$~59 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 30th August, 2024 + W.P.(C) 12054/2024 & CM APPL. 50218/2024, CM APPL.

50219/2024 MAJ. GEN. SANJEEV JAIN (RETD.) .....Petitioner Through: Ms. Amrita Panda, Advocate.

versus CENTRAL PUBLIC WORKS DEPARTMENT & ANR.

.....Respondents Through: Mr. Bhagvan Swarup Shukla, CGSC with Mr. Sarvan Kumar, Advocate for UOI with Mr. Vedansh Anand, GP.

CORAM:

HON'BLE MR. JUSTICE SANJEEV NARULA

JUDGMENT

SANJEEV NARULA, J. (Oral):

1. The Petitioner, Maj. Gen. Sanjeev Jain (Retd.), who retired as the Chief Engineer, Western Command having served 37 years, was enlisted as a government contractor in 2023 under the Rules of Enlistment of Contractor in CPWD 2022, [“2022 Rules”] issued by Respondent No. 1 – Central Public Works Department, [“CPWD”]. On the basis of this enlistment, the Petitioner participated in Notice Inviting Tender³ bearing no. 04/SE(AGRA)/2023-24 floated by Respondent No. 2 - Executive Engineer Bareilly, for ‘Planning Signature Not Verified

Digitally Signed W.P.(C) 12054/2024 Page 1 of 11

and Construction of 30 bedded (Upgradable to 100 bedded) Hospital Building, Service Buildings etc. at Paina Bujurg, Sadar District, at Shahjahanpur, Uttar Pradesh’. On emerging as the successful bidder, a Letter of Award dated 06^th June, 2024, [“LOA”] was issued in favour of Petitioner.

2. However, subsequently when the Petitioner wanted to participate in another NIT floated by Respondent No. 2 bearing no. 01/SE(AGRA)/2024- 25, for executing works of planning and construction of 100 bedded ESIC Hospital Building with Service Building etc., he was deemed ineligible to participate on the basis of a communication dated 8^th August, 2024⁵. This communication clarified the terms of the NIT to the effect that CWPD contractors enlisted under Rule 6.1.7 of the 2022 Rules are also required to fulfil the eligibility requirement of having completed ‘similar works’ as mentioned under Paragraph No. 1(a)(i) of the NIT in question. It was further emphasised that there was no change in NIT conditions.

CONTENTIONS OF PETITIONER

3. Ms. Amrita Panda, counsel for Petitioner, impugns the aforenoted communication, raising the following contentions:

3.1 The Respondents’ impugned communication, unreasonably and arbitrarily, precludes the Petitioner from the bidding process for the subject NIT and thereby, puts unreasonable fetters on the Petitioner’s ability to carry out his business.

3.2 The impugned communication is in contravention of the Rules for Enlistment of Contractors 2022 and 2023 issued by CPWD, wherein there is no requirement for retired engineers empanelled under Rule 6.1.7 to have

3 “NIT”

Signature Not Verified

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prior work experience of having completed similar works. As such, the Petitioner had a legitimate expectation that this ‘similar works’ condition, which is otherwise applicable to other prospective bidders would not be applicable to him on account of his empanelment. Therefore, introducing such an extraneous condition in the NIT by way of the impugned communication, is not justified.

3.3 Clause 6.1.7 of the 2022 Rules creates an exception to the General Rules of Enlistment of CPWD contractors, specifically in terms of persons who retired as Government servants, State Governments, Central or State PSUs engineers. This class of contractors get enlisted after one year of retirement from service, rendering them eligible to seek enlistment as CPWD contractors in their individual capacity, without prior work experience, subject to them having the required financial soundness and individually holding a valid PPO or equivalent documentation. However, the impugned communication renders the Petitioner’s enlistment under the said rule nugatory and meaningless, since the Petitioner can never have the experience of completing ‘similar works’ and thereby, they can never be eligible for CPWD tenders, despite being an enlisted CPWD contractor.

3.4 The Petitioner falls in th