Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 1428 (JHR)

Sunil Kumar Choudhary v. State of Jharkhand

2017-08-10

AMITAV K.GUPTA

body2017
ORDER : I.A. No. 8379 of 2016 Learned counsel for the petitioner does not want to press the above interlocutory application. Accordingly, I.A. No. 8379 of 2016 stands dismissed as not pressed. W.P.(C) No. 4403 of 2016 The petitioner has prayed for issuance of appropriate order/direction for setting aside the order dated 9.1.2015 (Annexure -7). 2. Learned counsel has alleged that the aforesaid order has not been passed in accordance to Rule 10.7 of the Contractors' Registration Rules, 2012 of the Department of Drinking Water and Sanitation, Government of Jharkhand. It is submitted that the petitioner was blacklisted by order dated 13.10.2014 (Annexure-4), where after the petitioner preferred an appeal on 18.10.2014 (Annexure-5) before the Secretary of the Department as prescribed by Rule 10.7. It is urged that it would be evident from Annexure-7, that the order has been passed by the Deputy Secretary, Department of Drinking Water and Sanitation, Government of Jharkhand, who is not the competent authority. Moreover, in Annexure-7, it has been mentioned that the review application is dismissed whereas Rule 10.7 prescribes that the appeal is to be decided by the Secretary of the Department. That the petitioner was not afforded any opportunity of hearing moreover the order has been passed by an authority not competent under Rule 10.7. 3. learned counsel for the petitioner has placed reliance on the decision of the Apex Court in the case of B.C. Biyani Projects Pvt. Ltd. vs. State of Madhya Pradesh & Ors., passed in Civil Appeal No. 6632 of 2016 [arising out of SLP(C) No. 3274 of 2016] and submitted that the Apex Court while referring to the decisions rendered in earlier judgment, has categorically held that debarment cannot be permanent. That debarment should depend upon the nature of offence committed by the contractor. In the said judgment it has been observed that since the petitioner has suffered the penalty of blacklisting for more than three years, hence the blacklisting was, confined for the said period of three years only. 4. That debarment should depend upon the nature of offence committed by the contractor. In the said judgment it has been observed that since the petitioner has suffered the penalty of blacklisting for more than three years, hence the blacklisting was, confined for the said period of three years only. 4. In view of the judicial pronouncement it is prayed that order dated 9.1.2015, is fit to be set aside and the Secretary, Department of Drinking Water and Sanitation, Government of Jharkhand, be directed to hear the appeal of the petitioner in terms of the Rule 10.7 and consider the case of the petitioner in terms of the judgment rendered by the Apex Court in B.C. Biyani Projects Pvt. Ltd. (supra). 5. Learned counsel for the respondents-State has not controverter the fact that in terms of Rule 10.7, the appeal has to be heard and decided by the Secretary of the Department who is the competent authority and the Deputy Secretary of the Department is not the competent authority. 6. Heard. It is pertinent to refer to Rule 10.7 which reads as follows:- ^^10-7 fn;s x;s n.M ds fo:) laosnd }kjk] rhl fnuks ds vUnj] foHkkxh; lfpo ds le{k vihy nk;j dh tk ldsxhA^^ 7. On plain reading of the aforesaid rule it is explicit that the Secretary of the Department is the competent authority to pass necessary order in an appeal preferred by a person. Since the order has been passed by the Deputy Secretary who is not the competent authority to pass the order dated 9.1.2015, accordingly, the order dated 9.1.2015. is not sustainable and is, hereby, set aside. 8. The Secretary, Department of Drinking Water & Sanitation, Government of Jharkhand, shall pass necessary order in the appeal filed by the petitioner after affording an opportunity of hearing to the petitioner, within eight weeks from the date of filing of the representation by the petitioner. It goes without saying that the petitioner is at liberty to place relevant documents and the judicial pronouncement before the appellate authority who shall pass a reasoned and speaking order in accordance with law. 9. With the said direction, the writ petition stands disposed off.