GILCO STEELS LTD. Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(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Rule 192 of the new Rules, the instructions already issued under Appendix 10 should prevail until they are otherwise superseded by new Rules or instructions.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, AIR 1964 SC 207 and Union of India and another v. G.M. Kokil and others, AIR 1984 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.) 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.