Hon'ble MAHESHWARI, J.—The petitioner, said to be a proprietary concern and a B Class contractor with the Public Health Engineering Department of the Government of Rajasthan, has filed this writ petition seeking to question the provisions contained in the Public Works Financial and Account Rules (‘the PWF&A Rules’) insofar they put restrictions on a contractor in submitting tenders for the works in the Circle where his near relative is posted with the department. The petitioner also seeks to question the order dated 10.01.2013 (Annex.1) whereby the Executive Engineer, Public Health Engineering Department, District Rural Division, Chittorgarh has debarred it from participation in the tender process in future in the Circle, with reference to the questioned provisions and with reference to the facts that the brother of the proprietor of the petitioner firm is working on the post of UDC in the Circle and an Anti Corruption Bureau matter is pending.

2. The provisions contained in Clause No.1.19 of general conditions for enlistment of contractors and Condition No.41 of the general conditions of contract in PWF&A Rules, as sought to be questioned in this writ petition, could be noticed at the outset as under:-

“I.19 Work not to be allotted to near relatives: Contractors who are near relatives of the staff (Engineering, accounts, ministerial & subordinate etc.) will not be allowed to tender for works in the jurisdiction of officer responsible for award and execution of contract where their near relative is working.

Note: Near relative will include wife, husband, parents, Grand parents, Children and Grand Children, Brothers and Sisters, Uncle, Aunts and Cousins and their corresponding in laws.

“41: Near Relatives barred from tendering

The Contractor shall not be permitted to tender for works in Circle, in which his near relative is posted as Divisional Accountant or as an officer in any capacity between the grades of the Superintending Engineer and Assistant Engineer (both inclusive). He shall also intimate the names of persons, who are working with him in any capacity, or are subsequently employed by him and who are near relatives to any gazetted officer in the Organization/Department. Any breach of this condition by the Contractor would render him liable to be removed from the approved list of contractors of the Department. If such facts is noticed (a) before sanction of tender, his offer shall be declared invalid and earnest money shall be forfeited, (b) after sanction of the tender then the tender sanctioning authority may at his discretion forfeit his earnest money, performance guarantee, security deposit and enlistment deposit and the work/remaining work may allot to any registered contractor on the same rates as per rules.

Note: By the term 'near relative' is meant wife, husband, parents and grand-parents, children and grand children, brothers and sisters, uncles and cousins and their corresponding in-laws.”

3. Seeking to question the clauses/conditions aforesaid, it is contended on behalf of the petitioner that a complete procedure is prescribed under the PWF&A Rules ensuring transperancy in regard to the process of invitation of tenders and their acceptance; that the tenders are finalised by a High Powered Committee before assigning the work to the contractor and the rates are finalised according to the Basic Schedule of Rates as applicable in the concerned department; that the work is supervised by the senior technical officers and the amount is released for the work done after the approval from the site engineer/technical officer; and that the audit is also carried out. Therefore, according to the learned counsel for the petitioner, the provisions like those contained in Clause No. 1.19 and Condition No.41 (supra) remain absolutely arbitrary, having no nexus with the object sought to be achieved. It is submitted that the questioned clauses are directly violative of Articles 19(1)(g) and 301 of the Constitution of India insofar they

Click Here to Read the rest of this document