Judgment 1. The present writ application has been filed by the petitioner challenging the non- consideration of his tender consequent to arbitrary, illegal and mala fide rejection thereof and for wrongly considering the tender of an ineligible tenderer both of which allegedly were actuated by mala fide on part of respondent No. 2, the Superintending Engineer, Public Health and Engineering, Circle-Chapra, District-Saran who has also been made a party in person as respondent No. 5 and with a prayer that if the petitioners allegations are found correct then the Court may direct the competent authorities to initiate proceedings against the said respondent under the purview of the Bihar Prevention of Specified Corrupt Practices Act, 1983 alongwith other persons who may be involved therein. 2. The petitioner is a registered Class- IA contractor and is a Company and undertakes various contracts. It is alleged that the Superintending Engineer, Public Health and Engineering, Circle-Chapra, District Saran (respondent No. 2) being Shri Arun Kumar Srivastava (respondent No. 5 by name) issued a notice inviting tender for construction of water tanks in the district of Gopalganj in four groups from eligible contractors vide tender notice No. 2/2006- 07. Petitioner submitted his tender for Group- I and Group-Ill. Apart from petitioner, there were three other tenderers for the said two groups, namely, M/s J.P.Enterprises, Shri Anirudh Prasad and M/s Durgawati Enterprises. The tender was to be submitted in two parts. First part being a technical bid and the second part being the rate/commercial bid. It was clearly stated that a tenderer who qualified in the technical bid would only be considered tor the ultimate competitive bid in rate/commercial bid. The technical bid basically deals with qualification, suitability and competence which are eligibility conditions. The petitioner stated that on opening the technical bid, it was found that the tender of Durgawati Enterprises was invalid because of improper earnest money papers and was rejected outright. It was found that the other tenderer J.P. Enterprises had not submitted sales tax clearance certificate which was an eligibility condition in the tender notice. It is aiso asserted that the other tenderers Anirudh Prasad and the proprietor of J.P. Enterprises Shri Janardan Prasad are own brothers. This fact has been emphasized only to show that effectively there were only two tenderers left that is the petitioner on one hand and J.P. Enterprises and Anirudh Prasad on the other. It is aiso asserted that the other tenderers Anirudh Prasad and the proprietor of J.P. Enterprises Shri Janardan Prasad are own brothers. This fact has been emphasized only to show that effectively there were only two tenderers left that is the petitioner on one hand and J.P. Enterprises and Anirudh Prasad on the other. It is then specifically stated that respondent No. 2, that is the Superintending Engineer Shri Arun Kumar Srivastava, made his intention dear by putting a demand for money failing which the petitioner was to be excluded. The petitioner protested and apprehending that on some wrongful pretext on the other, his technical bid itself would be rejected, thus, making him ineligible to participate in the financial/commercial bid leaving just J.P. Enterprises and Anirudh Prasad in the field with hardly any competition. The petitioner protested and on 24.7.2006 represented to the Secretary in the Department of Public Health and Engineering Department, Government of Bihar. He has further stated that his valid technical bid was ma/a fide rejected only to favour the other tenderer whose financial bid was higher than the petitioner which has not only caused loss to the petitioner but also to the State revenue. It was submitted that the original records of the tenders be called for which would reveal the aforesaid illegal actions. 3. This Court on 9.8.2006 granted time to the State to seek instructions and file counter affidavit and in the meantime made all actions taken by respondents subject to the result of the case. On 31.8.2006, a counter affidavit was filed in the Court. The counter affidavit was sworn by Shri Arun Kumar Srivastava (respondent No. 5) who was the Superintending Engineer and respondent No. 2 by designation. Yet mischievously, the counter affidavit stated that it was a counter affidavit only on behalf of respondents No. 1 to 4 though was being sworn by respondent No. 4 himself. The Court found that the averments made in the counter affidavit has been fully supported by documents and, as such, this Court directed the learned State Counsel to get the original file and place it for perusal by the Court. 4. In the counter affidavit, a purported comparative statement (C/S) has been annexed. This document is a comparative statement of all the four tenders received and the evaluation of papers submitted in technical bid. 4. In the counter affidavit, a purported comparative statement (C/S) has been annexed. This document is a comparative statement of all the four tenders received and the evaluation of papers submitted in technical bid. To this, I will revert in greater detail but suffice to say at this point that the initial notings disclose that except for Durgawati Enterprises, all other tenders were found in order and were to be proceeded with. Suddenly, Executive Engineer disclosed that as per order No. 329 dated 26.6.2006 of the Superintending Engineer, the comparative statement is reexamined and it was found that the experience certificate of construction of RCC, water tower of the petitioner has not been attached and, as such, he does not qualify for the technical bid. On the reverse thereof, the relevant clause under which said certificate was required is shown as serial No. 31 of notice inviting tender. Notice inviting tender has been annexed as Annexure-A alongwith BOQ for the said tender which contains Clause 31 which is quoted hereunder: 31. Contractor having experience of construction of water-tower in Govt. Department or Organization within State of Bihar having registration in this deptt. will be given preference in deciding the tender. 5. In Clause 31 under the heading Methodology to Tender, it is also clearly mentioned that the essential documents to be annexed includes copy of upto date sales tax clearance certificate. In the counter affidavit to the assertion that J.P. Enterprises had not given sales tax clearance certificate has not been specifically denied rather in paragraph-9, in this regard, it is stated that the statement of non-furnishing of sales tax papers by J.P. Enterprises is wrong and misleading as J.P. Enterprises had furnished VAT registration paper which is now being issued by the Sales Tax Department itself. This clearly is not only an evasive answer but it, by reasons of non-traverse, virtually amounts to admission that sales tax clearance certificate was not filed. In the counter affidavit, apart from Clause 31, as quoted above, reference has also been made to Clause 10 and Clause 18 of the notice inviting tender in support of the stand that filing of certificate showing experience of construction of water tower was necessary for the technical bid to be considered. In the counter affidavit, apart from Clause 31, as quoted above, reference has also been made to Clause 10 and Clause 18 of the notice inviting tender in support of the stand that filing of certificate showing experience of construction of water tower was necessary for the technical bid to be considered. I may mention here itself that attention of the learned State Counsel was drawn to the said two clauses and he very fairly accepted that the said two clauses did not stipulate the same in so many words. Ultimately, in paragraph-12 of the counter affidavit, it is stated that the petitioners technical bid failed because he did not produce experience certificate of construction of water tower in terms of conditions laid down in the notice inviting tender and in particular condition 31 of the BOQ and that being so, there was no question of opening his financial bid. It was further stated in the counter affidavit that work had already been allotted to Shri Anirudh Prasad by letter dated 1.8.2006 and agreement duly executed on 7.8.2006 and work order had already been issued. In sum and substance, the stand of the Superintending Engineer was that the petitioner having failed to get the tender had filed the writ application which has no merit and deserves to be dismissed with heavy cost. 6. To this counter affidavit, a reply has been filed in which the petitioner has stated that after opening of financial bid of others, the petitioner has learnt that the tenders which have been accepted have been accepted at a rate higher than those quoted by the petitioner causing loss to the State as well. 7. The State Counsel produced the records which, in presence of the counsel I have perused in detail in Court. The records have been retained by the Court. 8. From the records, the first thing that appears is that the comparative sheet (C/S) is the same which is appended to the counter affidavit. As stated above, it shows that initially in respect of the technical bid for which this sheet was prepared, only Durgawati Enterprises was found to be disqualified and, as such, recommendation was made to open the financial bid of the remaining three. The remaining three were the petitioner, Anirudh Prasad and M/s J.P. Enterprises. As stated above, it shows that initially in respect of the technical bid for which this sheet was prepared, only Durgawati Enterprises was found to be disqualified and, as such, recommendation was made to open the financial bid of the remaining three. The remaining three were the petitioner, Anirudh Prasad and M/s J.P. Enterprises. In the comparative sheet, with regard to proof of experience of tower as against the petitioner, it is referred as payment certificate issued by other department. On further scrutiny of record, it was found that petitioner had in fact annexed certificate showing that as a sub-contractor for Government Department, he had constructed water tower but then when the matter was referred to the respondent Superintending Engineer, he is said to have passed some order on letter No. 329 dated 26.6.2006 stating that the certificate of petitioner with regard to experience was not as per notice inviting tender, hence, he was not qualified for technical bid. For reasons best known, this so-called letter No. 329 dated 26.6.2006 with endorsement of Superintending Engineer was not brought on record in the counter affidavit. On perusal of records, the said letter was found on record but it had no such endorsement. The absence of endorsement could not be explained by the respondents. Further, on the reverse of the C/S, the only provision referred to for filing certificate of experience with regard to construction of water tower was with reference to Clause 31 of notice inviting tender (BOG part). I have already reproduced the aforesaid, Clause 31 which clearly does not stipulate any thing like this. It only states that preference will be given to contractor having experience of construction of water tower. Such a clause is to be invoked only if there is a tie between two contractors. It is not an eligibility condition. This also shows, in my view, that ordinarily experience of construction of water tower was not a precondition because if that was so then all contractors would have experience of construction of water towers and the question of giving preference for the said experience would not arise. 9. Further examination of records clearly revealed that the proprietor of J.P. Enterprises was Janardan Prasad son of Shri Gulab Prasad. 9. Further examination of records clearly revealed that the proprietor of J.P. Enterprises was Janardan Prasad son of Shri Gulab Prasad. The other tenderer Anirudh Prasad is also the son of Shri Gulab Prasad and, therefore, the petitioner is correct in submitting that the remaining two tenderers were none other than own brothers and this clearly points to the inference as to why the respondent Superintending Engineer was desperate to find an excuse to eliminate petitioner from the tender process because that would then leave no competition as between tenderers. Next with reference to the so-called VAT registration certificate is concerned, what was found on record was only VAT registration certificate in respect of the said J.P. Enterprises whereas the eligibility condition in the technical bid itself was upto date sales tax clearance certificate. Again, the petitioner is correct that such a clearance certificate in respect of M/s J.P..Enterprises is not to be found on the records. It is also clear from the entry in this regard in the comparative statement. The records also do not reveal that the said tenderer was ever asked to furnish clearance certificate or even later he furnished one. in that view of the matter, it is absolutely clear that M/s J.R Enterprises had not tiled sales tax clearance certificate and this was within the knowledge of the respondent Superintending Engineer which would be clear from his own counter affidavit where he says that the VAT registration certificate is the certificate granted by the Commercial Taxes Department personally, ignoring the requirement of sales tax clearance certificate. It is, therefore, clear that a tenderer who was clearly ineligible, being disqualified was deliberately permitted to continue with participation instead of being disqualified. 10. Even though the State has not produced the records in relation to financial bid and the cost at which the tender has been ultimately awarded, it matters little as it is stated in the counter affidavit that agreement has been executed for one water tower out of several with Anirudh Prasad. The petitioner, with reference to the aforesaid agreement, states that if his financial bid was opened, it would have been lower than Anirudh Prasad as per the rates quoted in petitioners financial bid. Thus, it would be clear that by wrongful exclusion of petitioner, apart from others, the State has also suffered monetarily. 11. The petitioner, with reference to the aforesaid agreement, states that if his financial bid was opened, it would have been lower than Anirudh Prasad as per the rates quoted in petitioners financial bid. Thus, it would be clear that by wrongful exclusion of petitioner, apart from others, the State has also suffered monetarily. 11. From the aforesaid facts what emerges is that there was no specific condition in the notice inviting tender of filing experience certificate of construction of water tower much less as an eligibility condition. The authorities, at the initial stage, also understood the same in the same manner but suddenly when the matter reaches the Superintending Engineer, he apparently refers to an innocuous provision of Clause 31 and further wrongly holding that no such certificate is filed by the petitioner, directs that the petitioners technical bid be rejected, thus, disqualifying him from consideration of his financial bid. The reason for disqualification is wholly extraneous and unsupported by tender documents. It has resulted in a loss to the State as well. Secondly, he has permitted other tenderer who was ineligible on the face of the records to continue in the tender process instead of rejecting it. It was a clear case of deliberately ignoring relevant fact. Even at the stage of filing counter affidavit, both these decisions are justified. This only leads this Court to believe that the manner in which the respondent Superintending Engineer conducted himself was far above bona fide action. It was clearly mala fide and for extraneous considerations. It was clearly to mala fide exclude the petitioner and confer wrongful benefit on others for consideration which cannot be considered lawfully. In the aforesaid facts. I have no option but to hold that the entire process as adopted for finalising the tender is vitiated in fact and in law and apparently actuated by mala fide. The normal consequence whereof would be to set aside the tenders already allotted but considering the fact that it is a public interest project which, if delayed, would harm public, the Court is not inclined to take such action. Because of a mala fide action of the respondent Superintending Engineer, the public cannot be made to suffer but surely the Court is duty bound to ensure accountability for such mala fide action. 12. Because of a mala fide action of the respondent Superintending Engineer, the public cannot be made to suffer but surely the Court is duty bound to ensure accountability for such mala fide action. 12. In such glaring cases of mala fide and abuse of administrative powers, the accountability comes not merely by holding that it is an appropriate case where the respondent Superintending Engineer should be departmentally proceeded with but the appropriate officers of the Government would be reminded of the Bihar Prevention of Specified Corrupt Practices Act, 1983 which could be invoked in the present case against the respondent Superintending Engineer and others, because if such illegal actions are not controlled, it will only lead to rampant corruption at public cost. In view of the facts stated above, I may mention that it was not a case of a bona fide error or a bona fide mis-judgment or a bona fide wrong decision. It was a calculated and well thought move on part of the respondent Superintending Engineer and he cannot escape his liability. He was made a party to the writ petition by designation and in his personal capacity. He chose to file a counter affidavit sworn by himself personally and, as such, cannot be said to have been ignorant of the consequences to this writ petition. In this view of the fact, I direct that a copy of this order may be sent to the Chief Secretary, Government of Bihar and the Secretary, Public Health and Engineering Department, Government of Bihar, Patna for necessary action against the erring officials and any other person in this regard. 13. The writ application is, accordingly, disposed of. 14. Let the records, as submitted by the State Counsel, be kept with the Registrar General of the Patna High Court under sealed cover to be made available to the Chief Secretary or the Secretary, Department of Public Health and Engineering as and when they call for the same.