Orissa High Court
"The Court Is Convened Through ... vs Mrs. Suman Pattanayak on 12 January, 2021
W.P.(C) No. 30846 of 2020
W.P.(C) No. 30846 of 2020 & W.P.(C) No.34437 of 2020
03. 12.01.2021 These matters are taken up by video conferencing mode.
2. Both these matters raise a challenge to the guideline issued by the
Principal Secretary to Government, Water Resources Department,
Odisha on 25th June, 2020 for execution of mechanical works and
for quashing of the consequential action taken in response thereto.
3. The contentions with regard to the aforementioned guidelines
were noted by this Court in its order dated 1 st December, 2020 in the
W.P. (C) No. 30846 of 2020 which reads as under:
"The Court is convened through Video
Conferencing mode.
Heard Mr. U.C. Mohanty, learned counsel for the
petitioners and Mrs. Suman Pattanayak, learned
Additional Government Advocate for the State-
opposite parties.
The contention of learned counsel for the petitioners
is that the Guidelines for fixation of Pre-
qualification Criteria for Tenders (Excluding
External Aided Projects) issued vide letter dated
03.11.2016 (Annexure-9) has been authenticated in
the name of the Governor but the letter dated
25.06.2020 (Annexure-1), which has been issued
superseding the above guidelines, has not been
authenticated in the name of the Governor.
Therefore the same cannot be acted upon. In support
of the submission, learned counsel relied upon the
judgment of the Apex Court in the case of
Bachhittar Singh vs. State of Punjab and another,
reported in AIR 1963 SC 395.
Mrs. Suman Pattanayak, learned Additional
Government Advocate accepts notice on behalf of
the State-opposite parties. She prays for time to file
counter affidavit. Let extra copies of the writ
petition be served on her for that purpose.
List this matter on 12.01.2021.
4. Subsequently, on 15th December, 2020 the connected W.P. (C)
No. 34437 of 2020 was listed. Notice was issued in it and the
petition was directed to be listed along with W.P.(C) No.30846 of
2020.
5. A counter affidavit has been filed by the Opposite Parties in W.P.
(C) No.30846 of 2020, which has also been adopted in the
connected writ petition.
6. This Court has heard the submissions of Mr. U.C. Mohanty,
learned counsel appearing for the Petitioner in W.P.(C) No.30846 of
2020; Mr. T.K. Pattanayak, learned counsel appearing for the
Petitioner in W.P. (C) No. 34437 of 2020 and Mrs. Suman
Pattanayak, learned Additional Government Advocate for the State-
Opposite Parties in both the matters.
7. It is seen from the counter affidavit filed by the Opposite Parties
that there are two kinds of guidelines. One pertains to the civil
works and the other in relation to the mechanical works. It has been
clarified that the earlier Government guideline dated 3rd November,
2016 covered both civil and the mechanical works undertaken by the
Water Resources Department, Government of Odisha. The present
guideline dated 25th June, 2020 is confined to mechanical works. It
is contended that this is a policy decision in the form of an
administrative instruction which does not require to receive the
assent of the Governor. It is stated that the earlier guideline dated 3rd
November, 2016 came to be superseded by another Government
order dated 4th February, 2017 and again superseded by subsequent
order dated 1st January, 2019. This supersession was done by
executive instructions. It is pointed out that there was no ambiguity
as regards the transaction of business rules and that this is not a
matter which requires authentication in name of the Governor in
terms of Article 166(3) of the Constitution. It is clarified that the
impugned guidelines only specify the manner in which the
mechanical work can be executed and there is no tender process as
such which has been initiated and might affect the rights and interest
of the Petitioners. It is added in the counter affidavit that the
guideline has been issued pursuant to a direction of this Court in I.A.
No.3979 of 2020 arising out of W.P.(C) No.17719 of 2019 requiring
the tender call notices to be floated in consonance with the terms and
conditions of the prevailing guidelines.
8. In view of the above clarification, this Court does not consider it
necessary to intervene in the matter to issue any directions. The
challenge to the impugned guidelines on the ground that they have
not been authenticated in the name of the Governor appears to be
misconceived.
9. The writ petitions accordingly dismissed but in the circumstances
with no order as to costs.
( Dr. S. Muralidhar )
Chief Justice
S.K.Jena (S. Panda)
Judge
