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2006 DIGILAW 902 (PAT)

Pratap Jitendra Narayan Singh v. State of Bihar

2006-09-26

body2006
ORDER 1. Heard. 2. With consent of parties, this writ application is being disposed of at the stage of admission itself. 3. The present writ application has been filed by the petitioner for quashing the order, as contained in Annexure 6, being dated 23.3.2006, by which the Jail Superintendent, Central Jail, Gaya, has informed him that no tender of the petitioner can be accepted in view of the provision of the Jail Manual which debars the jail authorities from accepting tender for supply of an article to the jail from a person if that person has direct or indirect interest with a person employed in the Jail. In other words, the petitioner having relations employed in jails is debarred from applying for and getting any contract for supply of materials to Jails. 4. A counter affidavit has been filed on behalf of the respondents, wherein it is stated that as the petitioner had made an application for supply of food articles and vegetables to the Central Jail, Gaya, he was undisputedly the lower tenderer but it was found that he has two brothers, who are employed in jails in Bihar; one being posted as Constable at Buxar and the other being posted as Constable in Nawadah and as such, the petitioner was disqualified from making any such application or the jail authorities were not competent to enter into the contract with him. It is also stated in the counter affidavit that now out of the petitioner's brother earlier posted at Nawadah has been shifted to Gaya Jail as a Constable. 5. Mr. Rajendra Prasad Singh, learned Senior Counsel appearing on behalf of the petitioner has assailed the aforesaid order. He submitted that in terms of rule 159 of the Jail Manual, it must be shown that the tenderer and any person in employment in jail must have direct or indirect interest in the contract. In other words, it should be shown that the persor in employment in jail could be a direct or indirect beneficiary of the contract in question. Secondly, he submitted that not only this, a person in employment in jail must be in a position to exercise authority in the matter. He has principally relied on the judgment, of the Apex Court in the case of Baliram Prasad Vs. Secondly, he submitted that not only this, a person in employment in jail must be in a position to exercise authority in the matter. He has principally relied on the judgment, of the Apex Court in the case of Baliram Prasad Vs. Union of India (AIR 1997 Supreme Court 637) as well as an unreported Division Bench judgment of this Court in the case of Sachidanand Singh Vs. State of Bihar and others, in C.W.J.C. No. 493 of 1987(R) being judgment dated 15.7.1987, wherein the Division Bench of this Court had interpreted rule 159 of the Bihar Jail Manual, in such a situation in favour of the petitioner. 6. On the other hand, the Counsel for the State has relied on a judgment of this Court in the case of Shailendra Nath Vs. State Bank of India, since reported in 2006(2) PLJR 499 . 7. That before proceeding to consider the submissions, it is better to quote rule 159 of the Bihar Jail Manual: "No officer of a jail, nor any person in trust for or employed by him shall have any interest, direct or indirect, in any contract for the supply of any jail articles; nor shall he derive any benefit, directly or indirectly, from the sale or purchase of any article on behalf of the jailor belonging to a prisoner, nor shall he bid at any auction of jail property; nor shall he receive directly or indirectly, any fee or gratuity or present from any person tendering or furnishing supplies for the jail, or from any person visiting the jail." 8. A reference thereto would show straightway that it postulates that a person employed in jail should not have any interest, direct or indirect, in any contract for supply of any jail articles, nor shall he derive any benefit, directly or indirectly, from sale or purchase of any article on behalf of the jail. 9. It would clearly appear that the rule is the rule of beneficiaries. In other words, it postulates that an employee of the jail should not be either direct or indirect beneficiary of the contract, which is to be given to a person. 9. It would clearly appear that the rule is the rule of beneficiaries. In other words, it postulates that an employee of the jail should not be either direct or indirect beneficiary of the contract, which is to be given to a person. Therefore, before any actions can be taken to disentitle a person from entering into a contract with jail authorities, it is for the jail authority to establish that his contract would enure directly or indirectly to the benefit of a jail employee. This is what the Division Bench of this Court in the above referred to unreported judgment has held. 10. In the present case, no such exercise was done. It was merely said that because the two brothers were employed in jails, though in jail other than where the petitioner was to make supply, yet the petitioner was disqualified because of that reason. To my mind, this itself is enough to set aside the impugned order. The impugned order was, thus, mechanical and gives no finding in this respect. 11. However, I may refer to the judgment of the Apex Court in the case of Baliram Prasad Vs. Union of India, being AIR 1997 SC 637 (supra). In that case, a person had applied for being appointed in the Post Office. His appointment was not allowed on the ground that his cousin brother was already working in the same Post Office as an Extra Department Delivery Assistant. This was so because it was held by the authorities that employment of near relatives in the same post office was to be avoided as this was beset with the risk of fraud etc. This was challenged and ultimately the matter reached to the Apex Court. The Apex Court held that “there is no rhyme or reason underlying such an approach on the part of the authorities. To say the least it would be totally arbitrary and irrational. Even if there may be any risk of fraud etc. even non-relatives can be guilty of frauds while on the contrary relatives may not be prone to such frauds. But even if they are, appropriate procedure can be adopted for detecting such frauds and bringing the guilty to book or even for effectively checking such tendencies by having appropriate vigilance machinery. even non-relatives can be guilty of frauds while on the contrary relatives may not be prone to such frauds. But even if they are, appropriate procedure can be adopted for detecting such frauds and bringing the guilty to book or even for effectively checking such tendencies by having appropriate vigilance machinery. But to refuse to appoint a more meritorious candidate only on the ground that his cousin brother was working in the same Post Office would, in our view, be totally an arbitrary exercise of power which cannot be countenances on the touchstone of. Article 14 of the Constitution of India” 12. To my mind, this is a complete answer to all that is said by the State. 13. However, in all fairness to the learned counsel for the State, he has placed reliance on the judgment of this Court in the case of Shailendra Nath Vs State Bank of India (supra). Such a clause has been upheld by the Apex Court as has been noticed by the Hon'ble Judge in the case of Mahinder Kumar Gupta Vs. Union of India (1995) 1 SCC 85 . There it was held that these clauses are to provide maximum employment to maximum number of people. In other words, it was in pursuance of the Directive Principles of the State Policy where entrustment of contract or business in a single hand or within a single family was to be avoided. The said judgment, in my view, has no application in the present case, for the object of rule 159 of the Jail Manual is different. The object of Rule 159 of the Jail Manual is not to distribute contract in large number of persons but to avoid contracts where an employee has beneficial interest direct or indirect from the said contract. Therefore, the judgment as cited by the State has no application to the facts of the present case. 14. I may also add that even if what is urged by the State is accepted, i.e. one of the petitioner's brother has now been posted at Gaya as a Constable, that by itself would not disqualify the petitioner; firstly, because merely brother being there, it does not mean that the brother who is employed in the Jail would have any direct or indirect beneficial interest in the contract. No such beneficial interest or link is alleged or established. No such beneficial interest or link is alleged or established. Secondly, being merely a Constable, he is not in a position to exercise any authority in either securing the contract or its implementation. He is too junior in rank for either of the purposes. 15. In view of the discussions, as indicated above, I have no option but to quash the impugned order, as contained in Annexure 6 and direct that the petitioner cannot be debarred from giving or supplying the materials to Jail. He had a right to file his tender and the same had to be considered on its merits. 16. This writ application is, accordingly, allowed. However, in the facts and circumstances, there shall be no order as to costs.