High Court
Case Details
WP(C) 1817/2013 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) ment. Case was heard yesterday and today is fixed for delivery of judg 2. By way of this petition under article 226 of the Constitution of India, petitioner seeks quashing of tender notice dated 26.02.2013 issued by re spondent No. 3 for supply of dietary articles to Karmashree Hiteswar Saikia Civi l Hospital, Nazira in the district of Sivasagar for the year 2013-14. 3. Case of the petitioner is that he is a petty businessman engaged in smal l contract and supply works. He has been supplying dietary articles to the Karma shree Hiteswar Saikia Civil Hospital, Nazira for the last 4 years. He came to kn ow from the office staff of respondent No. 3 that a tender notice was issued on 26.02.2013 for supply of dietary articles to Sonari and Nazira Sub-Divisional Ci vil Hospitals in the district of Sivasagar for the year 2013-14. According to th e petitioner, the said notice was neither published in any newspaper nor was it pasted in the office Notice Board. However, on coming to know about issuance of such tender notice, petitioner submitted his tender in respect of Karmashree Hit eswar Saikia Civil Hospital, Nazira (Hospital). Tenders were opened on 07.01.201 3 but no member of the Tender Selection Committee comprising of 5 members, was p resent at the time of opening of tenders. Petitioner thereafter submitted a repr esentation dated 22.03.2013 before respondent No. 2 for cancellation of the tend er process and for issuance of fresh tender. But no decision was taken on the re presentation submitted by the petitioner. 4. g the relief as indicated above. Aggrieved, petitioner has filed the present writ petition seekin 5. Contention of the petitioner is that no wide publicity was given to the tender notice. Entire tender process was carried out in a non-transparen t manner with a view to award the contract to some favoured party. Thus, very ob jective of competitive bidding was defeated. 6. This Court by order dated 23.04.2013 had admitted the writ petit ion and directed the respondents not to finalize the tender process initiated vi de tender notice dated 26.02.2013. Respondent authorities were given liberty to make departmental arrangement for procurement of dietary items so that the indoo r patients of the hospital do not suffer.
Legal Reasoning
7. Respondent No. 2 has filed affidavit. Stand taken in the affidav it is that petitioner has been continuously supplying dietary articles to the ho spital for the last 4 years. In the present year also the procedure that was fol lowed in the earlier years has been followed. Tender notice was displayed in the Notice Boards in the office of respondent No. 3 as well as in the hospital. In the instant case, tender was issued twice, firstly on 13.02.2013 and secondly on 26.02.2013. Pursuant to the first tender notice dated 13.02.2013, the tenders w ere opened on 20.02.2013 but as per departmental requirement, minimum 3 numbers of tenderers did not qualify in the tender process. Therefore, fresh tender noti ce was again issued on 26.02.2013 fixing 07.03.2013 as the last date for submiss ion of tender. But because of some unavoidable circumstances, the last date for submission of tender was extended upto 13.03.2013. On the same day, the tenders were opened in the presence of the members of Tender Selection Committee and all the tenderers except the petitioner. Tender of the petitioner was rejected on t he ground of non-submission of earnest money of Rs. 30,000.00 by way of bank dra ft. It is the categorical stand of the respondent No. 2 that in all the tender p rocesses conducted till date tender notices were pasted only in the Notice Board s in the office of respondent No. 3 as well as in the concerned hospital. The an swering respondent has alleged that only after the petitioner had found out that his tender was rejected that he filed the present writ petition. It is further stated that following the tender process, the eligible tenderer has been selecte d, whose name has been forwarded to the office of respondent No. 2, who is the c ompetent authority to grant approval. 8. In his reply affidavit, petitioner has stated that the tender no tice was neither published in the newspaper nor given wide publicity through the electronic media. He has stated that he could not be present on the date of ope ning of tender, which was re-fixed on deferment, as the respondents did not info rm him about such deferment. He has also stated that the respondents are silent as under what circumstances, the tender submission date and tender opening date were extended. Such extension of dates itself suggest that there was no wide pub licity and consequently the numbers of tenderers were very limited. Question of rejection of the tender of the petitioner does not arise as no terms and conditi ons of tender were notified. 9. . P. Nayak, learned Standing Counsel, Health Department.
Legal Reasoning
Heard Mr. S. K. Sinha, learned counsel for the petitioner and Mr 10. Learned counsel for the petitioner submits that it is a settled proposition that in matters of public tender, there has to be wide publicity and a transparent procedure has to be adopted so that all intending tenderers can p articipate in the tender process. This will widen the field which will lead to m ore competitive bidding, which would be in the public interest. Admittedly, in t he present case, no wide publicity was given to the tender notice, which has vit iated the tender process. No terms and conditions of tender were notified and th erefore rejection of the tender of the petitioner on the ground of non fulfillme nt of one of the terms and conditions of the tender would not be justified. Cont ending that the impugned action of the respondents is unreasonable and unfair, l earned counsel for the petitioner seeks quashing of the tender notice and a dire ction to the respondents to call for fresh tender. 11. Opposing the submissions of the learned counsel for the petition er, Mr. Nayak, learned Standing Counsel submits that petitioner has not approach ed this Court with clean hands. Though petitioner has contended that no wide pub licity was given to the tender notice thereby limiting participation, he himself participated in the tender by submitting tender. Therefore, it is not open to t he petitioner to urge the said ground. Having participated in the tender, petiti oner found his tender rejected on the ground of non furnishing of earnest money. It was only then that he filed the writ petition and has made the impugned chal
Decision
lenge. He, therefore, seeks dismissal of the writ petition. 12. Submissions made have been considered. 13. Before proceeding further, order dated 23.04.2013 passed by this Court in the present proceeding may once again be referred to, relevant portion of which reads as under:- (cid:28)One of the allegations in the present writ petition is that a process o f settlement for procurement of the dietary items in Karmashree Hiteswar Saikia Civil Hospital, Najira in the district of Sibsagar has been initiated by the Joi nt Director of Health Services, Sibsagar vide tender notice dated 26th February, 2013, even without publication of the same either in the newspapers or in the o fficial notice Board. On the backdrop of such allegation, this Court vide order dated 22nd Apr il, 2013 directed the learned standing counsel, Health Department to obtain nece ssary instruction and to produce the relevant records. Mr. Gogoi, learned standing counsel, Health Department producing the rel evant records has submitted that the said tender notice was issued in the offici al notice Board but has not been published in any of the newspapers, as it appea rs from the records, as made available to him by the Director of Health Services , Assam. It has also been submitted that the records reveal submission of the t ender by 3(three) tenderers, which does not include the petitioner and the compa rative statement has also been prepared, which has been sent to the Director for final approval. It has also been submitted that the Director is yet to record any approval on the said process for supply of dietary items to the said civil hospital. I have perused the records, as produced by Mr. Gogoi, learned standing c ounsel, Health Department, which reveals that the said tender notice has not bee n issued in any newspapers and no wide publication has been made enabling the in tending bidders to participate in the tender process. It, however, reveals tha t the said tender notice was pasted in the official notice Board only, which may be the reason for participating in the said tender process by only 3(three) ten derers. In view of the above, issue rule, returnable on 28th May, 2013. Since all the respondents are represented by the respective counsel, no fresh steps need be taken. However, extra copies of the writ petition and the a nnexures appended thereto shall be served on the learned counsel appearing for t he respondents by 24th April, 2013. The petitioner thereafter, by 25th April, 2 013, shall file proof of service of such extra copies on the learned counsel app earing for the respondents with the Registry. List this case for orders on 28th May, 2013. The respondents shall, in the meantime, file their affidavits. Heard the learned counsel appearing for the parties on the prayer for in terim order. Having regard to the aforesaid facts as revealed from the record, I am o f the view that an interim order is called for. Hence, the respondents are dire cted not to finalize the tender process initiated vide notice dated 26th Februar y, 2013. The respondent authorities, however, shall make departmental arrangemen t for procurement of dietary items so that the indoor patients of the said hospi tal do not suffer. (cid:29) 14. Thus, from a reading of the aforesaid order, which was passed af ter perusal of the record, and the affidavit filed by respondent No. 2, it becom es evident that the tender notice was not given wide publicity. Pasting of the t ender notice in the office Notice Board of the respondent No. 3 and in the Notic e Board of the hospital would neither be sufficient nor adequate. The fact that petitioner had submitted his tender on coming to know from the staff of responde nt No. 3 would not by itself make any material difference. For lack of wide publ icity, the number of tenderers was limited, which in turn has adversely affected competitive bidding. As a matter of fact, the affidavit of respondent No. 2 is silent about the various bids of the participating tenderers. Regarding the cont ention that tender of the petitioner was rejected on the ground of non-submissio n of earnest money, it can only be said that since the tender process itself has been vitiated for being non-transparent, even if the tender of the petitioner i s rejected, the tenders of the other tenderers would not stand validated. Moreov er, nothing has been placed on record to show as to whether the bid of the selec ted tenderer has been approved by respondent No. 2. The contention advanced by t he respondents that similar procedure was followed earlier and that the petition er was the beneficiary of such procedure, would not hold water as it is the impu gned tender process which is under challenge in the present proceeding. 15. That being the position, this Court is of the view that the tend er process initiated by the respondents pursuant to the tender notice dated 26.0 2.2013 stands vitiated because of lack of wide publicity and non-transparency. 16. Accordingly, the same stands quashed. 17. Respondents may now proceed to issue fresh tender notice by givi ng wide publicity to the same. Till finalization of the fresh tender process, in terim order passed by this Court on 23.04.2013 would continue. 18. 19. Writ petition is accordingly allowed. However, there shall be no order as to cost.