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2011 DIGILAW 17 (JK)

Ashok Singh v. State of J&K & Ors.

2011-02-01

SUNIL HALI

body2011
1. For upgrading and widening Bantalab-Barnai Road, NIT No. 12/2010-11 dated 11.5.2010 was issued by the Executive Engineer, Public Works Department, R&B Construction Division-II, Jammu. Approximate cost of the work was Rs. 60.00 lacs and the persons who were "A" Class contractors were eligible to apply for the said purpose. The said NIT has been published in the newspaper "Daily J&K State Express" on 03.07.2010. The work stands allotted in favour of respondent nos. 5 and 6 by order dated 8.10.2010. 2. The petitioner states that he is entitled to the allotment of work as per Notification dated 11.5.2010. The petitioner is a "A" Class Contractor. His grievance is that the NIT has been published in Daily J&K State Express which is an unknown paper and has a very limited publication. He contends that the respondents are under an obligation in law to publish the NIT in a paper which has a wide circulation so that the eligible candidates could apply for allotment of the said work. Having published in a paper which has no circulation, the object of right of consideration, as such, has been denied to him which violates the Article 14 of the Constitution of India. 3. On the other hand, the stand of the respondents is that NIT had been published in the State Express paper. In this respect, reliance has been placed upon a circular issued by the Government defining the procedure for submission of tenders. It is contended that in terms of the circular, instructions have been issued to the Government not to issue the Government advertisements in a local or national newspaper directly but it shall be routed through the Information Department. Adhering to this circular, the matter was referred to the Information Department, who have directed the publication of this NIT in the local newspaper. None of the rights of the petitioner, as such, stands violated. It is also contended that the work stands already allotted to the respondents, who have completed more than 50% of the said work. 4. I have heard learned counsel for the parties. 5. It is not in dispute that the Government while granting largesse in the shape of contract is required to consider all the eligible candidates for such allotment. It is also contended that the work stands already allotted to the respondents, who have completed more than 50% of the said work. 4. I have heard learned counsel for the parties. 5. It is not in dispute that the Government while granting largesse in the shape of contract is required to consider all the eligible candidates for such allotment. While doing so, it has to act fairly and ensure that wide publicity has been given to this NIT so as to allow the eligible candidates to participate in the tendering process. Any violation of this action tantamount to violation of the provisions of Article 14 of the Constitution of India. It be seen that the tender has been published in Daily J&K State Express which has no circulation within the Jammu Province. Conse­quently, issuance of this NIT did not come to the knowledge of the petitioner which has violated his right of being allowed to participate in the tendering process. Undoubtedly the paper does not have a wide circulation and intended purpose seems to deny all the eligible candidates from participating in the tendering process. This in itself was sufficient to quash the NIT. 6. Looking to the facts and circumstances of the case, the work stands already allotted and partly executed by respondent nos. 5 & 6, it will not be appropriate at this stage to cancel the allotment issued in favour of respondent nos. 5 & 6. However, the petitioner will be well within its right to claim damages from the respondents on their failure to publish the NIT in a paper which has wide circulation, thus denying him the right of consideration. 7. The stand of the respondents that it was the Information Department who was liable, cannot be sustained. It is the obligations on the part of the respondents to ensure that the NIT is given a wide publication so as to attract more competition in the tendering process. It was the obligation of the State to ensure that the NIT was published in a newspaper having wide circulation and not upon the Informa­tion Department. Any Circular issued by the State Government leaving the matter for publication of NIT at the discretion of the Information Department would not absolve them of their duty to ensure its publication in a paper which has wide circulation. Any Circular issued by the State Government leaving the matter for publication of NIT at the discretion of the Information Department would not absolve them of their duty to ensure its publication in a paper which has wide circulation. The procedure provided by the circular for publishing the NIT is an issue between the intending Department and the Information Department, which will not absolve the intending department from its obligation to ensure its publica­tion in a paper which has wide circulation. It is the responsibility of the State to seek participation of all the eligible persons in the tendering process. 8. This petition is disposed of accordingly.