Madras High Court
Trichy Main Road vs The Principal Secretary To Government on 15 September, 2010
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15/09/2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.Nos.4314 and 4565 of 2010 AND CONNECTED MISCELLANEOUS PETITIONS W.P.No.4314 of 2010 TAHDCO Contractors Association Regn.No. 52/2001, No.29/B Trichy Main Road, Villupuram 605 602. Rep. by State Organiser R.Parthiban ... Petitioner Versus 1.The Principal Secretary to Government Adi - Dravidar and Tribal Welfare Department Fort St. George, Chennai 9. 2.The Managing Director TAHDCO, Chennai 600 101. 3.The General Manager TAHDCO, Chennai 600 101. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorari, calling for the records relating to the order in Letter No.20800/A.D.W.5/08-4 dated 08.02.2010 on the file of the 1st respondent, quash the same. For Petitioner : Mr.S.Doraisamy For Respondent-1 : Mr.S.Veeraraghavan Additional Advocate General Assisted by Mr.V.Viswanathan Additional Government Pleader For Respondents 2&3: Mr.Ramaswamy Additional Advocate General Assisted by Ms.N.Kavitha Government Advocate W.P.No.4565 of 2010 1.K.Ragavan 2.P.V.Sukumaran 3.K.Amirthanathan 4.L.Senthil Nathan 5.M.Palani 6.C.Aaron 7.C.Loganathan 8.P.Bhagavan Doss 9.C.Govindasamy 10.A.S.Mani 11.A.Azhagan 12.S.Sakthi 13.Janahipathy 14.R.Sekar ... Petitioners Versus 1.Government of Tamil Nadu Rep. by its Secretary Adi Dravidar and Tribal Welfare Department Ezhilagam, Chepauk, Chennai - 600 005. 2.Tamil Nadu Adi Dravidar Housing and Development Corporation Rep. by its General Manager Thirumangalam, Chennai 101. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of certiorari, calling for the records relating to the impugned resolution of the 2nd respondent as communicated by the petitioners' vide letter No.C/1958/2003/Tech.A4/dt. 09.02.2010 and the consequential Tender notification No.12/2009-10 dated 16.02.2010 in so far as their division permitting contractors belonging to non Scheduled Caste / Scheduled Tribes to participate in the tenders called for by the 2nd Respondent, quash the same as being illegal, arbitrary, unconstitutional. For Petitioners : Mr.N.G.R.Prasad for Mr.S.Saravana Kumar For Respondent-1 : Mr.S.Veeraraghavan Additional Advocate General Assisted by Mr.V.Viswanathan Additional Government Pleader For Respondent-2 : Mr.Ramaswamy Additional Advocate General Assisted by Ms.N.Kavitha Government Advocate COMMON ORDER
The Tamil Nadu Adi Dravidar Housing and Development Corporation (shortly "TAHDCO") was formed by the Government of Tamil Nadu during 1974. It is a company registered under the Companies Act, 1956 (Central Act of 1956) with equity participation of both Central and State Government with the prime objective of executing various works for the benefit of Scheduled Caste/ Scheduled Tribe (shortly "SC/ST") people in the State of Tamil Nadu. TAHDCO has been undertaking construction schemes like building of houses, schools, hostels, Community Halls etc., for SC/ST people.
2.The Adi-Dravidar and Tribal Welfare Department (shortly "the AD&TW Department") of the Government of Tamil Nadu, issued an order in G.O.Ms.No.2116, Adi Dravidar and Tribal Welfare Department, dated 03.11.1989 providing construction works upto the limit of Rs.6,00,000/- (Rupees Six Lakhs only) to the Engineers of SC/ST community, based on nomination. The AD&TW Department issued another order in G.O.Ms.No.132, Adi Dravidar and Tribal Welfare (ADW-5) Department, dated 15.07.1997 to entrust all the construction works of TAHDCO to SC/ST contractors alone. The Government Order also states that the SC/ST contractors did not like nomination and demanded open tender system. Accordingly, open tender system was introduced in the said G.O.(Ms)No.132, entrusting work to the SC/ST contractors.
3.One of the non-SC/ST contractors challenged the said G.O.(Ms)No.132 by filing a writ petition in W.P.No.15483 of 1997 and obtained an order of interim stay. The Government moved an application for vacating the interim stay. This Court, on 23.02.1988, vacated the interim stay, providing detailed reasons.
4.Again the said G.O.(Ms) No.132 was challenged by filing a writ petition in W.P.No.4084 of 2001 on the ground that the said Government Order is contrary to and in violation of the Tamil Nadu Transparency in Tenders Act, 1998 (Tamil Nadu Act 43 of 1998). This Court upheld the Government Order by dismissing the writ petition on 20.10.2004 in KANNAIYAN VS. THE STATE OF TAMIL NADU reported in 2004 (4) MLJ 651.
5.While so, the second respondent was of the opinion that there were not enough SC/ST contractors to meet the requirements of the construction works that are to be carried out by the second respondent, for the benefit of SC/ST people and that the available SC/ST contractors have no financial capacity to undertake big projects of the second respondent. This resulted in issuing repeated tender calls by the second respondent and the execution of works got affected.
6.Under such circumstances, the Managing Director TAHDCO wrote letters dated 31.07.2008 and 20.10.2009 expressing the aforesaid difficulties and requesting the first respondent permitting them to go for tender, inviting all contractors for participation, if there is no response for two or three tender calls from SC/ST contractors.
7.Based on the said letters dated 31.07.2008 and 20.10.2009, the Principal Secretary to the AD & TW Department, issued the impugned letter dated 08.02.2010 directing the TAHDCO to finalize the tenders to all the civil works as per the provisions of the Tamil Nadu Transparency in Tenders Act, 1998 and Tamil Nadu Transparency in Tenders Rules, 2000.
8.On the basis of the letter dated 08.02.2010 of the Principal Secretary, AD & TW Department, the General Manager of TAHDCO issued the proceedings dated 09.02.2010 to all its Executive Engineers, informing them about the authorization to call for open tender system in future permitting all the contractors as per the provisions of the Tamil Nadu Transparency in Tenders Act, 1998 and Tamil Nadu Transparency in Tenders Rules, 2000. The General Manager, TAHDCO also sought to call for tenders in their proceedings dated 09.02.2010, based on the aforesaid letter dated 08.02.2010 of the first respondent.
9.In these circumstances, the TAHDCO Contractors Association filed a writ petition in W.P.No.4314 of 2010 to quash the aforesaid letter dated 08.02.2010 of the first respondent.
10.SC/ST contractors numbering 14 filed another writ petition in W.P.No.4565 of 2010 to quash the letter dated 09.02.2010 of the General Manager, TAHDCO and the consequential tender notification dated 16.02.2010 inviting contractors belonging to other communities to participate in the tender called for by the General Manager, TAHDCO.
11.Notice was ordered on 05.03.2010 in W.P.No.4565 of 2010 and interim stay was also granted. The writ petition in W.P.No.4314 of 2010 was admitted on 09.03.2010 and interim stay was also granted. The first respondent filed counter affidavits in both the writ petitions and also filed petitions to vacate the interim stay granted by this Court. The General Manager, TAHDCO filed counter affidavit in W.P.No.4565 of 2010. The petitioners filed reply affidavits to the counter affidavits.
12.Heard the submissions made on either side and perused the materials available on record.
13.The learned counsels for the petitioners submitted that the funds allocated for the welfare of the SC/ST people are utilized for executing various schemes including construction of houses, schools, hostels, community halls etc., for the benefit of SC/ST people. G.O.(Ms)No.132 was issued by the first respondent in consonance with the directive principles of State Policy enshrined in Article 46 of the Constitution. When the said Government Order was questioned in W.P.No.15483 of 1997, the respondents filed counter affidavit and pleaded that the non-SC/ST contractors do not have the slightest inclination to complete the project meant for SC/ST people within the stipulated period and that since the entire fund was meant for construction work allotted by the AD & TW Department, the work was exclusively entrusted to the SC/ST contractors to economically empower the SC/ST community. Accepting the contentions of the respondents, this Court passed a detailed order on 23.02.1998 in W.M.P.No.24596 of 1997 and 631 of 1998 in W.P.No.15483 of 1997 vacating the interim stay of the operation of G.O.(Ms)No.132.
14.The learned counsels for the petitioners have also brought to the notice of this Court that after the enactment of Tamil Nadu Transparency in Tenders Act, 1998, the said G.O.(Ms)No.132 was sought to be challenged again and that this Court sustained the G.O. in the judgment reported in 2004 (4) MLJ 651. It is further submitted that when the Managing Director, TAHDCO wrote the letters dated 31.07.2008 and 20.10.2009 seeking for participation of non-SC/ST contractors also, whenever there are no SC/ST contractors to take up the work, the first respondent issued the impugned letter totally taking away the benefits enjoyed by the SC/ST contractors. The effect of the impugned letter is scrapping the G.O.(Ms).No.132. According to the learned counsels, it is impermissible, since the G.O. was issued with the executive power of the Government, while the Principal Secretary to the Government withdrew the benefits granted in G.O.(Ms) No.132, by way of the impugned letter. According to the learned counsels, the said Government Order would prevail over the impugned letter.
15.In this regard, the learned counsels for the petitioners relied on a judgment of this Court in K.SAMPATH VS. STATE OF TAMIL NADU reported in 2007 Writ L.R. 521. They also relied on a Division Bench judgment dated 28.02.2008 of this Court in W.A.No.740 of 2007 upholding the contract awarded to Sanitary workers by the local Bodies.
16.The learned counsels for the petitioners contended that G.O.(Ms)No.132 conferred certain benefits to SC/ST contractors in tune with the constitutional scheme. According to them, Article 15(4) of the Constitution has to be read into Article 46 of the Constitution so as to enforce fundamental rights guaranteed to the SC/ST people under Article 15(4) of the Constitution. The learned counsel further submitted that while the second respondent sought for participation of non-SC/ST contractors only when the SC/ST contracts are not available, the impugned letter takes away the benefits granted in G.O.(Ms)No.132. Hence, the impugned letter dated 08.02.2010 issued to the Managing Director, TAHDCO was without application of mind.
17.The learned counsels for the petitioners further contended that the impugned letter solely relies on the Tamil Nadu Transparency in Tenders Act, 1998 for taking away the benefits granted to SC/ST contractors in G.O.(Ms)No.132. The first respondent defended the G.O.(Ms)No.132 stating that G.O.(Ms)No.132 was in consonance with the constitutional scheme and that therefore, the same could not be struck down based on the statutory provisions. They also brought to the notice of this Court that Article 17 of the Constitution abolishing untouchability as well as Article 16(4) of the Constitution providing employment opportunities. They also brought to the notice of this Court that in tune with the constitutional scheme, reservation is provided in the local Bodies, State Legislatures and Parliament for SC/ST community so that they should take part in the governance of this Country. Thus, the first respondent proceeded contrary to their own pleadings made before this Court at more than one occasions. They also relied on the special provisions relating to SC/STs' in Chapter XXXVI of the Constitution including the constitution of National Commission for SC/STs' under this Chapter. They elaborately made submissions that even after all these measures, the SC/ST people still live in starving conditions.
18.The learned counsels for the petitioners have taken me through the typed set filed by the General Manager, TAHDCO and pleaded that when compared to the large volume of work carried out by the SC/ST contractors, the alleged repeated calling of tenders is relating to only a negligible portion of work. Even this was due to the policy of the respondents 1 and 2. It is submitted as an illustration that while PWD constructs a hostel for boarding and lodging of 50 students belonging to BC community, the amount sanctioned for such construction is much more than the amount sanctioned for construction of similar hostel in the case of SC/ST students. It is also stated that delay is also due to non-handing over of sites and encroachment in the work sites and also due to paucity of the Engineers in the respondent TAHDCO.
19.On the other hand, Mr.Veeraragavan, learned Additional Advocate General submitted that the impugned letter was passed, taking into account the interest of vast masses of SC/ST people. It is submitted that the interest of the SC/ST people is paramount and not the interest of the SC/ST contractors. Since the schemes meant for SC/ST people are not completed in time by SC/ST contractors due to their non-availability, the first respondent had no option, except to call for others to carry out the work, so that the benefits could reach the SC/ST people at the earliest. Hence, the impugned letter is not in conflict with the constitutional goal.
20.Mr.Ramasamy, learned Additional Advocate General submitted that the letter dated 09.02.2010 of the General Manager, TAHDCO is the consequential order and they simply followed the directions of the first respondent, as they are bound to follow the directives of the first respondent.
21.The learned Additional Advocate General for TAHDCO fairly submitted that the conditions prohibiting the SC/ST contractors participating in one division to participate in other divisions is arbitrary and illegal and the same could be looked into and it could be set right.
22.I have considered the submissions made on either side. The respondent TAHDCO was established in 1974 to carry out the various schemes for the benefit of SC/ST people. The respondent TAHDCO is involved in constructing houses, hostels, schools, community halls etc., exclusively for the benefit of SC/ST people. Funds are allocated by the first respondent meant for SC/ST people. The respondent TAHDCO also executes some of the schemes of NABARD for upliftment of SC/ST people. While the PWD authorities does not prohibit the contractors of one division to participate in the tenders in other divisions all over Tamil Nadu, the respondent TAHDCO prohibits such participation. The SC/ST contractors registered in a division of the respondent - TAHDCO, cannot take up work in other divisions, even if there is no SC/ST contractor coming forward to take up work at that place. The learned Additional Advocate General has fairly admitted before this Court that such a condition imposed by the respondent TAHDCO is arbitrary and the same could be set right. The TAHDCO need not go for repeated tenders in same cases for want of SC/ST contractors, if such deficiencies are attended.
23.In the year 1989, the first respondent issued an order in G.O.(Ms) No.2116, entrusting some work up to the limit of Rs.6,00,000/- (Rupees Six Lakhs only) by resorting to nominating SC/ST contractors. The SC/ST people themselves did not like the nomination method. They wanted open tender system confining to SC/ST contractors. In these circumstances, the first respondent issued the G.O.(Ms) No.132, which is extracted hereunder:
VERNACULAR (TAMIL) PORTION DELETED
24.The said G.O.(Ms) No.132 was put to challenge by a non-SC/ST contractor, as he was excluded from taking work from the respondent - TAHDCO. He was handling work for the respondent - TAHDCO before the issuance of G.O.(Ms)No.132. Hence, he filed a writ petition in W.P.No.15483 of 1997 to quash the aforesaid G.O.(Ms) No.132. It was his contention that exclusion of other communities, is unconstitutional and illegal.
25.On the other hand, the learned Additional Advocate General appearing for the respondents sought to sustain the Government Order. Accepting the view point of the respondents, this Court vacated the interim order granted earlier. The pleadings of the first respondent made therein for vacating the interim stay is incorporated in para 7 of the said order and the same is extracted hereunder:
"7. While dealing with the impugned Government Order the respondents state that the Government had taken into account the interest of Scheduled Castes and Scheduled Tribes and that the petitioner was under a wrong notion that the works up to Rs.6 lakhs alone are reserved to diploma and degree holders belong to the S.C./S.T. contractors. It was further submitted that having regard to Article 46 of the Constitution of India being one of the directive principles of the State Policy and Article 15(1) of the Constitution, the Government had acted entirely in the interest of the economic advancement of S.C. and S.T. and therefore, the impugned G.O. was well within the provisions of the Constitution. Besides, the Corporation, and organization with a history of 23 years, had been undertaking construction activities of houses, schools, hostels, community halls etc. for the welfare of Scheduled Caste and Scheduled Tribes communities, and most of the tenders were from communities other than S.C./S.T. who do not have the slightest inclination to complete the project within the stipulated period. It was felt that when S.C./S.T. communities it was expected that there will be a better motivation for them to complete the project in time and that in fact in the case of the petitioner himself who was awarded 14 works there were considerable delay in his execution of the work beyond the agreement period. The works undertaken by the TADCO was very much lesser when compared to other departments/agencies of the Government, and as such the contention of the petitioner, that persons like him have been deprives of their livelihood was nor correct. The petitioner was a registered contractor with the Public Works Department and there was no basis for the contention of the petitioner."
26.The reasoning of this Court are found at paras 14 to 16 and 18 in the said order and the same are extracted hereunder:
"14.As stated earlier the impugned G.O. is only restricted to works for which allocation of funds have been exclusively for the benefit of Scheduled Caste community and Scheduled Tribe community. Article 46 of the Constitution of India reads as thus:
"The State shall promote within special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation."
The expression "economic interests of the weaker section of the people" would assume significance and the Supreme Court in several judgments have upheld the actions of the State in favour of the depressed classes of the said provisions. In A.I.R.1985 S.C., 389, the Supreme Court dealt with the validity of Sections 3 and 4 of the Maharashtra Restoration of Lands to Scheduled Tribes Act,1975 wherein it was provided for annulment of transfers of lands made by the members of the Scheduled Tribes and for the restoration of the lands to them on certain conditions. The provisions of the Act was held to be valid on the ground that it was an illustration of the concept of distributive justice and that the Legislation was intended to remove economic inequalities and rectifying the injustice as between unequal as in the society.
15. In A.I.R. 1994 S.C. 721,9 STATE OF KERALA V. JOSEPH ANTHONY) the ban on fishing by mechanized nets for protecting the source of livelihood of the already impoverished mass of fishermen in the State was upheld by the Supreme Court.
16. Therefore, there is enough prima facie, power with the State Government to make a provision of the betterment of the downtrodden communities. To repeat what has already been stated, the activities of the TADCO relate only to such of those works for which budgetary allocations have been made specifically for development of members belonging to the Scheduled Castes and Scheduled Tribes communities.
.....
18. As regards the contention that the State would stand to lose in restricting the area of the contractors to bid at the auction, it has to be borne in mind that the basic qualifications of the contractors belonging to the Scheduled Castes and Scheduled Tribes communities are not relaxed and it is only such of those qualified persons belong to the respective communities who are qualified to bid at the auction. The impugned Government Order also ensures that the tenders shall be awarded only by open method and not by closed nomination method which is also tended to eliminate any arbitrariness in choosing of the contractors. Therefore, the interest of Government is prima facie, adequately protected and there is no basis for the apprehensions expressed by the petitioner."
27.After the Tamil Nadu Transparency in Tenders Act, 1998 was enacted, again an attempt was made to question the G.O(Ms)No.132 by filing a writ petition in W.P.No.4084 of 2001. This Court considered in detail and dismissed the writ petition in KANNAIYAN VS. STATE OF TAMIL NADU reported in 2004 (4) MLJ 651. Paras 13, 14 and 15 of the said judgment are extracted hereunder:
"13.Art.15(4) which was inserted by the Constitution First Amendment Act 1951, may be the answer for most of the doubts raised on the part of the petitioner and therefore, it is necessary to extract Art.15(4) of the Constitution of India.
"Nothing in this Article or in clause (2) of the Art.29 shall prevent the State from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and Scheduled Tribes".
This Art.15(4) not only contains Art.15(1) and (2) but also Art.29(2) as well.
14.The scope and object of this clause is to bring Articles 15 and 29 in line with Articles 16 (4), 46 and 340 and to make it constitutional for the State to reserve seats for backward classes of citizens, scheduled castes and Tribes in the public educational institutions as well as to make other special provisions as may be necessary for their advancement. In short, the amendment would validate the reservation and would protect the interests of the scheduled castes and scheduled tribes. Art.15(4) is an exception to Art.15(1) in so far as it forbids discrimination on the ground of race or caste. It is also in the nature of an exception to Art.29(2).
15.No doubt that in general statutory provisions of law have the overriding effect on the Government Orders passed but since this Government Order which is impugned herein has been issued in consonance with the enabling provisions of the Constitution particularly under Art.15(4) of the Constitution of India aimed at the advancement of the socially and economically backward sections of the society as a special provision, the Government Order has been issued by the first respondent State Government and further since the statute cannot override a constitutional right. Though it apparently looks as if the statute has been overridden by the Government Order, if it is seen in the light of Art.15(4), the Government Order can be given effect to and it cannot be said that the statute is being overridden especially when the fundamental obligation of the State is given effect to for the purpose of giving effect to Art.15(4) of the Constitution of India. Moreover in its recent judgments rendered by the Hon'ble Apex Court reported in (2004) 6 SCC, 36 as settled law to the effect saying that "Constitution right cannot be taken away by a statute notwithstanding anything contained contrary in its sense any other law for the time being in force".
28.This Court categorically held that the G.O(Ms) No.132 is in conformity with Article 15(4) of the Constitution. Relying on the decision of the Honourable Apex Court reported in 2004 (6) SCC 36, it is categorically held that the constitutional right cannot be taken away by a statute. It is relevant that the respondents sought to sustain the G.O.(Ms)No.132 and this Court also agreed with the submissions made by the learned Additional Government Pleader for the respondents.
29.While so, the Managing Director TAHDCO wrote a letter dated 31.07.2008 to the first respondent expressing certain difficulties as the SC/ST contractors were not available to carry out works and that therefore, they were to go for tender again and again. The relevant portion of the said letter is extracted hereunder:
"Under the above circumstances we request the government to issue suitable amendment to the order cited in 1st reference that if there is no response for two tender calls from SC/ST contractors, then the third tender call will be open to all contractors for participation. We request early orders in this regard."
30.The Managing Director TAHDCO wrote another letter dated 20.10.2009 to the first respondent on the same lines. The relevant portion of the said letter is extracted hereunder:
"Therefore in view of overall benefits to the SC/ST community and corporation we request the Government to issue suitable amendment to the G.O.132/AD&TWD/dt 15.07.1999 as follows:
"Preference would be given to SC/ST contractors. In case of non availability of SC/ST contractor or not capable of taking up particular work, the same may be entrusted to other contractors as per tender transparency act."
31.While the respondent TAHDCO wanted to engage other contractors only when SC/ST contractors are not available, the first respondent issued the impugned letter totally scrapping G.O.Ms.No.132, solely basing on the aforesaid letters dated 31.07.2008 and 20.10.2009 of the Managing Director - TAHDCO. Hence, the learned counsels for the petitioners are fully justified in their contentions that the impugned order was passed without application of mind. In fact, the learned Additional Advocate General representing the TAHDCO simply submitted that they are bound to follow the directions issued by the first respondent. The learned Additional Advocate General also made it clear that whatever directions that are issued by the first respondent, they should follow. In effect, the learned Additional Advocate General did not support the contents of the impugned letter and on the other hand, his submission was that the TAHDCO being the company under the control of the first respondent, they are bound to carry out the directions issued by the first respondent.
32.As already stated above, the learned Additional Advocate General representing the TAHDCO fairly submitted that clause 2 of the order dated 28.03.2008 issued by the General Manager TAHDCO entrusting work to one of the petitioners in W.P.No.4565 of 2010 with a condition that he could not take up work in other divisions, is arbitrary and illegal. It is also submitted that such a clause could be deleted in future.
33.As rightly contended by the learned counsels for the petitioners, on the one hand, the respondent TAHDCO states that there are no sufficient SC/ST contractors and on the other hand, they do not permit the SC/ST contractors in one division to take up the work in other division, even if there are no SC/ST contractors in that division. Further, as rightly contended by the learned counsels for the petitioners, from the details furnished by the respondent TAHDCO, the number of works for which repeated tender calls were made, were a few when compared to the total number of works carried out by the second respondent. Even the letter dated 31.07.2008 referred to above, made it clear that there are substantial number of SC/ST contractors. As per the said letter, there are 164 Nos. of ClassI SC/ST contractors, 125 Nos. of ClassII SC/ST contractors and 20 Nos. of ClassIII SC/ST contractors, registered with them.
34.In para 15 of the counter affidavit filed by the General Manager TAHDCO in W.P.No.4565 of 2010, it is stated that there are 200 Nos. of SC/ST contractors during the year 2007-2008, 330 Nos. of SC/ST contractors during the year 2008-2009 and 327 Nos. of SC/ST contractors during the year 2009-2010.
35.In the Board note dated 23.02.2008 of the respondent TAHDCO, it has been stated that there are 182 Nos. of ClassI SC/ST contractors, 32 Nos. of ClassII SC/ST contractors and 22 Nos. of ClassIII SC/ST contractors for the whole 9 divisions.
36.Both the petitioners have filed reply affidavits stating that the respondent TAHDCO follows a different yard stick in the matter of construction works to SC/ST contractors. According to them, it is nothing but practicing untouchability forbidden by the Constitution. Para 14 of the reply affidavit filed in W.P.No.4565 of 2010 is extracted hereunder:
"14.With regard to para 8, I submit the 2nd Respondent deliberately fix less estimate value for execution of the contract work. For example, for constructing 50 students Hostel for Most Backward class students, the Government vide GO(Permanent) No.80 dt.28.08.2007 has fixed Rs.48 lakhs as the cost for construction, whereas the 2nd Respondent is fixing only Rs.35 lakhs for constructing similar 50 students Hostel for SC/ST. Therefore the 2nd Respondent cannot expect the contractors to take up the works for such low rate. Further the Respondents are not permitting the SC/ST contractors registered in one district to take up the contract in another district. Inspite of pointing out the above, the Respondents deliberately fixing such low value. This would show their hostile attitude towards poor contractors like us. Inspite of such situation, we are taking up the work with the 2nd Respondent and executing the same to the best of our ability........."
37.This statement of fact is not disputed by the respondent - TAHDCO. Even the letters dated 31.07.2008 and 20.10.2009 of the Managing Director TAHDCO enclosed in the typed set of papers stated various reasons for non-execution of work within the stipulated period. Those reasons are: (i) not handing over sites to the contractors (ii) disputes in sites etc. It is also pleaded as well as argued by the learned counsels for the petitioners that there are paucity of Engineers employed by the respondent - TAHDCO and that also affects the carrying out the work for the benefit of SC/ST people. They have also stated that there is no significant increase in the number of Engineers when compared to the establishment of the respondent TAHDCO in 1974. If all these deficiencies are made good, the respondent TAHDCO need not go for repeated tenders.
38.Furthermore, the learned counsels for the petitioners are also correct in their submissions that the impugned letter of the Principal Secretary to AD&TW Department cannot override the Government Order in G.O.(Ms)No.132 issued by the Government, under its executive power in the name of the Governor. The decision reported in 2007 Writ L.R.521 relied on by the learned counsels for the petitioners squarely applies to this case. Para 9 of the said judgment is extracted hereunder:
"9.The reasons stated in the impugned order stating that in view of the subsequent clarification issued by the Government by letter dated 04.10.2000 clarifying G.O.Ms.No.118 dated 14.02.1996, is totally illegal since the Government order issued with the executive power of the Government in the name of the Governor cannot be clarified by a letter of the Secretary to Government admittedly no amendment to G.O.Ms.No.118 dated 14.02.1996 is issued and therefore the Government order will prevail over the subsequent Government letter."
39.In my view, the learned counsels for the petitioners are correct in their submissions that mere providing some employment is not the contemplation of the constitutional scheme and the SC/ST community are to be economically empowered and the constitutional provision in Article 46 should be given effect to. The learned counsels are also correct in their submissions that G.O.Ms.No.132 is in consonance with the provisions of Article 46 of the Constitution. Article 46 of the Constitution is extracted hereunder:
"46.Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. - The State shall promote within special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation."
40.It is made clear that the constitutional goal is to advance the economic interest of the SC/ST community. G.O.Ms.No.132 was issued to fulfill the constitutional obligations in terms of Article 46 of the Constitution read with Article 15(4) of the Constitution. As rightly contended by the learned counsels for the petitioners, the constitutional scheme provides for overall upliftment of SC/ST community by providing in Chapter XXXVI ensuring their representation in State Legislatures and Parliament and also establishing National Commission for SC/ST community. Even after all these measures taken by the Government, still the vast majority of SC/ST people live under the poverty line. Though the Constitution prohibits untouchability, it is national shame that untouchability is still in practice and as rightly contended by the learned counsels for the petitioners, two tumbler systems are in vogue in many places in the countryside even now.
41.At this juncture, it is relevant to quote the judgment of the Honourable Apex Court in STATE OF KARNATAKA VS. APPA BALU INGALE AND OTHERS reported in 1995 SUPP (4) SCC 469. In the said case, Harijans were not allowed to take water from the public well and that resulted in initiating prosecution under the Protection of Civil Rights Act, 1955. The Trial Court convicted the accused and the appellate Court confirmed the same. But the High Court reversed the same and the Honourable Apex Court restored the conviction. While restoring conviction, the Honourable Apex Court observed as follows:
"16.Poverty and penury made the Dalits dependants and they became vulnerable to oppression. The slightest attempt to assert equality or its perceived exercise receives the ire of the dominant sections of the society and the Dalits would become the object of atrocities and oppression. The lack of resources made the Dalits vulnerable to economic and social boycott. Their abject poverty and dependence on the upper classes in rural India for livelihood stands as a constant constraint to their exercising their rights social, legal or constitutional, though guaranteed. Thus they have neither money, capacity, influence nor means to vindicate their rights except occasional collective action which would be defused or frittered away by pressures through diverse forms. Consequently most of the Dalits are continuing to languish under the yoke of the practice of untouchability. The State has the duty to protect them and render social justice to them."
42.The learned counsels for the petitioners are also correct in their submissions that still the honour killing take place whenever there is an inter-caste marriage with SC/ST people and the Honourable Apex Court strenuously deprecated those honour killings.
43.The learned Additional Advocate General is not able to explain as to why the first respondent issued the impugned letter scrapping G.O.Ms.No.132, when the Managing Director, TAHDCO sent letters dated 31.07.2008 and 20.10.2009 requesting the first respondent to call for tender from non-SC/ST contractors also, only when SC/ST people were not available.
44.In the aforesaid facts and circumstances, I am of the view that the impugned letter dated 08.02.2010 issued by the first respondent as well as the subsequent letter dated 09.02.2010 issued by the second respondent are to be quashed and accordingly, the impugned orders are quashed and the writ petitions are allowed. No costs. Consequently, connected miscellaneous petitions are closed.
TK/RNS To
1.The Principal Secretary to Government Adi Dravidar and Tribal Welfare Department Fort St. George, Chennai 9.
2.The Managing Director TAHDCO, Chennai 600 101.
3.The General Manager TAHDCO, Chennai 600 101.
4.The General Manager (Tech) Tamil Nadu Adi Dravidar Housing and Development Corporation TNHB Shopping Complex, Thirumangalam, Chennai 101