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Judgment
Surjit Singh, J.—Petitioner is aggrieved by the letter dated, 26.11.2009, copy Annexure P-17 of Engineer-in-Chief, Irrigation and Public Health Department, respondent No. 2 herein, by which it has been recommended that order for supply of G.I. Pipes will be placed with the petitioner only for a limited quantity of 1200 MT, though as per tender it offered to supply 4400 MT of such pipes. According to the petitioner, it has a manufacturing unit at Kala Amb, within the State of Himachal Pradesh, and according to Financial Rules, 1971, particularly its Appendix 10, manufacturing units within the territory of Himachal Pradesh, are to be given preference in the matter of supply of their manufactured goods and atleast 30% of the goods are to be purchased from such units.
Petition is opposed by respondents Nos. 1 and 2, i.e. the State of Himachal Pradesh and Engineer-in-Chief. According to them, Financial Rules of 1971, including Appendix 10 of such Rules, stand repealed by the Rules of 2009, which came into force on 13.8.2009, that is to say even before the date of publication of notice inviting tenders and, therefore, the petitioner is not entitled to any relief on the strength of Financial Rules of 1971, particularly Appendix 10 of such Rules.
During the pendency of the petition, orders were placed for supply of GI Pipes with various parties, including the petitioner. Order for supply of 600 MT of GI pipes was placed with the petitioner, because the Screening Committee, despite recommendation by the Engineer-in-Chief, vide Annexure P-17, decided to place an order for supply of 600 MT of GI pipes, with the petitioner.
Petitioner filed rejoinder, in which it was stated that guidelines, contained in Appendix 10 of 1971 Rules, were very much applicable and, therefore, it (the petitioner) was entitled to preference in the matter of placement of supply orders.
After the filing of rejoinder, Engineer-in-Chief, made another recommendation to the Screening Committee for placing further supply orders with some of the suppliers, whose offers had been accepted alongwith that of the petitioner. Petitioner''s name was also included and it was recommended that order for supply of 500 MT of GI pipes be placed with it. Screening Committee, however, did not place any order with the petitioner. Orders were placed with other suppliers.
While making submissions at the time of hearing, Court directed that in case the petitioner wanted to assail the orders for supply of GI Pipes, placed with other suppliers, such other suppliers be impleaded as party to the writ petition. Consequently, respondents Nos. 3 to 8 were added.
I have heard learned Counsel for the parties and gone through the record and relevant rules.
It is admitted case of the parties that the rate quoted by the petitioner was not the lowest. Not only that, its was the 13th lowest rate. Rates quoted by respondents Nos. 3 to 8 were lower than that of the petitioner. However, after the submission and opening of the tenders, petitioner was addressed a letter, Annexure P-12 (dated 12.11.2009). The letter said that since the petitioner''s firm was Himachal based, qualifying for price preference under medium scale industries, its offer was being considered for scrutiny, despite its rates being higher than number of other firms. Petitioner''s representatives were called for negotiations through the aforesaid letter, copy Annexure P-12. Petitioner participated in negotiations, pursuant to the aforesaid communication and he offered to supply 4400 MT of GI pipes, at the same rate as the first lowest rate of respondent No. 3. Engineer-in-Chief recommended that order for supply of 1200 MT of GI pipes be placed with the petitioner. Reasons given in Annexure P-17 for placing order for supply of lesser quantity than offered by the petitioner are that the petitioner does not have the capacity to manufacture as much quantity of pipes, as it had offered, inasmuch as the total quantity of raw-material, agreed to be supplied to it by SAIL was 1200 MT, as per MOU signed by it with SAIL.
Petitioner''s contention is that in the preceding year, it had supplied around 4400 MT of GI pipes to respondent No. 2 and, therefore, reasons given by the Engineer-in-Chief were not well founded.
Financial Rules of 1971 stand repealed by Rules of 2009, effective from 13th August, 2009. Notice inviting tenders was published on 19th August, 2009 or say after the repeal of Rules of 1971, upon which reliance is placed by the petitioner. No doubt Rule 15.2 of 1971 Rules (repealed rules) provides that purchases are to be made in accordance with the Store Rules, contained in Appendix 10 to the aforesaid Rules of 1971, but in my considered view, the Store Rules, contained in Appendix 10 cease to exist, by repealing clause contained in Rule 194 of Financial Rules, 2009.
Learned Counsel, representing the petitioner, submits that Store Rules, contained in Appendix 10 of 1971 Rules, are saved by Sub-rule (2) of Rule 194 of 2009 Rules, which reads as follows:
(2) Notwithstanding such repeal, any form(s), instruction(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.
What is saved by Sub-rule (2) of Rule 194 of 2009 Rules is the forms, instructions, notifications, office orders, circulars, letters, office memoranda, delegations, clarifications, manuals or any other correspondence of any type, issued or made under the repealed rules, to the extent they are not inconsistent with the Rules of 2009. Appendix 10, being part of the main body of Rules of 1971, cannot be said to have been saved by Sub-rule (2) of Rule 194 of 2009 Rules. Therefore, petitioner cannot be heard to say that he has a preferential right to make supplies, on account of its manufacturing unit being located within the area of Himachal Pradesh, by virtue of Store Rules, contained in Appendix 10 of Volume-II of H.P. Financial Rules, 1971.
However, the fact remains that the petitioner was given to understand by respondent No. 2 himself that principles contained in Appendix 10 were still applicable, when he wrote letter, Annexure P-12, and thereafter invited its representatives, vide communication dated 18.11.2009, copy Annexure P-14, to participate in the negotiations. This aroused the expectation of the petitioner that order for supply of G.I. pipes would be placed with it. In fact respondent No. 2 recommended to the Screening Committee that order for supply of 1200 MT of GI Pipes be placed with the petitioner, though the Committee decided to place the order for 600 MT of GI pipes only with the petitioner.
Respondent No. 2 again made recommendation that petitioner be given an order for supply of 500 MT of GI pipes. Recommendations were also made for placing order with other firms, i.e. respondents Nos. 3 to 8. Screening Committee decided to place orders for supply of GI pipes with respondents Nos. 3 to 8, but no order has been placed with the petitioner nor have any reasons been assigned by the Screening Committee for not accepting the recommendation of respondent No. 2. Record of the case had been called on the previous date of hearing and these facts, regarding second recommendation by respondent No. 2 and the decision by the Screening Committee, to place orders with respondents Nos. 3 to 8, are based on the information gathered from the record, so produced.
In view of the aforesaid discussion, writ petition is disposed of with a direction to respondent No. 1 to reconsider the first recommendation of respondent No. 2, for placing order for supply of 1200 MT of GI pipes and also the second recommendation for supply of 500 MT of GI pipes, in favour of the petitioner, and to place the matter before the Screening Committee, within one week from today, and the Screening Committee shall take the final decision within 10 days from the date of placement of the matter before it.
Directions given hereby will not in any way affect the supply orders, which have already been placed with respondents Nos. 3 to 8, because the record of the case, which was seen on the last date of hearing, indicated that about 900 MT of GI pipes are yet to be purchased.
Writ petition stands disposed of accordingly. Interim orders, already made, cease to be operative, in view of the final disposal of the main writ petition. Pending application(s), if any, shall also stand disposed of.
A copy of this order be given Dasti to the Additional Advocate General today itself and he shall ensure that it is made available to the concerned Secretary of the Government, for compliance, by tomorrow, positively.