WP(C)/4472/2026 of AKSHAY KUMAR ROUT Vs STATE OF ODISHA on 20 May 2026

J U D G M E N T

------------------------------------------------------------------------------------- Date of Hearing and Judgment : 20th May, 2026 -------------------------------------------------------------------------------------- HARISH TANDON, CJ.

1. The petitioner has approached this Court by filing the instant writ petition challenging the letter dated 27.01.2026 issued by the Superintending Engineer, Nimapara Irrigation Division, Nimapara by which this authority called upon the petitioner to intimate the willingness to execute the work at the rate quoted by the lowest bidder as the said lowest bidder failed to deposit the required Additional

Performance Security (APS) and Initial Security Deposit (ISD) within the stipulated time. Simultaneously, a challenge is also made to Clause 22.3 of the OPWD Code, Vol-II being contrary to the tender rules and the Government Office Memorandum dated 26.10.2013.

2. The foundation for seeking such relief is founded upon a premise that the petitioner being a ‘B’ Class contractor participated in the tender process for execution of several civil works including “Improvement to Service Road of Nagar Saline Embankment from RD 0.00 km to 4.000. The petitioner was declared as the second lowest bidder having quoted 4.99% less whereas the lowest bidder quoted 14.99% less than the estimated amount.

3. The lowest bidder failed to comply with the mandatory conditions as enshrined therein by depositing the APS and ISD within the time stipulated in the said tender which caused the authorities to issue the said letter dated 27.01.2026 to the petitioner seeking the willingness to execute the work at the rate quoted by the said lowest bidder. The petitioner misunderstood and perceived the said letter as a mandate having imposed upon him to execute the work at the rate and the price quoted by the lowest bidder and the challenges thrown on such premise that the authorities cannot issue mandatory directions or compel the second lowest bidder to execute the work at the rate and the price quoted by L-1, which is contrary to clause 22.3 of the OPWD Code, Vol-II.

4. In course of hearing of the instant writ petition, an additional affidavit is filed disclosing the letters issued subsequently by the authority calling upon the petitioner to appear and attend for negotiation which again has been read and construed as a mandatory direction to execute the work at the rate and the price quoted by the lowest bidder. A plea is taken before us that the OPWD Code is merely an executive instruction having no force of law and, therefore, the authorities cannot compel the second lowest bidder to execute the work at a price not quoted by the second lowest bidder and in support of the said contention the reliance is placed upon the three judge Bench decision of the Supreme Court in the case of G.J. Fernandez Vs. State of Mysore and others, reported in AIR 1967 SC 1753 : 1967 SCC OnLine SC 68.

5. Such being the only argument advanced before us, let us examine whether on a factual matrix, the law as argued by the petitioner has any relevance or applicability ? It is no gain saying that in absence of any statutory rule framed under Article 309 of the Constitution of India in respect of a particular area, aspect/subject the executive powers conferred under Article 162 of the Constitution to make any provision is eminently and evidently conferred upon the State. The three judge Bench in G.J. Fernandez (supra) held that the executive power of the State shall extend to the matters with respect to which legislature of the State has a power to make laws, which is further indicative of the fact that such power is restrictive and does not confer any power to issue a rule thereunder. It is aimed to issue any executive instructions but cannot be exercised to issue statutory rules and, therefore, has its applicability in relation to its enforcement between the State Government and the servant and cannot be imposed upon a third party not confers any power of its enforceability in the following:

“12. xxxx Thus under Article 162, the State Government can take executive action in all matters in which the legislature of the State can pass laws. But Article 162 itself does not confer any rule making power on the State Government in that behalf. We are therefore of opinion that instructions contained in the Code are mere administrative instructions and are not statutory rules. Therefore even if there has been any breach of such executive instructions that does not confer any right on the appellant to apply to the court for quashing orders in breach of such instructions. It is unnecessary for us to decide whether there has been in fact a breach of any instruction contained in the Code with respect to tenders and we do not therefore so decide. But assuming that there has been any breach that is a matter between the State Government and its servant, and the State Government may take disciplinary action against the servant concerned who disobeyed these instructions. But such disobedience did not confer any right on a person like the appellant, to come to court for any relief based on the breach of these instructions. It is for this reason that we are not referring to the Code, though the High Court did consider whether there was any breach of these administrative instructions and came to the conclusion that there was no breach. In the view we take it is unnecessary for us to consider this, for we are of opinion that no claim for any relief before a court of law can be founded by a member of the public, like the appellant, on the breach of mere administrative instructions.”

6. In a subsequent judgment rendered in the case of P. Tulsi Das and others Vs. Government of Andhra Pradesh and others, reported in AIR 2003 SC 43 : (2003) 1 SCC 364, the Apex Court held that there is no fetter put on the State to take recourse to the executive powers enshrined under Article 162 of the Constitution in absence of any Rules framed under Article 309 of the Constitution and, therefore, appears to be co-extensive with the legislative powers laying down the conditions of service and the right accrued to or acquired by the citizen in the following: “14. On a careful consideration of the principles laid down in the above decisions in the light of the fact situation in these appeals we are of the view that they squarely apply on all fours to the cases on hand in favour of the appellants. The submissions on behalf of the respondent State that the rights derived and claimed by the appellants must be under any statutory enactment or rules made under Article 309 of the Constitution of India and that in other respects there could not be any acquisition of rights validly, so as to disentitle the State to enact the law of the nature under challenge to set right serious anomalies which had crept in and deserved to be undone, does not merit our acceptance. It is by now well settled that in the absence of rules under Article 309 of the Constitution in respect of a particular area, aspect or subject, it is permissible for the State to make provisions in exercise of its executive powers under Article 162 which is coextensive with its legislative powers laying conditions of service and rights accrued to or acquired by a citizen would be as much rights acquired under law and protected to that extent. The orders passed by the Government, from time to time beginning from February 1967 till 1985 and at any rate up to the passing of the Act, to meet the administrative exigencies and cater to the needs of public interest really and effectively provided sufficient legal basis for the acquisition of rights during the period when they were in full force and effect. The orders of the High Court as well as the Tribunal also recognised and upheld such rights and those orders attained finality without being further challenged by the Government, in the manner known to law. Such rights, benefits and perquisites acquired by the teachers concerned cannot be said to be rights acquired otherwise than in accordance with law or brushed aside and trampled at the sweet will and pleasure of the Government, with impunity. Consequently, we are unable to agree that the legislature could have validly denied those rights acquired by the appellants retrospectively not only depriving them of such rights but also enact a provision to repay and restore the amounts paid to them to the State. The provisions of the Act, though can be valid in its operation “in futuro” cannot be held valid insofar as it purports to restore status quo ante for the past period taking away the benefits already available, accrued and acquired by them. For all the reasons stated above the reasons assigned by the majority opinion of the Tribunal could not be approved in our hands. The provisions of Sections 2 and 3(a) insofar as they purport to take away the rights from 10-2-1967 and obligate those who had them to repay or restore them back to the State are hereby struck down as arbitrary, unreasonable and expropriatory and as such are violative of Articles 14 and 16 of the Constitution of India. No exception could be taken, in our view, to the prospective exercise of powers thereunder without infringing the rights already acquired by the appellants and the category of the persons similarly situated whether approached the courts or not seeking relief individually. The provisions contained in Section 2 have to be read down so as to make it only prospective, to save the same from the unconstitutionality arising out of its retrospective application.”

7. In an earlier decision rendered in the case of Ramana Dayaram Shetty Vs. International Airport Authority of India and others, reported in AIR 1979 SC 1628 : (1979) 3 SCC 489, the apex Court held that when the obligation of the State to follow a norm, gives rise to co- extensive right of a citizen; it imbibed within itself a right on the citizenry to invoke judicial review for enforcing such right. However, in the decision rendered in the case of R. Sai Bharathi vs. J. Jayalalitha and others, reported in AIR 2004 SC 692 : (2004) 2 SCC 9, the apex Court held that, even if the Government order is traced to have been

issued under the executive power of the State emanating from Article 162 of the Constitution, the Code will not be enforceable if the language used therein is not in mandatory terms and intended to issue mere guidelines or the instructions to the person concerned or the authority.

8. We do not find any trace of a legislative power to make the rules exercised by the authority while issuing the OPWD Code as the same is an executive instruction/guidelines issued by the authority for its adherence in relation to the subject and/or aspect engulfed therein in the event any departure is made. We do not find any fetter having put in the above noted decision seeking a strict adherence thereof provided the language used in the executive instruction is in mandatory form. We did not dialect much on the aspect and limit open to be discussed in another case as we find from the facts germinating from the record that the same can be decided on the basis thereof.

9. As indicated in the above paragraph, the letter dated 27.01.2026 issued by the Superintending Engineer, Nimapara Irrigation Division does not in express terms compel the petitioner to agree to a price quoted by the first lowest bidder but what is intended by the authority that since the first lowest bidder has failed to comply with the conditions of the tender, and the petitioner being the second lowest bidder is called upon within a stipulated time to convey his willingness to execute the work at the price quoted by the lowest bidder. The language used in the said letter cannot be construed as mandatory but an invitation to the petitioner to show his willingness to match the price quoted by the lowest bidder. Pursuant to the said letter, the petitioner responded by conveying his willingness and readiness to execute the agreement but subject to the negotiation in terms of Clause 22.3 of the OPWD Code, Vol-II. The letters issued by the petitioner indicate that he conveyed his willingness but subject to the negotiations contemplated under Clause 22.3 of the OPWD Code, Vol-II. The said clause of the OPWD Code provides that in the event the lowest bidder failed to comply with the mandatory conditions enshrined in the tender, the authorities shall call upon the second lowest bidder to convey his willingness to agree to the price quoted by the lowest bidder to execute the work and in the event he is not willing to execute the work at such price, the tender will be cancelled.

10. The nature and purport of the language used in the said clause is not in a mandatory term but an obligation on the part of the tendering authority to seek the willingness of the second lowest bidder and the consequence of unwillingness will simpliciter invite cancellation of the tender without imposing any mandate to do the work at the price of a lowest bidder. The plea of the petitioner that the authorities must invite him for a negotiation is further corroborated by a subsequent letter dated 04.02.2026 wherein the authorities explicitly and clearly indicated that he is called for a negotiation and the work order to be issued is dependent upon the willingness for an outcome of such negotiation. We do not find any semblance of compulsion on the petitioner to agree to the price of a lowest bidder and, therefore, the apprehension of the petitioner that the tenet of the letter percolates a sense of mandatory direction is incorrect.

11. We thus, do not find any merit in the instant writ petition. The same is hereby dismissed. However, there shall be no order as to costs.

(Harish Tandon)

Chief Justice

(M.S. Raman) Judge

S.K. Jena / Sr. Secy.

Digitally Signed Signed by: SANJAY KUMAR JENA Designation: Asst. Registrar-cum-Sr. Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 20-May-2026 16:53:22 Signature Not Verified