IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SEVENTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 21399 of 2007 Between: 1 M/s.Visakha SC, ST Scavengers Sweepers & Substitute Badili Workers Welfare Society Regd. No.211/97, Rep. by its President B.Mokalingam S/o. Ramayya Aged 51 years, D.No. 36-33-24, Ramanna Colony, Ambedkar Nagar, Visakhapatnam -7. 2 SC, ST Scavengers Sweepers & Substute Badili Workers Welfare Society Regd. No.906/97 Rep. by its President B.Lakshmana Rao S/o.Simhadri Aged 33 years, R/o.D.No.393-34-92, Ambedkar Nagar, Visakhapatnam -7. 3 Ome Sri Sai SC, ST Badili Workers Welfare Society Regd. No.913/98, Rep. by its President D.Ramana S/o.Bhagavathi Rao Aged 38 years, R/o. D.No. 13-414, Ambedkar Nagar, Sector-2, Arilove, Visakhapatnam -7. 4 Srama Sakthi Parisudya Badili Panivarala Sankshema Sangam, Reg.No.536/99, Rep. by its President V.Rama Devi, D/o. Gurumurthy Aged 31 years, R/o. MIG-2, SEctor-3, MVP Colony, Relliveedhi, Visakhapatnam -17. 5 Sri Balaji SC ST Sanitary Workers Welfare Society Regd. No.512/98 Rep. by its President K.Sankara Rao S/o.Simhachalam Aged 36 years, R/o. Lakshmi Nagar, Goalapatnam, Visakhapatnam. 6 Sri Sai SC, ST Scavengers Substute Workers Society Regd. No.194/97 Rep. by its President V.Mohana Rao S/o.V. Appa Rao Aged 40 years, R/o. D.No. 17-34/26, Municipal Sweepers Colony, Kailaspuram Visakhapatnam. 7 Sanitary SC Mens & Womens welfare Society Regd. No.459/97 Rep. by its President S.Gandhi S/o. Suri Aged 46 years, R/o. ARK Apartments, CBM Compound, Visakhapatnam. 8 Sai Ganesh Scavengers Welfare Association Regd. No.169/99 Rep. by its President D.Tirunathamma W/o. Ramulu Aged 45 years, R/o. Malakapuram, Visakhapatnam-11. 9 Sri Sanitary Workers Welfare Society, Regd. No.176/97, Rep. by its President S.Gurumurthy S/o.S.Suryanarayana Aged 32 years R/o.Ambadker Nagar, R&B Office, Visakhapatnam. 10 Jai Bheem SC, ST Sanitary Badili Workers Welfare Society Regd. No.144/99 Rep. by its President V.Trinadharao, S/o. Tatalu Aged 45 years, R/o. Srinivasanagar, Burm Camp, Visakhapatnam. 11 Sri Sai SC, ST Scavengers Substute Workers Welfare Society Regd. No.194/97, Rep. by its President D.Venkata Rao S/o.Appala Swamy Aged 42 years, R/o. D.No.38-40-28, Area, Visakhapatnam. 12 Sri Ranga Retired Sanitary Workers Welfare Society Regd. No.198/97, Rep. by its President T.Rama Swamy, S/o.late Guruvulu Aged 65 years, R/o. Rtd. PH Workers, Ambedkar Colony, Visakhapatnam. 13 Sri Kanaka Mahalaxmi SC Badili Workers Welfare Society Regd. No.48/97, Rep. by its President K.Chandra Rao S/o.Apparne Aged 40 years, R/o. Sector-5, Jay Bharat Nagar, Visakhapatnam. 14 Sri satya Badili Panivarala Sangam Regd. No.1139/99, Rep. by its President G.Appa Rao S/o.Atchanne Aged 42 years, R/o. Balajee Nagar Sector-2, Arilove, Visakhapatnam. 15 Sri Venkateswara SC, ST Retired PH Badili Workers Society, Regd. No.1580/04, Rep. by its President M.Venkata Rao S/o.M.Paradesi Aged 35 years, R/o.D.No.50-79-3/2, GAnesh Nagar, Seethammepeta, Visakhapatnam. 16 Visakha SC, ST Scavagers Sweepers & Substute Badili Workers Welfare Society, Regd. No.208/99 Rep. by its President K.Sreenu S/o. Pydithalli Aged 29 years, R/o. 40-2-29, Kailaspuram, Visakhapatnam. ..... PETITIONERS AND 1 The Commissioner, Visakhapatnam Municipal Corporation, Visakhapatnam. 2 The Municipal Corporation of Visakhapatnam rep. by its Chief Medical Officer of Health, Visakhapatnam. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a Writ, or order or direction, more particularly one in the nature of Writ of Mandamus declaring the tender notification in Rc.No.2153/2007/F3, dt. 03.10.2007 as illegal, arbitrary, violative of the G.O.Ms.No.581 MA dated 6.11.96 and G.O.Ms.No.30 MA dated 18.1.2000 and also contrary to the standing committee resolution dt. 9.5.2002 and pass such other or further orders as may be deem fit and proper. Counsel for the Petitioners: MR.T.S.VENKATARAMANA Counsel for the Respondents: MR.N.RANGA REDDY (SC FOR MPL. CORP. VSP) The Court made the following : ORDER: The petitioners-Societies have been registered under the Andhra Pradesh Co-operative Societies Act. They are represented by their duly elected respective President. They filed this writ petition with a prayer to issue a writ, order or direction, more particularly, one in the nature of writ of Mandamus declaring the tender notification in Rc.No.2153/2007/F3, dated 03.10.2007 as illegal, arbitrary and violative of G.O.Ms.No.581 MA, dated 06.11.1996 and G.O.Ms.No.30 M.A. dated 18.01.2000 and also contrary to the Standing Committee Resolution, dated 09.05.2002. 2. B.Mokalingam, Elected President of M/s.Visakha SC, ST Scavengers, Sweepers and Substitute Badili Workers Welfare Society- 1st petitioner-society, has sworn to the writ affidavit. The writ affidavit, in brief, is: Various unions in the State made representations to the Government for appointment of Badili Workers in leave vacancies/promotions/death or retired employees to maintain sanitation. The Government finding it not possible to appoint the Badili Workers in the leave vacancies etc. decided to entrust sanitation work to the societies formed with retired public health workers or their dependants and Badili Workers with certain modalities. Accordingly, the Government issued G.O.Ms.No.581 M.A., dated 06.11.1996. Thereafter, G.O.Ms.No.30 M.A., dated 18.01.2000, came to be issued with regard to entrustment of a portion of the sanitation work to the societies formed by the sanitary workers union without participating in the tender process. After issuance of G.O.Ms.No.30, dated 18.01.2000, the Municipal Corporation of Visakhapatnam, represented by its Chief Medical Officer of Health-2nd respondent, by its proceeding in Rc.No.6052/2001/F1 ordered to entrust 55% of the sanitation work to the societies belonging to the categories specified in G.O.Ms.No.581 with tenders and remaining 45% of the sanitation work to the societies sponsored/affiliated by the unions. The petitioners-societies as well as other societies challenged the G.O.Ms.No.30, dated 18.01.2000, by way of a writ petition being W.P.No.1175 of 2000. The said writ petition ended in dismissal upholding the G.O.Ms.No.30, dated 18.01.2000. The Commissioner, Visakhapatnam Municipal Corporation-1st respondent, to avoid unhealthy competition between the Societies and the Unions, decided to allot the day sanitation work to the Unions and the night sanitation work to the Societies. Tenders were called for accordingly on 25.06.2003 for night sanitation work for a period of one year. The petitioner-Societies have participated in the tender and stood as lowest bidders and accordingly night sanitation work came to be allotted to them. Hitherto wherever tenders were called from Badili Workers regarding sanitation work, prerequisite conditions to participate in the tenders imposed by the Commissioner were: 1) Societies which are participating in the tenders should have minimum two years experience in sanitation work; 2) Only those persons who have worked as Badili Workers in public health department of Municipal Corporation and formed into Badili Workers society, alone are eligible for filing tenders. From the date of G.O.Ms.No.581 whenever tenders were called for, compliance of two conditions were insisted and they are: 1) The Societies should be registered under Societies Registration Act; 2) The members should belong to retired public health workers, their children/and other Scheduled Caste / Scheduled Tribe Community people having experience of sanitation work such as Badili Workers. The condition with regard to experience is being put not only in the tenders called for by the Visakhapatnam Municipal Corporation, but also by other Corporations such as Municipal Corporations of Hyderabad, Rajahmundry and Warangal. Municipal Corporation of Hyderabad has put five years experience and whereas Municipal Corporations of Rajahmundry and Warangal have put three years experience as prerequisite qualification to participate in the tenders. This condition is put to eliminate the outsiders, who do not belong to Badili Workers. The Visakhapatnam Municipal Corporation-1st respondent issued tender notification in Rc.No.2153/2007/F3, dated 03.10.2007, inviting applications from the Scheduled Caste, Scheduled Tribe Community Badili Workers Societies for day and night sanitation work for 26 packages, out of which 10 for unions without tenders as per G.O.Ms.No.30, dated 18.01.2000 and 16 works under G.O.Ms.No.581, dated 06.11.1996, by calling for tenders. The tender notification is silent with regard to the two conditions which were used to be mentioned in the earlier tenders and they are: 1) Societies which are participating in the tenders should have minimum two years experience in sanitation work; 2) Only those persons who have worked as Badili Workers in public health department of Municipal Corporation and formed into Badili Workers Societies, alone are eligible for filing tenders. Because of non-mentioning of the above referred two conditions, ex-Badili Workers Societies of Visakhapatnam Municipal Corporation are not able to compete with the outsiders. Tender schedules have been issued to the Unions, which come under the G.O.Ms.No.30, dated 18.01.2000, and also to the Societies, registered an year back, whose members do not belong to Ex.Badili Workers/SC, ST having experience in sanitation work. Hence, the writ petition with a prayer stated supra. 3. The 1st respondent filed counter-affidavit. Mukesh Kumar Meena, Commissioner, Greater Visakhapatnam Municipal Corporation, Visakhapatnam, has sworn to the counter-affidavit. It is stated in the counter-affidavit that the experience of one year is stipulated in the tenders as per the decision of the Public Health Committee constituted and authorized by the Corporation. The provisions of G.O.Ms.No.581, M.A., dated 06.11.1996 have provided entrustment of sanitation work not only to the retired public health workers and their children, but also to other SC/ST community people having experience of sanitation work such as Badili Workers. In a way, the 1st respondent asserts that the tender notification is in tune with the guidelines issued in G.O.Ms.No.581, M.A., dated 06.11.1996. For better appreciation, I may refer paras.12 and 13 of the counter-affidavit and they are thus: “ 12. It is submitted that the provisions of G.O.Ms.No.581 have provided the opportunity in entrusting the sanitation work to the retired public health workers, their children but also to other SC/ST community people having experience of sanitation work such as Badili workers. The contention of the petitioners saying that the opportunity should be given only to the Badili Workers Societies is contrary to the provisions of the above G.O.Ms.No.581. In this regard, it is submitted that the tender conditions are not static type and they are flexible in nature and hence they can be revised from time to time as per the requirement of the sanitation. Further the provisions of G.O.Ms.No.581, does not speak the exact length of experience of the societies. It is the matter of the corporation concerned to decide as per its requirement. Accordingly this time one year experience was considered as per the decision of the public health committee constituted and authorized by the corporation as to decide the modus operandi for the improvement of sanitation in the city. Further, the contention of the petitioner saying that the outsiders without any knowledge in the sanitation work will simply grab the contract by quoting less amount and after having the contract, they will not be in a position to do the work as per the requisite standards of the Corporation is absolutely baseless, since it is submits that in the G.O.Ms.No.581, dated 06.11.1996, has specified the following modalities to be followed while entrusting the sanitation work. 1. Societies should be registered under Societies Registration Act members should belong to retired Public Health workers, their children and other SC/ST community people having experience of sanitation work such as Badili Workers. 2. Usual procedure of inviting tenders as per tender rules should be followed. From the above it is very clear that the Corporation has the right to decide the Terms and Conditions to be imposed on the participating Societies. Keeping in view the spirit of the G.O.Ms.No.581, the Terms and Conditions have been formulated. As such it is submitted that there is no any deviation from the provisions of G.O.Ms.No.581. 13. The contention of the petitioner that to defeat the purpose of G.O.Ms.No.581 is not correct. It is submitted that one year experience was taken into account keeping in view the decision given by the Public Health Committee on which the power was conferred by the Corporation by its Resolution No.42/2007, dt.03.07.2007. Therefore, it is submitted that there is no any deviation from the provisions of the G.O.Ms.No.581 and it is strictly followed. Further, it is submitted that the provisions of the G.O.Ms.No.581 have not stipulated any provision saying not to allot the sanitation work to the societies which are under the Unions earlier, and also further submitted that the writ petitioners not impleaded affected parties. G.O.Ms.No.30, dated 18.01.2000 nonjoinder of the necessary parties writ petition has to be dismissed.” 4. Heard learned counsel appearing for the petitioners and learned Standing Counsel appearing for the respondents-Corporation. 5. Learned counsel appearing for the petitioners submits that calling for tenders from the Societies, who have no minimum two years experience in sanitation work, is opposed to G.O.Ms.No.581, M.A., dated 06.11.1996. He further submits that the Unions, which do not come within the purview of G.O.Ms.No.581, M.A., dated 06.11.1996, cannot be permitted to participate in the tenders and therefore, the acceptance of the tenders of the said Unions by the respondents-Corporation is contrary to the object for which G.O.Ms.No.581, M.A., dated 06.11.1996 came to be issued. 6. Learned Standing Counsel appearing for the respondents- Corporation submits that minimum experience of one year is prescribed in view of the decision of the Public Health Committee constituted and authorized by the Corporation and therefore, it cannot be said that it contravenes G.O.Ms.No.581, M.A., dated 06.11.1996. A further submission has been made that the impugned tender notification is in accordance with the provisions of G.O.Ms.No.581, M.A., dated 06.11.1996 and G.O.Ms.No.30, M.A., dated 18.01.2000. 7. The only question that calls for adjudication in this writ petition is whether the tender notification impugned in the writ petition is in accordance with G.O.Ms.No.581, M.A., dated 06.11.1996. The principal grievance of the petitioners is that prior to the tender notification impugned in the writ petition, two years minimum experience in sanitation work used to be insisted upon and whereas in the tender notification impugned in the writ petition, the period of experience reduced to one year. 8. I have gone through the G.O.Ms.No.581, M.A., dated 06.11.1996. The modalities with regard to entrustment of sanitation work prescribed therein read as hereunder: 1. The Societies should be registered under the Societies Registration Act. 2. The members should belong to retired public health workers, their children/ and other Scheduled Caste / Scheduled Tribe Community people having experience of sanitation work such as Badili workers. 3. The Municipalities should prepare estimates, which should includes and estimated requirement of man power for sweeping, drain cleaning and collection apart from supervision and cost of hiring a vehicle, bringing the conservancy articles and disinfectants etc. The number of trips and the distance involved. The designated place of dumping of garbage should also be worked on. The usual procedure of inviting tenders as or tender rules should be followed. A model treatment is shown as Annexure-I. 4. The society should participate in the tenders called for by the Municipalities / Municipal Corporations and willing to take up the work at the lowest tender rates. 5. A model estimate is shown as Annexure-II, existed in 1995-96. The recommended maximum rates for the subsequent years will be as fixed by the Special Commissioner and Director of Municipal Administration for time to time.” I have read and re-read the modalities stipulated in the above referred G.O. The modalities do not contain any minimum experience for the Societies to participate in the tenders. It is specifically averred in the counter-affidavit that one year experience has been put in the tender notification impugned in the writ petition as per the decision of the Public Health Committee constituted and authorized by the Corporation. The petitioners has not canvassed before me that Public Health Committee constituted and authorized by the Corporation is not empowered to decide as to the experience, which the societies or unions require to possess to participate in the tenders. Merely because in the earlier tenders two years experience is stipulated and in the present tender one year experience is stipulated cannot be a ground to set aside the tender notification impugned in the writ petition. 9. The next ground canvassed by the learned counsel appearing for the petitioners is that the Unions do not contain the members belonging to the Ex-Badili Workers etc. Unions are not impleaded as party respondents in the writ petition. Therefore, I am not inclined to adjudicate upon this issue. Hence, the writ petition is devoid of merits and is liable to be dismissed. 10. Accordingly, the writ petition is dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:07th July, 2008. cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KURR}