equal treatment with respect to identically situated contractors was required on the part of the Government.= his request for awarding benefit of escalation without tender discount was denied to him though in identical fact situation similar request of the other contractor i.e., M/s. Raghava Constructions was favourably considered. The petitioner states that identical recommendation was made by the Chief Engineer so far as the petitioner and the said M/s. Raghava Constructions is concerned. But, however, the Government has rejected the petitioner’s request and has favourably granted the request of M/s. Raghava Constructions and thereby, the petitioner complains of arbitrary and discriminatory treatment at the hands of the Government.- the recommendations of the Chief Engineer. So far as the petitioner’s case is concerned, letter of the Chief Engineer dated 01-04-2009 is addressed to the Secretary to the Government. We have also seen similar recommendation by the same Chief Engineer under his letter dated 08-05-2009 so far as M/s. Raghava Constructions is concerned. In our view both the said recommendations are similar. As there were similar problems in handing over required lands, existence of standing crops in the alignment and non-shifting of electrical lines etc., it is for those reasons that in both the cases extension of time was granted in three spells without imposing liquidated damages with respect to both the contractors. It is for this reason that for the works executed beyond the agreement period, specific rate per cubic meter was recommended by the Superintending Engineer and the same was further recommended by the Chief Engineer to the Government for consideration. While under G.O.Rt.No.44, Irrigation and CAD (PW: Major Irrigation. III) Department, dated 19-01-2010, the Government issued orders for considering the petitioner’s case but with tender discount, whereas ten days thereafter under G.O.Rt.NO.75 by the same department, dated 29-01-2010, orders were issued in case of M/s. Raghava Constructions accepting the request for awarding benefit of escalation without tender discount. We are unable to see any distinction between the two contractors who are identically situated and we are also unable to see any justification why both of them are treated differently. The learned single Judge has rightly considered the said aspect and reached the same conclusion as reached by us.

HONOURABLE THE ACTING CHIEF JUSTICE N.V. RAMANA

AND

HONOURABLE SRI JUSTICE VILAS  V. AFZULPURKAR

Writ Appeal No. 214 of 2013

DATED: 11-03-2013

Between:

State of Andhra Pradesh, rep., by its Secretary, Irrigation & CAD (PW.Major Irrigation.III) Department, Hyderabad and another

                   …  Appellants

And                                                                                                    

UAN MAX INFRA LIMITED

(formerly known as M/s. G. Venkata Reddy & Co.,),

Re-designated as Max Infratech (India) Pvt., Ltd., 4^th Floor,

Plot No. 319 & 320, Ayyappa Society, Madhapur, Hyderabad, rep., by its GPA Holder Kasuganti Raj Narsing Rao

                             … Respondent

                                                                           

HONOURABLE THE ACTING CHIEF JUSTICE N.V. RAMANA

AND

HONOURABLE SRI JUSTICE VILAS  V. AFZULPURKAR

Writ Appeal No. 214 of 2013

JUDGMENT: (per Sri N.V. Ramana, ACJ)

          Heard the learned Additional Advocate General and Sri Siva Reddy, learned counsel representing Sri G. Madhusudhan Reddy, learned counsel for the respondent.

          The respondent – writ petitioner who was earlier operating in the name and style of M/s. G. Venkata Reddy & Co., was the successful tenderer for Earth Work Excavation and Forming Embankment of DBM-60 (Thallampad Branch Canal) from
KM 50.00 to 50.600.  Apart from the petitioner, there were other contractors covering three other connected works and one of them was M/s. Raghava Constructions.  All the works tendered to the respective contractors were contiguous to each other and the problems relating to land acquisition and excavation works faced by all the contractors were almost identical.  The grievance of the petitioner in the writ petition was that his request for awarding benefit of escalation without tender discount was denied to him though in identical fact situation similar request of the other contractor i.e., M/s. Raghava Constructions was favourably considered.  The petitioner states that identical recommendation was made by the Chief Engineer so far as the petitioner and the said M/s. Raghava Constructions is concerned.  But, however, the Government has rejected the petitioner’s request and has favourably granted the request of M/s. Raghava Constructions and thereby, the petitioner complains of arbitrary and discriminatory treatment at the hands of the Government.

          The learned single Judge under the impugned judgment has considered the said grievance in some detail and was of the view that though the said recommendation made by the Chief Engineer was for a consideration of Administrative Department, Finance Department or the Government, 

equal treatment with respect to identically situated contractors was required on the part of the Government.  The learned single Judge therefore holds that though the claim is purely in the discretion of the Administrative Department, constitutional guarantee of equality before law and unreasonable discrimination practised by the Government for no explicable reason warranted the order rejecting the petitioner’s case to be set aside and consequently the learned single Judge directed the 1^st appellant to reconsider its order in G.O.Rt.No.44, dated 19-01-2010 and extend the same benefit to the petitioner as was extended to M/s. Raghava Constructions while issuing G.O.Rt.Nos.75, 76 and 77, all dated 29-01-2010.

          The learned Additional Advocate General who appeared, in support of the appeal, contended that the grant of escalation with tender discount was within the discretion of the Government and the same being on par with the rates quoted by the petitioner for the tender, the impugned order cannot be questioned by him in the writ petition.  He also submitted that both the contractors were not identically situated and recommendations were also different and distinct in both the cases and, as such, the learned single Judge could not have directed reconsideration of the petitioner’s case.  It was also contended that the petitioner having received the entire payment without protest approached this Court after a long lapse of time and, as such, he is not entitled for the relief sought for.

We have seen the recommendations of the Chief Engineer.  So far as the petitioner’s case is concerned, letter of the Chief Engineer dated 01-04-2009 is addressed to the Secretary to the Government.  We have also seen similar recommendation by the same Chief Engineer under his letter dated 08-05-2009 so far as M/s. Raghava Constructions is concerned.  In our view both the said recommendations are similar.    As there were similar problems in handing over required lands, existence of standing crops in the alignment and non-shifting of electrical lines etc., it is for those reasons that in both the cases extension of time was granted in three spells without imposing liquidated damages with respect to both the contractors.  It is for this reason that for the works executed beyond the agreement period, specific rate per cubic meter was recommended by the Superintending Engineer and the same was further recommended by the Chief Engineer to the Government for consideration.  While under G.O.Rt.No.44, Irrigation and CAD (PW: Major Irrigation. III) Department, dated 19-01-2010, the Government issued orders for considering the petitioner’s case but with tender discount, whereas ten days thereafter under G.O.Rt.NO.75 by the same department, dated
29-01-2010, orders were issued in case of M/s. Raghava Constructions accepting the request for awarding benefit of escalation without tender discount.  We are unable to see any distinction between the two contractors who are identically situated and we are also unable to see any justification why both of them are treated differently.  The learned single Judge has rightly considered the said aspect and reached the same conclusion as reached by us.  We are, therefore, unable to accept the primary contention of the learned Additional Advocate General that the respondent – writ petitioner’s case stands on a different footing than that of the other contractor and consequently, the order of the learned single Judge directing the Government to accord equal treatment to the petitioner on par with the other contractor, needs no interference.

So far as the other contention of the learned Additional Advocate General on the question of delay is concerned, we are not impressed with the said contention inasmuch as rejection so far as the petitioner is concerned is dated 19-01-2010, whereas ten days thereafter the other contractor’s case was favourably considered by the later G.O., dated 29-01-2010.  When the petitioner came to know of it, he had obtained copies of the orders and has approached this Court by filing the present writ petition in July, 2011.  It cannot therefore be said that the petitioner has approached this Court belatedly.  Merely on account thereof, there is any impediment in entertaining the writ petition.  The said contention is also therefore rejected.

Consequently, the writ appeal fails and it is accordingly dismissed.  However, there shall be no order as to costs.

N.V. Ramana, ACJ

VILAS V. AFZULPURKAR, J

11^th March, 2013

ks