Dismissed

National Medicose v. State of Rajasthan

Rajasthan HC12 Oct 2023CW/5981/2023

Case brief

AI extract

What is this about?

In an S.B. Civil Writ Petition, the High Court of Rajasthan dismissed the petitioner's challenge to his disqualification from a public tender. The court held that a discrepancy in the Demand Draft's nomenclature, violating absolute tender conditions, warranted dismissal of the petition. Reliance was placed on binding precedent from the Gujarat High Court.

What did the court decide?

Petition dismissed; all pending applications disposed of; no relief granted to petitioner.

National Medicose Vs State of Rajasthan — Public Procurement and Tenders | Rajasthan HC (2023)

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[2023:RJ-JD:33518]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 5981/2023

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National Medicose, Behind Dhuri Bai Dharmshala, Gali, Shop Number 1, Jhamb Complex, Sadul Colony, Bikaner Through Its Proprietor Abdula Sabir S/o Sayed Anwar Ali Cast Musalman Age About 46 Years R/o 580, Near Madrasha Rahmaniya, New Kuva, Bikaner.

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----Petitioner

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Versus

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1. State Of Rajasthan, Through The Secretary, Department Of Medical And Health, Govt Of Rajasthan, Jaipur.

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1. Principal And Controller, Sardar Patel Medical College, Bikaner.

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1. Member Secretary, Rajasthan Medicare Relief Society, P.b.m. Hospital, Bikaner.

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----Respondents

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For Petitioner(s)	: Mr.	Roshan Lal
For Respondent(s)	: Mr. Mr.	Pankaj Sharma, AAG a/w Rishi Soni

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Judgment

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Reserved on 06/10/2023

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Pronounced on 12/10/2023

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This petition under Articles 226 & 227 of the Constitution of

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India has been preferred claiming the following reliefs:

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“In the above facts and circumstances of the case, it is, therefore, prayed that this writ petition may kindly be allowed and:

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A. That the writ petition of petitioner may kindly be allowed and order of annexure 5 and 8 may kindly be quashed and set aside.

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B. That respondent may kindly be directed that considering the petitioner’s bid as successful, and order him to participate in the online/technical bid.

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C. That any other relief to which the petitioner is entitled in the facts and circumstances of this case may kindly be granted in favour of the petitioner.

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D. That costs of this writ petition may kindly be awarded to the petitioner.”

[2023:RJ-JD:33518]

[CW-5981/2023]

(2 of 7)

Brief facts of the case, as placed before before this Court by learned counsel of the petitioner, are that the petitioner is a medicine supplier and for making such supplies, he was issued the requisite drug license by the concerned department.

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2.1. The respondents issued a tender (E-NIB No.30), whereby the dealers were invited for making supplies of the medicines. The petitioner participated in the said tender, and as per condition no.16 of the tender in question, the technical bid was to be opened only after receipt of the correct nomenclature on the Demand Draft/Bankers Cheque for the tender fee. The petitioner submitted 3 Demand Drafts, in total, and duly fulfilled all the requisites for the tender in question.

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2.2. Thereafter, the respondents vide order dated 14.03.2023 did not allow the petitioner to participate in the process of technical bid on the ground that the names/details mentioned in the Demand Draft so submitted by the petitioner were not correct.

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2.3. Aggrieved by the said order dated 14.03.2023, the petitioner preferred an appeal before the Principal, S.P. Medical College, Bikaner, with a request to declare the petitioner as eligible to participate in the online bid process, but the said appeal was dismissed vide order dated 24.04.2023.

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2.4. Thus, being aggrieved by the orders dated 14.03.2023 and 24.04.2023, the present petition has been preferred claiming the afore-quoted reliefs.

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Learned counsel for petitioner submitted that the application for Demand Draft in question (in the name of Member Secretary, RMRS PBM Hospital, Bikaner) was written by the petitioner himself

[2023:RJ-JD:33518]

[CW-5981/2023]

(3 of 7)

and submitted before the concerned Bank, with a request to prepare the Demand Draft in the name of the said authority, which was prepared accordingly.

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3.1. Learned counsel further submitted that the Demand Draft submitted by the petitioner contained the correct particulars, and thus, it was not lacking any requisite details. It was also submitted that non-mentioning of ‘PBM’ in the Demand Draft was only a clerical error, on the part of the Bank, and thus, for which the petitioner cannot be held liable, so as to oust him from the process of technical bid.

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3.2. Learned counsel also submitted that the petitioner has not violated any of the conditions of the tender in question, and the entire procurement process in question as conducted by the respondents is against the provisions of the Rajasthan Transparency in Public Procurement Act, 2012, and therefore, impugned orders suffer from arbitrariness and illegality.

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On the other hand, Mr. Pankaj Sharma, learned Additional Advocate General assisted by Mr. Rishi Soni, appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioner, submitted that the present petition is not maintainable on count of availability of a statutory remedy in form of Second Appeal under Section 39 of the Rajasthan Transparency in Public Procurement Act, 2012, and therefore, the present petition deserves dismissal.

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4.1. It was further submitted that the Demand Draft (ICICI Bank, Ambedkar Circle Branch, Bikaner) bearing no.501082 dated 09.03.2023 was issued in the name of “Member SEC R M R S

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(4 of 7) [CW-5981/2023]

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[2023:RJ-JD:33518]

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Hospital (BKN)” whereas it ought to have been issued in the name of “Member Secretary, RMRS, PBM, Hospital, Bikaner”, and therefore, the condition no.16 of the tender in question is clearly violated by the petitioner. The said Condition no.16 is reproduced as hereunder:-

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“ 16- fu/kkZfjr vof/k esa fufonk “kqYd vkj-vkbZ-,l-,y- izfdz;k “kqYd ,oa cksyh izfrHkwfr jkf”k ds Mh-Mh-@cSadj pSd lgh uke izkIr gksus ds i”pkr~ gh rduhdh fcM [kksyh tk;sxh vU;Fkk rduhdh :i ls v;ksX; ?kksf’kr fd;k tk;sxk A ”

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4.2. It was also submitted that the condition no. 16 of the tender in question is a mandatory condition and does not leave any scope for extension of any kind of relaxation to any bidder, including the present petitioner. As per learned Additional Advocate General, since the authorities are duty bound to act pursuant to the conditions mentioned in the tender in question, and therefore, the impugned orders are justified in law.

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4.3. It was further submitted that in the case of Ganesh Distributors Vs State of Rajasthan & Ors. (S.B.C.W.P. No.

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2889/2021, decided by this Court on 06.04.2021), this Court clearly observed that condition no.16, as herein, is absolute and violation of the same attracts the disqualification from the technical bid. It was also submitted that the said order went into appeal before a Division Bench of this Hon’ble Court in case of Ganesh Distributors Vs State of Rajasthan & Ors.

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(D.B.S.A.W. No. 258/2021 ), and was dismissed vide order dated 16.04.2021, while upholding the order dated 06.04.2021.

[2023:RJ-JD:33518]

[CW-5981/2023]

(5 of 7)

Heard learned counsel for the parties as well as perused the record of the case alongwith orders referred at the Bar.

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This Court observes that the respondents floated the tender in question, whereby the dealers were invited for making supplies of the medicines. The petitioner participated in the said tender. Thereafter, the respondents vide impugned order dated 14.03.2023 did not allow the petitioner to participate in the process of technical bid on the ground that the names/details mentioned in the Demand Draft so submitted by the petitioner were not correct; against the same, the petitioner preferred the aforementioned appeal, which was dismissed vide the impugned order dated 24.04.2023.

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At this juncture, this Court considers it appropriate to reproduce the order dated 06.04.2021 passed in the aforementioned case of Ganesh Distributors Vs State of Rajasthan & Ors. (S.B.C.W.P. No.2889/2021) , as hereunder:;

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“In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.

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Learned counsel for the petitioner has shown the Annexure-4, by which, the bankers cheque for the tender in question was given in the name of Managing Director, Rajasthan Medicare Relief Society, PBM Hospital, Bikaner whereas it ought to have been given in the name of Member Secretary, Rajasthan Medicare Relief Society, PBM Hospital, Bikaner. He further submits that the mistake on the part of the nomenclature has been committed by the Bank and the petitioner is not responsible for the same.

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Learned Additional Advocate General however, submits that it was a responsibility of the petitioner to have the correct nomenclature on the bankers cheque as per the condition No.16, which reads as follows:

[2023:RJ-JD:33518]

[CW-5981/2023]

(6 of 7)

“ 16- fu/kkZfjr vof/k esa fufonk ‘kqYd] vkj-vkbZ-,l-,y- izfØ;k ‘kqYd ,oa cksyh izfrHkwfr jkf’k ds Mh-Mh-@cSadj pSd lgh ukes izkIr gksus ds i’pkr~ gh rduhdh fcM [kksyh tk;sxh vU;Fkk rduhdh :i ls v;ksX; ?kksf”kr fd;k tk;sxkA ”

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This Court, after hearing learned counsel for the parties and perusing the record of the case, finds that condition No.16 is absolute and violation of it attracts disqualification from the technical bid.

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In view of the above, the present is dismissed. Stay petition as well as all pending applications also stand dismissed accordingly.”

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It is also considered to reproduce the relevant portion of the order dated 16.04.2021 passed by the Division Bench of this Hon’ble Court in the aforementioned case of Ganesh Distributors Vs State of Rajasthan & Ors. (D.B.S.A.W. No. 258/2021 ) , whereby the said appeal was dismissed, as hereunder:

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“We have considered the submissions.

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It is an admitted position that the name in the cheque issued on behalf of the appellant-petitioner was wrongly mentioned, therefore, the respondents have rightly not considered the same in accordance with condition No.16

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of the tender document. If the appellant-petitioner has suffered for the mistake of the Bank in filling the correct particulars, the appellant-petitioner can proceed against the Bank but surely no fault can be found with the respondents.

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Thus, no error has been committed by the learned Single Judge in rejecting the writ petition.

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The appeal being devoid of merit and is dismissed.”

[2023:RJ-JD:33518]

[CW-5981/2023]

(7 of 7)

This Court further observes that in pursuance of the tender in question, the petitioner submitted the aforementioned Demand Draft no. 501082 dated 09.03.2023, which was issued in the name of “Member SEC R M R S Hospital, (BKN), instead of “Member Secretary, RMRS, PBM, Hospital, Bikaner”, and therefore it is clear the nomenclature/particulars were wrongly mentioned in the said demand draft, which was a violation of the aforementioned condition no.16 of the tender in question.

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This Court also observes that the last date for submitting the bids was 13.03.2023, and that, the petitioner being a bidder was under an obligation to duly verify the particulars mentioned in the Demand Draft in question before submitting the same so as to enable him to participate in the technical bid of the tender process in question, which he clearly failed to do so, thus, violated the aforementioned condition no.16 of the tender in question.

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Thus, in light of the aforesaid observations and in view of the afore-quoted orders as well as looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioner in the present petition.

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Consequently, the present petition is dismissed . All pending applications stand disposed of.

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(DR.PUSHPENDRA SINGH BHATI), J.

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SKant/-

National Medicose v. State of Rajasthan

Case brief

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National Medicose v. State of Rajasthan

Case brief

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