Judgment :- The petitioner in O.P.No. 5511 of 1994 is a registered A Class contractor (hereinafter referred to as 'tenderer') and he has been undertaking several contracts under Public Works Department. His main grievance is directed against cancellation of his tender for MVIP works which was accepted by the Superintending Engineer on 19-3-1994 and consequent issue of Ext. P.11 notification ordering re-tender. Prior to the issue of Ext. P11 the Government have passed an order as per proceedings No. 75797 IR 3/94/IRD dated 29-3-1994 directing to cancel the three tenders already received and to re-tender the three different items of work. In this writ petition we are concerned with the first tender referred to in the above proceedings of the first respondent-State of Kerala, namely "MVIP Constructing LBMC from Ch. 290UO in. to 29417 in. including 2 Nos. acquaducts flumes etc." This order has been produced as Ext. RI along with the counter affidavit filed on behalf of the Government who is the first respondent in O.P.No. 5511 of 1994. 2. The tenderer along with 15 others submitted applications for the completion of pre-qualifications proceedings. Ext. P1 is a copy of the proceedings of the Superintending Engineer declaring the tenderer to be qualified, for submitting tenders for the MVIP construction. Consequently he submitted his tender for the above work along with other qualified tenderers. After negotiations the tenderer has agreed to reduce his tender to 34.5 above the estimated rate. On the basis of the said negotiation, his tender had been accepted as being the lowest by the Superintending Engineer. By Ext. P3 communication issued by the Superintending Engineer the tender submitted by the tenderer was accepted. In Ext. P3 he has stipulated that the work should be completed within a period of eighteen months from the date of handing over the site. The Superintending Engineer thereafter directed the tenderer to execute an agreement and also to deposit an amount of Rs. I lakh in the treasury being the deposit for the fulfillment of contract. In obedience to the said direction, the tenderer had duly executed the agreement and deposited an amount of Rs.1 lakh. Ext. P4 is a copy of the agreement and Ext. P5 is the receipt obtained for the above deposit of Rs.1 lakh. By Ext. P6 the Superintending Engineer forwarded the copy of agreement to the Accountant General. On the basis of Exts. Ext. P4 is a copy of the agreement and Ext. P5 is the receipt obtained for the above deposit of Rs.1 lakh. By Ext. P6 the Superintending Engineer forwarded the copy of agreement to the Accountant General. On the basis of Exts. P4, P5 and P6 the tenderer had made all the arrangements for the immediate execution of the work, particularly in view of the stipulation contained in Ext. P3 that the work should be completed within a period of eighteen months. The tenderer legitimately expected that within the reasonable time the site would be handed over to him for the execution of the work. However, there was no immediate response. The tenderer therefore sent Ext. P7 communication requesting the Executive Engineer to hand over the site. Even thereafter the site was not handed over. Though on behalf of the tenderer a notice was issued to the Executive Engineer as per Ext. PS calling upon him to hand over the site, ultimately without affording any opportunity to the tenderer a re-tender of the work was ordered as per Ext. P11. Ext. P11 proceeding is, inter alia, challenged in O.P.No. 5511 of 1994. 3. O.P.No. 4884 of 1994 has been filed by a resident of Kadaikkad village (hereinafter referred to as the 'objector') for a direction to respondents 1 to 3 therein to call for open tenders without pre-qualification specifications for the works under the M. V.I.P. The objector has filed Ext. P1 representation before the Government. The case of the objector is that the Government had called for the files pursuant to his representation for being examined by the Chief Technical Examiner and that it was thereupon found the allegations to be correct. His further case is that the enquiry conducted by the Chief Technical Examiner is found correct on the basis of the report submitted by him. Substantially his grievance is against the grant of contract work in favour of the tenderer and therefore he prays for cancellation of all tenders. 4. On behalf of the objector it was mainly contended that the tender on the basis of pre-qualification test is arbitrary. What is required is an open tender, without insisting for the specification on the basis of pre-qualification, the counsel argues. 4. On behalf of the objector it was mainly contended that the tender on the basis of pre-qualification test is arbitrary. What is required is an open tender, without insisting for the specification on the basis of pre-qualification, the counsel argues. It is further contended that the grant of tender on the basis of pre-qualification is not a sound basis and for that reason the tender in favour of the tenderer should be declared invalid. 5. The assessment of the qualifications by an expert committee or the basis of pre-qualification test cannot be said to be arbitrary in nature. It is an assessment of ability in a process of selection by persons having high technical qualifications. Therefore, there is sufficient guarantee against arbitrariness and unreasonableness in the process of selection of persons qualified to submit tenders. A Division Bench of this court in Abdurahiman Hajee v. State of Kerala (1990(1) KLT Short Notes 66) observed: "The pre-qualification prescribed cannot be violative of Art.14 of the Constitution as the same has been prescribed for ensuring that the persons of proven experience are given contracts for undertaking important and big projects." Therefore, the court further said: "The procedure prescribed and the selection that flows from the same cannot be regarded as arbitrary or manifestly unreasonable." In view of the above, it is difficult for this court to countenance the argument advanced by the objector against the pre-qualification specification. 6. On behalf of the Government it was contended that the Government are competent to cancel the tender as per Clause 67 of the Special Conditions contained in Form No. 83 Notice Inviting Tenders for Works. This is one of the main contentions raised in the counter affidavit. My attention is brought to Clause 67 of the Special Conditions which runs thus: "The Department reserves the rights to abandon the work at any stage if such case is found necessary in the interest of Government irrespective of what have been agreed to be therein and the contractor will be paid only for the finished item of work. No claim for compensation put forth thereby will be entertained." In order to apply Clause 67, there must he abandonment of work. That is an essential pre-requisite for invoking Clause 67. If there is total forsake of the work, then only it can be said there is abandonment. No claim for compensation put forth thereby will be entertained." In order to apply Clause 67, there must he abandonment of work. That is an essential pre-requisite for invoking Clause 67. If there is total forsake of the work, then only it can be said there is abandonment. In this case the work is not totally withdrawn but it will continue on re-tender. That is not a case of total abandonment. What is involved is suspension of the work till the re-tender is made and it will re-start thereafter. Further, in this case the work as such has not been granted to the tenderer and site has not been handed over to him. Therefore, I do not find my way to accept the contention on the strength of Clause 67. 7. Learned counsel raised a contention that Ext. R1 order has been passed by the Government, without issuing any notice to the tenderer. By Ext. R1 the Government has cancelled the tender confirmed in his favour and re-tender was ordered. The question is whether the tenderer had acted to his disadvantage on the basis of the acceptance of his tender as being the lowest. By Ext. P5 the tender submitted by the tenderer was accepted by the Superintending Engineer. Pursuant to that Ext. P4 agreement was executed. A sum of Rs. I lakh was deposited as per Ext. P5 receipt dated 22-3-1994. Thereafter the tenderer, it is said, had made arrangements for the supply of sophisticated equipments and expert workers for execution of the work, within the stipulated time of eighteen months. Under mat situation it cannot be said that the tenderer had not acted to his disadvantage and altered his position on the basis of the promise given by the Superintending Engineer and others. In this case I do not propose to examine the question on the premise of promissory estoppel, but I am more concerned about the prejudice caused to the tenderer. When the tenderer is facing serious prejudice, according to me, he is definitely entitled to get a pre-decisional notice. By Ext. P8 notice tenderer had alerted the Government and others about the prejudice that would be caused to him as a result of delay. When the tenderer is facing serious prejudice, according to me, he is definitely entitled to get a pre-decisional notice. By Ext. P8 notice tenderer had alerted the Government and others about the prejudice that would be caused to him as a result of delay. The Supreme Court in I.J. Rao v. Bibhtli Bhushan Bagh (1989) 3 SCC 202) held to the effect that where rights of a person are adversely and prejudicially affected by an order to be made by an officer in a proceeding, such person is entitled to a pre-decisional notice irrespective of whether the proceeding is judicial, quasi-judicial or administrative in nature. This is paramountly a requirement in the observance of principles of natural justice. Fairness must be shown to a person whose rights are going to be prejudicially affected in an administrative action like cancellation of a tender which was accepted and acted upon. This is of course a procedural requirement in a decision making process. The Supreme Court in H.B. Gandhi v. Gopinath & Sons and others (1990) 77 STC 1) held: "Judicial review, it is trite is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact." When there is failure to conform to this procedural requirement the decision ipso facto extinguishes from the field. In that event the examination of correctness or reasonableness of a decision does not arise at all. As far as the present case is concerned, before taking decision to cancel the tender as per Ext. R1 and passing consequential orders for re-tender as per Ext. P11 admittedly no pre-decisional notice has been given to the petitioner, even though the petitioner has acted to his disadvantage by executing the agreement and making the deposit, and alerted the authorities about the prejudice that would be caused to him. For this reason Ext R1 order passed by the Government and Ext. P11 proceedings of the Superintending Engineer are liable to be declared illegal. In the result, Ext. P11 in O.P.No. 5511 of 1994 is set aside. 8. Learned counsel for the tenderer also places his claim upholding "Doctrine of Legitimate Expectation" as envisaged in a recent decision of the Supreme Court in Union of India v. Hindustan-Development Corporation ( A.I.R 1994 SC 988). In the result, Ext. P11 in O.P.No. 5511 of 1994 is set aside. 8. Learned counsel for the tenderer also places his claim upholding "Doctrine of Legitimate Expectation" as envisaged in a recent decision of the Supreme Court in Union of India v. Hindustan-Development Corporation ( A.I.R 1994 SC 988). It was pressed into service inasmuch as it was a case coming within the realms of contract just as in this case. That was acase where the doctrine of "Legitimate expectation" has been explained in extenso. The Supreme Court in that decision has given "a well-meant caution" in applying the said doctrine thus: "If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Art.14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give aright to invoke these principles. It can be one of the grounds to consider but the court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is "not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits," particularly when the element of speculation and uncertainty is inherent in that very concept." However, the following observation of the Supreme Court in that case will squarely apply in the present case. "On examination of some of these important decisions it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and dial the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken." It appears to me the above view is in consonance with what was expressed by the Supreme Court in an earlier decision in Navjyoti Co-op. Group Housing Society v. Union of India (1992(4) SCC 477) wherein it was held: "It may be indicated here dial the doctrine of legitimate expectation' imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation'. Within the conspectus of fair dealing in case of legitimate expectation', the reasonable opportunities to make representation by the parties likely to be affected by any change of consistent past policy, come in," Relying on this decision I had occasion to hold in Capt. Sunny Mathew v. Union of India (I.L.R 1993(3) Ker. 43) thus: "The petitioner asserts that Ext. P2 order is still in force and he is entitled to legitimate expectation' of following the consistent past practice in fixing the pay scale. If any departure was sought to be made in the existing system on the basis of new guidelines or policy in fixation of pay scale, the authority concerned should have afforded reasonable opportunity to the aggrieved persons to make representations. This is embodied in the doctrine of "legitimate expectation'. It imposes a duty on public authority to act fairly even in cases where the parties have no legal right in private law to receive such treatment. The aggrieved person is entitled to judicial review if he can show that the decision of the public authority affected him of some benefit which he has been permitted to enjoy." 9. Now, consequential directions are required in this case inasmuch as I set aside the re-tender evidenced by Ext. P11. The tenderer shall be given a reasonable opportunity of being heard before any decision is taken afresh in the matter. A pre-decisional notice shall be issued to the tenderer for deciding the question whether any re-tender is required in the present set of facts. Of course, the objector has his own grievances against the award of tender. P11. The tenderer shall be given a reasonable opportunity of being heard before any decision is taken afresh in the matter. A pre-decisional notice shall be issued to the tenderer for deciding the question whether any re-tender is required in the present set of facts. Of course, the objector has his own grievances against the award of tender. Inasmuch as I have quashed Ext. P11 re-tender, I feel the objector can also be heard in the matter before any fresh decision is taken in the matter. The objector is free to submit his representation, if any, before the authorities concerned. In view of the nature of the pleadings, I think, it is proper, in the circumstances of the case to direct the Government to afford separate opportunities of hearing to the tenderer as well as the objector. Simultaneous hearing shall at any rate be avoided. Since the matter is very urgent, I feel, a further direction is necessary in these cases. The first respondent shall issue notice to the petitioner in O.P.No. 4884/ 94 directing to appear and submit his representation, as expeditiously as possible, at any rate within a period of one month from today. Likewise the first respondent shall issue notice to the petitioner in O.P.No. 5511/94 to appear and submit his representation, as expeditiously as possible, at any rate within a period of six weeks from today. The writ petitions are disposed of as above.