Central Information Commission
Hema Suresh Bhatwadekar vs All India Institute Of Medical Sciences on 30 July, 2021
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No. CIC/AIIMS/A/2019/110318
CIC/AIIMS/A/2019/110319
CIC/AIIMS/A/2019/110321
CIC/AIIMS/A/2019/110322
CIC/AIIMS/A/2019/110323
CIC/AIIMS/A/2019/114079
Smt. Hema Suresh Bhatwadekar ... अपीलकता /Appellant
Through: Sri Himanshu Srivastava
VERSUS/बनाम
PIO, AIIMS, Delhi ... ितवादीगण /Respondent
Through: Dr. Siddharth Satpathy
Date of Hearing : 16.04.2021
Date of Decision-Interim : 16.04.2021
Date of Decision - Final : 30.07.2021
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
Since both the parties are same, the above mentioned cases are clubbed
together for hearing and disposal.
Case RTI Filed CPIO reply First appeal FAO 2nd Appeal
No. on received on
110318 29.10.2018 29.11.2018 25.12.2018 31.12.2018 07.03.2019
110319 29.10.2018 29.11.2018 25.12.2018 31.12.2018 07.03.2019
110321 29.10.2018 29.11.2018 25.12.2018 31.12.2018 07.03.2019
110322 29.10.2018 29.11.2018 25.12.2018 31.12.2018 07.03.2019
110323 29.10.2018 29.11.2018 25.12.2018 31.12.2018 07.03.2019
114079 29.10.2018 29.11.2018 25.12.2018 31.12.2018 27.03.2019
Information soughtand background of the case:
(1) CIC/AIIMS/A/2019/110318 The Appellant filed an RTI application dated 29.10.2018 seeking information on following 04 points:-Page 1 of 10
The PIO/Prof., & Head, Deptt. of Hosp. Admn. vide letter dated 29.11.2018 furnished the reply provided by the Asstt. Stores Officer (H.), AIIMS, relevant extracts whereof is as follows:
"...Information sought by the applicant would disproportionately divert the resources of the organization as per section 7(9) of RTI Act" & iscovered under commercial confidence being third party information and is exempt from disclosure under section 8(l)(d) of the RTI Act. This is to safeguard the commercial interest of the firm's competitive position in the tender. This has been upheld by Hon'ble CIC in its judgment- KS Periyaswami Vs. Ministry of Defence (DGQA) dated 13.09.2006 with regard to their CIC digest (Vol.I) 616 and other similar judgments." However, if you so like, you may come and inspect the desired records on any workingday between 10.00 AM to 5.00 P.M. after fixing up date & time for the same with Asstt. Stores Officer(Hosp.), 1st Floor, AIIMS, New Delhi-29 Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated25.12.2018. The FAA/Medical Superintendent vide order dated 31.12.2018 upheld the reply of the CPIO.
Feeling aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Written submission dated 07.04.2021 has been received from the Respondent reiterating the above facts.
(2) CIC/AIIMS/A/2019/110319 The Appellant filed an RTI application dated 29.10.2018 seeking information on following 02 points:-
Page 2 of 10The PIO/Prof., & Head, Deptt. of Hosp. Admn. vide letter dated 29.11.2018 furnished the reply provided by the Asstt. Stores Officer (H.), AIIMSrelevant extracts whereof is as follows:
"...Information sought by the applicant would disproportionately divert the resources of the organization as per section 7(9) of RTI Act & is covered under commercial confidence being third party information and is exempt from disclosure under section 8(l)(d) of the RTI Act. This is to safeguard the commercial interest of the firm's competitive position in the tender. This has been upheld by Hon'ble CIC in its judgment - KS Periyaswami Vs. Ministry of Defence (DGQA) dated 13.09.2006 with regard to their CIC digest (Vol.I) 616 and other similar judgments. However, if you so like, you may come and inspect the desired records on any working day between 10.00 AM to 5.00 P.M. after fixing up date & time for the same with Asstt. Stores Officer(Hosp.), 1st Floor, AIIMS, New Delhi-29"
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 25.12.2018. The FAA/Medical Superintendent vide order dated 31.12.2018 upheld the reply of the CPIO.
Feeling aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Written submission dated 07.04.2021 has been received from the Respondent reiterating the above facts.
(3) CIC/AIIMS/A/2019/110321 The Appellant filed an RTI application dated 29.10.2018 seeking information on following 03 points:-
The PIO/Prof., & Head, Deptt. of Hosp. Admn. vide letter dated 29.11.2018 furnished the reply provided by the Asstt. Stores Officer (H.), AIIMSrelevant extracts whereof is as follows:
"...Information sought by the applicant would disproportionately divert the resources of the organization as per section 7(9) of RTI Act" & is covered under commercial confidence being third party information and is exempt from disclosure under section 8(l)(d) of the RTI Act. This is to safeguard the commercial interest of the firm's competitive position in the tender. This has been upheld by Hon'ble CIC in its judgment - KS Periyaswami Vs. Ministry of Defence (DGQA) dated 13.09.2006 with regard to their CIC digest (Vol.I) 616 and other similar judgments."Page 3 of 10
However, if you so like, you may come and inspect the desired records on any working day between 10.00 AM to 5.00 P.M. after fixing up date & time for the same with Astt. Stores Officer(Hosp.), 1st Floor, AIIMS, New Delhi-29"
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 25.12.2018. The FAA/Medical Superintendent vide order dated 31.12.2018 upheld the reply of the CPIO.
Feeling aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Written submission dated 07.04.2021 has been received from the Respondent reiterating the above facts.
(4) CIC/AIIMS/A/2019/110322 The Appellant filed an RTI application dated 29.10.2018 seeking information on following point:-
The PIO/Prof., & Head, Deptt. of Hosp. Admn. vide letter dated 29.11.2018 furnished the reply provided by the Asstt. Stores Officer (H.), AIIMSrelevant extracts whereof is as follows:
"...Information sought by the applicant would disproportionately divert the resources of the organization as per section 7(9) of RTI Act" & is covered under commercial confidence being third party information and is exempt from disclosure under section 8(l)(d) of the RTI Act. This is to safeguard the commercial interest of the firm's competitive position in the tender. This has been upheld by Hon'ble CIC in its judgment - KS Periyaswami Vs. Ministry of Defence (DGQA) dated 13.09.2006 with regard to their CIC digest (Vol.I) 616 and other similar judgments."
However, if you so like, you may come and inspect the desired records on any working day between 10.00 AM to 5.00 P.M. after fixing up date & time for the same with Asstt. Stores Officer(Hosp.), 1st Floor, AIIMS, New Delhi-29"
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 25.12.2018. The FAA/Medical Superintendent vide order dated 31.12.2018 upheld the reply of the CPIO.
Feeling aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Written submission dated 07.04.2021 has been received from the Respondent reiterating the above facts.Page 4 of 10
(5) CIC/AIIMS/A/2019/110323 The Appellant filed an RTI application dated 29.10.2018 seeking information on following point:-
The PIO/Prof., & Head, Deptt. of Hosp. Admn. vide letter dated 29.11.2018 furnished the reply provided by the Asstt. Stores Officer (H.), AIIMSrelevant extracts whereof is as follows:
"...Information sought by the applicant would disproportionately divert the resources of the organization as per section 7(9) of RTI Act & is covered under commercial confidence being third party information and is exempt from disclosure under section 8(l)(d) of the RTI Act. This is to safeguard the commercial interest of the firm's competitive position in the tender. This has been upheld by Hon'ble CIC in its judgment - KS Periyaswami Vs. Ministry of Defence (DGQA) dated 13.09.2006 with regard to their CIC digest (Vol.I) 616 and other similar judgments. However, if you so like, you may come and inspect the desired records on any working day between 10.00 AM to 5.00 P.M. after fixing up date & time for the same with Astt. Stores Officer(Hosp.), 1st Floor, AIIMS, New Delhi-29"
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 25.12.2018. The FAA/Medical Superintendent vide order dated 31.12.2018 upheld the reply of the CPIO.
Feeling aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Written submission dated 07.04.2021 has been received from the Respondent reiterating the above facts.
(6) CIC/AIIMS/A/2019/114079 The Appellant filed an RTI application dated 29.10.2018 seeking information on following point:-
Page 5 of 10The PIO/Prof., & Head, Deptt. of Hosp. Admn. vide letter dated 29.11.2018 furnished the reply provided by the Asstt. Stores Officer (H.), AIIMS relevant extracts whereof is as follows:
"...Information sought by the applicant would disproportionately divert the resources of the organization as per section 7(9) of RTI Act & is covered under commercial confidence being third party information and is exempt from disclosure under section 8(l)(d) of the RTI Act. This is to safeguard the commercial interest of the firm's competitive position in the tender. This has been upheld by Hon'ble CIC in its judgment - KS PeriyaswamiVs Ministry of Defence (DGQA) dated 13.09.2006 with regard to their CIC digest (Vol.I) 616 and other similar judgments. However, if you so like, you may come and inspect the desired records on any working day between 10.00 AM to 5.00 P.M. after fixing up date & time for the same with Asstt. Stores Officer(Hosp.), 1st Floor, AIIMS, New Delhi-29"
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 25.12.2018. The FAA/Medical Superintendent vide order dated 31.12.2018 upheld the reply of the CPIO.
Feeling aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
Written submission dated 07.04.2021 has been received from the Respondent reiterating the above facts.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearing through video conference was scheduled after giving prior notice to both the parties. Both parties have contended their respective stance, which has revealed that the above appeals originate out of a series of tenders and litigations resulting therefrom. The Appellant representing Sirmaxo Chemicals Pvt. Ltd. stated that being the L1 candidate, they had emerged successful in the tender bid of 2012-13, but their price bid was rejected on the ground of "Fall Clause" which allegedly was not applicable in their case. Subsequently in 2013-14 and 2017-18 two more tenders were denied to them wrongfully.Page 6 of 10
It further transpired that the Appellant's company viz. Sirmaxo Chemicals Pvt. Ltd. and Raman & Weil Pvt. Ltd. had both approached the Courts, litigating against the Respondent-AIIMS with respect to the tender processes and the matters have now attained finality. However, in view of the cross litigations between parties, information sought by the Appellant attracted provisions of the Section 8(1)(d) of the RTI Act, 2005 and thus was denied by the PIO.
Interim Decision:
Upon hearing the contentions of the parties, the Commission is of the considered view that the factual position of the tender process leading to the Court proceedings and the decisions pronounced by the Court has a significant bearing in the decision pertaining to the above appeals. However, these relevant facts have been summarily and orally mentioned during the course of hearing by the Respondent.
Accordingly, it is hereby directed that the Respondent shall submit a comprehensive concise report before the Commission, by 23.04.2021, upon serving a copy of the same to the Appellant, about the legal pronouncements by the Courts, annexing relevant orders in support of their contentions. The Appellant is at liberty to submit their rebuttal if any, by 30.04.2021. Commission shall decide the appeals, based on the submissions put forth by the parties.
Final Decision: 30.07.2021 Pursuant to the above directions of this Commission, the Respondent submitted a report dated 19.05.2021 comprising the relevant decisions passed by the Delhi High Court. The submissions of the Respondent reveal that two writ petitions had been filed in the Delhi High Court by two of the bidders, viz. M/s Raman & Weil Pvt. Ltd. and M/s Sirmaxo Chemicals Pvt. Ltd. M/s Raman & Weil Pvt. Ltd. filed Writ Petition (Civil) No. 7006/2018 challenging tender validity, which was subsequently withdrawn vide order dated 09.10.2018, when the tender in question was cancelled by AIIMS.
This was followed by filing of the Writ Petition (Civil) No. 11828/2018 by M/s Sirmaxo Chemicals Pvt. Ltd. challenging the scrapping of the tender by AIIMS. A Division Bench of the Hon'ble Court took note of the fact that the Respondent- AIIMS had taken a conscious decision in the meeting dated 20.09.2018 of the Store Purchase Committee (Hospital), wherein the following was noted:Page 7 of 10
The WP (C) No. 11828/2018 was decided by the Hon'ble High court of Delhi vide a detailed order dated 08.08.2019, with the following observations:
"...11. We have heard the learned counsel for the parties, considered their rival submissions, and have examined the documents placed on record. In the aforegoing para, we have expressed our displeasure in the manner in which respondents no.1 and 2 conducted the tender proceedings, having delayed the tender for 17 long months. An explanation has been provided for the delay from 28.04.2016 to 09.10.2018. However, the present tender was not finalized. Mr. Krishna has explained the various reasons for the time taken in not finalizing the tender within the stipulated time period. However, we are of the opinion that in the best interest of the institution, all possible efforts should be made to finalise the tender within the stipulated period. .......................
13. Although, Mr. Krishna, the learned counsel for respondent no 2 has relied upon clause 27(p), but we are of the view that this clause would not apply to the facts of the present case, for the reason that it is not the stand of the respondent that the petitioner entered into a contract during the currency of an existing contract at a lower rate. However, the respondent has taken into consideration the fact that the petitioner was supplying goods to other organizations at a lower rate and thus, the respondent was well within its right to scrap the tender.Page 8 of 10
........................
15. At this stage, learned counsel for the petitioner submits that in the best interest of the institution, the petitioner is willing to supply goods at the same rates, which the petitioner has been supplying to the other organization. It is prayed that the respondent be directed to consider the offer of the petitioner as it would be in the public interest rather the respondent informs that issuing fresh tender would further delay the matter and would cause further financial loss to respondent no.2. In our view, the petitioner has made a fair offer and in case, the petitioner was the lowest tenderer, who was the successful tenderer both in the commercial and financial bid, this decision would be left to respondents no.1 and 2 and we hope that they would consider the same unaffected by the fact that the petitioner has approached this Court as it would be in the interest of the institution itself. The decision will be taken within four weeks from the date of the receipt of the judgment.
16. While we are unable to grant any relief to the petitioner, the writ petition is disposed of with above directions."
Appellant has sent their counter submissions dated 16.06.2021, challenging the scrapping of the tender and other technicalities which had occurred in the tender process.
After examination of the aforementioned facts, submitted by the contesting parties, it is noted that in so far as the scrapping of the tender is concerned, the entire issue has been dealt with in great detail by the Hon'ble High Court of Delhi in its decision dated 08.08.2019 and the plea of the Appellant has been disposed off without granting any relief. Thus the scrapping of the tender by the Respondent has not been questioned nor set aside by the Court after examining the various aspects of the case.
Under the circumstances, this Commission is of the considered opinion that there remains no reason to intervene in this case, where the matter stands decided already. It is also worthwhile to note that in the six appeals discussed hereinabove, the Respondent had not barred access to the information sought by the Appellant. Considering the voluminous information sought by the Appellant, the Respondent had instead invited the Appellant to visit the Respondent and inspect the desired records. Hence, there has been no denial of information as such in the above cases and therefore there is no cause of action under the RTI Act. The Appellant is at liberty to access the information upon inspection of records.
The appeals stand disposed off as such, with no further directions.
Y. K. Sinha (वाई.
वाई. के . िस हा) Chief Information Commissioner (मु य सूचना आयु ) Page 9 of 10 Authenticated true copy (अिभ मािणत स ािपत ित) S. K. Chitkara (एस. के . िचटकारा) Dy. Registrar (उप-पंजीयक) 011-26186535 Page 10 of 10