Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.22673 of 2012 ====================================================== Ran Vijay Kumar Propriter H.N.Tours and Travels, Near Bus Stand, P.G. Road, P.O. + P.S. - Makhdumpur, Dist - Jehanabad .... .... Petitioner/s Versus 1. The State Of Bihar through Principal Secretary Health Govt. Of Bihar, Patna 2. The Assistant Director, R.C.H., Bihar State Health Committee, Bihar, Patna 3. The District Magistrate cum Chairman District Health Samiti, Jehanabad 4. The Civil Surgeon-Cum-Member Secretary, District Health Samiti, Jehanabad 5. The Chief Medical Officer, Primary Health Centre, Ratni, Faridpur, Jehanabad 6. The Chief Medical Officer, Primary Health Centre Okari, Jehanabad 7. The Chief Medical Officer, Refral Hospital, Ghoshi, Jehanabad 8. The Chief Medical Officer, Primary Health Centre Ghoshi, Jehanabad 9. The Chief Medical Officer, Primary Health Centre Kako, Jehanabad 10. The Chief Medical Officer, Primary Health Centre Sikariya, Jehanabad 11. The Chief Medical Officer, Primary Health Centre, Hulasganj, Jehanabad 12. The Executive Director, State Health Society, Shekhpura, Patna, Bihar ====================================================== .... .... Respondent/s With Civil Writ Jurisdiction Case No.18871 of 2012 ====================================================== Lichchhavi Welfare Foundation through its Secretary Rajiv Kumar S/O Shri Bachcha Prasad Singh at Chhata Chowk, P.S. Kazi Mohammadpur, District: Muzaffarpur 2 Patna High Court CWJC No.22673 of 2012 (7) dt.03-05-2013 2 / 15 .... .... Petitioner/s Versus 1. The State Of Bihar through the Principal Secretary, Health, Bihar 2. 2. The Rajya Swasthya Samiti through Executive Director, Bihar at Patna 3. The Zila Swasthya Samiti its Chairman-Cum-the District through Magistrate, Muzaffarpur at Bettiah 4. The Civil Surgeon-Cum-The Secretary, Zila Swasthya Samiti, Muzaffarpur 5. The District Program Officer, Zila Swasthya Samiti, Muzaffarpur 6. The Rogi Kalyan Samiti through their Chairman, the Incharge Medical Officers, Sadar Hospital Muzaffarpur & Primary Health Centres Of Mushahari, Muraul, Sakra, Bochahan, Katra, Aurai, Meenapur, Kanti, Motipur, Marwan & Saraiya, All In Muzaffarpur 7. The Secretary, Rogi Kalyan Samitis-Cum-The Medical Officers, Sadar Hospital Muzaffarpur & Primary Health Centres Of Mushahari, Muraul, Sakra, Bochahan, Katra, Aurai, Meenapur, Kanti, Motipur, Marwan & Saraiya, all in Muzaffarpur ====================================================== .... .... Respondent/s Appearance : (In CWJC No.22673 of 2012) For the Petitioner/s : M/s. Rajendra Prasad, Sr. Advocate, Pramod Kumar & Binay Kumar Singh, Advocates
Legal Reasoning
transaction, we are of the opinion that it would be appropriate to state that in cases' where the instrumentality of the state enters the contractual field, it should be governed by the incidence of the contract. It is true that it may not be necessary to give reasons but, in our opinion, in the field of this nature fairness must be there to the parties concerned, and having regard to the large number or the long period and the nature of the dealings between the parties, the appellant should have been taken into confidence. Equality and fairness at least demands this much from an instrumentality of the State dealing with a right of the State not to treat the contract as subsisting. We must, 9 Patna High Court CWJC No.22673 of 2012 (7) dt.03-05-2013 9 / 15 however, evolve such process which will work.” Another submission of learned counsels for the petitioners is that para-22 of the decision taken in the meeting held on 18.7.2012 should be read in a harmonious and proper manner so as to mean that the existing contracts should not be renewed and no fresh contract should be entered into and not a direction to cancel all the existing contracts. Learned counsel for the petitioner in the first case has also sought to rely upon discriminatory conduct of the District Magistrate-cum-Chairman of the District Health Society, Jehanabad who had allowed as many as 4 old ambulances of the Red Cross Society, of which he is also the ex-officio Chairman, by his letter dated 31.8.2012. While the agreements of the petitioners have been cancelled on 17.10.2012 but no such step has been taken against the ambulances of the Red Cross Society. Learned counsel for the State Health Society, on the other hand, submits that it is not a case where the agreements of the petitioners have been cancelled on the ground of unsatisfactory performance rather the same is the result of a policy decision. It is submitted that the State Health Society and the District Health Society are only implementing the scheme of 10 Patna High Court CWJC No.22673 of 2012 (7) dt.03-05-2013 10 / 15 the Ministry of Health and Family Welfare, Government of India. It is pointed out that in the financial year 2012-13, the Central Ministry under the Janani Shishu Suraksha Karyakram has made a budgetary provision of Rs. 5119/- lacs for the purchase of 484 Basic Life Support Ambulances and further budgetary provision has been made by the Government of India to the extent of Rs. 7862.4 lacs in two instalments for the operation of these ambulances with the instruction that these ambulances will run under the Central Call Centre having a toll free No. 102 and the toll free No. 102 being used earlier at six control rooms at Divisional Headquarters was shifted to the Central Call Centre and made operational from 1.5.2012. It is also pointed out that 15 Ambulances purchased by the District Administration at Rohtas and 5 Ambulances donated by local Member of Parliament of Saharsa District were also inducted in the fleet of 484 Ambulances bringing the total number to 504 for which the operational cost was provided by the Government of India. It is also submitted by learned counsel that these 504 Basic Life Support Ambulances are manned with trained personnels with basic life saving equipments and consumables and are running in 347 Primary Health Centres, 147 11 Patna High Court CWJC No.22673 of 2012 (7) dt.03-05-2013 11 / 15 First Referral Units and 10 Sub-divisional Hospitals of the State. It is also contended by learned counsel for the respondents that the earlier Ambulances did not have basic life supporting accessories and were simply vans for transporting patients from one place to another without any emergency medical care. It was in the said changed scenario that the decision was taken to discontinue all the old ambulances. Learned counsel for the respondents further submits that there is nothing arbitrary or discriminatory in the said decision which is simply an implementation of the Central Government scheme by direct purchase and running of the ambulances by the State Health Society at all levels instead of arranging the same from private parties as in the case of the two petitioners. I have considered the submissions of learned counsels for the parties. In a contractual matter, this Court acting under its jurisdiction under Article 226 of the Constitution of India, would not normally go into any issue of breach of any provision of the contract for which the statutory remedies are available to the concerned parties in the regular courts of law. However, where there has been exercise of power in relation to a contract by any authority which is State under Article 12 of the 12 Patna High Court CWJC No.22673 of 2012 (7) dt.03-05-2013 12 / 15 Constitution, as in the present matter, all that this Court would look into is whether the action of the respondents is fair and reasonable or wholly explained in terms of the generally accepted principles of law under the Public Law and is not arbitrary and discriminatory and therefore violative of Article 14 of the Constitution. In view of the stand taken in the counter affidavit as also the submissions of learned counsel for the respondents, it is evident that the action of the respondents in the present matter was actuated by a policy decision taken at the level of the Central Government to provide funds for the purchase and running of upgraded Ambulances under 102 Scheme. It is not simply a case where the agreement entered into with private parties to provide Ambulance Service has been discontinued by any decision taken by any functionary at a local level. Thus the question of applying the terms of the contract with respect to any such discontinuance cannot arise so far as the consideration of the issue in the writ jurisdiction is concerned. For the said reasons the termination of the agreements before the completion of the period under the contract or on a ground which is not related to unsatisfactory performance, can be 13 Patna High Court CWJC No.22673 of 2012 (7) dt.03-05-2013 13 / 15 of no avail to the petitioners in the present matter. The decision having been based on a policy decision of the Central Government for the purchase of prescribed ambulances having life support system as also the operational cost of running the said ambulances, it cannot be said that the action of the respondents in terminating the agreements with the private parties who were running ambulances of a lower grade and quality, is arbitrary or unreasonable. So far as the reliance by learned counsels for the petitioners on the case of Mahabir Auto Stores (supra) is concerned, the same can have no application to the facts of the present case; that was purely a matter of a contract between one particular firm and a Central Government Undertaking, Indian Oil Corporation, the relationship and transactions between the parties had also been going on for nearly two decades as noted in the aforesaid decision and it was in those circumstances that the Apex Court held that equity and fairness demanded that instrumentality of the State dealing with a private party even in the case of contract in such matters, having regard to the large number, for the long period and nature of dealings between the parties, that the said private party, the appellant therein should have been taken in confidence before the decision was made. 14 Patna High Court CWJC No.22673 of 2012 (7) dt.03-05-2013 14 / 15 Such is not the position in the present matter. The present is not a case of termination of contract of a single party rather it is a case of the old Ambulance Service under 102 Scheme being discontinued as a whole on the basis of the scheme made by the Central Government for which the funds have also been provided by the Central Government. Thus, it cannot be said that the action of the respondents is unfair or arbitrary. So far as the continuance of four Ambulances of the Red Cross Society is concerned, there is no material on the record to show that the same were taken under the 102 Scheme nor that have been allowed to continue under the said Scheme. The clear stand of the respondents is that the Ambulances have been taken from the petitioners for being run under the 102 Scheme and the said scheme itself having taken a different shape under the new Scheme of the Central Government, it cannot be said that the case of the Ambulances of the Red Cross Society is at par with that of the petitioners. Moreover, the Red Cross Society as a body also does not stand on the same footing as a private party from which the services of the ambulances had been contracted. So far as the submission of learned counsels 15 Patna High Court CWJC No.22673 of 2012 (7) dt.03-05-2013 15 / 15 for the petitioners to treat the decision taken on 18.7.2012 to be read as one not requiring the contracts to be terminated but only that existing contracts should not be renewed and no fresh contract should be entered into, is concerned the same is not borne out from the language of the directions mentioned in the said para-22. The writ applications, therefore, are devoid of merit. They are, accordingly, dismissed. However, dismissal of the writ applications shall not have any effect over the rights of the petitioners under the general law of contract which they are free to invoke before the appropriate forum in appropriate proceedings. I may also mention here a fact pointed out by learned counsel for the petitioner in CWJC No. 18871/2012 in which it is stated that this Court by an interim order dated 10.10.2012 had directed the stay of the operation of the impugned order dated 12.9.2012 but the same has been violated by the respondents. So far as the said issue is concerned, it would be open to the said petitioner to raise the same under the contempt jurisdiction of this Court, if so advised. S.Pandey/- (Ramesh Kumar Datta, J)
Arguments
For the State : Mr. Utsav Kumar , AC to GP-10 For State Health Society : Mr. K.K.Sinha (In CWJC No.18871 of 2012) For the Petitioner/s : Mr. Amarendra Nath Verma For the Respondent/s : Mr. Dinbandhu Singh GP-9 For State Health Society : Mr. Kishore Kumar Sinha 3 Patna High Court CWJC No.22673 of 2012 (7) dt.03-05-2013 3 / 15 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 7 03-05-2013 Heard learned counsels for the petitioners in both the cases and learned counsels for the State Health Society and the State. The petitioners have approached this Court for quashing Clause-22 of the minutes of the meeting dated 18.7.2012 of all the Regional/District Programme Managers in the 38 districts of the State under the aegis of the State Health Society under which the Executive Director, State Health Society had directed all the District Programme Managers to stop all the Ambulance Services under 102 Scheme. The petitioner in the second writ petition has challenged the direction contained in letter dated 12.9.2012 issued by the District Health Society directing stoppage of work of the petitioner’s ambulances in 12 Health Centers of the District. Briefly stated, both the petitioners under different agreements were required to supply ambulances under the Scheme of 102 Ambulance Services in different Health centers in the districts of Jehanabad and Muzaffarpur respectively. It is their 4 Patna High Court CWJC No.22673 of 2012 (7) dt.03-05-2013 4 / 15 case that pursuant to the agreements they were providing the Ambulance services to the satisfaction of all the concerned officials. In the first case the period of agreement was for two years which was to come to an end on 15.9.2013 and in the second case the period of agreement was for three years which was to come to an end on 10.7.2014. However, in the aforesaid meeting held on 18.7.2012 a direction was issued by the Executive Director to stop all the old ambulances being run under the 102 Ambulance Scheme. Pursuant to the same consequential letters were issued terminating the Ambulance Services of the petitioners on different dates much prior to the completion of their period under the agreements. Aggrieved by the same the petitioners have approached this Court. It is submitted by learned counsels for the petitioners that the action of the respondents is arbitrary, unreasonable and contrary to the terms of the agreement which had not yet come to an end. It is specifically referred by them that the period of the agreement was clearly mentioned as two years and three years and in case the work was found to be satisfactory the same could also be extended. Reference is also made to another condition which provided that in case the service was not found satisfactory, then for the termination of the agreement the 5 Patna High Court CWJC No.22673 of 2012 (7) dt.03-05-2013 5 / 15 recommendation shall be made to the District Health Society. It is submitted that neither the period of agreement has come to an end nor there was any complaint by any authority that the services of the petitioner were not satisfactory and thus, the termination of their agreements are arbitrary actions on the part of the respondents. Learned counsels further submit that the agreements have been terminated without issuing any show cause notice to the petitioners and without affording them any opportunity of being heard and is thus in violation of the principles of natural justice. Learned counsels also submit that no reasons have been assigned in the orders terminating the agreements and thus the same are wholly arbitrary. In support of the aforesaid propositions learned counsels for the petitioners rely upon a decision of the Supreme Court in the case of Mahabir Auto Stores Vs. Indian Oil Corporation Limited & ors.: AIR 1990 SC 1031, in paras 18,19 and 20 of which it has been held as follows:- “18. Having considered the facts and circumstances of the case and the nature of the contentions and the dealings between the parties and in view of the present state of law, 6 Patna High Court CWJC No.22673 of 2012 (7) dt.03-05-2013 6 / 15 we are of the opinion that decision of the State/public authority under Article 298 of the Constitution, is an administrative decision and can be impeached on the ground that the decision is arbitrary or violative of Article 14 of the Constitution of India on any of the grounds available in public law field. It appears to us that in respect of Corporation like IOC when without informing the parties concerned, as in the instant case of the appellant firm herein on alleged change of policy and on that basis action to seek to bring to an end the course of transaction over 18 years involving large amounts of money is not fair action, especially in view of the monopolistic nature of the power of the respondent in this field. Therefore, it is necessary to reiterate that even in the field of public law, the relevant persons concerned or to be affected, should be taken into confidence. Whether and in what circumstances that confidence should be taken into consideration cannot be laid down on any 7 Patna High Court CWJC No.22673 of 2012 (7) dt.03-05-2013 7 / 15 strait-jacket basis. It depends on the nature of the right involved and nature of the power sought to be exercised in a particular situation. It is true that there is discrimination (distinction) between power and right but whether the State or the instrumentality of a State has the right to function in public field or private field is a matter which, in our opinion, depends upon the facts and circumstances of the situation, but such exercise of power cannot be dealt with by the State or the instrumentality of the State without informing and taking into confidence, the party whose rights and powers affected or sought to be affected, into confidence. In such situations most often people feel aggrieved by exclusion of knowledge if not being taken into confidence. 19. Such transaction should continue as an administrative decision with the organ of the State. It may be contractual or statutory but in a situation of transaction between the parties for nearly two decades, such procedure should be 8 Patna High Court CWJC No.22673 of 2012 (7) dt.03-05-2013 8 / 15 followed which will be reasonable, fair and just, that is, the process which normally be accepted to be followed by an organ of the State and that process must be conscious and all those affected should be taken into confidence. 20. Having regard to the nature of the