Vanaja Parisudya Mahila Podupu Sangam v. Rudramma Devi Parishdya Mahila Podupu Sangam

These two writ petitions are filed with a prayer to issue a writ of mandamus declaring tender notices in ET.NO.8/2008- 2009/DB(ROC.NO.322/2008 F2) ET.NO.7/2008-2009/DB (ROC.NO.322/2008 F2) issued by the 3rd respondent dated 28.4.2008 as published in the local newspapers dated 1.5.2008 as illegal, arbitrary and violative of relevant rules.

These writ petitions were heard at length at the admission stage and therefore being disposed of by this common order as the back ground facts and questions for consideration are similar.

The petitioners in these two writ petitions are engaged in taking up sanitary works. The Guntur Municipal Corporation issued a tender notification for sanitary works. The Societies of the Retired Sanitary Workers of the Corporation and their children and the experienced SC and STs and Badili Workers having experience in sanitation work are only eligible to participate in tenders in respect of works notified in ET.NO.7/2008-2009/DB. Whereas DWCUA (women groups) within the Municipal Corporation of Guntur are only eligible for participation in respect of works notified in ET.NO.8/2008-2009/DB. The tender notifications dated 28.4.2008 came to be published in Prajashakthi and Surya daily newspapers. The validity of tender notifications is challenged by the petitioners on the ground that it is contrary to the Government orders issued in G.O.Ms.No.30, dated 18.1.2000 as well as circular issued by the Commissioner, Directorate of Municipal Administration, Hyderabad (2nd respondent herein) dated 4.6.2004 for the purpose of improving the efficiency in sanitation work and that issuance of notification in selective local newspapers of District editions giving only 15 days time for submitting tenders.

It is further submitted that the 3rd respondent earlier issued General Notice on 6.11.2005 calling for Tenders from DWCA groups filed W.P.No.24916 of 2005 before this Hon’ble Court. This Hon’ble Court by its order dated 23.11.2005 disposed of the Writ Petition directing the 3rd respondent to take action in accordance with Rule 11(2) (vi) of the M.C.H. Tender Rules at the time of finalization of Tenders and allot 15% of the works to the petitioners and other eligible societies (as per Rule 11(2)(vi) of the M.C.H.Tender rules) on nomination basis by following the judgment passed in DALITJATHI LABOUR CONTRACT COOPERATIVE SOCIETY V. COMMISSIONER OF L.B.NAGAR MUNICIPALITY reported in 2003(4) ALD 508. Pursuant to the directions of this Hon’ble Court the 3rd respondent issued work orders to the DWCUA Societies including the petitioners’ societies and the members are doing sanitation work in the 3rd respondent corporation continuously till date without any remark and with utmost satisfaction of the officers of the 3rd respondent corporation as well as the public. Ignoring the government order and circulars and the orders passed by this Hon’ble Court, the 3rd respondent issued the impugned Tender Notice contrary to the same and as such the impugned Tender Notice is liable to be set aside.”

4. 3rd respondent filed counter affidavit. One Siddarth Jain, I.A.S, Commissioner, Municipal Corporation of Guntur has sworn to the counter affidavit. It is stated in the counter affidavit that as per G.O.Ms.No.94 I & CAD (PW) Department dated 1.7.2003 the time for publication of tender notice for first call is 14 days. The impugned tender notifications were issued on 1.5.2008 calling for tender schedules for taking up sanitation works in about 32 packages each worth more than Rs.3.00 lakhs. Each work is an individual package and therefore Rule 3(A)(1) of M.C.H. Tender Rules, 1970 (for short Tender Rules) does not apply. Rule 11(2) of Rules has been strictly followed. It is further stated in the counter affidavit that 178 workers in 11 packages out of 1060 are set apart for entrustment to societies, which is arrived at 16.79% by computation and that 27 works in two packages are set apart for entrustment to DWCUA (women group).

The petitioners filed reply affidavit wherein they pleaded that the tenders in question are in violation of the circular dated 4.6.2004 issued by the Commissioner and Director of Municipal Administration-2nd respondent.

Heard learned counsel appearing for the petitioners and learned Government Pleader for Municipal Administration and Urban Development.

Learned counsel appearing for the petitioners submits that tender notifications are in violation of the Tender Rules. He further submits that publication of tender notifications two daily newspapers viz., Prajasakthi and Surya does not amount to substantial compliance of Rule 4 of the Rules. He would also submit that the tenders are invalid since they are not preceded by the approval of Standing Committee. In elaborating his arguments he contends that minimum one month time is required for submitting tenders and since the tenders called for indicate of 15 days time, the same is contrary to Rule 4 of the Tender Rules.

Per contra, learned Government Pleader for Municipal Administration and Urban Development submits that publication of tender notifications in Prajashakthi and Surya daily newspapers amounts to substantial compliance of Rule 4 of the Tender Rules. He further submits that one- month time stipulated under rule 4(1) of the Tender Rules applies to large contracts.

The issue that calls for adjudication in this writ is – whether the tender notifications published in Prajashakthi and Surya are in conformity with the Tender Rules or not?

For better appreciation I may refer Rule 4(1) of the Tender Rules, which reads as under:

4(1) Tenders in sealed covers shall be invited in the most open and public manner possible. Notice calling for tenders shall invariably be published in important local newspapers having wide circulation at least in the State of Andhra Pradesh in respect of all works. In case of large contracts, the last date of receipt of tender should be at least one month after the date of first advertisement or notice. The paper for publication has to be made in respect of works whose costs exceed rupees one lakh as per note of item IV of para 154 of the Andhra Pradesh Public Works Department Code.

What is provided in the above referred provision is notice calling for tenders shall invariably be published in important local newspapers having wide circulation at least in the State of Andhra Pradesh in respect of all works. Indisputably Prajashakthi and Surya are daily newspapers. Publication of tenders in the district edition of Prajashakthi and Surya which are daily newspapers can definitely be said to be in substantial compliance of Rule 4(1) of Tender Rules. With regard to stipulation of time for receiving tenders, one-month time is prescribed under Rule 4(1) of the Tender Rules in case of large contracts. Indisputably the tenders published in the above two newspapers are not in respect of large contracts. The 3rd respondent has specifically stated in his counter affidavit that as per G.O.Ms.No.94 I & CAD (PW) Department dated

1.7.2003 the time for publication of tender notice for first call is 14 days. Therefore, the time stipulated in the impugned tender notices is in accordance with G.O.Ms.No.94 I & CAD (PW) Department dated

1.7.2003.

Learned counsel appearing for the petitioners submits that 15 % of the works are required to be set apart as per Rule 11 of Tender Rules. 3rd respondent has clarified this aspect in his counter affidavit that required works for entrustment to the Societies and DWCUA Groups on nomination basis as provided under 11(2) of the Tender Rules have been set apart. It is also to be noted that tenders have been called for the works detailed in the impugned tender notification from the Societies of the Retired Sanitary Workers of the Corporation and their children and the experienced SC and STs and Badili Workers and DWCUA (women groups).

Learned counsel appearing for the petitioners submits that as per circular dated 25.12.2002 DWCUA groups are to be allotted 50 percent of the tendered works. The minimum period is three years or liquidation of loan sanctioned, whichever is later. He also refers to the subsequent circular dated 4.6.2004 issued by the Commissioner of Municipal Administration Department. The Government memo dated 25.12.2002 has been referred in the circular. On a plain reading of the circular, I am of the view that the contract period if expired by 14.6.2004 is to be extended six months uniformly. The circular is mainly intended to safeguard the interest of DWCUA groups, which had utilized the loans from the banks. It is nowhere stated in writ petition that DWCUA groups (petitioners) have availed the loan facilities. Therefore, the above-referred two circulars are of no avail to the petitioners.