Gujarat High Court
Trivitron Health Care Pvt. Ltd. vs State Of Gujarat on 7 May, 2018
Author: M.R. Shah
Bench: M.R. Shah, A.Y. Kogje
C/SCA/18177/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18177 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
======================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair
copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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TRIVITRON HEALTH CARE PVT. LTD.
Versus
STATE OF GUJARAT
======================================
Appearance:
MR BB NAIK, SENIOR ADVOCATE with MR VIRAL M
PANDYA(5257) for the PETITIONER(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGEETA
VISHEN, ASSISTANT GOVERNMENT PLEADER with MR RONAK
RAVAL, ASSISTANT GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 1,3,4,5
MR MITUL K SHELAT(2419) for the RESPONDENT(s) No. 2
MS MANISHA LAVKUMAR, SENIOR ADVOCATE with MR
UTKARSH R SHARMA(6157) for the RESPONDENT(s) No. 2
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Page 1 of 7
C/SCA/18177/2017 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 07/05/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH)
1. Draft amendment is allowed.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs;
(a) Your Lordships may be pleased to issue writ or writ in the nature of writ of mandamus against the respondents by issuing necessary direction and /or instruction and /or order to declare and hold that the petitioner Company is qualified for the technical bid for the quoted item - 9052 (Urine Strip) for which the respondent no.2 - GMSCL has invited tender enquiry vide No.D-604/RC/2016-17 in the public interest at large and further may be pleased to quash and set aside the unfair, arbitrary, malicious decision dated 15/02/2017 by which the tender bid of the petitioner Company was rejected for the quoted item - 9052 (Urine strip) qua tender enquiry vide No.D-604/RC/2016-17.
(b) Your Lordships may be pleased to direct the respondent no.2 - GMSCL to open the petitioner's commercial bid for the quoted item - 9052 (Urine Strip) for which the respondent no. 2 - GMSCL has invited tender enquiry vide No. D-604/RC/2016-17 Page 2 of 7 C/SCA/18177/2017 JUDGMENT in the public interest at large.
(c) Your Lordships may be pleased to direct the
respondent no.2 - GMSCL to make interim
arrangement for the quoted item - 9052 (Urine Strips) with a view to save the waste and loss of public fund with no compromise with quality of the quoted item till the final disposal of the present petition.
(d) Your Lordships may be pleased to stay the further proceedings of the tender enquiry vide No.D-604/RC/2016-17 qua the quoted item - 9052 (Urine Strip) till the final disposal of the present petition.
(e) Your Lordships may be pleased to direct the respondent no.1 and respondent no.2 to follow the golden Rule of Article 14 of the Constitution of India and may be pleased to direct the respondents to apply "Equal Treatment" to all bidders of quoted items by making decision making process fair, reliable, and transparent in the public interest.
(f) Your Lordships may be pleased to pass such other and further order /direction /instruction against the respondents and in favour of the petitioner in the public interest.
(g) Your Lordships may be pleased to quash and
set aside the new tender notice i.e. T.E.
Page 3 of 7
C/SCA/18177/2017 JUDGMENT
No.GMSCL/DS-02/RT/RC/2016-17/2017-18 qua the quoted item : 9052 Urine Strip 10 parameters by appreciating the reasons and grounds stated hereinabove and further may be pleased to direct respondents to adhere to earlier specifications i.e. ISO 13485, CE Mark, US FDA approved for the present tender notice which are necessary for proper and adequate care of health of public at large.
3. Heard Shri B.B. Naik, learned Senior Advocate appearing with Shri Viral Pandya, learned advocate appearing on behalf of the petitioner, Shri Kamal Trivedi, learned Advocate General appearing with Ms. Sangeeta Vishen, learned Assistant Government Pleader appearing on behalf of the respondents - State Authorities and Ms. Manisha Lavkumar, learned Senior Advocate appearing with Shri Utkarsh Sharma, learned advocate appearing on behalf of respondent no. 2 - Gujarat Medical Service Corporation Limited.
4. One of the main grievance, which is voiced in the present petition, is that earlier when the tender was floated by the Gujarat Medical Service Corporation Limited (hereinafter referred to as "GMSCL") for procurement of 81 diagnostic items, out of 81 items, there were 15 items (including Urine Strip 3 parameters and Urine Strip 10 parameters) of which the specification was prescribed as "ISO 13485, CE Mark, US FDA Certified". It is case on behalf of the petitioner that however later on the same specification came to be modified to ISO 13485/CE Mark/US FDA Certified and not ISP, 13485, CE Mark, Page 4 of 7 C/SCA/18177/2017 JUDGMENT US FDA Certified, and therefore, it is the case on behalf of the petitioner that modification of the specification was absolutely arbitrary and with a view to favour some of the parties and with a view to vouch the bidder like the petitioner as by such modification the quality of the items shall be compromised.
5. The matter came to be adjourned from time to time.
6. Ms. Manisha Lavkumar, learned Senior Advocate has appeared on behalf of GMSCL. Relying upon the additional affidavit filed on behalf of the Joint Secretary at the office of GMSCL, Health and Family Welfare Department, Ms. Manisha Lavkumar, learned Senior Advocate has stated that after the present petition was filed challenging the change of specification, higher level expert committee has been constituted for the purpose of reconsideration and fixation of the specific items wherein ISO 13485/CE Mark/US FDA Certified were warranted. It is submitted that after due deliberation and considering the prescribed standard i.e. ISO 13485/CE Mark/US FDA Certified in detail, the committee has suggested that it would be appropriate to tune the specification in such a way that the standards and quality of manufacturing process and quality of product is not compromised, and therefore, it would be wise to seek ISO 13485 as compulsory certificate with either CE Mark or US FDA Certificate, and therefore, it is opined and suggested that the specification for the items in question should be (a) ISO 13485/CE Mark/US FDA Certified or (B) ISO 13485/CE Mark.
7. Shri Kamal Trivedi, learned Advocate General appearing on behalf of the respondents - State authorities and Page 5 of 7 C/SCA/18177/2017 JUDGMENT Ms. Manisha Lavkumar appearing for GSMCL have stated at the Bar that in case of 15 items (including Urine Strip with 3 parameters and 10 parameters) out of 81 items for which earlier the tenders were floated by GMSCL, fresh tenders had been invited with the specifications namely (a) ISO 13485/CE Mark/US FDA Certified (b) ISO 13485/CE Mark. Concerned respondents are directed to act accordingly and invite fresh tenders with the above modified specifications in case of those items where contract is not issued and the tender process is not completed. Now so far as one of the grievance, which is voiced by the petitioner that in many a case because of the pending dispute the hospitals are purchasing the medicines /medical items at local level and at a higher price and the ultimate burden is upon the public exchequer is concerned, an additional affidavit is filed by respondent no.2 dated 05/05/2018, affirmed by Dr. Rajshekhar Marutichandra Mehta, working as General Manager (EDS) at the office of respondent no.3 - GMSCL in which a detailed procedure is provided under the Government Resolution dated 10/08/2004 under the purchase manual dated 20/02/2004. Considering the further additional affidavit dated 05/05/2018, we are of the opinion that the said powers be exercised in an exceptional case and in extraordinary urgency and such powers may not be exercised in a routine manner and mechanically. However, it is observed that even while exercising such powers of purchase in exceptional case and urgency in local level there shall not be any compromise with the price as well as the quality and as and when such purchases are made at the local level the same shall be intimated to the higher authority including respondent no.2 so that there may be check on exercise of such powers.
Page 6 of 7C/SCA/18177/2017 JUDGMENT
8. With the above direction and observation, present petition stands disposed of.
(M.R. SHAH, J.) (A.Y. KOGJE, J.) siji Page 7 of 7