GILCO STEELS Vs STATE OF HP 02.07.2013 HP Full Bench

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GILCO STEELS Vs STATE OF HP 02.07.2013 HP Full Bench

Hon’ble Judges: A M Khanwilkar, R B Misra, Dev Darshan Sud
Civil Writ Petition No: 6638 of 2012

ACTS/RULES

Constitution of India, 1950 (COI) – Article 283(2)

Constitution of India, 1950 (COI) – Article 226

General Clauses Act, 1977 Section 3(52)

Himachal Pradesh Financial Rules, 1971 – Rule 15 (2) (a)

Himachal Pradesh Financial Rules, 2009 – 194 (2)

Advocates:

Sanjiv Bansal, Vineet Sehgal, Vikram Batra, Vandana Misra, Shrawan Dogra, Romesh Verma, J K Verma, Parul Negi

AM Khanwilkar, CJ

Facts of the Case

[1] This matter has been placed before the Full Bench in view of the reference order, dated 6th May, 2013, of the Division Bench, disagreeing with the view taken by another Division Bench of this Court in LPA No.203 of 2010, decided on 14th July, 2011. In the said decision, dated 14th July, 2011, the Division Bench held that, notwithstanding the repeal of Himachal Pradesh Financial Rules, 1971, (hereinafter referred to as the Rules of 1971 or the old Rules) by the Himachal Pradesh Financial Rules, 2009 (hereinafter referred to as the Rules of 2009 or the new Rules), the regime provided in Appendix 10 of the old Rules, which is framed in the context of Rule 15(2)(a) of the old Rules, to regulate the purchases of stores for use in the public service, will prevail. That Appendix 10 of the old Rules is in the nature of a Code. Therefore, until it is replaced by repealing and saving provision in the new Rules, the same must continue to govern the field occupied by it, by virtue of Rule 194(2) of the new Rules. Further, in the new Rules, no corresponding code has been framed nor any instructions issued relating to regulating the purchase of stores, as is the procedure prescribed in Appendix 10 of the old Rules. Moreover, the concerned Department of the State itself has understood that until framing of new Store Purchase Rules under the Rules of 2009, the procedure and guidelines prescribed in Appendix 10 of the old Rules, for procurement of goods and services and proper inventory management, ought to be adhered to. On that basis, the Division Bench opined that so long as there are no instructions issued as in Appendix 10, in exercise of power under Rule 192 of the new Rules, the instructions already issued under Appendix 10 should prevail until they are otherwise superseded by new Rules or instructions. The Division Bench has relied on the decisions of the Apex Court in the case of South India Corporation Pvt. Ltd. Vs. Secretary Board of Revenue Trivandrum and another, 1964 AIR(SC) 207 and Union of India and another v. G.M. Kokil and others, 1984 AIR(SC) 1022 to buttress its view that inspite of provision or Act mentioned in the non obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment.

[2] Per contra, the Division Bench, which passed the reference order on 6th May, 2013, prima facie, agreed with the submission made by the learned Advocate General appearing for the State that Rule 194(2), in no uncertain terms, saves only the excepted ministerial acts of notifications, instructions and forms etc. referred to therein and not any of the Appendix to the Rules of 1971 and, more particularly, Appendix 10 which was integral part of Rules of 1971. The Court also found force in the submission of the learned Advocate General that the provisions in the Rules of 2009 were self contained Code and were not required to be supplemented by the provisions in Appendix 10 of the Rules of 1971, which have been expressly repealed and superseded by the Rules of 2009. Moreover, the provisions in Appendix 10 were substantive provisions and being integral part of Rules of 1971, expressly stood repealed by virtue of Rule 194(1) of the Rules of 2009. Any other view would render the express provision in Rules 194(1) of the Rules of 2009 otiose. In view of the difference of opinion with the earlier Division Bench decision, the matter came to be referred to the Full Bench for reconsideration.

[3] Before we proceed to examine the above controversy, we may advert to the broad facts leading to the filing of the writ petition in which reference order has been passed. The respondent No.2 issued a notice inviting tender for procurement of about 17500 MT GI pipes. The petitioner, which incidentally is a manufacturing unit located in Himachal Pradesh, submitted its rates, by way of retendering, in two envelopes first containing technical bid and second containing the financial bid. The technical bid was opened on 23rd July, 2012. The petitioner’s technical bid was accepted. Thereafter, the financial bid was opened. The petitioner thereafter offered to match the lowest rates as per comparative statement of rates. The petitioner, however, was offered a meager amount of supply and that also at rates much lower than L-I rates. The petitioner called upon the State Authorities to give effect to the provisions contained in Appendix 10 of the old Rules. Since the petitioner’s request was not accepted by the State Authorities, the petitioner has approached this Court by way of writ petition under Article 226 of the Constitution of India praying for the following reliefs:

“a) That the respondents be directed by means of an appropriate writ, order or direction to implement and follow the procedure and rules for the procurement of goods as contained in appendix 10 of the Himachal Pradesh Financial Rules and to place the orders for the procurement of GI pipes, including the orders for procurement of non duty exempt pipes strictly in accordance with the said rules.

b) That the respondents be directed to refund the tender cost and the amount of earnest money taken from the petitioner in contravention of the Himachal Pradesh Financial rules, 1971 with interest thereon.

c) That the respondents be directed by means of an appropriate writ, order or direction to procure the pipes from the local manufacturers up to the extent of their installed capacity and only quantities in excess thereof may be procured from other sources.

d) That the entire record pertaining to the case may kindly be summoned for the kind perusal of this Hon’ble Court;

e) That cost of the writ petition may also be awarded in favour of the petitioner;

f) Any other or further relief as this Hon’ble Court may deem just and proper keeping in view the facts and circumstances of the case may also be passed in favour of the petitioners and against the respondents.”

[4] The writ petition has been opposed by the respondents. No doubt, during the pendency of this writ petition, interim directions were passed by the Court. However, as we are required to deal with only the referred question, it may not be necessary for us to elaborate on any other aspect of the matter, which may be relevant for deciding the writ petition after the reference is answered by us.

[5] Reverting to the efficacy of Rule 194 of the new Rules, which is the core issue to be considered by us, the petitioner would contend that the State Government, having accepted the decision of the Division Bench of this Court in LPA No.203 of 2010, decided on 14th May, 2011 and allowed the same to attain finality, cannot be permitted to argue to the contrary. The State neither appealed against the said decision nor preferred any review. On the other hand, the Directorate of Industries of the State, acting upon the said decision, had issued a circular, dated 16th August, 2012, wherein, while relying upon the same judgment, it has clarified that the instructions already issued under Appendix 10 must prevail until the same are otherwise superseded by the new Rules/instructions. This stand has been reiterated even in its recent communication, dated 3rd January, 2013. Similarly, the manual of the Department of Industries of Himachal Pradesh, which has been issued after coming into force of the new Rules of 2009, reiterates the position that the procedure and Rules laid down in Appendix 10 to the HPFR-1971, Vol.II are being followed in addition to HPFR-2009. The petitioner has also placed reliance on the tender notice No.2 floated by the Department of Printing and Stationery, Government of Himachal Pradesh, for the year 2013-14, providing for price preference of 15% in favour of SSI of Himachal Pradesh, as predicated in Appendix 10 of the old Rules. Even, the Additional Chief Secretary, Government of Himachal Pradesh, in supplementary affidavit filed in the present proceedings, dated 23rd January, 2013, contends the petitioner, has admitted that the Director of Industries-cum-Controller of Stores, Himachal Pradesh has prepared detailed instructions/guidelines, regulating the purchase of stores, as defined in HPFR-2009, Rule 192. However, he has stated that finalization of the proposed guidelines is a lengthy process requiring concurrence/advice of various advisory departments like Finance and Law etc., whereafter the matter will be placed before the Council of Ministers for its approval. In substance, he has admitted that the proposal is under active consideration of the State Government. On this basis, it was asserted by the petitioner that Appendix 10, which contains the Store Purchase Rules, was still followed by the concerned Departments and it was in vogue. The petitioner has also relied on the interim directions given by this Court during the pendency of the present petition, issuing direction to the respondents to give effect to the provisions contained in Appendix 10 of the old rules. Instead of abiding by those directions, the State, for the first time on 6th May, 2013, took the stand before this Court contrary to the binding decision of the earlier Division Bench of this Court, which was impermissible. According to the petitioner, the question raised in the present petition is purely academic and the Court should be loath to consider the same. Reliance is placed on the decision in Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi, 1987 Supp 1 SCC 93 in particular, paragraph 4 thereof, which reads thus:

“4. The election under challenge relates to 1981, its term expired in 1984 on the dissolution of the Lok Sabha, thereafter another general election was held in December, 1984 and the respondent was again elected from 25th Amethi Constituency to the Lok Sabha. The validity of the election held in 1984 was questioned by means of two separate election petitions and both the petitions have been dismissed. The validity of respondent’s election has been upheld in Azhar Hussain v. Rajiv Gandhi, 1986 AIR(SC) 1253 and Bhagwati Prasad v. Rajiv Gandhi, 1986 4 SCC 78. Since the impugned election relates to the Lok Sabha which was dissolved in 1984 the respondent’s election cannot be set aside in the present proceedings even if the election petition is ultimately allowed on trial as the respondent is a continuing member of the Lok Sabha not on the basis of the impugned election held in 1981 but on the basis of his subsequent election in 1984. Even if we allow the appeal and remit the case to the High Court the respondent’s election cannot be set aside after trial of the election petition as the relief for setting aside the election has been rendered infructuous by lapse of time. In this view grounds raised in the petition for setting aside the election of the respondent have been rendered academic. Court should not undertake to decide an issue unless it is a living issue between the parties. If an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties, it would be waste of public time to engage itself in deciding it. Lord Viscount Simon in his speech in the House of Lords in Sun Life Assurance Company of Canada v. Jervis, 1944 AC 111 observed;

“1. do not think that it would be a proper exercise of the Authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. It is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.”

These observations are relevant in exercising the appellate jurisdiction of this Court.”

[6] Reliance is also placed upon the decision in S.R. Chaudhary vs. State of Punjab and others, 2001 7 SCC 126 in which in paragraph 19, following observations were made:

“19. It is not the case of the appellant that respondent No.2 Shri Tej Prakash Singh suffered from any constitutional or statutory disqualification to contest an election on the date of his first appointment as a Minister or even on the date of his re-appointment as a Minister. The challenge is confined to the issue of re-appointment of the respondent, without getting elected within six consecutive months of his first appointment. In this view of the matter, we have declined an invitation of learned counsel for the appellant to express our opinion on the question whether a non-legislator can be appointed as a Minster, if on the date of such appointment, he suffers from a constitutional or statutory disqualification to contest the election within the next six consecutive months. We are not expressing our opinion on the issue, as it is not directly involved in the present case and the settled practice of this Court is not to express opinion on issues which do not essentially arise in a case under consideration.”

[7] According to the petitioner, the stand of the State has consistently been that in absence of any fresh guidelines/instructions, the Rules contained in Appendix 10 of the old Rules ought to be followed as guiding principles. Therefore, until formal Rules/instructions were issued superseding the provisions in Appendix 10 to Vol.II of HPFR-1971, provisions in the said Appendix ought to be followed as supplemental to Chapter VI of HPFR-2009. It is then contended by the petitioner that the earlier decision of the Division Bench, dated 14th July, 2011, is not per incuriam, as it has expressly referred to the provisions of the new Rules. As a result, that decision is not amenable to reconsideration even by the larger Bench of this Court. The petitioner has placed reliance on the decision in State of M.P. versus Narmada Bachao Andolan and another, 2011 7 SCC 639 in particular, paragraphs 65 to 67 therein, which read thus:

65. Incuria” literally means “carelessness”. In practice per incuriam is taken to mean per ignoratium. The Courts have developed this principle in relaxation of the rule of stare decisis. Thus, the “quotable in law” is avoided and ignored if it is rendered, in ignorance of a Statute or other binding authority. 66.While dealing with observations made by a seven Judges’ Bench in India Cement Ltd. etc. etc. v. State of Tamil Nadu etc. etc., 1990 AIR(SC) 85, the five Judges’ Bench in State of West Bengal v. Kesoram Industries Ltd. & Ors., 2004 10 SCC 201, observed as under:-

“57 ..A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read by assuming that the Court had intended to say only that which is correct according to the settled position of law, and the apparent error should be ignored, far from making any capitalout of it, giving way to the correct expression which ought to be implied or necessarily read in the context, ……….

71 .A statement caused by an apparent typographical or inadvertent error in a judgment of the Court should not be misunderstood as declaration of such law by the Court.”

(See also Mamleshwar Prasad & Anr. v. Kanhaiya Lal (Dead) by Lrs., 1975 AIR(SC) 907 A. R. Antulay v. R. S. Nayak, 1988 AIR(SC) 1531; State of U.P. & Anr. v. Synthetics and Chemicals Ltd. & Anr., 1991 4 SCC 139; and Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors., 2011 1 SCC 694.

67.Thus, “per incuriam” are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the Court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.”

[8] The petitioner has also placed reliance on the decision of the Supreme Court in State of Gujarat and another vs. Justice R.A. Mehta (Retd.) and others, 2013 3 SCC 1 relevant portion of which reads thus:

“23. It is, therefore, evident that before making a reference to a larger Bench, the Court must reach a conclusion regarding the correctness of the judgment delivered by it previously, particularly that which has been delivered by a Bench of nine Judges or more, and adjudge the effect of any error therein upon the public, what inconvenience, hardship or mischief it would cause, and what the exact nature of the infirmity or error that warrants a review of such earlier judgments. In the instant case, we do not find any such compelling circumstance that may warrant a review, and thus, taking into consideration the facts of the present case, we are not convinced that this matter requires a reference to a larger Bench.”

[9] The petitioner has then contended that the repeal of the old Rules does not have the effect of nullifying the independent Store Purchase Rules, which were merely appended to the old Rules and were neither framed nor issued under the old Rules. The Appendix 10 was self contained Code and merely appended to the old Rules, only to regulate the store purchase etc. In other words, Appendix 10 relating to Store Purchase Rules were independent Rules and were not integral part of Rules of 1971. Thus, repeal of Rules of 1971 would not automatically repeal the Appendix 10 to the said Rules. This position is reinforced from Rule 194 of the Rules of 2009 as well. Further, considering the fact that provisions in Appendix 10 do not run contrary to Chapter 6 of Rules of 2009, the same has been saved as ‘excepted category’ by virtue of Rule 194(2), being a Code in itself. According to the petitioner, the term “Appendix” is markedly different from expression “schedule”. The term “schedule” is defined in General Clauses Act, vide Section 3(52), to mean schedule to the Act or regulation, in which the words occur. By necessary implication, schedule must be inscribed in the Act or regulation unlike an Appendix which only is an appendage or an accessory. The word “schedule”, therefore, is not inter changeable with the expression Appendix. The Appendix, on the other hand, is an independent instrument and the repeal of Rules of 1971 will have no bearing whatsoever thereon. The petitioner, thus, contends that notwithstanding the repeal of Rules of 1971, the respondents are bound to comply with the procedure prescribed in Appendix 10, as long as the same is not contrary to the provisions of Chapter 6 of the Rules of 2009 or any guidelines/instructions framed therein.

[10] Per contra, the learned Advocate General appearing for the respondents contended that going by the intent of the framers of Rules of 2009 and the setting in which the provisions of Rules of 2009 are placed, it is incomprehensible that Appendix 10 in the Rules of 1971 has been saved and not repealed by the express provision in Rule 194(1) of the new Rules.

According to him, the only possible interpretation is that Appendix 10 formed integral part of Rules of 1971. Rule 15.2 of the Rules of 1971, under Chapter XV of the old Rules, deals with purchase and acquisition of Stores. The same refers to procedure prescribed in Appendix 10 of the same Rules. Thus, it is a case of incorporation of Appendix 10 in Rule 15.2 by reference. As a concomitant thereof, on account of repeal of Rules of 1971, even Appendix 10 therein stood repealed, by virtue of Rule 194 (1) of the Rules of 2009. He has invited our attention to Annexure-V of Appendix 10 which delineates the items taken out from the purview of Store Purchase Organization. Item No.55 refers to GI pipes (Galvanized Iron Pipes). He submits that in the present case the requirement of GI pipes is of the IPH Department. In any case, due to repeal of old Rules of 1971, the inevitable consequence is that Appendix 10 thereto also stood repealed. He submits that Chapter 6 of the Rules of 2009 deal with procurement of goods and services. Part-A thereof deals with procurement of goods. Rule 91 stipulates the fundamental principles of public buying, which according to him, are the governing principles to be adhered to by all concerned and the State Departments. It provides that every authorized Officer delegated with the financial powers of procuring goods in public interest shall be responsible and accountable to bring efficiency, economy and transparency in matters relating to public procurement and for fair and equitable treatment of suppliers and promotion of competition in public procurement. This is a paradigm shift from the principles predicated in the Rules of 1971 or for that matter Appendix 10 thereto. The State Authorities by virtue of Rule 91 (1) of the Rules of 2009 are duty bound to treat all the suppliers fairly and equitably and promote competition in public procurement. Sub Rule (2) of Rule 91 stipulates the procedure to be followed in making public procurement. He has invited our attention to rule 93 which defines the powers for procurement of goods. In the case of single user Department the full powers are delegated to it for making their own arrangements for procurement of goods. On the other hand, in relation to Departments which do not require expertise, it has to project its indent to the Controller of Stores or any other Procurement Entities with the approval of the Government. In other words, the Officer of Controller of Stores comes into play only if it is not a case of single user Department and where the Department does not have the required expertise.

[11] He has also placed reliance on rule 192 of the Rules of 2009 forming part of Chapter 10 of the new Rules dealing with miscellaneous subjects and in particular part-G thereof dealing with other miscellaneous provisions. It provides that the Controller of Stores in the Industry Department in consultation with the Government may issue detailed instructions and guidelines for procurement of goods and services and proper Inventory Management from time to time for implementation for different Departments of the State. According to him, the provisions in Rules of 2009 are self contained Code and make no reference to any other Code or Rules. Therefore, the Rule of 2009 ought to prevail. He submits that the language of Rule 194(1) of the new Rules leaves no manner of doubt that Appendix 10 which formed part of Volume-II of the Rules of 1971 has been expressly repealed. He submits that Sub rule (2) of Rule 194 of the new Rules have saved only those items which were outside Volume I and Volume II of the Rules of 1971. Even the items falling outside Volume I & Volume II of the Rules of 1971 would not be saved if the same are inconsistent with the Rules of 2009.

[12] He submits that the assumption of the petitioner that Appendix 10 is a Code and therefore has been saved by virtue of Rule 194(2) of the new Rules is untenable. According to him, the scheme and procedure prescribed in Appendix 10 is not consistent with the provisions contained in Rules of 2009 and even for that reason the same has not been saved. By way of illustration, he pointed out the other inconsistencies in the scheme. In the old Rules the price benefit is given to the SSI of Himachal Pradesh which provision is conspicuously absent in the Rules of 2009. Due to absence of similar arrangement in the rules of 2009 it is deemed to have been dis-continued. That interpretation will be in conformity with the scheme of Rule 91, which obligates the Department to provide fair and equitable treatment to its suppliers and promote competition in public procurement besides bringing efficiency, economy and transparency in matters relating to public procurement. Even the provision such as Rule 91 is not found in the Rules of 1971 or the Appendix thereto; and, therefore, it is a departure from the old Rules. In other words, the provisions in the old Rules are inconsistent with the provisions in the Rules of 2009. Hence the same, in any case, have not been saved. He submits that reliance placed by the petitioner on the stand taken by the Department or for that matter admission on affidavit that the proposal for framing of instructions/ Rules is pending at the highest level cannot be the basis to answer the legal question about the efficacy of Rule 194 of the new Rules of having repealed the old Rules of 1971 including the Appendix 10 thereto. The erroneous understanding of the Department cannot be the basis to legitimize the incorrect stand of the petitioner. Instead, the matter will have to be examined on pure legal parameters. Thus understood, the inevitable conclusion is that the effect of Rule 194 of the new Rules is not only to repeal the rules of 1971 but also Appendix 10 thereto.

[13] Having analyzed the rival submissions, the foremost question that needs to be examined is about the sweep of Rule 194 of he Rules of 2009. Rule 194 reads, thus:

“194.Repeal and Savings:- (1) The Himachal Pradesh Financial Rules, 1971, Volume I and II issued vide notification number 15/4 (1971) R&E1, dated 10th May, 1971 and published in the Rajpatra, Himachal Pradesh dated 15th July, 1971 are hereby repealed. The Himachal Pradesh Budget Manual, 1971 is also hereby repealed. (2) Not withstanding such repeal, any form(s), instructions(s), notification(s), office order(s), circular(s), letter(s), office memoranda, delegation(s), clarification(s), codes(s), manual(s) or any other correspondence of any type issued or made under the rules so repealed, so far as they are not inconsistent with these rules, shall remain in force until superseded under these rules:

Provided that anything done or action taken under the provisions of rules so repealed, shall be deemed to have been validly done, taken under the corresponding provisions of these rules.”

[14] On a bare reading of this provision, it is amply clear that sub Rule (1) purports to repeal the Himachal Pradesh Financial Rules 1971, Volume I and Volume II issued there under vide notification dated 10th May, 1971. Volume- I contains Chapter-I to XIX of the Rules of 1971 and HP Civil Services (Revised Pay) Rules, 1978. Volume-II contains Appendix 1 to Appendix 17 and Forms 1 to 24. All this together has been repealed. However, Sub Rule (2) of Rule 194 purports to save some of the excepted items referred to therein to the extent they are not inconsistent with the Rules of 2009. Notably, unlike reference to Forms(s) no express reference is made to Appendix of the Rules of 1971 which form part of Volume-II. The other items obviously are neither part of Volume I or Volume II, to wit, instructions(s), notifications(s), office order(s), circular(s), letter(s), office memoranda, delegation(s), clarification(s), codes(s), Manual(s) or any other correspondence of any type issued or made under the Rules so repealed. In other words, the items referred to in Sub Rule (2) except Forms(s), are outside Volume I and Volume-II. Only the specified items are treated as excepted items intended to be saved, so far as they are not inconsistent with the Rules of 2009. Taking any other view would entail in rewriting of the express provision and rendering the sweep of sub Rule (1) of Rule 194 otiose or redundant, which interpretation must be eschewed. We accordingly hold that Rule 194(1) not only repeals the Rules of 1971, but everything contained in Volume I and Volume II as repealed.

[15] It may be useful to advert to the preamble of the new Rules and the background in which the same were framed. The same reads thus:

“Whereas the Himachal Pradesh Financial Rules, 1971, were notified vide notification No.15/4/1971, Fin (R&E-1) dated 10th May, 1971 and published in the Rajpatra, Himachal Pradesh (Extra-ordinary) dated 15th July, 1971;

Whereas various provisions of the aforesaid rules have now become obsolete and are not in consonance with the present day requirements;

Now, therefore, in exercise of the powers conferred by clause (2) of Article 283 of the Constitution, the Governor, Himachal Pradesh is pleased to make the following rules,”

Even the abovequoted preamble of the new Rules lends support to the stand taken by the State that the procedure prescribed therein relating to procurement of goods required for use in public service in the Rules of 2009 are qualitatively different than the one prescribed in the old Rules.

[16] The decision of the Division Bench dated 14th July, 2011 proceeds on the premise that Appendix 10 is a Code and, therefore, has been saved by virtue of Rule 194 (2) of the new Rules. No doubt expression “Codes(s)” occurs in Sub-rule (2) of Rule 194 as having been saved. The word “Codes(s)” has not been defined in Rules of 2009. It has not been defined even in the General Clauses Act. The common parlance meaning of expression “Codes(s)” can be culled out from the Black’s Law Dictionary, sixth Edition, the same reads, thus,:

“A systematic collection, compendium or revision of laws, rules, or regulations (e.g., Uniform Commercial Code). A private or official compilation of all permanent laws in force consolidated and classified according to subject matter (e.g. United States Code). Many states have published official codes of all laws in force, including the common law and statutes as judicially interpreted, which have been compiled by code commissions and enacted by the legislatures (e.g. California Codes).”

On the other hand, the word “Appendix” as used in Rules of 1971 will have a different connotation. The expression “Appendix” as defined in the Black’s Law Dictionary, sixth Edition, reads, thus:

“Supplementary materials added to appellate brief; e.g. record on appeal. In federal appellate procedure, the appellant is required to file an appendix to the briefs which shall contain the following: (1) the relevant portions of the pleadings, charge, findings or opinion; (2) the judgment, order or decision in question: and (3) any other parts of the record to which the parties wish to direct the particular attention of the court.”

[17] That takes us to the fine distinction made by the petitioner about the term “Appendix” as distinguishable from term “Schedule”. For the reasons already recorded hitherto, this argument does not take the matter any further. Going by the plain language of the provisions contained in Rules of 2009, the same are markedly different from the procedure prescribed in the old Rules. In any case, the Appendix cannot be treated as a mere accessory considering the fact that it formed integral part of Rule 15.2 of the old Rules on the doctrine of incorporation by reference.

[18] It is unfathomable that the framers of Rules of 2009 could have interchanged the expression “Appendix” occurring in Rules of 1971 with the expression “Codes(s)” in Rule 194(2), when they have consciously used the expression such as “Form(s)” used in Volume-II of the Rules of 1971.

[19] The view taken by us is re-enforced from the description of Appendix 10 in the Rules of 1971. It is indicative of the fact that it is made part of the Rules of 1971, having been referred to in Rule 15.2 of the Rules of 1971. The title and preamble of Appendix 10 of the rules of 1971 read, thus:

“APPENDIX 10

[REFERRED TO IN H.P.F.R. 15.2]

PROCEDURE AND RULES FOR THE PURCHASE OF STORES BY ALL DEPARTMENTS AND OFFICES OF THE GOVERNMENT OF HIMACHAL PRADESH

Preamble.- (i) The main feature of these rules consists in the assertion of a definite preference for stores produced and manufactured wholly or partially in India, in general and Himachal Pradesh in particular and of the utilization of the agency of Himachal Pradesh Stores Department in respect of purchases of stores by all departments of the State of Himachal Pradesh.

ii) The departments shall go in for products of cottage and small scale industries of the State of Himachal Pradesh in preference to the manufactured goods of large scale industries of equal standard even if the price of the former is higher but subject to a limit as may be fixed by the Government from time to time. The first preference shall be extended to the products of Government-owned industries carried on in Government work centres or by the Statutory Bodies set up by the Government, Industrial Cooperative Societies, Jails and Industrial Institutions and Schools in the Pradesh.

iii) For the development of industries to the utmost extent the following order of preference shall be maintained consistent with economy and efficiency:-

(a) In case of raw material.- (i) Raw material produced in Himachal Pradesh shall be purchased in preference to that produced in other States of India.

(ii) Raw material produced in other States of India shall be purchased in preference to imported material. (b) In case of manufactured goods.- (i) The products of cottage and small scale industries of Himachal Pradesh shall be purchased in preference to the products of cottage and small-scale industries of other States and the products of large scale industries.

(ii) Articles manufactured in Himachal Pradesh shall be purchased in preference to articles manufactured in other States of India.

(iii) Articles manufactured in other States of India shall be purchased in preference to imported goods.

(iv) Articles of foreign manufacture held in stock in India shall be purchased in preference to items to be imported.

(v) Articles manufactured abroad shall be imported in special cases only, when suitable Indian products are not available.

(vi) In case of articles manufactured abroad which have to be imported preference will be given to the Commonwealth countries.

In case of articles manufactured in India, care should be taken to purchase (i) articles manufactured in India from raw material produced in India in preference to articles manufactured from imported material, and (ii) articles wholly or partially manufactured in India from imported material in preference to imported goods.”

[20] Two aspects are evident from the plain language of Appendix 10 reproduced hitherto. Firstly, it has been included in Volume II having been referred to in Rule 15.2 of the Rules of 1971. Thus, it forms integral part of Rule 15.2 by reference thereto. Secondly, Appendix 10 has been described as the Rules, which consist in the assertion of a definite preference for Stores produced or manufactures wholly or partly in India, in general, and, Himachal Pradesh, in particular, and of the utilization of the agency of the Himachal Pradesh Stores Department in respect of purchase of Stores by all Departments of the State of Himachal Pradesh. By no stretch of imagination, the same can be considered as a separate Code much less, having been saved by virtue of Rule 194(2) of the new Rules. Assuming that it must be treated as a Code for the purpose of Rule 194(2), since the procedure prescribed in Appendix 10 is markedly different then the scheme under the new Rules, it, in any case, is not saved by virtue of Rule 194(2) of the new Rules. For, the theme of Rule 91 departs from the theme of Rule 15.2 of the old Rules conjointly read with Appendix 10 thereto. The fundamental principles of public buying have now been differently spelt out in Chapter 6 to be read with part-G of Chapter 10 of the new Rules. In other words Appendix 10 of the old Rules cannot partake the colour of Codes(s) referred to in Rule 194(2) of the Rules of 2009; and in any case is not saved as it is not consistent with the intent and scheme of the new Rules of 2009 concerning the principles of public buying. We shall elaborate on this aspect a little later.

[21] The earlier Division Bench had placed reliance on the decisions of South India Corporation (P) Ltd. and G.M. Kokil to hold that the non-obstante clause in Sub Rule (2) of Rule 194 is to give an over-riding effect to the provision referred to under the clause and in particular saving Appendix 10 in the old Rules until new Rules or Instructions are issued by the competent authority in exercise of powers under Rules of 2009. We are afraid, none of these decisions will be of any avail to the petitioner. In the case of South India Corporation , the main contention of the appellant was that after the Constitution came into force the relevant Sales Tax Acts imposing sales tax of “work contracts” were unconstitutional and therefore void. While considering the purport of the special provision in the concerned enactment the Apex Court held that a special provision should be given effect to the extent of its scope, leaving the general provision to control cases where the special provision does not apply. In the present case, Rule 194, in particular sub Rule (1) thereof, in no uncertain terms has repealed Volume-I and Volume-II of the old Rules of 1971. Appendix 10 forms part of the said Rules which has not been expressly or impliedly saved by Rule 194(2) of the new Rules. Even in the case of G.M. Kokil , the Court was considering the non-obstante clause and found that it is a legislative device which is usually employed to give over-riding effect to either some contrary provision that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. The non-obstante clause occurring in Rule 194(2) of the new Rules cannot be construed to mean that it attempts to save substantive provisions contained in the Rules of 1971 and Volume-I and Volume-II issued vide notification dated 10th May, 1971 as such. Any other view would result in not only re-writing of Rule 194(1) of the new Rules; but also in holding that the repealed Rules would co-exist alongwith the new Rules so far as they are not in-consistent with the Rules of 2009. Such interpretation would not only render the express language of Rule 194(1) otiose and redundant but also run contrary to the intent of the framers of the Rules of 2009.

[22] We may now examine the question about the efficacy of Appendix 10 of the Rules of 1971. For that, we may usefully refer to Rule 15.2 of the old Rules. The same forms part of the Chapter XV dealing with subject ‘stores’ in the first part of the said Chapter, which refers to the General Rules. Part (ii) deals with purchase and acquisition of stores. Rule 15.2 forms part thereof, which reads thus:

“15.2 (a) Save as provided below, all the purchases of stores for use in the public service, whether of indigenous origin or otherwise, should be regulated in strict conformity with the Stores Rules given in Appendix 10. Subject to the provisions of those rule and other special rules in regard to particular classes of articles mentioned in notes 3 and 4 below rule 8.3 a competent authority may sanction the purchase of stores and other materials required for public service.

Purchase orders should not be split up so as to avoid the necessity for obtaining the sanction of higher authority required with reference to the total amount of the orders.

(b) Purchases must be made in the most economical manner; in accordance with the definite requirements of the public service. When stores are purchased from the open market the system of open competitive tender should, as far as possible, be adopted and the purchase should be made from the lowest tenderer unless there are any special reasons to the contrary which should be recorded in writing. Stores should not be purchased in small quantities. Periodical indents should be prepared and as many articles as possible obtained by means of such indents. At the same time, care should be taken not to purchase stores much in advance of actual requirements, if such purchases are likely to prove unprofitable to Government. Note. All the Heads of Departments, Divisional Heads of Departments and District Heads, who are direct demanding officers on the rate contract lists may place their orders for the purchase of the following electrical materials required for use in Government Offices, etc., direct on the firms with whom the Controller of Stores, Himachal Pradesh, has entered into rate contract:-

(1) Florescent Lamp and fittings of all sizes.

(2) Tumbler Switch 5 Amp. one way of two way.

(3) Tumbler Switch 10/15 Amp.

(4) Lamp holders of the type of pendents batten and brackets, etc.

(5) 3-pin 5 Amp. and 3-pin 10/15 Amp. Plugs and Scokets.

(6) 2-pin 5 Amp. plug and Sockets.

(7) Ceiling roses and cut-outs,

(8) Electric Table Lamps.

(9) Lamp Locks.

(10) Room Heaters or other heating appliances.

(11) Shades, etc.

(12) Call Bell, Bell Push and Bed-Switch.

(13) Electric Bulbs.”

[23] As has been found earlier, Rule 15.2, while referring to Appendix 10, mandates procedure contained therein to be followed to regulate in strict conformity with the Stores Rules therein. Inevitably, the procedure prescribed in Appendix 10 for purchases of stores for use in the public service formed integral part of Rule 15.2 of Rules of 1971. The fact that the procedure prescribed in Appendix 10 was in existence even before coming into force of the Rules of 1971, will be of no avail. That does not mean that Appendix 10 was independent of Rules of 1971. Its existence and moreso recognition was because of its incorporation in Rule 15.2 of the Rules of 1971. Assuming that procedure contained in Appendix 10 was independent and had existence outside the Rules of 1971, it would not follow that the same has been saved by Rule 194(2) of the Rules of 2009 or for that matter automatically stood incorporated in Rules of 2009 without there being any such express intention. We have already held that the theme relating to purchase and acquisition of stores incorporated in Rule 15.2 conjointly read with Appendix 10 of the old Rules is markedly different than the theme predicated for procurement of goods and services in Chapter 6 of the Rules of 2009. In the Rules of 2009, there is no intention, as of now, to given price preference to the SSI in Himachal Pradesh, as was expressly provided in the old Rules by virtue of Rule 22 in Appendix 10 of the old Rules.

[24] A priori, the provisions contained in Appendix 10 cannot be divorced from Rule 15.2 of the Rules of 1971. Going by the language of Rule 15.2, conjointly read with the preamble of Appendix 10 and Rule 22 in Appendix 10, it leaves no manner of doubt that the same are substantive provisions and govern procedure for the purchase of stores by the Departments of the Government of Himachal Pradesh. That procedure has undergone a sea change after the framing of Rules of 2009, as predicated in Chapter 6 dealing with procurement of goods and services. The provisions in Chapter 6, in particular, Rules 91 and 93, conjointly read with provision in Part-G, dealing with other miscellaneous provisions contained in Chapter 10, in particular, Rules 191 and 192, leave no manner of doubt that the same has now been made the governing procedure for procurement of goods in supersession of the procedure prescribed in the old Rules. The provisions in the new Rules referred to above are self contained Code and are not required to be supplemented by any other Rules. Appendix 10, on the other hand, was set of Rules forming integral part of Rule 15.2 of the old Rules. It was not a Code or for that matter Code for the purposes of Rule 194(2) of the Rules. Further, as noticed earlier, the material provisions in the new Rules concerning procurement of goods and services are, per se, inconsistent with the provisions in Rule 15.2 read with Appendix 10 of the old Rules for which reason also the same cannot be treated as having been saved in view of the express language of Rule 194(2) of the new Rules.

[25] Reverting to the argument of the petitioner that the State Government having allowed the decision of the earlier Division Bench to become final; and which was a binding decision on the State Government, could not have taken a contrary stand in the present writ petition, more so when the Industries Department of the Government of Himachal Pradesh has not only acted upon the said decision, but reiterated in successive communications that the procedure for purchase of stores, as prescribed in the old Rules and in particular, Appendix 10, will be followed till the finalization of new instructions and guidelines thereof under the new Rules. The fact that the Department has understood the situation in a particular manner cannot be the basis to answer the legal controversy and the effect of the legislative mandate. That has to be tested on its own merits. It would have been a different matter if the Court were to take the view that there was some ambiguity in the provisions of Rules of 2009, in which case, the communications issued by the Department, pressed into service by the petitioner reflecting the understanding of the Department of the situation could have become instructive and useful for interpretation of the ambiguous provision on the doctrine of contemporanea expositio. Moreover, the fact that the State Government did not file appeal or review against the decision, dated 14th July, 2011, cannot be treated as any impediment for the State to argue the legal issue. In the first place, the stand under consideration has been taken by the State not in the same case, but in another writ petition filed by another party. Secondly, there can be no estoppel against law. In any case, the legal question raised by the State found favour with another Division Bench, which justly thought it necessary to refer the matter to the Full Bench for reconsideration. It is not as if the issue has been or will be decided by a Bench of coordinate jurisdiction. It is always open to the Bench of coordinate jurisdiction to differ on the correctness of the legal proposition in the previous judgment of another Coordinate Bench. It need not necessarily be because of the earlier judgment was per incuriam but also when the Coordinate Bench finds that the view taken in the earlier decision is manifestly wrong. In the present case, the decision is in relation to the provisions concerning procurement of goods required for use in public service. It was, thus, in public interest to refer the matter to Full Bench for reconsideration on question of interpretation of the relevant provisions. Suffice it to observe that the State was and is within its rights to agitate the correctness of the judgment of earlier Division Bench, if it is able to persuade the Court that the view taken therein is wrong. In any case, the issue can be authoritatively answered by the Full Bench of this Court.

[26] We are also not impressed by the argument that in the tender notice issued recently by the Printing and Stationery Department for procurement of goods refers to and reiterates the procedure specified in Appendix 10, which was part of Rules of 1971. That cannot be the basis to examine the legal issue raised by the respondent State about the correct interpretation of Rule 194 of the new Rules. Similarly, the fact that some interim directions have been passed by this Court during the pendency of the writ petition cannot legitimize the stand of the petitioner which is founded on the procedure prescribed in Appendix 10, which has already been repealed by the Rules of 2009 and is no more in force. In our opinion, from the language of Rules of 2009, there is nothing to indicate that until similar procedure as prescribed in Appendix 10 is articulated in the form of rules, instructions or circulars, the procedure prescribed in Appendix 10 must prevail. That approach would be in the teeth of the intent behind repeal of Vol.I & II of the Rules of 1971, which contained Appendix 10 by virtue of Rule 194(1) of the Rules of 2009. For the same reasons, we have no hesitation in rejecting the argument of the petitioner that the question involved in the present proceedings is purely academic. On the other hand, it is not only relevant for the matter at hand, but is a recurring question. Thus understood, reliance placed on the decisions in the case of Dharti Pakar and S.R. Chaudhary will be of no avail to the petitioner.

[27] That takes us to the alternative plea of the petitioner that so long as the revised instructions are not issued by the Department concerning the purchase of goods required for use in public service, the procedure prescribed in Appendix 10 of the old Rules and continue to apply. That cannot be countenanced. For, acceptance of that argument would be in the teeth of the express provision contained in Rule 194 of the Rules of 2009 and also disregarding the provisions contained in Chapter 6 of the new Rules governing procurement of goods required for use in public service.

[28] While parting, we make it clear that we are not expressing any opinion either way on the merits of other issues involved in the writ petition; though we propose to dispose of the reference by answering it in favour of the State.

Process of procurement of goods required for use in public service, after coming into force of Rules of 2009, must be governed by the Rules of 2009 only and the procedure prescribed in Appendix 10, which was part of Rules of 1971, will have no application

[29] Accordingly, we conclude that the effect of Rule 194 of the Rules of 2009 is to repeal the Rules of 1971 and including Appendix 10, which was integral part thereof and further, the procedure prescribed in Appendix 10 for procurement of goods by the Departments required for use in public service has not been saved by the Rules of 2009. Thus, the process of procurement of goods required for use in public service, after coming into force of Rules of 2009, must be governed by the Rules of 2009 only and the procedure prescribed in Appendix 10, which was part of Rules of 1971, will have no application.

[30] Since the referred question has been answered, the matter be placed before the appropriate Division Bench to proceed further in accordance with law.

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