Delhi High Court
M/S Jia Lal Malhotra & Co vs Union Of India on 10 February, 2015
Author: Rajiv Shakdher
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7900/2014 and CM No.18508/2014 (stay)
M/S JIA LAL MALHOTRA & CO ..... Petitioner
Through: Ms. Anusuya Salwan and Mr. Kunal
Kohli, Advocates
versus
UNION OF INDIA ..... Respondent
Through: Ms. Suparna Srivastava, CGSC with Mr.
Kumar Harsh and Ms. Nishtha Sikroria, Advocates
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 10.02.2015
1. Briefly, the grievance of the petitioner is that its request for
revalidation of enlistment as a Class-II contractor has not been considered
fairly.
2. I must only note that this is a second round of litigation initiated by
the petitioner, which had in the earlier round, come to the court assailing,
broadly, the provisions of Rule 19 of the Rules of Enlistment of Contractors
in Central Public Works Department, 2005 (in short 2005 Rules).
2.1 This challenge was laid by the petitioner via a writ petition, filed
under Article 226 of the Constitution; which was numbered as : WP(C)
5028/2012.
2.2 Fortunately, for the petitioner, during the pendency of the
aforementioned writ petition, the said rule was amended by the respondent,
which, in a sense assuaged substantially the petitioner's grievance. This
aspect of the matter is reflected in this court's order dated 02.04.2013,
passed in WP(C) 5028/2012.
2.3 As a matter of fact, a perusal of the said order would show that an
order had been issued on 11.12.2012 by the respondent, whereby the
petitioner's enlistment had been revalidated for a period of one year; albeit
with effect from 05.06.2012.
2.4 As noticed in this court order dated 02.04.2013, by the time things got
sorted out, the petitioner had merely two (2) months left of the revalidation
period. The office order dated 11.12.2012 of the respondent also indicates
that the revalidation was made qua the petitioner in the lower class, i.e.,
class-II.
2.5 The aforementioned writ came to be disposed of on 09.01.2014,
whereby, while disposing of the writ petition, the petitioner was given an
opportunity to move an application with the Special Director General (Delhi
Region), CPWD for grant of an appropriate relief in the matter.
2.6 The concerned officer was thus, directed to dispose of the application,
if made, within a period of six months. There is no dispute that an
application was made by the petitioner pursuant to order dated 09.01.2014,
on 21.01.2014. This application came to be disposed of on 27.10.2014. The
operative directions contained in the said communication of the respondent
are as follows :-
"..Your application has been placed before the Advisory
Committee Meeting held on 26.09.2014 and the Advisory
Committee has gone through your case and decided that "you
have not fulfilled criteria as per the clause 19 of the
Enlistment Rules 2005"; i.e., "only the contractors who have
secured some work (s) of appropriate magnitude in CPWD,
PWD (NCTD) or CCU of Ministry of Environment and Forest
as well as Central Government Department / State
Government Department / Central Autonomous body / State
Autonomous Body / Central Public Sector Undertaking / State
Public Sector Undertaking provided the agency must have
participated in tendering process for at least 3 works in
CPWD, PWD or CCU of Ministry of Environment of forest
(with documentary proof) during the last period of enlistment
or revalidation period as case may be".
As such you have not fulfilled the above criteria / condition
and the same is evident from your letter dated 28.07.2014.
The Enlistment Authority has decided that as you are not
fulfilling the Clause 19 of Enlistment Rules 2005, the
application dated 21.01.2014 submitted for revalidation in
Class-II (Civil) category is rejected.."
(emphasis is mine)
3. The learned counsel for the petitioner says that the order is clearly
unfair for the following reasons :-
(i). That the petitioner was enlisted as a class-1 contractor by the CPWD
for the first time in 1971 and, continued as such till 2008.
(ii) During its enlistment, the petitioner, has executed several important
works of high value; the details of which are provided in paragraph 2 of the
rejoinder filed in the matter.
(iii). The revalidation order dated 11.12.2012, while providing for a tenure
one year, had excised six (6) months, as it was made effective from
05.06.2012.
3.1 In sum, the learned counsel for the petitioner says that, the petitioner,
cannot fulfil the condition of having participated in at least three (3) tenders
of the CPWD, which is the prime reason given in the communication dated
27.10.2014, for rejecting its application, till such time its enlistment is
revalidated for a reasonable period of time.
4. Ms. Srivastava, who appears for the respondent has brought to fore
the perspective of the Department. It is her contention that the contractors,
such as the petitioner, use the enlistment ladder (in a manner of speech) of
the CPWD to obtain other lucrative works, without bothering to participate
in the tenders floated by the respondent. She says that the respondent is
wanting to put a stop to such a practice.
4.1 According to Ms. Srivastava, it is in this context, that the eligibility
condition put in place, which requires of the contractor desirous of
enlistment to have participated in at least three (3) works of CPWD, PWD or
CCU of the Ministry of Environment and Forest - needs to be looked at.
5. I have considered the contentions of both sides. I must confess that
Ms. Srivastava's contention has much weight. The contractors, cannot use,
the device of enlistment with CPWD, to obtain other lucrative contracts and,
not, participate, in bidding for public works of such like departments. There
can be no doubt that the contractors wishing to avail of the benefits, that get
generated by enlistment with CPWD, should also participate in the tenders
floated by such departments.
5.1 The petitioner, apparently, has been remiss in participating in the
tenders of the CPWD even while its enlistment was valid. According to Ms.
Srivastava, the petitioner's enlistment was valid between 2008 and August,
2012.
5.2 Having said so, I am also of the view that, if nothing less, at least, the
order dated 11.12.2012, was clearly unfair, whereby respondent for
whatever reasons decided to revalidate the petitioner's enlistment for a
period of one (1) year even while lopping off six (6) months of the
revalidation period.
5.3 Ms. Salwan's submission that the petitioner cannot correct course
unless it is given an opportunity to participate in the tenders by extending
the period of validation by a reasonable period of time, has merit.
6. In these circumstances, I am of the opinion that the respondent should
extend the revalidation period for enlistment for one (1) year.
6.1 An order to that effect will be communicated to the petitioner, within
four weeks. The period of one (1) year will commence from the date of the
communication of the order. The respondent, will be at liberty to review the
performance of the petitioner during the revalidation period so as to assess
for itself whether or not the petitioner participated in the tenders floated by
it.
7. With the aforesaid directions in place, the captioned petition and the
pending application are disposed of.
RAJIV SHAKDHER, J
FEBRUARY 10, 2015
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