- (1.) PRAFULLA C. Pant, J. By means of this writ petition, moved un der Article 226 of the Constitution of India, the petitioner has sought writ in the nature of certiorari quashing letter No. 15-P/upkaran Kray /12/2005/10013 dated 20th March, 2006 (copy Annexure-8 to the writ petition) issued by espondent No. 2, cancelling the al leged acceptance of tender of the peti tioner regarding purchase of Echo Cardiography machines. A mandamus has also been sought commanding re spondent Nos. 1 and 2 not to purchase said machine from anyone else except from the petitioner.
(2.) WE heard learned counsel for the parties and perused the record. Brief facts of the case, as nar rated in the writ petition, are that peti tioner deals in supply of medical equipments manufactured by Thoshiba', which is a Japanese company. Respondent No. 2, Director Gen eral, Medical Health and Family Wel fare, Uttaranchal invited tenders for supply of different machines including Echo Cardiography machines vide ten der notice dated 14th November, 2005 (copy Annexure-1 to the writ petition ). In response to said tender notice the petitioner, respondent No. 3 and a third party M/s Siemens submitted their ten ders for supply of Echo Cardiography machines. The technical bids of the parties were opened on 6th December, 2005. The Purchase Committee of re spondent No. 1, which included three senior Cardiologists, scrutinized the demonstration of the machine of peti tioner and that of respondent No. 3. It is alleged by the petitioner that petition er's machine had two Probes for car diac scanning while that of the respond ent No. 3 had only one Probe. After opening of the technical bid on 6th De cember, 2005 and demonstration, the financial bids were opened on 20th De cember, 2005. The bid of M/s Siemens was highest. That company did not turn up to demonstrate the machine, as such, its tender was not accepted. Ac cording to the petitioner, tender bid of respondent No. 3 did not comply with the specifications as per the require ment of the terms of the tender, hence, it should not be accepted. It is further alleged in the writ petition that the ten der of the petitioner was accepted vide letter No. 15-P/upkaran Kray/rc /12/2005/4788 dated 14th February, 2006 (copy Annexure -3 to the writ petition ). The petitioner vide said letter was required to submit bank guarantee and he complied with the same. How ever, when no supply order was re ceived, on 17th March, 2006, the peti tioner drew attention of respondent No. 2 for follow up action in pursuance to the letter dated 14-02-2006. When, on 20th March, 2006, the petitioner visited office of respondent No. 2, he came to know that respondent No. 2 has placed order for supply of five Echo Cardiography machines to respondent No. 3. On this, the petitioner immediately sent a letter of that date i. e. 20-03- 2006 to the Principal Secretary, Medical Health and Family Welfare, Uttaranchal bring ing facts to his notice, but letter No. 15-P/upkaran Kray /12/2005 /10013 dated 20th March, 2006 (copy Annexure -8 to the writ petition) was served on the petitioner on 31-03-2006 intimating the cancellation of the letter of acceptance in favour of the peti tioner. Aggrieved by said letter, peti tioner has filed this writ petition. The Joint Director in the office of Director General, Medical Health and Family Welfare, Uttaranchal filed counter affidavit on behalf of respond ent No. 2, while respondent No. 3 filed its separate two counter affidavits, one shorter counter affidavit and another a detailed one. According to the counter affidavit filed by respondent No. 2, it is admitted that the petitioner was partici pant in the bid of purchase of Echo Cardiography machines but rest of the contents of the writ petition are not admitted by the answering respondent. It is stated that the technical bid of the petitioner as well as that of respondent No. 3 were accepted on 06-12-2005, but the financial bid of the respondent No. 3 being the lowest one, the finan cial bid of the petitioner could not be accepted. Respondent No. 2 has dis closed in his counter affidavit compari son of financial bids, as under: Table L1. Innovative Medicare Philips Brand (Res. No. 3) Rs. 49, 23, 380/-per unit L2. Erbis Engineering Toshiba Brand (Petitioner) Rs. 69, 78, 574/-per unit L3. Siemens Ltd. Siemens Brand Rs. 84, 12, 208/-per unit According to respondent No. 2, equipments of both M/s Innovative Medicare and that of M/s Erbis Engi neering were found as per tender speci fication by the Demonstration Commit tee, and technical evaluation report with financial comparative chart was sent to the Government of Uttaranchal for its approval. However, since finan cial year was drawing close and there was urgent need of advance withdrawal of fund, a sanction was requested on 18th January, 2006 from Government of Uttaranchal for letter of credit sanc tions which was received vide G. O. No. 57/xxviii-5-2006-122/02 (T. S.) II dated 25-01-2006 (copy Annexure No. C. A.-6 to the above counter affidavit ). Since, advance withdrawal of funds can be made in the case of foreign letter of credits, and Erbis Engineering had quoted their tender also in foreign cur rency, a letter of acceptance was issued to them in February 2006 for the rea son that in case said company gets gov ernment sanction their letter of credit can be opened before the close of the financial year. However, financial sanc tion from the Government was received vide G. O. No. 170 /xxviii -5-2006- 84/2005 (T. C.) dated 10th March, 2006 for purchase of the Echo Cardiography ma chines from M/s Innovative Medicare (respondent No. 3) as their tender was the lowest one. In the circumstances, according to respondent No. 2, a formal letter of acceptance was issued to respondent No. 3 vide letter No. 15-P/upkaran Kray /12/2005/9414 dated 17th March, 2006- and formal agreement and con tract was entered into with respondent No. 3. And, supply order also placed vide order No. 15- P/upkaran Kray/12/2005/9712 dated 17th March, 2006 (copy Annexure No. C. A.-7 to the above counter affidavit) to said company.
(3.) THE main averment in the coun ter affidavit of respondent No. 3 is that its tender, being lowest was rightly ac cepted by the respondent Nos. 1 and 2. In the short counter affidavit filed by respondent No. 3 it has been denied that their equipment was in any way inferior to that of the petitioner. It is stated in para 22 of said counter affi davit that all the Probes, as required in the tender, were in the machine of re spondent No. 3. In the rejoinder affidavit, the pe titioner has reiterated its averments made in the petition.;