ORDER
1. Engineer-in-Chief (Roads and Buildings) (R) of Andhra Pradesh, who is second respondent herein, had issued a Tender Notice N0.40412/TA.12/AE.1/97/CTN, dated 30th June, 1998 under which sealed tenders from the Registered Firms and Contractors, who had registered themselves as per G.O. Ms. No.22, dated 6th February, 1998 and G.O. Ms. No.521, dated 10th December, 1984, for execution of the following two works namely,–
1. Construction of Super Highway from Hyderabad Airport to Hi Tech City @ Madapur,
Reach-1 :(Ch. 0.00 to 150.00)
From N.T.R. Statute @ Km, 41/0 of Inner Ring Road to NFCL Junction at Panjagutta; and
Reach-2 : (Ch.150.00 to 273.00)
From NFCL Junction at Panjagutta to Jubilee Hills Check Post.
2. Construction of Super Highway from Hyderabad Airport to Hi-Tech City at Madapur,
Reach-3 : From Jubilee Hills Check Post to Guttata Bcgumpet (Ch.273.00 to 355.00+10 M)
Reach-4 : From K.M. 0/0 to 4/4 of Guttala Begumpet to Kothaguda Road,
The said notice further prescribed the dates for receipt of applications for issuance of Tender Schedule, as well as for the receipt of Tenders. While the issuance of Tender Schedule was between 4-7-1988 to 25-7-1998 expiring at 5.00 p.m. of the later date, the receipt of the Tenders was to commence from 4th July, 1998 to 3rd August, 1998 upto 3.00 p.m. The Tenders were to be opened at 3.30 p.m. on 3rd of August, 1998. The first respondent (the Superintending Engineer) was the authority prescribed for receiving the Tenders and for finalising the same. The Tender Notice stipulated certain conditions to be fulfilled. It was specifically stipulated that the Tender Schedules will not be issued to the parties if they did not produce evidence in the required manner along with the applications, showing compliance of all the conditions stipulated. The conditions inter alia required that the concerned party should produce evidence to substantiate (i) Registration; (ii) Sales Tax Clearance Certificate from Commercial Tax Department; (iii) Income Tax Verification Certificate and (iv) Certificate as required by Special Condition No. 1 regarding the requisite experience. The Special Condition No.l specifies that the intending applicant should have a good experience in execution as original agency in similar works under State/ Centra] Governments with an annual turn over of not less than Rs.460,87 lakhs and Rs.434.96 lakhs for the works at Sl. No. 1 and Sl.No.2 in the Tender notice, for a group of the above said works in one of the preceding five, years. It further specified that the experience of work under single agreement should not be less than Rs.23.44 lakhs and Rs.217.48 lakhs for works at S.Nos. land 2 respectively. Those who did not fulfil these conditions were not eligible to tender for the works. The experience and turnover certificate required, was to be obtained from concerned Executive Engineer duly counter-singed by concerned Superintendent Engineer. There was also some other conditions with which we are not concerned. The petitioner claims that he is a Special Contractor having specialisation in “Bituminous and Asphaltick High-way works” and has been registered accordingly by the Engineer-in-Chief (Administration Wing) of Irrigation and CAD Department. He has such certificate in his favour. In the Registration Certificate issued he stands at S.No.13 with an entry showing his specialisation as per G.O. Ms. No.521, Irrigation (PW) Department, dated 10-12-1984. He has also obtained necessary experience certificate from officers as required by the Tender notice showing that he had executed work from July, 1997 to June, 1998 relating to similar work with annual turnover of Rs.4,64,48,598-80 ps. He fulfils all other conditions also. The certificate further certifies that he has executed a single work under an single agreement relating to ‘forming of approaches to road over Bridge in KM 35/4 of Hyderabad-Bangalore Section of National High Way-7 to the tune of Rs. 3,35,00,000-00 starting from July, 1997 to June, 1998″. The above work is of Rs.5,18,18,640-00. The petitioner further claims that on 25-7-1998, which was the last day for obtaining Tender Schedules, he submitted two applications to respondent No.l along with all documents/ certificates for seeking the Tender Schedules for the two works specified in the Tender Notice. Tender Schedules were not issued to him on some pretext or other and, he was made to visit office from 25th July every day thereafter till 29th July. On 29th July, 1998 he was told to produce the breakup of the particulars with regard to the work which he had executed and for which he had produced the experience certificate. On 30th July, 1998 he gave the breakup particulars by obtaining a certificate from the concerned Executive Engineer and placed the same before the first respondent. The first respondent asked only petitioner to give such breakup of the work executed by him. No such breakup of work particulars was sought from any other person claiming Tender Schedule. After petitioner supplied the breakup particulars the first respondent found out an excuse to reject the petitioners’ application for Tender Schedule and issued letter No. TSRI/T.7/18493/98-99, dated 31st July, 1998. By the said letter the petitioner was informed that the work which was executed by him and shown in the experience certificate, was not similar in nature to the work for which Tenders were called and therefore, he was not entitled to claim the Tender Schedule. The request of the petitioner for Tender Schedule was thus rejected by the first respondent with a mala fide intention and obviously to help some other contractors. The rejection was totally on untenable grounds. The action of respondent No.l was discriminatory. It was obvious that healthy competition was sought to be avoided. The petitioner on these grounds seeks a mandamus to quash the letter No.TSR.I/T.7/18493/98-99, dated 31-7-1998 refusing to issue Tender Schedule to the petitioner and claims that the said refusal is illegal, arbitrary, discriminatory and mala fide. A further direction is sought that respondent No.l be directed to issue Tender Schedule to the petitioner in respect of the two works in question and to extend the last date for receipt of Tenders to enable the petitioner to submit his tender in a sealed form with a consequential direction that respondent No. 1 should consider the petitioner’s Tender along with other tenders received by the respondents.
2. The stand of respondent No.l is that as soon as the petitioner submitted his application for issuance of Tender on 26th July, 1998 along with all the documents including experience certificate he was asked to submit the break-up details of the work executed by him. It is further stated that the petitioner did not turn up till 30th July, 1998. The break-up of work given by him clearly shows that he had no experience requisite, in work similar to one for which tenders were called. Thus he did not fulfil the Tender-condition. The experience of the petitioner was not in Asphaltick and Bituminous nature. The experience of petitioner was mainly in respect of ‘formation of embankment’ which requires doing of Earth Work. Thus the petitioner was not entitled to obtain Tender Schedule as per the condition in the Tender Notice. It was due to non-fulfilment of prerequisite condition for obtaining Tender Schedule, that his prayer was rejected by Letter dated31-7-1998. It is contended that the failure of petitioner to give breakup of work details till 30th July, 1998 itself disentitled the petitioner from seeking Tender Schedule. It is also contended that the petitioner was informed about his non-eligibility on 25th of July, 1998 itself. It is pointed out that the present work is of construction of Super High Way. The majority of this work involves Asphaltick and Bituminous work. Earth work is very meagre in the construction of Super High Way. Though the petitioner was informed on 25th July, 1998 itself about his ineligibility, option was kept open to the petitioner even after the expiry of stipulated date i.e., 25-7-1998, for issuance of Tender Schedule only to enable the petitioner to furnish the supporting experience certificate. It is denied that healthy competition was sought to be avoided. It is stated that twelve or thirteen applicants were issued Tender Schedules on being satisfied that they were eligible. It is denied that there was any political pressure or mala fides in rejecting the petitioner’s claim for the Tender Schedule. It is further pointed out that in fact the Tenders were opened already when respondent No. 1 received a copy of the interim orders passed by this Court. The finalisation of Tender was kept pending as directed by the Court. It is stated that the delay in finalising the Tender will cause an irreparable loss to the Government as work is to be completed in a time bound programme. It is therefore, urged that the petition may be dismissed as petitioner is not at all entitled to obtain Tender Schedules, much less entitled to compete along with others.
3. It may be pointed out that the petitioner’s application for Tender Schedule was rejected by the impugned letter dated 31st July, 1998. The said date was on Friday.
First August and Second August were Saturday and Sunday and it is stated by the petitioner’s learned Counsel that he sought House Motion but Ihe same was not granted. He therefore, filed this writ petition on 3rd August, 1998 which was the first available date after the impugned letter was received by him. The matter came up before this Court after 2.15 p.m. on 3rd August, 1998. This Court by an interim direction directed respondent No.l to issue Tender Schedule to petitioner and gave further direction not to finalise the Tenders. However, in the mean time the tenders were opened as per the programme in the Tender Notice, at 3.30 p.m. on 3rd August, 1998 itself. Further finalisation has been stayed by this Court.
4. In this background with consent of advocates on both sides, the writ petition itself has been taken up for final disposal now.
5. Though respondent No.l has contended that the petitioner’s application was rejected orally on 25th July, 1998 itself, the contention does not appear to be true at all. The petitioner has specifically stated that his application of 25th for issuance of Tender Schedule was not rejected. On the other hand, he was asked time and again to come to the office. Admittedly there is no proceeding dated 25th July, 1998 served on petitioner to show that the petitioner’s application was rejected. Had the application been rejected on 25th July, 1998 itself, the petitioner could have immediately challenged the said rejection before 31-7-1998. The letter dated 31 st July, 1998 no where refers to the rejection of petitioner’s request on 25-7-1998 itself. On the other hand, the said letter of 31-7-1998 is apparently in response to the application for Tender Schedule submitted by the petitioner on 25th July, 1998. Reference No.2 in the impugned letter dated 31st July, 1998 is regarding the application given by the petitioner on 25-7-1998. The learned Counsel for the respondents was unable to give any explanation as to why on 25-7-1998 itself the application for the Tender Schedule was not rejected by any written communication. Thus the petitioner was obviously made to believe that his application was under consideration for issuance of Tender Schedule. The action of the first respondent in rejecting the same on 31st July, 1998 does not appear to be an outcome of normal and honest process. There is obviously some thing more than meets the eye. To don the holistic attitude, first respondent has stated that option was kept open to the petitioner even after lapse of stipulated date to enable the petitioner to furnish ‘supporting experience certificate’. This averment in para No.5 of the counter itself betrays the attitude of the first respondent. It clearly shows that respondent No.l had not rejected the petitioner’s application on 25th July, 1998. If it was dismissed or rejected on 25th, there was no question of giving option to the petitioner to furnish the breakup of his work and details of his experience to support his experience certificates which was submitted by him on 25th July, 1998. I have therefore, no hesitation whatsoever in accepting the petitioner’s contention that his application for Tender Schedule, submitted on the last date, was kept pending till 31st July, 1998. The contention of first respondent that the application was rejected on 25th itself, is clearly untrue.
6. It was next contended by the learned Government Pleader for the respondents, that the petitioner should have applied before 25th July, 1998 and should not have waited till 25th July. This contention has to be stated merely for rejection. 25th July, 1998 was the last date for making application. The petitioner had made the application on the last date. This was perfectly permissible. It does not lie in the mouth of respondent No. 1 to say that the petitioner should not have applied for Tender Schedule on 25th July, 1998 though that was prescribed as the last date. The contention of respondent No.l that the respondents have already opened the Tenders on 3rd August, 1998 as per the programme in the Tender Schedule by itself, would not come in way of considering the petitioner’s case. Respondent No.l cannot take advantage of his own wrong to defeat the petitioner’s claim if it is otherwise legal and justified. The petitioner was prevented from approaching this Court till 3rd August, 1998 due to the design of respondent No. 1. I am of the view that notwithstanding the fact that the Tenders have been opened on 3rd August, 1998 at 3.30 p.m., the petition can yet be considered and if the petitioner’s claim is accepted appropriate direction can be granted.
7. Before proceeding to consider the contentions advanced on behalf of rival sides, it would be proper to refer to certain factual aspects. The Tender Notice dated 30th June, 1998 described the nature of work, which has been extracted above already in para No. 1. In column No.7 of the said notice it was stipulated that all those contractors, who were registered as Special Class as per G.O.Ms. No.521, dated 10-12-1984 with specialisation in Bituminous and Asphaltic Highway Works were eligible, subject to fulfilment of other conditions. While referring to the name of work which is in column No.2 and described already in para No.1, there is no reference whatsoever to Bituminous and Asphaltic work. It is only in column No.7 that reference to this aspect is made. Column No.7 is not regarding nature of work but it refers only to qualification of the applicant/ contractor for doing such work. The relevant Special Condition attached to the Tender Notice is at S.No. 1 and is as follows :
“The intending applicants in the name and style having good experience in execution as original agency in similar works under State/Central Governments with an annual turnover of not less than Rs.460.87 lakhs and Rs.434.96 lakhs for the works at S.Nos. 1 and 2 respectively, for a group of the above said works in any one year of the preceding five years. Out of which, turnover on a work under single agreement should be not less than Rs.230.44 lakhs and Rs.217.48 lakhs for the works at S.Nos. 1 and 2 respectively only are eligible to tender for the above work. The experience and turnover certified by the concerned Executive Engineer and countersigned by Superintending Engineer may be produced.”
The whole controversy raised now is whether the petitioner fulfils this Special Condition No. 1 or not ? A careful reading of this Special Condition No.1 will show that the applicant should have good experience in execution as original agency in similar works under State/ Central Government…… ……(underlined to give emphasis). The words “similar works” obviously refer to the work referred in column No.2 in the Tender Notice. I have already pointed out that in giving particulars of the work in column No.2 there is absolutely no reference any where to the extent of Bituminous and Asphaltic Highway Work involved. The work only refers to construction of Super High Way. The words “similar work” has therefore to be construed in the context of description given in column No.2. I am of the view that column No.7 in which qualification in specialisation in Bituminous and Asphaltic Highway works is stipulated has nothing to do with the nature of work specified in column No.2. The two columns are independent of others. It may be pointed out that there is no General or Special Condition in the Tender Notice which requires that the applicants ought to have executed any minimum quantity of Bituminous and Asphaltic Highway works.
8. I think that if Tenders are invited without imposing any pre-qualification or condition then every citizen has a right to offer himself to execute the work and get himself considered. However, when certain conditions by way of pre-qualifications are imposed, a person not fulfilling those conditions cannot be issued the Tender Schedule. The object of calling for Tenders to execute a particular work is duel. The first object is to secure requisite comp tent persons and the second object is to get the work executed with minimum cost. The cost factor is particularly important in respect of works which are to be executed at the cost of public funds. However, it cannot be gainsaid that both me objects have to be fulfilled and, the two objects are not to be considered in isolation. It is for verification of competency of the applicant that ready and effective method of verifying the previous experience of the applicant in work of similar nature, is adopted. It is no doubt true that when such conditions are prescribed, no individual has a right to enter into contract with Government or State unless he fulfils the conditions, but he is entitled to equal treatment with others, who offer to do the said work.
The Experience Certificate produced by the petitioner is dated 22-6-1998. The experience certificate issued by Executive Engineer and counter-signed by Superintending Engineer as required by the Special Condition No.1 and which has been produced by the petitioner is as follows :
Experience Certificate
This is to certify that Sri S. Shivraj Reddy, Special Class Contractor is executing the work of “forming of approaches to Road over Bridge in KM.35/ 4 of Hyderabad-Bangalore Section of NH.7.”
He has so far executed the work to a tune of Rs.3,35,00,000-00 (Rs. Three crores thirty five lakhs only) starting from July, 1997 to June, 1998 (i.e., Period of one year) to the satisfaction of the Department and the work is in progress. (Agreement No.CRNo.8496-97).
22-6-1998
Sd/-
Executive Engineer (R&B),
N.H. Division-H, Hyderabad.
Counter-signed
24-6-1998
Sd/-
Superintending Engineer
(R&B), NH Circle, Hyderabad.”
The reading of the said certificate shows that the petitioner had executed the work of Hyderabad-Bangalore Section of National Highway-7. The quantum of work referred to in the certificate is sufficient to fulfil the quantum part of the work in the Tender Notice. Respondent No.l called for breakup of particulars of this work. The petitioner supplied the said breakup of work particulars by obtaining necessary information from the concerned Superintending Engineer. The impugned letter dated 31st July, 1998 issued by respondent No. 1 states that on verification of the agreement of the work, in respect of which petitioner had obtained experience certificate, it was disclosed that the major component of the work executed was of ‘formation of Earth work’ in respect of Embankment and the Bituminous part of it was comparatively minor. The letter further says that the basic essential eligibility requirement was of similar nature of work i. e., Asphaltic and Bituminous nature of works. The letter finally says that the petitioner did not fulfil the basic essential eligibility requirement and hence the request of petitioner for issuance of Tenders Schedule for the Tender work was rejected. I have already pointed out that the nature of work is described only in column No.2. It nowhere refers as to how much component of the whole work was of Asphaltic and Bituminous nature. The nature of work is construction of Super Highway only. Every construction of Super Highway or for that matter any road or way consists of several components including earth work, metalling, rolling and Asphalting etc. Column No.7 was not concerning the nature of work but only a qualification for executing the nature of work. The said column No.7 of the Tender Notice dated 30-6-1998 is as follows :
“L.S.
Special Class, as per G.O. Ms. No.22, dated 6-2-1998 (OR) Special Class as per G.O. Ms. No.521, dated 10-12-1984 with specialisation in Bituminous and Asphaltic Highway works.”
Column No.7 shows that the requirement was only that the applicant should have been registered as per Special G.O. Ms. No.521, dated 10-12-1984 with specialisation in Asphaltic and Bituminous Highway works. This condition is obviously fulfilled by the petitioner. The petitioner had produced along with his application for Tender Schedule the list of contractors/ registered as Special Class of Contractors issued under Proceedings No.RC/ENC/Al/60256/95-10, dated 4-12-1995 by the Engineer-in-Chief (Administration Wing) Irrigation, CAD Department. The said list shows at Sl.No.13 that the petitioner was registered in terms of G.O. Ms. No.521 with specialisation in Bituminous and Asphaltic Highway works and his registration Number was 244/95/BOCEs. It will thus appear that requirement of column No.7 in Tender Notice was fulfilled by the petitioner. He was registered, as required by the said column, with specialisation in Bituminous and Asphaltic Highway work. In this view of the matter, all the conditions imposed in the Tender Notice have been apparently fulfilled and there was no reason for rejecting the petitioner’s application.
9. The contention of respondent No.1 that the petitioner has no experience in “work of similar nature” as was to be executed in the Tender Notice cannot be accepted in view of the aforesaid factual position. The words ‘work of similar nature’ have to be given a broad meaning but at the same time it cannot be divorced from the context of work which is the subject-matter of the Tender. The work of similar nature already executed by the applicant may not be identical in details and extent, yet it may be analogous. It is only the work which is totally unrelated to tie one for which the Tender Notice has been issued that may be ignored from the category of “work of similar nature”. The pre-qualifications are prescribed only to verify the qualifications and not for giving an opportunity to the authorities to pick and choose persons at the very initial stage, on some unconnected grounds and unrelated pretext. If the applicant fulfils the pre-qualifications, normally the elimination stage would arise only after the Tenders are submitted and scrutinised on their respective merits. It need not be emphasised that every Tenderer is entitled to be treated fairly and honestly and the authorities are not entitled to invoke their power, to put transparency and honesty behind a smoke screen. I think that the petitioner had submitted the Experience Certificate in respect of “similar work under State/Central Government” for execution of the same as original agency with requisite annual turnover. The feet that the work executed by the petitioner consisted of large part of Earth work was immaterial. The experience was in respect of construction of Highway. The forming of approaches to the road or overbridge is undoubtedly part of Highway. It cannot be said that the formation of approach is not part of the National Highway. The mincing of words attempted by respondent No.l in the impugned letter, for purposes of rejecting the petitioner’s claim is a poor attempt to hide unholy motives. Respondents have, without any basis, asserted that the basic essential eligibility requirement was of having executed Asphaltic and Bituminous nature of work. It was gross twisting of factual position when the impugned letter said “the Experience Certificate furnished by you is of earth work in nature”. As pointed out already, the petitioner had constructed Highway and was having Special Class as perG.O. Ms. No.52I with specialisation in Bituminous and Asphaltic Highway work. He was thus qualified to obtain Tender Schedule.
The learned Government Pleader for respondents has referred to the decision in Syed Moosa Quadri v. Municipal Corporation of Hyderabad, 1986 (2) ALT 466, for contending that if a contractor has no experience of ‘similar work’ in the past, there is no violation of Article 14 of the Constitution of India if contract is not given to him. I do not think that me facts of the said case have any relevance to the present case. On the other hand the principle which was enunciated in the said case supports the view taken by me. In para 13 of the said judgment His Lordship Justice K. Ramaswamy (as he then was) has observed:
“The words “similar nature” must be considered in the light of (he nature of the work to be executed. It must be analogous work but not a work unrelatable to the one which is offered to be executed. The very object or purpose is to have a person with previous experience; the men and material, the capability and efficiency to execute the work with dextirety within the stipulated contractual period. In that regard, the previous experience and the qualifications prescribed are essentially and integrally connected with the object sought to be achieved and bear reasonable relation.
10. The rejection of petitioner’s application for Tender Schedule in the circumstances of the case was far from bona fide exercise of respondents’ power.
11. The respondents have taken a stand that the petitioner’s claim for issuing Tender Schedule was rejected as the Experience Certificate produced by him showed that he had done major part of the work consisting of earthwork. Therefore all the record concerning the issuance of the Tender-Notice was called for. On perusal of the record, it appears that other persons, who had also done only single work have been issued Tender Schedule. In many of the cases where Tender Schedule has been issued the majority of work done by the concerned applicants was of earth work nature, In the counter it was contended that not only the petitioner but also another applicant by name National Building Construction Corporation (A Government of India Undertaking) was not issued Tender Schedule. The non-issuance of Tender Schedule to this Corporation was on the ground that no documents, as required, were produced. That was a distinctly separate case and not on par with the case of the petitioner. There are more than one applicants, who haye done majority of work “of earth work nature” in comparison to B.T. item. I therefore, find no justification for non-issuance of Tender Schedule to the petitioner. Further I, have pointed out already, that the very fact that the petitioner was not informed on 25th July, 1998 itself that his application for Tender Schedule was rejected, shows some sort of foul play. On verification of record now it is found that endorsement has been made on the Office Note which is attached to the application of petitioner. This endorsement is shown to be of 25th July, 1998. The endorsement is to the effect that the Tender-Schedule should not be issued to the petitioner since the petitioner has got no eligibility, due to improper experience. It is now clear from the stand taken in the counter that on 25th July, 1998 there was no material before the authorities to show petitioners quality or experience. That is why the respondents had asked the petitioner to give the break up of the work done by him. It is now an admitted feet that for the first time on 31-7-1998 that respondent No. 1 had given reason that the basic essential eligibility is not fulfilled by the petitioner and hence his request for Tender-Schedule was rejected. The endorsement of 25-7-1998 of respondent No.1 thus appears to have come into existence subsequently. If that endorsement was made on 25th itself there was no reason not to intimate in writing on 25th July, 1998 itself that request of the petitioner for issuance of the Tender Schedule was rejected.
12. Thus having regard to all the fects and circumstances of the case and particularly after going through the record, I am fully satisfied that the rejection of the petitioner’s request for issuing the Tender Schedule to him was, improper, unjust, untenable and suffers from lack of bona fides.
13. The question now arises as to what relief can be given to the petitioner ? The facts narrated in the beginning show that by rejecting the application of the petitioner for the first time on 31st July, 1998, the petitioner was prevented from approaching the Court to obtain effective relief before the Tenders were to be opened in the afternoon of 3rd August, 1998. By interim orders this Court has directed respondent No. 1 to issue Tender Schedule to the petitioner. The petitioner is therefore entitled to submit his Tender. The respondents shall consider the Tender so filed by the petitioner and, finalise all the Tenders in accordance with usual procedure. Though the other Tenders have been opened by respondent No.l it is obvious that the petitioner was unaware of the bids made by those Tenderers and therefore, there shall be no difficulty in processing the Tenders. The last date of acceptance of Tender has to be considered by respondent No. 1 as having been extended to enable the respondents to accept the petitioner’s Tender, the last date of finalisation of Tender shall also stand extended till 4.30 p.m, of 13th August, 1998.
14. The writ petition is accordingly ordered. No costs.
