Blacklisting of a contractor requires prior contractual obligations; mere non-participation in tender processes does not justify blacklisting.

JUDGMENT :

(Ajay Mohan Goel, J.)

By way of this writ petition, the petitioner has, inter alia, prayed for the following relief:-

“That an appropriate writ, order or directions may kindly be issued and the impugned communication dated 22.08.2023 Annexure P-4 and 18.07.2023 may kindly be quashed and set aside in the interest of law and justice.”

2. The petitioner is primarily aggrieved by office order dated 22.08.2023 (Annexure P-4), issued by the Engineer-in-Chief Jal Shakti Vibhag, which reads as under:-

“In pursuance/compliance of Principal Secretary (JSV) to the Government of Himachal Pradesh letter No.JSV-B(F)-2022 dated 18.08.2023, the firm M/s Rashmi Metaliks Limited, Kolkata is hereby blacklist/debar from participating in the tendering process of D.I. Pipes in Jal Shakti Vibhag Himachal for the next one year.

Henceforth no supply orders/pipes shall be placed/procured by the department at any level in favour of the above firm for next one year.”

3. When the case was taken up for consideration today, learned Deputy Advocate General submitted that in the light of the fact that the petitioner in terms of Annexure P-4 was blacklisted for a period of one year and as the said period is over, the impugned office order has lost its efficacy and so also the writ petition, because now the petitioner can participate in any future tender.

4. Learned Senior Counsel for the petitioner submitted that the issue is as to whether the act of blacklisting the petitioner is sustainable in law or not for the reason that though the period of blacklisting is over, but, until this Court decides said issue in favour of the petitioner, the stigma of being declared as a blacklisted contractor shall always be there with the petitioner.

5. The matter was heard at length. The blacklisting of the petitioner is in terms of communication dated 18.08.2023, which is at Page 33 of the paper book and it is relevant to quote the same so as to understand the issue involved in this petition:-

“No. JSV-B(F)7-2-2022

From:

The Pr. Secretary (JSV) to the Government of Himachal Pradesh.

To

The Engineer-in-Chief, Jal Shakti Vibhag, Jal Shakti Bhawan, Tutikandi, Shimla-5.

Dated Shimla-171002, the 18/-8/2023.

Subject: Representation from M/s Rashmi Metaliks Limited.

I am directed to refer to your letter No.JSV-SP-I-D.I. Pipes-Vol-27/2023-24:3334 dated 21.06.2022, on the subject cited above and to say that representation of M/s Rashmi Metaliks Ltd., has been examined at Government level, in view of provisions at condition No.32(x) eligibility and blacklisting of the tender document for supply of DI pipes in Jal Shakti Vibhag. It has been gathered that after amendment in condition 32(x) of tender document, M/s Rashmi Metaliks Ltd. has not participated in the fresh tenders process of supply of DI pipes in Jal Shakti Vibhag, thus, the moto of the said company only to hamper the supply of DI pipes during last two years either by filing suits in the Courts or by representation. This action caused delay in procurement of DI pipes and completion of works undertaken in Hon’ble NGT targeted schemes.

Therefore, it has been decided to blacklist/debar M/s Rashmi Metaliks Ltd. from participating in the tendering process in Jal Shakti Vibhag, Himachal Pradesh with immediate effect.

You are, therefore, requested to take all necessary steps for blacklisting the said firm from participating in the tendering process in Jal Shakti Vibhag, Himachal Pradesh after completing all codal formalities.

These instructions may please be brought to the notice of all concerned and the same be uploaded on the official website of the Jal Shakti Vibhag, H.P.

Yours faithfully,

(Rakesh Sharma)

Deputy Secretary (JSV) to the Government of Himachal Pradesh.

6. A perusal this communication thus demonstrates that Principal Secretary (JSV) to the Government of Himachal Pradesh instructed Engineer-in-Chief, Jal Shakti Vibhag, to take necessary steps for blacklisting the petitioner firm and for debarring it from participating in the tend