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Himachal Pradesh High Court · body

2017 DIGILAW 59 (HP)

Virender Singh v. State of H. P.

2017-01-13

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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Tarlok Singh Chauhan, J. This writ petition has been filed with the following prayer: “It is, therefore, respectfully prayed that the present writ petition may kindly be allowed and appropriate writ, order or direction may kindly be issued to the respondent to award the work of : Construction of Primary Health Centre building at Nainidhar, Tehsil Shillai, District Sirmaur, H.P. to the petitioner as the petitioner is the successful bidder for the tender notice dated 22.6.2016 against tender ID 2707.2086, 216 / PWD-22382.3 HP, and the fresh tender notice dated 20.9.2016 for the same work may kindly be declared null and void, keeping in view the facts and circumstances stated in this petition and also in the interest of natural justice and law.” ______________________ 2. It is not in dispute that the petitioner was initially registered as Class-B contractor and entitled to submit the tender upto Rs.10,00,000/- at the first instance. However, thereafter vide notification dated 26.5.2015 the Enlistment Rules, 1967 were amended. According to the petitioner, the fact that he was registered as Class-B contractor made him eligible to tender upto Rs.50,00,000/- and, therefore, the rejection of his tender for the work of construction of Primary Health Centre building, Nainidhar, Tehsil Shillai, District Sirmaur, on the ground of his ineligibility is highly arbitrary, void, illegal, unconstitutional, capricious, beyond the confines of legitimacy and all reasonableness. 3. The respondents have filed the reply wherein it is stated that for the tender in question, there were as many as six participants including the petitioner. As regards the petitioner, his case has been rejected on the following grounds: “(a) The bidder is registered as Class-B Contractor. The bidder registered as Class-B contractor are not eligible to participate in the e-tendering process pertaining to Class- D as per condition prescribed vide Govt. Notification No. PBW(B)22-1/2002 Shimla dated 26.03.2015 Rule No.1.8 as such found not eligible. (b) The bidder has failed to submit the work done of similar nature and list of machinery, tools, plants, as referred in Form 8 of e-tendering. (c) The bidder is diploma holder engineer in Civil Engineering. As per condition prescribed vide Govt. Notification No. PBW(B) 22-1/2002 Shimla dated 26.03.2015 Rule No. 1.8 he is eligible to tender only upto Rs.30.00 lakh. Whereas the tender invited is costing to Rs.42,95,606/- only. As such, the bidder is not eligible to participate in the e-tendering process. Hence found not eligible.” 4. As per condition prescribed vide Govt. Notification No. PBW(B) 22-1/2002 Shimla dated 26.03.2015 Rule No. 1.8 he is eligible to tender only upto Rs.30.00 lakh. Whereas the tender invited is costing to Rs.42,95,606/- only. As such, the bidder is not eligible to participate in the e-tendering process. Hence found not eligible.” 4. The petitioner has filed rejoinder wherein it is reiterated that once the petitioner has been classified as Class-B contractor, then he can always be awarded works upto Rs.50,00,000/- whereas the work in question was costing only Rs.42,95,606/-. We have heard learned counsel for the parties and have carefully and meticulously gone through the records of the case. 5. At the outset, we may observe that the petitioner even after filing of the reply by the respondents has not cared to amend the petition and assail the decision of the respondents on the ground mentioned therein and has further not even questioned the Rules whereby he has become ineligible for the tender in question. 6. In addition to that the petitioner has also not placed on record the Enlistment Rules dated 26.5.2015. However, we have already dealt with these Rules in Rajesh Kumar and others vs. State of H.P. and another & connected matter, 2016 (3) Him.L.R.(DB) 1425 and find that these Rules in substance permit a contractor to participate only in his class or in one class below his originally enlistment class. As a result of these, now ‘A’ class contractor can file bid for a work of more than Rs.2 crores upto unlimited amount and can also participate in the tendering process of a work below Rs.2 crores upto Rs.80 lacs. Similarly, a ‘B’ class contractor is eligible to participate in tendering process of work between Rs.80 lacs to Rs.2 crores and can also participate in ‘C’ class category upto Rs.30 lacs. Similarly, ‘C’ class contractor is eligible to make bid upto the work valuing Rs.80 lacs and can also participate in ‘D’ class category works which are upto Rs.30 lacs. 7. Adverting to the facts, it would be noticed that the petitioner was initially registered as Class-B contractor and, therefore, is not eligible to participate in the e-tendering process pertaining to Class-D which is two categories below to his enlistment in terms of the Enlistment Rules, 2015. 7. Adverting to the facts, it would be noticed that the petitioner was initially registered as Class-B contractor and, therefore, is not eligible to participate in the e-tendering process pertaining to Class-D which is two categories below to his enlistment in terms of the Enlistment Rules, 2015. Furthermore, the petitioner is a diploma holder engineer in Civil Engineering and as per the Rule 1.8, he is eligible to tender only upto Rs.30,00,000/-, whereas the tender invited in the instant case is costing Rs.42,95,606/- 8. What necessitated the promulgation of the Enlistment Rules, 2015 has already been dealt by us in Rajesh Kumar’s case (supra) in the following manner:- “3. It is also submitted that in the new Enlistment Rules the necessity for incorporating Rule 8.1 arose because of the monopoly amongst the Class ‘A’ and ‘B’ contractors which was affecting the rights of Class ‘C’ and ‘D’ contractors. The contractors in ‘A’ and ‘B’ class participated not only in the respective classes, but as well as in the lower classes and this had the following adverse effects: “(i) The contractors of A & B class when execute the work of lower class also delay their work of respective class. (ii) There are numbers of contractors in Class C & D who can execute the work of their respective class but due to participation of class A & B contractors they are not getting the work of their class for which they are eligible. There are number of works in the State which could not even be awarded in time and the Department is receiving single tender in many cases. Hence, Rule 8.1 was added in new Enlistment Rules, 2015 so that the person enlisted in particular class could execute the work of his own class and one step below. (iii) The contractors who are working regularly in the Department and achieving their targets are not affected by the new Enlistment Rules.” Thereafter, this Court upheld these conditions and observed as under: “13. We entertain no doubt in our minds that all this has been done with the sole aim and objective to ensure that the big contractors now confine themselves to ‘A’ and ‘B’ class and do not barge into the contracts otherwise reserved for ‘C’ and ‘D’ class. We entertain no doubt in our minds that all this has been done with the sole aim and objective to ensure that the big contractors now confine themselves to ‘A’ and ‘B’ class and do not barge into the contracts otherwise reserved for ‘C’ and ‘D’ class. This would not only bring about a healthy competition amongst the equals and would also ensure that these equals may also gain sufficient experience of work so that after gaining work done experience, they are also upgraded to higher class to minimize monopoly of ‘A’ and ‘B’ class contractors on work done basis. 14. We cannot ignore the fact that the contractors belonging to ‘C’ and ‘D’ categories are mostly unemployed educated youth, who are unable to compete with the ‘A’ and ‘B’ contractors. Therefore, the aforesaid provision would atleast ensure that every enlisted category of contractor would only have to face a healthy competition as per his enlisted class thereby not only providing him an opportunity to earn his livelihood but would also provide him an opportunity to upgrade his class.” 9. In light of the aforesaid discussion, no fault can be found with the action of the respondents whereby they have rejected the bid of the petitioner on the ground of ineligibility. Consequently, there is no merit in this petition and the same is dismissed, so also the pending applications, if any, leaving the parties to bear their own costs.