE INDIAN INCOME TAX RETURN ACKNOWLEDGEMENT FOR THE ASSESSMENT YEAR 2023 DATED 31ST OCTOBER, 2022 A TRUE COPY OF THE EMAIL COMMUNICATION DATED 27,09.2023 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT A TRUE COPY OF THE MINUTES OF THE PROCEEDINGS OF THE CHIEF ENGINEER'S COMMITTEE HELD ON 26.09.2023 W.P.(C).No. 33092 of 2023 : 7 : Exhibit P13 Exhibit P14 RESPONDENT EXHIBITS Exhibit R1(a) THE PETITIONER HAS COMPLIED WITH THE REQUIREMENTS IN THE NOTICE INVITING TENDER. CLAUSE 4 AND 5 OF THE NOTICE INVITING TENDER TRUE COPY OF THE TENDER NOTIFICATION PUBLISHED ON 4.10.23 A TRUE COPY OF THE NORMS FOR EVALUATION OF PRE-QUALIFICATION TENDERS FOR STATE WORKS.