The petitioner is a registered contractor in the category Class I in the Public Works Department, Puducherry for a period of 5 years up to 02.04.2010 and he is eligible to tender for works in Public Works Department of Puducherry subject to meeting the eligibility criteria as laid down in any notice inviting tenders and the CPWD Manual 2003. The renewal of contract was issued by the Public Works Department by memorandum dated 30.05.2005. Though, it is stated that the petitioner firm could enter into a contract with Public Works Department, Puducherry with a money limit of Rs.10 crores, the learned Senior Counsel for the petitioner, during arguments would fairly concede that the money limit is only Rs.5 crores and he would submit that it has been mistakenly typed out as 10 lakhs in the affidavit.
2.The third respondent namely, the Executive Engineer, Public Works Department, Puducherry issued a press Notice in No.1082/PW/NH/DB/D1/F.No.460/08-09 dated 30.09.2008 calling for tenders from contractors registered with the Public Works Department, Puducherry, Central Public Works Department, Military Engineering Service and other State Public Works Department's to award contract to execute the work of Improvement of riding quality in Km 16/122 - 24/000 of NH 45A in Puducherry at an approximate estimated cost of Rs.3,57,63,207/-. Similarly, the third respondent issued another press notice on similar terms and conditions to award contract to execute the work of Improvement of riding quality in Km 24/000-29/800 of NH 45A in Puducherry at an approximate estimated cost of Rs.2,78,41,748/-. One of the eligibility criteria as per press notice No.1081/PW/NH/DB/D1/F.No.460/08-09 dated 30.09.2008 is as follows:-
"All contractors should produce documentary evidence in support of their having satisfactorily completed;
(i)3 similar works each of value Rs.1.44 crores or
(ii)two works each of value Rs.1.79 crores or
(iii)one work of Rs.2.87 crores in the last seven years ending last day of the month previous to the one in which the tenders are invited.
3. The petitioner challenges the said clause in Press Notice No.1081/PW/NH/DB/D1/F.No.460/08-09 dated 30.09.2008 in W.P.No.25225 of 2008.
4.Similarly, one of the eligibility criteria as per the press notice No.1082/PW/NH/DB/D1/F.No.460/08-09 dated 30.09.2008 is as follows:-
"All contractors should produce documentary evidence in support of their having satisfactorily completed;
(i)3 similar works each of value Rs.1.12 crores or
(ii)two works each of value Rs.1.40 crores or
(iii)one work of Rs.2.23 crores in the last seven years ending last day of the month previous to the one in which the tenders are invited.
5.The petitioner challenges the said clause in Press Notice No.1082/PW/NH/DB/D1/F.No.460/08-09 dated 30.09.2008 in W.P.No.25226 of 2008.
6.Admittedly, the above requirement for eligibility of tenders have been prescribed following Central Public Works Department Works Manual 2003 (hereinafter referred to as CPWD Manual 2003). The above criteria can be stated otherwise as provided in the mannual as follows:-
(i)three similar works, each of value 40% of estimated cost or
(ii)two works each of value 50% of estimated cost, or
(iii)one work of 80% estimated cost (rounded off to nearest Rs.10 lakhs) in the last 7 years ending last day of the month previous to the one in which the tenders are invited.
7.Admittedly, CPWD Works Manual was issued regulating the contracts of the Central Public Works Department. But the Government of Puducherry in letter No.19930/CS/JS/PW/70 dated 25.04.1970 sought for permission from the Government of India for making the CPWD Code and Manual together with all the delegations contained therein applicable to the PWD of Puducherry Government in so far as execution of works are concerned. On considering the same, the Government of India, Ministry of Health & Family Planning and Works Housing & Urban Development through letter No.14013(3)/70-EWI, dated 02.09.1970 have conveyed their decision that the Central PWD Code and CPWD Manual together with all the delegations contained therein will be applicable to the PWD of Puducherry Administration in so far as an execution of works are concerned. The said decision of the Government of India was communicated by the Government of Puducherry by means of G.O.Ms.No.42/JS/PW Chief Secretariat (Dept. of Public Works) dated 14.10.1970. Therefore, as per the order of the Government of India and that of the Government of Puducherry, the CPWD Manual is applicable to the Public Works Department of Puducherry from 02.09.1970 onwards.
8.The case of the petitioner is that the impugned eligibility criteria are based on CPWD Manual 2003 whereas, according to the petitioner, since CPWD Works Manual 2007 had already come into force w.e.f 31.12.2007, the third respondent ought to have applied the CPWD Works Manual 2007 and not the Manual 2003. Further, according to him, had CPWD Manual 2007 been made use of by the third respondent, then, the impugned eligibility criteria would not have come to be incorporated in the press notices. To put it otherwise, it is the stand of the petitioner that the impugned eligibility criteria run counter to CPWD Manual 2007. To appreciate the above contentions, it is necessary to extract the relevant sections of CPWD Manual 2003 and CPWD Manual 2007.
9.Section 17 of CPWD Works Manual 2003 deals with sale of tender documents. Similarly, Section 17 of the CPWD Works Manual 2007 deals with sale of tender documents.
10.Section 17.6.1 of CPWD Works Manual 2003 deals with sale of tender documents to registered contractors is as extracted thus:-
"17.6.1.Tender schedules for CPWD works can be issued to contractors registered in CPWD in appropriate classes, contractors registered with the Railways/M.E.S./P.&T in appropriate classes and contractors registered with the State PWDs in appropriate classes (for CPWD works within that state).
ADG of the Region has full powers to allow the State PWD Contractors to tender for works of CPWD outside the State in which they are enlisted. Whenever any State PWD contractor tenders for CPWD work outside the state in which he is registered, the authority issuing the tender papers should obtain a declaration from the contractor to the effect that he has not been debarred from tendering by any authority.
Tender schedules for CPWD works can be issued to the contractors registered with State PWDs in appropriate class (for CPWD works within that State). Contractors enlisted in the States of Uttar Pradesh, Bihar and Madhya Pradesh may be allowed to participate in tenders in Uttaranchal, Jharkhand and Chhatisgarh respectively til 31.12.02."
11.Section 17.10 of the CPWD Manual 2003 which speaks of procedure for issuing tender documents to a non registered contractors is as follows:-
"17.10.The criteria for issue of tenders in CPWD in respect of eligible CPWD as well as non CPWD contractors will be as under:-
(a) For works costing upto Rs.two crores tender shall be issued only to CPWD contractors. (To come into effect w.e.f 1.1.2003). Contractors enlisted in the parent states i.e. Uttar Pradesh, Bihar and Madhya Pradesh may also be allowed to participate in tenders in Uttaranchal, Jharkhand and Chhattisgarh respectively till 31.12.02.S.Es/E.Es may educate and advise the non CPWD contractors working in their circles/Divisions to get them enlisted in appropriate class in CPWD well before 1.1.03.
(b)For works costing over Rs.two crores and upto Rs.five crores, tenders shall be issued to all contractors who have satisfactorily executed three similar works, each of value 40% of estimated cost or two works each of value 50% of estimated cost, or one work of 80% estimated cost (rounded off to nearest Rs.10 lakhs) in the last 7 years ending last day of the month previous to the one in which the tenders are invited.
(c)For works costing over Rs.five crores, tenders shall be issued only to contractors pre-qualified in accordance with provisions of Section 16."
12.Section 17.3.1 of the CPWD Works Manual 2007 which speaks of sale of tenders for works costing upto Rs.10 crores is as follows:-
"17.3.1.
(1)The tender documents for works costing up to Rs.10 crores shall be sold only to the contractors registered in the CPWD in the appropriate category and class.
(2)However, the Additional Director General of the Region may relax this provision for works costing up to Rs.10 crores for specific Division(s)/Circle(s)/Zone(s) in his Region for a specific period that he may consider it necessary, and may allo sale of tenders for such owrks to contractors registered with the Railways/MES/P &T, State PWD's in appropriate classes (for CPWD works within that state). Non CPWD registered contractors shall have to fulfil the criteria of satisfactory execution of works as given below.
(i)Three similar works, each of value not less than 40% of the estimated cost put to tender, or
(ii)Two similar works, each of value not less than 60% of the estimated cost, or
(iii)One similar work of value not less than 80% of the estimated cost, all amounts rounded off to a convenient full figure, in the last 7 years ending on the last day of the month previous to the one in which the tenders are invited.
(3)"Similar work" shall be properly defined and appropriately indicated in the tender documents by the NIT approving authority."
13.According to the learned Senior Counsel appearing for the petitioner, if a cursory comparison of the above provisions in the Manual of 2003 and in the Manual of 2007 is made, it would make it abundantly clear that in the Manual of 2007, there is no eligibility criteria prescribed as the one which is impugned in these writ petitions. He would further submit that though Section 17.10 of the CPWD Manual 2003 prescribes such an eligibility criteria like the impugned eligibility criteria, since the said Manual 2003, was superseded by the CPWD Manual 2007, CPWD Manual 2003 is not applicable and as a corollary, imposition of eligibility criteria in terms of Manual 2003 is arbitrary, illegal and violative of
Article 14 of the Constitution of India.
14.Nextly, it is contended that the impugned eligibility criteria are opposed to the CPWD Manual 2007 and such kind of eligibility criteria could be imposed only to those contractors who are not registered in Puducherry Public Works Department such as MES/TN PWD/P&T, Railways etc., It is further contended that the impugned eligibility criteria could be imposed only on non state Public Works Department Contractors and the same is not applicable for Class I contractors who have been registered by the Public Works Department, Puducherry.
15.Lastly, it is submitted that this Court, on an earlier occasion, had disposed of a writ petition similar in nature wherein, the third respondent had undertaken to give tender schedule to the petitioner keeping in mind the CPWD Manual 2007. In view of the said stand taken by the respondent in the said writ petition, he is estopped from taking a different stand now, it is contended.
16. The third respondent has filed a common counter in both the writ petitions wherein it is contended as follows:-
(i)The contention of the petitioner that CPWD Manual 2007 is applicable to the contracts in question is not at all correct. Though CPWD Manual 2007 had come into force w.e.f 31.12.2007, in respect Central Public Works Department's, the same had not been then adopted by the Puducherry Government. As a matter of fact, proceedings were pending with the Puducherry Government for approval of the Government for adoption of the CPWD Works Manual 2007. Since there was no approval given by the Puducherry Government adopting CPWD Manual 2007 as on the date of the press notices, the third respondent rightly followed CPWD Manual 2003. It is further stated that the petitioner cannot dictate terms to the third respondent to adopt 2007 Manual as it is absolutely within the discretion of the Puducherry Government to adopt or not to adopt any Manual. Therefore, the contention that CPWD Manual 2003 is not applicable to the facts of the case, is absolutely incorrect.
(ii)As per CPWD Manual 2003, Section 17(10), for Works costing over Rs.2 crores and upto Rs.5 crores, tenders shall be issued to all the contractors who have satisfactorily executed three similar works each of value 40% estimated cost or two works each of value 50% of estimated cost, or one work of 80% estimated cost (rounded off to nearest Rs.10 lakhs) in the last 7 years ending last day of the month previous to the one in which the tenders are invited. It is in accordance with the said provision only, the impugned eligibility criteria were prescribed in the press notices which cannot be termed either as illegal or arbitrary.
(iii)Imposing such eligibility criteria is only to get the best person or the best quotation and if the said condition in the tender is quashed, it may lead to administrative burden and lead to increase and un-budgeted expenditure.
(iv)In respect of a similar work, when the petitioner was declared as unqualified by the Public Works Department, Puducherry as it did not satisfy the similar eligibility criteria, the petitioner had filed W.P.No.25225 of 2008 before this Court and in the said writ petition, this Court by order dated 15.10.2008 held that quoting of lowest price alone is not a criterian but one must have eligibility to participate in the tender selection process. Since the writ petition was dismissed on the ground that the petitioner did not satisfy the eligibility criteria, he is estopped from challenging the said eligibility criteria in this writ petition.
17.It is contended by the learned Government Pleader, Puducherry that the Government has got free hand to prescribe any eligibility criterian so as to get the best contractor who has got a sufficient experience in the field and to execute the work in the best manner; the said power cannot be restricted by a tenderer; the power of this Court to interfere is very limited under
Article 226 of the Constitution of India; the impugned eligibility criteria cannot be stated to be either arbitrary, illegal unfair, unreasonable or violative of any of the statutory provisions or Government Orders and therefore, this Court cannot extend its power under
Article 226 of the Constitution of India to quash the impugned eligibility criteria so long as it does not fall under any of the above categories of infirmities. Therefore, he would pray for dismissal of the writ petitions.
18.The respondents 4 and 5 have already submitted their tenders in response to the press notices. Because of the interim orders passed by this Court in these writ petitions, they state that they are deprived of getting the contract. Therefore, they have got impleaded themselves as parties in these writ petitions. But they have not filed any separate counter. However, they have adopted the stand taken by the third respondent in his counter.
19.I have heard the learned counsel on either side and perused the records thoroughly.
20. At the outset, arguments and counter arguments were advanced at length by the learned counsel on either side in respect of the power of Judicial Review of this Court under
Article 226 of the Constitution of India and therefore, I deem it appropriate to analyse the law on the subject first.
(i) The Hon'ble Supreme Court in Tata Cellular Vs Union of India reported in (1994) 6 SCC 651, after having elaborately dealt with the subject has ultimately deduced the principles relating to the power of judicial review of this Court in respect of contractual matters. The Hon'ble Supreme Court has held thus:-
"(1)The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative decision.
If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4)The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle or reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by malafides.
(6)Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure"
(ii) In Directorate of Education and Others Vs Erducomp Datamatics Limited and others reported in (2004) 4 19, the Honourable Supreme Court, following the principles laid down in Tata Cellular case has reiterated the law on the subject as follows:-
"...11. This principle was again restated by this Court in Monarch Infrastructure (P) Ltd Vs. Commr.Ulhasnagar Municipal Corpn. It was held that the terms and conditions in the tender are prescribed by the Government bearing in mind the nature of contract and in such matters the authority calling for the tender is the best judge to prescribe the terms and conditions of the tender. It is not for the courts to say whether the conditions prescribed in the tender under consideration were better than the ones prescribed in the earlier tender invitations.
12. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny, the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The courts would interefere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide."
(iii) While dealing with an identical issue relating to contract, the Hon'ble Supreme Court in Assn. of Registration Plates v. Union of India reported in (2005) 1 SCC 679, has held in paragraph 38, 43 and 44 as follows:-
"38. In the matter of formulating conditions of a tender document and awarding a contract of the nature of ensuring supply of high security registration plates, greater latitude is required to be conceded to the State authorities. Unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, tender conditions are unassailable. On intensive examination of tender conditions, we do not find that they violate the equality clause under
Article 14 or encroach on fundamental rights of the class of intending tenderers under
Article 19 of the Constitution. On the basis of the submissions made on behalf of the Union and State authorities and the justification shown for the terms of the impugned tender conditions, we do not find that the clauses requiring experience in the field of supplying registration plates in foreign countries and the quantum of business turnover are intended only to keep indigenous manufacturers out of the field. It is explained that on the date of formulation of scheme in Rule 50 and issuance of guidelines thereunder by the Central Government, there were not many indigenous manufacturers in India with technical and financial capability to undertake the job of supply of such high dimension, on a long-term basis and in a manner to ensure safety and security which is the prime object to be achieved by the introduction of new sophisticated registration plates.
43. Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work.
Article 14 of the Constitution prohibits the Government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim a fundamental right to carry on business with the Government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated, to the detriment of public interest. Undisputedly, the legal position which has been firmly established from various decisions of this Court, cited at the Bar (supra) is that government contracts are highly valuable assets and the court should be prepared to enforce standards of fairness on the Government in its dealings with tenderers and contractors.
44. The grievance that the terms of notice inviting tenders in the present case virtually create a monopoly in favour of parties having foreign collaborations, is without substance. Selection of a competent contractor for assigning job of supply of a sophisticated article through an open-tender procedure, is not an act of creating monopoly, as is sought to be suggested on behalf of the petitioners. What has been argued is that the terms of the notices inviting tenders deliberately exclude domestic manufacturers and new entrepreneurs in the field. In the absence of any indication from the record that the terms and conditions were tailor-made to promote parties with foreign collaborations and to exclude indigenous manufacturers, judicial interference is uncalled for."
(iv) Recently in Delhi Development Authority and another Vs. Joint Action Committee, Allottee of S.F.S. Flats and others reported in (2008) 2 SCC 672, the Hon'ble Supreme Court has held as follows:-
"65. Broadly, a policy decision is subject to judicial review on the following grounds:
(a) if it is unconstitutional;
(b) if it is dehors the provisions of the Act and the regulations;
(c) if the delegatee has acted beyond its power of delegation;
(d) if the executive policy is contrary to the statutory or a larger policy.
67. We would assume that the office orders were issued by DDA keeping in view the representations made by a large number of defaulters. The plea taken by DDA gives rise to a dichotomy. If it is a case of contract qua contract, the provisions of the Contract Act must be taken recourse to. If DDA was exercising a statutory power, the same must be tested on application of doctrine of ultra vires. Floating a scheme for providing housing facilities to a group of people, although is governed by statute, power under the statute by an executive not only can be tested on the touchstone of
Article 14 of the Constitution of India, but can also be tested on the touchstone of source of the power under the statute. No provision either in the Act or the Regulations was brought to our notice which makes the allottee bound by the purported policy decision taken by DDA. Even if it is so, the superior courts may exercise its power of judicial review as the power which is sought to be exercised by a statutory authority is not under the contract but under a statute. When a contract emanates from a statute or is otherwise governed by the provisions thereof, the superior court can also exercise the power of judicial review."
(v) In A.Gopal Vs. Airports Authority of India, Internation Airports Division, represented by the Airport Director, Chennai Airport, Chennai and others reported in (2005)4 M.L.J.208, a Division Bench of this Court has held as follows:-
"..6.As regard the requirement of having two years experience of managing a car park with Government Departments etc., in our opinion, this is a reasonable condition because obviously what the respondents required was, an experienced person and there is nothing unreasonable about making this as an eligibility criteria. Learned counsel for the appellant submitted that the requirement of having a minimum turnover of Rs.4.44 crores was arbitrary and hence illegal. WE do not agree. In the aforesaid decision of the Supreme court, there was a requirement in the tender conditions that only those having turn over of more than Rs.20 crores can bid. In para 13 of the aforesaid decision the Supreme Court observed that this criterion was imposed so that only companies having financial stability cand capacity should participate in the tender. In our opinion, the same situation is present in the present case. A perusal of the notice inviting tenders shows that the minimum reserved licence fee is Rs.37 lakhs per month. Hence the successful tenderer has to pay minimum reserved licence fee of Rs.37 lakhs per month which works out to Rs.4.44 crores per year. In our opinion, there was hence nothing unreasonable in making a requirement that the person bidding should have a minimum turn over of RS.4.44 crores.
7. These are all basically administrative and policy decisions and it is not for this Court to sit in appeal over such decisions vide Tata Cellular Vs. Union of India, A.I.R.1996 S.C. 11. It has been held repeatedly by the Supreme Court that this Court cannot interfere with administrative and policy decisions unless there is violation of the statute or it is shockingly arbitrary in the Wednesbury sense vide Tamil Nadu Electricity Board Vs. Tamil Nadu Electricity Board Engineers Association, (2005)1 M.L.J. 507, in which the aforesaid decisions are referred to in detail. In our opinion, there is no violation of any statute nor can it be said that the tender condition was shockingly arbitrary. The Court must exercise judicial restraint in such matters vide Rama Muthuramalingam Vs. Deputy Superintendent of Police, (2005) 1 M.L.J. 1 : A.I.R. 2005 Mad.1. There is no force in this appeal. The writ appeal is dismissed. No costs. W.A.M.P. Nos.2777 and 2778 of 2005 are dismissed."
(vi)In J.V.Gokal and Company, a registered firm, represented by its Partner Shri Ravindra Gokal through their Power of Attorney, Mumbai Vs. State of Tamil Nadu represented by its Secretary to Government, Public Works Department, Chennai and another reported in (2005) 1 M.L.J. 483, this Court has held as follows:-
"....In such big contracts naturally the authority who invites tenderness to know about experience, financial status, background etc., of the bidders because the person to whom the contract is given must be a reliable person. Hence, there is nothing unreasonable in the eligibility criteria which has been mentioned in the tender notice and in fact this is done very often. As regards the appellant firm it appears to be a new entity in the business field in India and it cannot claim that it should not be required to fulfill the eligibility criteria regarding experience, financial status, reliability etc...."
21. A close analysis of all the above judgment would keep things beyond any doubt that unless the impugned eligibility criteria are found to be either malicious, arbitrary, unfair or unreasonable, it is not within the scope of this Court to review the same under
Article 226 of the Constitution of India. Let me, therefore, now analyse the facts further to find as to whether the impugned eligibility criteria fall within the parameters or not.
22. The impugned criteria only prescribe previous experience as a qualification to tender. The power of the Government to prescribe any such qualification cannot be doubted. As extracted above, in Association of Registration Plates Vs. Union of India's case, the Hon'Ble Supreme Court has laid down in categorical terms that in the matter of formulating conditions of a tender document and awarding a contract of the nature of ensuring supply, greater latitude is required to be conceded to the authorities. The Hon'ble Supreme Court further states that certain pre-conditions or qualifications for tender have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work. In the instance cases, it is the stand of the Government that experience is prescribed as one of the qualifications to tender only with a view to get the best persons or best quotations from experienced persons, so that the work could be executed in the best manner without any delay or failure. When the Government intends to spend a huge amount of public money for the execution of the work for the benefit of the public, I am of the view, that the Government should have free hand to choose the best contractor, so that the work is performed in time and in the best manner. As held by the Hon'ble Supreme Court, the said power of the Government could neither be doubted nor be questioned by any tenderer. If the said condition has no rationale behind the same, and in the event of the same being found arbitrary, of course it would be the duty of this Court to extend its long arm to correct the same by necessary intervention under
Article 226 of the Constitution of India. Though it is stated in the affidavit that the impugned eligibility criteria is unreasonable and arbitrary, the learned Senior Counsel appearing for the petitioner is not in a position to demonstrate as to how it is either unreasonable or arbitrary. If it is shown that previous experience has been prescribed as a qualification only with a malicious intention to keep one or more or a class of contractors away from participating in the tender process thereby causing violence to the right of equality guaranteed under
Article 14 of the Constitution of India, then this Court shall have to set aside the said eligibility criteria. But no such malice is alleged by the petitioner. It is not as though contractors who would satisfy the eligibility criteria prescribed in the tender are not available. It cannot be said that the said condition has been prescribed to favour a particular individual or a particular company. When facts remain so, hardly I find any reason to hold that the eligibility criteria need the interference of this Court. In my considered opinion, the impugned eligibility criteria do not offend any of the parameters deduced by the Hon'ble Supreme Court in the judgments referred to above and
Article 14 of the Constitution of India.
23. Nextly, I have to consider whether the Government is bound by C.P.W.D., Works Manual either of the year 2003 or 2007 and whether the Government's power to prescribe any additional eligibility criteria other than the criteria prescribed in the manual is controlled or circumscribed by the manual. Admittedly, CPWD Works Manual was issued regulating the contracts in respect of Central Public Works department. There is no such separate manual issued by the Government of Puducherry. Therefore, it was thought fit by the Government that instead of issuing a separate manual, to adopt the guidelines provided in the CPWD Works Manual in respect of the P.W.D.works of Puducherry Government after obtaining necessary approval from the Government of India. Admittedly, the Government of India gave permission to the Government of Puducherry to adopt the said manual and based on the said approval, the Government of Puducherry issued G.O.Ms.No.42 dated 14.10.1970 adopting the CPWD Works Manual. It is not in controversy that before 1970 there were more than one manuals issued by CPWD in succession. The G.O., does not refer to any particular manual and the same is more general in nature. It is the contention of the Government that after the year 1970, whenever there was a manual issued afresh by the CPWD, the Government of Puducherry issued a necessary order then and there adopting the same. True it is, that there is slight variation between these manuals with regard to the eligibility criteria. Admittedly, at the time when the impugned press notices were issued by the respondent, the CPWD Works Manual 2007 had not been adopted by the Government of Puducherry. At any rate, it cannot be said that the manuals have got statutory force. After all they are only guidelines for the purpose of awarding contracts. The guidelines prescribed thereunder are to be scrupulously followed by the Government of Puducherry. Having adopted the CPWD Works Manual, the Government of Puducherry cannot be heard to contend that it can deviate from the said guidelines provided in the manual. While saying so, it sould be made clear that the ultimate power of the Government to prescribe additional qualifications as eligibility criteria other than the criteria provided in the manual cannot be curtailed. As held by the Hon'ble Supreme court, the Government has free hand to choose the best by prescribing any additional qualification. If any qualification provided in the manual is not either followed or if the qualification prescribed in the tender notice is derogatory to the manual, then the same shall be illegal. But prescribing an additional qualification as a criterian cannot be stated to be violation of the manual. It is true that previous experience has not been enumerated as one of the eligibility crieteria in the Manual 2007. Assuming that the Manual of the year 2007 is applicable, even then, as I have concluded above, prescribing additional qualifications as eligibility criteria which are not found in the manual 2007 cannot be stated to be either beyond the scope of the power of the Government or the same is illegal. Thus, the Government has rightly prescribed previous experience as an additional qualification which in my considered opinion, does not require any interference.
24. It is contended by the learned Senior counsel for the petitioner that, in the facts of the present notices, the CPWD Works Manual of the year 2007 alone is applicable and not Manual 2003. In view of the conclusions which I have arrived at in the previous paragraphs, though this question is immaterial, I propose to answer the same, since arguments were advanced at length by either side inviting this Court to go into the said question also. It is the contention of the petitioner that as per G.O.Ms.NO.42, any manual which is in vogue at the time when the tender notice is issued should be adopted since there is no particular reference made in the G.O., about any particular Manual. The G.O., reflects only the policy decisions of the Government adopting the CPWD Manual instead of issuing its own separate manual. It cannot be said that any Manual which would be issued after the said G.O., would become automatically operational in respect of P.W.D., works of Puducherry Government. As seen from the records, as and when there was a manual issued by the C.P.W.D., the Government of Puducherry had considered the same and passed a separate order adopting the said manual. In respect of the CPWD works Manual 2007, the same was only under consideration of the Government of Puducherry at the time when press notices were issued in the instant cases. Records have been now produced to show that the same was adopted by the Government only from 2.1.2009 as per the official memorandum issued by the Government of Puducherry in memorandum No.1998/160/2007/PW/B2. Therefore, I hold that prior to the said memo dated 2.1.2009, the P.W.D., Puducherry was right in following the CPWD works Manual of the year 2003.
25. Now, it is time to analyse as to whether the impugned eligibility criteria offends any of the provisions of the CPWD works Manual 2003 or it confirms to the said Manual. As I have extracted in the previous paragraphs,
Section 17.10 of CPWD Works Manual 2003 provides: "For works costing over Rs two crores and upto Rs.five crores, tenders shall be issued to all Contractors who have satisfactorily executed three similar works, each of value 40% of estimated cost or two works each of value 50% of estimated cost or one work of 80% estimated cost in the last seven years ending last day of the month previous to the one in which tenders are invited". In my view, the qualifications prescribed in the instant cases are squarely in conformity with the above provision contained in C.P.W.D., Works Manual 2003.
26. It is the contention of the petitioner that as per CPWD Works Manual 2007, in respect of works costing upto Rs.10 crores, there is no such previous experience prescribed as an eligibility criterian for registered contractors. It is further submitted that only in respect of non-registered contractors, such previous experience has been prescribed as criteria in
Section 17.3.1 in CPWD Works Manual 2007. Since the petitioner is a registered contractor, according to the learned Senior counsel for the petitioner, he need not have any such previous experience. Thus according to the petitioner, the impugned eligibility criteria run counter to
Section 17.3.1 of the CPWD Works Manual 2007. As I have already held that CPWD Works Manual 2007 is not at all applicable to the facts of the present case and so it need not be tested whether the impugned eligibility criteria run counter to
Section 17.3.1 of the CPWD Works Manual. Assuming that CPWD Works Manual 2007 is applicable and the same should have been followed by the respondent, even then, the petitioner has no case for the following reasons stated infra.
27.
Section 17.3.1. classifies contractors into two groups namely registered CPWD Contractors and non-registered CPWD Contractors. In respect of CPWD registered contractors, they need not fulfill the criteria relating to previous experience as prescribed in
Section 17.3.1. Admittedly, the petitioner is not a CPWD registered contractor. He is only a state PWD registered contractor. As provided in
Section 17.3.1, all non CPWD registered contractors have to fulfill the criteria relating to previous experience. The state registered PWD contractors who are not a registered CPWD contractors would fall in the category of non-CPWD registered contractors. Thus, the petitioner who is a non-CPWD contractor has to fulfill the criteria relating to previous experience as provided in
Section 17.3.1. Therefore, the contention of the petitioner that the eligibility criteria prescribed in the impugned notices run contrary to
Section 17.3.1. cannot be countenanced. In my considered opinion, the said eligibility criteria conform to the CPWD Works Manual 2007 also.
28. Turning to the question of estoppel raised by the petitioner, according to him, in respect of similar tender notice, when the petitioner was declared un-qualified, he filed a writ petition in W.P.22072 of 2008 before this Court challenging the same. In the said writ petition, a similar press notice issued on 19.8.2008 calling for tenders to award contract for execution of a similar work incorporating similar eligibility criteria came to be challenged. When the matter was taken up for hearing, the learned Government Pleader, Puducherry on instructions, had submitted that the respondents were ready to furnish the tender schedule to the petitioner. The said statement was recorded and based on the same, this Court directed the Executive Engineer, National Highways Division, P.W.D., Puducherry to furnish the tender schedule to the petitioner on the same day. It is the contention of the petitioner that having agreed to issue tender schedule to the petitioner in a similar circumstance, the respondent is estopped now from contending that the eligibility criteria impugned in these writ petitions are valid and that CPWD Works Manual 2007 is not applicable. In answer to the said contention, it is contended by the respondent that when the said writ petition was heard, the respondent did not concede that the eligibility criteria prescribed in the press notice would not be enforced. Per contra, according to the counsel, the respondent therein conceded only to furnish a tender schedule. Therefore, according to the learned Government Pleader, such stand taken in the W.P.22072/2008 cannot operate as a estoppel against the respondent. In my considered opinion, there is every force in the said argument of the learned Government Pleader. Admittedly, after tender schedule was issued to the petitioner, as per the directions of this Court in W.P.22072/2008, the petitioner submitted tender documents. But when they were scrutinised, the authorities rejected the same on the ground that the petitioner did not satisfy the eligibility criteria in respect of previous experience prescribed in the tender notice. The petitioner challenged the same by filing a writ petition in W.P.No.24805 of 2008. This court by order dated 15.10.2008 dismissed the writ petition on the ground that the petitioner did not satisfy the eligibility criteria relating to previous experience. While dismissing the writ petition, this Court had also made an observation that the petitioner could have challenged the validity of the eligibility criteria instead of challenging the rejection of the tender. It is contended by the Government Pleader that having not challenged the said order of this Court dated 15.10.2008, it is not open for the petitioner to challenge the eligibility criteria in the present writ petitions. In my considered opinion, the order of this Court made in W.P.No.24805/2008 would not in manner prohibit the petitioner from challenging the eligibility criteria provided in subsequent tender notices. The principle of estoppel has no role to play either against the petitioner or against the respondent as it is contended by them against each other.
29. The foregoing discussions lead me to the irresistible conclusion that the impugned eligibility criteria fall within the parameters laid down by the Hon'ble Supreme Court in various judgments cited supra and the same cannot be stated to be either arbitrary, unfair, unreasonable or illegal and I hold that it does not violate
Article 14 of the Constitution of India. The writ petitions are devoid of any merit and they deserve to be dismissed.
30. In result, the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
jbm/nvsri To
1.The Secretary to Government, Public Works Department, Puducherry.
2.The Chief Engineer, Public Works Department, Puducherry.
3.The Executive Engineer, Public Works Department, National Highways, Puducherry