IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5635 of 2010 Indramani Construct Pvt. Ltd., through its Director, Pawan Kumar Singh, S/O Late Binod Kumar Singh, R/O 102, Lotus Apartment, New Patliputra Colony, P.S. Patliputra, Distt.- Patna…………………………………………..………..Petitioner. Versus 1. The State of Bihar, through its Chief Secretary, Old Secretariat Building, Patna 2. The Secretary, Road Construction Department, Visheshwaraiya Bhawan, Patna 3. The Engineer-In-Chief-Cum-Additional-Secretary-Cum-Special Secretary, Road Construction Department, Visheshwaraiya Bhawan, Patna 4. The Chief Engineer, N.H. Wing, Road Construction Department, Visheshwaraiya Bhawan, Patna 5. The Executive Engineer, N.H.Division, Gulzarbagh…...Respondents For the petitioner : Mr. Alamdar Hussain, Advocate. For the respondents : Mr. P.K. Verma, AAG-V with Mr. Saroj Kumar Sharma, AC to AAG-V. ---------------------------------- 07/ 24.10.2011 Heard learned counsel for the petitioner, learned counsel for the respondents-State of Bihar and its authorities. 2. This writ petition has been filed by the petitioner for the following reliefs:- (i) For quashing of the order contained in memo no.2072(s) dated 09.02.2010 (Annexure-13) whereby the respondent Secretary rejected the appeal and upheld the order of blacklisting dated 08.04.2009 (Annexure-9). (ii) For a direction to the respondents not to give effect to the order of blacklisting dated 08.04.2009 (Annexure-9) and/or the order rejecting appeal dated 09.02.2010 (Annexure- 13). (iii) For appropriate declaration that (a) the order of blacklisting contained in Annexure-9 is nullity in the eye of law and as such it is inoperative and nonest, (b) the order of rejecting the appeal is based on false premise of fact and as such nullity in the eye of law. - 2 - (iv) For any other relief or consequential reliefs to which the petitioner may be found entitled to in the facts and circumstances of this case. 3. It is not in dispute that the petitioner is a Company registered as Class-1 Contractor in the Road Construction Department and was awarded work in connection with WMM and thereafter 50 mm BM work in KM 166A, 170 to 172, 175 to 179 and 182 in NH-19 an agreement was entered into between the parties vide Agreement No.27F-2/2007-08. 4. After expiry of the period granted in the said agreement, the authorities concerned found that the petitioner committed default in disposal of work as per the agreement and the directions and hence the Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary, Road Construction Department, Government of Bihar, Patna directed the petitioner-firm to be placed in the blacklist under Rule11 (ka)(ii) of the Bihar Contractor’s Registration Rules, 2007 (hereinafter referred to as ‘the Rules’ for the sake of brevity). 5. Against the said order the petitioner filed C.W.J.C. No.5781 of 2009 which was disposed of by a Bench of this Court vide order dated 03.12.2009 with a liberty to the petitioner to file an appeal under Clause-11 (gha) of the Rules. Accordingly, petitioner filed an appeal before the Secretary, Road Construction Department, Patna within the time granted by this Court but the said appeal was dismissed by the said authority vide order dated 09.02.2010. Against the said orders, the petitioner has moved this Court. 6. The simple point raised by learned counsel for the - 3 - petitioner is that it was blacklisted only under Rule 11 (ka)(ii) of the Rules which fact is not in dispute. He further refers to Circular dated 28.10.2009 issued by the Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary of the Road Construction Department, Government of Bihar, Patna which is annexed to the interlocutory application. 7. From the aforesaid circular it is quite apparent that it has been directed that if any person or concern is found to be a defaulter in any of the provisions of Rules 11 (ka) (i), (ii), (iii), (v) and (x) his registration shall be suspended for a period not more than two years or would be demoted one rank and only when a person or concerned is found to be involved in any misconduct or illegality for more than one of the aforesaid sub-clauses or in connection with clause 11(ka) (iv), (vi), (vii), (viii) and (ix) he would be blacklisted. 8. From the admitted facts of the case as well as from the aforesaid Rules and Circular it is quite apparent that only one offence was alleged against the petitioner i.e. under Rule 11(ka) (ii) and hence he cannot be legally blacklisted and at the maximum he can be suspended for two years or be demoted by one rank. In the said circumstances, the impugned action taken by the authorities concerned is not in accordance with the aforesaid Rules. 9. However, learned counsel for the respondents opposes the contentions of learned counsel for the petitioner and submits that circular of the Department was issued on 28.10.2009 (Annexure 9A) which was much after blacklisting of the petitioner- firm on 08.04.2009 and hence that circular was not applicable at the - 4 - relevant time. He further states that after issuance of the said circular the petitioner never appealed nor made any representation to the Department for revision of blacklisting order issued by Engineer-in- Chief on 08.04.2009 and hence before filing this writ petition the petitioner should have appealed to the authority concerned to revise the previous order of blacklisting in the light of the said circular issued by the Engineer-in-Chief on 28.10.2009. 10. From the facts of the case, it is quite apparent that on the orders of this court the petitioner had filed an appeal against order dated 08.04.2009 before the Secretary of the Road Construction Department on 16.12.2009 i.e. much after circular dated 28.10.2009 issued by the Department and hence even if the petitioner was not aware of the said circular it was the duty of the said authority to consider the same as it cannot be expected that the said authority being a highest authority in the Department was unaware of the said circular issued by the Department. Hence, dismissal of the appeal vide order dated 09.02.2010 without considering the said circular of the Department dated 28.10.2009 cannot be legally justified, specifically when the said order of Engineer-in-Chief dated 08.04.2009 has merged into the appellate order dated 09.02.2010. 11. So far the submission of learned counsel for the respondents that the petitioner should move the relevant authority referring to the aforesaid circular dated 28.10.2009 is concerned, this writ petition had been filed as far back as on 31.03.2010 and is pending since then and after completion of the pleadings, is at its last stage and hence there is no occasion for this court to direct the - 5 - petitioner to move the authority concerned when the entire mater is quite clear and there is no dispute either on facts or in law. 12. In the said circumstances, this writ petition is allowed, the impugned orders dated 08.04.2009 and 09.02.2010 passed by the Engineer-in-Chief and the Secretary of the Department (Annexure-9 and 13) are hereby modified only to the extent that the order of blacklisting is hereby quashed and is replaced by suspension of petitioner’s licence for two years from the date of issuance of original order dated 08.04.2009. Harish (S.N. Hussain, J.)