R. Rakesh Kumar vs The Andaman and Nicobar Administration

Joymalya Bagchi, J.—The writ petitioner is posted as a Senior Architect in the Andaman Public Works Department (APWD for short). He has assailed the circular dated 13.12.2012 issued by the Chief Engineer, Andaman Public Works Department, respondent no. 4 herein, inter alia, directing that clause 30.4.2 of CPWD Works Manual, 2012 need not be implemented in Andaman Public Works Department in respect of completed works and for new works costing more than Rs. 250.00 lakhs the applicability of such clause would be optional.

Clauses 30.4.1 and 30.4.2 of CPWD Manual 2012, inter alia, provides for issuance of completion certificate by the Superintending Engineer in respect of all completed works and by Senior Architect Incharge of such works/Consultant Architect in respect of all completed works valued at Rs. 250 lacs and above on a mandatory basis and for other completed works at the option of the Chief Architect/Chief Engineer.

For better appreciation, the aforesaid clauses are set out hereunder.

"30.4.1. Completion certificate to be recorded by the Superintending Engineer in whose tenure the work is completed.

(1) The completion certificate is required to be recorded by the Superintending Engineer in whose time the work is completed irrespective of the fact that a part of the work may have been done during the incumbency of his predecessor. The Superintending Engineer recording the certificate is not responsible for work which may have been covered up during the incumbency of his predecessor, for instance, work in foundations or below the concrete flooring, but he is required to point out the defects which are visible, for instance, defects in the doors and windows, plastering flooring, painting etc. The Superintending Engineer should necessarily record the completion certificate for the works completed in his tenure on the post before he handover the charge to his successor on transfer.

(2) In specific cases where there are practical difficulties, such as the Superintending Engineer being no longer in the Department due to resignation, death, etc. in getting the completion certificate recorded by him, the Chief Engineer may decide any relaxation of the existing instructions after examining the details of the case, and issue directions accordingly. Administrative action should also be initiated against the Superintending Engineer for not taking proper/timely action in getting the completion certificate recorded, whatever justified, as revealed by the facts of the case.

30.4.2 Inspection of works by Senior Architect

(1) The Senior Architect In-charge of the work/consultant Architect is required to certify on completion of particular building that it has been constructed according to the approved drawings design and specifications.

(2) In case of any unauthorized deviation, the certificate of completion shall not be given unless the defect or deviation has been rectified top the satisfaction of the Senior Architect/Consultant Architect. Such certificate by the Senior Architect/Consultant Architect will be required for works costing Rs. 250 Lakhs and above. The Chief Architect/Chief Engineer may, however, decide whether a particular building involving less than Rs. 250 Lakhs (Modified as per OM/MAN/200) (Contract Amount) will require the certificate from the Senior Architect or not."

(3) The form of certificate to be given by the Senior Architect is as under:-

"Name of Project...................................

I do hereby certify that the work.............. has been inspected on........... by me and has been completed on................. according to the plans, elevation, sections, details and specifications of architectural items prepared by me. The work has been completed to my general satisfaction and the workmanship and the whole of the materials used for finishing items are satisfying the architectural aesthetics."

(4) Completion certificate from the Senior Architect/Consultant Architect is necessary before final bill is paid to the contractor.

(5) In the case of such work, the Executive Engineer should inform the Senior Architect/Consultant Architect concerned of the work having been completed in all respects within one month of the physical completion of the work, and request him to carry out his inspection and record the required completion certificate. The Senior Architect/Consultant Architect shall inspect the work and issue the certificate within 3 months of receipt of such an intimation.

(6) An attested copy of this certificate of the Senior Architect shall be attached with the office copy of the final bill along with that of the Superintending Engineer, and it shall remain in the record of the Division."

By notification dated 7.11.2002 issued by the Commissioner-cum-Secretary (PWD), Andaman and Nicobar Administration the provisions of the CPWD Code, CPWA Code and CPWD Manual Vol. I to IV (including any other manual issued by the Director General (Works), CPWD) were made applicable to APWD in all respect unless any specific order to the contrary was issued for any particular subject or matter. The said notification reads as follows:-

"ANDAMAN AND NICOBAR ADMINISTRATION

CHIEF COMMISSIONER''S SECRETARIAT

NOTIFICATION

No. Genl-1/PE/WS/520 dt. 21.10.75. The Public Works Department in the A& N Islands was placed under Administrative control of the Chief Commissioner, A & N Islands, vide Govt. of India''s circular No. E-1(61)/51 dated 3, 4, 51 from the under Secretary, Ministry of Work. The Chief Commissioner, A & N Islands has been pleased to notify that the APWD, shall follow the provisions of the CPWD Code, and CPWD, Manuals Vol. I to IV (and any other volume which will be issued by the Engineer, in-Chief CPWD) in all respects unless any specific orders to the contrary have been issued on any particular subject or matter.

Sd/-

(B.A. SATYANARAYANA)

Secretary (PW)

A & N Administration

Suddenly on 13.12.2012 respondent no. 4 issued the impugned circular waiving applicability of clause 30.4.2 of the Manual to completed works as a whole and directing that its applicability to new works valued above Rs. 250 lacs shall be optional. The circular reads as follows.

"No. 12/CE/PS/Tech/2012/79

ANDAMAN AND NICOBAR ADMINISTRATION

OFFICE OF THE CHIEF ENGINEER

ANDAMAN PUBLIC WORKS DEPARTMENT

NIRMAN BHAWAN

**

Port Blair dated the 13th December, 2012

CIRCULAR

During a review meeting, it has been observed that due to logistic and topographical constraints provision under section 30.4.2 of CPWD works manual is not implemented in APWD. The completed buildings were found to conform to plan, specification and design to the satisfaction of Engineer-In-Charge concerned and Completion Certificate were recorded as per provision of Section 30.4.1 of works manual by concerned Superintending Engineer.

Considering above facts requirement of Certificate from Senior Architect for all completed work is waived off. However for new works costing more than Rs. 250 Lakhs, such Certificate may be considered as optional only, till further order.

Senior Architect may carry out inspection of works utilizing his resources to the optimum and forward detailed plans, working drawings to Engineer-in-Charge, well in time to ensure satisfactory progress of work."

Sd/-

Chief Engineer

APWD"

Hence, the present writ petition assailing the aforesaid circular.

Mr. Krishna Rao appearing for the petitioner submits that the petitioner is a Senior Architect of Andaman Public Works Department. It is his public duty in such capacity to ensure that the provisions of the CPWD Manual particularly clause 30.4.2 with regard to certification of completed works by Architects are duly complied with. Failure to comply with such provision would amount to dereliction of public duty on his part. It is his legal duty to supervise all works of APWD and to issue completion certificate on a mandatory basis for all works valued at Rs. 250 lacs and above and in respect of other works on an optional basis. Impugned circular impedes discharge of such legal duty on his part and therefore he is entitled to assail the same. He further submits that respondent no. 4 has no legal authority to issue the impugned circular and the same is liable to be quashed.

Mrs. Nag appearing for the respondent no. 23-Council supported the contention of Mr. Rao. She further submitted that clause 30.4.2 of the Manual is mandatory as certification by Architect is substantially different from certification by the Superintending Engineer under clause 30.4.1 and one cannot be treated as the substitute of the other. Respondent no. 4 did not have authority to waive such mandatory provision which is of utmost importance for ensuring sanctity and orderliness in construction under the aegis of Andaman Public Works Department.

On the other hand, Mr. Md. Tabraiz appearing for the Administration at the outset disputed the locus standi of the petitioner to maintain the writ petition. He submitted that no legal right of the petitioner is infringed by the impugned circular. He submitted clause 30.4.2 of the Manual was not mandatory in nature.

He further submitted that the provisions of the CPWD Manual could be waived by issuing specific order to the contrary as would be evident from notification dated 7.11.2002. Hence, no interference is called for with the impugned circular.

He also submitted that certification by an Architect was not a sine qua non for raising final bill by a contractor in terms of clause 9 of the General Conditions of Contract.

I have considered the rival submissions of the parties.

Firstly, with regard to the locus of the petitioner, I find that the writ petition was admitted without demur. No such issue with regard to lack of locus standi of the petitioner has also been pleaded in the affidavit-in-opposition. That apart, I find that the petitioner is a Senior Architect of Andaman Public Works Department. It is his legal duty to supervise all construction works and ensure that they are executed in terms of the approved drawings, design and specifications. In terms of clause 30.4.2 of the Manual he is mandatorily required to issue completion certificate in respect of all constructions valued at Rs. 250 lacs and above and on an optional basis for other constructions. Certification at the end of construction is necessary to ensure that such construction is as per the approved plan. Clause 30.4.2 of the Manual has been made applicable to APWD by notification dated 7.11.2002 and thereby making it a legal duty on his part to issue such certificate. Hence, he has a legal right to assail the impugned circular issued by respondent on. 4 which infracts the discharge of his legal duty to issue completion certificate upon physical completion of constructions and thereby ensure effective supervision of such construction work and due compliance with the architectural specifications. Hence, the point of demur raised by Mr. Md. Tabraiz fails as I am of the opinion the petitioner is not a busy body and has requisite locus standi to assail the impugned circular issued by the respondent no. 4.

I find from notification No. 63(1)/CE/APWD/Fin/202-03/10150 dated 7.11.2002 that CPWD Manual Vol. No. 1 to IV and all other Manuals issued by the Director General (Works), CPWD are applicable in all respects with regard to Andaman Public Works Department unless any part thereof is exempted by issuance of an specific order to the contrary.

Admittedly, no order/notification has been issued by or on behalf of the Administration exempting applicability of clause 30.4.2 of the CPWD Manual, 2012 to APWD.

Hence clause 30.4.2 of the Manual applies with all force to APWD and makes it mandatory for Senior Architect incharge of construction/Consulting Architect to issue completion certificate for completed works valued at Rs. 250 lacs and above and for other works at the option of Chief Architect/Chief Engineer.

I am unable to agree with the submission of the respondents-Administration that clause 30.4.2 is not mandatory but a directorial provision. Consequence of non-issuance of certificate by Senior Architect/Consultant Architect is spelt out in sub-clause (4) of clause 30.4.2. It provides that such certificate in terms of clause 30.4.2. is a condition precedent for payment of final bills of contractors. Hence, the aforesaid clause cannot be said to be directional in nature. Clause 9 of General Conditions of Contract provides for the manner of raising final bill by contractor and therefore cannot be said to be in conflict with sub-clause (4) of clause 30.4.2. which insists on certificate issued under the aforesaid clause 30.4.2 of the Manual for payment of such bill.

The respondent no. 4 is the Chief Engineer of APWD. He is not competent under the rules of business to issue any order for or on behalf of Andaman and Nicobar Administration exempting applicability of clause 30.4.2 of CPWD Manual, 2012 to APWD in the face of notification date 7.11.2002 issued by the Administration.

Impugned circular dated 13.12.2012 issued by respondent no. 4 is therefore bereft of legal authority and ultra vires notification dated 7.11.2002 issued by the Administration and is liable to be quashed.

For the aforesaid reasons, impugned circular dated 13.12.2012 issued by respondent no. 4 is quashed.

The writ petition is allowed. There shall be no order as to costs.

I however clarify that this order shall not fetter the authority of Andaman and Nicobar Administration to issue any specific order with regard to applicability of clause 34.1.2 to CPWD, 2012 in terms of the notification dated 7.11.2002 and in accordance with the law, if it so chooses to do in public interest.