Decided on November 02,2006

Futura Surgicare Pvt Ltd Appellant
STATE OF JANDK Respondents


- (1.) TENDER notice No. 5 of 2006 dated 7 -4 -2006 came to be issued by the Financial Advisor -cum -Chief Accounts Officer. Health and Medical Education Department - - respondent no. 4 for supply of items under Group no. III (Dressing and suturing Material) for use in various institutions, Hospitals and Health and Medical Education Department for the year 2006 -07 on the terms and conditions contained in the said notice. It is profitable to notice the relevant condition (e) contained in the notice which reads: "Yearwise turnover of not less than Rs. 15 crores per annum of Principal manufacturer of Suturing Materials (To authenticate the annual Turnover yearwise statement of accounts) Balance Sheet duly audited and certified by the Chartered Accountant should be submitted with the Techincal Bid."
(2.) IN terms of this condition, those manufacturers / registered firms/ private suppliers / authorized suppliers or those who arc dealing actually in the goods for which tenders came to be issued, could participate in the tender process on the terms and conditions stipulated therein, one of which is that they must have Yearwise Turnover of not less than Rs. 15 crores per annum of Principal manufacturer of Suturing materials and they had to authenticate annual turnover yearwise statement of accounts (Balance Sheet) duly audited and certified by the Chartered Accountant, which was to be submitted with the Technical Bid.
(3.) THE petitioner has pleaded in the writ petition that he has been supplying Suturing materials to the respondents for the last so many years and has obtained appreciation letters contained in Annexures A to D to the writ petition and that the condition is aimed at to deprive him from participating in the tender process so as to pave was for allotting the contract to some other agency. The conditions laid down in clause (e) of the tender document is wholly arbitrary discriminatory and actuated with malice. The respondents have deliberately and with malafide intentions tried to preclude the petitioner from participating in the tender process despite of the fact that the petitioner was successfully obtaining supply orders of the Suturing materials for the last few years, being the lowest tenderer, which forced the petitioner to file a suit before the 3rd Additional District Judge, Srinagar in which a direction came to be passed on the interim application whereby respondents were directed to consider the representation of the petitioner before finalizing the tender process. The respondents considered the representation of the petitioner which came to be rejected vide consideration order No. 103 -HME of 2006 dated 3 -8 -2006. The petitioner has invoked the jurisdiction of this Court for quashing condition (e) contained in the tender notice and the consideration order dated 3 -8 -2006 on the grounds taken in the writ petition, briefly narrated hereinabove. Respondents have filed the reply and have resisted the petition on the ground that condition (e) is aimed at to ensure quality supply and to ensure participation of all those suppliers / contractors who are possessing sound documents/capacity of making supplies to the respondent - - department. It is also submitted that the tender notice is not in any way arbitrary and respondents have not given any benefit to any person or a party to the exclusion of the petitioner. The petitioner was at liberty to respond to the said notice, provided he was fulfilling the conditions contained in the NIT. In response to the NIT, 37 tenderers had submitted their tenders for supply of Dressing and Suturing material and technical bid was opened by the Technical Committee constituted for the purpose and final bid was also opened on 28 -7 -2006 by the committee and the report of technical evaluation had been received. However supply order could not be placed with the successful tenderer due to the interim order passed by the Court.;

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