IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16858 of 2009 M/S HARI OM CONSTRUCTION, a Partnership Firm having its place of business at New Area, Aurangabad, P.S. and District Aurangabad through one of its Partners, Pankaj Kumar Singh, son of Shri Bijay Kumar Singh, resident of New Area, P.O., PS, Town & District - Aurangabad. Versus 1. THE STATE OF BIAHR through the Secretary, Rural Works Department (RWD), Vishwasharaiya Bhavan, Bailey Road, Patna. 2. The Joint Secretary, Rural Works Department (RWD), Vishwasharaiya Bhavan, Bailey Road, Patna. 3. The Chief Engineer-IV (H.Q.), Rural Works Department (RWD), Vishwasharaiya Bhavan, Bailey Road, Patna. 4. The Executive Engineer, Rural Works Division, Works Department, Aurangabad. ----------- For the petitioner : M/S. S D Sanjay & Miss Shabina Rubab. For the State : Mr. J P Karn, AAG 9 and Mr. Ashok Kumar Dubey, AC to AAG 9 ------ 03. 16.12.2009 The Court fails to understand the mechanism or the manner in which the respondent authorities exercise their discretion and power conferred upon them under the so-called instruction to the bidders, which has been annexed as Annexure-A to the counter affidavit and has been filed on behalf of the respondents. The relevant clause is 4.7(ii). Petitioner was debarred from participation in tenders on the ground that vide notification dated 29.10.2009 contained in Annexure-7, the Rural Works Department brought out a list of 397 contractors who had suffered disqualification from future contract on the ground that earlier works allotted to them have not been completed within the time-frame. The petitioner had no quarrel with the list but for the fact that he approached the same authority who had issued annexure-7 with objection that a kind of error seems to have - 2 - crept in the list and his name ought not to have figured in the list. It seems after due verification, yet another notification dated 7.11.2009 came to be issued. The said notification is Annexure-8 to the writ application. Five of those contractors who figured in the list contained in Annexure-7 were taken off the list. The notification categorically states that it is being done on the recommendation of the Executive Engineer as well as the Superintending Engineer and on due reconsideration. Five contractors stand released from disqualification list dated 29.10.2009. Submission of the learned counsel for the petitioner is that the moment Anneuxre-8 dated 7.11.2009 came to be issued then there was no disqualification operating against him. The notification refers to the earlier notification dated 29.10.2009. If it is so, it will relate back to the initial notification contained in annexure-7. The notification contained in annexure-8 does not in any way indicate that the petitioner is taken off the list from the date of the notification. If any impediment stood in the way of the petitioner in participation in the tender it got removed by a consensus decision taken by the respondents, per annexure-8. The grievance now is that despite a decision taken by the competent authority the petitioner’s tender or his participation is not being allowed by the respondents on the basis of a so-called office order issued by the Principal Secretary dated 12.11.2009 which only reiterates that all such contractors whose name figures in the panel list will not be permitted to participate in the future work or tender. - 3 - Counsel for the respondent State was directed to file counter affidavit and explain the dichotomy of their action. An affidavit is filed and the stand of the State is that Annexure-7 came to be issued on the basis of relevant clauses specially 4.7 (ii) of the instruction to bidders and since the name of the petitioner figured in the list dated 29.10.2009 he stood disqualified from future participation in tender. There would have been no problems or dispute had annexure-7 not been corrected or modified by yet another notification contained in annexure-8 issued within a week of the earlier notification. If annexure-8 did not talk about the petitioner’s firm being taken off from the list (annexure-7) from the date of the notification i.e. 7.11.2009, then by rule of prudence and interpretation it will relate back to the date of disqualification. The moment annexure-8 comes in to play, any disqualification incurred by the petitioner by virtue of annexure-7 disappears or vanishes. There is no satisfactory explanation coming forth from the respondents as to why the petitioner would be treated as disqualified for a week only to keep him away from the zone of consideration or his participation in the tender. Whether it was a case of omission or mischief cannot be categorically recorded in this part of the order. But by virtue of annexure-8 the Court has no hesitation in recording that disqualification or the debarment, if any, which stood in the way of petitioner vide Annexure-7 would no longer continue to operate in view of subsequent decision notified by the Chief Engineer who - 4 - immediately was also the authority who issued annexure-7. Obviously the reason or the basis for debarring the petitioner from participating in the said tender is misplaced and arbitrary and stands quashed. The writ application is allowed with the direction that nothing will come in the way of participation of petitioner in the tenders based on annexure-7. rkp (Ajay Kumar Tripathi, J)