The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 23672 of 2024 M/s. Panda Medical Store, At-BBMCH & District Headquarter Hospital represented Campus, Dist-Balangir, through its Proprietor Satya Brata Panda. …. Petitioner Mr. Milan Kanungo, Senior Advocate assisted by Mr. S.R. Mohanty, Advocate -versus- 1. State of Odisha, Health and Family represented Welfare Department, through its Principal Secretary, At- Bhubaneswar. 2. Superintendent of Bhima Bhoi Medical College & Hospital, At/P.O./ Dist: Balangir, Odisha. 3. Addl. Medical Superintendent (Store) BBMC & H Balangir, At/P.O./Dist- Balangir, Odisha.
Legal Reasoning
Opposite Parties Mr. P.P. Mohanty, Addl. Govt. Advocate ….
Decision
CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO ORDER 05.10.2024 This matter is taken up through Hybrid mode. Order No. 01. 2. In the present writ application filed under Article 226 of the Constitution of India, the petitioner has put to challenge a tender call notice dated 30.08.2024 uploaded on the website on 02.09.2024 for supply of orthopaedic implants to Bhima Bhoi Medical College and Page 1 of 5 Hospital (in short, „BBMCH‟)/DHH, Balangir for the financial year 2024-25. 3. The petitioner is a proprietorship concern and claims to be an age- old dealer dealing with medicine, medical equipments, orthopaedic implants, various other drugs and consumables, and other items related to health care sector in the district of Balangir. It is the petitioner‟s case that the opposite party No.2 had floated a tender for empanelment of medical stores for supply of drugs, consumables and other items to BBMCH for a period of one year. The petitioner had participated and after having been declared successful, a Memorandum of Understanding (MoU) was signed between the petitioner and the opposite party No.2 on 04.03.2024 which is valid till 03.03.2025. In terms of the said MoU, opposite party Nos.2 and 3 have been procuring medicines and various other orthopaedic implants from the petitioner from the date of singing of the MoU. As per the practice, the hospital authorities had been issuing indents/requisition to the petitioner and the petitioner has been supplying implants as per the demand. In the meanwhile, on 09.07.2024 the tender call notice has been issued by opposite parties Nos.2 and 3 inviting intending bids for supply of “Orthopaedic Implants” to BBMCH/DHH for 2024-25. 4. The petitioner had earlier approached this Court challenging the tender call notice by filing a writ petition giving rise to W.P.(C) No.18492 of 2023 on the ground that the said tender was floated when there was already an existing agreement between the petitioner and the opposite parties for supply of various medicines and equipments. Page 2 of 5 5. It is the petitioner‟s further case that the said tender call notice dated 09.07.2024 was recalled vide a notice dated 28.08.2024 by pasting the notice on the Board of the Hospital on 31.08.2024. The petitioner formed an impression that the opposite parties shall not proceed further for any fresh tender process during the subsistence of the agreement between the petitioner and the opposite parties. However, to utter dismay, the opposite party issued the impugned tender call notice dated 28.08.2024 for supply of orthopaedic implants. 6. Mr. Milan Kanungo, learned Senior Counsel appearing on behalf of the petitioner has vehemently argued that pursuant to the MoU which is valid up to 03.03.2025 the petitioner has been supplying drugs and medical equipments to the hospital as and when indented/requisitioned. During the subsistence of the said MoU, issuance of fresh tender call notice is wholly arbitrary and violative of Article 14 of the Constitution of India. He has argued that issuance of the impugned tender call notice amounts to dishonoring the understanding between the petitioner and the opposite parties for supply of medical equipments to the extent the same relates to orthopaedic implants. He has argued that the impugned tender call notice has been intentionally brought to create a 3rd party interest in the uninterrupted service of the petitioner and the action of the opposite parties is tainted with mala fide. He has further argued that the opposite parties had earlier withdrawn the tender call notice dated 09.07.2024 for the sole reason to frustrate the writ petition which the petitioner had earlier filed. He has also submitted that even till the date of filing of the writ petition, the health care facility in the hospital is Page 3 of 5 dependent on the petitioner‟s shop for medicine and various medical apparatus from time to time. 7. Mr. P.P. Mohanty, learned Additional Government Advocate representing the opposite parties-State of Odisha has opposed the prayer made in the writ petition. 8. We have perused the pleadings in the writ petition and have given our thoughtful consideration to the rival submissions advanced on behalf of the parties. 9. It is manifest from the pleadings and the submissions advanced on behalf of the petitioner that its entire case is based on the MoU entered into between the petitioner and the opposite parties on 04.03.2024 which relates to supply of medicines, medical consumables and other items and the subsequent conduct of the opposite parties to order for orthopaedic implants also. 10. It is precisely the petitioner‟s case that in terms of the said MoU, for the period during which the MoU was valid, the opposite parties were obliged to purchase orthopaedic implants from the petitioner‟s medical store. 11. It is evident that the petitioner has a medical store and there was an MoU between the petitioner and the opposite parties for supplying of medicines, medical consumables and other items. The petitioner‟s case that orthopaedic implants are consumables/other items i.e. other than medicine in terms of the MoU, no tender call notice ought to have been issued for supply of Orthopedic implants is totally misconceived. Page 4 of 5 12. Apparently, based on the requirements of orthopaedic implants, the opposite parties issued the tender call notice(s) for supply of orthopaedic implants from the competent bidders. 13. The contention that because of certain supplies were made by the petitioner of orthopaedic implants, any binding agreement stood created between the parties for supply of such implants during the currency of the MoU is legally unsustainable. 14. The plea that because of subsequent tender call notice, the petitioner stands deprived of supplying the orthopaedic implants and, therefore, the tender call notice requires interference by this Court is not at all tenable. 15. We, thus, do not find any specific contract/agreement between the petitioner and the opposite parties for supply of orthopaedic implants for the year 2024-25. 16. In any event, this Court exercising power of judicial review under Article 226 of the Constitution of India is not required to interfere with such matters. The grounds of mala fide and arbitrariness taken on behalf of the petitioner are not at all substantiated. 17. The writ petition stands dismissed accordingly. Chief Justice (Chakradhari Sharan Singh) (Savitri Ratho) Judge SK Jena/Secy. Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 15-Oct-2024 16:38:41 Page 5 of 5