S.M. Enterprises vs Union Of India (Uoi)
2008 Latest Caselaw 132 Del

JUDGMENT

Gita Mittal, J.

1. By way of this writ petition, the petitioner has assailed an order dated 19th July, 2006 passed by the respondent whereby the request of the petitioner for revalidation of its enlistment as a Class 1 Contractor (Electrical) was rejected on the ground that the petitioner has failed to secure any work of appropriate nature and amount as required by the Enlistment Rules, 2001.

2. The petitioner points out that by an order passed on 15th October, 1999 upon being satisfied with the petitioner's eligibility, he was enlisted as contractor (Electrical) in the Class I category of the respondent who was eligible to tender for CPWD works in such category of contracts in the entire Indian union. Such appointment was for a period of five years in terms of Rule 7 of the Enlistment Rules, 2001 which is applied by the respondent for such enlistment. It has been contended that the petitioner had submitted tenders for award of special contracts with the respondents and has been successful for award of the contracts during his period of enlistment. The petitioner's enlistment was revalidated by an order dated 27th February, 2003 and extended up to the 14th October, 2003.

3. The petitioner made an application dated 13th October, 2003 for revalidation of the enlistment which application was pending with the respondent. However, pending consideration of the application, the respondent granted provisional extension of the enlistment by an order on 6th June, 2005. The respondent had required the petitioner to furnish additional documents in support of its pending application by a communication dated 16th November, 2005 for revalidation of the enlistment.

4. In support of the contention that the petitioner fulfillls the requirement for revalidation of the enlistment, Mrs. Salwan, learned counsel for the petitioner, places reliance on the requirement which has been notified by the respondent in para 19 of the Enlistment Rules, 2001. It is submitted that despite satisfying all requirements, by a communication dated 19th July, 2006 the respondents have illegally refused the revalidation of the petitioner's enlistment of para 21 of the said rules. This order has been assailed by way of the present writ petition on the ground that the same is arbitrary and illegal.

5. In order to appreciate the issues being raised in the present petition, it would be appropriate to first consider the rule position. I find that Rule 19 prescribes the qualification for eligibility for revalidation while Rule 21 the procedure for the same. It would be useful to consider the same in extenso and they read thus:

19.0 Revalidation of Enlistment

The validity of initial enlistment of the contractor shall be as given in para 7.0. It shall, however, be revalidated on merits if desired by the contractor. Only the contractor who has secured at least one work of appropriate magnitude in CPWD, PWD (NCTD) or CCU of Ministry of Environment and Forest during the period of enlistment/or last revalidation period of enlistment as the case may be, shall be considered for revalidation. A work completed/secured as an associate contractor of the main contractor, to whom a composite contract was/has been awarded, shall also qualify for consideration of revalidation.

21.0 Revalidation Procedure

The revalidation shall be done on the basis of review of the performance of the contractor pertaining to the period of enlistment/revalidation. Cases shall be categorised and action taken as below:

(i) Category `A' Enlistment of such contractors, who secure work(s) of appropriate magnitude during the period of enlistment/revalidation shall be considered for revalidation for a period of five years subject to evaluation of their performance.

(ii) Category `B' Enlistment of contractors, who secured work(s) of appropriate magnitude recently in the final year of their enlistment, because of which the performance cannot be properly judged, shall be extended for one year for watching the performance and then revalidated for four years, if found satisfactory.

(iii) Category `C' A contractor who could not secure any work during the enlistment period but submitted three of more tenders out of which at least 2 tendors should be during the first four years of enlistment/revalidation) for works of appropriate magnitude shall be eligible for extension of enlistment for one year, provided he was among the three lowest tenderers in at least one work, so as to enable him to try to secure at least one work. After one year, he shall be regulated in the following manner:

(a) If he has not been able to secure any work of appropriate magnitude during the extended one year, on year of expiry of his extended enlistment.

(b) If he has secured at least one work of appropriate magnitude during the extended one year, he shall be granted extension of one more year so as to watch his performance. After this one year, when his performance report is available, the same shall be evaluated and if found satisfactory, the enlistment shall be revalidated for three years.

6. Learned counsel for the respondent has vehemently objected to the grant of any relief to the writ petitioner on the ground that the petitioner was required to have secured not only a work of financial limit prescribed under Rule 19 of the Enlistment Rules but was required to complete a work which entailed internal electrification.

7. From a reading of Rules 19 and 21, it is apparent that a person seeking revalidation of the enlistment is required to secure at least one work of the appropriate magnitude of the CPWD, PWD (NCTD) or CCU of the Ministry of Environment and Forest during the prior period of enlistment or last period of revalidation, to be eligible for consideration. The magnitude of such contract has been specified in the Appendix in these rules as work which is valued at over Rs. 10,00,000/-.

8. It is noteworthy that in Rule 19, there is no categorisation or requirement prescribed with regard to the nature of the contract which such contractor is required to complete requirement is specific and only a valuation criterion stands prescribed.

9. The petitioner is aggrieved by the fact that it was awarded work at a tender cost of Rs. 13,677,84/- which was awarded to the petitioner by an order dated 17th October, 2003 or thereabout. The records in respect thereof are available with the respondent. There is no dispute that the value of this work meets the valuation requirement as envisaged under Rule 19 of the Enlistment Rules, 2001. It is also not in dispute that such work fell within the period within which the petitioner was required to have secured such work for the purposes of consideration of his application for revalidation of the enlistment. However, by the impugned order dated 19th July, 2006, the respondent appears to have arrived at a conclusion that the petitioner has failed to secure the work of appropriate nature and amount as required under the rules.

10. My attention has also been drawn to a judgment dated 23rd February, 2007 passed in W.P.(C) No. 13002/2006 entitled Alcon Builders and Engineers Private Limited v. Union of India wherein in similar circumstances, a similar office memorandum denying enlistment to the petitioner was allowed.

11. The submission of learned counsel for the respondent, which is the reason for denial of the re-enlistment to the petitioners, thus, is not supported by the very rule which has been prescribed by the respondent to govern the enlistment. The petitioner was only required to undertake such work of the magnitude which is prescribed in the rules. No nature of work has been prescribed and consequently such objection and ground under the relevant enlistment in my view is wholly misconceived.

12. In view of the above, it has to be observed that the respondent fell in error in considering that the petitioner was disentitled to revalidation of the enlistment on the ground that he had not secured work of appropriate nature and amount.

This writ petition is, therefore, allowed.

The order dated 19th July, 2006 is hereby set aside and quashed.

The respondent shall make appropriate order on the application of the petitioner seeking revalidation of the enlistment and communicate the orders thereon to the petitioner within a period of four weeks from today. Copy of this order be given dusty to counsel for the parties.