IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1173 of 2010 UDAY SHANKAR PRASAD S/O LATE PRAYAG NARAYAN R/O VILLG-+ PO-SARBAHDI, PS-MANPUR,DISTT- NALANDA AT PRESENT MOHALLA- UDANTPURI,GARHPAR PO-+PS-BIHARSHARIF, DISTT-NALANDA--PETITIONER Versus 1. THE STATE OF BIHAR 2. THE SECRETARY RURAL WORKS DEPARTMENT, VISHWESHWARRAIYA BHAWAN, BAILY ROAD, PATNA 3. THE ENGINNER-IN-CHIEF CUM-ADDL. COMMISSIONER-CUM SPL. SECRETARY RWD, VISHESHWARRAIYA BHAWAN,BAILY ROAD,PATNA 4. THE CHIEF ENGINERR-1 RWD,VISHWESHWARRAIYA BHAWAN,PATNA 5. CHIEF ENGINEER-3 RWD,VISHWESHWARRAIYA BHAWAN, PATNA 6. THE CHIEF ENGINEER -4 (HEAD QUARTER) RWD, VISHWESHWARRAIYA BHAWAN, PATNA 7. THE JOINT SECRETARY, RWD, VISHWESHWARRAIYA BHAWAN,PATNA 8. THE EXECUTIVE ENGINEER, RWD,WORKS DIVISION,BIHARSHARIF ( NALANDA) ------------------------RESPONDENTS. With CWJC No.4767 of 2010 M/S DAYANAND PRASAD SINHA & COMPANY, A PARTNERSHIP FIRMS HAVING ITS OFFICE AT JANTA PATH, KANKARBAGH ROAD, PATNA- 20, THROUGH ITS PARTENR DAYANAND PRASAD SINHA S/O LATE HARBANSHI LAL, R/O JANTA PATH KANKARBAGH, PS- KANKARBAGH PATNA-20----------------------------PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECY, RURAL WORKS DEPARTMENT, GOVT. OF BIHAR, PATNA 2. THE PRINCIPAL SECY, RWD, GOVT. OF BIHAR, PATNA 3. THE ENGINEER-IN-CHIEF RWD, GOVT. OF BIHAR, PATNA 4. THE CHIEF ENGINEER-1 RWD, GOVT. OF BIHAR, PATNA 5. THE SUPERINTENDING ENGINEER, RWD, WORKS CIRCLE, PATNA 6. THE EXECUTIVE ENGINEER, RWD, WORKS DIVISION BIHARSHARIF, (NALAND)----------------------------RESPONDENTS ----------- For the Petitioner: Mr. K.N.Choubey, Sr. Advocate Mr. Manish Sahay & Mr. P.K.Singh Advocates For the State: S.C.-21 For Respondent (CWJC No.4767/10) Mr. M.K.Jha, AC to GA-1 For private Respondent:Mr. Y.V.Giri, Sr,Advocate & in CWJC No.4767/10 M/s R.K.Prasad & Tej Bahadur Roy for petitioner) Advocates ------------ 5 2.4.2010 Heard learned counsel for the parties. Both the writ applications can be disposed of together in view of the nature of the dispute between the parties. CWJC No. 1173 of 2010 by Uday Shanakar Prasad was for quashing of the allotment order with regard to the - 2 - work mentioned at serial no. 45 in the list of decision of departmental tender committee dated 23.12.2009. By virtue of the said decision contained in annexure-9 certain work which was initially carried out by the petitioner has been allotted in favour of M/s Dayanand Prasad Sinha who happens to be the petitioner in second writ application CWJC No. 4767 of 2010. Petitioner terms these allocations of work in favour of Dayanand Prasad Sinha to be in teeth of the decision of Hon’ble Division Bench, if not in breach thereof. The origin of the present dispute is an order of debarment which came to be passed against the petitioner by the respondent State authority. In the list published on 31.7.2009, 149 contractors were debarred which included the present petitioner. The reason for debarment of the present petitioner was for non- completion of certain work assigned to him in terms of the contract awarded by the respondents. The challenge to the said debarment made in a writ application before this Court failed before the learned Single Judge which is reflected from annexure- 6 to the writ application. The order of Single Judge was challenged in LPA No. 1498 of 2009. Learned Division Bench was of the opinion that the debarment of the petitioner required to be interfered with because the principle of natural justice had not been followed. The Division Bench therefore decided not to treat the debarment of the petitioner to be effective for participation in ‘future contract’ for a period of six weeks from the date of the - 3 - order. Petitioner was further directed to file his show cause before the Chief Engineer (Head Quarter) and a decision was to be rendered by the Chief Engineer on the issue within a period of six weeks. Ultimately the petitioner was taken off the list on which there is no dispute, but that is not the end of the matter. Petitioner filed the present writ application aggrieved by the fact that in the meantime the respondent authority have gone ahead and awarded the balance work in favour of Dayanand Prasad Sinha. When the matter was argued on 25.2.2010 an impression was sought to be given that the respondents are intentionally delaying the decision or adjudication on the direction of the Division Bench and assignment of the work upon the private respondent was being worked out behind the scene to the detriment of the present petitioner. The Court therefore directed respondent authority to make their stand clear on the issue. Some observation of the Court was taken as an impediment in the way of the private respondent from proceeding with the work. He therefore decided to file interlocutory application for vacating the stay as also impleading him as party in the matter and being heard. In support of the present writ application certain submissions have been made at the bar by learned Senior counsel representing the petitioner. He submits that since the petitioner has been taken off the list of debarment then his status must be restored to the original position. He cannot be denied the benefit of - 4 - the decision of the Division Bench. The other aspect which has been pointed out is that the work to the private respondent has been facilitated and hurried to ensure that the petitioner is not permitted to get back to the unfinished work. He accepts to the extent that there is no proper allotment for the work and no agreement can be executed in absence of the allotment for the work. On behalf of the private respondent it is his stand that the work came to be assigned to him by virtue of the decision taken by the departmental tender committee on 23.12.2009 and there was no kind of stay at any point of time. In the given kind of situation the respondents have to move further for filling the vacuum created by the debarment of the present petitioner. It is his case that an effort made by the petitioner seeking interim order of stay in LPA No. 7636 of 2009 by filing an I.A. was rejected and the Division Bench categorically held in its order that the order was relatable to ‘future contract’. Now in absence of any restraint order some decision has been taken and that decision has accrued in favour of private respondent. It is the stand of the private respondent that he cannot be ousted to make way for the present petitioner when valuable right has already accrued in his favour. The stand of the State is in support of the decision taken by them and they deny any wrong doing on their behalf and any enunciation having been made in the decision making process. - 5 - Learned counsel for the petitioner relies on two decisions rendered in the case of Harbashi Lall Vrs. State of Bihar & ors. (2007 (1) PLJR 264) and also a decision in the case of Nawabkhan Abbaskhan vrs. State of Gujarat (AIR 1974 SC 1471). Given the matrix of the facts and the dispute the Court fails to understand how the two ratios can be applied in the present case. The Court would have had no difficulty in placing the petitioner in his original position if there was a kind of vacuum existing. In absence of any kind of restraint having been placed upon the respondents coupled with the fact that the Division Bench categorically recorded that the petitioner’s debarment was stayed for participation in ‘future contract’ , the right having accrued in favour of the private respondent cannot be interfered with. In view of the above stated factum and legal background the petitioner has failed to make out a case for availing the award of work which was allotted in favour of private respondent. This writ application fails and it is dismissed accordingly. In view of the above stated order no order is required to be passed in CWJC No. 4767 of 2010 separately. RPS (Ajay Kumar Tripathi, J.)