Delhi High Court
Tejinder Kumar Dua vs Uoi And Anr. on 1 August, 2002
Author: J.D. Kapoor
Bench: J.D. Kapoor
JUDGMENT J.D. Kapoor, J.
1. This petition was dismissed by order dated 5.4.2002 for non-prosecution. Petitioner thereafter filed C.M. 4975/2002 for its restoration. While this application was being considered, both parties agreed for disposal of this petition on merits.
2. Petitioner a Class-I contractor was registered with CPWD in 1991. His enlistment was revalidated from time to time and last such revalidation ended on 5.6.2000. He sought its extension but respondents refused to grant it on the ground that he had failed to obtain requisite marks in terms of procedure provided for such revalidation under Office Memorandum (in short 'O.M.') dated 27.6.1995. Feeling aggrieved he has filed this petition on the ground that respondent had wrongly assessed his performance and declined revalidation of enlistment.
3. The procedure for revalidation of enlistment has been broadly mentioned in O.M. dated 27.6.1995. Under the aforesaid O.M., a contractor is required to submit along with his application a list of all the works executed/completed or in progress which for Class-I contractor is Rs. 60 lakhs during the last five years in CPWD. He is required to secure and execute at least one work in the last five years in CPWD. The overall grading of the contractor is based on the average of marks for all the completed works and if he secures 35 or more marks out of 100 in the overall grading, he will be entitled for revalidation of enlistment for a period of five years from the date of issue. Under the aforesaid O.M. for revalidation, the petitioner was required to secure 35 marks out of 100. which provides that there will be separate evaluation sheet for each completed work indicated by the contractor.
4. Admittedly the petitioner while submitting the application for revalidation furnished the details of work "Construction of Link Road Delhi" which are as under:-
"(i) Estimated cost put to tender : Rs. 1,15,91,600/-
(ii) Tendered Cost : Rs. 1,16,56,344/-
(iii) Gross amount of Final Bill : Rs. 1,93,01,860/-
(iv) Stipulated date of start & : 24.8.95 & completion 23.4.96
(v) Actual date of completion : 28.3.2000"
5. As is apparent, the aforesaid work was got delayed for 1435 days which according to the petitioner was due to various hindrances attributable to the respondents and increase in the magnitude of the work.
6. The grievance of the petitioner is that in spite of Assistant Engineer in charge of the work having justified delay for 1595 days for various hindrances which are not attributable to the petitioner against 1435 days taken by the petitioner for completion of work and the Executive Engineer having justified 1337 days which is not attributable to the petitioner, the Project Manger who is the overall final supervisory authority awarded nol mark under this head which is technically known as 'Time Over Run' (in short 'tor') and this violation alone became responsible for rejection of revalidation of enlistment. However, the Project Manager held the petitioner responsible for 126 days delay out of 1435 days delay and levied a compensation @ 0.25% under Clause 2 of the agreement for this period. This petitioner has also taken refuge of the formula for awarding marks under item 'tor'. The said formula is as under:-
"Parameter Calculation for points Score Maximum Marks Time over A. Stipulated Time=ST run=tor Actual Time=AT tor = AT/ST 50 marks if turn = 1 40 marks if turn = 2"
7. Though he claims on the basis of report of Assistant Engineer and Executive Engineer he was entitled for at least 40 marks under this title but if the report of the Project Manager which though is illegal and wrong is acted upon, the petitioner is not entitled to any marks out of 10 marks.
8. It appears that Mr. G. Lal, learned counsel for the petitioner has proceeded on entirely misconceived notion that the competent authority was obliged to accept the report of Assistant or Executive Engineer and for that purpose Project Manager. The final authority for awarding the performance of the petitioner was Superintending Engineer and number of factors were to be taken into consideration while revalidating the enlistment. Some of these are tor, quality of work, cost of work executed on reduced rates and general behavior of contractor.
9. Admittedly the petitioner was enlisted with CPWD as Class-I Contractor in 1991. The earlier revalidation of the petitioner enlistment in 1995 was done for five years by adopting the same criteria as mentioned in memorandum dated 27.6.1995. The petitioner has applied for further five years revalidation w.e.f. 5.6.2000. This time he has failed to secure qualifying marks on account of turn in respect of single contract secured and executed.
10. It is not that awarding nil mark under turn is without any basis or perverse. It is also admitted position that Superintending Engineer/Project Manager was the competent authority to decide extension of time under Clause 2 of the agreement of work "construction of link road Delhi" executed by the petitioner and that his decision was final. We find that Project Manager has calculated and agreed for a total justified hindrances period of 1309 days against 1337 days calculated by Executive Engineer and accordingly granted extension of time for 1309 days without levy of compensation as it was attributable to the respondent but for remaining period of 126 days, extension of time was admittedly granted with levy of compensation @ 0.25% of the estimated cost of work. Stipulated date of start of work was 24.8.1995 and that of completion was 23.4.1996 whereas actual dat of completion of work was 28.3.2000. It is conspicuous that in spite of justified hindrances period, the work was required to be completed by 23.11.1999 but the petitioner actually completed the work on 28.3.2000. No contractor can take advantage of extension of time which is accompanied with levy of compensation. Merely because the authority extended time for completion of work does not mean that delay was attributable to the respondent or was condoned. The object of extending the period through levy of compensation is to get the work completed from the same contractor and avoid further delay which is involved in recalling the tender or employing a new contractor. For such a delay, it is the contractor who has to suffer and saddle with the liability. As per formula of turn when actual completion period is of 3.5 time or more, nil mark is to be awarded and so as done in the case of the petitioner.
11. The system evolved by the respondent for revalidation of their enlistment appears to take advantage of the experienced and efficient contractors. Contractors who may have experience in executing work of high magnitude of the CPWD are kept on tenterhooks to complete the work in time so that they don't take revalidation as matter of routine or right. It is with this object that non-performing or ill performing contractors are weeded out from time to time by way of non revalidation of their enlistment.
12. Works like construction of roads/building of bridges undertaken by the CPWD are mainly for the welfare of the public at large and if these are delayed for years together it is ultimately the public who suffers. The daily life of citizens gets disrupted. Such delay also tells heavily upon pubic exchequer. It is perhaps with this object that non-performing or ill-performing contactors are weeded out from time to time by way of non-revalidation of their enlistment.
13. For the foregoing reasons, we do not find any infirmity or illegality in the principle and formula adopted by the authorities in not revalidating the enlistment of the petitioner as it is the objective satisfaction of the competent authority and overall assessment of he work of the contractor by the competent authority which govern refusal or grant of revalidation of enlistment of the contractors. Petition is misconceived and devoid of merits and is hereby dismissed.