THE HONOURABLE MR v. The Government of Puducherry

No.460/08-09 dated 30.09.2008 respectively and quash the eligibilitycriteria mentioned therein in so far as it is against the CPWDManual 2007, and direct the respondent to permit the petitioner toparticipate in the tender without insisting upon the documentaryproof of similar works, as the petitioner is a registered PWDContractor of Puducherry. For petitioner in both Wps: Mr.S.Parthasarathy, SC for Mr.T.R.Rajaraman For RR1 to 3: Mr.T.Murugesan, SCin both W.Ps Government Pleader (Puducherry)For R.4: Mr.M.S.Krishnan, SC forin both W.Ps Sarvabhuman Associates For R.5in both W.Ps: Mr.S.Sundararaj COMMON ORDERThe petitioner is a registered contractor in the category ClassI in the Public Works Department, Puducherry for a period of 5 yearsup to 02.04.2010 and he is eligible to tender for works in PublicWorks Department of Puducherry subject to meeting the eligibilitycriteria as laid down in any notice inviting tenders and the CPWDManual 2003. The renewal of contract was issued by the Public WorksDepartment by memorandum dated 30.05.2005. Though, it is stated thatthe petitioner firm could enter into a contract with Public WorksDepartment, Puducherry with a money limit of Rs.10 crores, thelearned Senior Counsel for the petitioner, during arguments wouldfairly concede that the money limit is only Rs.5 crores and he wouldsubmit that it has been mistakenly typed out as 10 lakhs in theaffidavit. 2.The third respondent namely, the Executive Engineer, PublicWorks Department, Puducherry issued a press Notice inNo.1082/PW/NH/DB/D1/F.No.460/08-09 dated 30.09.2008 calling fortenders from contractors registered with the Public WorksDepartment, Puducherry, Central Public Works Department, MilitaryEngineering Service and other State Public Works Department's toaward contract to execute the work of Improvement of riding qualityin Km 16/122 - 24/000 of NH 45A in Puducherry at an approximateestimated cost of Rs.3,57,63,207/-. Similarly, the third respondentissued another press notice on similar terms and conditions to awardcontract to execute the work of Improvement of riding quality in Km24/000-29/800 of NH 45A in Puducherry at an approximate estimatedcost of Rs.2,78,41,748/-. One of the eligibility criteria as perpress notice No.1081/PW/NH/DB/D1/F.No.460/08-09 dated 30.09.2008 isas follows:- https://hcservices.ecourts.gov.in/hcservices/ "All contractors should produce documentary evidence in supportof their having satisfactorily completed;(i)3 similar works each of value Rs.1.44 crores or (ii)two works each of value Rs.1.79 crores or (iii)one work of Rs.2.87 crores in the last seven years endinglast day of the month previous to the one in which the tenders areinvited. 3. The petitioner challenges the said clause in Press NoticeNo.1081/PW/NH/DB/D1/F.No.460/08-09 dated 30.09.2008 in W.P.No.25225of 2008. 4.Similarly, one of the eligibility criteria as per the pressnotice No.1082/PW/NH/DB/D1/F.No.460/08-09 dated 30.09.2008 is asfollows:-"All contractors should produce documentary evidence in supportof their having satisfactorily completed;(i)3 similar works each of value Rs.1.12 crores or (ii)two works each of value Rs.1.40 crores or (iii)one work of Rs.2.23 crores in the last seven years endinglast day of the month previous to the one in which the tenders areinvited. 5.The petitioner challenges the said clause in Press NoticeNo.1082/PW/NH/DB/D1/F.No.460/08-09 dated 30.09.2008 in W.P.No.25226of 2008. 6.Admittedly, the above requirement for eligibility of tendershave been prescribed following Central Public Works Department WorksManual 2003 (hereinafter referred to as CPWD Manual 2003). The abovecriteria can be stated otherwise as provided in the manual asfollows:-(i)three similar works, each of value 40% of estimated cost or(ii)two works each of value 50% of estimated cost, or (iii)one work of 80% estimated cost (rounded off to nearestRs.10 lakhs) in the last 7 years ending last day of the monthprevious to the one in which the tenders are invited.7.Admittedly, CPWD Works Manual was issued regulating thecontracts of the Central Public Works Department. But the Governmentof Puducherry in letter No.19930/CS/JS/PW/70 dated 25.04.1970 soughtfor permission from the Government of India for making the CPWD Codeand Manual together with all the delegations contained thereinapplicable to the PWD of Puducherry Government in so far asexecution of works are concerned. On considering the same, the https://hcservices.ecourts.gov.in/hcservices/ Government of India, Ministry of Health & Family Planning and WorksHousing & Urban Development through letter No.14013(3)/70-EWI, dated02.09.1970 have conveyed their decision that the Central PWD Codeand CPWD Manual together with all the delegations contained thereinwill be applicable to the PWD of Puducherry Administration in so faras an execution of works are concerned. The said decision of theGovernment of India was communicated by the Government of Puducherryby means of G.O.Ms.No.42/JS/PW Chief Secretariat (Dept. of PublicWorks) dated 14.10.1970. Therefore, as per the order of theGovernment of India and that of the Government of Puducherry, theCPWD Manual is applicable to the Public Works Department ofPuducherry from 02.09.1970 onwards. 8.The case of the petitioner is that the impugned eligibilitycriteria are based on CPWD Manual 2003 whereas, according to thepetitioner, since CPWD Works Manual 2007 had already come into forcew.e.f 31.12.2007, the third respondent ought to have applied theCPWD Works Manual 2007 and not the Manual 2003. Further, accordingto him, had CPWD Manual 2007 been made use of by the thirdrespondent, then, the impugned eligibility criteria would not havecome to be incorporated in the press notices. To put it otherwise,it is the stand of the petitioner that the impugned eligibilitycriteria run counter to CPWD Manual 2007. To appreciate the abovecontentions, it is necessary to extract the relevant sections ofCPWD Manual 2003 and CPWD Manual 2007. 9.Section 17 of CPWD Works Manual 2003 deals with sale oftender documents. Similarly, Section 17 of the CPWD Works Manual2007 deals with sale of tender documents.10.Section 17.6.1 of CPWD Works Manual 2003 deals with sale oftender documents to registered contractors is as extracted thus:-"17.6.1.Tender schedules for CPWD works canbe issued to contractors registered in CPWD inappropriate classes, contractors registered withthe Railways/M.E.S./P.&T in appropriate classesand contractors registered with the State PWDsin appropriate classes (for CPWD works withinthat state). ADG of the Region has full powers to allowthe State PWD Contractors to tender for works ofCPWD outside the State in which they areenlisted. Whenever any State PWD contractortenders for CPWD work outside the state in whichhe is registered, the authority issuing thetender papers should obtain a declaration fromthe contractor to the effect that he has not beendebarred from tendering by any authority. https://hcservices.ecourts.gov.in/hcservices/ Tender schedules for CPWD works can beissued to the contractors registered with StatePWDs in appropriate class (for CPWD works withinthat State). Contractors enlisted in the Statesof Uttar Pradesh, Bihar and Madhya Pradesh may beallowed to participate in tenders in Uttaranchal,Jharkhand and Chhatisgarh respectively til31.12.02."11.Section 17.10 of the CPWD Manual 2003 which speaks ofprocedure for issuing tender documents to a non registeredcontractors is as follows:-"17.10.The criteria for issue of tenders inCPWD in respect of eligible CPWD as well as nonCPWD contractors will be as under:-(a) For works costing upto Rs.two crorestender shall be issued only to CPWD contractors.(To come into effect w.e.f 1.1.2003). Contractorsenlisted in the parent states i.e. Uttar Pradesh,Bihar and Madhya Pradesh may also be allowed toparticipate in tenders in Uttaranchal, Jharkhandand Chhattisgarh respectively till31.12.02.S.Es/E.Es may educate and advise the nonCPWD contractors working in theircircles/Divisions to get them enlisted inappropriate class in CPWD well before 1.1.03.(b)For works costing over Rs.two crores andupto Rs.five crores, tenders shall be issued toall contractors who have satisfactorily executedthree similar works, each of value 40% ofestimated cost or two works each of value 50% ofestimated cost, or one work of 80% estimated cost(rounded off to nearest Rs.10 lakhs) in the last 7 years ending last dayof the month previous to the one in which thetenders are invited.(c)For works costing over Rs.five crores,tenders shall be issued only to contractors pre-qualified in accordance with provisions ofSection 16." 12.Section 17.3.1 of the CPWD Works Manual 2007 which speaks ofsale of tenders for works costing upto Rs.10 crores is as follows:-"17.3.1.(1)The tender documents for works costing upto Rs.10 crores shall be sold only to thecontractors registered in the CPWD in theappropriate category and class. https://hcservices.ecourts.gov.in/hcservices/ (2)However, the Additional Director Generalof the Region may relax this provision for workscosting up to Rs.10 crores for specific Division(s)/Circle(s)/Zone(s) in his Region for aspecific period that he may consider itnecessary, and may allo sale of tenders for suchowrks to contractors registered with theRailways/MES/P &T, State PWD's in appropriateclasses (for CPWD works within that state). NonCPWD registered contractors shall have to fulfillthe criteria of satisfactory execution of worksas given below.(i)Three similar works, each of value notless than 40% of the estimated cost put totender, or (ii)Two similar works, each of value notless than 60% of the estimated cost, or(iii)One similar work of value not less than80% of the estimated cost, all amounts roundedoff to a convenient full figure, in the last 7years ending on the last day of the monthprevious to the one in which the tenders areinvited.(3)"Similar work" shall be properly definedand appropriately indicated in the tenderdocuments by the NIT approving authority." 13.According to the learned Senior Counsel appearing for thepetitioner, if a cursory comparison of the above provisions in theManual of 2003 and in the Manual of 2007 is made, it would make itabundantly clear that in the Manual of 2007, there is no eligibilitycriteria prescribed as the one which is impugned in these writpetitions. He would further submit that though Section 17.10 of theCPWD Manual 2003 prescribes such an eligibility criteria like theimpugned eligibility criteria, since the said Manual 2003, wassuperseded by the CPWD Manual 2007, CPWD Manual 2003 is notapplicable and as a corollary, imposition of eligibility criteria interms of Manual 2003 is arbitrary, illegal and violative of Article14 of the Constitution of India. 14.Nextly, it is contended that the impugned eligibilitycriteria are opposed to the CPWD Manual 2007 and such kind ofeligibility criteria could be imposed only to those contractors whoare not registered in Puducherry Public Works Department such asMES/TN PWD/P&T, Railways etc., It is further contended that theimpugned eligibility criteria could be imposed only on non statePublic Works Department Contractors and the same is not applicablefor Class I contractors who have been registered by the Public WorksDepartment, Puducherry. https://hcservices.ecourts.gov.in/hcservices/

15.Lastly, it is submitted that this Court, on an earlieroccasion, had disposed of a writ petition similar in nature wherein,the third respondent had undertaken to give tender schedule to thepetitioner keeping in mind the CPWD Manual 2007. In view of the saidstand taken by the respondent in the said writ petition, he isestopped from taking a different stand now, it is contended. 16. The third respondent has filed a common counter in both thewrit petitions wherein it is contended as follows:-(i)The contention of the petitioner that CPWD Manual 2007 isapplicable to the contracts in question is not at all correct.Though CPWD Manual 2007 had come into force w.e.f 31.12.2007, inrespect Central Public Works Department's, the same had not beenthen adopted by the Puducherry Government. As a matter of fact,proceedings were pending with the Puducherry Government for approvalof the Government for adoption of the CPWD Works Manual 2007. Sincethere was no approval given by the Puducherry Government adoptingCPWD Manual 2007 as on the date of the press notices, the thirdrespondent rightly followed CPWD Manual 2003. It is further statedthat the petitioner cannot dictate terms to the third respondent toadopt 2007 Manual as it is absolutely within the discretion of thePuducherry Government to adopt or not to adopt any Manual.Therefore, the contention that CPWD Manual 2003 is not applicable tothe facts of the case, is absolutely incorrect.(ii)As per CPWD Manual 2003, Section 17(10), for Works costingover Rs.2 crores and upto Rs.5 crores, tenders shall be issued toall the contractors who have satisfactorily executed three similarworks each of value 40% estimated cost or two works each of value50% of estimated cost, or one work of 80% estimated cost (roundedoff to nearest Rs.10 lakhs) in the last 7 years ending last day ofthe month previous to the one in which the tenders are invited. Itis in accordance with the said provision only, the impugnedeligibility criteria were prescribed in the press notices whichcannot be termed either as illegal or arbitrary.(iii)Imposing such eligibility criteria is only to get the bestperson or the best quotation and if the said condition in the tenderis quashed, it may lead to administrative burden and lead toincrease and un-budgeted expenditure.(iv)In respect of a similar work, when the petitioner wasdeclared as unqualified by the Public Works Department, Puducherryas it did not satisfy the similar eligibility criteria, thepetitioner had filed W.P.No.25225 of 2008 before this Court and inthe said writ petition, this Court by order dated 15.10.2008 heldthat quoting of lowest price alone is not a criterian but one musthave eligibility to participate in the tender selection process.Since the writ petition was dismissed on the ground that thepetitioner did not satisfy the eligibility criteria, he is estoppedfrom challenging the said eligibility criteria in this writpetition. https://hcservices.ecourts.gov.in/hcservices/

17.It is contended by the learned Government Pleader,Puducherry that the Government has got free hand to prescribe anyeligibility criterian so as to get the best contractor who has got asufficient experience in the field and to execute the work in thebest manner; the said power cannot be restricted by a tenderer; thepower of this Court to interfere is very limited under Article 226of the Constitution of India; the impugned eligibility criteriacannot be stated to be either arbitrary, illegal unfair,unreasonable or violative of any of the statutory provisions orGovernment Orders and therefore, this Court cannot extend its powerunder Article 226 of the Constitution of India to quash the impugnedeligibility criteria so long as it does not fall under any of theabove categories of infirmities. Therefore, he would pray fordismissal of the writ petitions. 18.The respondents 4 and 5 have already submitted their tendersin response to the press notices. Because of the interim orderspassed by this Court in these writ petitions, they state that theyare deprived of getting the contract. Therefore, they have gotimpleaded themselves as parties in these writ petitions. But theyhave not filed any separate counter. However, they have adopted thestand taken by the third respondent in his counter. 19.I have heard the learned counsel on either side and perusedthe records thoroughly.20.At the outset, arguments and counter arguments wereadvanced at length by the learned counsel on either side in respectof the power of Judicial Review of this Court under Article 226 ofthe Constitution of India and therefore, I deem it appropriate toanalyse the law on the subject first.(i) The Hon'ble Supreme Court in Tata Cellular Vs Union ofIndia reported in (1994) 6 SCC 651, after having elaborately dealtwith the subject has ultimately deduced the principles relating tothe power of judicial review of this Court in respect of contractualmatters. The Hon'ble Supreme Court has held thus:- "(1)The modern trend points to judicial restraintin administrative action.(2)The court does not sit as a court of appeal butmerely reviews the manner in which the decision was made.(3)The court does not have the expertise to correct theadministrative decision. If a review of the administrativedecision is permitted itwill be substituting its own decision, without the necessary expertise which itself may be fallible.(4)The terms of the invitation to tender cannotbe open to judicial scrutiny because the invitation to https://hcservices.ecourts.gov.in/hcservices/ tender is in the realm of contract. Normallyspeaking, the decision to accept the tender or awardthe contract is reached by process of negotiationsthrough several tiers. More often than not, suchdecisions are made qualitatively by experts.(5) The Government must have freedom of contract.In other words, a fair play in the joints is anecessary concomitant for an administrative bodyfunctioning in an administrative sphere or quasi-administrative sphere. However, the decision must notonly be tested by the application of Wednesburyprinciple or reasonableness (including its other factspointed out above) but must be free from arbitrarinessnot affected by bias or actuated by malafides.(6)Quashing decisions may impose heavyadministrative burden on the administration and leadto increased and unbudgeted expenditure"(ii) In Directorate of Education and Others Vs ErducompDatamatics Limited and others reported in (2004) 4 19, theHonourable Supreme Court, following the principles laid down in TataCellular case has reiterated the law on the subject as follows:- "...11. This principle was again restated bythis Court in Monarch Infrastructure (P) Ltd Vs.Commr.Ulhasnagar Municipal Corpn. It was held thatthe terms and conditions in the tender areprescribed by the Government bearing in mind thenature of contract and in such matters the authoritycalling for the tender is the best judge toprescribe the terms and conditions of the tender.It is not for the courts to say whether theconditions prescribed in the tender underconsideration were better than the ones prescribedin the earlier tender invitations.12. It has clearly been held in these decisionsthat the terms of the invitation to tender are notopen to judicial scrutiny, the same being in therealm of contract. That the Government must have afree hand in setting the terms of the tender. Itmust have reasonable play in its joints as anecessary concomitant for an administrative body inan administrative sphere. The courts wouldinterefere with the administrative policy decisiononly if it is arbitrary, discriminatory, mala fideor actuated by bias. It is entitled to pragmaticadjustments which may be called for by theparticular circumstances. The courts cannot strikedown the terms of the tender prescribed by theGovernment because it feels that some other terms inthe tender would have been fair, wiser or logical. https://hcservices.ecourts.gov.in/hcservices/ The courts can interfere only if the policy decisionis arbitrary, discriminatory or mala fide."(iii) While dealing with an identical issue relating tocontract, the Hon'ble Supreme Court in Assn. of Registration Platesv. Union of India reported in (2005) 1 SCC 679, has held inparagraph 38, 43 and 44 as follows:-"38. In the matter of formulating conditions of atender document and awarding a contract of the natureof ensuring supply of high security registrationplates, greater latitude is required to be conceded tothe State authorities. Unless the action of tenderingauthority is found to be malicious and a misuse of itsstatutory powers, tender conditions are unassailable.On intensive examination of tender conditions, we donot find that they violate the equality clause underArticle 14 or encroach on fundamental rights of the class of intending tenderers under Article 19 of theConstitution. On the basis of the submissions made onbehalf of the Union and State authorities and thejustification shown for the terms of the impugnedtender conditions, we do not find that the clausesrequiring experience in the field of supplyingregistration plates in foreign countries and thequantum of business turnover are intended only to keepindigenous manufacturers out of the field. It isexplained that on the date of formulation of scheme inRule 50 and issuance of guidelines thereunder by theCentral Government, there were not many indigenousmanufacturers in India with technical and financialcapability to undertake the job of supply of such highdimension, on a long-term basis and in a manner toensure safety and security which is the prime object tobe achieved by the introduction of new sophisticatedregistration plates. 43. Certain preconditions or qualifications for tendershave to be laid down to ensure that the contractor hasthe capacity and the resources to successfully executethe work. Article 14 of the Constitution prohibits theGovernment from arbitrarily choosing a contractor atits will and pleasure. It has to act reasonably, fairlyand in public interest in awarding contract. At thesame time, no person can claim a fundamental right tocarry on business with the Government. All that he canclaim is that in competing for the contract, he shouldnot be unfairly treated and discriminated, to thedetriment of public interest. Undisputedly, the legalposition which has been firmly established from variousdecisions of this Court, cited at the Bar (supra) isthat government contracts are highly valuable assetsand the court should be prepared to enforce standards https://hcservices.ecourts.gov.in/hcservices/ of fairness on the Government in its dealings withtenderers and contractors.44. The grievance that the terms of notice invitingtenders in the present case virtually create a monopolyin favour of parties having foreign collaborations, iswithout substance. Selection of a competent contractorfor assigning job of supply of a sophisticated articlethrough an open-tender procedure, is not an act ofcreating monopoly, as is sought to be suggested onbehalf of the petitioners. What has been argued is thatthe terms of the notices inviting tenders deliberatelyexclude domestic manufacturers and new entrepreneurs inthe field. In the absence of any indication from therecord that the terms and conditions were tailor-madeto promote parties with foreign collaborations and toexclude indigenous manufacturers, judicial interferenceis uncalled for."(iv)Recently in Delhi Development Authority and anotherVs. Joint Action Committee, Allottee of S.F.S. Flats and othersreported in (2008) 2 SCC 672, the Hon'ble Supreme Court has held asfollows:-"65. Broadly, a policy decision is subject tojudicial review on the following grounds:(a) if it is unconstitutional;(b) if it is dehors the provisions of the Act andthe regulations;(c) if the delegatee has acted beyond its power ofdelegation;(d) if the executive policy is contrary to thestatutory or a larger policy.67. We would assume that the office orders wereissued by DDA keeping in view the representationsmade by a large number of defaulters. The pleataken by DDA gives rise to a dichotomy. If it is acase of contract qua contract, the provisions ofthe Contract Act must be taken recourse to. If DDAwas exercising a statutory power, the same must betested on application of doctrine of ultra vires.Floating a scheme for providing housing facilitiesto a group of people, although is governed bystatute, power under the statute by an executivenot only can be tested on the touchstone ofArticle 14 of the Constitution of India, but canalso be tested on the touchstone of source of thepower under the statute. No provision either inthe Act or the Regulations was brought to ournotice which makes the allottee bound by thepurported policy decision taken by DDA. Even if it https://hcservices.ecourts.gov.in/hcservices/ is so, the superior courts may exercise its powerof judicial review as the power which is sought tobe exercised by a statutory authority is not underthe contract but under a statute. When a contractemanates from a statute or is otherwise governedby the provisions thereof, the superior court canalso exercise the power of judicial review."(v) In A.Gopal Vs. Airports Authority of India, InternationAirports Division, represented by the Airport Director, ChennaiAirport, Chennai and others reported in (2005)4 M.L.J.208, aDivision Bench of this Court has held as follows:-"..6.As regard the requirement of having twoyears experience of managing a car park withGovernment Departments etc., in our opinion, this isa reasonable condition because obviously what therespondents required was, an experienced person andthere is nothing unreasonable about making this as aneligibility criteria. Learned counsel for theappellant submitted that the requirement of having aminimum turnover of Rs.4.44 crores was arbitrary andhence illegal. WE do not agree. In the aforesaiddecision of the Supreme court, there was arequirement in the tender conditions that only thosehaving turn over of more than Rs.20 crores can bid.In para 13 of the aforesaid decision the SupremeCourt observed that this criterion was imposed sothat only companies having financial stability andcapacity should participate in the tender. In ouropinion, the same situation is present in the presentcase. A perusal of the notice inviting tenders showsthat the minimum reserved licence fee is Rs.37 lakhsper month. Hence the successful tenderer has to payminimum reserved licence fee of Rs.37 lakhs per monthwhich works out to Rs.4.44 crores per year. In ouropinion, there was hence nothing unreasonable inmaking a requirement that the person bidding shouldhave a minimum turn over of RS.4.44 crores.7. These are all basically administrative andpolicy decisions and it is not for this Court to sitin appeal over such decisions vide Tata Cellular Vs.Union of India, A.I.R.1996 S.C. 11. It has been heldrepeatedly by the Supreme Court that this Courtcannot interfere with administrative and policydecisions unless there is violation of the statute orit is shockingly arbitrary in the Wednesbury sensevide Tamil Nadu Electricity Board Vs. Tamil NaduElectricity Board Engineers Association, (2005)1M.L.J. 507, in which the aforesaid decisions arereferred to in detail. In our opinion, there is noviolation of any statute nor can it be said that thetender condition was shockingly arbitrary. The Court https://hcservices.ecourts.gov.in/hcservices/ must exercise judicial restraint in such matters videRama Muthuramalingam Vs. Deputy Superintendent ofPolice, (2005) 1 M.L.J. 1 : A.I.R. 2005 Mad.1. Thereis no force in this appeal. The writ appeal isdismissed. No costs. W.A.M.P. Nos.2777 and 2778 of2005 are dismissed."(vi)In J.V.Gokal and Company, a registered firm, represented byits Partner Shri Ravindra Gokal through their Power of Attorney,Mumbai Vs. State of Tamil Nadu represented by its Secretary toGovernment, Public Works Department, Chennai and another reported in(2005) 1 M.L.J. 483, this Court has held as follows:-"....In such big contracts naturally theauthority who invites tenderness to know aboutexperience, financial status, background etc., ofthe bidders because the person to whom thecontract is given must be a reliable person.Hence, there is nothing unreasonable in theeligibility criteria which has been mentioned inthe tender notice and in fact this is done veryoften. As regards the appellant firm it appearsto be a new entity in the business field in Indiaand it cannot claim that it should not berequired to fulfill the eligibility criteriaregarding experience, financial status,reliability etc...."21. A close analysis of all the above judgment would keepthings beyond any doubt that unless the impugned eligibilitycriteria are found to be either malicious, arbitrary, unfair orunreasonable, it is not within the scope of this Court to review thesame under Article 226 of the Constitution of India. Let me,therefore, now analyse the facts further to find as to whether theimpugned eligibility criteria fall within the parameters or not.22. The impugned criteria only prescribe previous experience asa qualification to tender. The power of the Government to prescribeany such qualification cannot be doubted. As extracted above, inAssociation of Registration Plates Vs. Union of India's case, theHon'Ble Supreme Court has laid down in categorical terms that in thematter of formulating conditions of a tender document and awarding acontract of the nature of ensuring supply, greater latitude isrequired to be conceded to the authorities. The Hon'ble SupremeCourt further states that certain pre-conditions or qualificationsfor tender have to be laid down to ensure that the contractor hasthe capacity and the resources to successfully execute the work. Inthe instance cases, it is the stand of the Government thatexperience is prescribed as one of the qualifications to tender onlywith a view to get the best persons or best quotations fromexperienced persons, so that the work could be executed in the bestmanner without any delay or failure. When the Government intends tospend a huge amount of public money for the execution of the work https://hcservices.ecourts.gov.in/hcservices/ for the benefit of the public, I am of the view, that the Governmentshould have free hand to choose the best contractor, so that thework is performed in time and in the best manner. As held by theHon'ble Supreme Court, the said power of the Government couldneither be doubted nor be questioned by any tenderer. If the saidcondition has no rationale behind the same, and in the event of thesame being found arbitrary, of course it would be the duty of thisCourt to extend its long arm to correct the same by necessaryintervention under Article 226 of the Constitution of India. Thoughit is stated in the affidavit that the impugned eligibility criteriais unreasonable and arbitrary, the learned Senior Counsel appearingfor the petitioner is not in a position to demonstrate as to how itis either unreasonable or arbitrary. If it is shown that previousexperience has been prescribed as a qualification only with amalicious intention to keep one or more or a class of contractorsaway from participating in the tender process thereby causingviolence to the right of equality guaranteed under Article 14 of theConstitution of India, then this Court shall have to set aside thesaid eligibility criteria. But no such malice is alleged by thepetitioner. It is not as though contractors who would satisfy theeligibility criteria prescribed in the tender are not available. Itcannot be said that the said condition has been prescribed to favoura particular individual or a particular company. When facts remainso, hardly I find any reason to hold that the eligibility criterianeed the interference of this Court. In my considered opinion, theimpugned eligibility criteria do not offend any of the parametersdeduced by the Hon'ble Supreme Court in the judgments referred toabove and Article 14 of the Constitution of India. 23. Nextly, I have to consider whether the Government is boundby C.P.W.D., Works Manual either of the year 2003 or 2007 andwhether the Government's power to prescribe any additionaleligibility criteria other than the criteria prescribed in themanual is controlled or circumscribed by the manual. Admittedly,CPWD Works Manual was issued regulating the contracts in respect ofCentral Public Works department. There is no such separate manualissued by the Government of Puducherry. Therefore, it was thoughtfit by the Government that instead of issuing a separate manual, toadopt the guidelines provided in the CPWD Works Manual in respect ofthe P.W.D.works of Puducherry Government after obtaining necessaryapproval from the Government of India. Admittedly, the Governmentof India gave permission to the Government of Puducherry to adoptthe said manual and based on the said approval, the Government ofPuducherry issued G.O.Ms.No.42 dated 14.10.1970 adopting the CPWDWorks Manual. It is not in controversy that before 1970 there weremore than one manuals issued by CPWD in succession. The G.O., doesnot refer to any particular manual and the same is more general innature. It is the contention of the Government that after the year1970, whenever there was a manual issued afresh by the CPWD, theGovernment of Puducherry issued a necessary order then and thereadopting the same. True it is, that there is slight variationbetween these manuals with regard to the eligibility criteria. https://hcservices.ecourts.gov.in/hcservices/ Admittedly, at the time when the impugned press notices were issuedby the respondent, the CPWD Works Manual 2007 had not been adoptedby the Government of Puducherry. At any rate, it cannot be saidthat the manuals have got statutory force. After all they are onlyguidelines for the purpose of awarding contracts. The guidelinesprescribed thereunder are to be scrupulously followed by theGovernment of Puducherry. Having adopted the CPWD Works Manual, theGovernment of Puducherry cannot be heard to contend that it candeviate from the said guidelines provided in the manual. Whilesaying so, it sould be made clear that the ultimate power of theGovernment to prescribe additional qualifications as eligibilitycriteria other than the criteria provided in the manual cannot becurtailed. As held by the Hon'ble Supreme court, the Government hasfree hand to choose the best by prescribing any additionalqualification. If any qualification provided in the manual is noteither followed or if the qualification prescribed in the tendernotice is derogatory to the manual, then the same shall be illegal.But prescribing an additional qualification as a criterian cannot bestated to be violation of the manual. It is true that previousexperience has not been enumerated as one of the eligibilitycrieteria in the Manual 2007. Assuming that the Manual of the year2007 is applicable, even then, as I have concluded above,prescribing additional qualifications as eligibility criteria whichare not found in the manual 2007 cannot be stated to be eitherbeyond the scope of the power of the Government or the same isillegal. Thus, the Government has rightly prescribed previousexperience as an additional qualification which in my consideredopinion, does not require any interference. 24. It is contended by the learned Senior counsel for thepetitioner that, in the facts of the present notices, the CPWD WorksManual of the year 2007 alone is applicable and not Manual 2003. Inview of the conclusions which I have arrived at in the previousparagraphs, though this question is immaterial, I propose to answerthe same, since arguments were advanced at length by either sideinviting this Court to go into the said question also. It is thecontention of the petitioner that as per G.O.Ms.NO.42, any manualwhich is in vogue at the time when the tender notice is issuedshould be adopted since there is no particular reference made in theG.O., about any particular Manual. The G.O., reflects only thepolicy decisions of the Government adopting the CPWD Manual insteadof issuing its own separate manual. It cannot be said that anyManual which would be issued after the said G.O., would becomeautomatically operational in respect of P.W.D., works of PuducherryGovernment. As seen from the records, as and when there was amanual issued by the C.P.W.D., the Government of Puducherry hadconsidered the same and passed a separate order adopting the saidmanual. In respect of the CPWD works Manual 2007, the same was onlyunder consideration of the Government of Puducherry at the time whenpress notices were issued in the instant cases. Records have beennow produced to show that the same was adopted by the Governmentonly from 2.1.2009 as per the official memorandum issued by the https://hcservices.ecourts.gov.in/hcservices/ Government of Puducherry in memorandum No.1998/160/2007/PW/B2.Therefore, I hold that prior to the said memo dated 2.1.2009, theP.W.D., Puducherry was right in following the CPWD works Manual ofthe year 2003.25. Now, it is time to analyse as to whether the impugnedeligibility criteria offends any of the provisions of the CPWD worksManual 2003 or it confirms to the said Manual. As I have extractedin the previous paragraphs, Section 17.10 of CPWD Works Manual 2003provides: "For works costing over Rs two crores and upto Rs.fivecrores, tenders shall be issued to all Contractors who havesatisfactorily executed three similar works, each of value 40% ofestimated cost or two works each of value 50% of estimated cost orone work of 80% estimated cost in the last seven years ending lastday of the month previous to the one in which tenders are invited".In my view, the qualifications prescribed in the instant cases aresquarely in conformity with the above provision contained inC.P.W.D., Works Manual 2003. 26. It is the contention of the petitioner that as per CPWDWorks Manual 2007, in respect of works costing upto Rs.10 crores,there is no such previous experience prescribed as an eligibilitycriterian for registered contractors. It is further submitted thatonly in respect of non-registered contractors, such previousexperience has been prescribed as criteria in Section 17.3.1 in CPWDWorks Manual 2007. Since the petitioner is a registered contractor,according to the learned Senior counsel for the petitioner, he neednot have any such previous experience. Thus according to thepetitioner, the impugned eligibility criteria run counter to Section17.3.1 of the CPWD Works Manual 2007. As I have already held thatCPWD Works Manual 2007 is not at all applicable to the facts of thepresent case and so it need not be tested whether the impugnedeligibility criteria run counter to Section 17.3.1 of the CPWD WorksManual. Assuming that CPWD Works Manual 2007 is applicable and thesame should have been followed by the respondent, even then, thepetitioner has no case for the following reasons stated infra.27. Section 17.3.1. classifies contractors into two groupsnamely registered CPWD Contractors and non-registered CPWDContractors. In respect of CPWD registered contractors, they neednot fulfill the criteria relating to previous experience asprescribed in Section 17.3.1. Admittedly, the petitioner is not aCPWD registered contractor. He is only a state PWD registeredcontractor. As provided in Section 17.3.1, all non CPWD registeredcontractors have to fulfill the criteria relating to previousexperience. The state registered PWD contractors who are not aregistered CPWD contractors would fall in the category of non-CPWDregistered contractors. Thus, the petitioner who is a non-CPWDcontractor has to fulfill the criteria relating to previousexperience as provided in Section 17.3.1. Therefore, the contentionof the petitioner that the eligibility criteria prescribed in theimpugned notices run contrary to Section 17.3.1. cannot be https://hcservices.ecourts.gov.in/hcservices/ countenanced. In my considered opinion, the said eligibilitycriteria conform to the CPWD Works Manual 2007 also.28. Turning to the question of estoppel raised by thepetitioner, according to him, in respect of similar tender notice,when the petitioner was declared un-qualified, he filed a writpetition in W.P.22072 of 2008 before this Court challenging thesame. In the said writ petition, a similar press notice issued on19.8.2008 calling for tenders to award contract for execution of asimilar work incorporating similar eligibility criteria came to bechallenged. When the matter was taken up for hearing, the learnedGovernment Pleader, Puducherry on instructions, had submitted thatthe respondents were ready to furnish the tender schedule to thepetitioner. The said statement was recorded and based on the same,this Court directed the Executive Engineer, National HighwaysDivision, P.W.D., Puducherry to furnish the tender schedule to thepetitioner on the same day. It is the contention of the petitionerthat having agreed to issue tender schedule to the petitioner in asimilar circumstance, the respondent is estopped now from contendingthat the eligibility criteria impugned in these writ petitions arevalid and that CPWD Works Manual 2007 is not applicable. In answerto the said contention, it is contended by the respondent that whenthe said writ petition was heard, the respondent did not concedethat the eligibility criteria prescribed in the press notice wouldnot be enforced. Per contra, according to the counsel, therespondent therein conceded only to furnish a tender schedule.Therefore, according to the learned Government Pleader, such standtaken in the W.P.22072/2008 cannot operate as estoppel against therespondent. In my considered opinion, there is every force in thesaid argument of the learned Government Pleader. Admittedly, aftertender schedule was issued to the petitioner, as per the directionsof this Court in W.P.22072/2008, the petitioner submitted tenderdocuments. But when they were scrutinised, the authorities rejectedthe same on the ground that the petitioner did not satisfy theeligibility criteria in respect of previous experience prescribed inthe tender notice. The petitioner challenged the same by filing awrit petition in W.P.No.24805 of 2008. This court by order dated15.10.2008 dismissed the writ petition on the ground that thepetitioner did not satisfy the eligibility criteria relating toprevious experience. While dismissing the writ petition, this Courthad also made an observation that the petitioner could havechallenged the validity of the eligibility criteria instead ofchallenging the rejection of the tender. It is contended by theGovernment Pleader that having not challenged the said order of thisCourt dated 15.10.2008, it is not open for the petitioner tochallenge the eligibility criteria in the present writ petitions. Inmy considered opinion, the order of this Court made inW.P.No.24805/2008 would not in manner prohibit the petitioner fromchallenging the eligibility criteria provided in subsequent tendernotices. The principle of estoppel has no role to play eitheragainst the petitioner or against the respondent as it is contendedby them against each other. https://hcservices.ecourts.gov.in/hcservices/

29. The foregoing discussions lead me to the irresistibleconclusion that the impugned eligibility criteria fall within theparameters laid down by the Hon'ble Supreme Court in variousjudgments cited supra and the same cannot be stated to be eitherarbitrary, unfair, unreasonable or illegal and I hold that it doesnot violate Article 14 of the Constitution of India. The writpetitions are devoid of any merit and they deserve to be dismissed.30. In result, the writ petitions are dismissed. No costs.Consequently, connected miscellaneous petitions are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.jbm/nvsriTo1.The Secretary to Government,Public Works Department,Puducherry.2.The Chief Engineer,Public Works Department,Puducherry.3.The Executive Engineer,Public Works Department,National Highways,Puducherry.2 ccs to M/s. Sarvabhuman Associates, SR. 41062 ccs to Mr.T.R. Rajaraman, Advocate, SR. 4145, 41462 ccs to Government Pleader, Pondicherry, SR. 3875, 3881W.P.Nos.25225 & 25226 of 2008SSR (CO)kk 4/2