Gujarat High Court
Sanjay Shyamsundar Sharma vs State Of Gujarat & 5....Opponent(S) on 26 December, 2017
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/WPPIL/75/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 75 of 2017
With
WRIT PETITION (PIL) NO. 110 of 2017
==========================================================
SANJAY SHYAMSUNDAR SHARMA....Applicant(s) Versus STATE OF GUJARAT & 5....Opponent(s) ========================================================== Appearance:
MR NK MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 MS MANISHA LAVKUMAR SHAH, GP with MR UTKARSH SHARMA, AGP for the Opponent(s) No. 1-3 , 5 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date :26/12/2017 CAV ORDER (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. Both these petitions are filed in the nature of Public Interest Litigation, wherein the concerned petitioners have prayed that the respondent authorities be directed to constitute a High Level Committee to look into the illegalities/irregularities in procurement of the "Robotic Assistant Surgery Instrument"
(hereinafter referred to as the instrument in question) at Civil Hospital, Ahmedabad. It is also prayed that on receipt of report of such inquiry, direction be issued to the respondents to take appropriate action/initiate appropriate action against the erring officers. It is also prayed that direction be issued to the respondent authorities to undertake the procedure for making Page 1 of 25 HC-NIC Page 1 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER functional the instrument in question immediately and necessary procedure be undertaken for getting replacement of the instrument in question to enable the general public at large to have the benefits of the modernized instrument for knee and hip replacement surgery.
2. As the issue involved in both these petitions is same, both the petitions are heard together and being disposed of by this common order.
3. The facts narrated in Writ Petition (PIL) No. 75 of 2017 are as under:
3.1. The petitioner is having a shop viz.
Maharaja Pan Parlour. It is stated that the petitioner is a social worker and is a member of NGO. However, it is stated that he has never filed any Public Interest Litigation. It is stated that respondent No.5 - Medical Superintendent of Civil Hospital is holding several posts including that of the Head of the Orthopedic Department, Civil Hospital, Ahmedabad, Medical Superintendent, Civil Hospital, etc. In the year 2010, proposal was sent for procurement of the instrument in question. Such procurement/purchase would be made through the Central Medical Store Organization (CMSO). Accordingly, Additional Director, Medical Education and Research, Gandhinagar sent a communication dated 11.08.2010. It is alleged in Page 2 of 25 HC-NIC Page 2 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER the petition that global level tender was required to be issued so that international suppliers of such instrument can participate in the tender process. However, on the basis of the bid received by the only one tenderer, i.e. respondent No.6, its tender came to be accepted and purchase order came to be issued. It is further alleged that in the Letter of Intent though the approximate cost of the instrument in question was prescribed at Rs.900 lakhs, in the communication dated 24.03.2011, it was mentioned as Rs.950 lakhs and further charges were added and ultimately the said instrument was purchased at Rs.13,57,51,705/-. Thus, suspicious procedure was undertaken so that the bid of the sole bidder can be sanctioned. It is further alleged that when such a most modernized instrument was to be purchased, the purchase/procurement ought to have been done through the committee which ought to have been constituted of the persons including the technical persons.
3.2. The petitioner has further alleged that all the decisions have been taken by the respondent No. 5 - Medical Superintendent of Civil Hospital. It is thereafter stated that the Government constituted nominated committee and the purchase of the instrument in question was effected at Rs.10.79 crores. It is further alleged that after installation of the said instrument two or three surgeries were performed through the said Page 3 of 25 HC-NIC Page 3 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER instrument and since last 6 years, the instrument is non-functional and same is not used in any surgery. The said instrument is absolutely out of order and such situation has arisen only because the entire procedure for prescribing specification, inviting bid and acceptance of sole bid and issuance of so-called rate reasonable certificate dated 31.03.2011 was issued by respondent No.5 and ultimately the same is result into complete failure of functioning of the instrument in question. It is thereafter alleged that due to mala fide intention of respondent No.5 - Medical Superintendent of Civil Hospital and due to the illegalities and/or irregularities which had taken place in procurement of the instrument in question the entire project has been frustrated and therefore necessary direction be issued for constitution of High Power/High Level Committee.
3.3. Petitioner has further stated that he has sent one communication to the Hon'ble Prime Minister on 23.08.2016 and the office of the Hon'ble Prime Minister has sent communication to the office of respondent No.1 on 15.09.2016. However, neither any action is taken nor any reply is sent to the petitioner with regard to the action taken in the matter and therefore petitioner has preferred the present petition.
4. The facts narrated in Writ Petition (PIL) No. Page 4 of 25 HC-NIC Page 4 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER 110 of 2017 are as under:
4.1. This petition is filed by Dr. Madhavji Kanjibhai Gajera, who is stated to have been appointed as Medical Officer, Class - II in the year 1982 and thereafter Additional District Health Officer, Class-I in the year 1992. He was serving as Joint Director of Health Services and his services came to be terminated as Joint Director and therefore he had filed a petition before this Court. He has narrated about the proceedings filed by him before this Court with regard to his service matter. However, he has specifically stated that he has not filed any Public Interest Litigation espousing the public cause. It is stated that when he was sitting in the office of his advocate, he heard about the matter filed by another public activist and therefore he got the details and after getting necessary details he has filed the present petition. In this petition also the petitioner has stated about the procurement of the instrument in question in the Civil Hospital and the procedure followed by the respondent authorities. In this petition, respondent No.4 is a Medical Superintendent of Civil Hospital and similar type of allegations are made in the present petition against the respondent No.4. In this petition also the petitioner has stated that the respondent authorities have not followed the global tender procedure and the bid of only one Page 5 of 25 HC-NIC Page 5 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER tenderer, i.e. respondent No.5 herein, has been accepted. In this petition, the petitioner has further referred to the various posts held by the respondent No.4 - Medical Superintendent, Civil Hospital. In the present petition also the petitioner has prayed that direction be issued to the respondent authorities to constitute a High Level Committee to inquire into in respect of the purchase/procurement of the instrument in question and to make the said instrument functional.
5. On receipt of the advance copy of the Writ Petition (PIL) No.75 of 2017, learned Government Pleader Ms. Manisha Lavkumar Shah appeared and took us through the affidavit-in-reply which has been filed by the Administrative officer of Civil Hospital. In the said affidavit-in-reply, the concerned respondent has denied the allegations levelled against the respondents in the petition and it is contended by the concerned respondent that the petitioner is having a pan shop outside the civil hospital campus and the petition filed by him is a sponsored litigation. In the said affidavit-in-reply the entire procedure followed by the respondent authorities while procuring the instrument in question is narrated. It is specifically stated in the reply affidavit that robotic assistant surgery was started at Civil Hospital, Ahmedabad in the year 2011 and the instrument in question is in working condition Page 6 of 25 HC-NIC Page 6 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER and more than 300 surgeries are performed by the Department since its installation. Year-wise details are also given in the affidavit-in-reply.
6. At this stage, it is required to be noted that in Writ Petition (PIL) No. 110 of 2017, the issue involved is similar and therefore separate affidavit is not filed by the respondent authorities and in the said petition also no notice is issued by this Court. However, learned Government Pleader appeared on the basis of the advance copy served to the office of Government Pleader and assisted this Court.
7. Heard learned advocate Mr. Nirav K. Majmudar for the petitioner in both the petitions and learned Government Pleader Ms. Manisha Lavkumar Shah for the respondent authorities.
8. Learned advocate Mr. Majmudar mainly contended that without getting any tenders/bids from various suppliers/manufacturers and that too from global market, only on the basis of one and sole tender/bid, the instrument in question has been procured and therefore the entire procedure deserves to be declared as mala fide. It is submitted that in pre-bid meeting, no technical expert/concerned person with specialized training, qualification and experience of the Robotic Assistant Surgery Instrument was nominated as member and in absence of such Page 7 of 25 HC-NIC Page 7 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER expert, pre-bid meeting was convened and tender of the private respondent came to be passed.
Hence, the entire procedure deserves to be declared as null and void and direction be given to the respondent authorities to constitute a high power committee to inquire into such tender process. Learned advocate Mr. Majmudar has referred various documents which are annexed with the petition and contended that at the time of procurement of the instrument in question, required procedure has not been followed and public money to the tune of Rs.11 crores has been spent. In spite of purchase of such costly instrument, only three surgeries were performed during the period of 6 to 7 years. It is, therefore, urged that the reliefs prayed for in the petition be granted.
9. Learned advocate Mr. Majmudar has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of State of Jharkhand v. Cwe-soma Consortium, reported in AIR 2016 SC 3366.
10. On the other hand, learned Government Pleader Ms. Manisha Lavkumar Shah vehemently contended that both these petitions are sponsored litigation and therefore this Court may not entertain the same and both the petitions be dismissed with heavy cost. At the outset, it is pointed out that the first petition being Writ Page 8 of 25 HC-NIC Page 8 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER Petition (PIL) No.75 of 2017 came to be filed on 11.04.2017. The petition was listed for hearing on 12.04.2017. However, it was adjourned on 19.04.2017. It is pointed out that this Court asked the concerned officer to file an affidavit and therefore on 18.04.2017, affidavit came to be filed by the concerned respondent. It is further pointed out that during the first hearing it was noticed that the person who has filed the petition is having pan shop just outside the campus of Civil Hospital and for filing this petition his bona fide was doubted and therefore the second petition being Writ Petition (PIL) No.110 of 2017 came to be filed by another person through the same advocate on 28.04.2017. At this stage, it is also pointed out that in both these petitions only the Medical Superintendent of Civil Hospital is joined and allegations are levelled against him. The said officer was due to retire on 30.04.2017 and therefore immediately prior to the date of his retirement such proceedings are initiated. It is further pointed out by learned Government Pleader that the concerned Medical Superintendent was superannuated on 30.04.2017. However, by an order dated 07.05.2017, he is appointed on contractual basis for a period of 1 year and therefore the petitioner Dr. Madhavji Gajera of Writ Petition (PIL) No.110 of 2017 has filed another writ petition being Writ Petition (PIL) No.136 of 2017 challenging the contractual appointment of Page 9 of 25 HC-NIC Page 9 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER Medical Superintendent, Civil Hospital. Thus, from the said chronology of dates and events it is contended that both these petitions are sponsored litigation and therefore the same be dismissed with heavy cost.
11. Learned Government Pleader thereafter contended that the instrument in question came to be purchased after following due procedure in the year 2010-11. However, both these petitions are filed at belated stage i.e. in the year 2017 after a period of more than 6 years. There is no explanation given by the petitioners for not filing the petitions within reasonable time. Thus, it is contended that on this ground also these petitions may not be entertained.
12. Learned Government Pleader after referring to the affidavit-in-reply filed on behalf of respondent No.5 in Writ Petition (PIL) No. 75 of 2017 has submitted that when the proposal was received by the Health & Family Welfare Department, the said proposal was examined and thereafter communication was sent in April 2010 informing the Additional Director to resend the proposal. After getting necessary details, the Additional Director of Medical Education and Research had forwarded the application to the Director of CMSO. It is also pointed out by learned Government Pleader that so far as the tender process is concerned, it exclusively falls Page 10 of 25 HC-NIC Page 10 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER in the domain of CMSO, which is a nodal agency exclusively constituted by the Health & Family Welfare Department to look into the purchase and procurement of various medical instruments, equipments, drugs/medicines and other medical related machineries in various Government Hospitals in the State of Gujarat. The said CMSO is headed by a Chairman, who is an IAS level officer appointed by the State Government. After referring to the averments made in the affidavit, it is contended that the allegations levelled by the petitioners against the respondent No.5 - Medical Superintendent of Civil Hospital is not correct and the instrument in question was procured after following the prescribed procedure and therefore these petitions be dismissed.
13. Learned Government Pleader thereafter pointed out that more than 300 surgeries are performed by the Department since the installation of the instrument in question and therefore it is not correct on the part of the petitioners to contend that only three operations were performed through the said instrument.
14. Learned Government Pleader thereafter pointed out that though the reliefs prayed for in the petitions and the subject matter of the petitions are with regard to purchase of the instrument in question, surprisingly, both the petitioners have stated that respondent Medical Superintendent of Page 11 of 25 HC-NIC Page 11 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER Civil Hospital is holding various posts which is not permissible. Thus, it is contended that the person who has interest in the post held by the respondent No.5 - Medical Superintendent of Civil Hospital has initiated the aforesaid proceedings through the concerned petitioners, otherwise, there was no reason for the petitioners to refer to the various posts held by the concerned respondent - Medical Superintendent of Civil Hospital. It is therefore, urged that both the petitions be dismissed with heavy cost.
15. Having heard the learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that the instrument in question came to be purchased in the year 2011 by inviting tenders at global level. However, though the instrument in question was purchased in the year 2011, both these petitions are filed in the year 2017 challenging the tender process carried out in the year 2010- 2011. Thus, there is a gross delay in filing these petitions.
16. At this stage, it is required to be noted that in the affidavit-in-reply filed on behalf of the concerned respondent, it has been specifically pointed out that after the receipt of the proposal by the Health and Family Welfare Department, they have followed due procedure and Page 12 of 25 HC-NIC Page 12 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER necessary communications were exchanged between different Departments. After getting necessary details, a communication dated 22.06.2010 was submitted to the Additional Director of Medical Education and Research. In the said communication, along with the annexures there was specific reference with regard to the examination of the fact that the specifications which are drawn in reference to the Robotic Assistant Surgery Instrument are general and it does not belong to a particular brand of equipment. The indent form along with details of specification were examined by the Medical superintendent of Civil Hospital. Thereafter, the same were also re-examined and cross-checked by the Additional Director of Medical Education and Research. Thereafter, the Additional Director of Medical Education and Research forwarded the application to the Director, CMSO.
17. It is further revealed from the said affidavit-in-reply that so far as tender process is concerned, it exclusively falls in the domain of CMSO which is a nodal agency constituted by the Health and Family Welfare Department. The CMSO is headed by the Chairman, who is an IAS level officer appointed by the State Government. It further transpires that the State Government, considering the fact that the purchase of the Page 13 of 25 HC-NIC Page 13 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER instrument in question was more than Rs.50 lakhs, it was specifically instructed to go for E- Tendering/Global Tender Process so that more and more bidders participate in the tender process. The bid document was opened on the official website (n) procure of the State Government on 03.11.2010 and in the instructions it was specifically stated that the last date for submission of the bid document was 01.12.2010. In the meantime, as per the practice, pre-bid meeting was fixed on 19.11.2010. In the said meeting various experts have participated. The said pre-bid meeting was held under the chairmanship of Director of CMSO and in the said meeting discussion was made with regard to the instrument in question.
18. It is further reflected from the record that respondent No.6 had participated in the said meeting and after discussion it was resolved to continue with the specifications and no changes were required to be incorporated in the specifications. Thus, from the record, it is clear that in fact in pre-bid meeting in presence of technical experts and medical experts the specifications of the instrument in question were taken into consideration. Thereafter, during the e-tendering process only one offer was received from respondent No.6 and therefore the same was Page 14 of 25 HC-NIC Page 14 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER placed for consideration before the Director of CMSO and before the Secretaries Purchase Committee (SPC). At that stage, various aspects like technical scrutiny of e-tender process, etc. were looked into and agenda note was prepared by the Director of CMSO and Member Secretary of SPC, thereby opining that the rate as given by the respondent No.6 compared to market survey conducted by the Regional Project Officer regarding the price verification of the indented item was found to be reasonable. Thereafter, on 21.03.2011, in the meeting of SPC, agenda No.9 was placed for consideration and after examining various documents, SPC approved purchase of the instrument in question in the said meeting. The warranty period of the instrument in question was three years instead of one year as decided by the SPC and for which necessary negotiation was done by the CMSO with the respondent No.6 company. The respondent No.6, vide its letter dated 22.03.2011 addressed to the Director of CMSO agreed to extend the warranty period from one year to three years and also the comprehensive maintenance charges were revised and accordingly accepted by the respondent No.6 company. Thereafter, approval was also granted by the Health and Family Welfare Department and upon allocation of budget by the Finance Department, ultimately the final decision came to be taken for accepting the offer of Page 15 of 25 HC-NIC Page 15 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER respondent No.6 company to purchase the aforesaid instrument.
19. Thus, from the aforesaid facts and circumstances of the case, this Court is of the view that allegations made by the petitioners against the respondent No.5 - Medical Superintendent of Civil Hospital, Ahmedabad are not correct. It is required to be noted at this stage that though different officers have participated in pre-bid meeting and the tender process was carried out by the Director of CMSO and other officers and ultimately bid of respondent No.6 was considered by CMSO and SPC and approved by the State Government, only the Medical Superintendent of Civil Hospital is joined as party respondent in the present proceedings. Further, from the affidavit in reply filed on behalf of the concerned respondent, it is revealed that the instrument in question is in working condition and more than 300 surgeries are performed by the Department since its installation. Necessary details are given in para 11 of the reply with regard to the surgeries performed during the period between 2011 to 2017. Thus, we are of the view that the allegation made by the petitioners that only three surgeries are performed through the instrument in question, is not tenable. At this stage, it is required to be Page 16 of 25 HC-NIC Page 16 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER noted that the second petition has been filed after a period of only 15 days from filing of the first petition. In the said petition, petitioner has averred that only 30 operations are performed through the said instrument.
20. Now, we would like to deal with the contention raised by the learned Government Pleader that both these petitions are sponsored litigations and therefore this Court may not entertain these petitions and both these petitions be dismissed with heavy cost. From the record, it is revealed that Writ Petition (PIL) No. 75 of 2017 came to be filed by one Sanjay Sharma on 11.04.2017. The said petitioner is having pan shop outside the campus of Civil Hospital. He has not filed any other PIL espousing public cause. In the said petition, the petitioner has annexed the copy of the letter dated 23.08.2016 addressed by him to the Hon'ble Prime Minister wherein, in the subject, he has stated that Medical Superintendent of Civil Hospital is holding 10 posts. We are surprised how a person having pan shop is concerned about the post held by the Medical Superintendent of Civil Hospital. The reliefs prayed for in the petition is with regard to purchase of the aforesaid instrument and allegation is with regard to not following due tender process for Page 17 of 25 HC-NIC Page 17 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER the purchase of the instrument in question and therefore the post held by the concerned officer is not relevant for the said purpose. It is further required to be noted that during the first hearing of the said petition on 12.04.2017, it was pointed out by learned Government Pleader about the bona fide of the petitioner in filing the petitioner. The matter was, therefore, adjourned with a view to file an affidavit-in- reply. On 18.04.2017, affidavit-in-reply has been filed on behalf of the concerned respondent. Thereafter, the matter was adjourned in May 2017. However, surprisingly second petition being Writ Petition (PIL) No. 110 of 2017 came to be filed by Dr. Madhavji Gajera. The said petition is filed on 28.04.2017. If the averments made in the said petition are carefully examined, it is surprising that the petitioner has averred in para 3(e) as under:
"(e) The petitioner has received the information while sitting in the office of his advocate as he had come to meet the concerned advocate and he heard about the matter filed by some another public activist and thereafter he got the details of the names and addresses of the concerned persons, who had also filed Public Interest Litigation on the said Page 18 of 25 HC-NIC Page 18 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER issue and the petitioner had ultimately received documents through the said public activist of the another PIL. The petitioner has also gathered details in respect of the issues relating to Robotic Assistant Surgery Instrument through some of his friends serving/associated with the Civil Hospital. The petitioner has also gathered some details through some of the employees of Civil Hospital. The petitioner has also gathered information about Biomed Healthtech Pvt. Ltd. -
respondent no.5 and other details pertaining to the said Robotic Assistant Surgery Instrument through internet. The petitioner has also gathered information about the manufacturer-CUREXO Technology Corporation, USA and their product."
21. In the second petition also the relief prayed for is with regard to the aforesaid instrument in question and the process carried out for procurement of the said instrument. However, in this petition the petitioner has averred in para 4.14 as under:
"4.14. It is submitted that so far as the another irregularity which is being taking place in the Civil Hospital is to Page 19 of 25 HC-NIC Page 19 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER the effect that the Superintendent of Civil Hospital cannot become Head of any of the Department in Civil Hospital as per the Notification dated 21/7/2009 published by the Medical Council of India. Annexed hereto and marked ANNEXURE-M to this petition is a copy of the said notification dated 21/7/2009. It is submitted that the Medical superintendent of the Civil Hospital, at present, is also the Head of Orthopedic Department of Civil Hospital for more than last 20 years. It is stated that the petitioner has also learnt that the concerned Medical Superintendent who has also remained Head of Department of Orthopedic Surgery section of Civil Hospital, the concerned Superintendent was also having designation as Additional Director, Medical Education & Research, Health & Family Welfare Department, Gandhingar; Director, Government Spine and Paraplegia Institute & Physiotherapy College, Civil Hospital Campus, Ahmedabad; Professor & Head of Department of Orthopedic, B. J. Medical College...................."
22. Petitioner has further averred in para 5 as under:
Page 20 of 25HC-NIC Page 20 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER "5. The source of information of the facts pleaded is on the basis of information gathered by the petitioner by personally meeting one Shri Sanjay Sharma who is the petitioner of Writ Petition (PIL) No. 75/2017 as well as the petitioner himself had visited the Civil Hospital and gathered information in respect of the robotic instrument and had received and gathered the information on its manufacturers, different types, and other aspects through internet and documents."
23. From the aforesaid averments, it is clear that though the Writ Petition (PIL) No. 75 of 2017 was pending for the same subject matter, another petition is filed within a period of approximately 15 days. At this stage, it is required to be noted that as submitted by learned Government Pleader, the respondent - Medical Superintendent, Civil Hospital was due to retire on 30.04.2017 and therefore just prior to his date of retirement both these petitions are filed so that after his retirement he may not be continued or appointed on contractual basis. As submitted by learned Government Pleader, on 07.05.2017, the respondent - Medical Superintendent, Civil Hospital, Ahmedabad was Page 21 of 25 HC-NIC Page 21 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER appointed on contractual basis for a period of one year and therefore petitioner of Writ Petition (PIL) No. 110 of 2017 has filed another Writ Petition (PIL) No. 136 of 2017 challenging the contractual appointment of the respondent - Medical Superintendent, Civil Hospital, Ahmedabad.
24. In view of the aforesaid facts and circumstances of the case, we are convinced that both these petitions are not genuine Public Interest Litigations and they can be termed as sponsored litigations at the instance of the person, who is interested in the post, which is holding by the respondent - Medical Superintendent, Civil Hospital, Ahmedabad. Moreover, as discussed hereinabove, though in the tender process different officers and CMSO have participated, only the respondent - Medical Superintendent of Civil Hospital is made party in the present proceedings. Thus, we are of the view that there is no merit in the allegations made by the petitioners in the petitions and therefore the petitions deserve to be dismissed.
25. In the case of Cwe-soma Consortium (supra) before the Hon'ble Supreme Court, only one bidder, respondent therein, was found responsive out of three bidders and Tender Committee Page 22 of 25 HC-NIC Page 22 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER therefore has decided to float fresh tender to make it more competitive and therefore the said action of the Tender Committee of re-tendering came to be challenged on the ground that the said decision is arbitrary and in that context the Hon'ble Supreme Court held that the State derives its power to enter into a contract under Article 298 of the Constitution of India and has the right to decide whether to enter into a contract with a person or not subject only to the requirement of reasonableness under Article 14 of the Constitution of India. In the aforesaid fact situation, it was held that the decision of the Tender Committee to cancel the tender and invite a fresh tender as there was only one tenderer, cannot be said to be arbitrary and unreasonable. However, this decision would not be helpful to the facts of the present case. In the present case, the global tender was issued by the CMSO through (n) procure and one tenderer participated in the said process. The committee of experts took a decision to award the contract to the sole tenderer and the said decision was approved by SPC and Family Welfare Department and ultimately grant was also sanctioned by the Finance Department. Thus, the respondent authorities have followed due procedure of law while purchasing the instrument in question. Thus, the aforesaid decision would not render any assistance to the Page 23 of 25 HC-NIC Page 23 of 25 Created On Tue Dec 26 23:39:33 IST 2017 C/WPPIL/75/2017 CAV ORDER petitioners.
26. In view of the aforesaid discussion, we are of the view that these petitions are not genuine Public Interest Litigation and they are filed at the instance of the person who is interested for the post of Medical Superintendent of Civil Hospital, Ahmedabad. In both these petitions, only respondent - Medical Superintendent, Civil Hospital, Ahmedabad is targeted by making baseless allegations and though in the tender process different officers of CMSO, members of SPC and experts have participated, only the respondent - Medical Superintendent of Civil Hospital is made party. Though the relief prayed for in the petition is with regard to appointment of High Level Committee for inquiring into the procurement of the instrument in question, the concerned petitioner has referred about various posts held by the respondent - Medical Superintendent of Civil Hospital, Ahmedabad. Another petitioner has in his representation made to the Hon'ble Prime Minister, in the subject, mentioned about different posts held by the respondent - Medical Superintendent of Civil Hospital, Ahmedabad. Thus, from the aforesaid, we are convinced that these petitions are sponsored litigations and therefore both these petitions are required to be dismissed with exemplary cost.
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C/WPPIL/75/2017 CAV ORDER
27. In view of the forgoing discussion, both
these petitions are dismissed with cost.
Petitioners of both these petitions are directed to pay cost of Rs.25,000/- (Rupees twenty-five thousand only) each to the High Court Legal Service Committee, within a period of thirty days from today. If the said amount is not deposited within a period of thirty days, Registry shall place both these petitions before this Court for further action.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 25 of 25 HC-NIC Page 25 of 25 Created On Tue Dec 26 23:39:33 IST 2017