HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION Nos. 1075, 1264, 1265, 1266 and 1646 of 2014 Date: 22.8.2014 WP No. 1075 of 2014 Between :
Rainbow Security Services Plot No.4, E.S. Yadav Residency Chandra Nagar, Chintal Hyderabad … Petitioner and The Govt of A P Rep by Its Principal Secretary, Medical Health & Family Welfar Dept Secretariat, Hyderabad and others … Respondents The Court made the following:
HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION Nos. 1075, 1264, 1265, 1266 and 1646 of 2014 COMMON ORDER:
In these writ petitions, petitioners are the agencies which provide security services. Petitioners challenge clause 11 of Section I and 2.1 of Section 2 of tender notification dated 4.10.2013. By the above tender notification issued by the Andhra Pradesh Medical Service and Infrastructure Development Corporation (for short APMSIDC), tender bids are called for providing sanitation and security services for all teaching hospitals, medical colleges, dental hospitals and colleges, RIMS, District hospitals, Area hospitals and IPMs in state of A.P. ( combined state). The notification excludes security agencies for participation in the tender process. Only agencies having sanitation services are made eligible.
2. Heard Sri Raja Shekar and Sri A Jagan, learned counsel appearing for petitioners, learned Government Pleader for Medical and Health and Sri C.Appaiah Sharma learned counsel for APMSIDC.
3. Sri P Raja Shekar appearing for Sri V.B. Subrahmanyam learned counsel for petitioners submits that clauses incorporated in the tender notification completely exclude the petitioners who provide only security services, whereas the institutions for which the tenders are called also require security services and the sanitation and security are mutually exclusive and combining them and calling for common tender notification amounts to illegal exercise of power and authority by the State.
4. Learned counsel submits that various conditions incorporated in the eligibility criteria in Section II of the tender notification completely weigh in favour of sanitary service agencies and completely excluded the security service agencies from participation in the tender process. Though, it is a common service requiring sanitation and security, complete priority is given to sanitation service agencies and they were also given flexibility to tie up with security service agency for the purpose of providing security service, in case they do not have the security service provision by fulfilling the conditions mentioned therein. Learned counsel specifically refers to provisions incorporated in clauses 2.1.2, 2.1.3, 2.1.4, 2.1.9, 2.1.10 and Note 1 appended therein. According to learned counsel, a reading of these clauses would show the bias in favour of sanitation service agencies and against security service agencies.
5. Learned counsel further submits that having realized that various illegal activities are going on in hospitals, the matter was entrusted to Centre for Innovations in Public Services, an autonomous organization funded by Government of India (for short referred to as Centre for Innovations) with a request to look into various services provided in medical institutions in the Government sector and to submit a report. The organization conducted detailed study and submitted its report. The report high-lighted several deficiencies in providing services in the institutions of the Government in medical sector and has given various suggestions for improving the services. Among the suggestions made include to integrate the sanitation and security services for better functioning. Learned counsel submits that the said suggestion was only for the purpose of integration but it does not mean that a combined agency should provide the services and there was absolutely no need for excluding the security service agencies from participating in the tender process. Learned counsel therefore submits that actions of the respondents excluding security service agencies completely from participating in the tender process amounts to offending the mandate of Article 14 of the Constitution of India and also deprives the petitioner service agencies from participating in government tenders and curtails the right to do business with the Government.
6. Sri A Jagan, learned counsel for petitioners in W.P. No. 1646 of 2014 submits that security service agencies are formed by unemployed youth with a fond hope of providing security service and earning. These agencies have been providing security services to institutions in public health system and on account of sudden change of policy by complete exclusion of the security service agencies from participating in the tenders to provide sanitary and security services, they are deprived of their right to eke out a living and State could not have taken such a decision offending the right of the petitioners. Learned counsel further submits that clauses 2.1.4, 2.1.10 and Notes 1 and 2 of Section II of tender document are deliberately incorporated only to favour the sanitation service agencies. Even other conditions are heavily loaded in favour of sanitary service agencies and against security service agencies, when the health sector requires both sanitation and security services. The conditions completely weighing in favour of the sanitation services, amounts to conferring favouritism in arbitrary exercise of power.
7. Having noticed that illegal activities are going on in hospitals, colleges and other institutions providing health services, the Government entrusted the matter to Centre for Innovations to look into the sanitation and security services provided in those institutions. The Centre for Innovations has conducted detailed study and made its recommendations. The Centre for Innovations has found several deficiencies in the present system, particularly lack of coordination in sanitation and security agencies in hospitals, which resulted in several unwanted incidents occurring in those hospitals; it was also noticed that there were theft of new born babies; no control on attendants in hospitals leading to unhygienic conditions; there was no proper security plan, evacuation/ emergency action plan; hospitals did not have 24 hours security and CCTV coverage; appropriate security personnel are not available at entry and exit points of the hospitals and colleges and no security for the equipment and material in the hospitals.
8. The Centre for Innovations has suggested improvement in sanitation and security services. Among various suggestions made, the principal suggestion was to integrate sanitation and security services for better functioning of the system and identify a common agency. It also specifically suggested against sub-letting of services. The recommendations of the Committee were accepted and Government issued orders in G.O.Ms.No. 99 Health, Medical and Family Welfare (M2) Department were issued on 5.5.2010. In the process of implementing the recommendations, Government has also decided to entrust the exercise to identify the agencies for outsourcing to Andhra Pradesh Health and Medical Housing and Infrastructure Development Corporation, Hyderabad and selections were directed to be made by a committee constituted for the purpose for providing and supplying the services under the specified terms of contract. In accordance there with, the impugned tender notification was issued.
Relevant clauses in the tender notification, which petitioners assail in these writ petitions, read as under:
SECTION I:
Clause 11: QUALIFICATION REQUIREMENTS: The tenderer shall furnish the following particulars in the formats enclosed, supported by documentary evidence as specified in the formats.
Check slip to accompany the tender.
Attested copies of documents relating to the registration of the firm, partnership deed, articles of association, audited financial status in support of turnover of Rs.1.00 crores in providing sanitation services, commercial tax registration, permanent account number with latest IT returns submitted and proof of receipt etc.
1. The bidder should furnish a copy of valid registration with Commercial Tax Department.
2. The bidder should furnish copy of permanent account number (PAN) and latest income tax returns submitted along with proof of receipt.
3. The bidder should submit the particulars in the format specified in the tender schedule along with necessary certificates.
4. Non refundable processing fee of Rs.5,625/- to be paid in favour of Managing Director, APMSIDC, Hyderabad
5. EMD in the shape of bank guarantee in the standard format or DD for Rs.2,00,000/- issued by any nationalized bank/scheduled bank in favour Managing Director, APMSIDC, Hyderabad to be valid for 6 months from the date of NIT.
6. The tenderer is subjected to be black listed and the EMD forfeited if he is found to have misled or furnished false information in the forms/statements/ certificates submitted in proof of qualification requirements or record of performance.
SECTION II
2.1.2 The bidder must be an established, reputed and reliable service provider in the field of sanitation services and should have continuous of experience during the last three years i.e., 2010-11 to 2012-13
2.1.3 The bidder must have handled one contract covering at least 1,00,000 sq ft (one lakh square feet) towards sanitation services in India (in any one year during the last three years i.e., 2010-11 to 2012-13), with facilities ranging from IT Parks, Hospitals, Institutional buildings (Govt or private), Shopping malls and residential buildings. The bidder should attach the copies of contracts handled by them in the past and at present indicating the deliverables and scope of service being provided, with the authorization of the concerned client. The detailed address of the client, phone number, email ID, etc to be mentioned by the bidder.
2.1.4 The bidder should have had a turnover of Rs.1 crores during any one financial year between 2010-11 to 2012 -13, in providing sanitation services, as supported by audited financial statements.
2.1.9 The bidder should have provided at least 50 persons in a single contract for providing security services in a Government organization/PSUs/Universities, air ports, multiplexes, IT Parks, Hospitals, Institutional buildings (Govt or private), shopping malls and residential buildings etc., with any one year during the last three years i.e., 2010-11 to 2012-13 with good performance and shall enclose the performance certificate issued by the concerned authority. The bidder should submit the EPF, ESI and service tax challans in support of the above experience. The bidder should have continuous of experience during the last three years i.e., 2010-11 to 2012-13.
2.1.10 Agency should have obtained a license from the Controlling Authority in the state in accordance with Private Security Regulation Act,2005 for carrying on the business of private security agency.
NOTE 1:
a) if the sanitation agency does not posses the requisite eligibility criteria in security services, as per clause 2.1.9, 2.1.10 the agency can obtain willingness letter from the eligible security agencies to provide the above services along with sanitation agency for eligibility.
b) The sanitation agency should furnish valid experience certificate and valid license as per the above clauses from the security agency.
9. The above clauses would clearly show that primary importance is given to sanitation services and person/agency which fulfill the conditions mentioned in the above clauses was alone made eligible to participate in tender process. Agency which provides sanitation service is also expected to have security agency service licence by fulfilling the norms as mentioned in Clauses 2.1.9 and 2.1.10. However, if for any reason the sanitation agency does not have the security service licence, it can also have a tie up with any other security service agency. Vice versa is not provided.
10. The relevancy of conditions prescribed as eligibility criteria to participate in the tender process can be discerned from the fact that for institutions in health sector sanitation is primary concern. Unhygienic conditions apparently make negative impact on the institutions. It directly impacts heath care system. Maintenance of sanitation require lot of investment for providing various facilities and therefore the bidder was expected to have a turnover of Rs.1 crore and experience as stated above. Insofar as security services are concerned except providing trained man- power, they do not require to make available any other facilities for the purpose of providing security. Security service is one of regulating entry into institutions, more particularly into hospitals so that service to patients is not hampered. Thus, no financial criteria is prescribed for security service. Further more, the emphasis is on sanitation in the health sector and therefore, the requirement of selecting a qualified agency for providing sanitation service is highlighted.
11. The decision of the Government of A P (Combined) opting to a combined sanitation and security service is a policy decision on empirical study of the deficiencies in the health sector and requirements to improve the service. There is no serious challenge to the policy decision on the parameters for judicial interference in these writ petitions. The only grievance of the petitioners is that excluding the security service agencies from participating in the tender process offend their right to participate in tenders and therefore violative of Article 14 of the Constitution. In matters of this nature, where sanitation and security in the health sector are required to be provided, it is for the appropriate Government to prescribe the eligibility criteria and select appropriate agency and Courts cannot interfere. Merely because the petitioners are security service agencies, it cannot be said that as a matter of right, they should be given opportunity to provide security service irrespective of the policy of the State to integrate the services and to assign primacy to sanitation. More so, such a decision was taken based on empirical study and recommendations made by an independent agency and in the background of noticing serious deficiencies in earlier system. Admittedly petitioners do not have expertise in sanitation services and not qualified to fulfill the conditions stipulated therein. The request of the petitioners to allow them to participate in the tender process would only amount to nullifying the policy of the State to integrate services it envisaged. In exercise of power of judicial review Court cannot interfere in policy choices of the State and what system is better suited for Government organizations cannot be gone into. It would amount to Court prescribing a particular method to perform the services it require. It is ultimately for the employer to choose proper agency for providing various services required and once agency is selected and services are entrusted, the relationship is one of contractual. No case is made out warranting interference of this Court in exercise of power of judicial review.
For the foregoing reasons, the writ petition fails and accordingly the same is dismissed. Sequel to the same, miscellaneous petitions, if any stand dismissed.
P NAVEEN RAO,J DATE:22.8.2014 TVK HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION Nos. 1075, 1264, 1265, 1266 and 1646 of 2014 Date: 22.8.2014