Andhra Pradesh High Court - Amravati
M/S Vijay Engineering Works vs The State Of Andhra Pradesh on 25 April, 2024
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
APHC010637932022
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3209]
(Special Original Jurisdiction)
THURSDAY, THE TWENTY FIFTH DAY OF APRIL
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION No.38077 of 2022
Between:-
M/s. Vijay Engineering Works.
.... Petitioner
And
The State of Andhra Pradesh and others.
..... Respondents
Counsel for the petitioner :Mr.V.Venugopala Rao, Senior Counsel
along with Mr.Sambasiva Pratap
Evana, Advocate.
Counsel for the respondents : G.P. for Energy.
Mr.V.R.Reddy Kovvuri (SC for APCPDCL)
Mr.Varun Byreddy
ORDER:
This Writ Petition is filed seeking the following relief:
"....to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the order of 4th respondent in Lr.No.SE.O.OGL.TECH.F.L.S.AGT.No.61/22-23, E.No.294038/2022, dated 0110.2022 awarding work agreement in favour of 5th respondent with reference to 7 numbers of 33/11 KV Sub-Stations i.e., Jandrapeta, Challareddy Palem, Pandillapalli, Addanki South, Sadhu Nagar, Ravinuthala, Yeddanapudi in operation division of 2 NJS,J WP_38077_2022 Chirala & Addanki for the period from 01.09.2022 to 31.08.2024, being bad, illegal, arbitrary, contrary to tender conditions in discharge of statutory functions, contrary to BPMS No.119, dated 01.02.1979 and the reservation policy of the State besides offending Articles 14 & 19 of Constitution of India, consequentially to set aside the same with a direction to award the said work agreement in favour of the writ petitioner being more qualified and eligible as per the reservation policy in vogue and to pass such other order or orders as this Hon'ble Court may be deem fit and proper in the circumstances of the case."
2) The relevant facts of the case as set out in the affidavit may briefly be stated thus:
3) The 2nd respondent - A.P. Central Power Distribution Company Ltd., has been maintaining 33/11 KV Sub Stations for effective and regulated power distribution and supply, for which operation and maintenance work is being entrusted to the registered contractors / licensed agencies through tender process. The works, such as recording of readings, recording of all tripping of breakers and other events correctly and accurately round the clock duly recording in the log books as per the instructions of the E.E., by observing all safety precautions, shall be attended to during contract period. In other words, the staff employed by the licensed contractors, in whose favour works are entrusted, are responsible for operation and maintenance works of Sub-Stations as entrusted under L.S. agreement during the license period. The respondent authorities entrust the said works by way of tender process and work agreement between the authorized officers and the successful 3 NJS,J WP_38077_2022 contractor would be entered into for the execution of works for the tender period.
4) Heard Mr.V.Venugopala Rao, learned Senior Counsel appearing on behalf of Mr.Sambasiva Pratap Evana, learned counsel for the petitioner.
Also heard Mr. V.R.Reddy Kovvuri, learned Standing Counsel for respondents 2 to 4 and Mr.Varun Byreddy, learned counsel for the 5 th respondent. Perused the material on record.
5) Referring to one such tender Notification dated 22.06.2022 issued by the 3rd respondent calling for tenders for carrying out manning of Sub- Stations for Operation and Maintenance on a works contract basis in the area of Krishna, Guntur, Ongole & CRDA Circles for a period of 2 years from eligible Grade-A Electrical contractors, the learned Senior Counsel advanced his arguments. He submits that the petitioner belongs to Scheduled Tribe Category, possessing Grade-A Electrical contract license and awarded contract works in respect of 33/11 KV Sub Stations of Kandukuru Division and Addanki Division, vide agreement dated 18.09.2020 for a period of two years from 01.09.2020 to 31.08.2022. He submits that pursuant to the tender Notification dated 22.06.2022 referred to above, the petitioner participated in respect of the tender specification No.ONG-27/2022-23 of Ongole Circle which consists of 7 Sub Stations i.e., Jandrapeta, Challareddypalem, Pandillapalli of Chirala Division and Addanki South, Sadhunagar, Ravinuthala, Yeddanapudi of Addanki 4 NJS,J WP_38077_2022 Division. He submits that among all the participants in respect of the said tender specification of Ongole Circle is concerned, the petitioner is possessing the eligible criteria and more deserving than the other participants. He submits that to the petitioner's information, out of 8 participants in respect of Ongole Circle, 3 belong to ST category and the other belongs to SC category. He also submits that except the petitioner, all the other seven participants did not comply with Clause 7 of tender Notification regarding eligibility for manpower supply on outsourcing, consisting of conditions A to N. He submits that despite the undisputed position that the petitioner belongs to S.T. category and possess the eligible criteria, ignoring the case of the petitioner, the contract was awarded in favour of the 5th respondent, who is otherwise not eligible. He submits that a L.S. agreement dated 01.10.2022 was awarded in favour of the 5th respondent in respect of the Ongole Circle for a period of two years i.e., 01.09.2022 to 31.08.2024.
6) While stating that as per the abstract of tender specifications in respect of Ongole Circle, specification numbers from 25 to 29 are reserved for SC and STs, he submits that not even a single Scheduled Tribe was awarded an agreement and all the five specifications were awarded only in favour of the SCs and thus the Contractors / applicants belonging to ST category, more particularly the participants like the petitioner, who belongs to ST category, are denied work agreement. The 5 NJS,J WP_38077_2022 learned Senior Counsel submits that the Scheduled Tribes in fact are more backward than the Scheduled Castes and the authorities without taking the same into consideration or giving priority to the S.T. Category, had awarded the works to Contractors, who belong to the Scheduled Caste category and the same is contrary to the reservation policy. He submits that as per B.P.Ms.No.119, dated 01.02.1979 as adopted by the 2nd respondent, the works have to be awarded in favour of the persons belonging to SCs and STs, besides Labour Contract Cooperative Societies formed by Waddera community people, but contrary to the said Board proceedings the respondent authorities have allocated all the 40 Sub Stations only to SC category, depriving the contractors of the ST category and the same is illegal and discriminatory.
7) He submits that a plain reading of the above stated Board Proceedings would categorically disclose that concessions are to be provided to SCs, STs, but the word "and" shall mean two categories separate and distinct. He contends that the plea taken by the respondent authorities that there is no separate reservation provided in the tender specification is not tenable. He submits that merely because the ratio is not provided in the specification, it would not mean that authorities can ignore one particular category and give priority to other category. Making the said submissions, the learned Senior Counsel seeks to allow the writ petition as prayed for.
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NJS,J WP_38077_2022
8) On the other hand the learned Standing Counsel representing the respondents 2 to 4 made submissions with reference to the averments made in the counter affidavit. He made efforts to impress upon the Court by contending that no particular percentage is specified for awarding of works to the ST Community. He submits that in respect of the tender specification for Ongole Circle, nine (09) bids were received from the prospective bidders, including the petitioner and respondent No.5 and as all the nine (09) bidders are meeting the eligibility criteria and as it was not practicable to award the work in favour of anyone individual, the 2 nd respondent issued proceedings dated 18.06.2022, constituting a Committee consisting of Chief General Manager (O&M), APCPDCL, General Manager (Purchase) APCPDCL, as Members and Executive Engineer (Technical/Operation Circle) concerned as the Member / Convener of the said Committee for verifying the bids and to submit a comparative statement. He submits that pursuant to the said proceedings, all the nine (09) bids were placed before the said committee and after thorough verification of the same, the 2nd respondent along with the Committee had recommended for awarding contract in favour of the 5th respondent with a view to encourage the new bidders. He submits that under the said circumstances, the decision taken by the committee to award the subject matter agreement to the 5th respondent cannot be found fault. He also submits that in fact no mala fides are attributed for 7 NJS,J WP_38077_2022 awarding the works to the 5th respondent, in the absence of which the relief as prayed for by the petitioner deserves no consideration. He also submits that the 5th respondent possessed Grade-A Electrical Contract License, therefore, the contention raised in this regard is not tenable. Making the said submissions, learned Standing counsel urges for dismissal of the Writ Petition.
9) While supporting the arguments advanced by the learned Standing Counsel for the respondent authorities, the counsel for the 5th respondent made his submissions. He argues that the contention to the effect that the 5th respondent is not holding Grade-A Electrical Contract License is not correct and the material filed along with the counter affidavit would go to show that the license was renewed and subsisting as on the date of issuance of the tender notification. He further submits that the award of agreement to the 5th respondent, who belongs to the SC category, more particularly with view to encourage the new bidders as stated in the counter affidavit of the respondent authorities, cannot be projected that the same was only to favour the SC category and it amounts to discrimination of ST category contractors. He also submits that as per the general terms and conditions of the tender notification, the 2nd respondent has got full powers to decide the tenders and in view of the same, the petitioner cannot raise any issue that the award of agreement to the 5th respondent is not valid. He also submits that the contentions 8 NJS,J WP_38077_2022 raised with reference to B.P.Ms.No.119, dated 01.02.1979 are misconceived and the respondent authorities in terms of tender specification Nos.25 to 29 were justified in awarding agreement to the 5th respondent/SC Category, more particularly in the absence of any specific reservation to the ST category. Making the said submissions, learned counsel prays for dismissal of the writ petition.
10) This Court has considered the submissions made and perused the material on record.
11) At the outset it may be appropriate to mention that though a contention with regard to the eligibility of the 5th respondent to the effect that it is not possessing the Grade-A Electrical Contract License was raised, the same merits no appreciation in the light of the material placed before this Court. Therefore, the only point that needs to be examined is whether the award of agreement impugned in the Writ Petition to the 5th respondent instead of awarding it to the petitioner, who belongs to ST category, is sustainable?
12) So far as the issue with regard to Tender Specification Nos.25 to 29 is concerned, both sides submitted that the same are reserved for SCs & STs. However, the controversy is that despite the petitioner being eligible and belong to S.T. Category, all the Sub-Stations works were awarded to S.C. Category and the same is not just, tenable as Scheduled Tribes are more backward than SCs, that the action of the respondents is contrary to 9 NJS,J WP_38077_2022 B.P.Ms.No.119, dated 01.02.1979 and discriminatory. Whereas, it is contended on behalf of the authorities that the decision to award the agreement to S.C. category was taken by the Committee referred to above, as all the 9 bidders have quoted the lowest rates and to encourage new bidders, the works were awarded to the S.C. Category. However, on examining the material on record, this Court is of the opinion that for taking such a decision, there is no basis or rationale, muchless by exclusion of S.T. Category. While a decision to award works to SC Category may be appreciable in normal circumstances, the same cannot be accepted when the specification Nos.25 to 29 contemplates reservation for SCs., as well as STs.
13) At this juncture, it may be appropriate to state that despite granting time, the minutes of the meeting of the above referred Committee were not produced nor was any material / guidelines providing for preference to new contractors of SC Category projected as a justification for selecting / awarding works to the 5th respondent filed. Further, it is not the case of the respondent authorities that the petitioner is not qualified. In such circumstances, excluding the petitioner, who belongs to S.T. Category, which is not controverted that is more backward than S.C. Category, is not just or tenable. As rightly contended by the learned Senior Counsel, the action of respondent authorities is not in tune with the policy of the 2 nd respondent as enunciated in B.P.Ms.No.119, dated 01.02.1979 and 10 NJS,J WP_38077_2022 selection of only S.C. Category by excluding S.T. Category / petitioner is not just. The decision of the Committee referred to above in awarding the agreement in the absence of any supporting material / guidelines, in the opinion of this Court is not tenable.
14) Further, the contention advanced on behalf of the respondents to the effect that in the tender specification no ratio is prescribed for STs and therefore selection of SC Category cannot be found fault with, merits no appreciation. When there is no such prescription / percentage, the authorities all the more should have acted in terms of B.P.Ms.No.119, dated 01.02.1979 and awarded two or more works to S.T. Category in respect of Tender Specification Sl.Nos.25 to 29 or atleast Sl.No.27 to the petitioner. As seen from the comparative statement furnished by the respondent authorities, it appears that there are other S.T. Category contractors, who are new. Therefore, the submission that to encourage new bidders the agreement was awarded to the 5th respondent cannot be appreciated. As the decision itself is without any basis, the interference by this Court is warranted. Though the action of the respondents may not be viewed as mala fide, but the same is arbitrary, whimsical and discriminatory.
15) In the aforesaid view of the matter, the petitioner is entitled for reliefs as prayed for. Accordingly, the Writ Petition is allowed. The impugned agreement is set aside and there shall be a direction to the 11 NJS,J WP_38077_2022 respondent authorities to entrust the works in Ongole Circle to the petitioner, within a period of two (02) weeks from the date of receipt of a copy of this order. No order as to costs.
16) Consequently, the Miscellaneous Applications pending, if any, shall stand closed.
____________________ NINALA JAYASURYA, J Date: 25.04.2024.
SSV 12 NJS,J WP_38077_2022 THE HON'BLE SRI JUSTICE NINALA JAYASURYA W.P.No.38077 of 2022 Date: 25.04.2024.
SSV