Smt T. Bharathi Kumari v. The State of Andhra Pradesh

Andhra Pradesh HC16 Jul 2021WP/9165/2021

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition filed by a diet contractor challenging her termination after being replaced by another contractor. The Court held that the replacement appointment violated G.O.Ms.No.325 guidelines. It set aside the replacement appointment, refused to revive the petitioner's contract as the original appointment was also non-tender based, and directed the respondents to ap

What did the court decide?

The appointment of the 6th respondent was set aside, and the respondents were directed to appoint a new diet contractor via tender within one month.

Smt T. Bharathi Kumari Vs The State of… — Public Procurement and Tenders | Andhra Pradesh HC (2021)

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HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

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W.P.No.9165 of 2021

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ORDER:

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The petitioner had been appointed by the 5^th respondent by proceedings vide Rc.No.433/E/2020, dated 03.02.2021 to supply diet to the patients suffering from Covid-19 pandemic, at the rate fixed in the said proceedings. Subsequently, the petitioner was given a letter dated 22.04.2021 terminating the contract of the petitioner, as a diet contractor, on the ground the 6^th respondent had been appointed as a diet contractor for the District Hospital, Tenali. Aggrieved by the notice dated 22.04.2021, the petitioner has now approached this Court.

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Sri K.L.N.Swamy, learned counsel for the petitioner submits that the method of appointment of diet contractors for Covid-19 pandemic was stipulated in G.O.Ms.No.325 Health, Medical and Family Welfare (M1) Department, dated 01.11.2011 and that the petitioner had been appointed in accordance with the said guidelines. He further submits that once the petitioner had been appointed properly, she could not have been removed unilaterally and without any opportunity of setting out her case. He further submits that the cause for the removal of the petitioner is said to be the appointment of the 6^th respondent as a diet contractor. He submits that the 6^th respondent was not appointed in accordance with G.O.Ms.No.325, dated 01.11.2011, and as such, the petitioner could not have been removed as diet contractor.

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W.P.No.9165 of 2021

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The case of the 3^rd respondent is that the petitioner had, initially, been appointed as a diet contractor in the 5^th respondent hospital in the first wave of Covid-19 pandemic in the year 2020. The Sub-Collector was informed by certain patients, during the course of his surprise visit on 22.07.2020, that the quality of food was not satisfactory. Thereupon, the 4^th respondent, by proceedings dated 25.08.2020, had appointed the 6^th respondent as diet contractor with effect from 26.08.2020. The 6^th respondent continued as diet contractor till February, 2020 when the first wave subsidised. The petitioner never objected to the appointment of the 6^th respondent as diet contractor during this time.

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Subsequently, when the second wave of Covid-19 pandemic started, the petitioner had approached the 5^th respondent for being appointed as a diet contractor and the 5^th respondent permitted the petitioner to continue as diet contractor till appointment of a diet contractor by the Government. Thereupon, the 4^th respondent had appointed the 6^th respondent as a diet contractor by his order dated 20.04.2021 with effect from 23.04.2021. In pursuance of the said orders of the 4^th respondent, the 5^th respondent had terminated the services of the petitioner and permitted the 6^th respondent to start supplying diet to the Covid-19 patients.

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Sri B.Jagadish Kumar, learned counsel appearing for the 3^rd respondent would submit that the petitioner had not been appointed as a full time diet contractor and her services

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RRR,J 3 W.P.No.9165 of 2021

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were only used as a stop gap measure in the year 2020 as well as 2021. Sri B.Jagadish Kumar, learned counsel appearing for the 3^rd respondent submits that since the 6^th respondent was appointed as the regular diet contractor, the contract given to the petitioner had to be terminated. He further submits that the petitioner was not removed on account of any ill-will or for any extraneous reasons which would require a show cause to be given to the petitioner. As the petitioner was not removed on account of any misdoing, the contention that the petitioner cannot be removed without show cause notice, cannot be sustained.

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After hearing both sides, it is clear that the ostensible reason for the removal of the petitioner is the appointment of the 6^th respondent as a regular diet contractor in the 5^th respondent hospital. This appointment is said to have been done in accordance with the proceedings on the basis of G.O.Rt.No.189 Health Medical & Family Welfare (B2) Department, dated 13.03.2020, G.O.Ms.No.29 Finance (FMUREV) Department, dated 08.04.2020 and the proceedings of the Co-Chairman, Government Hospital, Tenali, dated 25.08.2020. There is no mention on G.O.Ms.No.325, dated 01.11.2011 in the order of the appointment of the 6^th respondent. In fact the case of the 3^rd respondent is that G.O.Ms.No.325 is not applicable to the case of the petitioner at all. The proceedings also do not show that the 6^th Respondent was appointed as a diet contractor

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RRR,J 4 W.P.No.9165 of 2021

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through a tender process as required under G.O.Ms. No. 325, dated 01.11.2020.

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G.O.Rt.No.189, dated 13.03.2020 essentially related to the setting up of command and control centres at the division level. G.O.Ms.No.29, dated 08.04.2020 related to the instructions about the supply of food to the quarantine centre prescribing the menu and standards for supply of the food. This G.O did not lay down any guidelines or regulations as to how diet contractors are to be selected or appointed. G.O.Ms.No.325, dated 01.11.2011 which is subsequent to these G.Os set out the process for finalisation of the tenders for supply of diet to Covid-19 patients. In the circumstances, it must be held that the appointment of any diet contractor would have to follow the guidelines and procedures set out in G.O.Ms.No.325. In the present case, except the statement of the petitioner that she was appointed in accordance with the relevant provisions, nothing has been placed on record to show that the petitioner was appointed as diet contractor after a tender was called for the appointment of a diet contractor in accordance with the guidelines under G.O.Ms.No.325.

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As the provisions of G.O.Ms.No.325 have not been followed in the appointment of the 6^th respondent, his appointment would have to be set-aside. Despite notice being served on him, the 6^th respondent has not chosen to appear before this Court and, therefore, the present order would have to be passed without hearing him.

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RRR,J 5 W.P.No.9165 of 2021

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However, it must not be lost sight that even the appointment of the petitioner does not appear to be on the basis of any tender called under G.O.Ms.No.325. Once the order appointing the 6^th respondent is set-aside along with the impugned order of termination of the petitioner, the position of the petitioner as a diet contractor would revive.

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It is settled law that the Court by setting aside an illegal order cannot revive another illegal situation.

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Keeping the aforesaid facts in mind, this writ petition is disposed of by setting aside the appointment of the 6^th respondent as a diet contractor for Covid-19 patients with a further direction to the respondents 2 to 5 to select and appoint a diet contractor in the 5^th Respondent Hospital strictly in accordance with the requirements of G.O.Ms.No.325, dated 01.11.2011 within a period of one month from the date of receipt of this order. Needless to say, it would be open to both the petitioner and the 6^th respondent to participate in the selection process.

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As a sequel, pending miscellaneous petitions, if any, shall stand closed.

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____________________________ R. RAGHUNANDAN RAO, J.

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16^th July, 2021 RJS

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RRR,J 6 W.P.No.9165 of 2021

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HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

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W.P.No.9165 of 2021

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16^th July, 2021

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RJS

Smt T. Bharathi Kumari v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Smt T. Bharathi Kumari v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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