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2019 DIGILAW 494 (CAL)

Tapas Kumar Ghosh v. State of West Bengal

2019-04-16

BISWANATH SOMADDER, THOTTATHIL B.RADHAKRISHNAN

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JUDGMENT : Biswanath Somadder, J. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay. 2. The instant appeal arises out of a judgment and order dated 26th February, 2019, passed by a learned Single Judge in W. P. 20241 (W) of 2018 (Tapas Kumar Ghosh vs. The State of West Bengal & Ors.). 3. By the impugned judgment and order, the learned single Judge was pleased to dismiss the writ petition for reasons as stated therein. 4. The instant appeal has been preferred before us by the writ petitioner. 5. The facts of the case reveal that the appellant/writ petitioner as well as the private respondent participated in a notice inviting tender dated 17th January, 2018, for supply of cooked diet for indoor patients at various hospitals situated in the district of Murshidabad for a period of 3 (three) years (renewable at the end of each completed year of satisfactory service). The candidature of the appellant/writ petitioner was rejected on the ground that the appellant having no registration certificate. It is the admitted position that this issue was never challenged by the appellant/writ petitioner while seeking mandatory relief before the writ Court. The only relief that he sought for was issuance of a writ in the nature of mandamus commanding the concerned authorities to admit his technical bid. 6. Be that as it may, the primary challenge before the writ Court appears to be directed against the private respondent no.9 in the writ proceeding (being the private respondent no.9 before us). It was the case of the appellant/writ petitioner that the private respondent was not coming within the zone of consideration since he did not have the requisite technical qualification, i.e., not satisfying the eligibility criteria of the quantum of work required to be done in the last 3 (three) years. The other issue which was sought to be raised before the learned Single Judge by the appellant/writ petitioner was with regard to the private respondent not being able to produce the required certificate showing his professional tax registration. Primarily, on these two issues, the appellant/writ petitioner approached the writ Court. The other issue which was sought to be raised before the learned Single Judge by the appellant/writ petitioner was with regard to the private respondent not being able to produce the required certificate showing his professional tax registration. Primarily, on these two issues, the appellant/writ petitioner approached the writ Court. The learned Single Judge considered both the issues and took into consideration that in the facts of the present case, the Chief Medical Officer of Health, Murshidabad, undertook a selection process for the purpose of grant of contract in respect of dietary items of a few hospitals in Murshidabad district. The learned Single Judge noticed that both the appellant/writ petitioner and the private respondent participated in respect of Jangipur Sub-Division Hospital and Multi Super Specialty Hospital, Murshidabad. The Court also noticed the essential terms and conditions of the tender process. After considering the same, the learned Single Judge has been pleased to observe as follows:- "One of the conditions in the tender process is that an aspirant must have a Professional Tax Registration Certificate. The Professional Tax Registration is governed by the Act of 1979. The Act of 1979 contemplates two kinds of registrations. One kind of registration is for employees paying its employees less than Rs.10,000/- per month and the other for in excess of the Rs.10,000/- per month. The private respondent falls with the category of Section 5(2) of the Act of 1979. The authorities took into consideration the provisions of the Act of 1979 when it allowed the aspirants before it possessing certificates under Section 5(2) as also Section 5(3) of the Act of 1979 to participate in the tender process. The authorities acted in terms of the Act of 1979 while allowing to category of persons to participate in the tender process. So far as the eligibility criteria of meeting the requisite quantum of contract within the specified period is concerned, the private respondent disclosed documents to establish that it executed such specified quantity of work within a period of time which less than the prescribed period of time. The private respondent cannot be said to be ineligible on such score also." 7. The learned Single Judge also distinguished the judgment cited by the appellant/writ petitioner by holding that in that case, the aspirant in the tender process had contended that it did not have a registration under the Act of 1979 at all. The private respondent cannot be said to be ineligible on such score also." 7. The learned Single Judge also distinguished the judgment cited by the appellant/writ petitioner by holding that in that case, the aspirant in the tender process had contended that it did not have a registration under the Act of 1979 at all. The Court observed to the effect that it is in such context that the judgment cited by the appellant/writ petitioner had been rendered and should be understood. 8. So far as the other issue that is sought to be raised by the appellant/writ petitioner - with regard to the intending tenderer being required to produce credentials in the manner as laid down under clause 3.1 (a) or (b) with regard to eligible and qualified bidders - is concerned, it is clear from a plain reading of these terms and conditions that the eligibility criteria of the quantum of minimum value of work is 40% in respect of single completed work and 30% in respect of 2 (two) similar nature of completed works and the same is required to be completed "during" 3 (three) years prior to the date of the issue of the e-tender notice. 9. In the facts of the instant case, we notice from the document annexed at page 145 of the application for stay that the private respondent had supplied to Asansol & Durgapur Sub-Divisional Hospitals for the period, April, 2015 to December, 2017. Each institution covered 2 years 8 months and 2 years 9 months, respectively. Combining them together, it exceeds three years. As observed earlier, the minimum value of the estimated work that is required to be completed is "during" 3 (three) years. The expression "during" - in the facts of the instant case - will mean that the ceiling limit is 3 (three) years and if a contractor had been able to effectively supply in terms of the contract to the two sub-divisional hospitals, namely, Asansol & Durgapur Sub-Divisional Hospitals, he would certainly be held to be eligible to participate in the tender process in terms of clause 3.1(a) or (b), as the case may be. 10. In an Intra-Court Mandamus Appeal, no interference is usually warranted unless palpable infirmities or perversity are noticed on a plain reading of the impugned order. 10. In an Intra-Court Mandamus Appeal, no interference is usually warranted unless palpable infirmities or perversity are noticed on a plain reading of the impugned order. In the facts of the instant case, we do not notice any such palpable infirmity or perversity on a plain reading of the impugned order. That apart and in any event, the impugned order is supported with cogent and justifiable reasons. 11. Learned advocate appearing on behalf of the appellant/writ petitioner has relied on an unreported judgment in the case of Indranil Bhattacharya vs. Debabrata Banerje & Ors. (FMA 3389 of 2016 with CAN 3398 of 2016), which does not have any manner of application at all in the facts of the instant case. 12. We would hasten to observe that even in cases where question is of choice or consideration of computing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence, the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in the proceedings under Article 226 of the Constitution. [See, Joshi Technologies International Inc. Vs. Union of India & Ors., (2015) 7 SCC 728 ] 13. For reasons stated above, we do not find any cause for interference in respect of the impugned judgment and order. 14. The appeal and the application for stay are liable to be dismissed and stand accordingly dismissed.