THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT APPEAL No.581 of 2022
JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. Deepak Bhattarcharjee, learned Senior
Counsel appearing for the appellant and Mr. G.Vidya
Sagar, learned Senior Counsel appearing for respondent
No.5. Also heard Mr. B.Murali, learned Assistant Government Pleader appearing for respondents No.1, 2 and 4 and Mr. Parsa Ananth Nageswara Rao, learned Government Pleader appearing for respondent No.3.
2. This appeal has been preferred against the order of the learned Single Judge dated 24.08.2022 rejecting I.A.No.1 of 2022 in W.P.No.31692 of 2022 filed by the appellant.
3. Appellant has filed the related writ petition ventilating two grievances i.e., i) cancellation of earlier tender dated 20.04.2022 and ii) award of contract in favour of 2 respondent No.5 following fresh tender dated 09.07.2022. The contract is for execution of the work of "Integrated Hospital Facility Management Services (IHFMS) in MGM Hospital, Warangal, including PMSSY Superspeciality Hospital (MGMH Annex), KMC Campus, Hanamkonda".
4. Technical bids pursuant to the tender notice dated 20.04.2022 were opened on 01.06.2022. Before the price bids could be opened, on a complaint lodged by an unsuccessful bidder against respondent No.5 to the District Collector, Warangal, who is the issuing authority of notice inviting tender, price bids of the appellant and respondent No.5 were not opened and tender notice dated 20.04.2022 was cancelled. Thereafter, second tender notice was issued on 09.07.2022. It is stated that there is no change in the tender conditions in the second tender notice. After cancellation of the first tender process, respondent No.5 submitted turnover certificate certified by a Chartered Accountant along with Unique Identification Number (UDIN). Respondent No.5 had already entered into a Memorandum of Understanding (MoU) with respondent 3 No.1 for managing Niloufer Hospital for Women and Children, Hyderabad, dated 23.05.2022 for providing integrated hospital facility management services. Niloufer Hospital contains more than 1000 beds. As per clause 8.3.4 of the tender document, respondent No.5 ought to have been disqualified.
5. Learned Single Judge by the order appealed against held as follows:
"9. As evident from the record, the 1st tender was cancelled on the ground that there was only one qualified bid. According to the learned Assistant Government Pleader for Medical and Health, on a complaint lodged by M/s. Sai Security Services regarding qualification of respondent No.5, enquiry was conducted and it was found that turnover details furnished by respondent No.5 did not meet the requirements, and as respondent No.5 was treated as not qualified, only one bid of the petitioner was left over. For the said reason, 1st tender was cancelled. Thus, the contention of the learned Senior Counsel for the petitioner that the 1st tender was cancelled without any reasons and there was no transparency maintained, is prima facie not acceptable.
10. So far as the contract of respondent No.5 with Niloufer Hospital is concerned, the question whether entering into MOU by respondent No.5 with respondent 4 No.1 was as a bidder or only to facilitate the actual bidder M/s. Sri Karthikeya Security Services, needs to be looked into in the main writ petition.
11. As contended by the learned Senior Counsel for respondent No.5, there are no mala fides attributed against the official respondents. The period of contract of respondent No.5 has already commenced. As Hospital Services are essential in nature, and moreover the petitioner without any demur has participated in the 2nd tender, in the opinion of this Court, the petitioner does not have prima facie case and balance of convenience in his favour. In view of the above observations, on factual aspects, this Court does not consider it necessary to refer to the judgments cited by both the learned Senior Counsel, at this interlocutory stage, and the same will be considered during the hearing in the writ petition.
12. Accordingly, this application is dismissed. However, continuance of respondent No.5 will be subject to further orders in the writ petition.
The official respondents are granted four weeks' time to file counter in the main writ petition."
6. Learned Senior Counsel for the appellant submits that in W.P.No.32936 of 2022 filed by M/s.Agile Security Force Private Limited for similar contract, learned Single Judge on 22.08.2022 held as follows:
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"Mr. C.V.Mohan Reddy, learned Senior Counsel, submitted that the average turnover of the respondent No.3 for three years is Rs.8.74 crores, whereas the turnover of the petitioner is more than Rs.192 crores. In order to boost up the turnover, the respondent No.3 entered into agreement/MOU with respondent No.4 and has shown more turnover than petitioner. Clause 4.2 of the tender document permits the agency/tenderer to enter into MOU with another agency having security or sanitation services experience of three years, but does not permit MOU for the purpose of turnover, which is done in the instant case by respondent Nos.3 and 4 in collusion with the officials.
As seen from clauses 4.2 and 4.2.2 of the tender document, prima facie, this Court is of the view that respondent Nos.3 and 4 have not complied with the said clauses/conditions.
Hence there shall be interim stay as prayed for. Respondent No.1 is given liberty to avail services of the previous contractor until further orders of this Court."
7. By applying the same yardstick it is submitted that creditworthiness of the appellant is much more than that of respondent No.5 and on the principle of parity similar interim order ought to have been passed. In this connection, Mr. Deepak Bhattarcharjee, learned Senior Counsel for the appellant, has referred to clause 8.3.7 of the tender document.
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8. On the other hand, Mr. G.Vidya Sagar, learned Senior Counsel for respondent No.5, has drawn the attention of this Court to clause 6 of section I of the tender document and submits that in case of joint venture like respondent No.5, it is the total creditworthiness of the members of the joint venture which will have to be taken into consideration.
9. The related writ petition is pending before the learned Single Judge and the next date is 21.09.2022.
10. Further, as discernible from the materials on record, the contract awarded in favour of respondent No.5 has already come into force. At this stage, interdicting the contract may cause dislocation of services to the hospital which will not be in the public interest. However, we are of the view that having regard to the rival contentions and also the order passed by the learned Single Judge on 22.08.2022 in W.P.No.32936 of 2022, an early adjudication of the writ proceeding is warranted.
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11. Respondents in the writ proceeding shall file their counter affidavits by the next date.
12. We request learned Single Judge to hear the writ petition either on 21.09.2022 or any subsequent date thereafter expeditiously. We make it clear that we have not expressed any opinion on merit. All contentions are kept open.
13. Writ appeal is disposed of accordingly.
Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ C.V.BHASKAR REDDY, J 08.09.2022 vs