NINGOM Digitally signed
by NINGOMBAM
[1]
BAM VICTORIA
Date: 2021.10.21
VICTORIA 14:20:57 +05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
W.P. (C) No. 449 of 2021
Contractor's Association, RIMS heaving its office at RIMS
Complex, Lamphelpat represented by its President, Shri
Yurembam Devendro, aged about 56 years, S/o (L) Y.
Ibochouba Singh, a resident of Lalambung Makhong, RIMS
Road, P.O. & P.S. Imphal West District, Manipur.
... Petitioner
-Versus-
1. Regional Institute of Medical Sciences represented by its
Director, RIMS Complex, Lamphelpat at Imphal, 795004.
2. The Deputy Director (Admn.), Regional Institute of Medical
Sciences, RIMS Complex, Lamphelpat at Imphal, 795004.
3. The Consultant Engineer-I (Civil) CWS, Regional Institute
of Medical Sciences, RIMS Complex, Lamphelpat at
Imphal, 795004.
... Respondents
B E F O R E HON'BLE MR. JUSTICE KH. NOBIN SINGH For the petitioner ∷ Shri H. Tarunkumar, Advocate For the respondents ∷ Shri M. Devananda, Advocate Date of Hearing ∷ 05-10-2021 Date of Judgment & Order ∷ 21-10-2021 [12-10-2021 to 20-10-
2021 being the holidays] JUDGMENT AND ORDER [1] Heard Shri H. Tarunkumar, learned Advocate appearing for the petitioner association and Shri M. Devananda, learned Advocate appearing for the respondents.
[2] The validity and correctness of the notice dated 08-06-2021 issued by the Consultant Engineer (Civil), RIMS is under challenge in this W.P. (C) No. 449 of 2021 Contd.../-
[2] writ petition and in addition thereto, some more prayers have been made by it to set aside/ quash the impugned Committee for the enlistment of contractors and to constitute the Contractor Enlistment Committee as per clause (3) of the Rules Regulating the Enlistment of Contractors in Regional Institute of Medical Sciences, Imphal, Manipur (hereinafter referred to as "the Rules").
[3.1] According to the petitioner association, it is an association formed by the contractors enlisted by the Regional Institute of Medical Sciences (hereinafter referred as "the RIMS") sometime in the year, 1987 and registered as a society under Section 7(1) of the Manipur Societies Registration Act, 1989 having its registered address at RIMS Complex, Imphal West, Manipur. The aim and object of the petitioner association is to promote and maintain quality standard of the Health Department, Manipur by executing contract works to the satisfaction of the RIMS authority.
[3.2] The members of the petitioner association have been executing the entire contract works for the RIMS since the day of their being enlisted as its contractors. They have been executing different types of contract works and are still continuing to do so.
[3.3] Recently, the respondent No.3, the Consultant Engineer-I (Civil) CWC, RIMS, issued a notice dated 08-06-2021 inviting applications from amongst the eligible firms/ contractors for enlistment in various classes of contractors and also for scrutiny and approval by the Committee. It is also W.P. (C) No. 449 of 2021 Contd.../-
[3] notified therein that the existing enlisted contractors of the RIMS including the members of the petitioner association ought to apply for revalidation. [3.4] Being aggrieved by the said notice, the instant writ petition has been filed by the petitioner association on the inter-alia grounds that the aforesaid Contractor Enlistment Committee has not been constituted in terms of the Rules, the relevant portions of which read as under:
1. BUILDIND AND ROADS CONTRACTORS:
(3) Enlistment of contractors of all Classes will be done by the Director, RIMS on the recommendation of a Committee to be constituted from time to time by the Director, RIMS
2. ELECTRICAL CONTRACTORS:
(3) Enlistment of contractors of all Classes will be done by the Director, RIMS on the recommendation of a committee comprising of ............ Consultant Engineer & Superintending Engineer, RIMS.
The Committee in respect of the enlistment of electrical contractors, shall comprise the Consultant Engineer; the Superintending Engineer, RIMS and others whose details are kept unspecified for the reasons best known to the RIMS authority. At present, since there is no post of the Superintending Engineer, Electrical in the RIMS, the constitution of such a Committee is ab-initio illegal. The Contractor Enlistment Committee, RIMS, is not empowered to approve the Rules, as it derives its existence from them. This is simply a non sequitur. Such a colourable exercise of power by any authority is impermissible and is W.P. (C) No. 449 of 2021 Contd.../-
[4] patently absurd and untenable in the eyes of law. The notice dated 08-06- 2021 is bad for the reason that it has not been issued in consonance with the provisions of the Rules and moreover, the time period mentioned therein for revalidation was too short in view of the Covid-19 pandemic. It is a well settled law as laid down by the Hon'ble Supreme Court that if the initial action is not in consonance with law, all subsequent and consequential proceedings would fall for the reason that the illegality strikes at the root of the order. In such facts and circumstances, the legal Maxim sublato fundamento cadit opus meaning thereby that the foundation being removed, structures/ works falls, shall come into play and apply. In its additional affidavit, it has been stated by the petitioner association that it had submitted two representations seeking clarifications in respect of the revalidation form and the extension of dateline dated 17-07-2021 respectively to the concerned authority. But till date, no response and/or reply was given from the end of the RIMS authority.
[4] In the counter affidavit filed on behalf of the respondent Nos.1 & 2, it has been stated that as per this Court's order dated 30-06-2021, the RIMS authority had extended the time period for submission of relevant documents till 31-07-2021 at 3:00 pm vide order dated 02-07-2021. It is true that the enlistment and revalidation of the contractors enlisted in the RIMS is to be done in terms of the Rules but the petitioner association has annexed a draft copy of the Rules which has been finalized later, a portion of the correct copy of the clause 3 of the Rules reads as under:
W.P. (C) No. 449 of 2021 Contd.../-
[5]
Clause 3 for Electrical Contractors:-
Enlistment of contractors of all the Classes will be done by the Director, RIMS on recommendation of a committee to be constituted from time to time by the Director, RIMS. There is no question of a member being left unspecified in the Rules. It is clearly mentioned in the clause 3 that the enlistment will be done by the Director, RIMS on the recommendation of the Committee constituted from time to time and hence, the allegation is baseless. A copy of the corrected Rules for the enlistment of the contractors is enclosed for passing appropriate order. The notice dated 08-06-2021 issued by the Consultant Engineer-I (Civil), CWs, RIMS is in consonance with the Rules and the question of malafide does not arise. The revalidation of the enlistment of contractors will be done on the basis of clause 3 of the Rules and hence, there is no illegality in clause 3 for examining the revalidation of enlistment of the contractors in the RIMS. As per its representation dated 10-06-2021 seeking extension of time, the authority extended it from 01-07-2021 to 15-07-2021 for 15 (fifteen) days to submit the documents vide order dated 29-06-2021 but the said order was not placed on record before this Court by the petitioner association which concealed it to obtain favourable order. The RIMS authority in compliance with this Court's order dated 30-06-2021 extended further time for another 15 (days) till 31-07-2021 vide order dated 02-07-2021. The notice dated 08-06-2021 is only to enable the contractors to submit the relevant documents for revalidation and enlistment of the contractors W.P. (C) No. 449 of 2021 Contd.../-
[6] (Civil & Electrical) in the RIMS for consideration and approval. The petitioner is only aggrieved about the time period for submission of their relevant documents on the ground of Covid-19 pandemic but since the authority after considering its representation and in compliance with this Court's order, had extended the time till 31-07-2021, the writ petition can be disposed of. The issue relating to clause 3 of the Rules is premature and the same has to be examined after submission of their documents for revalidation and enlistment of contractors in the RIMS. [5] In the rejoinder affidavit, denying the averments made in the counter affidavit, it has been stated by the petitioner association that when the Rules were uploaded, it was nowhere mentioned therein that it was a draft Rules and moreover, the notice dated 08-06-2021 issued by the Consultant Engineer-I (Civil) itself mentioned about it only. The modification seems to be an afterthought in view of the allegations made in the writ petition. Therefore, the new Rules modifying the earlier Rules are dishonest attempts to cover the faulty regulation behind the back of this Court. For proper perusal, both the original and the modified versions of clause 3 for Electrical Contractors read as under:
Original Version:
(3) Enlistment of contractors of all Classes will be done by the Director, RIMS on the recommendation of a committee comprising of ...... Consultant Engineer & Superintending Engineer, RIMS.
Modified Version:
W.P. (C) No. 449 of 2021 Contd.../-
[7]
(3) Enlistment of contractors of all Classes will be done by the Director, RIMS on the recommendation of a committee to be constituted from time to time by the Director, RIMS.
It has further been stated that the modification done by the RIMS authority is an unambiguous attempt to usurp all the power at the hands of the Director, RIMS. Such a modification with regard to clause 3 of the Rules for electrical contractors appears to have been made for a self-serving purpose by stripping the authority of any check on its power. The notice dated 08-06-2021 was issued with the approval of the Committee constituted under the incomplete Rules. The said notice, according to their assertion, is made without proper authority, since the modification of the Rules is made only after the present writ petition is filed as is evident from the corrigendum notice dated 15-07-2021. [6] From the pleadings as aforesaid, two issues have arisen for consideration by this Court-one, relating to the legality of the constitution of the Contractor Enlistment Committee and two, relating to the validity and correctness of the notice dated 08-06-2021 issued by the Consultant Engineer (Civil), RIMS.
[7] As regards the first issue, it may be noted at the outset that the validity or for that matter, the legality of the Rules, has not been challenged in this writ petition. Admittedly, the RIMS is a statutory body fully funded by the Government of India. Being an institution, the RIMS is empowered or competent to make its rules in exercise of its power conferred by its bye-laws or its constitution. In the said notice dated 08-
W.P. (C) No. 449 of 2021 Contd.../-
[8]
06-2021, the Contractor Enlistment Committee is referred to indicating that it has been constituted by the RIMS. The legality of the constitution of the Contractor Enlistment Committee is being questioned herein on the ground that it has not been constituted in terms of the Rules and in particular, clause 3 of the Rules which are nothing but the ones which are uploaded in the website of the RIMS. It may further be noted at this juncture that even though the legality of the constitution of the Contractor Enlistment Committee has been challenged by the petitioner association, a copy of any order or memorandum or notification issued by the RIMS constituting the said Committee, has not been produced before this Court for perusal and consideration. All that has been submitted by Shri H. Tarunkumar, learned counsel appearing for the petitioner association is that in terms of clause 3 of the Rules, the said Committee shall comprise the Consultant Engineer; the Superintending Engineer, RIMS and some more persons whose eligibilities are not disclosed therein. His further contention is that no such Committee as contemplated strictly in clause 3 of the Rules, has been duly constituted by the RIMS. But the fact remains that the petitioner association has failed to place a copy of the order constituting the Committee on record. His contention appears to be based on the wordings of the clause 3, with a blank portion, being used by the RIMS. In other words, he has given much emphasis on the wordings of clause 3 of the alleged Rules. In reply to his submission, it has been contended by Shri M. Devananda, learned counsel appearing for the respondents that the petitioner association has relied upon the wordings W.P. (C) No. 449 of 2021 Contd.../-
[9] of clause 3 which are found in the draft Rules. According to him, the draft rules have been finalized and a correct copy thereof has been placed on record along with the counter affidavit filed on behalf of the respondent Nos.1 & 2. Therefore, the contention of the learned counsel appearing for the petitioner association has no merit and it is, accordingly, not tenable in law.
[8] Combating the submission of the learned counsel appearing for the respondent Nos.1 & 2, it has been submitted by the learned counsel appearing for the petitioner association that the Rules available in the website of the RIMS at the time when the notice dated 08-06-2021 was issued, are the ones filed by the petitioner association along with the writ petition and it is nowhere mentioned therein that they are the draft Rules. His further contention is that the Rules may have been finalized after the said notice being issued which means that the Contractor Enlistment Committee would have been constituted in terms of clause 3 of the Rules alleged by the respondents to be the draft Rules. His contention appears to have some merit and substance but it will not help him at all for the reason that the petitioner association is unable to produce a copy of the order constituting the Contractor Enlistment Committee. In the absence of such an order, the instant writ petition as regards the legality of the constitution of the Contractor Enlistment Committee, can be said to be not maintainable. Assuming what has been contended on behalf of the petitioner association is correct, there is nothing which can be quashed and set aside by this Court. In other words, a mere declaration of the W.P. (C) No. 449 of 2021 Contd.../-
[10] constitution of the Contractor Enlistment Committee as bad in law by this Court will have no meaning at all without the order constituting it being quashed and aside. The RIMS being an institution, may have issued an order, if the Contractor Enlistment Committee has really been constituted by it. The constitution of the Contractor Enlistment Committee cannot be presumed in somebody's mind and the RIMS being a statutory institution, the factum of constitution of the Contractor Enlistment Committee will have to be reflected in the records of the RIMS. In other words, the factum of constitution of the Contractor Enlistment Committee will have to be translated into document. In the absence of materials regarding the constitution of the Contractor Enlistment Committee, the issue relating to its legality cannot be considered and decided by this Court. [9] So far as the second issue is concerned, there is nothing wrong in the notice dated 08-06-2021 which has been issued only to invite applications for enlistment of contractors and also for revalidation of the existing enlisted contractors. The only grievance of the petitioner association appears to be that the time period mentioned therein for the purpose of submission of application forms for revalidation was too short and moreover, in view of the Covid-19 pandemic, it was not possible for the members of the petitioner association to collect materials for submission of their applications. Immediately after the said notice being issued on 08-06-2021, the petitioner association submitted a representation dated 10-06-2021 to the Consultant Engineer-I (Civil), RIMS requesting him to extend deadline of the revalidation. The last date W.P. (C) No. 449 of 2021 Contd.../-
[11] for submission of application forms was extended for a period till 15-07- 2021 vide notice dated 29-06-2021 issued by the Consultant Engineer-I (Civil), RIMS. Moreover, it has been stated in the affidavit filed on behalf of the respondent Nos.1 & 2 that the last date for submission of application forms had further been extended till 31-07-2021 vide order dated 02-07-2021 which was issued as per the order passed by this Court on 30-06-2021. In view of the aforesaid facts and circumstances, this Court is of the view that the said notice dated 08-06-2021 need not be interfered with it by this Court at all. In other words, there is no ground to interfere with it. More than two months have gone by since then but on account of the interim order passed by this Court on 09-08-2021 which was directed to be continued till date, the process of revalidation appears to have been kept incomplete by the RIMS authority.
[10] In view of the above and for the reasons stated hereinabove, the instant writ petition is devoid of any merit and is accordingly dismissed with no order as to costs. The interim order passed by this Court stands vacated. However, it is made clear that it is open to the RIMS to consider and take a decision, in the event of any representation being submitted by an aggrieved person praying for extension of time, on its own merit either to extend the time period or not to extend it.
JUDGE
FR / NFR
Devananda
W.P. (C) No. 449 of 2021 Contd.../-