HIGH COURT OF ORISSA: CUTTACK In the matter of applications under Articles 226 and 227 of the Constitution of India. -------In W.P.(C) No.29982 of 2011 Sri Rabinarayan Routray, S/o. Late Kalu Charan Routray, Vill : Shanti Nagar, Goilundi, P.O. Berhampur-4, Dist : Ganjam In W.P.(C) No.27186 of 2011 M/s. Mars Developers & Suppliers, Head Office at Shanti Nagar, P.O. & P.S. Berhampur, Dist : Ganjam, represented through its Proprietor, Sri Rabinarayan Routray … Petitioners … Opposite Parties -VersusState of Orissa and others For Petitioners (for 1st writ petition) : M/s. Dr. G. Tripathy, A.K. Swain, B. Jali & S.K. Barik (for 2nd writ petition) : M/s. Sanjib Swain, S. Ch. Panda & B.R. Rath For Opp. Parties : Mr. R.K. Mohapatra, Government Advocate M/s. U.K. Samal, S.P. Patra, D. Sahoo & S.N. Naik (for O.P. No.4) ---------P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment:15.03.2012 2 B.N. Mahapatra, J.The petitioner in W.P.(C) No.29982 of 2011 is the proprietor of M/s. Mars Developers & Suppliers, who is the petitioner in W.P.(C) No.27186 of 2011. These two writ petitions have been filed with a prayer for quashing the letter dated 04.11.2011 (Annexure-1) issued by the Dean and Principal-cum-Superintendent, S.C.B. Medical College and Hospital, Cuttack by which the said authority has directed M/s. Mars Developers and Suppliers (petitioner in W.P.(C) No.27186 of 2011) for discontinuance of the work of supplying the diet materials w.e.f., 20.11.2011 evening since its term has expired as per decision of the Diet Purchase Sub-Committee. The petitioner has been further directed to hand over all the utensils and articles of the kitchen to S. Moharathi, Dietician of the Hospital in question. The petitioner also challenges the selection of M/s. Maa Ramachandi Supplier for supplying diet articles to SCB Medical College. Further prayer of the petitioner is for issuance of a direction to opposite party No.3-Superintendent of SCB Medical College & Hospital, Cuttack to go for re-tender to supply diet articles to the indoor patient of the hospital in question.
2. Petitioner’s case in a nutshell is that he is the proprietor of M/ s. Mars Developers and Suppliers (petitioner in W.P.(C) No.27186 of 2011) and has been supplying diet to the indoor patients of SCB Medical College and Hospital, Cuttack since 15.08.2009. Opposite party No.3 invited tender from the eligible registered diet preparation and catering firms to prepare and distribute therapeutic and non-therapeutic diet to the indoor patients. Pursuant to the said tender, different bidders participated in the 3 bid and submitted their tender papers. Opposite party No.4 is not selected by the Diet Purchase Sub-Committee for supply of diet articles to the indoor patients.
3. Dr. G. Tripathy, learned Senior Advocate appearing on behalf of the petitioner submitted that the selection of opposite partyNo.4 for supply of diet articles to the indoor patients of SCB Medical College & Hospital, Cuttack by the Diet Purchase Sub-Committee is illegal, improper and in violation of the terms and conditions of the tender eligibility criteria. Condition at Serial No.2 (C) is that the tenderers should not have any criminal background and he shall have to produce an up-to-date certificate from the Superintendent of Police. But surprisingly opposite party No.4 has got the tender for supply of cooked food and dry food to the hospital in question, though he has criminal background. It is further submitted that opposite party No.4 is involved in G.R. Case No.1220/2010 under Sections 341, 325, 326, 327, 307/34, I.P.C. read with Section 27 of the Arms Act and the same is pending before the learned S.D.J.M., Berhampur. Thus, the work has been awarded to him in contravention of condition No.2(C). Usually, an amount of Rs.50,000/- is required to be deposited towards Earnest Money Deposit (EMD), but no such term is there in the terms and conditions stipulated in the tender of SCB Medical College & Hospital. In the previous year, i.e., 2010 at Sl.No.6 of the terms and conditions for supply of diet articles to the indoor patients of SCB Medical College & Hospital, there was categorical requirement of payment of EMD of Rs.10,000/-. As per Serial No.4 of the terms and conditions, if any bidder is blacklisted he shall be disqualified from participating in the tender 4 process. Further, opposite party No.4 who has been selected is doing service as an NMR since 1992 in the establishment of Commissioner of Municipal Corporation, Berhampur and his name finds place at Serial No.52. Therefore, he is disqualified from participating in the tender process. Opposite party no.4 has also submitted another tender in the name of another person i.e. Bishnu Charan Nayak, who is running M/s. Utkal Suppliers in the name of his wife, who is a BPL Card Holder. Concluding argument, Dr. Tripathy prays for quashing of Annexure-1 on the ground that the selection of opposite party No.4 for supply of diet articles to the indoor patients of SCB Medical College & Hospital is illegal and arbitrary.
4. Mr. R.K. Mohapatra, learned Government Advocate appearing on behalf of opposite party Nos.2 and 3 submitted that the present writ petition is not maintainable as the petitioner has already filed W.P.(C) No.27186 of 2011 relating to the same subject. But the certificate given in the cause title that the matter out of which this writ petition arises was never before this Court is incorrect. In fact, the earlier writ petition is also pending and a counter affidavit has been filed therein. Therefore, the writ petition is liable to be dismissed as the petitioner has suppressed these facts. It is further submitted that law is well settled that a successive writ petition claiming same relief by the same party is not maintainable. In the instant case, interim order has been obtained on 18.11.2011 by the petitioner suppressing the interim order dated 10.10.2011 passed in the earlier writ petition. Before expiry of the term, fresh tender was floated as per the Government guidelines observing all formalities. The petitioner, M/ 5 s. Mars Developers and Suppliers, has also participated in the tender. This Court vide order dated 10.10.2011 passed in W.P.(C) No.27186 of 2011 directed the petitioner to hand over his tender paper to the Superintendent, SCB Medical College & Hospital on or before the stipulated date and time mentioned in the tender notice. This Court observed that acceptance of tender of any of the bidders shall be subject to result of the writ petition. Pursuant to the order of this Court, the petitioner submitted his tender paper to the Superintendent, SCB Medical College & Hospital and after receipt of the tender from all the tenderers, on 01.11.2011 the Diet Purchase Sub-Committee convened a meeting under the Chairmanship of the Collector-cum-District Magistrate, Cuttack in presence of Mayor, CMC and MLA, Cuttack along with other officials. As per the Government guidelines, the bills were to be evaluated on the cost and quality basis, i.e., the cost quoted by the bidder for each category of diet to be supplied to the patients. After scrutiny, since M/s. Maa Ramchandi Trader is found to be the L1, the Diet Purchase Sub-Committee selected M/s. Maa Ramachandi Traders, who satisfied all the criteria for selection of the tenderer. A complaint has been received from the Hon’ble MLA, Cuttack Sadar against M/s. Mars Developers Suppliers, the present petitioner, alleging supply of bad quality diet articles. The Government guideline does not provide any clause like Clause 2(C) regarding criminal background. The petitioner has enclosed the terms and conditions of MKCG Medical College & Hospital, Berhampur, which is not applicable to the SCB Medical College & Hospital. The petitioner having participated in the tender process has no legal right to challenge the same merely because he has not been selected. As per the 6 guideline prescribed by the Government, the EMD is required to be deposited as security deposit only from the selected tenderer and not from all the bidders. No such report regarding black-listing of opposite party No.4 has been received.
5. On the rival contentions advanced by the parties, the questions that fall for consideration by this Court are as follows:(i) Whether selection of opposite party no.4, who has criminal background, is valid?. (ii) Whether Annexure-1 by which the petitioner has been asked to discontinue supply of food to the indoor patients of SCB Medical College & Hospital and to handover the charges to S. Moharathi, Dietician of the Hospital in question is liable to be quashed?. (iii) Whether in the facts and circumstances of the case, direction should be given to go for re-tender for supply of diet articles to the indoor patients of SCB Medical College & Hospital?. (iv) 6. What order?. The connected writ petition bearing W.P.(C) No.27186 of 2011 has been filed by M/s. Mars Developers and Suppliers, which is a proprietorship concern, with a prayer for quashing advertisement dated 23.09.2011,where tenders have been invited for supply of diet articles. In the present writ petition the relief claimed are not identical.
7. Question No.(i) is with regard to validity of selection of opposite party No.4. Undisputedly, specific allegation of the petitioner is that opposite party no.4 has criminal background and he is involved in G.R. 7 Case No.1220/2010 under Sections 341, 325, 326, 327, 307/34 I.P.C. read with Section 27 of the Arms Act, which are pending before the learned S.D.J.M., Berhampur. This assertion of the petitioner has not been denied by the opposite parties. Further allegation of the petitioner is that opposite party No.4 is serving as an NMR since 1992 and doing job in the establishment of the Commissioner of Municipal Corporation, Berhampur and his name finds place at Serial No.52, which has also not been denied by the opposite parties. In view of such factual background, selection of opposite party No.4 to supply diet articles to SCB Medical College & Hospital is not valid even though he stood L-I in the tender process. Accordingly, award of tender in favour of opposite party No.4 is quashed.
8. Question No.(ii) is with regard to validity of Annexure-1. It is not in dispute that the petitioner’s term for supply of food articles to the SCB Medical College & Hospital has expired on 30.09.2011. After expiry of the term of contract, the petitioner has no legal right to supply the diet/food articles to the hospital in question. Therefore, opposite party No.3 is justified in issuing Annexure-1 and there is no reason whatsoever to quash Annexure-1.
9. Supply of diet articles to the patients of the hospital in question is an essential and important requirement for treatment of the patients. The term of contract with the petitioner having expired and selection of opposite party No.4 being found invalid, opposite party No.2the Diet Purchase Sub-Committee is hereby directed to award the contract in favour of L-2 and in absence of L-2, the contract may be awarded to L-3, if they agree to supply the diet articles at the rate quoted by opposite party 8 No.4. Otherwise, opposite parties-authorities are at liberty to go for retender. Until a decision is taken in this regard, the present supplier shall continue to supply diet articles to SCB Medical College and Hospital, Cuttack.
10. With the aforesaid observations and directions, both the writ petitions are allowed to the extent indicated above. ………………………….. B.N. Mahapatra,J V.Gopala Gowda, CJ I agree. …………………………… Chief Justice Orissa High Court Date 15th March, 2012/ssd/ss/skj