Delhi HC Upholds Jal Board's Preference To Manual Scavengers And Their Families In Tender For Mechanized Sever Cleaning [Read Judgment]

The Delhi High Court on Tuesday upheld the Delhi Jal Board's "system of preferences" prescribed in its tender calling for bids for mechanized sewer cleaning and its transportation. The tender had stated that in awarding of bids, the Board would give preference to dependents of those who were performing manual scavenging duties or tasks, those who are performing such duties themselves (regardless of their community), and those who belong to the SC/ST communities.

The Bench comprising Justice S. Ravindra Bhat and Justice A.K. Chawla opined that the system of preference was "not reservation in any sense of the term", explaining, "Seen from the context of the decisions quoted previously, the NIT conditions are not meant to exclude the “general” class of citizens. They afford an opportunity to an utterly marginalized section a “step up” (or to use the expression in Nagaraj (supra), “catch up”) with the other citizens.

The object of such preference is plainly to enable the meaningful participation of the most marginalized section, i.e. workers involved in manual scavenging, and scheduled caste/scheduled tribe communities (who are so chosen, having regard to what the Constitution framers stated as "a backward section of the Hindu community who were handicapped by the practice of untouchability"). The state, i.e., DJB, in our opinion, had a compelling interest in promoting the welfare of these class of citizens, while conceiving and implementing this system of preferences, in the impugned NIT."

One bidder one machine

The Court was hearing a Petition filed by M/s Metro Waste Handling challenging the eligibility conditions and the system of preferences prescribed by the Delhi Jal Board (DJB) in the tender issued in March 2018.

The Petitioner had specifically challenged the condition of awarding only one vehicle under the NIT to each bidder, asserting that this would render redundant its acquired infrastructure and investments made, and would also impact its 600 employees.

The DJB, on the other hand, submitted that the conditions were prescribed to assist such scavengers in "self employment", and eliminate the risks involved in manual scavenging when undertaken by the  "disorganized individual sector". It further contended that by the one machine one bidder rule, the DJB attempts to employ the largest number of people in small units.

Each machine, it said, supports up to 4 to 5 people directly and would mean self-employment for about 800 to 1000 families with the 200 machines currently proposed for employment.

Ruling in favor of the DJB, the Court opined that the "mere adverse impact by way of diminished business or commercial possibilities does not render the impugned conditions discriminatory". Denying allegations of violation of the Petitioner's right to carry on its business under Article 19(1)(g) of the Constitution of India, it further observed,

"...the petitioner cannot insist that as it used to enter its bid in accordance with conditions, which were not restrictive, the introduction of the one bid one vehicle limitation is an unreasonable restriction. Furthermore, all that Article 19 (1) (g) of the Constitution of India guarantees in such situations is the right to bid; the petitioner has not been barred in any manner whatsoever."

System of preferences

The Petitioner had also challenged following hierarchy of preference provided by the DJB:

It had compared this to the system of reservations and had complained that this was devised to almost exclude altogether categories of bidders who do not belong to the first three categories.

The Court, however, opined that the argument was "misplaced". It also rejected the Petitioner's contention that the condition cannot be imposed since the State has not drawn a list of people engaged in manual scavenging. It observed that even without such a list, the DJB cannot be restrained from recognizing their existence and ensuring that the benefit of the tender is passed on to them.

Appreciating the "reservation dominated affirmative action"

The Court then dismissed the petition as being meritless, appreciating the "reservation dominated affirmative policy action" taken by the DJB to better the lives of manual scavengers. It observed,

"Unseen and forgotten for generations, our society has marginalized manual scavengers to its darkest corners. They are trapped in an eternal caste embrace, with no voice in the society or in any meaningful participation; their children are doomed to the same stereotypical roles assigned to them. The promise of equality, dignity and egalitarianism has eluded them altogether in the march and progress witnessed by the rest of our citizens.

The present project, through the DJB’s impugned tender, promises a positive tomorrow to a significant number of these individuals; the Central Government’s funding of this project, is an important move- away from largely reservation dominated affirmative policy paradigm witnessed so far. One hopes that this move is part of a string of other plans and programs aimed at achieving the objective of elimination of untouchability and the practice of human manual scavenging; it can well become a significant brick in the building of a strong edifice of substantive equality and to recall Ambedkar’s phrase, hopefully bring about “the principle of one man one value” to all. "