Entitlement to contractual incentives and the violation of principles of equality under Article 14 of the Constitution.

ORDER

1. This matter is taken up through hybrid mode.

2. This matter is listed today in the 'to be mentioned' category as the order could not be dictated on 06.09.2021.

3. Heard Mr. B.P. Tripathy, learned counsel for the petitioner and Mr. A.K. Nanda, learned Addl. Government Advocate.

4. The petitioner in this case is a contractor partnership firm.

The managing partner having died during pendency of the writ petition has been substituted by the surviving partner Smt.

Khusboo Poddar. The petitioner executed a work for the State of Odisha in the Department of Rural Works Division. The claim of the petitioner is that since it completed the work within the time, it is entitled to an incentive. As per the petitioner's contention, the value of the work was Rs.1,51,29,541/- and the scheduled date of commencement and completion of the work was 17.07.2015 and 16.04.2016, respectively. The work was completed on 11.02.2016. Hence, as per the Clause 2.20(B) of the Detailed Tender Call Notice (DTCN), he is entitled to an incentive. The aforesaid Clause 2.20(B) of the DTCN reads as follows:-

'2.20(B) For availing incentive clause in any project which is completed before the stipulated date of completion, subject to other stipulations it is mandatory on the part of the concerned Executive Engineer to report the actual date of completion of the project as soon as possible through fax or e-mail so that the report is received within 7 days of such completion by the concerned SE, CE and the Administrative Department. The incentive for timely completion should be on a graduate scale of one percent to 10 percent of the contract value Assessment of incentives may be worked out for earlier completion of work in all respect in the following scale-

Before 30% of contract period = 10% of Contract Value

Before 20% to 30% of contract period = 7.5 % of Contract Value.

Before 10% to 20% of contract period = 5 % of Contract Value.

Before 5% to 10% of contract period = 2.5% of Contract Value.

Before 5% of contract period = 1% of Contract Value.'

5. It is, therefore, prayed by the petitioner that the opposite parties be directed to release a sum of Rs.6,05,182/- being the incentive of 7.5% of the agreement. The learned Addl. Government Advocate, on the other hand, relies upon the Rules of OPWD Code, which is appearing as at Annexure-B/2 to the counter affidavit and the same has been inserted as an amendment of 2004 and 2006. The O.P.W.D. Code as amended in 2004 and 2006 reads as follows:-

' AMENDED 2004 & 2006

[Note I Provision of incentive will be made in the Agreement. This incentive will be @ 1% in case of completion of work ahead of the month (Part of the month shall be excluded) and the maximum amount payable will be fixed at 2% if the work is completed two months ahead of the Schedule time.

Incentive should be paid in respect of individual project for new construction/substantial additional or improvement works, the minimum, value of which is mentioned below:

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Name of the work Minimum Value

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1. Building work/P.H. work Rs.40.00 lakhs

2. Road work Rs.3.00 crores

3. Irrigation work Rs.10.00 crores

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Incentive will be paid with approval of next higher authority of tender accepting authority on completion of original work before original time schedule.'

6. It is, therefore, contended by the learned Addl. Government Advocate that in a road work, the contractor is entitled to incentive only if the minimum value of the work is Rs. 3.00 crores for which the writ application should be rejected.

7. The learned counsel for the petitioner, on the other hand, submits that the DTCN, especially Clause 2.20 (B) do not provide that such note appearing in the OPWD Code will be applicable to the present case. It is also submitted that the petitioner should not be discriminated by not awarding the incentive on the basis of value of the work. The learned counsel