Community Action Through ... vs The State Of Assam And 2 Ors
2021 Latest Caselaw 2273 Gua

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GAHC010145192021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/4683/2021

            COMMUNITY ACTION THROUGH MOTIVATION PROGRAME (CAMP)
            A REGISTERED SOCIETY HAVING ITS OFFICE AT HOUSE NO. 8/668, ANAND
            NAGAR, BADABAG, REWA, MADHYA PRADESH, PIN 486001 AND
            REPRESENTED BY ITS AUTHORIZED SIGNATORY AND STATE
            COORDINATOR SRI ASHIS CHOUDHURY



            VERSUS

            THE STATE OF ASSAM AND 2 ORS.
            REPRESENTED BY THE PRINCIPAL SECY. HEALTH AND FAMILY WELFARE
            DEPTT., DISPUR, GUWAHATI 781006

            2:THE MISSION DIRECTOR

             NATIONAL HEALTH MISSION
             CHRISTIAN BASTI
             GUWAHATI 781005
             ASSAM.

            3:M/S PASHUPATINATH DISTRIBUTORS PVT. LTD.

             THROUGH THE MISSION DIRECTOR
             NATIONAL HEALTH MISSION
             CHRISTIAN BASTI
             GUWAHATI 781005
             ASSAM

Advocate for the Petitioner   : MR. U K NAIR

Advocate for the Respondent : SC, HEALTH

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BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

22/09/2021

Heard Mr. U K Nair, learned Senior counsel assisted by Ms. A Verma and Mr. K P Pathak, learned counsels for the petitioner. Also heard Mr. B Gogoi, learned Standing counsel, Health & Family Welfare Department, Assam as well as National Health Mission, Assam for the respondent Nos. 1 & 2 and Mr. S Dutta, learned counsel for the respondent No. 3/caveator.

Being aggrieved with the action of the respondent NHM, Assam in issuing the award of contract vide No.NHM-24011/8/2018-Referral Transport-NHM/18176 dated 31.08.2021 (Annexure-M), signed by the Mission Director, NHM on 28.08.2021, in favour of the respondent No. 3, petitioner has preferred this writ petition challenging the same.

The respondent NHM on 24.12.2020 issued Notice Inviting Expression of Interest (EOI) for shortlisting of eligible applicants to participate in the RFP (Request For Proposal) process for operation and management of "Free Adarani Pick-Up and Dropped Back Services" to mothers and neonates as part of Janani Sishu Suraksha Karyakram (JSSK) in the State of Assam, where tender should be submitted online in the specified portal of the Government of Assam. Initially, the last date of submission of such EOI was 12.01.2021 up to 02:00 PM and by corrigendum dated 12.01.2021, respondent extended the time limit up to 01:00 PM of 22.01.2021.

Clause 3.2 of the said EOI dated 24.12.2020 provides for Eligibility Criteria and Clause 3.2.1 of the same specifies that the Applicant (or the Firm intending to participate in the EOI process) must be a single entity (consortiums not allowed) registered under appropriate laws in India.

Clause 4 of the said EOI dated 24.12.2020 provides for Evaluation and Shortlisting and Clause 4.1. of the same relates to Preliminary Scrutiny.

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Further, Clauses 4.1.3., 4.1.4. and 4.1.5 of said Clause 4 of the EOI stipulate as follows:-

"4.1.3. Evaluation Committee reserves the right to seek further clarifications, explanation or information on any issue relating to the eligibility till such time the Committee is fully convinced.

4.1.4. NHM shall finalize the list of the Applicants to be empanelled based on the evaluation and decision of the authority on the same shall be final and binding.

4.1.5. Names of the Applicants shortlisted (for RFP process) as per the evaluation of the EOI Application will be hosted on our website on completion of all formalities. No correspondence on the above subject will be entertained."

It is seen from the minutes dated 25.01.2021 (Annexure-D) that five prospective bidders submitted their bids including the petitioner and the respondent No. 3 and their technical bids were opened on 25.01.2021. From the said minutes dated 25.01.2021, it is also seen that the concerned Board Evaluation Committee analyzed and verified the EOI documents submitted by the prospective bidders and the committee found that out of the five bids received, only three bids complied to all the terms and conditions as mentioned in the said EOI and two bids were found unacceptable. The said minutes dated 25.01.2021 discloses that the three acceptable bidders are (i) M/s. Ziqitza Health Care Limited, (ii) M/s. GVK EMRI and (iii) CAMP, the present petitioner and their bids were found Technically Accepted. The said minutes dated 25.01.2021 further reflects that the bids of (a) M/s. Pashupatinath Distributors Pvt. Limited, respondent No. 3 and (b) M/s. Kria Health Care Pvt. Ltd. as "Technically not Accepted". It is stated that the said decision of the Board Evaluation Committee dated 25.01.2021 was uploaded in the website on 11.02.2021.

Though, the EOI submitted by the respondent No. 3 was "Technically not Accepted" by the respondent NHM as per its minutes dated 25.01.2021, but by the impugned communication dated 31.08.2021, the respondent NHM granted the award of contract to the respondent No. 3.

Petitioner contended that the impugned award of contract in favour of respondent No. Page No.# 4/6

3 is in complete violation of the conditions specified at Clauses 4.1.3., 4.1.4. and 4.1.5 of Clause 4 of the said EOI dated 24.12.2020.

Further contention of the petitioner is that the respondent No. 3 submitted its bid document with certificate of experience dated 20.02.2021 (Annexure-J) which shows that it is a consortium and not a single entity as required under Clause 3.2.1 under Clause 3.2- Eligibility Criteria specified in the EOI dated 24.12.2020.

Mr. Nair, learned Senior counsel for the petitioner submitted that the EOI dated 24.12.2020 does not contain any clause empowering the respondent NHM to review any of the conditions specified in the said EOI and the RFP pertaining to the said EOI, more particularly, for a bidder whose bid was found to be Technically not Accepted.

For the aforesaid reasons, petitioner submitted that the impugned award of contract in favour of the respondent No. 3 is bad in law and hence, this writ petition by the petitioner.

Mr. B Gogoi, learned Standing counsel, Health & Family Welfare Department as well as National Health Mission has placed before the Court the relevant records in original regarding the process of awarding of contract pertaining to said EOI dated 24.12.2020 of the respondent NHM.

Mr. Gogoi, learned Standing counsel for the NHM submitted that on 29.01.2021, NHM sent an e-mail to the respondent No. 3 seeking clarification regarding EOI documents submission pertaining to its work experience about which there is a mention in the minutes dated 17.02.2021 of the NHM and on receipt of such clarification dated 15.02.2021 from the respondent No. 3, the respondent NHM in its meeting held on 17.02.2021 decided to issue RFP documents not only to the three technically accepted bidders but also to the respondent No. 3, whose clarification submitted on 15.02.2021 were considered and accepted in that meeting. However, the note sheets of the records placed before the Court, more particularly, from dated 12.01.2021 to 10.02.2021 does not reflect anything about the e-mail of the respondent NHM dated 29.01.2021. Further, the representation of the respondent No. 3 dated 15.02.2021 available with the records placed before the Court by the respondent NHM clearly reflects that the respondent No. 3 did not receive any verbal or written clarification e-

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mail/letter/communication from NHM, Assam, or its representative or from the specific website of the Government or anyone mentioned in the meeting dated 25.01.2021. The said representation of the respondent No. 3 dated 15.02.2021 also did not mention anything about the email of the respondent NHM dated 29.01.2021.

Mr. S Dutta, learned counsel for the respondent No. 3 submitted that as the Work Order has already been issued and he has already set up the call centers, interim order need not be passed at this stage, since the petitioner did not object regarding participation of the said respondent in the RFP with regard to the said EOI dated 24.12.2020.

Mr. Nair, learned Senior counsel for the petitioner relied on the judgment of the Hon'ble Apex Court in the case of Patel Narshi Thakershi and Ors. Vs. Shri Pradyumansinghji Arjunsinghji, reported in 1971(3) SCC 844 and submitted that if the authorities have no power to review its own order, it is obvious that its delegate could not have reviewed its order.

Mr. Nair, learned Senior counsel submits that as the EOI dated 24.12.2020 and the relevant RFP did not contain any clause of review, therefore, the respondent NHM cannot review its decision dated 25.01.2021, wherein the technical bid of the respondent No. 3 was found to be not accepted. As such, he submits that interim order needs to be passed and to stay the impugned award of contract issued to the respondent No. 3 by the respondent NHM by its communication dated 31.08.2021 (Annexure-M).

Issue notice, returnable by 06.10.2021.

As Mr. B Gogoi, learned Standing counsel, Health & Family Welfare Department as well as National Health Mission and Mr. S Dutta, learned counsel have accepted notice on behalf of the respondent Nos. 1 & 2 and 3 respectively, no formal notice need to be issued to those respondents.

Petitioner shall serve requisite extra copies of this writ petition along with the annexures appended thereto to Mr. B Gogoi, learned Standing counsel, Health & Family Welfare Department as well as National Health Mission and Mr. S Dutta, learned counsel by Page No.# 6/6

tomorrow, i.e., 23.09.2021, obtaining necessary acknowledgment from them in that regard.

The respondent Nos. 1, 2 and 3 shall file their individual affidavits in the matter on or before 29.09.2021 and thereafter, the petitioner may file its reply to such affidavits of the respondents on or before 04.10.2021.

Considering the materials on record and the decision of the Hon'ble Apex Court in the case of Patel Narshi Thakershi (supra) and finding the submission of Mr. Nair, learned Senior counsel having force, the impugned Work Order issued under File No. NHM-24011/8/2018- Referral Transport-NHM/18176 dated 31.08.2021 (Annexure-M) by the Mission Director, National Health Mission, Assam is hereby suspended till the returnable date (i.e., 06.10.2021).

List accordingly.

JUDGE

Comparing Assistant