ORDER
Narendra Nath Tiwari, J.
1. In this writ petition, the petitioner has prayed for quashing the part of Tender Notice No. 1 of 2006-07, contained in Annexure-6, issued by the Engineer-in-Chief, Drinking Water and Sanitation Department. Government of Jharkhand, Ranchi, inviting tender for construction of Tube well in various circles’ throughout the State of Jharkhand. The petitioner is particularly aggrieved by insertion of Clause 9 in the tender notice, whereby the registered contractors of the department, who are in the field for quite long period, are required to submit their working experience of the similar nature of work in one year for the last three years of equivalent value or more to the work value advertised, whereas the new entrants i.e., newly registered contractors have been exempted from furnishing any working experience.
2. It has been stated that the work of several circles has been clubbed together by increasing the work value, so as to debar the local contractors of Palamau district from participating in the tender. None of them have got working experience of equivalent or more to the advertised work value after clubbing the jobs together. According to the petitioner the said discriminatory Clause has been inserted only in order to favour some contractors who have been newly registered in the department for the said purpose. It has been stated that in the district of Palamau, no tender of that value has been issued by the Government for the work of laying down tube wells in last three years and as such, no experienced contractors of the district possess the said experience, as alleged in the tender notice.
3. According to the petitioner, the insertion of the said condition by Clause 9 in the tender notice is deliberate and the same is wholly arbitrary and discriminatory to the petitioner and other local contractors and in violative of Articles 14 and 19(1)(g) of the Constitution of India. It has been stated that earlier the value of works of the respective circles were within the limit of the respective registered contractors of the district and the contractors have executed the works to the satisfaction of the department. The Drinking Water and Sanitation Department this year also floated tenders for laying down-tube wells in each Panchayat of various districts of the State of Jharkhand and various tenders were earlier published for different circles including that of Medninagar circle. The petitioner is an experienced registered contractor of the department of Drinking Water and Sanitation in Palamau district and a local resident had participated in the tender in response to the tender notice dated 8th January, 2007 but the said tender was cancelled by the Engineer-in-Chief vide letter dated 17th January, 2007, on the plea that fresh tender would be issued from the headquarters. After canceling all the tenders, this time, the work values of various districts and circles have been clubbed together and a joint tender notice has been advertised vide tender notice dated 18th January, 2007 (Annexure-6).
4. It has been stated that in impugned tender notice (Annexure6), Clause 9 has been deliberately inserted to debar the local contractors and to favour the newly registered contractors, who have absolutely no experience of such nature of work in the department. It has been stated that no different criteria one for old contractors and another for new contractors in the matter of experience can be fixed and the new contractors cannot be favoured by exempting them from the requirement of submitting experience certificate and the same amounts to hostile discrimination against the experienced contractors of the department.
5. A counter-affidavit has been filed on behalf of the respondents. It has been stated, inter alia, that the State Government took a decision that old contractors can participate in respect of any group, the value of which is equal to the work executed by him in any of the three preceding years. This condition in terms of the contract was included in public interest and for execution of the work in time, whereas newly registered contractors have been allowed to participate in the tender in accordance with the nature of their registration and under the amount limit up to which they are entitled to participate in the tender. It has been stated that newly registered contractors cannot have past experience and that they have been allowed to participate in the tender for developing healthy competition and if they are deprived from participating in the tender, they will never get experience. The contractors, who have been registered during the current year 2006-7 have been considered to be newly registered contractors and have been exempted from furnishing any experience certificate. The contractors, who have been registered in the department prior to 2006-07 will have to furnish the working experience certificate.
6. From the statements made in the counter-affidavit, it is clear that the respondents have made two different classes within one class of contractors fixing different criteria of eligibility for participation in the tender. Road has been freely opened for participation of new contractors who have no experience. Whereas the contractors having experience of similar work in the department have been debarred, if they fail to produce experience certificate of work of equal value and similar nature in one year during the last three years.
7. The reasoning supplied by the respondents in support of the said discriminatory provision is strange. Normally, a person having some experience is preferable to a person without any experience. The registered contractors of the department, who are in the field, have experience of laying down the tube wells and executing such works and they would have been preferred over the newly registered contractors, who have got no experience at all, but in the instant case, situation is just the reverse, I had no reasonableness rationality and bona fide in such provision of the said Clause in the tender. The ground that such exemption has. been given to the newly registered contractors in order to create a healthy competition and speedy execution of the work does not stand to create a bar on the persons having experience and allowing the new entrants without any experience to undertake the work, in my opinion, neither creates any healthy competition nor can ordinarily help speedy execution of the work. The contractors having experience are already equipped with infrastructiares know-how. personnel and experienced hands and are expected to execute the work with more speed and better skill and a person that a person who has just entered field and has no such advantages. The stand taken by the respondents in support of Clause 9 of the tender notice, therefore, does not stand to the test of reasonableness and equality and offends Article 14 of the Constitution of India. The respondents failed to convince and make out any intelligible differentia to justify insertion of said provision in Clause 9 of impugned tender notice to the extent of requiring the experience certificate from the old contractors and giving exemption therefrom to the newly registered contractors is thus held to be ultra vires of Article 14 of the Constitution of India, is, hereby quashed. This writ petition is allowed to that extent.
