Orissa High Court
Suryanarayan Agrawal vs State Of Orissa & Anr on 6 August, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 12247 of 2010
Suryanarayan Agrawal .... Petitioner
Mr. S.K. Sanganeria, Advocate
-versus-
State of Orissa & Anr. .... Opp. Parties
Mr. A.R. Dash, AGA
CORAM:
JUSTICE S.K. MISHRA
JUSTICE SAVITRI RATHO
Order No. ORDER
06.08. 2021
03. The matter is taken up by video conferencing mode.
Heard Mr. S.K. Sanganeria, learned counsel for the petitioner
and Mr. A.R. Dash, learned Additional Government Advocate.
This writ petition has been filed with a prayer to direct the
opposite parties to allow the petitioner who is a 'B' class Contractor to
work in C and D category of Contractors and for quashing of the
applicability of amendment to Rule-3 of P.W.D. Contractors Registration
Rule 1967 under Annexure-2.
This issue is already covered by the Full Bench judgment of this
Court in the case of Bijay Kumar Panigrahi & Ors. v. State of Orissa,
reported in AIR 2011 Orissa 174.
In the said case, the same provision i.e. Rule-3-Classification of
Contractors and amendment in Rule-3 classifying the various classes of
Contractors and amount regarding participation in tender has been laid
down. After considering the entire facts of the case and law guiding
them, this Court has held at paragraphs- 18 and 19, which are extracted
below:-
"18. While retaining the aforesaid parts of Rule-3 in the
amendment in the year 2002, a further sub-clause has been
added to the following effect:
// 2 //
"A contractor having licence for a particular
Class can offer tender meant for his next below class
of the contractor in addition to his own class, e.g., a
Super Class Contracror can offer bidding meant for
'Special Class' in addition to 'Super Class' and
'Special Class contractor can offer bidding meant for
'A' Class in addition to 'Special Class' and so on".
The aforementioned quoted portion of the Rule-3, is the subject-
matter of challenge. By bringing into force the aforequoted
part of Rule-3, by amendment on 13-2-2002, it restricted a
contractor registered for a particular class, for example 'Super
Class' to be entitled to also bid for the next below class of
contractor i.e. 'Special Class'. By virtue of the aforesaid clause
brought in by the amendment in the year 2002, a higher class
contractor could also offer tenders meant for his next lower
class category.
The intent behind the aforesaid provision is clearly to limit
contractors from bidding for tenders meant for lower category
contractors. From the above it is clear that while the
unamended Rule-3 allowed/permitted contractors to make
offers meant for all categories below his registered category but
post amendment of 2002, a higher category contractor was
restricted to only bidding for the next lower class alone. It is
clear that this higher class contractor from grabbing work of a
lower class contractors since there was every possibility that 'a
big fish will eat small fishes', which is the reason assigned by
the Division Bench of this Court while making the order of
reference in its order dated 6-5-2010.
19. We are unable to accept the contention advanced by the
learned counsel for the petitioners that no rational object is
sought to be achieved by the State by promulgating such an
amendment and incorporating the clause quoted above. The
State has considered the consequences while amending the
aforesaid rule. The State is bound "to act reasonably" and such
act on the part of the State has to be tested on the touchstone of
public interest.
We are of the considered view that the public interest would
be protected and limiting a higher class contractor to offering
bids for his own category and the next lower class achieves the
intent of protecting the interests of lower category contractors.
The claim of the petitioner contractors of a higher category to
permit them to bid for all work, meant for a lower category
contractors is a clear attempt to try and make an inequals to
compete as an equal and, therefore, violative of the
constitutional guarantee of equality under Article 14. A
// 3 //
contractor of a lower category would have a very poor chance
or no chance of getting any work at all. Accordingly, we are of
the view that the amendment made protects the interests of
contractors of lower categories and has been enacted to protect
the big fishes from eating "small fish"."
In view of the Full Bench of this Court, we come to the conclusion
that the amendment of the aforesaid Rule is intra vires of provisions of
Articles 13 (1), 13(2), 14, 16(2), 19(1) (g) and 21 of the Constitution of
India. Hence, the writ petition has no merit.
Accordingly, the writ petition is dismissed and interim order
stands vacated.
Urgent certified copy of this order be granted as per rules.
(S.K. Mishra)
Judge
( Savitri Ratho)
Judge
puspa
