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2024 DIGILAW 105 (UTT)

Anusuya Prasad Nautiyal v. Union of India

2024-02-21

RAKESH THAPLIYAL, RITU BAHRI

body2024
JUDGMENT : RITU BAHRI, C.J. 1. The petitioner, in the present case, vide order dated 08.08.2023, when notice of motion was issued, this Court had observed that petitioner has preferred this writ petition to assail Clause 17 of the NIT, and Clauses 4.2(c) and 4.4A(b) of the Standard Bid Document, on the ground that the same is in contravention of Office Memorandums dated 10.03.2016 and 25.07.2016, issued by the Government of India, Ministry of Micro, Small and Medium Enterprises. 2. After notice, a counter affidavit has been filed by the respondent No. 3. In paragraph 16 of their counter affidavit, the respondent has stated that the MSME Act, 2006, as per para 4 of the Policy Circular No. 1(1)(2)/2016/MA dated 10.03.2016, it has clarified that all Central Ministries/Departments/Central Public Sector Undertakings “may” relax condition of prior turnover and prior experience with respect to Micro and Small Enterprises in all public procurement subject to meeting of “Quality and Technical Specification.” 3. It is further stated that there is no provision for any kind of exemption to the tenderers under MSME in the SBD prescribed for tenders under the Pradhan Mantri Gram Sadak Yojna. The technical evaluation is done by the department as per the prevalent SBD for the said scheme and the petitioner cannot be given any relaxation in tenders of road construction. The work related to construction of motor road is carried out by the URRDA organization which requires expertise related to construction of motor roads. The MSME Act is related to the procurement of goods and services, therefore, this work is not covered by the said Act. 4. It is further stated that in the MSME Act 2006, Ministry of Finance’s office memorandums dated 10.03.2016 and 25.07.2016, it has been clearly mentioned that relaxation can be considered if the MSME applicant conforms to the quality and technical standards. 5. Counsel for the respondent has referred to the letter dated 10.03.2016, at page 67 of the writ petition. 6. This is a letter dated 10.03.2016 issued by the Ministry of Micro, Small & Medium Enterprises and a perusal of this letter shows sub-clause (3) and sub-clause (4), which reads as under: “(3) The Startups are normally Micro and Small Enterprises which may not have a tract record. 6. This is a letter dated 10.03.2016 issued by the Ministry of Micro, Small & Medium Enterprises and a perusal of this letter shows sub-clause (3) and sub-clause (4), which reads as under: “(3) The Startups are normally Micro and Small Enterprises which may not have a tract record. These will have technical capability to deliver the goods and services as per prescribed technical & quality specifications, and may not be able to meet the qualification criterion relating to prior experience-prior turnover. (4) In exercise of Para 16 of Public Procurement Policy for Micro and Small Enterprises Order 2012, it is clarified that all Central Ministries/Departments/Central Public Sector Undertakings may relax condition of prior turnover and prior experience with respect to Micro and Small Enterprises in all public procurements subject to meeting of quality and technical specifications.” 7. The letter is very clear that the benefit of relaxation is not to be given mandatorily, it can be relaxed if the respective departments want to give benefit of relaxation of prior experience term. 8. In the present case, the specific stand of the respondent, in the reply, is that construct of road is governed by SBD prescribed for tender under the Pradhan Mantri Sarak Yojna and for this, technical evaluation is done by the department as per the prevalent SBD and hence, no benefit can be given to the petitioner as per the instruction issued vide letter dated 10.03.2016 (Annexure 5 to the writ petition). Moreover, even in the said instruction, the word used is “may” and it is not “shall” hence even if apart from construction of road for any other contract, it is the department’s concern, who has to give the benefit of prior experience, which is not mandatory. 9. Hence, keeping in view the language of the letter dated 10.03.2016 (Annexure 5 to the writ petition), the writ petition is being dismissed. WPMB No. 281 of 2023 10. Since the petitioner, in this writ petition, is also claiming benefit of relaxation as per the letter dated 10.03.2016 and this benefit cannot be given to him as a matter of right. 11. This writ petition is being dismissed in terms of the earlier writ petition (WPMB No. 201 of 2023). However, the question whether the GST number was old or new number was attached, shall be kept open.