JUDGMENT

VINEET SARAN,CJ. - The Superintending Engineer, P.H. Circle, Cuttack-opposite party no.3 invited Percentage Rate Bid through e-procurement, vide Bid Identification No. SEPHCTC-05/2017-18 dated 30.10.2017, in conformity with the terms and conditions mentioned therein, for the work “Laying of Distribution System in Un-covered Areas and Laying of dedicated feeder Line from Chandabali Chhak to Banikanthnagar and Hemamalapur in Athagarh Town”. The Detailed Tender Call Notice (DTCN), which contained two bid system (Part-I:General and Technical Bid and Part-II: Price Bid), invited bids from ‘B’ Class or ‘A’ Class contractors registered with the State Government and contractors of equivalent grade/class registered with Central Government/ any other State Government/MES/Railways and Reputed Engineering Firms fulfilling minimum eligibility criteria as prescribed in the DTCN itself. The bid was directed to be submitted on-line by eligible class of contractors. The bidders were to have the necessary Portal Enrolment (with their own digital signature certificate). The approximate value of the work was Rs.136.64 lakhs and EMD Rs.1.37 lakhs. The cost of documents was Rs.10,000/- which should be deposited by way of demand draft in favour of Executive Engineer, P.H. Division-II, Cuttack and the required period of completion was 4 (four) months. The last date/time of receipt of bids in the portal was 22.11.2017 up to 5.00 P.M. and the date and time of opening of bids was 25.11.2017 at 12.30 P.M.

2. The petitioner, being a registered ‘A’ Class contractor and otherwise eligible in all respects, pursuant to the conditions stipulated in the DTCN, submitted his bid for the aforesaid work with all required documents. Besides the petitioner, opposite party no.5-Raghumani Sethi and opposite party no.6-Saroj Kumar Singh also submitted their bids. On opening of the technical bids, the petitioner, as well as opposite parties no.5 and 6, having been qualified, their financial bids were opened in which petitioner was found L-1, having quoted 3.06% less than the tender value, whereas opposite party no.5 was found the second lowest bidder. The tender inviting authority-opposite party no.3, did not issue work order in respect of first lowest bidder, the petitioner herein. Instead of doing so, opposite party no.3 decided to award the work in favour of opposite party no.5, on the ground that he belonged to Scheduled Caste community, hence this writ petition.

3. Mr. B.K. Routray, learned counsel for the petitioner contended that all the three tenderers, being found to be technically qualified, their price bids were opened, in which the price of the petitioner was found to be lowest at 3.06% less than the estimated cost. The price offered by opposite party no.5-Raghumani Sethi was 0.00% less than the estimated cost, that means, at par with the estimated cost, and the price offered by opposite party no.6-Saroj Kumar Singh was 4.99% above the estimated cost. The estimated cost of the work in question being Rs.136.64 lakhs, the offer of the petitioner, which was at 3.06% less, came to Rs.132.45 lakhs. But opposite party no.3, instead of awarding the work in favour of the petitioner, on 20.01.2018 awarded the same in favour of opposite party no.5, illegally, arbitrarily and unreasonably by calling opposite party no.5 for negotiation, at the price which was offered by the petitioner, i.e., 3.06% less than the estimated cost, as he is a Scheduled Caste Contractor. Therefore, interference of this Court is warranted.

4. Mr. B.P. Pradhan, learned Additional Government Advocate, with reference to the pleadings made in the counter affidavit filed by opposite party no.3, justified the action taken by the authorities. It is contended that following Sl. No.7 of Executive Instructions regarding calling for and acceptance of tender in e-procurement of Govt. of Odisha, vide Office Memorandum No.7885/W dated 23.07.2013, which is a part of DTCN and Statutory Govt. Instru