The Superintendent vs M/S Shiv Shanker Human Welfare ...
2021 Latest Caselaw 4046 Tel

  THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                 AND
           THE HON'BLE SRI JUSTICE N. TUKARAMJI


              WRIT APPEAL Nos.323 & 286 of 2021

COMMON JUDGMENT:       (Per the Hon'ble the Chief Justice Satish Chandra Sharma)




     Regard being had to the controversy involved in the

aforesaid cases, they were heard together and are being

decided by a common order.

     The facts of W.A.No.323 of 2021 are reproduced as

under:

     The present writ appeal i.e., W.A.No.323 of 2021 is

arising   out   of   order     dated         22.06.2021             passed         in

W.P.No.19087 of 2020 by the learned Single Judge.

     The facts of the case reveal that respondent No.1 in the

present writ appeal, who was the writ petitioner, came up

before this Court being aggrieved by the action of the

Superintendent, District Head Quarter Hospital, Nirmal, in

awarding contract of supply of diet to patients of Area

hospital, Bhainsa, on various grounds. The facts further

reveal that a notification was issued for awarding contract of

supply of diet to area hospital, Bhainsa, for the period from

01.10.2020 to 30.09.2020. As per the tender notice, the

tender documents were to be submitted from 14.09.2020 to

18.09.2020. The date of opening of the tenders was fixed as

19.09.2000. The time was also fixed at 12.00 noon.

However, for the reasons best known to the authorities, the

date was postponed and the tenders were finally opened on

08.10.2020. Respondent No.1 herein came up before this

Court stating that large number of irregularities have taken

place in awarding the work to respondent No.3/M/s.

Suleman and that the tenders submitted were taken out from

the office for changes in the tender submitted by respondent

No.3. Even respondent No.3 submitted an application

withdrawing itself from the tender process on 14.10.2020.

For the reasons best known to it, another application was

submitted by it to continue the tender process and

favouritism has been shown by allotting the tender to

respondent No.3.

The learned Single Judge has allowed the writ petition

setting aside the award of work and the agreement dated

16.10.2020 executed in favour of respondent No.3. The

learned Single Judge in paragraphs 7 to 12 has held as

under:

"7. Admittedly, the 2nd respondent in his counter has not given the break up of marks that are secured by the petitioner and 3rd respondent. The counter of 2nd respondent is silent on the allegations made by the petitioner with regard to not following tender conditions and not opening the tender in the presence of the participants and not giving any written intimation about postponement of the tender opening date and further no notice for opening date of the tender. The 2nd respondent in his counter though submitted that the letter dated 14.10.2020 of the 3rd respondent seeking to withdraw from the tender process was received by him, but the 2nd respondent has not filed any proof or he has not given any date as to when the 3rd respondent again addressed the letter to the 2nd respondent with regard to cancellation of withdrawal letter and to award contract in terms of the tender notification in his favour. This goes to show that the action of 2nd respondent is bias and he acted in gross violation of the tender

conditions and it gives an impression beyond reasonable doubt to this Court that the 2nd respondent had molafide intention in conferring the contract in favour of 3rd respondent. The 2nd respondent has not stated as to what action has been initiated if the petitioner has not handed over the kitchen and threatened patients, staff and doctors of the hospital. The said allegation is not supported by any evidence.

8. The 3rd respondent in his counter has not denied the letter dated 14.10.2020, seeking to withdraw from the tender process and the counter is silent about the said letter as well as his another letter addressing the 2nd respondent not to treat the withdrawal letter dated 14.10.2020 and confer contract in favour of the 3rd respondent.

9. Both the counters are silent with regard to the issue of not opening the tenders on the scheduled date and not intimating the participants about the postponement and opening the tenders thereafter.

10. It is high time that the Government should take serious note and take stringent action in the matters of this nature since the diet contract is conferred to supply food to the poor patients in Government Hospitals, more so in the present situation, the entire universe is facing Covid-19 pandemic, the patients health cannot be put to jeopardy.

11. The action of Dr.A.Devender Reddy, the deponent working as Superintendent of 2nd respondent hospital being the concerned officer in finalizing the tenders proved to be unjust towards his duty. The seat of Superintendent is more responsible and the deponent Dr. A.Devender Reddy is not expected to perform his duties in the manner in which he has dealt in the present context. The Director of State Medical and Health shall look into the matter and shall cause an enquiry against Mr.A.Devender Reddy, the deponent who has conferred diet contract and take action against the erring officer in the interest of poor patients.

12. Accordingly, the writ petition is allowed, setting the agreement dated 16.10.2020 entered between the 3rd respondent and the Diet Managing Committee, Nirmal for supply of diet to the patients in Area Hospital, Bhainsa. The 1st respondent shall make arrangement for diet supply to patients without any further delay. No order as to costs. As a sequel, the miscellaneous petitions pending, if any, shall stand closed."

This Court, in order to resolve the controversy, by order

dated 16.11.2021 has directed the learned Government

counsel to produce the original record. She has produced the

correspondence which took place in the matter and the

original certificates as well as some of the documents and she

was fair enough in informing this Court that no file is

maintained in the office so far as such tenders are concerned.

She has not produced any file before this Court except the

documents as aforesaid. Undisputedly, the tenders were

required to be opened on 19.09.2020. No reason has been

assigned as to why the date was postponed. Learned counsel,

at this stage, has stated that tenders were opened on

19.09.2020 only. This Court has asked a categoric question

to her to establish from any document that the tenders were

opened on 19.09.2020. She was again fair enough in stating

before this Court that she does not have any such document,

which reflects that the tenders were opened on 19.09.2020.

This conduct of the respondent/State speaks volumes about

the tender process, which has taken place. Not only this,

respondent Nos.1 and 3 in the present writ appeal have

offered the equal rate i.e., Rs.36/-.

However, the stand of the learned counsel for

respondent No.1/writ petitioner is that because of

manipulation in documents and postponing the date,

respondent No.3/M/s. Suleman was assigned more marks

under the technical bid head. In those circumstances, the

learned Single Judge has set aside the agreement dated

16.10.2020.

In the considered opinion of this Court, as the entire

record has not been produced before us in spite of there being

a specific direction, the interest of justice would be sub-

served by directing issuance of a fresh tender inviting

applications afresh in respect of the work in question.

Resultantly, both the writ appeals are allowed. The

respondents are directed to issue a fresh tender positively

within a period of 10 days from today and thereafter, they

shall be free to proceed ahead in accordance with law. It is

needless to mention that hence-forth a proper file shall be

prepared in the matter of allotment of work by the

respondent/State and the respondent/State cannot get away

by saying that they do not prepare files in the matter of

allotment of tenders. Since this Court has already directed

issuance of fresh tender, the adverse remarks against

Dr.A.Devender Reddy are expunged. However, the Collector,

Nirmal District, is directed to monitor the entire exercise right

from the date of issuance of tender till the allotment of work

in respect of the work in question.

Miscellaneous petitions, if any, shall stand closed.

There shall be no order as to costs.

__________________________________ SATISH CHANDRA SHARMA, CJ

______________________________ N. TUKARAMJI, J 01.12.2021 ES