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2015 DIGILAW 652 (JK)

GH. JEELANI GANAI v. STATE OF J&K

2015-12-10

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : Ali Mohammad Magrey, J. The petitioner has filed this writ petition for issue of certiorarised mandamus to command the respondents to allow the petitioner to supply the rate contracted Drugs till the subsistence of the contract, viz. 10.09.2015, or till the new rate contract is approved by the competent authority. 2. Respondent no. 4, the Chief Medical Officer, Kupwara, in his capacity as the Convener, District Health Society, in terms of a notice issued in that behalf, which does not bear any no. or date, invited tenders to reach him for supply of Drugs, equipments, surgical and other items for Health Department, Kupwara, to reach him on or before 07.08.2014 upto 2:00 PM. In terms of clause 23 of the NIT, the rate contract was to remain valid for one year from the date of approval of the rate contract or till new rate contract was approved by the Distract Purchase Committee, Kupwara. Petitioner was one of the tenderers. 3. In terms of Authorisation Letter dated 10.09.2014, respondent no. 4 authorised the petitioner to supply the items as per the list enclosed therewith on the terms and conditions mentioned therein. This Authorisation Letter makes reference to the Tender Notice No. NRHM/Kup/1952-56 dated 01.09.2014. It is not comprehensible how is it shown to have been issued on 01.09.2014 when the tenders were to reach the issuing authority of the NIT by 07.08.2014. Be that as it may, the condition as contained in clause 23 of the NIT that "the rate contract will remain valid for one year from the date of approved rate contract or till new rate contract is approved by the DPC Kupwara", was reiterated at clause 15 of the Authorisation Letter. 4. It appears that before completion of the period of one year, respondent no. 4 commenced steps to cancel and terminate the contract with the petitioner. In this connection, he addressed communication dated 20.05.2015 to the District Development Commissioner, Kupwara, respondent no. 3, seeking grant of approval to go for fresh tenders for purchase of Drugs and equipments. This was followed by communication no. NHM/Kup/652-62 dated 10.07.2015 issued by respondent no. 4 to all the Block Medical Officers of the District to the following effect: "Sub: Termination of Drug/equipments/consumables contract approved for the year 2014-15 in favour of M/s Ganie Medical Agency and ors. This was followed by communication no. NHM/Kup/652-62 dated 10.07.2015 issued by respondent no. 4 to all the Block Medical Officers of the District to the following effect: "Sub: Termination of Drug/equipments/consumables contract approved for the year 2014-15 in favour of M/s Ganie Medical Agency and ors. Sir, On the subject, it is intimated the contract of Drugs/equipments/ consumables in favour of M/s Ganie Medical Agency and ors got expired on 31st March 2015. However, the contract was further extended for one month which also stands expired. Since due paucity of time, this office was not in a position to go for fresh tenders during the extended time given. Keeping in view the above back drop, the Drug/equipments/consumable contract in favour of M/s Ganie Medical Agency Kupwara and ors stands cancelled and terminated with immediate effect. You are further advised to arrange the all necessary drugs/consumables required under JSSK for patient care at your own level till such time the new firms for the current year 2015-16 shall be approved by the District Purchasing Committee." Feeling aggrieved of the aforesaid communication, the petitioner has filed this writ petition, challenging the same and seeking the direction as already mentioned at the beginning of this judgment. The ground taken is simple: that in terms of Clause 23 of the NIT and Clause 15 of the Authorisation Letter, the rate contract could not be cancelled before expiry of one year and that it is to be extended till the new rate contract was approved, which has not yet been approved. 5. Respondents have filed their response stating therein, inter alia, "that the tenders were called for the financial year 2014-15 and were valid for one year and, accordingly, the petitioner's tender was valid for one year from the date of Authorisation Letter which was issued on 10.09.2014" "that communication [no. NHM/Kup/287-89 dated 20.05.2015] was addressed to District Development Commissioner Kupwara (Chairman NHM) for providing approval for going for fresh tendering as the committee feels to terminate the petitioners contract". 6. I have hoard learned counsel for the parties, perused the pleadings of the parties/material on record and considered the matter. 7. It is not disputed that the Authorisation Letter for supply of the relevant items in favour of the petitioner was issued on 10.09.2014. 6. I have hoard learned counsel for the parties, perused the pleadings of the parties/material on record and considered the matter. 7. It is not disputed that the Authorisation Letter for supply of the relevant items in favour of the petitioner was issued on 10.09.2014. It is also not disputed that the rate contract had to remain in force and valid for one year from the date of the Authorisation Letter. However, the contract was sought to be terminated and cancelled in July, 2015 itself. I am not going into the legality or otherwise of the ground mentioned in the impugned communication. The fact remains that this communication was stayed by the Court: in terms of order dated 13.08.2015. Naturally, therefore, it has not and could not have been enforced. Meanwhile, one year of the rate contract has already elapsed. In fact, we are in the third month beyond the admitted period of contract. Therefore, there remains nothing to be decided in this petition and, as a matter of fact, with the efflux of time, it has become infructuous. 8. It was sought to be argued by learned counsel for the petitioner that since the new rate contract has not been approved, the petitioner in terms of the relevant clauses, viz. Clause 23 of the NIT and Clause 15 of the Authorisation Letter issued in his favour has a right to continue to supply such items till the new rate contract was approved by the Purchase Committee. 9. The relevant clause reads as under "The rate contract will remain valid for one year from the date of approved rate contract or till new rate contract is approved by the DPC Kupwara." The first part of the clause makes is manifest that from the date of the contract, it was to remain valid only for one year. The second part confers only a discretion on the competent authority to continue the validity of the contract for a further period till the new contract was approved by the Purchase Committee. This part would not confer any authorization on the petitioner to continue to make the supplies at his discretion even after expiry of one year. Obviously, this is an enabling provision of the contract, not an obligatory condition. This part would not confer any authorization on the petitioner to continue to make the supplies at his discretion even after expiry of one year. Obviously, this is an enabling provision of the contract, not an obligatory condition. Given the nature of the supplies, this provision only makes sure that the patient care does not suffer even for a day on account of non-availability of medicines, equipments etc. by reason of non-finalization of the new rate contract. In the eventuality of a delay, be it of only one day, in finalization of the new contract, this provision enables the respondents to procure the medicines etc. on the previous rates from the previous contractor; otherwise the patient care would suffer. This provision cannot be used as a garb to continue with the previous rate contract or to seek its continuation. 10. It may also be observed here that it is not comprehensible how could the respondents proceed with the new tendering process during the pendency of this writ petition and subsistence of the stay order passed by the Court. If there has been any delay in finalization of the fresh rate contract that has been by reason of the order of interim direction operating against the respondents. The petitioner cannot be allowed to draw a premium on his writ petition, which has been rendered infructuous, to bind the respondents to allow the petitioner too make the supplies in question for a limitless time. As already mentioned, by reason of pendency of this petition and the operation of the stay order, the previous rate contract with the petitioner has already been in operation almost three months beyond the period of one year fixed in the contract. This certainly is not the import of the relevant clauses of the rate contract relied upon by the petitioner. 11. This petition is therefore, dismissed together with the connected CMP. Interim direction subsisting shall stand vacated. 12. Before parting, it needs a mention that the respondents seem to be not adhering to the schedule in inviting tenders and allotment of rate contracts. If the supplies are required for a particular financial year, say 2014-15, as in the instant case, how come does it happen to make such rate contract six months after the start of the financial year in the month of September, 2014 as in the present case. If the supplies are required for a particular financial year, say 2014-15, as in the instant case, how come does it happen to make such rate contract six months after the start of the financial year in the month of September, 2014 as in the present case. Why cannot such process be initiated in the month of March so as to enable the successful bidder to make the supplies with effect from first of April each year? The respondents should make a sincere endeavour to endure that tenders are invited and allotted in time; otherwise the practise of delayed processes is bound to give rise to suspicions in their dealings. 13. Writ petition OWP No. 1871/15 shall be governed by the order passed in the instant petition OWP No. 1411/15, therefore, disposed of accordingly. 14. Registry to keep photocopy of this order on file OWP No. 1871/15. 15. No order as to costs.