Rajasthan High Court

M/S Siemens Healthcare Private ... vs State Of Rajasthan on 16 November, 2021

Bench: Inderjeet Singh

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

          S.B. Civil Misc. Stay Application No.7451/2021

                                          In

                S.B. Civil Writ Petition No. 7775/2021

M/s Siemens Healthcare Private Limited, Having Its Office At Unit
No. 9A, 9Th Floor, North Tower, Godrej One, Pirojsha Nagar,
Eastern Express Highway, Vikhroli East, Mumbai 400079 Through
Its Authorized Signatory Mr. Ram Ratan Upadhyay.
                                                                       ----Petitioner
                                        Versus
1.     State Of Rajasthan, Through Its Secretary, Medical
       Education Department, Government Of Rajasthan, Main
       Building, Secretariat, Jaipur 302005, Rajasthan.
2.     Tender Inviting Authority, Through The Office Of The
       Principal And Controller Of Sms Hospital And Medical
       College Jln Marg, Jaipur 302004 Rajasthan.
3.     M/s Wipro Ge Healthcare Pvt. Ltd., Having Its Office At
       5Th Floor, Building No. 7A, Dlf Cyber City, Dlf Phase-Iii,
       Sector    25     A,       Gurgaon       122002,            Haryana   Through
       Managing Director.
4.     M/s Erbis Engineering Co. Ltd., Having Its Office At 2E/12,
       4Th Floor Jhandewalan Ext, New Delhi 110055, Through
       Executive Director.
                                                                    ----Respondents

For Petitioner(s) : Mr. Virendra Lodha Sr. Adv. with Mr. Rachit sharma Mr. Abhishek Mehta Mr. Jai Lodha For Respondent(s) : Mr. Sunil Nath Mr. Akash Shrivastava Mr. Shivangshu Naval Mr. Harshal Tholia Ms. Sejal Sharma

(2 of 6) [C Stay-7451/2021]

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

16/11/2021

Heard on the application filed on behalf of the respondents

for vacating the interim order dated 29.07.2021.

Brief facts of the case are that the Principal, SMS Medical

College, Jaipur issued a Bid Notice dated 4 th November, 2020 for

supply of Turnkey Project of DSA Machine (Digital Substraction

Angiography) for using in Neurosurgery Department of Medical

College, Jaipur. The tender was opened for public on 7 th November,

2020 and last date of the submission was 26 th November, 2020.

The date of submission of bid was subsequently extended to 3 rd

December, 2020. Three bidders namely M/s. Siemens Healthcare

Private Limited i.e. petitioner, M/s. Wipro GE Healthcare Private

Limited i.e. respondent No.3 and M/s. Erbis Engineering Co. Ltd.

i.e. respondent No.4 participated in the bid. All the bidders were

declared as technically qualified and the decision was

communicated to three bidders before the procuring entity.

Thereafter, the final bids were opened on 26.12.2020 where in the

respondent No.3 was found L-1 and the letter of award was also

issued in favour of the respondent No.3 by the procuring entity on

12.01.2021. Thereafter the petitioner filed the First Appeal before

the First Appellate Authority under the Rajasthan Transparency in

Public Procurement Act, 2012 (hereinafter referred to as "the Act,

2012"). The First Appellate Authority decided the appeal on

24.02.2021 and being aggrieved by the decision of the First

Appellate Authority, the petitioner filed second appeal on

01.03.2021, in which the arguments were finally heard on 31 st

March, 2021 and thereafter the Second Appellate Authority

(3 of 6) [C Stay-7451/2021]

decided the Seond Appeal on 22.06.2021. Hence, the present writ

petition has been filed by the petitioner.

This Court on 29th July, 2021 passed the interim order and

thereafter the respondents filed the applications for vacation of

interim order on various grounds including that the machine is to

be installed for treament of patients in the public interest at SMS

Medical College, Jaipur, which is the largest Medical College in the

State of Rajasthan.

Counsels appearing on behalf of the respondents submitted

that after the techical bid was opened and when the appeal was

pending, the First Appellate Authority gave direction to the

Technical Expert Committee to re-examine the bid submitted by

the parties and the respondent No.3 was found eligible in all

respects. Counsels further submitted that the Second Appellate

Authority in the interest of public at large also constituted a

Technical Expert Committee, which gave finding in favour of the

respondent No.3, who was declared as L-1 by the procuring entity.

Counsels further submitted that after perusing the record and the

order-sheets, the Second Appellate Authority heard the arguments

on 31st March, 2021 and on the same day, the Second Appellate

Authority constituted the Independent Expert Committee of three

reputated Doctors of various universities. Counsels further

submitted that in the interest of public at large and looking to the

suffering of patients, as the SMS, Hospital, Jaipur is treating the

patients not only of the State of Rajasthan but also of the

neighbouring States like Punjab, Haryana and Uttar Pradesh and

prayed for vacating the interim order passed by this Court so that

the relief can be granted to the large number of suffering patients.

(4 of 6) [C Stay-7451/2021]

In support of the contentions, counsels relied upon the

judgments passed by the Hon'ble Supreme Court in the matter of

UFLEX LTD. Vs. Government of Tamil Nadu & Ors. (Civil

Appeal Nos.4862-4863 of 2021) decided on 17 th

September, 2021 and further relied upon the judgment passed

by the Hon'ble Supreme Court in the matter of Rajasthan State

Warehousing Corporation Vs. Star Agriwarehousing and

Collateral Management Limited & Ors. (Civil Appeal

Nos.2657-2662 of 2020) decided on 24th June, 2020 and

further relied upon the judgment passed by this Court in the

matter of Johnson Johnson Private Limited Vs. State of

Rajasthan & Ors. (S.B. Civil Writs No.8281/2017 decided

on 17.05.2018).

Learned Senior Counsel appearing on behalf of the

petitioners submitted that the Second Appellate Authority has

constituted the Independent Expert Committee after final hearing

of the appeal and the judgment was reserved on 31 st March, 2021

and the same was pronounced on 22nd June, 2021, though

considering the report of the Independent Expert Committee but

without providing any opportunity of hearing to the petitioner.

Counsel further submits that the Second Appellate Authority has

violated the principles of natural justice and as per the explanation

submitted by the respondent No.3, the Second Technical Expert

Committee has considered the documents submitted by the

respondent No.3 whereas no such opportunity was given to the

petitioner and the Technical Expert Committee report is also

undated.

In support of the contentions, counsel relied upon the

judgments passed by the Hon'ble Supreme Court in the matter of

(5 of 6) [C Stay-7451/2021]

Vallabhbhai Chanabhai Ahir & Ors. Vs. Union of India & Ors.

reported in 2019 (15) SCC 2, Union of India & Ors. Vs.

Essel Mining & Industries Ltd. & Anr., reported in 2055 (6)

SCC 675, Ayaaubkhan Noorkhan Pathan Vs. State of

Maharashtra & Ors., reported in 2013 (4) SCC 465,

Dharampal Satyapal Ltd. Vs. Deputy Commissioner of

Central Excise, Gauhati & Ors., reported in 2015 (8) SCC

519 and Ravi Yashwant Bhoir Vs. District Collector, Raigaid

& Ors., reported in 2012 (4) SCC 407.

Heard counsel for the parties and perused the record.

The Hon'ble Supreme Court in the matter of Bharat

Coaking Coal Limited and others Vs. AMR Dev Prabha and

others, reported in (2020) 16 SCC 759 where in Para No. 33 it

has been held as under;

33. Such conscious restraint is also necessary because judicial intervention by itself has effects of time and money, which if unchecked would have problematic ramifications on the State's ability to enter into contracts and trade with private entities. Further, it is not desirable or practicable for courts to review the thousands of contracts entered into by executive authorities every day. Courts also must be cognizant that often-a-times the private interest of a few can clash with public interest of the masses, and hence a requirement to demonstrate effect on 'public interest' has been evolved by this Court."

The stay vacation applications filed on behalf of the

respondents deserves to be allowed for the reasons; firstly, as per

the order-sheets of the Second Appellate Authority the arguments

of both the sides were heard on 31.03.2021 and the judgment

was not reserved on the said date and the Second Appellate

Authority has formed an Independent Expert Committee of highly

(6 of 6) [C Stay-7451/2021]

reputated Doctors to seek an independent opinion in this matter,

secondly, the judgment passed by the First Appellate Authority as

well as the Second Appelalte Authority is based on the opinion of

the Independent Expert Doctors having knowledge with regard to

utility of the Machine in question, thirdly, the work order has