Calcutta High Court (Appellete Side)
Shiba Prosad Banerjee vs The Union Of India And Others on 3 July, 2023
D/L. 22.
July 3, 2023.
MNS.
WPA No. 15162 of 2023
Shiba Prosad Banerjee
Vs.
The Union of India and others
Mr. Swarup Paul,
Mr. Surya Maity,
Mr. Anirban Chakraborty,
Mr. Anish Roy
... for the petitioner.
Mr. Asok Kumar Chakrabarti,
Ms. Sayani Roy Chowdhury
...for the respondent-authorities.
Mrs. Aparna Banerjee
...for the respondent no. 6.
Affidavit-of-service filed in Court today be kept
on record.
Learned counsel appearing for the petitioner
contends that a corrigendum has been issued to a
tender floated by the respondent authorities in respect
of supply of cooked diet to a particular Cancer
Hospital.
It is contended that the terms of the
corrigendum virtually seek to bring about a sea
change in the primary clauses of the original tender.
It is contended that although the original tender
stipulated that the previous experience of similar work
had to be for the last three financial years, the said
period has been increased to five financial years in the
corrigendum. Secondly, whereas the original tender
contemplated the previous work experience to be of
similar nature for supply of patient diet work orders,
the corrigendum restricts such work in respect of
Cancer hospitals only, thereby preventing several
operators and contractors from participating in the bid
process, in order to curtail competition.
It is contended that the restriction-in-question
does not have any conceivable nexus with the
purpose of the tender, since the cooked diet
contemplated in case of other hospitals is similar to
that of Cancer hospitals.
It is further argued that the corrigendum, if
allowed to come through, would tantamount to making
the tender terms tailor-made, to suit particular
contractors who have worked in similar projects only in
respect of the Cancer hospitals and, that too, for the
last five years.
It is argued that such change in the basic
tender conditions, at the eleventh hour, ought not to
be permitted.
Learned counsel also submits that in the pre-
bid meeting, in which the petitioner participated, it was
given out that the petitioner was to seek a proper
clarification on certain issues by way of making a
representation. Such representation has been filed on
June 7, 2023. However, no reply thereto has been
given by the respondent authorities as yet.
Learned Senior Counsel appearing for the
Union of India submits, by placing reliance on
N.G.Projects Limited Vs. Vinod Kumar Jain and
others, reported at 2022 SCC OnLine SC 336, that the
essence of the law laid down in the judgment
considered therein is the exercise of restraint and
caution; the need for overwhelming public interest to
justify judicial intervention in matters of contract
involving the State instrumentalities; the courts, it was
held, should give way to the opinion of the experts
unless the decision is totally arbitrary or unreasonable.
Further, it is argued that the Tender Issuing Authorities
are the best judge as to how the documents are to be
interpreted. If two interpretations are possible, then
the interpretation of the author must be accepted. The
courts will only interfere to prevent arbitrariness,
irrationality, bias, mala fides or perversity.
Learned counsel appearing for the Tender
Issuing Authority contends that the nature of diet to be
provided to Cancer patients, who are exclusively
treated in Cancer hospitals, has certain distinctions
from other ordinary patients. As such, the stress on
previous work experience of supplying cooked diet to
Cancer hospitals exclusively, which is one of the
criteria in the corrigendum, is justified, since directly
connected with the purpose of the tender.
Insofar as the stipulation of five financial
years' previous experience is concerned, it is
submitted that the same falls within the discretionary
domain of the Tender Issuing Authorities.
Upon hearing learned counsel, it is seen that
the petitioner has relied on a co-ordinate Bench
judgment delivered on December 15, 2022 in WPA
27778 of 2022 (M/s. Rupa Enterprises Vs. The State
of West Bengal and others), wherein a similar clause
pertaining to previous experience regarding ESI
Hospitals was set aside by the learned Single Judge
on the ground of arbitrariness.
However, as rightly pointed out by learned
counsel for the respondents, there are specific
distinctive features between the said case and the
present one. Although, in the said judgment, the court
considered a clause pertaining to supply of cooked
diet for indoor patients at the ESI Hospital, Baltikuri,
Howrah, and the clause set aside also pertained to
prior experience of supplying such food to ESI
Hospitals, the yardstick for setting aside the clause, as
stipulated in the said judgment, was different.
The learned Single Judge held that the purpose
of floating a tender, particularly by Government
entities, is to ensure transparency.
In the said case, the court specified that it did
not intend to change any of the terms and conditions
of the tender-in-question and the scrutiny was limited
to the act of restricting the competition only to those
who have served ESI hospitals.
The key expression in the said judgment was
that the condition was found to be arbitrary "by reason
of lacking a discernible nexus between the
requirement and the scope of the tender".
Taking the said judgment on its intrinsic value,
the impugned criterion in the said tender was that the
participant in the tender process had to have served
cooked diet in ESI hospitals only. However, the
expression "ESI" merely pertains to a particular class
of employees, to whom the hospital facilities are
available as perquisites of their employment. The said
expression, however, does not have any connection
with the particular disease sought to be treated in the
hospitals or the particular type of patients vis-à-vis
their ailments.
However, in the present case, "Cancer" is the
name of a particular disease, which is exclusively
treated in the hospital-in-question, for which the
impugned tender was floated. Thus, an intelligible
criterion for choosing candidates for food supply can
very well be previous expertise and/or experience in
supply of cooked diet specifically to Cancer patients in
Cancer hospitals.
The particular nutrition to be provided to Cancer
patients, who exclusively are inmates of the hospital
for which the tender is floated, has a direct nexus with
the previous work experience of the supplier in similar
spheres of work. A general experience in working in
other hospitals, treating all diseases, may be on a
quite different footing than the food supplied
specifically to Cancer patients exclusively treated in
Cancer hospitals. As such, it cannot be said that there
was no discernible nexus between the requirement
and scope of the tender in the instant case.
Since the said ground was the determinant in
the previous judgment for holding the ESI restriction to
be arbitrary, in the absence of any such arbitrariness
in the present case, it cannot be said that the clause-
in-question is vitiated.
Insofar as the number of previous years of
experience is concerned, even in the said cited
judgment, the learned Single Judge affirmed a 5-year
experience clause in the tender. That apart, even
independently of such judgement, the time for which
previous experience, as sought by the employer, is
exclusively within the domain of discretion and
expertise of the Tender Issuing Authority and its own
experts.
It is entirely beyond the expertise of the court of
law to decide on such issue at all. Hence, inasmuch
as the present impugned corrigendum is concerned,
the primacy of the Tender Issuing Authority regarding
the type of candidates expected by the employer for
participation in the tender process to supply cooked
diet to a Cancer hospital has to be respected.
Hence, the challenge to the corrigendum fails
on both the above scores.
As far as the allegation that the corrigendum
has been floated in the eleventh hour is concerned,
the same also does not hold water, since sufficient
participation time was available to the participants,
including the petitioner, in the tender process, even
after the publication of the corrigendum. In any event,
since the petitioner submits that it may not be
considered eligible in view of not having work
experience for five years in a Cancer hospital, the said
determinant is not relevant in the present context.
However, in so far as the qualifications of the
petitioner are concerned, this Court cannot enter into a
conclusive finding as regards the same, since it may
also be that the petitioner has had the requisite
experience as sought in the corrigendum itself as well.
Be that as it may, in view of the above
observations, the challenge to the corrigendum fails.
In so far as the non-consideration of the
representation of the petitioner is concerned, the same
has also come too late in the day, since the specific
stipulation in the Notice Inviting Tender was that all
doubts have to be creased out in the pre-bid meeting.
Having not done so, at the behest of whoever, the
petitioner cannot be permitted to do so now, thereby
having an edge over the other competitors in that
regard. Hence, adhering to the tender conditions, the
issue raised in the said representation cannot be
reopened at this juncture.
However, since learned counsel for the
petitioner submits that the petitioner, in the case of
failure in the writ petition, be given sufficient time to
participate in the tender process, if otherwise eligible,
the last date for submitting the bids is deemed to be
extended till July 10, 2023.
The respondent authorities shall notify such
altered last date of bid submission in their official
website by tomorrow.
However, in view of the above observations,
the challenge in the writ petition fails.
Accordingly, WPA No. 15162 of 2023 is
dismissed on contest in the light of the direction given
above to the respondent authorities.
There will be no order as to costs.
Urgent photostat certified copies of this order, if
applied for, be made available to the parties upon
compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)
