IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTEENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 4296 of 2008 Between: Hyderabad Shakar Labour Contract Cooperative Society Ltd. (Regd. No. TAC-467), 22-2-750, Noor Khan Bazar, Hyderabad- 500 024, Rep. by Md.Ibrahim Khan ..... PETITIONER AND 1 Greater Hyderabad Municipal Corporation Rep. by the Commissioner, Tank Bund, Hyderabad. 2 Chief Transport Officer, Greater Hyderabad Municipal Corporation, Jail Garden, Chaderghat, Near Malakpet Railway Station, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue mandamus declaring the action of the respondents herein issuing the Tender Notification no.40, 41, 42/CTO / GHMC / 2007, dated 21.11.2007, Calling for tender to provide drivers and labourers to work on their vehicle for lifting of the Societies of Scheduled castes and Scheduled tribes as illegal and consequently direct the respondents to reserve at least 15 of the works to the societies of the members belonging to Scheduled caste and Scheduled tribe communities and pass Counsel for the Petitioner: MR.R.V.SUBBA RAO Counsel for the Respondent No.: R.RAMACHANDRA REDDY,SC FOR MCH 1,2,4&6 The Court made the following : O R D E R: 1. This Writ Petition has been filed by Hyderabad Sahakar Labour Contract Cooperative Society Ltd., with a prayer to issue a writ of mandamus declaring the action of 1st respondent-Greater Hyderabad Municipal corporation and 2nd respondent Chief Transport Officer, GHMC in issuing the tender notification Nos.40, 41, 42/CTO/GHMC/2007, dated 21.11.2007 calling for tenders without reserving atleast 15 percent of the works to the Societies of Scheduled Castes and Scheduled Tribes as illegal. 2. Ibrahim Khan, President of the petitioner-society has sworn to the affidavit in support of the writ petition. The averments in the writ petition, in brief, are: The 1st respondent-Corporation has been outsourcing the works of lifting garbage from various points in the city to the petitioner-society. The members of the petitioner-society are retired employees and their children. The petitioner-Society has to provide drivers and labourers to the Corporation vehicles from one garbage to another and to dump the same in the dumping yard. The 1st respondent-Corporation called for tenders from various registered labour agencies for lifting the garbage from various points in the city. As per Rule 11 of Municipal Corporation of Hyderabad Tender Rules, 1970 (for short Tender rules) the works have to be awarded to cooperative societies consisting of members of SC, ST and Weaker sections who happened to be retired employees. Clause (vi) of sub-rule 2 of Rule 11 of Tender Rules provides reservation of atleast 15 percent of the works to the societies and individuals who happened to be unemployed and retrenched engineers belonging to SC and ST and Vaddera community. The government issued G.O.Ms.No.581, dated 6.11.1996 extending the benefit of Rule 11 of Tender Rules to the Societies formed with retired public health workers and their dependants and badili workers. Subsequently the government relaxed the condition of participating in the tender procedure and directed all the municipalities and municipal corporations to entrust a portion of sanitation work to the societies on nomination basis. In the year 2006 the 1st respondent- Corporation issued a notification calling for tenders for supply of drivers. The petitioner-society made several representations seeking permission for continuance of issue of work contract. As the 1st respondent- Corporation did not consider the representations of the society, a writ petition being W.P.No.20225 of 2006 came to be filed. The said writ petition came to be disposed of on 7.9.2006 directing the 1st respondent- Corporation to consider the representations of the Society. By way of abundant caution the petitioner-Society participated in tenders and became lowest tenderer and thereby work came to be entrusted to the society. The 1st respondent-Corporation considered the representations of the Society on 1.5.2007 and entrusted the work on nomination basis but the administrative sanction came to be given on 25.8.2007. Therefore, the representations came to be made for extension of the period of contract from 27.8.2007 to 23.11.2007 (89 days). The 1st respondent- Corporation extended the contract for a period of 31 days i.e. from 1.12.2007 to 31.12.2007 and thereafter the same was extended from 1.1.2008 to 29.2.2008. The 1st respondent- Corporation had issued another notification on 21.11.2007 in Tender No.40,41,42/CTO/GHMC/2007, calling for tenders for supply of drivers/labourers with respect to parking yards at Malakpet, Khairatabad and Kavadiguda. As the works contract was expiring on 29.2.2008 a representation was submitted to the 1st respondent-Corporation for seeking extension of contract. The 1st respondent-Corporation without considering the representation proceeded to issue tender notification. Hence, this writ petition by the petitioner-Society. 3. For better understanding of the grievance of the petitioner- Society I deem it appropriate to refer para 7 of the writ affidavit and it reads as under: “ 7. I respectfully submit that the action of the respondents in issuing notification inviting sealed tenders for providing drivers and labour to work on their vehicles without reserving at least 15% of the works to the societies belonging to Scheduled Castes and Scheduled Tribe and Waddara communities, is illegal, arbitrary and contrary to the Rules.” 4. The respondents filed counter affidavit. One Raees Iqbal, Chief Transport Officer, GHMC has sworn to the affidavit. It is stated in the counter affidavit that the tender notification does not relate to work contract and it is for supply of man power and as such Rule 11 of Tender Rules does not apply. It is further stated in the counter affidavit that G.O.Ms.No.30, M.A, dated 18.1.2000 is applicable in respect of works contract and the work in question is supply of man power and as such the said government order has no application to the work in question. In the tender schedule condition No.24 it was duly mentioned that the Service Provider shall ensure deployment of at least 22.5 percent (15 % S.C. and 7.5 % ST) drivers/Labourers they are going to engage. 5. Heard learned counsel appearing for the petitioner-Society and learned Standing Counsel for respondents-GHMC. 6. Learned counsel appearing for the petitioner-Society submits that the tender notice issued by the 1st respondent-Corporation on 21.11.2007 without setting apart 15 % of the work on nomination basis is in utter violation of Rule 11 of Tender Rules and therefore the tender notification is to be declared as illegal. A further submission has been made that lifting of garbage from one place to another place for which tender has been called for is to be construed as sanitation work in which case 15 % of the works is required to be set apart as provided under Rule 11(2)(vi) of Tender Rules. 7. Learned Standing Counsel appearing for the 1st respondent- Corporation submits that the tender notice issued on 21.11.2007 is only for supply of man power and it is not for work contract and in which case Rule 11(2)(vi) of Tender Rules has no application. 8. The issue that calls for adjudication in this writ petition is – whether Rule 11(2)(vi) of Tender Rules is applicable to the tender notification dated 21.11.2007? 9. For better appreciation I may refer the nature of works for which tender has been called for : TENDER NO. NAME OF THE WORK ASSESSED VALUE AMOUNT OF EMD 25% OF THE ASSESSED VALUE 40/CTO/GHMC /07, DT.21.11.2007 MALAKPET PARKING YARD GHMC FOR A PERIOD OF ONE YEAR FOR DIFFERENT KINDS OF VEHICLES REQUIRE 178 DRIVERS A N D 366 LABOURERS TO BE PROVIDED 3,69,64,294/- 9,24,108/- 41/CTO/GHMC/07 DT.21.11.2007 FOR KHAIRATABAD PARKING YARD GHMC FOR A PERIOD OF ONE YEAR 182 DRIVERS AND 212 LABOURERS FOR DIFFERENT KINDS OF VEHICLES ARE TO BE SUPPLIED 3,31,48,775/- 8,28,720/- 42/CTO/GHMC/07 DT.21.11.2007 FOR KAWADIGUDA PARKING YARD GHMC FOR ONE YEAR 192 DRIVERS AND 212 LABOURERS FOR DIFFERENT VEHICLES TO BE SUPPLIED 2,92,85,600/- 7,32,140/- 10. It is trite to extract Rule 11 (2)(vi) of the Tender Rules and it is thus: “ Rule 11(2)(vi): Atleast 15% of works in the Municipal Corporations shall be reserved for entrustment to these Societies and the individuals who happen to be unemployed and retrenched Engineers belonging to the Scheduled Caste, Scheduled Tribe and Wadders Communities.” 11. The assessed value of supply of man power of various tender items is about Rs.2,92,85,600/- to Rs.3,69,64,294/-. Under Rule 11(2)(v) the works in the Municipal Corporations may be entrusted to Cooperative societies consisting of SC, ST and weaker sections on nomination by the Commissioner upto the value of Rs.1,00,000/- in ordinary circumstances and upto Rs.1,50,000/- in emergency; and by the Standing Committee upto a value of Rs.2,00,000/- in ordinary circumstances and upto Rs.2,50,000/- in emergency. Under Rule 11(2)(vi) atleast 15 % of works of Municipal Corporations shall be reserved for entrustment to Cooperative societies consisting of members of SC, ST and individuals who happened to be unemployed and retrenched engineers belonging to SC and St and Waddera communities. What is required under Rule 11(2) (vi) is that 15% of the works are to be set apart for being entrusted to Cooperative Societies. The tender impugned in this writ petition is not in respect of the works. It is only supply of man power by outsourcing. Therefore, Rule 11(2)(vi) of Tender Rules cannot be made applicable to the tender impugned in this writ petition. 12. In the circumstances, this writ petition being devoid of merits is dismissed at the admission stage. No costs. Dated: 13-6-2008. (B.Seshasayana Reddy,J) Tnb THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.4296 OF 2008 POSTED IN WEB DATED: 13-06-2008. ASSISTANT REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies