Bombay High Court
Girijamata Labour Cooperative ... vs The State Of Maharashtra And ... on 22 August, 2016
Bench: S.V. Gangapurwala
1 W.P.No.8612/15
REPORTED
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.8612 OF 2015.
Girjamata Labour Cooperative Society
Ltd., Kannad, through its Chairman
Shaikh Pashu S/o Shaikh Yasin,
Age 40 years, Occ.Director of
Aurangabad District Labour Workers
Co-operative Societies Federation
Ltd., R/o Kannad, Tq.Kannad,
Dist.Aurangabad. ... Petitioner.
Versus
1. The State of Maharashtra,
through the Secretary to the
General Administration
Department, Mantralaya,
Mumbai-32.
2. The State of Maharashtra,
through the Secretary to
the Public Works Department,
Mantralaya, Mumbai-32.
3. The Superintending Engineer,
Public Works Circle,
Aurangabad, Dist.Aurangabad. ... Respondents.
...
Mr.A.R.Devkate, advocate for the petitioner.
Mr.S.M.Ganachari, A.G.P. for the State.
...
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2 W.P.No.8612/15
CORAM : S.V.GANGAPURWALA AND
K.K.SONAWANE,JJ.
Reserved on : 12.8.2016.
Pronounced on: 22.8.2016
JUDGMENT (Per S.V.Gangapurwala,J.)
1. Rule. Rule made returnable forthwith.
With the consent of the parties, taken up for
final hearing.
2.
The petitioner assails the Government
Resolution dated 24.4.2015, stipulating e-tender
process in allotment of contracts to the Labour
Cooperative Societies above Rs.3,00,000/- (Rupees
three lacs).
3. The petitioner is a Labour Cooperative
Society consisting of labourers residing in
vicinity of Kannad, District Aurangabad. The
Labour Cooperative Societies are granted several
concessions by the Statement Government since
1948. The Government vide Resolution dated
30.3.1979, laid down the procedure while
providing works to Labour Cooperative Societies.
The concession granted by the Government
Resolution dated 30.3.1979 were modified
subsequently by various Government Resolutions.
The limit of granting the work was increased from
time to time. The Labour Cooperative Societies
were given work up to Rs.5,00,0000/- (Rupees five
lacs) without inviting tenders. Each Labour
Cooperative Society was held entitled to have
work of maximum 30,00,000/- (Rupees thirty lacs)
in a year. ig The Government vide Resolution dated
31.3.2005, earmarked the allotment of work to the
Labour Cooperative Societies to the extent of
33%, to the Educated Unemployed Engineers 33%
and to eligible registered contractors 34%. It
was decided to allot the work in these categories
of persons without inviting tender. Up to
Rs.5,00,000/- (Rupees five lacs) work was
allotted to the Labour Cooperative Societies as
per Government Resolution dated 16.11.2006. The
tenders were not to be invited. The Respondent
No.1 vide Government Resolution dated 6.8.2010,
adopted a policy to resort to e-tender process
for works more than Rs.50,00,000/- (Rupees fifty
lacs). The said limit of Rs.50,00,000/- (Rupees
fifty lacs) or more was reduced to Rs.10,00,000/-
(Rupees ten lacs) vide Government Resolution
dated 16.1.2013. Thereafter, vide Government
Resolution dated 26.11.2014, the Government took
a policy decision to allot all works above
Rs.3,00,000/- (Rupees three lacs) by e-tender
process. The directions were given to all
Government Departments, Corporations and the
Boards. Keeping in tune with the said Government
Resolution, ig Public Works Department issued a
Government Resolution dated 24.4.2015, thereby
stating that the PWD is also adopting policy of
e-tendering process for work above Rs.3,00,000/-
(Rupees three lacs) and the same is made
applicable to the Labour Cooperative Societies
and Educated Unemployed Engineers. The ratio of
allotment of work was maintained. It is this
condition of allotment of work to Labour
Cooperative Societies above Rs.3,00,000/- (Rupees
three lacs) by e-tendering process assailed in
the present Writ Petition.
4. Mr.Devkate, learned counsel for the
petitioner strenuously contends that the Labour
Cooperative Societies consist of poor and
illiterate labourers as its members. These poor
and illiterate labourers do not have enough
knowledge of the computer and the internet, as
such they will not be in a position to compete
and fill in the tenders. These Labour
Cooperative Societies are mostly situated in
rural areas, where accessibility to computer and
internet is not possible. The condition in the
Government ig Resolution dated 3l.3.2015, to call
tenders for allotting works to Labour Cooperative
Societies of more than Rs.3,00,000/- (Rupees
three lacs) is arbitrary, illegal and
unconstitutional. These Societies would be
deprived of participating in the tender process
because of the reason of their illiteracy and
non-accessibility to the internet and the
computers and the same is violative of the
Article 14 of the Constitution of India. It is
irrational and unreasonable and in such
matters,the Court can certainly intervene. This
Court in such cases would exercise the powers of
judicial review. The learned counsel relies on
the judgment of the Apex Court in a case of
"State of Madhya Pradesh and others Vs. Mala
Banerjee" reported 2015 (7) Supreme Court Cases
698.
5. The learned counsel further submits
that the condition of applicability of e-
tendering process for allotment of works to
Labour Cooperative Societies would be an embargo
upon such Societies to get any work. According
to the learned counsel, the withdrawal of benefit
of allotment of work without tendering process
permissible earlier up to Rs.15,00,000/- (Rupees
fifteen lacs) is arbitrary and the same could not
have been done without superseding the prevailing
policy. The Government Resolution dated
24.4.2015, is based on the Government Resolution
dated 26.11.2014, and the same is issued without
considering its impact on the Labour Cooperative
Societies formed of labourers who are uneducated
or less educated. The same is contrary to the
object of the labour welfare itself, hence
arbitrary and unreasonable. The learned counsel
submits that if such Societies are expected to
participate in the e-tendering process from the
computer centres available in the market, then
secrecy would not be maintained.. The bids would
be communicated to the other competitors.
6. Mr.Devkate, learned counsel further
submits that as per Government Resolution dated
16.11.2006, the Labour Cooperative Societies are
entitled to get the work up to Rs.50,00,000/-
(Rupees fifty lacs) per year and the work costing
up to Rs.15,00,000/-
ig (Rupees fifteen lacs)
without tendering process. The social view to
protect the interest of poor labourers was behind
the said Resolution. In view of the impugned
Government Resolution, the social point of view
has got a set back. The said condition in the
Government Resolution of resorting to e-tendering
process for the work above Rs.3,00,000/- (Rupees
three lacs) deserves to be quashed and set aside.
7. Mr.Ganachari, learned A.G.P. submits
that as per the Government Resolution dated
30.3.1979, at least 50% of the Membership of the
Labour Cooperative Societies shall be labourers
who themselves work on site. The Chairman of the
Labour Cooperative Societies is a person who does
all work of registration and office work of
allotment of tendering. The Chairman is an
educated person and he can do the job of e-
tendering process by various modes, such as
computers and internet connections or through
private internet cafe. The policy is altered as
per the current situation to improve the
procedure of work and to reduce the malpractices
that may ig take place in allotment of work of
greater amount. The learned A.G.P. submits
that the computers and internet connections are
widely used in village areas also through
satellites/mobile towers. There is no problem in
getting computers and internet connections
through broadband or dongles of private telecom
operators which gives service in remote villages
also. Secrecy can be maintained in computer
centers also. According to learned A.G.P., the
Central Government has started the mission
digital India, Modern India, the internet
facility is easily accessible. 33% of the work is
reserved for Labour Societies even through e-
tendering process. Hence, the work which comes
in this quota are necessarily to be allotted to
and executed by Labour Societies. As such the
Labour Cooperative Societies can not have the
apprehension of not getting the work. It would
also be clear from the letter placed on record
that in the past also Labour Cooperative
Societies have got more work than the allotted
percentage through tender process.
8. Learned A.G.P. submits that the policy
of the Government can change for the betterment
of the Society and to combat the malpractices in
allotting contracts of more value. The
Government Resolution dated 24.4.2015, is the
result of the policy decision of the Government.
The same is constitutional. The Government
Resolution dated 24.4.2015 itself states the
reason for change in the policy and it is self-
explanatory. The learned A.G.P. states that the
said policy decision is the need of the hour.
The same is reasonable and this Court may not
invoke its power of judicial review when the
policy is fair and reasonable. The learned
A.G.P. relies on the judgment of the Apex Court
in the case of "Tata Cellular Vs. Union of India"
reported in 1994 (6) Supreme Court Cases 651.
9. We have considered the submissions
canvassed by the learned counsel for respective
parties so also perused the various Government
Resolutions.
10. The Government Resolution dated
24.4.2015 is an executive action.
ig The executive
power can be exercised by issuing administrative
Orders, Circulars, Instructions or Resolutions,
so long the Legislature does not make any law on
that subject. Purely administrative decision can
be reviewed by the authority at any time provided
no constitutional provision is violated thereby
and one administrative order may be changed by
another administrative order. The Administrative
Rules or Orders may be relaxed, altered or
revoked without any formality provided there is
no legislation or statutory Rules to the contrary
and no provision of the Constitution is violated
by such change. There is no legislation or Rules
governing grant of work and the manner to grant
the work to the Labour Cooperative Societies.
Since 1979, the same was governed by the
Government Resolutions and the clauses therein
were modified from time to time by issuing
Government Resolutions.
11. Framing a policy is within the
competence of State in its executive authority.
The policy decision is in the domain of the
executive authority of the State.
ig The efficacy
or otherwise may not be questioned so long the
same does not offend any provision of the Statute
or the Constitution of India. It is not for the
Courts to consider the relative merit of the
different policies. The Court can not sit in
judgment of the policy of the Legislature or the
Executive. The Court can not strike down a
policy decision taken by the Government, merely,
because it feels that another decision would have
been more logical or wiser. It is not the
domain of the Courts to embark upon an inquiry as
to whether a particular policy is acceptable or
whether a better policy could be evolved. The
Court can only interfere if the policy framed is
irrational, arbitrary, unreasonable and thereby
offend Article 14 of the Constitution of India.
12. Earlier to the Government Resolution
dated 24.4.2015, the work above Rs.15,00,000/-
(Rupees fifteen lacs) were awarded by tender to
the Cooperative Labour Society. A general policy
is evolved under Government Resolution dated
26.11.2014, to allot the work above Rs.3,00,000/-
(Rupees three lacs) by e-tender.
ig The process to
allot the works by e-tender is brought in vogue
by Government Resolution dated 6.8.2010. At that
time, the work above Rs.50,00,000/- (Rupees fifty
lacs) was directed to be allotted by e-tender
process. Thereafter under Government Resolution
dated 16.1.2013, the limit was brought down to
Rs.10,00,000/- (Rupees ten lacs) i.e. the work
above Rs.10,00,000/- (Rupees ten lacs) was
directed to be allotted by e-tender process and
by Government Resolution dated 26.ll.2014, the
work above Rs.3,00,000/- (Rupees three lacs) is
directed to be allotted by e-tender process. The
Government Resolution dated 24.4.2015 is in tune
with the Government Resolution dated 26.11.2014.
By the impugned Government Resolution, the
directions are issued to allot the work to the
Labour Cooperative Societies and Educated
Unemployed Engineers above Rs.3,00,000/- (Rupees
three lacs) by e-tender process. The impugned
Government Resolution is in furtherance of the
general policy as laid down in Government
Resolution dated 26.11.2014.
13. The prelude to the impugned Government
Resolution also lays down the reasons for issuing
the said Resolution.
14. In this modern era the accessibility to
the internet and computers is easily available.
The policy may change with changing times and
changing circumstances. 25 years back we may
have entertained the argument of petitioner about
non-accessibility to computers and internet but
not now. The same is readily available and in
this competitive world, the Labour Cooperative
Societies also have to up-grade themselves and
keep pace with the changing times. As it is,
earlier even Labour Cooperative Societies were
required to fill in tender for getting the work
above Rs.15,00,000/- (Rupees fifteen lacs). Even
today for getting the work below Rs.3,00,000/-
(Rupees three lacs) the Labour Cooperative
Societies are not required to go through tender
process.
15. The Labour Cooperative Societies are
required to compete amongst themselves. It is
not that by impugned Government Resolution they
are required to compete with others. 33% of work
is earmarked for Labour Cooperative Societies and
it is only amongst themselves, the Labour
Cooperative Societies are competing. As such all
Members of Labour Cooperative Societies forming a
class would compete amongst themselves. There
is no discrimination or arbitrariness in the
same. On the contrary, e-tender process would
avoid the vice of malpractice and the allotment
of work would be more transparent. The said
policy is not against any statutory rule nor it
violates the constitutional mandate.
16. Even the Government Resolution dated
11.1.2008, was assailed before this Court by
W.P.No.729/2009. Under the said Government
Resolution dated 11.1.2008, the Government took a
decision to allot the work above Rs.15,00,000/-
(Rupees fifteen lacs) by tender. This Court by
its judgment dated 1.7.2009, upheld the said
Government Resolution.
17. Change in the policy of resorting to
e-tender process
ig for work above Rs.3,00,000/-
(Rupees three lacs) is necessitated because of
the changing times, administrative and other
technical difficulties, so also to make the
process of allotment of work more transparent.
18. Considering the aforesaid, there is no
merit in the Writ Petition. The Writ Petition as
such is dismissed. Rule discharged. However,
there shall be no order as to costs.
Sd/- Sd/-
(K.K.SONAWANE,J.) (S.V.GANGAPURWALA,J.)
asp/office/wp8612.15
