Connected With:
Civil Misc. Writ Petition Nos.--37362 of 2011, 38532 of 2011, 41933 of 2011 and 49875 of 2011.
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Present:
(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice V.K. Mathur) Appearance:
For the Petitioners : Mr. U.N. Sharma, Sr. Advocate, Mr. R.B. Singhal, Sr. Advocate, Mr. Imran Ullah, Mr. Vibhav Anand Singh, & Mr. A.B. Singhal.
For the Respondents : Mr. Zafar Naiyer, Sr. Advocate, Additional Advocate General, Mr. Ravi Shanker Prasad, Additional Chief Standing Counsel, & Mr. Ramanand Pandey, Standing Counsel.
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Amitava Lala, J.-- All the aforesaid writ petitions have been filed by different firms/companies, situated either outside or within the State of Uttar Pradesh, engaged in the manufacture and sale of drugs/ medicines. They want to supply the drugs/medicines to the Government of Uttar Pradesh for the purpose of using the same in the Government hospitals.
For the purpose of better understanding, it is necessary to go first through the prayers made in all the aforesaid writ petitions, therefore, the same are quoted below:
Civil Misc. Writ Petition No. 31847 of 2011:
"i) issue appropriate writ, order or direction the impugned turn over clause as made in the policy dated 16th May 2011 (Annexure-I to the writ petition) and as published in the news paper Times of India dated 16th May 2011 (Annexure-IV to the writ petition) may be declared as ultra virus to the Constitution of India and may be quashed;
ii) issue appropriate writ, order or direction directing the respondent authorities to permit the petitioner companies to participate in the tender as per the policy as applicable in the previous years;
iii) issue any other suitable writ, order or direction which this Hon'ble Court may deems fit and proper in the circumstances of the case; and
iv) award cost of this writ petition to the petitioners."
Civil Misc. Writ Petition No. 37362 of 2011:
"A) Issue a writ, order or direction in the nature of mandamus commanding the respondent authorities to open the financial bid of the petitioner company and award the contract for the items according to the lowest price bid in accordance with law.
B) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent authorities to stay the finalization of award to other bidders who were successful in the tender process.
C) A writ order or direction in the nature of mandamus directing the respondents to decide the representation of the petitioner dated 1.7.2011 i.e. annexure-6 to this writ petition.
D) Any other writ, order or direction, which this Hon'ble Court may deem fit and proper under the circumstances of the present case.
E) Award cost of the petition to be paid to the petitioner."
Civil Misc. Writ Petition No. 38532 of 2011:
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned Minutes of Meeting/ Agenda dated 05.07.2011 so far as it relates to the petitioner in pursuance of the tender notice no. 8F/Q.C.-574 /2026 dated 16.05.2011.
(ii) Issue a writ, order or direction in nature of mandamus directing the respondents to open the financial bid of the petitioner in pursuance of tender notice no. 8F/Q.C.-574 /2026 dated 16.05.2011.
(iii) Issue a writ, order or direction in nature of mandamus directing the respondents to permit the petitioner to compete with other competitors in the financial bid in pursuance of tender notice no. 8F/Q.C.-574 /2026 dated 16.05.2011 in accordance with the competitive rates.
(iv) Issue any other suitable writ order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case.
(v) Award cost of the petition to the petitioner."
Civil Misc. Writ Petition No. 41933 of 2011:
"A) Issue a writ, in the nature of certiorari quashing the impugned minutes of meeting/ Agenda dt. 05.07.2011 (as contained in annexure-4) so far as relates to the petitioner in pursuance of tender notice no. 8F/QC-574/2026 dt. 16.5.2011.
B) Issue a writ order or direction in the nature of mandamus commanding the respondent authorities to open the financial bid of the petitioner company and award the contract for the items according to the lowest price bid in accordance with law.
C) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent authorities to stay the finalization of award to other bidders who were successful in the tender process.
D) Any other writ, order or direction, which this Hon'ble Court may deem fit and proper under the circumstances of the present case.
E) Award cost of the petition to be paid to the petitioner."
Civil Misc. Writ Petition No. 49875 of 2011:
"A) Issue a writ, in the nature of certiorari quashing the impugned order dated 25.07.2011 passed by the respondent no. 1 vide order no. 1732/5-1-11-02 Aaswasan/07 (as contained in annexure-01) to the writ petition.
B) Issue a writ order or direction in the nature of mandamus commanding the respondent authorities to allow the petitioner company to participate on rate contract basis for the supply of medicine.
C) Any other writ, order or direction, which this Hon'ble Court may deem fit and proper under the circumstances of the present case.
D) Award cost of the petition to be paid to the petitioner."
Out of aforesaid five writ petitions, as above, in the first writ petition the petitioners have basically challenged the turnover clause of Drug Purchase Policy-2011 dated 16th May, 2011, wherein an exhaustive interim order was passed by a Division Bench of this Court on 16th June, 2011. By such order enhancement of extent of turnover from Rs. 1 crore to Rs. 25 crores for the firms/companies situated within the State of Uttar Pradesh and from Rs. 1 crore to Rs.100 crores for the firms/ companies situated outside the State of Uttar Pradesh was stayed. The Division Bench held that in the auction to be held on the respective date/s, the eligibility criteria of drug purchase policy of the previous year in respect of turnover will be applied. The State will strictly apply the other conditions of tender and unless the petitioners or any other tenderer meets those conditions, they shall not be allowed to participate. Such interim order was not only accepted by the contesting respondent i.e. State of Uttar Pradesh but a corrigendum dated 17th June, 2011 has also been issued to that extent for giving opportunity to the firms/companies to participate in the tender in terms thereof. Therefore, now no dispute exists with regard to the first writ petition i.e. Civil Misc. Writ Petition No. 31847 of 2011. Hence, no further order is needed to be passed in this writ petition and the same is treated to be disposed of on the basis of the interim order and compliance thereof by the State.
So far as Civil Misc. Writ Petition Nos. 37362 of 2011, 38532 of 2011 and 41933 of 2011 are concerned, the petitioners therein, by virtue of the aforesaid interim order dated 16th June, 2011 and compliance thereof by way of corrigendum dated 17th June, 2011, participated in the tender process. However, when they became unsuccessful in the tender process on account of being disqualified in the technical bid itself, they turned around and filed these three writ petitions challenging the order/s. The grounds of disqualification for the respective petitioners as per the decision of the State dated 05th July, 2011, annexed as Annexure-7 to Writ Petition No. 38532 of 2011, are as follows:
Sl. No. Writ Petition No. Ground of disqualification 1 37362 of 2011 The firm has deposited earnest money to a tune of Rs. 1,90,00,000/- in the form of bank guarantee along with the tender form and has quoted 145 medicines in the tender form for the purpose of supply. As per the item of quoted medicines, the estimated cost of these medicines is about Rs.100 crores, whereas the turnover of the firm in last three years was between Rs. 23 crores to Rs. 31 crores. As per the present drug purchase policy, the minimum turnover capacity of the firm must be two times of the quoted items in any one year within last three years. Therefore, the quoted turnover capacity of the firm is against the new purchase policy.
38532 of 2011 The firm has deposited earnest money to a tune of Rs. 1,15,000/- in the form of bank guarantee along with the tender form and has quoted 23 medicines in the tender form for the purpose of supply. As per the item of quoted medicines, the estimated cost of these medicines is about Rs.20 crores, whereas the turnover of the firm in last three years was between Rs. 1.38 crores to Rs. 1.46 crores. As per the present drug purchase policy, the minimum turnover capacity of the firm must be two times of the quoted items in any one year within last three years. Therefore, the quoted turnover capacity of the firm is against the new purchase policy.
41933 of 2011 As per the rules, turnover and balance-sheet have not been submitted with the tender form, due to which the capacity of the firm could not be assessed.
According to us, preservation of safety and security of public health is an essential part of public duty. On the other hand, the suppliers are interested to do business by their huge supply irrespective of their turnover, which is required to be examined for the purpose of steady supply of drugs/medicines. The respondents have refused to accept their tenders on such ground. Therefore, we can not examine the reason of the reasonableness in the writ petition. We can only confine ourselves to the correctness of the decision-making process but not the decision. Apparently, there is no such irregularity on the part of the authority. Moreover, the petitioners got the opportunity to submit their tenders as per the interim order of the High Court dated 16th June, 2011 passed in the first writ petition, being Civil Misc. Writ Petition No. 31847 of 2011. The interim order has two parts i.e. not to change the eligibility criteria of drug purchase policy of the previous year in respect of the turnover for supply, and the State will strictly comply with other conditions of tender. The State has issued a corrigendum after accepting the first part, thereby giving opportunity to the petitioners to submit their tenders. Therefore, when the petitioners have acted upon on the basis of such order, now they can not be allowed to challenge the other part, which is to be strictly complied with even as per that interim order itself. Moreover, we can not sit in appeal over the non-acceptance of tender of the petitioners. Thus, we do not find any reason to interfere with the decision taken on the part of the State in refusing to entertain the tender of the petitioners of these three writ petitions. Hence, these three writ petitions are dismissed.
So far as last writ petition i.e. Civil Misc. Writ Petition No. 49875 of 2011 is concerned, there are two fold prayers; one is with regard to blacklisting of the petitioner and another is for giving it opportunity to participate on rate contract basis. We are of the view that when a candidate becomes blacklisted, he can not be allowed to participate in the tender process. However, the writ Court in its wisdom limits the area of intervention in connection with blacklisting whether any opportunity of hearing has been given before passing such order or not. Therefore, we are bound by our own order, which is normally passed in such cases and for convenience the same is also quoted hereunder:
"The main contention of the petitioner before this Court is that the order of blacklisting has been passed without any reference to show cause notice and reply thereof and also without affording any opportunity of hearing. According to us, the order of blacklisting having penal consequences, can not be passed without conducting proper enquiry and without affording opportunity of hearing. This Bench has already considered similar controversy in the judgement dated 10th May, 2011 delivered in Civil Misc. Writ Petition No. 3586 of 2011 (M/s. Chauhan Road Lines and another Vs. Union of India and others) with reference to the judgements of this Court reported in 2010(3) AWC 2848 (Allahabad Traders Vs. State of U.P. and others) and 2010 (2) ADJ 292 (DB) (Arvind Kumar Singh Vs. Union of India), and ultimately issued direction upon the authority concerned to complete the further enquiry and pass a final order in this respect. In view of the above, we are of the view that the order impugned can not be held to be sustainable and is hereby quashed with consequential effect.
Accordingly, the writ petition is disposed of at the stage of admission, however, without imposing any cost.
In any event, passing of this order will not prevent the respondents from taking appropriate steps in accordance with law."
Thus, being governed by our own order, as above, we are of the view that so far as blacklisting part is concerned, if no show cause notice has been served upon the petitioner in this petition and opportunity of hearing has not been given to it, the petitioner will be entitled to get the opportunity of hearing. Accordingly, this writ petition is treated to be disposed of only on the score of blacklisting in the similar line, as we have quoted above.
No order is passed as to costs in any of the writ petitions.
(Justice Amitava Lala) I agree.
(Justice V.K. Mathur) Dated: 21st December, 2011.
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Hon'ble Amitava Lala, J.
Hon'ble V.K. Mathur, J.
Under the authority of the Hon'ble Chief Justice additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 02.00 P.M. in the Court upon notice to the parties.
The writ petition is treated to be disposed of, however, without imposing any cost.
Dt./-21.12.2011.
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For judgement and order, see order of the date passed on the separate sheets (seven pages).
Dt./- 21.12.2011.
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