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2017 DIGILAW 955 (CAL)

Malay Sarkar v. State of West Bengal

2017-12-06

JYOTIRMAY BHATTACHARYA, SAHIDULLAH MUNSHI

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JUDGMENT : JYOTIRMAY BHATTACHARYA, J. 1. Since common issues are involved in both these appeals, we heard both the appeals analogously and we dispose of both the appeals and the applications filed in connection therewith by a common judgment. 2. The writ petitioners-appellants are the existing contractors, who have been supplying cooked diet to the patients of the different Government hospitals since 2014. They were all selected after being found successful in the tender process held in the year 2014. 3. The State-respondents floated tenders for selection of contractors for supply of cooked diet to the patients in the Government Hospitals in 2017. Before floating the tenders, the State-respondents in compliance of the order passed by the learned single judge of this court on 30th March 2017 in W.P. No. 9208 (W) of 2017 constituted a Broad Based Committee in terms of the order passed by another learned single judge of this court on 2lst August 2009 in W.P. No. 11766 (W) of 2009 to review and determine the rationalised rate of cooked diet taking into account the present market value of dietary articles, for supply of cooked diet to the indoor patients of different Government Hospitals. The Committee reviewed the rate in April 2017 after taking into consideration the constant increase in price index & revised the rates of cooked diet to be supplied to the indoor patients of different Government hospitals in partial modification of the earlier Government Order issued by the Health and Family Welfare Department, Government of West Bengal on 10th November, 2014 keeping in mind the better diet to be provided to the patients. 4. The writ petitioners filed these writ petitions complaining that the rate, which was ultimately approved by the Finance Department for supply of cooked diet to the indoor patients of different Government Hospitals is less than the rate, which was suggested by the Broad Based Committee. They further complained that even the rate for supply of cooked diet to the indoor patients of different Government Hospitals having identical intake capacity has not been fixed uniformly by the Finance Department. 5. Our attention is also drawn to the Government Memo dated 27th July 2017 to the rates, which the Finance Department approved for supply of cooked diet for the patients of the Government Hospitals. 5. Our attention is also drawn to the Government Memo dated 27th July 2017 to the rates, which the Finance Department approved for supply of cooked diet for the patients of the Government Hospitals. Drawing our attention to the rates, which were approved by the Finance Department of the Government for supply of cooked food for the patients admitted in ESI Hospitals, it is argued that the Government has fixed higher rate for supply of cooked food for the patients to be admitted in the ESI Hospitals than that of the rate for supply of cooked food for the patients to be admitted in the Government Hospitals. Our attention was also drawn by the learned counsel appearing for the petitioners that even the rates are fixed by the Government for supply of cooked food to the patients of different Hospitals differently though intake capacity of the patients in those hospitals is uniform. It is thus submitted that there is lack of transparency and/or arbitrariness on the part of the State authorities in fixing the rate of the cooked diet to be supplied to the patients to be admitted in different Government Hospitals. 6. We are also informed by the learned counsel appearing for the parties that the contractors who intend to participate in the tender process can neither quote any rate below the cost of raw-materials approved by the Government nor can quote any rate higher than the maximum cost of diet fixed by the State Government in the impugned memo. 7. In these set of facts, the writ petitions were filed seeking direction upon the State-respondents to forthwith withdraw and/or cancel and/or recall the impugned Memos dated 27th July 2017 and 2nd August 2017 by which the State respondents published the total costs of raw-materials and the maximum total costs of diet for the year 2017 which will continue for the next three years. 8. The learned Single Judge entertained the writ petition on 28th August 2017 and directed the parties to complete their affidavits in connection with the writ petition within the specified period. The writ petitions were directed to be listed on 1st November 2017. 9. The petitioners/appellants also prayed for an interim relief for restraining the respondents authorities from giving effect or further effect to the impugned Memos dated 27th July 2017 and 2nd August 2017 till the disposal of the writ petitions. The writ petitions were directed to be listed on 1st November 2017. 9. The petitioners/appellants also prayed for an interim relief for restraining the respondents authorities from giving effect or further effect to the impugned Memos dated 27th July 2017 and 2nd August 2017 till the disposal of the writ petitions. The learned trial judge refused to pass any interim order, as prayed for, in the said writ petitions. 10. Being aggrieved by the order of refusal to grant interim injunction in the said writ petitions, the instant appeals have been filed. 11. As per the direction passed by this court, the records relating to the process for fixing of the revised rates of cooked food published by the State-respondents in the aforesaid memorandum have been produced before us. We find that the Broad Based Committee was constituted. The Broad Based Committee submitted its report suggesting the rates of raw materials and the rate of cooked food but the Government has reduced the rates prescribed by the Broad Based Committee to some extent. However, fact remains that even the reduced price is more than the price which the existing suppliers viz. the writ petitioners-appellants have been presently charging for supply of the cooked diet to the different Government Hospitals. 12. Mr. Banerjee, learned senior counsel appearing for the State-respondents tried to justify the reason for reduction of the price by the Government. He submits that the treatment in the government hospitals is totally free. Even the diet is also supplied to the patients in the government hospitals free of cost. He further submits that the costs of supply of cooked diet will also vary from one government hospital to the other depending upon the intake capacity of the hospitals. He further submits that the cost of cooked diet to be supplied to the ESI hospitals cannot be compared with the cost of cooked diet to be supplied to the government hospitals for the reason that the treatment including supply of diet to the patients in the government hospitals is absolutely free, but the treatment of the patients is not free in the ESI hospitals. ESI hospitals are run with the contribution to be made by the employer and the employees. As such, the service to be provided to the ESI hospitals cannot be compared with the service to be provided in the government hospitals. 13. Mr. ESI hospitals are run with the contribution to be made by the employer and the employees. As such, the service to be provided to the ESI hospitals cannot be compared with the service to be provided in the government hospitals. 13. Mr. Banerjee also submits that the bidders cannot have any say in the process of fixation of the base price as well as the ultimate price of the cooked diet by the State-respondents. He, thus, tries to impress upon us that the learned Trial Judge did not commit any illegality in refusing to pass any interim order in this matter. 14. After hearing the learned counsel appearing for the parties, we feel that the dispute which is raised in the writ petitions are required to be considered after exchange of affidavits between the parties. The bidders cannot dictate the State-respondents as to how the State authority will fix either the base price or the maximum price within which the bids are to be quoted by the bidders without, however, compromising with the quality of the food and the quantity thereof. In the writ proceeding, the respondents have to satisfy the Court that fixation of either the base price or the maximum price of the cooked food was rational and prices were fixed without compromising the quality of food and quantity thereof to be supplied to the patients in the government hospitals. 15. In case it is found that the maximum price of cooked diet had to be reduced as financial position of the State did not permit the State to bear the additional financial liability, then the additional financial burden may be met out of the fund to be realised from the patients, but in no case quality of diet and/or quantity thereof can be compromised at any rate. Such exercise can only be made by the State-respondents by filing affidavit in the writ petitions. As such, we hold that the learned Trial Judge did not commit any illegality in passing directions for filing affidavits as also by refusing to pass interim order in this matter as the supply of the cooked diet to the patients of the government hospitals is an essential supply which cannot be interrupted even for a day. As such, we hold that the learned Trial Judge did not commit any illegality in passing directions for filing affidavits as also by refusing to pass interim order in this matter as the supply of the cooked diet to the patients of the government hospitals is an essential supply which cannot be interrupted even for a day. As such, we permit the State-respondents to complete the tender process and even to issue supply order to the successful bidders with this rider that such selection of contractor will ultimately abide by the result of the writ petitions. 16. The appellants/writ petitioners are also permitted to participate in the tender process without prejudice to their rights and contentions in the proceeding. 17. The interim order passed by this Court earlier is modified to the above extent. 18. Time for filing affidavit-in-opposition to the writ petitions by the respondents is extended by two weeks from date; reply, if any, be filed by the appellants/writ petitioners within a week thereafter. Liberty to mention before the learned Single Judge for early disposal of the writ petitions. 19. We request the learned Single Judge to dispose of the writ petitions as early as possible. 20. Both the appeals and the applications filed in connection therewith are, thus, disposed of. 21. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.