Rajasthan High Court - Jaipur
Rakesh Kumar S/O Shri Khemraj vs The State Of Rajasthan on 5 August, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1288/2019
1. Rakesh Kumar S/o Shri Khemraj, Aged About 51
Years, By Caste Koli, R/o B-28, Jawahar Nagar, Kota
(Rajasthan)
2. Narendra Mohan Gupta S/o Shri Govind Lal Gupta,
Aged About 58 Years, By Caste Mahajan, R/o House
No. 56, Chitragupt Colony, Kota (Rajasthan)
3. Rakesh Bhartiya S/o Shri Mohan Lal, Aged About 58
Years, By Caste Chhipa, R/o 3/114, Ganesh Talab,
Dadabari, Kota (Rajasthan)
----Petitioners
Versus
1. The State Of Rajasthan, Through The Principal
Secretary, Public Health And Engineering
Department, Government Secretariat, Rajasthan,
Jaipur (Rajasthan)
2. The Principal Secretary, Department Of Personnel,
Government Secretariat, Rajasthan, Jaipur
(Rajasthan)
----Respondents
For Petitioner(s) : Mr. Tarun Jaiman, Adv. For Respondent(s) : Mr. KS Chandel, Addl. G.C. Mr. Yathartha Gupta on behalf of Mr. Anil Mehta, AAG.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 05/08/2019
1. The petitioners have preferred this writ petition claiming the following reliefs:-
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(2 of 6) [CW-1288/2019] "i) by issuance of suitable writ, direction or order in the nature thereof thereby the Hon'ble Court may kindly be pleased to quash & set aside the impugned punishment order No.F- 1(174)Karmik/Ka-3/Jaanch/2017 dated 26.11.2018 passed by the Joint Secretary, Department of Personnel (Group-Ka-3/Enquiry), State of Rajasthan, Jaipur (Rajasthan), whereby he passed the order of stoppage of one grade increment without cumulative effect against the petitioners with all consequential benefits.
ii) Any other order or direction, which your lordship may deem just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioner and in the interest of justice.
Iii). The writ petition may kindly be allowed throughout with costs."
2. The petitioners are aggrieved by the order culminating out of disciplinary proceedings under Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeals) Rules, 1958.
3. The brief facts as noticed are that work for operation and maintenance of RUIDP Intakewell CPH, 33 KV GSS, 64 MLD WTP Plant Unit IIIrd at Akelgarh Kota was to be done for which a tender notice No.31/2013-14 was invited. The three Companies which submitted their tender work; M/s. K.K. Construction Company, M/s. Dynamic Intact Power Private Limited & M/s. Karuna Enterprises. M/s. Karuna Enterprises could not participate in the tender because in the tender condition it was not falling within the parameter of the tender value but the other two companies (Downloaded on 29/08/2019 at 10:25:52 PM) (3 of 6) [CW-1288/2019] participated and M/s. K.K. Construction Company was given the work. Since the work could not be completed, the respondents intimated M/s. Dynamic Intact Power Private Limited to complete the work under the same terms and conditions which were already operating in the contract. The petitioners thereafter, allotted the work to Ms. Karuna Enterprises which agreed to complete the remaining work as per rates and conditions of the main work order of M/s. K.K. Construction.
4. Counsel for the petitioner Mr. Tarun Jaiman however, submits that the approval of the work to be discharged by Ms. Karuna Enterprises was taken by his Senior Officers and the same was also allowed in accordance with Rule 337 of the Public Works Financial & Accounts Rules (PWF & AR) which reads as under:-
"Rule 337. In case, a contractor leaves a work before completion, after action is taken against such contractor as per terms of agreement, it would be permissible for the original sanctioning authority to award the remaining work on same rates and terms to any other registered contractor without calling tenders."
Counsel for the petitioners submits that the Rule 337 of Public Works Financial & Accounts Rules (PWF & AR) is a statutory provision applicable on cases where the Contractor leaves a work before completion and the rest of the work has to be done for which the Legislature has provided that the remaining work could be given to any (Downloaded on 29/08/2019 at 10:25:52 PM) (4 of 6) [CW-1288/2019] person without calling tenders on the same terms and conditions which were applicable upon the working Contractor.
5. Counsel for the respondent-State Mr. K.S. Chandel, submits that on the same terms and conditions as envisaged under Rule 337 of Public Works Financial & Accounts Rules (PWF & AR) would dis-entitle Ms. Karuna Enterprises, as it was the position at at initial stage itself. M/s. Karuna Enterprises could not take part even initially as they could not have minimum level of valuation of Rs. 1.50 crores which was required to participate in the tender process. Mr. K.S. Chandel, also submits that the original tender was of Rs. 1.57 crores and Ms. Karuna Enterprises was having the upper limit of 1.50 crores and was a B Class Contractor. Mr. K.S. Chandel also submits that Rule 17 of the Rajasthan Transparency in Public Procurement Rules, 2013 required that beyond a valuation of Rs.1 lakh the invitation bid has to come on the State Public Procurement Portal as laid down in Section 17(2)(a). The same is reproduced as under:-
"17. Single source procurement-
(1)----------------
(a)-------------------
(b)-----------------------
(2) The procedure for single source procurement shall be as under-(Downloaded on 29/08/2019 at 10:25:52 PM)
(5 of 6) [CW-1288/2019]
(a) The procuring entity shall solicit a bid from the single prospective bidder and shall also exhibit the invitation to bid on the State Public Procurement Portal if the value of procurement is rupees one lakh or more. The procuring entity shall not exhibit the invitation to bid on the State Public Procurement Portal, if it is of the opinion that subject matter for procurement is of nature specified in clause (e) or
(h) of sub-section (1) of Section 31 (2) Each procuring entity shall cause the procurement related information to be published as required under this Act or the Rules and guidelines made thereunder on the Portal referred to in sub-
Section (1)"
6. After hearing learned Counsel for the parties, this Court is of the opinion that on careful examination of Rule 337 of Public Works Financial & Accounts Rules (PWF & AR), it prohibits the rest of the work to be given to any person who does not fulfill the same terms and conditions in which the original contract was granted. This Court is also of the opinion that Rule 17 of the Rules of 2013 also required the petitioners to put the tender in question at the State Public Procurement Portal. The submissions of the Counsel for the petitioners that it was a bonafide decision taken in the larger public interest with an approval of the seniors cannot be held good in the given circumstances where the Rule itself is prohibiting going beyond the terms and conditions of the original contract and it is an accepted position that M/s. Karuna Enterprises, Kota was not able to participate in the original tender process as it was not having the necessary financial strength for completing the contract in question. We also cannot go on the submissions (Downloaded on 29/08/2019 at 10:25:52 PM) (6 of 6) [CW-1288/2019] that remaining work was less than 1.50 crores, and the valuation parameter changed for the remaining work as Rule 337 itself says that original terms and conditions as stipulated for tender process have to be seen and M/s. Karuna Enterprises did not qualify in the same. The punishment itself is having a non-cumulative effect. So in the given circumstances, the extra-ordinary jurisdiction of this Court is not required to be invoked in favour of the petitioners.
7. Hence, the writ petition is accordingly dismissed.
(PUSHPENDRA SINGH BHATI),J N.Gandhi/JKP-29 (Downloaded on 29/08/2019 at 10:25:52 PM) Powered by TCPDF (www.tcpdf.org)