Anusuya Prasad vs. State Of Uttarakhand

Facts

The petitioner, Anusuya Prasad Nautiyal, filed two writ petitions challenging clauses within the Notice Inviting Tender (NIT) and the Standard Bid Document (SBD) for public procurement. The petitioner contended that these clauses contravened Office Memorandums dated 10.03.2016 and 25.07.2016, issued by the Government of India, Ministry of Micro, Small and Medium Enterprises (MSME). These OMs purportedly allowed relaxation of prior turnover and experience criteria for Micro and Small Enterprises. The respondents, including the Union of India and the State of Uttarakhand, argued that the MSME Act and the OMs were not applicable to the specific tender for road construction under the Pradhan Mantri Gram Sadak Yojna. They asserted that the SBD prescribed for this scheme required technical evaluation and that the nature of road construction demanded specific expertise, making the petitioner ineligible for relaxation.

Held

The Court held that the writ petitions were liable to be dismissed. Regarding the first issue, the Court found that the Office Memorandum dated 10.03.2016, while allowing relaxation of prior turnover and experience for MSMEs, used the permissive word 'may' and was subject to meeting quality and technical specifications. The Court noted that the respondents' specific stand was that road construction tenders under the Pradhan Mantri Gram Sadak Yojna are governed by a specific SBD requiring technical evaluation, and the petitioner could not be granted relaxation as a matter of right. The Court further observed that the MSME Act is primarily related to the procurement of goods and services, and the work of road construction requires specialized expertise not necessarily covered by the Act. Therefore, the benefit of relaxation was not mandatory and depended on the department's discretion, which was not exercised in favor of the petitioner for this specific tender. The Court dismissed the writ petition accordingly. For the second writ petition, the Court held it was also dismissed as the petitioner could not claim the benefit of relaxation as a matter of right. However, the question regarding whether the GST number was old or new was expressly left undecided.

Key Issues

1. Whether Clause 17 of the NIT and Clauses 4.2(c) and 4.4A(b) of the Standard Bid Document are in contravention of the Office Memorandums dated 10.03.2016 and 25.07.2016 issued by the Ministry of MSME, thereby entitling the petitioner to relaxation of prior turnover and experience criteria for public procurement. Petitioner's Argument: The petitioner argued that the impugned clauses in the tender documents violated the spirit and intent of the MSME OMs, which were designed to provide opportunities to Micro and Small Enterprises by relaxing prior experience and turnover requirements, provided they met quality and technical specifications. The petitioner relied on the OMs to claim a right to such relaxation. Respondents' Argument: The respondents contended that the MSME Act and the OMs were not applicable to the specific tender for road construction, which falls under the Pradhan Mantri Gram Sadak Yojna. They argued that the SBD for this scheme mandates technical evaluation based on prevalent norms and that road construction requires specialized expertise, thus precluding any relaxation. They further emphasized that the OMs used the word 'may' indicating discretion, not a mandatory obligation, for relaxation, and that the petitioner did not meet the quality and technical standards for road construction.