# M/S Om Construction Sole Prop v. State of U.P. & Ors

- **Citation:** (2022) 6 ILRA 195
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-11
- **Case number:** Writ-C No. 6737 of 2022
- **Bench:** Manoj Kumar Gupta, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-om-construction-sole-prop-v-state-of-u-p-ors-48652
- **Pages:** 5

## Headnote

A. Civil Law - UP Kshettra Samiti and Zila
Parishad Rules, 1984 - R. 18 - First
Amendment Rules, 2020 - Participation in
work-contract of Parishad - Prescription
of Eligibility
- Rule 18 provide no
requirement of registration with Labour
Department
-
Contrary
to
it
advertisement required so - Technical bid
of petitioner was rejected due to lack of
registration - Legality challenged - Held,
in the absence of any statutory provision,
the Zila Panchayat was fully empowered
to prescribe eligibilities/ ineligibilities that
were required to be fulfilled by persons
196 INDIAN LAW REPORTS ALLAHABAD SERIES
applying for the contract - Since the
tender was invited in respect of a work
contract, consequently, the prescription of
the condition that an applicant applying
for the contract should be registered with
the Labour Department cannot be said to
be illegal or arbitrary or contrary to Rule

## Text

6 All. M/S Om Construction Sole Prop. Vs. State of U.P. & Ors.
195
they may be, must yield to clear and
express provisions of the law."

Correspondingly, in Gauri Shanker
Gaur Vs. State of U.P. reported in AIR
1994 SC 169, it has been held by the Apex
Court that "in interpreting a statute even
handedness will not discharge against a
public statute of broad spectrum policy in
cases admitted to fall within the statute and
it is the responsibility of the Court to give
effect to the legislative intent."

Thus, equity can supplement to but
cannot supplant the statutory provisions
and if any room is given for impartiality or
compassion, the recruitment rules would
become nugatory and field would be left
open for nepotism. Thus, it is not
permissible to bend the law for adjusting
equity.
(Vide
Ahmedabad
Municipal
Corporation Vs. Virendra Kumar Patel,
(1997) 7 SCC 650; and Smt. Rampati
Jaiswal Vs. State of U.P. & Ors., AIR 1997
All. 170).

33. However, bearing in mind the element
that the petitioners have been granted
admissions to Pre-Ph.D. course by the
respondent-University, despite the datum
that they did not possess second division at
graduate level, as is essential under news
item/advertisement
acquainted
by
the
respondent-University, as per Clause 3.1
(b) of the Ordinances, 2018 and they have
perused their studies for nearly two years as
also the information that in the said
admission of the petitioners, both the
petitioners as well as officials/officers of
the
respondent-University
are
also
accountable and till date of final hearing of
this matter, no officer or official has been
penalized by the respondent-University for
yielding erroneous admissions to the
petitioners as well as seeing their bright
career, this Court feels it apposite in the
interest of substantial justice to direct the
respondent-University to authorization of
the petitioners to complete their Pre-Ph.D.
course treating this case to be distinctive. It
is ordered, accordingly.

34. It is clarified that this case will not
be taken as a precedent.

35. Both these writ petitions stand
disposed of subject to the observations
made above.
----------
(2022)06ILR A195
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE DINESH PATHAK, J.

Writ-C No. 6737 of 2022

M/S Om Construction Sole Prop.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Javed Husain Khan, Gulrez Khan, Sr. Advocate

Counsel for the Respondents:
C.S.C., Vinod Kumar Chandel

A. Civil Law - UP Kshettra Samiti and Zila
Parishad Rules, 1984 - R. 18 - First
Amendment Rules, 2020 - Participation in
work-contract of Parishad - Prescription
of Eligibility
- Rule 18 provide no
requirement of registration with Labour
Department
-
Contrary
to
it
advertisement required so - Technical bid
of petitioner was rejected due to lack of
registration - Legality challenged - Held,
in the absence of any statutory provision,
the Zila Panchayat was fully empowered
to prescribe eligibilities/ ineligibilities that
were required to be fulfilled by persons
196 INDIAN LAW REPORTS ALLAHABAD SERIES
applying for the contract - Since the
tender was invited in respect of a work
contract, consequently, the prescription of
the condition that an applicant applying
for the contract should be registered with
the Labour Department cannot be said to
be illegal or arbitrary or contrary to Rule
18. (Para 9 and 12)
Writ petition dismissed. (E-1)

(Delivered by Hon'ble Manoj Kumar
Gupta, J. & Hon'ble Dinesh Pathak, J.)

1. The instant writ petition has been
filed praying for quashing of the order
dated 4/5.01.2022 and also the contract
agreement dated 7.01.2022 executed in
favour of respondents no.6 & 7 and for a
further direction to respondents no.2 to 5 to
accept the technical bids of the petitioner
and thereafter proceed to consider the
financial bids.

2. The facts in brief necessary for
adjudication of the present petition are that
the petitioner is a registered firm of C
category in Public Works Department,
Mirzapur. Respondent no.2, Zila Panchayat
invited tenders for various works. The
petitioner firm applied for the works shown
at serial nos.50, 51, 52, 67, 97 and 98. Its
technical bid has been rejected in respect of
work no.51 and 52 on the ground that it is
not registered with the Labour Department.
The decision of Technical Bid Committee
dated 4/5.01.2022 in shape of office
memorandum is under challenge to the
extent it seeks to disqualify the bids of the
petitioner firm in respect of work no.51 and
52.

3. The contention of learned counsel
for the petitioner is that the Works in
respect of which bids were invited are
governed by the Uttar Pradesh Kshettra
Samiti and Zila Parishad Rules, 1984.
Initially Rule 18 permitted participation of
only approved contractors whose names
figure in a register maintained in the office
of the Parishad or Kshettra Samiti in Form
No.W-1. Rule 18 was subject matter of
challenge in Writ-C No.8847 of 2020
Narayan Verma and another Vs. State of
U.P. and 3 others and was decided by a
Coordinate Bench by judgement dated
17.3.2020. The Division Bench, after
considering Rules 18 and 19, held that the
rule framing authority never intended to
confine the work contracts of the District
Panchayats
only
to
the
approved
contractors or registered contractors under
Rule 18. The relevant part of the discussion
from the said judgement is extracted
below:-

"By force of clause (iii), the terms used
but not defined in the Rules shall have the
meaning assigned to them in Rule 2 of the
Rules of 1965. On going through the Rules
aforesaid we noticed that the term
approved contractor is not defined therein
too. In absence of the definition of the term
aforesaid, the amplitude of it cannot be
extended to cause discrimination among
the contractors placed on registered roll of
government departments and further to
restrict the choice of Panchayat Raj
institutions to limited sphere. It is always
desirable to have a broad and better choice
with a view to achieve and attain better
quality of work. A statute is required to be
interpreted in the fashion that allows it to
be workable at its optimum and also in
consonance to the thrust of the complete
enactment. The position would have been
different, if any restriction would have been
given in the Rules of 1984 or by specific
assertion the "approved contractor" would
have been defined in such a manner to
create monopoly in grant of work on
6 All. M/S Om Construction Sole Prop. Vs. State of U.P. & Ors.
197
contract. In entirety, we have to interpret
Rule
18
and
the
term
"Approved
Contractor" to satisfy thrust of the Rules.
As such, a conjoint reading of Rules 18 and
19 of the Rules of 1984 and by taking care
of other provisions we have to see the
intention of the Rule framing authority. For
the reasons already given, we are having
no doubt that the Rule framing authority
was not intending to confine the work
contracts of the district panchayats only to
the approved contractors or registered
contractors under Rule 18."

4. It is submitted that after the said
judgement, Rule 18 was amended by the
First Amendment Rules, 2020 notified in
U.P. Extraordinary Gazette dated 14th July,
2020. The amended Rule 18 reads thus:-

"18. Registration and qualification of
contractors:-

In
addition
to
the
contractors
registered in all the Zila Panchayats, the
contractors also registered in the irrigation
department, public works departments of
the State Government will be eligible to
participate in the tenders to be invited in
regard to the construction and other works
of the Zila Panchayats and in case of the
tender being lowest for a particular work,
the contractor shall be made to deposit
required registration fees in the Zila
Panchayat for the purpose of registration
by means of a demand draft/e-banking and
it shall be compulsory for the Zila
Panchayat to register that contractor which
one week and ask him to deposit security
etc. according to the terms and conditions
of the particular tender and Zila Panchayat
shall execute an agreement with him. A sum
of Rs.10000 (Rs. Ten Thousand only) shall
be deposited by contractors as registration
fees in the Zila Panchayat."

5. It is submitted that under amended
Rule 18, there is no requirement of a person
participating in contract to be registered
with Labour Department, therefore, the
condition in the advertisement relating
thereto (Condition No.9) is illegal and
contrary
to
the
amended
Rule
18.
Therefore,
the
technical
bid
of
the
petitioner has been wrongly rejected.

6. Learned counsel appearing on
behalf of respondents no.2 to 5 Sri V.K.
Chandel submitted that the petitioner firm
participated with full knowledge of the
stipulations under the contract, particularly
condition no.9, as it had submitted other
documents prescribed under the said clause
except the registration certificate with the
Labour Department. He further submitted
that some contracts have been awarded to
respondents 6 and 7 long back and at this
distance of time, the petition should not be
entertained. He also submitted that the
amendment to Rule 18 would not mean that
the Zila Panchayat was denuded of its
power
to
prescribe
other
conditions
including the one relating to an applicant
being
registered
with
the
Labour
Department.

7.

We
have
considered
the
submissions of learned counsel for the
parties and perused the record. Condition
No.9 of the advertisement reads thus:-

"विविद द त को समस्त प्रपत्र िीवित
प्र रूप टी-4, टी0- 5, टी -6 पैिक डय, जीसटी
प्रम ण पत्र, श्रम पांजीयि तथ पांजीयि प्रम ण
पत्र ि अन्य अवभिेि प्रत्येक विड के स थ
िि ि अविि यय हैI"

8. The petitioner has admittedly
submitted Character Certificate, Solvency
Certificate, G.S.T. registration, PAN Card
198 INDIAN LAW REPORTS ALLAHABAD SERIES
and other documents required to be filed
under Clause no.9 and other clauses of the
advertisement
except
the
registration
certificate with the Labour Department.
The issue for consideration is whether in
view of amended Rule 18, the requirement
of filing certificate of registration from the
Labour Department is valid or not.

9. A perusal of unamended Rule 18
reveals that it restricted the right to
participate in work contracts of a Parishad
or a Kshettra Samiti to a limited class of
contractors who were registered in the
office of the Parishad or Kshettra Samiti
and their name figures in Form No.W-1
maintained in this behalf. It seems that a
Government Order dated 16.8.2019 was
issued by the State Government whereby
all the contractors registered with any of
the government department were held
entitled to participate in tender floated by
district panchayats. The said Government
Order was challenged in Writ Petition
(MB) No.6025 of 2020, Ashok Kumar
Singh Vs. State of U.P. on the ground that it
goes contrary to Rule 18. The challenge
was upheld on the reasoning that a G.O.
can supplement the Rule, but not supplant
it.

10. The unamended Rule 18 was
again subject matter of consideration in
Writ Petition No.8874 of 2020 Narayan
Verma and another Vs. State of U.P. and
others in context of a challenge made to the
same Government Order dated 16.8.2019.
This time, another Division Bench deciding
the issue by judgement dated 17.3.2020
declared the earlier judgement in Ashok
Kumar Singh (supra) to be per incuriam on
account of non-consideration of other
provisions of the Rules, particularly Rule
19 and held that the rule making authority
never intended to restrict the work
contracts of the District Panchayats only to
the approved contractors or registered
contractors under Rule 18. It seems that
despite the above clarification made by the
Division Bench in Narayan Verma (supra),
Rule 18 was amended. The amendment is
clarificatory in nature and the effect of the
amendment
is
that
now
it
has
unequivocally been provided that apart
from the persons registered in Form No.W1 in the office of Parishad or Kshettra
Panchayat, other contractors also registered
in the irrigation department and public
works
departments
of
the
State
Government
would
be
eligible
to
participate in the tenders to be invited in
regard to construction and other works by
the Zila Panchayats.

11. The amendment in Rule 18 thus
lays down the zone within which an
applicant should fall to entitle him to
participate in the tender. It does not lay
down the eligibilities or ineligibilities for
the contractors participating in the tender
process. In fact, none of the Rules prescribe
the same. These were prescribed in the etender notice by the respondent Zila
Panchayat.

12. In the absence of any statutory
provision, the Zila Panchayat was fully
empowered
to
prescribe
eligibilities/
ineligibilities that were required to be
fulfilled by persons applying for the
contract. No doubt, such conditions are to
be reasonable and logical and should have
nexus with the purpose for which such
requirements are prescribed. Since the
tender was invited in respect of a work
contract, consequently, the prescription of
the condition that an applicant applying for
the contract should be registered with the
Labour Department, in our opinion, cannot
be said to be illegal or arbitrary or contrary
6 All. Ravi Offset Printers & Publishers Pvt. Ltd., Agra Vs. State of U.P. & Ors.
199
to Rule 18. In fact, as held above, there is
no scope of such a condition coming in
conflict with Rule 18 , as it operates in a
different field.

13. Apart from the above, we also
find sufficient force in the submission of
learned counsel for respondents no.2 to 5
that the contract work having been settled
in favour of respondents no.6 and 7 long
back in the month of January, 2022 itself, it
is not a fit case to interfere.

14. Having regard to the above
discussion, the writ petition fails and is
hereby dismissed.
----------
(2022)06ILR A199
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ-C No. 13077 Of 2022

Ravi Offset Printers & Publishers Pvt Ltd.,
Agra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan(Senior Advocate), Sri Kunal
Ravi Singh, Manjari Singh

Counsel for the Respondents:
C.S.C.

A. Constitution of India - Article 19 -
Contract matter - Policy decision - Judicial
interference - Scope - Validity of clause
9(A) of E-tender was challenged - Held, in
the matter of a policy decision so taken by
the tender issuing authorities, a judicial
restrain is to be resorted to and merely
because certain terms and conditions seems
to be not suitable to a particular party
cannot be a ground to hold it illegal,
arbitrary or in violation of Article 19 of the
Constitution of India - Clause 9 (1) and (4)
of Clause 9-A of the tender dated 21.4.2022
does not suffer from any infirmity or
illegality and the same is confirmity and
consonance
under
Article
19
of
the
Constitution of India. (Para 29 and 35)
Writ petition dismissed (E-1)
List of Cases cited :-
1. Bareilly Development Authority & anr. Vs Ajai
Pal Singh & ors. 1989 (2) SCC 116
2. St. of Gujrat & anr. Vs Meghji Pethraj Shah
Charitable Trust & ors. 1994 (3) SCC 552
3. St. of U.P. & ors. Vs Bridge & Roof Company
(India) Ltd.; 1996 (6) SCC 22
4. India Thermal Power Ltd. Vs St. of M.P. & ors.
2000 (3) SCC 379
5. Tata Cellular Vs U.O.I.; 1994 (6) SCC 651
6. Caretel Infotech Ltd. Vs Hindustan Petroleum
Corp. Ltd. & ors. 2019 (14) SCC 81,
7. Uflex Limited Vs Government of Tamil Nadu &
ors. 2022 (1) SCC 165
8. National High Speed Rail Corp. Ltd. Vs
Montecarlo Ltd. & anr.; AIR (2022) SC 866
9. M/s Agmatel India Pvt. Ltd. Vs M/s. Resoursys
Telecom & ors. AIR (2022) SC 1103
10. Monark Infrastructure (P) Ltd. Vs Commercial
Ullas Nagar Municipality & ors. AIR (2000) SC 2272
(Delivered by Hon'ble Vivek Kumar Birla,
J. & Hon'ble Vikas Budhwar, J.)

1. The extent and the scope of judicial
interference in writ jurisdiction in the
matter of tenders so floated by public
authorities is the subject matter of present
proceedings.

2. Factual matrix of the case as
worded in the present petition are that the
petitioner claims itself to be a private