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2019 Supreme(Kar) 1479
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B. Veerappa, J.
Sri Vishwanath H. M., S/o L. Shadaksharaiah H. M. - Petitioner
Vs.
Government Of Karnataka Department Of Parliamentary Affairs Vidhana Soudha, Bengaluru Represented By Its Secretary - Respondent
Writ Petition No.53036/2017(GM-RES)
Decided On : 20-12-2019
For the Petitioner: Sri S.M. Chandrashekar, Senior Counsel For Sri H. Pavana Chandra Shetty, Adv.
For the Respondent:Sri R. Nataraj, Additional Advocate General A/W MS. Niloufer Akbar, AGA
Headnote:
Constitution of India, 1950 - Articles 17, 46 and 15 - KTPP Act - Section-6 - Karnataka Transparency in Public Procurements Rules, 2000 - Rule 27 - Quash notification - Terms of amendment - Whether impugned Karnataka Transparency in Public Procurements Amendment Act Karnataka Act inserting proviso to Section of KTPP Act as per Annexure impugned Karnataka Transparency in Public Procurements Amendment Rules inserting Rule Rules as per Annexure reserving not exceeding to renderers belonging to Scheduled Castes category and not exceeding renderers belonging to Scheduled Tribes category in construction of works value of which does not exceed are justified – Held, There is one more aspect which needs to be mentioned in matter of implementation of doctrine of level playing field - According to Lord Gold smith commitment to rule of law is heart of parliamentary democracy - One of important elements of rule of law is legal certainty - Article applies to government policies and if policy or act of Government even in contractual matters fails to satisfy test of reasonableness then such an actor decision would be unconstitutional - Admittedly in present case original KTPP Act is not challenged - In order to encourage Scheduled Castes and Scheduled Tribes Government thought it fit to reserve not exceeding Scheduled Castes category and not exceeding for scheduled Tribes category in construction works value of which does not exceed impugned amendments are made based on principles of distributive justice to protect interests of weaker sections of people in particular Scheduled Castes and Scheduled Tribes – Therefore said judgment has no application to facts and circumstances of present case - Other judgments relied upon by counsel senior for petitioner do not prohibit reservation for Scheduled Castes and Scheduled Tribes in contractual matters - Petition dismissed
ORDER :
The petitioner has filed the present Writ Petition for a writ of certiorari to quash the notification dated 17.7.2017 made in No.DPAL 22 SHASANA 2016 Karnataka Transparency in Public Procurements (Amendment) Act 2016 as per Annexure-A as ultra vires of the Constitution of India. To be more specific, the petitioner has sought for quashing the above notification amending the provisions of Section-6 of the KTPP Act by inserting the following:
“provided that, the tender inviting authority shall, in the notified Departments out of those construction works, value of which does not exceed Rs.50.00 lakhs such number of works not exceeding 17.15 percent be tendered only among the tenders belonging to the Scheduled Castes Category and such number of works not exceeding 6.95 percent be tendered only among tenderers belonging to the Scheduled Tribes Category, by taking out the notices, communications and publications required to be taken following the prescribed procedures; Provided further that, if no tender from persons belonging to the Scheduled Castes or Scheduled Tribes as the case may be, is received in response to the invitation in two attempts such works may be tendered among others.
2. The petitioner has also sought for quashing the notification dated 15.9.2017 made in No.FD 876 Exp- 12/2017 inserting Rule 27(A) in the Karnataka Transparency in Public Procurements Rules, 2000 (‘KTPP Rules’ for short) by the Karnataka Transparency in Public Procurements (Amendment) Rules, 2017 as per Annexure-B as ultra vires of the Constitution. Consequently, the petitioner sought to struck down the amended provisions of Section 6 of the KTPP Act and also insertion of Rule 27(A) in the KTPP Rules, as ultra vires of the Constitution of India.
I. BRIEF FACTS OF THE CASE
3. The case of the petitioner is that he is a BE Graduate holder and Contractor by profession in Karnataka Public Works Department. He enrolled as a Contractor during the year 2008-09 and got many work contracts with Karnataka Public Works Department for the last 8 to 9 years. He has unblemished service in his profession while discharging contract work.
4. It is contended that the KTPP Act came into force w.e.f 4.10.2000 and this Act is intended to streamline procedure in public procurement and also ensure accountability in public procurement. The State Government, while making it mandatory for all the procurement agencies under the Government to follow the tendering process in public procurement, has also initiated a series of procurement reforms.
5. The provisions of Section-6 of the KTPP Act, 1999 specifies that no tender shall be invited, processed or accepted by a Procurement Entity after the commencement of this Act except in accordance with the procedure laid down in this Act or the Rules made thereunder. In exercise of the powers conferred under sub-section (1) of Section 23 of the Karnataka Transparency in Public Procurement Ordinance 2000, the Government of Karnataka has framed the KTPP Rules.
6. When things stood thus, the State Government by the impugned amendments, amended the provisions of Section – 6 of the KTPP Act by the Karnataka Transparency in Public Procurements (Amendment) Act, 2016 and also inserted Rule 27(A) in the KTPP Rules by the Karnataka Transparency in Public Procurements (Amendment) Rules- 2017, as a result of which certain reservation is created in the process of Tender, for the benefit of Scheduled Caste and Scheduled Tribe categories. In terms of the amendment, the Tender Inviting Authority has to reserve 17.15% of the works to the Scheduled Castes category and 6.95% of works to the Scheduled Tribes Category in the construction works, value of which does not exceed Rs.50,00,000/-. Therefore, the petitioner is before this Court challenging the said amendments.
7. It is further contended that the Constitution of India while making reservation provided social, economic and educational & cultural safeguards to the Scheduled Caste and Scheduled Tribe cat
