Digdarshi Women Group v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH BILASPUR Writ Petition (C) No.1756 of 2020 Digdarshi Women Group Through it's President, Rekha Verma D/o Shri B. Verma, Aged about 48 years, R/o Near J.J. Hospital Torwa, Bilaspur (C.G.).

---- Petitioner

Versus

1.

State of Chhattisgarh, Through Secretary, Urban Administration and Welfare Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, Naya Raipur, Distt. Raipur, (C.G.).

2.

Collector, Bilaspur, District Bilaspur (C.G). 3.

Municipal Corporation, Bilaspur, Through Municipal Commissioner, Municipal Corporation, Bilaspur (C.G.). 4.

Zone Commissioner, Zone No.7, Municipal Corporation, Bilaspur, District Bilaspur (C.G.).

---- Respondents Writ Petition (C) No. 2004 of 2020 Digdarshi Women Group Through its President, Rekha Verma D/o Shri B. Verma, Aged About 48 Years, R/o Near J.J. Hospital Torwa, Bilaspur (C.G.).

---- Petitioner

Versus

1.

State of Chhattisgarh Through Secretary, Urban Administration and Welfare Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, Naya Raipur, District Raipur (C.G.).

2.

Collector, Bilaspur, District Bilaspur (C.G.). 3.

Municipal Corporation, Bilaspur, Through Municipal Commissioner, Municipal Corporation, Bilaspur (C.G.). 4.

Zone Commissioner, Zone No.3, Municipal Corporation, Bilaspur, District Bilaspur (C.G.).

---- Respondents Writ Petition (C) No. 2005 of 2020 Digdarshi Women Group Through its President, Rekha Verma D/o Shri B. Verma, Aged About 48 Years, R/o Near J.J. Hospital Torwa, Bilaspur (C.G.).

---- Petitioner

Versus

1.

State of Chhattisgarh Through Secretary, Urban Administration and Welfare Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, Naya Raipur, District Raipur (C.G.).

2.

Collector, Bilaspur, District Bilaspur (C.G.). 3.

Municipal Corporation, Bilaspur, Through Municipal Commissioner, Municipal Corporation, Bilaspur (C.G.). 4.

Zone Commissioner, Zone No. 4, Municipal Corporation, Bilaspur, District Bilaspur (C.G.).

---- Respondents WPC No.1756 of 2020 For Petitioner : Shri Vivek Sharma, Advocate For Respondents No.1 & 2 : Shri Chandresh Shrivastava, Deputy Advocate General For Respondents No. 3 & 4 : Shri Ashutosh Singh Kachhawaha, Advocate WPC No.2004 of 2020 For Petitioner : Shri Anup Majumdar, Advocate For Respondents No.1 & 2 : Shri Chandresh Shrivastava, Deputy Advocate General For Respondents No. 3 & 4 : Shri Ashutosh Singh Kachhawaha, Advocate WPC No.2005 of 2020 For Petitioner : Shri Anup Majumdar, Advocate For Respondents No.1 & 2 : Shri Chandresh Shrivastava, Deputy Advocate General For Respondents No. 3 & 4 : Shri Ashutosh Singh Kachhawaha, Advocate Hon'ble Shri P. R. Ramachandra Menon , Chief Justice Hon'ble Shri Parth Prateem Sahu, Judge Order on Board Per Parth Prateem Sahu , Judge 21.09.2020 1.

As in all the three writ petitions, the petitioner is one and the same and respondents are also same, who issued three different tender notifications, but the cause of rejection of the bid of the petitioner is almost identical, all the three writ petitions are being disposed of by this common order.

2.

The petitioner is registered under the Chhattisgarh Society Registration Act having its registration No.3594. Respondent-Municipal Corporation has floated different tender notifications for the work of supply of labourers and supervisors separately for its different zones. In tender notifications, petitioner submitted her bid along with all requisite documents as per requirement of terms and conditions of the tender, but the bid submitted by the petitioner in all the three tender notifications, subject matter of these writ petitions, have been rejected.

3.

In Writ Petition (C) No.1756 of 2020, respondentMunicipal Corporation issued tender notification bearing System Tender No.64878, NIT No.03, dated 04.06.2020 for "supply of 60 labourers and supervisors for Department Zone07 Municipal Corporation, Bilaspur". The petitioner submitted her bid along with other bidders. Upon opening of the bid, the bid submitted by the petitioner has been rejected on techno commercial evaluation on the ground that "others experience certificate not valid and GST certificate invalid from CA (Chartered Accountant)". The petitioner has received system generated information about rejection of her bid on 08.07.2020 at 3.00 pm. Respondent-Municipal Corporation thereafter cancelled the entire tender proceedings of System Tender No.64878 and floated a new tender notification bearing System Tender No.66657, NIT No.08, dated

28.07.2020. Challenging these actions, petitioner has filed this petition with following reliefs:

"10.1 That, the Hon'ble Court may kindly be pleased to call the records pertaining to NIT No.03 dated 04/06/2020 for perusal of the Hon'ble Court.

10.2 That the Hon'ble may kindly be pleased to issue appropriate writ/ order/direction to set aside/quash the impugned order/communication, dated 28th of July 2020 arising out of NIT No.08 System Tender No.66657 issued by the respondent No.4 (Annexure P/1).

10.3 That, the Hon'ble Court may kindly be pleased to issue appropriate writ/order/direction to set aside/quash the impugned order/communication dated 8th of July 2020 arising out of NIT No.03 System Tender No.64878 issued by the respondent No.4 (Annexure P/4).

10.4 The Hon'ble Court may kindly be pleased to direct the respondent corporation that participation of the petitioner be taken into consideration for tender process and conclude the tender process arising out System Tender No.64878 NIT No.03 issued

dated 04.06.2020.

10.5 The Hon'ble Court may kindly be pleased to grant any other relief as deemed fit on the basis of facts and material available on the record."

4.

In Writ Petition (C) No.2004 of 2020, respondentMunicipal Corporation issued tender notification bearing System Tender No.64881, NIT No.03, dated 04.06.2020 for "supply of 50 labourers and supervisors for Department Zone03 Municipal Corporation, Bilaspur". The petitioner participated in this tender proceedings as well and submitted her bid, which was rejected and system generated information has been uploaded on 14.07.2020 mentioning the ground for rejection as "GST number composition is not valid this work, UDIN not in CA certificate and labour licence not attached". Subsequently, respondent-Municipal Corporation cancelled entire tender proceedings of System Tender No.64881 on 20.07.2020 and floated fresh tender for the same work vide System Tender No.66646, NIT No.06, dated 28.07.2020. This made the petitioner to approach this Court by filing with writ petition challenging the action of respondent-Municipal Corporation with following reliefs:

"10.1 That, the Hon'ble Court may kindly be pleased to call the records pertaining to NIT No.03 dated 04/06/2020 for perusal of the Hon'ble

Court.

10.2 That, the Hon'ble may kindly be pleased to issue appropriate writ/ order/direction to set aside/quash the impugned order/communication, dated 28th of July 2020 arising out of NIT No.06 System Tender No.66646 issued by the respondent No.4 (Annexure P/1).

10.3 That, the Hon'ble may kindly be pleased to issue appropriate writ/order/direction to set aside/quash the impugned order/communication dated 28th of July 2020 arising out of NIT No.03 System Tender No.64881 (Annexure P/6).

10.4 That, the Hon'ble may kindly be pleased to issue appropriate writ/order/direction to set aside/quash the impugned order/communication dated 14th of July 2020 arising out of NIT No.03 System Tender No.64881 issued by the respondent No.4 (Annexure P/4).

10.5 The Hon'ble Court may kindly be pleased to direct the respondent corporation that conclude the tender process arising out of System Tender No.64881 NIT No.03 issued dated 04.06.2020.

10.6 The Hon'ble Court may kindly be

pleased to grant any other relief as deemed fit on the basis of facts and material available on the record."

5.

In Writ Petition (C) No.2005 of 2020, challenge is to the rejection of bid of the petitioner in System Tender No.64882, NIT No.04, dated 04.06.2020 for "supply of 50 labourers and supervisors for Department Zone-04 Municipal Corporation, Bilaspur". The petitioner participated and submitted her bid, but her techno commercial bid was rejected and the reason assigned in system generated information is "GST certificate invalid and UPIN number not submitted." This tender proceedings was also cancelled and informed through e-mail on 28.07.2020, thereafter, respondent-Municipal Corporation has floated fresh tender notification bearing System Tender No.66647, NIT No.07, dated 28.07.2020. Challenging the aforementioned action of respondent-Municipal Corporation, petitioner has filed this writ petition with following reliefs: "10.1 That, the Hon'ble Court may kindly be pleased to call the records pertaining to System Tender No.64882 NIT No.04 dated 04/06/2020 for perusal of the Hon'ble Court.

10.2 That the Hon'ble may kindly be pleased to issue appropriate writ, orders, direction to set aside/quash the impugned order/communication, dated 28th of July 2020 arising out of System

Tender No.66647 NIT No.07 issued by the respondent No.4 (Annexure P/1).

10.3 That, the Hon'ble Court may kindly be pleased to issue appropriate writ/order/direction to set aside/quash the impugned order/communication dated 9th of July 2020 arising out of System Tender No.64882 NIT No.04 dated 04.06.2020 issued by the respondent No.4 (Annexure P/5).

10.4 The Hon'ble Court may kindly be pleased to direct the respondent Corporation, Quash the communication date 28th July 2020 further prayed to conclude the tender process arising out of System Tender No.64882 NIT No.04 dated 04.06.2020 issued by the respondent No.4 (Annexure P/3).

10.5 The Hon'ble Court may kindly be pleased to grant any other relief as deemed fit on the basis of material on available in the petition."

6.

Shri Vivek Sharma, learned counsel for the petitioner in Writ Petition (C) No.1756 of 2020 and Shri Anup Majumdar, learned counsel for the petitioner in Writ Petition (C) Nos.2004 of 2020 & 2005 of 2020 submits that this Court has considered the ground for rejection of techno commercial bid of the petitioner on the ground of labour licence and invalid

GST certificate i.e. 'composition GST certificate' in Writ Petition (C) Nos.1601 of 2020 and 1732 of 2020 and decided in favour of the petitioner. The petitioner in aforementioned two writ petitions is one and the same as in the present petitions. It is brought to the notice of this Court that this Court directed the respondent-Municipal Corporation to provide an opportunity to the petitioner to participate in fresh tender proceedings by extending dates for submission of the bids as well as date of opening of the bids by way of issuance of corrigendum to the new tender notification.

7.

Shri Vivek Sharma, learned counsel for the petitioner in Writ Petition (C) No.1756 of 2020 submits that the petitioner has submitted the experience certificate and GST certificate along with the tender document. He referred to page-45 of the reply submitted by respondent-Municipal Corporation and argued that in the comparative chart prepared by the respondent-Municipal Corporation, GST certificate has been shown to be 'O.K.' He points that in other tender proceedings, same GST certificate has been filed and it was recorded by the authorities that the GST certificate was active, but its GST registration is composition and not regular. He further submits that under the head of experience certificate, it is mentioned that the certificate enclosed has been issued by the 'Nagar Nigam Account Officer'. It is contended that consideration before this Court is only with regard to rejection of the bid of

petitioner on the ground of "others experience certificate invalid and GST certificate invalid from Chartered Accountant". As the issue of GST certificate has already been considered and decided by this Court, petitioner fulfills all the criteria. With regard to experience certificate he referred to the documents enclosed along with covering memo dated 02.09.2020 and argued that the experience certificate was issued by the Health Officer of Municipal Corporation, Bilaspur on 09.03.2018 mentioning that petitioner has worked for the years 2013-14, 2014-15, 2015-16 & 2016-17, and referring to page-2 of the same covering memo submitted that the certificate is also issued by the Account Officer showing the value of work which the petitioner has done in the years 2016-17, 2017-18 and 2018-19.

The rejection of techno commercial bid of the petitioner was unwarranted as the petitioner fulfills all the required terms and conditions, but arbitrarily her bid was rejected. He further points out that respondent-Municipal Corporation without recording any reason subsequently cancelled the entire tender proceedings of System Tender No.64878. The financial bid of all the bidders were opened, in which, the petitioner's bid was found to be lowest (L-1). Action of respondent-Municipal Corporation is only to oust the petitioner from participation, and to award contract to person of their choice.

8.

Shri Anup Majumdar, learned counsel for the petitioner

in Writ Petition (C) Nos.2004 of 2020 and 2005 of 2020 submits that in Writ Petition (C) No.2004 of 2020, the reason assigned for rejection of bid of the petitioner is "GST number composition is not valid this work, UDIN not in CA certificate and labour licence not attached". He submits that respondentMunicipal Corporation has not mentioned in terms and conditions of the subject tender that turnover certificate (CA certificate) should bear UDIN, hence, the certificate enclosed along with the tender document with regard to turnover issued by her Chartered Accountant does not bear the UDIN. The Chartered Accountant of the petitioner is having UDIN, which was subsequently placed on record along with covering memo and copy of this document is also given to the learned counsel for the respondent-Municipal Corporation.

It is contended that the terms and conditions required to be fulfilled by the bidders are to be specifically mentioned in the tender document. The bidders can only be held ineligible and their bids can be rejected if they do not fulfill the requirement as mentioned in the terms and conditions of the tender document. It is further contended that petitioner has earlier filed two writ petitions against rejection of her bid by respondent-Municipal Corporation for Zone No.1 and Zone No.

labour licence. Those writ petitions were decided in favour of the petitioner. The grounds taken for rejection of the bid by respondent-Municipal Corporation is only to oust the petitioner from participation in the tender proceedings. It is pointed out that the issue of GST number composition has been decided by this Court in favour of the petitioner in Writ Petition (C) Nos.1601 of 2020 and 1732 of 2020 taking into consideration Clause 14 of the tender document.

It is further pointed out that issue of labour licence has already been considered and decided by this Court in aforementioned writ petitions, considering the provisions of Section 12 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'Act of 1970') as also Rule 21 of the Contract Labour (Regulation and Abolition) Central Rules, 1971 (hereinafter referred to as 'Rules of 1971'), as also considering the Clause 11 of the tender document as well as Clause 9 of the terms and conditions attached to the tender document in favour of petitioner. Only to oust the petitioner, entire tender proceedings have been cancelled by respondent-Municipal Corporation without any reason. He argued that fresh tender notification issued on 28.07.

2020 be quashed and candidature of the petitioner be considered for earlier tender notification bearing System Tender No.64881, NIT No.03. He lastly points out that while rejecting bid of the petitioner of System Tender No.64882, NIT No.

matter of Writ Petition (C) No.2005 of 2020, another ground has been created for ousting the petitioner for non-mentioning of UPIN number. The respondent-Municipal Corporation is the same authority in all the writ petitions, but for rejecting the bid of the petitioner, they have created different grounds, which itself is arbitrary action on the part of the respondentMunicipal Corporation. 9.

Shri Ashutosh Singh Kachhawaha, learned counsel for respondents No.3 and 4/Municipal Corporation submits that respondent-Municipal Corporation has filed detailed reply along with copy of note-sheets of the proceedings of the subject tenders in respective writ petitions. He further submits that upon scrutiny of the documents submitted by the petitioner, it was found that the petitioner does not fulfill the requirements as mentioned in terms and conditions of the tender document. It is contended that so far as the reason for rejection of the bid with regard to GST number composition as well as labour licence has already been considered and decided by this Court in Writ Petition (C) Nos.1601 of 2020 and 1732 of 2020 on 02.09.2020. In Writ Petition (C) No.1756 of 2020, the Evaluation Committee has recorded that Others experience certificate invalid GST certificate invalid. With regard to Writ Petition (C) Nos.2004 of 2020 and 2005 of 2020, he submits that apart from the GST number composition, labour licence not attached, UDIN not mentioned

in the CA certificate enclosed by the petitioner. He further submits that answering respondents have filed the certificate issued by the Chartered Accountant of the petitioner as Annexure R-3/1, which was enclosed in both the writ petitions (enclosed by the petitioner along with tender document), which does not bear UDIN of Chartered Accountant. The documents showing UDIN are placed on record before this Court and not before the respondent-Municipal Corporation. He also submits that requirement of mentioning of UDIN in Chartered Accountant certificate is prevailing since 2019. Only because of requirement of UDIN non-specified in the tender document in Clause 14 specifically will not make the tender proceedings vitiated. UDIN in Chartered Accountant certificate is one of the mandatory requirement.

It is further contended that the petitioner has not fulfilled the requirement of Clause 14 (xii) which is experience certificate of similar nature of work. He submits that the action taken by respondent authorities in rejecting bid of the petitioner is on account of the reasons mentioned therein and based on the opinion given by the Chartered Accountant of Municipal Corporation with regard to GST certificate. Due to some technical reasons the authority find it appropriate to cancel all earlier notification for supply of labourers and employees. Fresh tender notification was issued and no one is stopped from participating.

bids but due to the pendency of these writ petitions and observation made by this Court financial bids have not been opened.

10.

We have heard learned counsel appearing for the respective parties and perused the documents enclosed along with the pleadings as well as additional documents filed under covering memo.

11.

So far as the issue with regard to the GST number composition certificate and labour licence is concerned, this Court has decided both the issues in favour of the petitioner herein in Writ Petition (C) Nos.1601 of 2020 and 1732 of 2020. While deciding the issue with regard to GST number composition, this Court has held thus :

"18. Learned counsel for the respondent-Municipal Corporation has not pointed out specifically as to how the composition GST will have an effect and bearing with regard to the eligibility criteria.

The tender notification only mentions about the requirement of self-attested GST certificate.

19. Even otherwise, the registration under the GST is with regard to the deduction of tax from the payment to be made to the service provider by the employer at source. The respondent-

Municipal Corporation has not pointed out before this Court that if the petitioner is having composite GST registration, there will be any loss to the Government. It is for the Department under the GST to consider on the basis of application for registration to consider whether a person applying for its registration will come within the option sought for or not.

20. Taking into consideration the requirement as shown in Clause 14 of the tender document of having GST certificate, submission made by learned counsel for the respondentMunicipal Corporation that the petitioner is not possessing appropriate GST certificate is not sustainable."

While deciding the issue with regard to labour licence, this Court after taking note of relevant provisions of the Act of 1970 and Rules of 1971, has held thus :

"15. The provisions of the Act of 1970 and the Rules framed thereunder, where there is a requirement of enclosure of a certificate of a principal employer of his/her engagement as contractor, it shows that issuance of licence can only be after the acceptance of bid of the contractor and

his engagement for the concerned work, because only after engagement, a certificate can be issued by the principal employer. Perusal of the copy of licence placed on record as R-3/2 dated 12/06/2019 shows that name of the Principal employer and its address is also mentioned in the licence. The clause of the tender documents and terms and conditions attached to it are to be read in the light of the provisions of the Act of 1970 and rules framed there under, there cannot be any clause or condition contrary to law.

16. In view of specific provision and requirement of Rule 21 of the Rules of 1971 for making an application for grant of licence, the submission made by learned counsel for the respondentMunicipal Corporation does not appear to be the correct proposition of requirement of submission of the licence along with tender document by a contractor, who was not engaged with principal employer for the said work prior to the tender. In these facts of the case, the submission made by learned counsel for the petitioner appears to be correct that requirement of submission of the licence is within 30 days from issuance of the work order. It is a case that the petitioner

has earlier worked with respondentMunicipal Corporation in similar nature of work and for that period there was licence with her."

After considering both the grounds, we have held the action of respondent-Municipal Corporation to be erroneous and held thus :

"21. In the discussions of preceding paragraphs, we hold that the respondent-Municipal Corporation erred in rejecting the technical bid of the petitioner on both grounds and none of the grounds were available to them for rejecting the bid of the petitioner."

12.

The additional ground apart from the GST number composition and labour licence is with regard to UDIN and experience certificate. Upon going through the terms and conditions mentioned in the tender notification, there is no mention of requirement that the C.A. certificate should bear the UDIN under Clause 14(xi). During the course of pendency of proceedings, the petitioner has produced the same certificate with UDIN of Chartered Accountant submitting that her Chartered Accountant is having UDIN, but as there is no requirement of its projection in certificate under Clause 14, Chartered Accountant has not mentioned UDIN and further in earlier rejection order which was considered and decided by

this Court in Writ Petition (C) Nos.1601 of 2020 and 1732 of 2020, this objection/reason for rejection of bid of the petitioner was not there.

13.

So far as the reason for rejection of the bid of the petitioner it relates to earlier notification, which stands already cancelled, in which, the reason assigned for rejection is that "GST composition, labour licence not attached others experience certificate and UDIN not mentioned in Chartered Accountant certificate", the petitioner has placed on record the experience certificate issued by the Health Officer of the respondent-Municipal Corporation showing that the petitioner has worked for the years 2013-14, 2014-15, 2015-16 and 2016-17. The reason assigned in rejection of the bid is others experience certificate. This ground of rejection is also not sustainable.

14.

Respondent-Municipal Corporation after rejecting the bid of the petitioner in all the three tender notifications bearing System Tender Nos.64878, 64881 and 64882, entire tender proceedings have been cancelled. Immediately thereafter, on 28.07.2020, fresh tender notifications have been issued bearing System Tender Nos.66657, 66646 and 66647. As the documents of the petitioner with regard to GST certificate and labour licence amongst others objected by the respondentMunicipal Corporation to be not in accordance with the terms

of the tender documents, which was challenged by the petitioner before this Court by filing these writ petitions on 04.08.2020 and 10.08.2020, the petitioner could not participate in the fresh tender notifications. Interim direction was issued to the respondent-Municipal Corporation that "no further proceedings should be initiated in the subject tender proceedings". The issue raised by the petitioner in earlier writ petitions challenging rejection of her bid in the initial tender notification with regard to GST number composition not valid and labour licence, which came to be decided only on 02.09.2020 in Writ Petition (C) Nos.1601 of 2020 and 1732 of 2020, wherein writ petition was decided in favour of the petitioner and a direction was issued for providing an opportunity to the petitioner therein also to participate in the fresh tender proceedings by extending dates for submission of the bids as well as opening of the bids by way of issuance of corrigendum to the new tender notification and only thereafter, bids submitted by all the bidders be opened in accordance with law.

15.

From the facts available on record, it is apparent that the respondent-Municipal Corporation has assigned different reasons in different tender proceedings for rejecting the bid of the same petitioner considering same documents, it appears that the respondent-Municipal Corporation has applied different yardsticks in different tender proceedings issued by

them for rejecting bid. The action on the part of the respondent-Municipal Corporation, in the opinion of this Court, is an arbitrary exercise of their powers. 16.

In view of aforementioned facts available on record and discussions as well as considering that in these writ petitions, rejection of bid of the petitioner is with regard to earlier tender notification, which already stood cancelled and the respondent-Municipal Corporation has issued fresh tender notifications, we find it appropriate to direct the respondentMunicipal Corporation to provide an opportunity to the petitioner also to participate in the fresh tender notifications issued on 28.07.2020 vide Annexure P/1 in all the three writ petitions, by extending dates for submission of the bids as well as opening of the bids by way of issuance of corrigendum to the new tender notifications issued on 28.07.2020 and only thereafter, bids submitted by all the bidders be opened in accordance with law.

17.

At this stage, Shri A.S. Kachhawaha, the learned counsel representing the respondent-Municipal Corporation submits that there is no mechanism to issue a corrigendum in online tender proceedings and to permit the petitioner to participate in the fresh tender notifications. For that respondent-Municipal Corporation has to issue fresh tender notifications for all the three works (subject matter of three

writ petitions).

18.

It is for the Municipal Corporation i.e respondents No.3 and 4 to look into as to in what manner the respondentMunicipal Corporation can grant an opportunity to the petitioner to participate in fresh tender notifications. If the respondent-Municipal Corporation are required to issue fresh tender notifications for the subject works to provide an opportunity to the petitioner for participation in the tender proceedings of the subject works, then the respondentMunicipal Corporation are at liberty for the same. 19.

We make it clear that we have not decided that whether the petitioner fulfills the eligibility of Clause 14(xii) as it was not the issue before this Court but we have considered whether the experience certificate submitted by the petitioner is issued in her favour or not. The respondent-Municipal Corporation will be at liberty to consider the bid of the petitioner in accordance with law along with bids of other bidders.

20.

In the result, all the three writ petitions (Writ Petition (C) Nos.1756 of 2020, 2004 of 2020 and 2005 of 2020) are allowed in aforementioned terms.

Sd/- Sd/- (P. R. Ramachandra Menon) (Parth Prateem Sahu) Chief Justice Judge Yogesh