HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.22233 of 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- Kartikeswar Purohit, S/o. Madhu Sudan Purohit, At/P.O. Dhamanpur, P.S. Golamunda, Dist: Kalahandi … Petitioner -Versus- State of Orissa and others … Opp. Parties For Petitioner : Mr. S.K. Dalai For Opp. Parties : Mr. D. Panda, Additional Government Advocate ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment : 20.12.2011 B.N. Mahapatra, J. This writ petition has been filed with a prayer to quash the Detailed Tender Call Notice No.3761/DRDA/2010-11, dated 04.09.2010 (Annexure-1) issued by opposite party No.4-Project Director, DRDA, Kalahandi on the ground that the same has been issued in gross violation of the Government guidelines dated 24.01.2009, letter dated 25.08.2010, contrary to the principles laid down in the Government policy, against the public interest of that locality and also non-compliance of order dated 29.10.2010 passed by this Court in W.P.(C) No.17855 of 2010. Further prayer of the petitioner is to invite a fresh tender in a fair manner as per direction of this Court dated 29.10.2010. 2. The petitioner, who claims to be an educated and public spirited person of Kalahandi District and takes interest for development and upliftment of the local area, has filed this petition in the nature of public interest litigation. He is always interested for social work and common cause for upliftment of the locality and the financial condition of the tribal people. 3. Petitioner’s case in a nut-shell is that opposite party No.4- Project Director, DRDA, Kalahandi (for short, “Project Director”) vide notice dated 04.09.2010 has published a tender call notice for construction of 100 seated ST Girls’ Hostel in different Blocks of Kalahandi District. In the said notice, it was indicated that the sale and receipt of bid documents shall start from 06.09.2010 to 15.09.2010 from 10.00 AM to 5.00 PM in the Office of the DRDA, Kalahandi and shall close on 15.09.2010 at 5.00 PM. As per the tender condition, tender papers can be purchased from the office of the DRDA and also it is stated therein that the tender to be dropped in the aforesaid office in office hour only within 10 days in between purchase and dropping of the tender papers. Though the State Government has directed to all the concerned departments including the Panchayat Raj Department to implement the guideline made in office memorandum dated 24.01.2009 for fair tender to avoid tender fixing, the Project Director with mala fide intention has floated the tender call notice ignoring all the guidelines only to give favour to his near and dear and to grab public money which is meant for tribal people. Hence, the present writ petition. 4. Mr. S.K. Dalai, learned counsel for the petitioner submitted that from the tender quotation it appears that there is no scope for e- 2 procurement. The Government of Orissa vide office Memorandum in File No.F.A.R.-3/08 1027/W dated 24.01.2009 after careful consideration decided to host all tenders costing of Rs.20 lakhs or above in the e- procurement portal. According to Government, the said memorandum will be applicable to all the departments. The office memorandum provides various guidelines and procedure to be followed in e-procurement in Government of Orissa. The Project Director, who is the author of the Tender Call Notice with a mala fide intention, has floated the tender call notice only to grab public money meant for the tribal people and the petitioner has gathered information that the Project Director previously has been implicated in many vigilance cases which are under investigation. 5. Prior to the Tender Call Notice, on 25.08.2010, the Secretary in-charge of the Government in SC & ST Development Department directed the Collector, Kalahandi to inform the allocation of 53 hostels to be further constructed during 2010-11 by ITDA, DRDA and OSIC Ltd., in Kalahandi District with the finalized location. The OSIC expressed their willingness to charge within 07.5% towards supervision charges for execution of the work within the stipulated period. Construction of 20 number of hostels as intimated vide office letter No.871 dated 13.04.2010 can be allowed to them. If, DRDA, Kalahandi is not in a position to take up the work, the P.A., ITDA of the district be directed to take up execution of remaining 33 hostels or less. 6. The Government of Orissa as well as Government of India for upliftment of tribal people from time to time are trying to give different aids but due to the aforesaid activity of the Officer, public money has been 3 misappropriated. A Professor of OXFORD University has opined it from research on development in Kalahandi and Nuapada District that there are three powerful groups, i.e., (1) Politician, (2) Local Contractors, and (3) Local Officers, who are responsible for misappropriation of public money. 7. The instant case is a glaring example of grabbing of public money in connivance with each other. Being aggrieved with the aforesaid activity of the Project Director, the grievance of general public has been published in news items. All the works have been allotted only to 5-6 persons, who are very close to the Project Director and many of the contractors have been deprived of dropping their tenders by the local goons and the entire episode is a clear example of tender fixing. When there was objection for amendment of tender call notice, the Project Director ignoring all the objections has decided to settle the works in favour of his near and dear. In the process, the life of the innocent tribal students is in danger. There are all total 40 number of works and almost all items are more than Rs.20 lakhs and as per direction the tender should have been called for in e-procurement to avoid tender fixing and for better competition, for qualitative works, and also for transparency in tender process, but with an ulterior motive the same has not been followed. 20 number of works have not been given to OSIC which is in gross violation of Government directions. 8. The petitioner along with other two persons approached this Court in W.P.(C) No.17855 of 2010 which was disposed of by this Court on 29.10.2010 with a direction to the Project Director, DRDA, who is the tender inviting authority, to strictly adhere to the procedure laid down by 4 the Government for inviting tender and liberty was given to the petitioners to file a representation before the Collector pointing out the irregularity committed by the authority to favour some contractors. It was further observed that if such a representation is filed the Collector shall consider the same and take remedial action against the tender inviting authority and also see that the guidelines issued by the Government are adhered to in future while inviting tenders for awarding contract to execute the civil works including award of contract to service providers. 9. Pursuant to the above direction of this Court, the petitioner along with one Ghasi Majhi on 09.11.2010 approached the Collector and the Project Director, DRDA with representation along with a order of this Court for necessary compliance and appropriate action. The petitioner was informed by the Project Director, DRDA vide letter dated 07.12.2010 under Annexure-6 that not a single item of work is in excess of Rs.20.00 lakhs. The Government in Works Department has issued instructions by order dated 24.01.2009 to adopt e-procurement portal, but it cannot be acted upon as no instruction from Panchayat Raj Department has been received for adoption of such procedure. Moreover, the technical personnel working in DRDA have not been trained for e-procurement procedure. Since the Project Director, DRDA has no authority to decide the agency to execute the work, the instruction issued by the Secretary-in-Charge to Government, SC & ST Development Department that construction of 20 hostel buildings can be taken up by the OSIC with a supervision charge of 7.5% is not valid. However, everybody irrespective of status was given opportunity to take part in the tender process as per OPWD Code without 5 violating any instructions of Government and without violating any public interest. Concluding his argument, learned counsel for the petitioner prays to allow this writ petition. 10. Mr. D. Panda, learned Additional Government Advocate appearing on behalf of State-opposite parties referring to counter affidavit dated 23.02.2011 filed by the Project Director, DRDA, Kalahandi submitted that the prayer made by the petitioner is thoroughly mis-conceived and barred by the principles of resjudicata as the said prayer has already been considered in the earlier writ petition. The Government in Works Department has directed for finalization of tender in e-procurement process. So far as the parent Department of DRDA is concerned, i.e., Panchayat Raj Department has neither directed to go for e-tendering process, nor imparted necessary training to its engineering staff for e- tendering/e-procurement procedure. Therefore, the tender process as per OPWD Code has been followed by the DRDA, Kalahandi. The Government in Panchayat Raj Department in their letter dated 25.08.2010 have not specifically directed to transfer 20 ST girls’ hostels to OSIC, Cuttack. The Government has directed to transfer the projects, if the DRDA, Kalahandi is not in a position to execute. Hence, 12 projects have been transferred to the OSIC vide this Agency letter No.5474 dated 18.12.2010 and 3 projects have been transferred to the P.A., ITDA, Th. Rampur at Bhawanipatna vide letter No.5478 dated 18.12.2010 for construction of hostels under intimation to the Government in SC & ST Development Department. 11. Mr.Panda further submitted that earlier the petitioner had approached this Court by filing a writ petition bearing W.P.(C) No.17855 of 6 2010 challenging the Tender Notice. Considering the said writ petition, this Court clearly observed that there was no defect in the Tender Call Notice. However, the orders of this Court were duly noted for compliance in future. The petitioner filed a petition on 09.11.2010 which has been considered by the Collector, Kalahandi. The petitioner was also informed about the same vide DRDA letter No.5192 dated 07.12.2010 under intimation to the Government in Panchayat Raj Department. As the Tender Call Notice has been made following the prescribed procedure, inviting a fresh tender was not considered by the Collector, Kalahandi. The Project Director has got no specific interest to favour any person or group of persons other than the development of the people and the district. In the tender call notice, it was also submitted that the bidders can also get the tender papers from the district website. The bidders have also been advised in the tender call notice to drop the tender papers in the tender box which was kept in the office of DRDA, Kalahandi. The period of selling and dropping of tender paper has been extended up to 20.09.2010, which is for a period of 15 days and not 10 days as alleged by the petitioner. The tender papers were opened and finalized in front of the tenderers and the tender committee. The tender calling authority is not the sole authority to finalize the tenders. Therefore, the allegation made by the petitioner is baseless. It is submitted that 25 number of 100 seated ST girls hostels have been finalized by the tender committee with the approval of the Collector-cum-Chairman and 15 contractors have been selected, who are not related to any employee of Panchayat Raj Department. Hence, the allegation of the petitioner that the works were allotted to 5 to 6 persons is not correct. The cost of 7 construction of each of the ST girls’ hostel building was estimated to be Rs.35 lakhs which is more than Rs.20 lakhs. One construction work includes various items and the cost of each item is not more than Rs.20 lakhs as alleged by the petitioner. The tenders have already been finalized and works have been started. Concluding his argument, Mr. Panda prayed for dismissal of the writ petition. 12. On the above rival contentions of the parties, the only question that falls for consideration by this Court is as to whether the Collector, Kalahandi has considered the representation of the petitioner and acted in accordance with the direction of this Court vide order dated 29.10.2010 passed in W.P.(C) No.17855 of 2010. 13. Earlier writ petition bearing W.P.(C) No.17855 of 2010 was filed by the petitioner along with others with a prayer to quash the tender call notice dated 04.09.2010 (Annexure-1) published in local newspaper dated 06.09.2010 inviting tender for execution of 40 number of works on the ground that the same is contrary to the Government guidelines dated 24.01.2009. The said writ petition was disposed of on 29.10.2010 with the following observations and directions:- “29.10.2010 Heard learned counsel for the petitioner. The prayer of the petitioner in this writ petition is to quash the Tender Call Notice dtd. 4.9.2010 (Annexure-1) inviting tenders for execution of certain work which was published in the local newspaper dtd.6.9.2010 on the ground that the same is contrary to the Govt. guidelines dtd. 24.1.2009 which provides that tenders shall be invited through e- procurement and deprived the eligible contractors to submit the tender by following the e-procurement procedure. We have noticed the terms and conditions of the tender call notice which reads thus. 8 “The tender document along with terms and conditions can be purchased from the DRDA, Kalahandi on payment as per the cost noted above. The Tender document can be downloaded from the District Website www.kalahandi.nic.in . In such case the tenderer has to be enclosed with a Bank Draft/Bankers cheque towards the cost of the tender paper as noted above at column No.5…..” In view of the said terms and conditions, eligible person who intended to submit his tender could have downloaded the tender documents from the district website and submitted tender for the works notified. In this view of the matter, we do not find any defect in the tender call notice inviting tenders. We, however, direct the Project Director, DRDA, Kalahandi-opp.party No.3, the tender, inviting authority to strictly adhere to the procedure laid down in the guidelines issued by the Govt., referred to above in inviting tenders. In this regard, the petitioner is at liberty to file representation before the Collector pointing out the irregularity committed by the authority in not following the government guidelines to favour some contractors. If such petition is filed, the Collector shall consider the same and take remedial action against the tender inviting authority and also see that the guidelines issued by the government are adhered to in future while inviting tenders for awarding contract to execute Civil Works including award of contract to service providers. With the aforesaid observation and direction, the writ petition is disposed of.” 14. Pursuant to the aforesaid order of this Court, the petitioner filed two identical representations i.e. one before the Project Director, DRDA and another before the Collector, Kalahandi. The representation given to the Collector is reproduced below: “To, The Collector, Kalahandi (Sub: Representation pursuant to the direction of Hon’ble High Court in W.P.(C) No.17855 of 2010, vide order dated 29.10.2010) Sir/Madam, 9 The petitioners in a public Interest Litigation were before Hon’ble High Court in W.P.(C) No.17855 of 2010, challenging the Tender call notice invited by the Project Director, DRDA, Bhawanipatna contrary to the Government Guidelines dated 24.01.2009 and 25.08.2010 which provides e-procurement and allotment of works. Vide order dated 29.10.2010 it has been directed for to strictly adhere to the procedure laid down in the guidelines issued by the Government and also further directed to file further representation before the Collector pointing out the irregularities committed by the PD, DRDA, Kalahandi. For the reasons the petitioners filed herewith the certified copy of the order dated 29.10.2010 along with Govt. order dated 24.01.2009 and 25.08.2010 and also copy of the writ petition for necessary compliance and appropriate action. In the aforesaid representation the petitioners want to draw the following irregularities done by the PD, DRDA, Kalahandi:- (1) That, the tender has been invited for construction 100 seated ST girls’ hostel in Bhawanipatna Block for 40 items, and it has been there that every item’s cost is more than 20 lakhs, while inviting tender the Govt. has categorically by order dated 24-01-2009 has directed for e-procurement but the same has not been complied with. (2) That, vide order dated 25-08-2010 it has been directed to construct the Hostels by ITDA, DRDA and OSIC but the same has been ignored only to give under favour by the PD, DRDA, Kalahandi, to his own near and dear. In view of the aforesaid act many contractors have been deprived to participate in the tender process and also direction of the State Govt. have been ignored and public interest have been violated. The entire act has been done only to misappropriate public money. Yours faithfully, Bhawanipatna Date 09.11-10 Ghasi Majhi Kartikeswar Purohit” Similarly, a representation is also given to the Collector, Kalahandi. 15. The representation of the petitioners was disposed of vide Letter No.5192 dated 07.12.2010 issued by the Project Director, DRDA, Kalahandi, which reads thus: 10 “DISTRICT RURAL DEVELOPMENT AGENCY, KALAHANDI. Letter No.5192/Dated 07.12.2010 To, 1. Sri Ghasi Majhi, S/o. Bachu Majhi Village – Talangasur, P.S. Lanjigarh, Dist: Kalahandi. 2. Sri Kartikeswar Purohit, S/o. Madhu Sudan Purohit, Village/Post – Dhamanpur, P.S. Golamunda, Dist: Kalahandi. Sub: Petition regarding tender call and direction of Hon’ble High Court dated 29.10.2010 in W.P.(C) No.17855 of 2010. Reg: Your petition dated 09.11.2010. Sir, With reference to your representation on the subject cited above, I am directed to reply your petition as follows:- (1) “That, the tender has been invited for construction 100 seated ST girls hostel in Bhawanipatna Block for 40 items, and it has been there that every item’s cost is more than 20 lakhs, while inviting tender the Govt. has categorically by order dated 24.01.2009 directed for e-procurement but the same has not been complied with.” Reply: It is not a fact that tender has been invited for construction of 100 seated ST girls hostel in Bhawanipatna Block for 40 items. The fact is that 40 hostel buildings (100 seated ST girls’ hostels) spread over 11 blocks excluding Lanjigarh and Th. Rampur are proposed to be constructed. This construction is not restricted to Bhawanipatna Block only. Construction works will be undertaken in 11 block of the district. It is also seen that not a single item of work is in excess of Rs.20.00 lakhs as alleged. It is admitted that Government in Works Department has issued instructions by order dated 21.1.09 to adopt e-procurement portal. But it is not acted upon on the ground that no instruction from the P.R. Department has been issued for adoption of such procedure. Moreover, the technical personnel working in DRDA have not been trained for e- procurement procedure either. 11 (2) That, vide order dated 25-08-2010 it has been directed to construct the Hostels by ITDA, DRDA and OSIC but the same has been ignored only to give undue favour by the PD, DRDA, Kalahandi, to his own near and dear. REPLY:- In the order dated 25.08.2010 it is instructed by the Secretary In-Charge to Government, SC & ST Development Department that construction of 20 hostel building can be taken up by the OSIC with a supervision charge of 7.5%. The decision regarding this was not to be taken by the PD, DRDA, Kalahandi as he is not the authority to decide on the Agency to execute the work. The tender that was invited for the construction of the 100 seated ST girls’ hostel buildings has been open to all as it was hoisted in the official Website. Every body irrespective of status was given opportunity to take part in the tender process as per OPWD Code without violating any instructions of Government and without violating any public interest. The entire act has been done most impartially and fairly not to misappropriate public money, but to ensure proper and just utilization of Government money. This is for your information & necessary action. Yours faithfully, Project Director, DRDA, Kalahandi” 16. In view of the above, now we have to examine as to whether the representation of the petitioner has been disposed of by the Collector in terms of the order of this Court dated 29.10.2010 passed in W.P.(C) No.17855 of 2010. This Court disposed of the above writ petition on 29.10.2010 giving liberty to the petitioner to file a representation before the Collector pointing out irregularities committed by the authorities in not following the government guidelines to favour some contractors. Direction is also given to the Collector that if such a petition is filed the Collector shall consider the same and take remedial action against the tender inviting authority. 12 17. So far as the allegation for not hosting the tender costing Rs.20.00 lakhs or more than that in the e-procurement portal, the DRDA contended that no instruction from Panchayat Raj Department has been received for adoption of such e-procurement. Moreover, the technical persons working in the DRDA have not been trained for e-procurement procedure. 18. The second allegation of the petitioner is that the construction of hostels has not been done by ITDA, DRDA and OSIC in terms of the order dated 25.08.2010 with a view to give undue favour by the Project Director to his own near and dear. Against such allegation, explanation of the DRDA is that though in order dated 25.08.2010 it is instructed by the Secretary in-charge to Government in SC and ST Development Department that construction of 20 hostel buildings can be taken up by OSIC with supervision charges of 7.5%, the decision regarding this was not to be taken by Project Director, DRDA, as he is not the authority to decide on the agency to execute the work. No material has been brought to our notice to show that tender inviting authority has either sought clarification from or discussed the matter with any higher authority before taking a decision for not hosting the tender in e-procurement portal and for not following the order dated 25.08.2010 with regard to the execution of work through ITDA, DRDA and OSIC. 19. This Court vide order dated 29.10.2010 passed in W.P.(C) No.17855 of 2010 directed the Collector, Kalahandi to consider the representation of the petitioner and take remedial action against the tender 13 inviting authority. No document was brought to our notice to show that the Collector, Kalahandi has considered the representation filed by the petitioner and has taken any remedial action against the tender inviting authority in terms of the order dated 29.10.2010 passed in W.P.(C) No.17855 of 2010. Though in paragraph 15 of the counter affidavit filed by the Project Director, DRDA, Kalahandi on behalf the Collector, Kalahandi it is stated that the order of this Court are humbly noted and action has been taken as per the direction dated 29.10.2010, nothing has been stated further about the allegation made by the petitioner in its representation and what action has been taken against the erring officer(s). 20. In view of the above, we think it proper to direct the Principal Secretary to Government in SC and ST Development Department, Government Orissa to investigate into the matter and take necessary action against the erring officer(s) including the Collector and Project Director of Kalahandi, if they are found guilty in the matter of awarding the contract in question. 21. With the aforesaid observations and direction, the writ petition is disposed of. ………………………….. B.N. Mahapatra, J. V. Gopala Gowda, C.J. I agree. ……………………….. Chief Justice Orissa High Court, Cuttack The 20th December, 2011/skj/ss/ssd 14