The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P. (C) No. 21377 of 2024 Ziqitza Health Care Limited, Having its Registered Office, At- 23rd Floor, Sunshine Tower, Senapati Bapat Marg, Dadar (W), Mumbai, Maharashtra- 400013, Represented through its Authorized Signatory, Mr. Deepak Kumar Srivastava, Dy. Vice President, Aged about 42 years, S/o-Late B.L. Srivastava. -Versus- …Petitioner. 1. State of Odisha, Through Commissioner Cum Secretary, Department of Health & Family Welfare, Government of Odisha. 2. Mission Director, National Health Mission, State of Odisha Annex Building, Bira Maharana Ln, Nilakantha Nagar, Nayapali, SIHFW, Bhubaneswar, Odisha-751012. 3. M/S EMRI Green Health Services, having its registered office Devar Yamzal, Medchal Road, Secuderabad-500078, Telengana. 4. M/S BVG India Limited, having its registered office BVG House, Premier Plaza, Pune-Mumbai Road, Chinchwad, Pune-411019, Maharashtra, …Opposite Parties W.P.(C) No. 21377 of 2024 Page 1 of 8 Advocates appeared in the case: For the Petitioner:
Legal Reasoning
Mr. Sanjit Mohanty, Senior Advocate assisted by Mr. Shibashish Misra, S.S. Tripathy, A. Samal & T. Shreyashi, Advocates For Opposite Parties: Mr. L. Samantaray, Addl. Government Advocate. (For Opposite Party No.1) M/s. B.P. Tripathy, R.D. Acharya & N. Barik, Advocates. (For Opposite Party No.2) Mr. Pinaki Mishra, Senior Advocate assisted by Mr. Chandan Kumar Mohanty & Mr. S.R. Pradhan, Advocates (For Opposite Party No.3) CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO JUDGMENT 24.09.2024 Chakradhari Sharan Singh, CJ. 1. The petitioner is a company incorporated under the Companies Act having its registered office at Mumbai. The present writ application has been filed for declaring opposite party no.3 ineligible for the Request For Proposal (RFP) inviting tender for Operation and W.P.(C) No. 21377 of 2024 Page 2 of 8 Management of Integrated Patient Transport and Health Helpline Service (Phase-II) in Odisha bearing RFP Reference No.OSH& FWS/01/2024/IPTHHS-II. Opposite Party no.3 has been declared L1 in the tender process. 2. We have heard Mr. Sanjit Mohanty, learned Senior Counsel appearing for the Petitioners, Mr. B.P. Tripathy, learned counsel for opposite party no.2 and Mr. Pinaki Mishra, learned Senior Counsel for opposite party no.3. 3. It is the petitioner’s case that the opposite party no.3 suffers disqualification as stipulated under Clauses 1.2.5 and 1.2.7 of the RFP document. Considering the nature of challenge, which has been made by the petitioner in the present writ application based on the averments made in the writ application, it would be apt to reproduce herein below the aforesaid clauses:- “1.2.5 The participating entity (i) should not be insolvent, in receivership, bankrupt or being wound up (ii) not having its affairs administered by a court or a Judicial officer (iii) not having its business activities suspended and (iv) must not be subject of legal proceedings for any of the foregoing reason. xxx 1.2.7 The participating entity should not have been blacklisted or otherwise disqualified pursuant to any debarment proceedings by any Central or State Government, Local Government or Public Sector Undertaking in India and which is for the time being in force.” xxx xxx 3.1 It is the petitioner’s case that opposite party no.3 was blacklisted by the Commissioner of Health & Family Welfare W.P.(C) No. 21377 of 2024 Page 3 of 8 Department, Government of Karnataka on 27.11.2023. Further the National Health Mission (NHM), Government of Meghalaya had suspended the contract of opposite party no.3 with National Health Mission by way of closure notice dated 08.08.2022. It is accordingly, the petitioner’s case that since opposite party no.3 was blacklisted and suffered the order of suspension passed by NHM, Government of Meghalaya, it should be declared disqualified. The petitioner was found L2 in the bidding process and it is accordingly, the petitioner’s case that the work ought to have been awarded to him. 4. A counter affidavit has been filed on behalf of opposite party no.3 stating therein that the order of blacklisting dated 27.11.2023 issued by the Commissioner of Health and Family Welfare Department, Government of Karnataka has been stayed by the High Court of Karnataka in W.P.(C) No. 27840 of 2023 and the order of stay is still operating. As regards the suspension of the work ordered by the NHM, Government of Meghalaya, it is the case of opposite party no.3 that there was no such order of suspension passed during subsistence of the period of contract between opposite party no.3 and the NHM, Government of Meghalaya. After expiry of the term of contract, the term was extended for certain period and because of inevitable circumstances, Government of Meghalaya had decided to suspend the project, which does not amount to suspension so as to attract Clause 1.2.5 of the RFP. 5. Mr. Mohanty, learned Senior Counsel appearing on behalf of the petitioner as argued that the fact that opposite party no.3 has been blacklisted is not in dispute. Merely on the basis that an interim order W.P.(C) No. 21377 of 2024 Page 4 of 8 of stay passed by the High Court of Karnataka was in operation, opposite party no.3 cannot claim that there is no blacklisting order against it. He has further argued, with reference to the documents, which have been brought on record that the project in Meghalaya undertaken by opposite party no.3 had to be suspended because opposite party no.3 was not able to carry out the work. In such circumstances, it was obligatory on the part of the opposite party no.3 to have disclosed this fact at the time of submission of its bid. He has submitted that had this fact been disclosed, the technical evaluation committee would have the opportunity to duly assess the eligibility of opposite party no.3. Non-disclosure of this crucial facts amounts to suppression and on this ground also opposite party no.3 should be declared disqualified. He has relied on Annexure-10 to the writ application to contend that the term of the agreement was extended for three months beyond 30.06.2022. The body of the said communication reads as under:- of finalization the Tender/ RFP “With reference to the subject and letter No. cited above, I am to inform you that the office of the undersigned is in the process for operationalization of Emergency Response Service (ERS) under the Dial-108 platform. Since, the extension of your services is ending as on 30th June, 2022 and in order to ensure continuation of services, GVK EMRI is to continue the same Terms and providing Conditions for another period of 3 (three) months or till the tender formalities are completed.” the services under 6. Mr. Mishra, learned Senior Counsel appearing on behalf of opposite party no.3 has submitted that the order of blacklisting dated 27.11.2023 issued by the Commissioner of Health and Family Welfare Department, Government of Karnataka was not in operation as on the W.P.(C) No. 21377 of 2024 Page 5 of 8 date of submission of bids by opposite party no.3, by operation of the order of stay, passed by the High Court Karnataka in W.P.(C) No. 27840 of 2023. Such order of blacklisting could not have been considered against opposite party no.3 as that would have amounted to ignoring the order of stay passed by the High Court of Karnataka. He has further submitted that there is no suppression of any material fact as regards the suspension of project ordered by the NHM, Government of Meghalaya. He has relied on a communication made by Meghalaya Government to contend that there was no order of suspension during the currency of the agreement of contract between opposite party no.3 and NHM, Government of Meghalaya. Mr. Mishra, learned Senior Counsel has submitted with reference to the communication dated 30.06.2022 that the said communication cannot be treated to be an extension of agreement between the opposite party no.3 and NHM, Government of Meghalaya for the reasons that opposite party no.3 was asked to ensure continuance of services beyond the stipulated period till future tender formalities were completed. He submits that the said communication cannot be treated to be an extension of agreement. 7. Mr. Tripathy, learned counsel has appeared on behalf of opposite party no.2, National Health Mission, Government of Odisha. While opposing the prayer made in the writ application, he has adopted the submission made by Mr. Mishra, learned Senior Counsel. 8. We have carefully examined the pleadings and other materials which are available on record and we have given our anxious consideration to the rival submissions advanced on behalf of the parties. We do not find any force in the submission made by Mr. W.P.(C) No. 21377 of 2024 Page 6 of 8 Mohanty, that the order of blacklisting issued by the Commissioner of Health and Family Welfare Department, Government of Karnataka should have been taken into account and based on that opposite party no.3 ought to have been declared ineligible by applying Clause 1.2.7 of RFP document for the reason that admittedly an order of stay passed by the High Court of Karnataka is operating against the order of blacklisting. There is no gainsaying that by operation of the interim order passed by the High Court of Karnataka, the order of blacklisting has become ineffective till the same is modified or vacated. On the date of submission of bids as also on the date of evaluation of technical bid, the interim order of stay was in operation. The interim order of stay by the High Court of Karnataka is still in operation. In such view of the matter, opposite party no.3 could not have been declared to be ineligible, invoking Clause 1.2.7 of RFP document. 9. Coming to the plea of suspension of work as stipulated under Clause 1.2.5 for disqualification, it is apparent from the pleadings and documents brought on record that the agreement between opposite party no.3 and NHM, Government of Meghalaya had earlier ended and it was subsequently extended to 30.06.2022. Thereafter the agreement was extended for a further period of three months. In the meanwhile there was a strike called by the field staff on 18.07.2022. It is clearly mentioned in the closure notice issued by NHM, Government of Meghalaya regarding suspension of the project because of the said circumstance. On careful examination of the communication dated 30.06.2022, we are of the considered opinion that the same is apparently unilateral, issued by NHM, Government of Meghalaya, whereby opposite party no.3 was asked to continue for further period W.P.(C) No. 21377 of 2024 Page 7 of 8 because, the NHM, Government of Meghalaya was unable to complete the tender formalities for subsequent period. 10. In our considered view, the plea that the opposite party no.3 suffered any kind of suspension in the nature of “having its business activities suspended” to attract disqualification under Clause 1.2.5 of the RFP, is not acceptable. 11. Further we are of the considered opinion that the Court exercising the power of judicial review is not required to interfere in such matters and ought to defer to the discretion of the tender inviting authorities which, by reason of having authored the tender documents, are the best placed to interpret their terms. 12. This Court exercising the power of judicial review should not sit as Courts of Appeal. Scope of judicial review in the matter of consideration of tender documents has been dealt with in a catena of Supreme Court’s decisions laying down the limitations of exercise power of judicial review under Articles 226 and 32 of the Constitution of India. 13. For the reasons noted above, we are not inclined to interfere. The writ application is accordingly dismissed. (Chakradhari Sharan Singh) Chief Justice Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-Cum-Addl. Principal Secretary Reason: Authentication Arun Mishra, APS Location: High Court of Orissa, Cuttack Date: 27-Sep-2024 18:18:35 (Savitri Ratho) Judge W.P.(C) No. 21377 of 2024 Page 8 of 8