18. As regards the contention that the State would stand to lose in restricting the area of the contractors to bid at the auction, it has to be borne in mind that the basic qualifications of the contractors belonging to the Scheduled Castes and Scheduled Tribes communities are not relaxed and it is only such of those qualified persons belong to the respective communities who are qualified to bid at the auction. The impugned Government Order also ensures that the tenders shall be awarded only by open method and not by closed nomination method which is also tended to eliminate any arbitrariness in choosing of the contractors. Therefore, the interest of Government is prima facie, adequately protected and there is no basis for the apprehensions expressed by the petitioner."
27.After the Tamil Nadu Transparency in Tenders Act, 1998 was enacted, again an attempt was made to question the G.O(Ms)No.132 by filing a writ petition in W.P.No.4084 of 2001. This Court considered in detail and dismissed the writ petition in KANNAIYAN VS. STATE OF TAMIL NADU reported in 2004 (4) MLJ 651. Paras 13, 14 and 15 of the said judgment are extracted hereunder:
"13.
Art.15(4) which was inserted by the Constitution First Amendment Act 1951, may be the answer for most of the doubts raised on the part of the petitioner and therefore, it is necessary to extract
Art.15(4) of the Constitution of India.
"Nothing in this Article or in clause (2) of the
Art.29 shall prevent the State from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and Scheduled Tribes".
14.The scope and object of this clause is to bring Articles 15 and 29 in line with Articles 16 (4), 46 and 340 and to make it constitutional for the State to reserve seats for backward classes of citizens, scheduled castes and Tribes in the public educational institutions as well as to make other special provisions as may be necessary for their advancement. In short, the amendment would validate the reservation and would protect the interests of the scheduled castes and scheduled tribes.
Art.15(4) is an exception to
Art.15(1) in so far as it forbids discrimination on the ground of race or caste. It is also in the nature of an exception to Art.29(2).
15.No doubt that in general statutory provisions of law have the overriding effect on the Government Orders passed but since this Government Order which is impugned herein has been issued in consonance with the enabling provisions of the Constitution particularly under
Art.15(4) of the Constitution of India aimed at the advancement of the socially and economically backward sections of the society as a special provision, the Government Order has been issued by the first respondent State Government and further since the statute cannot override a constitutional right. Though it apparently looks as if the statute has been overridden by the Government Order, if it is seen in the light of
Art.15(4), the Government Order can be given effect to and it cannot be said that the statute is being overridden especially when the fundamental obligation of the State is given effect to for the purpose of giving effect to
Art.15(4) of the Constitution of India. Moreover in its recent judgments rendered by the Hon'ble Apex Court reported in (2004) 6 SCC, 36 as settled law to the effect saying that "Constitution right cannot be taken away by a statute notwithstanding anything contained contrary in its sense any other law for the time being in force".
28.This Court categorically held that the G.O(Ms) No.132 is in conformity with
Article 15(4) of the Constitution. Relying on the decision of the Honourable Apex Court reported in 2004 (6) SCC 36, it is categorically held that the constitutional right cannot be taken away by a statute. It is relevant that the respondents sought to sustain the G.O.(Ms)No.132 and this Court also agreed with the submissions made by the learned Additional Government Pleader for the respondents.
29.While so, the Managing Director TAHDCO wrote a letter dated 31.07.2008 to the first respondent expressing certain difficulties as the SC/ST contractors were not available to carry out works and that therefore, they were to go for tender again and again. The relevant portion of the said letter is extracted hereunder:
"Under the above circumstances we request the government to issue suitable amendment to the order cited in 1st reference that if there is no response for two tender calls from SC/ST contractors, then the third tender call will be open to all contractors for participation. We request early orders in this regard."
30.The Managing Director TAHDCO wrote another letter dated 20.10.2009 to the first respondent on the same lines. The relevant portion of the said letter is extracted hereunder:
"Therefore in view of overall benefits to the SC/ST community and corporation we request the Government to issue suitable amendment to the G.O.132/AD&TWD/dt 15.07.1999 as follows:
"Preference would be given to SC/ST contractors. In case of non availability of SC/ST contractor or not capable of taking up particular work, the same may be entrusted to other contractors as per tender transparency act."
31.While the respondent TAHDCO wanted to engage other contractors only when SC/ST contractors are not available, the first respondent issued the impugned letter totally scrapping G.O.Ms.No.132, solely basing on the aforesaid letters dated 31.07.2008 and 20.10.2009 of the Managing Director - TAHDCO. Hence, the learned counsels for the petitioners are fully justified in their contentions that the impugned order was passed without application of mind. In fact, the learned Additional Advocate General representing the TAHDCO simply submitted that they are bound to follow the directions issued by the first respondent. The learned Additional Advocate General also made it clear that whatever directions that are issued by the first respondent, they should follow. In effect, the learned Additional Advocate General did not support the contents of the impugned letter and on the other hand, his submission was that the TAHDCO being the company under the control of the first respondent, they are bound to carry out the directions issued by the first respondent.
32.As already stated above, the learned Additional Advocate General representing the TAHDCO fairly submitted that clause 2 of the order dated 28.03.2008 issued by the General Manager TAHDCO entrusting work to one of the petitioners in W.P.No.4565 of 2010 with a condition that he could not take up work in other divisions, is arbitrary and illegal. It is also submitted that such a clause could be deleted in future.
33.As rightly contended by the learned counsels for the petitioners, on the one hand, the respondent TAHDCO states that there are no sufficient SC/ST contractors and on the other hand, they do not permit the SC/ST contractors in one division to take up the work in other division, even if there are no SC/ST contractors in that division. Further, as rightly contended by the learned counsels for the petitioners, from the details furnished by the respondent TAHDCO, the number of works for which repeated tender calls were made, were a few when compared to the total number of works carried out by the second respondent. Even the letter dated 31.07.2008 referred to above, made it clear that there are substantial number of SC/ST contractors. As per the said letter, there are 164 Nos. of ClassI SC/ST contractors, 125 Nos. of ClassII SC/ST contractors and 20 Nos. of ClassIII SC/ST contractors, registered with them.
34.In para 15 of the counter affidavit filed by the General Manager TAHDCO in W.P.No.4565 of 2010, it is stated that there are 200 Nos. of SC/ST contractors during the year 2007-2008, 330 Nos. of SC/ST contractors during the year 2008-2009 and 327 Nos. of SC/ST contractors during the year 2009-2010.
35.In the Board note dated 23.02.2008 of the respondent TAHDCO, it has been stated that there are 182 Nos. of ClassI SC/ST contractors, 32 Nos. of ClassII SC/ST contractors and 22 Nos. of ClassIII SC/ST contractors for the whole 9 divisions.
36.Both the petitioners have filed reply affidavits stating that the respondent TAHDCO follows a different yard stick in the matter of construction works to SC/ST contractors. According to them, it is nothing but practicing untouchability forbidden by the Constitution. Para 14 of the reply affidavit filed in W.P.No.4565 of 2010 is extracted hereunder:
"14.With regard to para 8, I submit the 2nd Respondent deliberately fix less estimate value for execution of the contract work. For example, for constructing 50 students Hostel for Most Backward class students, the Government vide GO(Permanent) No.80 dt.28.08.2007 has fixed Rs.48 lakhs as the cost for construction, whereas the 2nd Respondent is fixing only Rs.35 lakhs for constructing similar 50 students Hostel for SC/ST. Therefore the 2nd Respondent cannot expect the contractors to take up the works for such low rate. Further the Respondents are not permitting the SC/ST contractors registered in one district to take up the contract in another district. Inspite of pointing out the above, the Respondents deliberately fixing such low value. This would show their hostile attitude towards poor contractors like us. Inspite of such situation, we are taking up the work with the 2nd Respondent and executing the same to the best of our ability........."
37.This statement of fact is not disputed by the respondent - TAHDCO. Even the letters dated 31.07.2008 and 20.10.2009 of the Managing Director TAHDCO enclosed in the typed set of papers stated various reasons for non-execution of work within the stipulated period. Those reasons are: (i) not handing over sites to the contractors (ii) disputes in sites etc. It is also pleaded as well as argued by the learned counsels for the petitioners that there are paucity of Engineers employed by the respondent - TAHDCO and that also affects the carrying out the work for the benefit of SC/ST people. They have also stated that there is no significant increase in the number of Engineers when compared to the establishment of the respondent TAHDCO in 1974. If all these deficiencies are made good, the respondent TAHDCO need not go for repeated tenders.
38.Furthermore, the learned counsels for the petitioners are also correct in their submissions that the impugned letter of the Principal Secretary to AD&TW Department cannot override the Government Order in G.O.(Ms)No.132 issued by the Government, under its executive power in the name of the Governor. The decision reported in 2007 Writ L.R.521 relied on by the learned counsels for the petitioners squarely applies to this case. Para 9 of the said judgment is extracted hereunder:
"9.The reasons stated in the impugned order stating that in view of the subsequent clarification issued by the Government by letter dated 04.10.2000 clarifying G.O.Ms.No.118 dated 14.02.1996, is totally illegal since the Government order issued with the executive power of the Government in the name of the Governor cannot be clarified by a letter of the Secretary to Government admittedly no amendment to G.O.Ms.No.118 dated 14.02.1996 is issued and therefore the Government order will prevail over the subsequent Government letter."
39.In my view, the learned counsels for the petitioners are correct in their submissions that mere providing some employment is not the contemplation of the constitutional scheme and the SC/ST community are to be economically empowered and the constitutional provision in
Article 46 should be given effect to. The learned counsels are also correct in their submissions that G.O.Ms.No.132 is in consonance with the provisions of
Article 46 of the Constitution.
Article 46 of the Constitution is extracted hereunder:
"46.Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. - The State shall promote within special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation."
40.It is made clear that the constitutional goal is to advance the economic interest of the SC/ST community. G.O.Ms.No.132 was issued to fulfill the constitutional obligations in terms of
Article 46 of the Constitution read with
Article 15(4) of the Constitution. As rightly contended by the learned counsels for the petitioners, the constitutional scheme provides for overall upliftment of SC/ST community by providing in Chapter XXXVI ensuring their representation in State Legislatures and Parliament and also establishing National Commission for SC/ST community. Even after all these measures taken by the Government, still the vast majority of SC/ST people live under the poverty line. Though the Constitution prohibits untouchability, it is national shame that untouchability is still in practice and as rightly contended by the learned counsels for the petitioners, two tumbler systems are in vogue in many places in the countryside even now.
41.At this juncture, it is relevant to quote the judgment of the Honourable Apex Court in STATE OF KARNATAKA VS. APPA BALU INGALE AND OTHERS reported in 1995 SUPP (4) SCC 469. In the said case, Harijans were not allowed to take water from the public well and that resulted in initiating prosecution under the Protection of Civil Rights Act, 1955. The Trial Court convicted the accused and the appellate Court confirmed the same. But the High Court reversed the same and the Honourable Apex Court restored the conviction. While restoring conviction, the Honourable Apex Court observed as follows:
"16.Poverty and penury made the Dalits dependants and they became vulnerable to oppression. The slightest attempt to assert equality or its perceived exercise receives the ire of the dominant sections of the society and the Dalits would become the object of atrocities and oppression. The lack of resources made the Dalits vulnerable to economic and social boycott. Their abject poverty and dependence on the upper classes in rural India for livelihood stands as a constant constraint to their exercising their rights social, legal or constitutional, though guaranteed. Thus they have neither money, capacity, influence nor means to vindicate their rights except occasional collective action which would be defused or frittered away by pressures through diverse forms. Consequently most of the Dalits are continuing to languish under the yoke of the practice of untouchability. The State has the duty to protect them and render social justice to them."
42.The learned counsels for the petitioners are also correct in their submissions that still the honour killing take place whenever there is an inter-caste marriage with SC/ST people and the Honourable Apex Court strenuously deprecated those honour killings.
43.The learned Additional Advocate General is not able to explain as to why the first respondent issued the impugned letter scrapping G.O.Ms.No.132, when the Managing Director, TAHDCO sent letters dated 31.07.2008 and 20.10.2009 requesting the first respondent to call for tender from non-SC/ST contractors also, only when SC/ST people were not available.
44.In the aforesaid facts and circumstances, I am of the view that the impugned letter dated 08.02.2010 issued by the first respondent as well as the subsequent letter dated 09.02.2010 issued by the second respondent are to be quashed and accordingly, the impugned orders are quashed and the writ petitions are allowed. No costs. Consequently, connected miscellaneous petitions are closed.
TK/RNS To
1.The Principal Secretary to Government Adi Dravidar and Tribal Welfare Department Fort St. George, Chennai 9.
2.The Managing Director TAHDCO, Chennai 600 101.
3.The General Manager TAHDCO, Chennai 600 101.
4.The General Manager (Tech) Tamil Nadu Adi Dravidar Housing and Development Corporation TNHB Shopping Complex, Thirumangalam, Chennai 101