TEK NATH SAPKOTA Vs. STATE

JUDGEMENT

(1.) The State of Sikkim, impleaded as respondent No. 1, sanctioned the works for repairs of the drinking water pipeline of the Simik Dongeythang area at an estimated cost of Rs. 3.19 lakhs in July 1994. In pursuance of Circular No. 54(25)Home/ 90/35 dated 24-9-1991, issued by the Government of Sikkim, Home Department, Gangtok, according to which all works not exceeding Rs. 5.00 lakhs are to be executed through the nominees of the Panchayat/ MLAs, work order was directed to be issued to the petitioner who was the nominee of the Panchayat. But, the work order was issued not in favour of the petitioner but in favour of respondent No. 2. The petitioner issued notice demanding justice; but to no effect. The petitioner has alleged that the work order was issued in favour of respondent No. 2 in an illegal manner since respondent No. 2 was not even the nominee of the Panchayat or of MLA of the area concerned. Further, he has alleged that he had taken pains at the time of making estimates of the scheme and for that purpose he had taken Engineers to the areas where the pipe-line was damaged or had been washed away. The petitioner has also pleaded that the aforesaid circular dated 24-9-91 which was subsequently amended by another circular dated 14-2-1995 by which the value of the contract to be given to the nominees of the Panchayat/MLA was increased to Rs. 10.00 lakhs has given rise to discontentment among the village people, as it had given powers to the Panchayat to nominate a person of its choice and in the absence of any norms or standards, it encouraged discrimination and arbitrariness. According the petitioner, the aforesaid policy became an instrument to give contracts to the persons of the choice of the Head of the Departments which is contrary to democratic principles. Further, he has alleged that the State Government did not disclose on what grounds the works had been awarded to respondent No. 2, instead of the petitioner and that respondent No. 2 was not even the nominee of the Panchayat/MLA. He has prayed for issue of writ of mandamus or any other appropriate writ to cancel the work order issued in favour of respondent No. 2 and for issue of an appropriate order directing respondent No. 1 to issue work order in favour of the petitioner or in the alternative for a declaration that the notifications dated 24-9-1991 and 14-2-1995 are illegal and contrary to the provisions of Article 14 of the Constitution and the Sikkim Financial Rules and to quash the same.

(2.) Respondent No. 1 has not disputed that respondent No. 1 had been nominated by the Panchayat in pursuance of the circular dated 24-9-1991, but, the work order was issued in favour of respondent No. 2. It is pleaded that an application from the petitioner endorsed by the Chief Minister was received by the department but work order had already been issued in favour of respondent No. 2, on the recommendation of the Chief Minister. The stand of the State Government is that no work order in respect of the contract work was issued in favour of the petitioner and as such he does not have any legal right whatsoever to claim the said work. Further contention of respondent No. 1 is that the circular dated 24-9-1991 amended on 14-2-1995 is merely an administrative instruction not having any statutory force and, is, therefore, not enforceable at law and does not confer any legal right in favour of the petitioner. It is denied that the circular has given rise to discontentment amongst the villagers or that the policy of the Government has encouraged discrimination or arbitrariness. It is stated that the work is of an urgent nature, as it involves repair of water pipeline to supply drinking water to the villagers and as there is no other source of drinking water available to the villagers, and so the work has to be completed at the earliest and, accordingly, the Government nominated respondent No. 2 and issued the work order to him. Respondent No. 2 has, in his counter, pleaded that he was issued the work order, being the nominee of the Chief Minister, in pursuance of the circular and he had already completed about 60-65% of the work in question.

(3.) We have heard Shri N. B. Kharga, Advocate on behalf of the petitioner, Miss K. Chuki, Govt. Advocate on behalf of respondent No. 1 and Mr. B. Sharma, Advocate on behalf of respondent No. 2. Learned counsel for the petitioner has submitted that the petitioner has the locus standi to bring the petition because his nomination had been approved in pursuance of the circular dated 24-9-1991. He has also submitted in the alternative that the circular is discriminatory and confers arbitrary power on the Government to award contracts which is violative of Art. 14 of the Constitution. On the other hand, Miss Chuki has submitted that since the petitioner was not awarded the contract, he did not have the locus standi to bring the petition. Further, she has submitted that since the circular is in the nature of an administrative instruction not having statutory force, the petitioner is not entitled to make any claim founded on the circular. According to her, the circular is valid. Learned counsel for respondent No. 2 has supported the stand taken by the learned Government Advocate and has further submitted that respondent No. 2 has already completed about 65% of the work and if at this stage he is prevented from completing the work, he will suffer immense loss.