IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 408 of 2009 Date of Decision: 22.09.2010 Mohinder Stan …Petitioner Versus. State of H.P. and others. … Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the petitioner: Mr. Dalip Sharma, Advocate. For the Respondents: Mr. Vivek Thakur, Addl. A.G. For the applicant/intervener: Mr. Ajay Mohan Goel, Advocate. Deepak Gupta, J. 1. The main grievance of the petitioner, who is a contractor, is that though he was denied the contract on the ground that more than two tenders have been issued to him but the persons to whom tenders have been granted are similarly situated. Various orders were passed in this petition from time to time and on 9th August, 2010 this Court had passed a detailed order, which reads as follows:- “The notice inviting tenders issued by the H.P.Public Works Department contained the following condition:- 2 “7. As per instructions of the H.P.Govt. affidavit be attached with the application forms regarding having not more than two works in hand duly attested by the concerned Executive Engineer in HPPWD.” The grievance of the petitioner as reflected in his writ petition is that two persons, namely, Mr. Lokender Raitka and Mr. Amar Singh had been issued more than two tenders but third tender was denied to him on account of this condition. In the reply filed by the State it is mentioned that as far as Mr. Amar Singh is concerned third tender was granted to him only after he had completed the work of one earlier tender. In respect of Shri Lokender Raitka the stand of the State is that since he had completed 95% work of the first tender and therefore, he was awarded the third tender. Now a supplementary affidavit has been filed by the petitioner, copy of which has been given to the learned Additional Advocate General, in which it is mentioned that two tenders had been awarded to Shri Trilok Singh Rathore in Chopal Division and thereafter he was awarded two more tenders on 19.11.2009 and negotiations in respect of two more tenders are going on with him. It is also mentioned that one Shri Gupta Prasad has been awarded three tenders, Mr. Bhupender Pal Mahajan, has been awarded five tenders, Mr. L.R.Saini has been awarded five tenders and Shri Trilok Thakur has been awarded four tenders. The policy of the Public Works Department has to be consistent and it cannot be on the basis of pick and choose. If 3 the allegations made in the affidavit are correct then the department cannot deny similar benefit to the petitioner. In view of the above discussion, the Engineer-in-Chief, Public Works Department to the Government of Himachal Pradesh is directed to file a supplementary affidavit dealing with the aforesaid aspect especially in relation to the allegations made in the supplementary affidavit. He shall also place on record the instructions of the Government referred to in condition No.7. Affidavit be filed within 10 days from today.” 2. Pursuant to the order dated 9th August, 2010 quoted here-in-above, the Engineer-in-chief filed an affidavit. Relevant portion of which reads as follows:- “That in reply to these paras it is submitted that the fact of granting of more than two works to the contractors as named by petitioner in his affidavit namely Trilok Singh Rathor, Gupta Prashad, Bhupender Pal Mahajan, L.R.Thakur and Trilok Thakur is not denied. However, the circumstances under which said more than two works have been awarded to these contractors and others is that earlier the Government issued instructions dated 1.2.2008 Annexure R-2 to the reply filed by S.E. 14th Circle, Rohru. As per this instruction, under condition No. (vii) it was provided as under:- “General guidelines issued from time to time earlier for awarding not more than 2 tenders/contracts at a 4 time to a contractor will continue. However, it should be ensured that no major tenders above Rs.1.00 crore i.e. within the competence of “A” Class contractors are awarded to a contractor who is already having more than 2 works of such amount each and which are under execution with them, so as to avoid monopolization of contracts and delay in execution due to lack of adequate capacities of the contractor.” Thus as per above guidelines, the works costing less than Rs.1.00 Crore are not required to be considered while examining the aspect of limit of two works. In fact the State Government issued further clarification on this matter vide its letter dated 18.8.2008. Copy of same is annexed herewith as Annexure-RA. The kind perusal of this instruction reveals that earlier instruction issued on 1.2.2008 was re-examined by the Government and it was decided that the same be modified to the extent that the restriction of two works would be for the first call only. If not less than two responsive bids are received for any Package, there would be no restriction on number of works in hand for the subsequent call for this Package. However, they should be within the bidding capacity of the contractor and performance guarantees. Further the restriction of two works will be for a particular zone in the department. Thus under PMGSY and World Bank works there are contractors who as per their contract record/performance have been 5 awarded more than two works after the issuance of said instructions Annexure RA.” 3. In this reply-affidavit, the respondents have also made the following averments on oath:- “The bid of petitioner Mohinder Singh Stan was found lowest amongst three i.e. Rs.3,28,20,246/- (113.034%) above on the amount put to tender of Rs.1,54,06,247/-. As per cost justification of this work prepared by the Department on the prevalent market rates, it was found that he bid of petitioner was higher to the justification which was Rs.3,07,51,852/- or 99.61% above the amount put to tender. The justification was prepared on the basis of HPSR 99 + extra cost of material + extra carriage of material. The justification of this work so prepared was only Rs.3,07,51,852/- i.e. 99.61% above whereas the rates quoted by petitioner was much higher i.e. Rs.3,28,20,246/- i.e. 113.03% above. However, the fact also remains that in this case the petitioner was already awarded two works in Public Works Department both having cost more than Rs.1.00 crore and in both cases, the performance was not up to mark and further more, the petitioner gave fake affidavit saying that he had at the time of bidding for said work, only one work in the Public Works Department whereas he was at that time executing two works. Hence, it is felt that the Negotiation Committee rightfully rejected the tender case and ordered for re- tendering. Thus with the facts and circumstances explained above and also when the bid of lowest contractor is still 6 approximately 21 lacs above to the justification of this work, it is respectfully prayed that the tender of this work may kindly be allowed to be recalled so that instead of higher/unresponsive bid, fair competition is carried out for the awarding of this work afresh in the public interest to save public exchequer in which petitioner contractor can also participate.” 4. From the aforesaid averments, it is apparent that the bid of the petitioner has not been rejected only on the ground that he is the successful contractor in two other works but one of the main grounds for rejecting his bid is that the amount he has tendered is still approximately 21 lakhs above the justification of the work. On this ground also the bid has been rejected. This question cannot be gone into by this Court in writ proceedings and therefore, the petition is rejected. No order as to costs. 22nd September, 2010 ( Deepak Gupta ) ™ Judge.