Uttarakhand High Court
Anusuya Prasad Nautiyal vs Union Of India And Others on 21 February, 2024
HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE HON'BLE CHIEF JUSTICE MS. RITU BAHRI
AND
THE HON'BLE JUSTICE SRI RAKESH THAPLIYAL
21st February, 2024
Writ Petition (M/B) No. 201 of 2023
Anusuya Prasad Nautiyal ........Petitioner
Versus
Union of India and others ........Respondents
With
Writ Petition (M/B) No. 281 of 2023
Anusuya Prasad Nautiyal ........Petitioner
Versus
State of Uttarakhand and others ........Respondents
Counsel for the petitioner : Mr. Navnish Negi, learned counsel
Mr. Shobhit Saharia learned counsel
Counsel for the State of : Ms. Rajni Supyal, learned Brief
Uttarakhand Holder
Counsel for the Central : Mr. Rajesh Sharma, learned counsel
Government
Counsel for respondent No. 3 : Mr. S.S. Chauhan, learned counsel
Counsel for respondent No. 4 : Mr. Mahendra Singh Rawat, learned
counsel
Upon hearing the learned Counsel, the Court made the
following:
Judgment: (per Ms. Ritu Bahri, C.J.)
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
2
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
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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.
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
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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.
___________________________
Ritu Bahri, C.J.
___________________________
Rakesh Thapliyal, J.
Dt: 21st February, 2024
S/M
