Calcutta High Court (Appellete Side)
Reliable Facility Services ... vs Chittaranjan National Cancer ... on 23 December, 2022
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :-
The Hon'ble Justice Moushumi Bhattacharya.
W.P.A 25725 of 2022
Reliable Facility Services Private Limited & Anr.
Vs.
Chittaranjan National Cancer Institute & Ors.
For the petitioners : Mr. Suddhasatva Banerjee, Sr. Adv.
Mr. Soumabha Ghosh, Adv.
Mr. Sagnik Majumdar, Adv.
Ms. Shalmoli Ghosh, Adv.
Ms. Ananya Das, Adv.
For the respondent no. 5 : Mr. Kallol Basu, Sr. Adv.
Mr. Nilanjan Pal, Adv.
For the respondent nos. 1 to 4 : Ms. Aparna Banerjee, Adv.
Last Heard on : 19.12.2022
Delivered on : 23.12.2022.
2
Moushumi Bhattacharya, J.
1. The petitioners seek an order of injunction restraining Chittaranjan
National Cancer Institute (Institute) from allowing the private respondent no. 5
to continue with the mechanised cleaning services in Chittaranjan National
Cancer Research Institute and directing the respondents to forthwith award the
tender to the petitioner no. 1. The Institute issued a tender for mechanised
cleaning services of the Institute wherein the petitioner no. 1 and the private
respondent participated. The petitioner challenged the selection of the private
respondent as a successful bidder in an earlier writ petition being WPA no.
3574 of 2020 which was disposed of by a judgment dated 21.9.2022 directing
the Institute to revisit the evaluation of the statutory and non-statutory
documents required to be submitted by the three bidders in light of the tender
conditions and come to a fresh decision within a certain time frame. Pursuant
to the direction, the Institute constituted a Technical Re-evaluation Committee
consisting of 5 Officers and found the private respondent to be technically-
qualified for being awarded the tender over the other two bidders including the
petitioner no. 1. The order passed by the Institute dated 11.11.2022 pursuant
to the re-evaluation as directed by this Court, is the subject matter of challenge
in the present writ petition.
2. The petitioners, through learned counsel, rely on several findings of the
Court in the judgment passed in the earlier proceedings. Counsel say that the
Institute has disregarded the findings and proceeded to justify the selection of
the private respondent without due regard to the tender conditions. Counsel
submits that the fact of the existing contract between the Institute and the
private respondent being till 24.2.2023 should not stand in the way of granting
relief to the petitioners. Counsel places an order passed in the earlier round of
litigation on 18.3.2021 wherein the allotment of work to the private respondent
was to abide by the result of the writ petition.
3. Learned counsel appearing for the Institute places Minutes of a Meeting
held on 21.10.2022 whereby the Committee found the selection of the private
respondent to be proper.
4. Learned counsel appearing for the private respondent no. 5 relies on a
document from the website of JSS Hospital which shows that the said hospital
has 1800 beds under one roof and is one of India's biggest hospitals. Counsel
submits that the private respondent fulfilled the required eligibility criteria in
the tender documents and was also selected by reason of quoting the lowest
bid price as compared to the petitioner and one other bidder.
5. The dispute, in this second round of litigation between the parties, is
whether the Institute justified the decision of awarding the tender to the private
respondent without due regard to the eligibility criteria in the tender
documents. The petitioners say that private respondent was selected despite
failing the required criteria. If the petitioners succeed on this point the Court
would then proceed to consider whether the balance of convenience would
demand ending the contract between the Institute and the private respondent;
the agreement commenced from February, 2020 and ends on 24.2.2023.
6. The judgment passed in the earlier writ petition filed by the petitioners
directed the Institute to re-evaluate the eligibility of the three bidders including
the petitioner no. 1 and the private respondent and come to a fresh decision.
The judgment however contained certain findings in light of the tender
conditions. The tender conditions / Instructions to Bidders consisted of
statutory and non-statutory components. Under the first category, the bidder
was required to have at least 3 years of experience in mechanised cleaning for
24x7 hours in any Government hospital with a minimum of 500 or more beds.
Second, the bidder was to submit suitable documentary evidence in the form of
work orders along with the tender application. The non-statutory category
required submission of documents including completion certificates from any
hospital with 500 or more beds in a single contract.
7. The specific findings of the Court were as follows:
i) A successful bidder was required to show that the bidder was engaged in
the work of mechanised cleaning of hospitals with 500 + beds.
ii) The successful bidder would have to submit evidence in the form of work
orders / completion certificates to show that bidder had successfully
completed the work in (i) above.
iii) The private respondent had not submitted any work order in compliance
with Clause 2 of Bid A namely experience in mechanized cleaning in a
government hospital with 500+ beds.
iv)The private respondent did not submit any completion certificate with
regard to a hospital with 500+ beds.
v) Permitting the private respondent to proceed to the post-qualification
evaluation level was questionable.
vi)The documents furnished by the private respondent in the supplementary
affidavit in August, 2022 were not in compliance with the tender
conditions.
vii) Awarding of the work order to the private respondent was not supported
by the documents placed before the Court.
8. The Court however was not inclined to interfere with the existing
contract between the Institute and the private respondent since the contract
commenced from February, 2020 and a sudden stoppage of the work would
result in difficulties for the Institute.
9. The impugned order dated 11.11.2022, which is under challenge in the
present proceeding, supports the selection of the private respondent primarily
on the ground that the private respondent performed work in JSS Hospital
which is a 1800-bedded hospital. The appointed Committee of the Institute
admits to the fact that the private respondent could not produce a work order
but instead produced agreements with JSS Hospital. The impugned order also
refers to a performance certificate provided by JSS Medical Hospital dated
16.10.2018. The selection of the private respondent was also found to be
proper on the basis of the private respondent quoting the lowest price in the
bid. The impugned order, read with the Minutes of Meeting dated 21st October,
2022 of the Institute, shows that the private respondent was found to have
three years experience in JSS Hospital and agreements in this regard were
found to be sufficient and a substitute for work orders.
10. The reasons given for reiterating the selection of the private respondent
gloss over the specific findings of the Court in the judgment dated 21st
September, 2022. The Court found the selection of the private respondent to be
a departure from the tender conditions, both statutory and non-statutory. The
Court also found that the private respondent was not able to show any
completion certificate with regard to performing mechanised cleaning services
in a hospital with more than 500 beds. The Institute has clearly sought to fill in
the gap of submission of required documents by relying on agreements entered
into between the private respondent and JSS Hospital.
11. The reliance on JSS Hospital documents is however misplaced for the
following reasons. First, the fact of JSS Hospital having 800 beds would appear
from a document downloaded from the JSS Hospital website. This document
can by no means be treated as evidence of the private respondent executing
and successfully completing the work of mechanised cleaning services for a
Hospital with 500+ beds. The document also shows that the critical and
emergency care facility has 260 beds which further lends to the ambiguity of
whether the private respondent actually performed similar work for JSS
Hospital with 500+ beds in one single contract.
12. Reliance on such document would also be contrary to the object of the
tender conditions which is to ensure that the eligible bidders would furnish
proof of having performed similar work for a hospital with 500+ beds and also
having successfully completed the said work. Second, reliance on the
downloaded document also amounts to an admission that the private
respondent did not furnish the required documents at the relevant stage of the
tender. This would be corroborated from the statements made by the private
respondent in the supplementary affidavit filed in the earlier round of litigation.
In this context, a particular noting in the Meeting of the Institute held on 21st
October, 2022 is significant where the Committee notes that information
available with the members of the Committee with regard to JSS Hospital
having more than 500 beds was used in support of the private respondent.
This further goes to show that the Committee ignored the weak links in the
selection of the private respondent which were specifically found by the Court
in the judgment dated 21st September, 2022.
13. It is relevant to point out that in taking a fresh decision, the Institute
was bound to preserve the fairness of the process by re-evaluating the eligibility
of the private respondent against the specific tender conditions. The Institute
was hence required to state, with due regard to the evidence before the
tendering authority at the relevant point of time, that the selection was not
guided by any extraneous conditions. The impugned order and the Minutes do
not satisfy this benchmark of probity. The Institute has instead simply
reiterated its selection and sought to gloss over the infirmities in the selection
process.
14. This Court is hence of the view that the impugned decision does not
stand the test of transparency which is expected in tender matters. The
impugned order is accordingly quashed and set aside.
15. The other issue is whether the balance of convenience would call for
interfering in the existing contract between the Institute and the private
respondent. This is particularly relevant since the private respondent started
its work for the Institute in February, 2020 and the contract will come to an
end on 24th February, 2023. Certain conditions in the tender assume relevance
in this regard. The tender/Instruction to Bidders contemplate that the second
ranked bidder (the petitioner no. 1) shall be kept in reserve and may step in if
the first ranked bidder (the private respondent) withdraws or fails to deposit
the bank guarantee or meet the other obligations. The tender conditions also
provide that an agreement / work order issued to the preferred bidder will be
terminated on a material misrepresentation or false information given by the
preferred bidder. The tender conditions hence provide that the second ranked
bidder will take the position of the first ranked bidder on the happening of
certain events.
16. The fact that the Institute, through its Committee simply returned the
findings and justified its earlier selection in the cusp of completion of the
agreement with the private respondent is of further significance. The writ
petitioners had approached the Court in 2020 and got an order on 21st
September, 2022. The Institute passed the impugned order in November, 2022.
The passage of time between the filing of the earlier writ petition and the
impugned order cannot be held against the petitioners if the Institute has not
satisfied the expected standard of re-evaluation. The petitioners cannot be at
the receiving end or be made to suffer the effect of a work order which has
wrongly been issued to the private respondent in disregard of the tender
conditions. In other words, an illegality cannot be permitted to continue on the
defence of balance of convenience.
17. The view of the Court is strengthened by an order of a Coordinate Bench
in the earlier writ petition which directed that any work allotted by the
respondent would abide by the writ petition. This order was passed on 18th
March, 2021 when there was sufficient time left for completion of the contract
with the private respondent. If the petitioners are not given any relief despite
findings in their favour, the order would be rendered meaningless. It is also
significant that the respondents did not challenge the judgment passed by this
Court on 21st September, 2022 directing the respondents to come to a fresh
decision.
18. High Courts exercising power under Article 226 of the Constitution of
India can issue a writ of mandamus or in the nature of a mandamus or
necessary directions where the High Court comes to a view that a public
authority has failed to exercise discretion conferred upon it by a statute, a rule
or a policy decision. The High Court in its writ jurisdiction can intervene in
cases where the discretion has been exercised by taking into account irrelevant
considerations or by ignoring relevant considerations in a manner which is not
consonant with the object for which discretion has been conferred on the
authority. The object of issuing of a mandamus is to compel the performance of
an act by an authority which comes within the fold of Article 226 and to
prevent miscarriage of justice. The ultimate rationale of a 226 jurisdiction is to
secure justice for those whose rights under Part III of the Constitution have
been infringed by an authority amenable to writ jurisdiction. This Court takes
inspiration from the words of Justice D.P. Madon in Comptroller and Auditor-
General of India, Gian Prakash, New Delhi vs. K.S. Jagannathan; (1986) 2 SCC
679.
19. Therefore this is a fit case where the discretion exercised by the Institute
is found to merit interference.
20. The impugned order passed by the Chittaranjan National Cancer
Institute on 11.11.2022 is quashed for the above reasons. The Institute is
directed to take immediate steps to terminate the contract with the private
respondent no. 5 and award the remaining time of the tender to the next
eligible bidder. The Institute shall consider the findings in the judgment dated
21st September, 2022 and deal with the same and take the required steps by
1.1.2023.
21. WPA 25725 of 2022 is disposed of in accordance with the above.
22. Learned counsel appearing for the private respondent prays for stay of
the operation of the judgment. Considering the findings of the Court in the
judgment, the prayer for stay is considered and refused.
Urgent Photostat certified copies of this judgment, if applied for, be
supplied to the parties upon fulfillment of requisite formalities.
(Moushumi Bhattacharya, J.)
