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2000 DIGILAW 571 (ORI)

Jitendra Kumar Bisoyi v. State of Orissa

2000-12-13

L.MOHAPATRA

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JUDGMENT L. MOHAPATRA, J. — Petitioner in this writ application has prayed for declaration that the contract awarded in favour of the opposite party No. 5 by opposite parties 1 to 4 is illegal and inoperative and for a further direction to award the contract in favour of the petitioner. 2. Case of the petitioner is that he has registered himself as A-Class Contractor and has been participating in different tender process. Pursuant to the tender call notice dated 6.1.2000 he submitted his tender for the work “excavation of pazen miner including construction of its structures in flood zone”. Apart from the petitioner, two other Contractors, namely, Sanat Kumar Panda and Narendra Nath Sahu (opposite party No.5) also submitted tenders. Tender papers were opened on 29.2.2000 and on verifica¬tion of the tender papers, the Executive Engineer (opposite party No.4) prepared a final report on 3.3.2000 for acceptance of the same by the Superintending Engineer. In the said report, the Executive Engineer intimated that the approved tender schedule amount was Rs. 7,88, 423.60 whereas the petitioner had quoted Rs. 7,38,212.74 i.e. 0.153% less than the estimated cost and Sanat Kumar Panda had quoted price of 60.33% in excess of the estimated cost and the opposite party No.5 had quoted price which is 40.34% in excess of the estimated cost. Therefore, the petitioner was the lowest tenderer, opposite party No.5 was the second lowest tenderer and Sanat Kumar Panda was the 3rd lowest tenderer. But the petitioner learnt that the Chief Engineer has taken a deci¬sion to award the contract to opposite party No.5 who was second lowest tenderer and had quoted 40.34% in excess of the estimated cost ignoring the tender submitted by the petitioner which was lower than the estimated cost. Therefore, this writ application has been filed challenging the said decision of the Chief Engi¬neer to award the contract in favour of the opposite party No.5. 3. Opposite parties 1 to 4 have filed preliminary counter-affidavit stating that along with the tender papers, the peti¬tioner had not submitted the required document, i.e. No relation certificate with any staff of the office and subsequently it was found that the petitioner is the son of one Sri D. Bisoi, working as P.A. to Superintending Engineer, Upper Indravati, R.C.Circle, Mukhiguda. Opposite parties 1 to 4 have filed preliminary counter-affidavit stating that along with the tender papers, the peti¬tioner had not submitted the required document, i.e. No relation certificate with any staff of the office and subsequently it was found that the petitioner is the son of one Sri D. Bisoi, working as P.A. to Superintending Engineer, Upper Indravati, R.C.Circle, Mukhiguda. It is further stated in the counter that the petition¬er has utilised the official capacity of his father and got the copy of the confidential letter, i.e. letter No. 470 dated 3.3.2000 and in addition to the aforesaid ground, it is also stated that the work being an important work necessary for the flood zone, previous experience was felt necessary at the time of selection of a contractor to execute the work. The petitioner had not previous experience and therefore the petitioner was not selected for execution of the work. On the other hand, the oppo¬site party No.5 though had quoted in excess of the estimated cost, after negotiation, he agreed to execute the work at 0.21 per cent less than the estimated cost and therefore, the tender papers submitted by the opposite party No. 5 was accepted. Simi¬lar counter has also been filed by the opposite party No. 5. 4. From the pleadings of the parties, it is evident that the petitioner’s tender had not been kept out of consideration. On two grounds, the said tender filed by the petitioner was not accepted, i.e. the petitioner had not submitted the required certificate with regard to relationship with any of the staff of the office and the petitioner did not have experience to execute the work. On two grounds, the said tender filed by the petitioner was not accepted, i.e. the petitioner had not submitted the required certificate with regard to relationship with any of the staff of the office and the petitioner did not have experience to execute the work. Reliance has been placed by the learned counsel for the State on Clause 13 of the Tender Paper which runs as follows : “13 - No relationship certificate : The contractor shall have to furnish a certificate along with the tender to the effect that he is not related to any officer of the rank of Assistant Engineer and above engaged in the work and any officer of the rank of Assistant Secretary or above of I & P Department, Government of Orissa.” Learned counsel for the petitioner Sri Rath submitted that the petitioner’s father is working as P.A. to Superintending Engineer in a division which is not connected with the work and therefore there was no reason for rejecting the tender filed by the peti¬tioner on that ground. 5. Learned Counsel for the State submitted that father of the petitioner is in the rank of Assistant Engineer and posted as P.A. to Superintending Engineer and therefore comes within the prohibitory relationship. On the other hand, Sri Rath for the petitioner submitted that no material has been placed before this Court to show that father of the petitioner was engaged in the work concerned as prescribed in the said clause. It is argued on behalf of the opposite parties that the petitioner utilising the office of his father could obtain a copy of the letter written by the Executive Engineer to the Superintending Engineer dated 3.3.2000 which is confidential in nature. This itself shows that as Personal Assistant also the father of the petitioner had an access to the documents, records placed before the Superintending Engineer and therefore can be said to be connected with the work. From Annexure-2, it appears that the father of the petitioner was an Assistant Engineer and is working as Personal Assistant to the Superintending Engineer, Upper Indravati Right Canal Circle, Mukhiguda. From Annexure-2, it appears that the father of the petitioner was an Assistant Engineer and is working as Personal Assistant to the Superintending Engineer, Upper Indravati Right Canal Circle, Mukhiguda. The Superintending Engineer is directly connected with the work in question as the Executive Engineer had submitted his report after opening of the tenders before the Superintending Engineer and therefore since the Superintending Engineer was directly connected with the work, it cannot be said that the petitioner’s father who was working as P.A. to Superintending Engineer had no connection with the work. In my opinion, it was duty of the petitioner to submit the required certificate as per Clause 13 of the Tender Paper. 6. Since the petitioner did not submit any such certificate, the opposite parties 1 to 4 rightly rejected his tender for non-submission of such certificate. 7. So far as the second question with regard to the past experience is concerned, I am not entering into the said question as the opposite parties were justified in rejecting the tender of the first ground itself. 8. I, therefore, do not find any merit in the writ applica¬tion, which is dismissed accordingly. Petition dismissed.