Padmavathy Medical Foundation SASTHAMCOTTA v Employees' State Insurance Corporation & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 31ST DAY OF OCTOBER 2012/9TH KARTHIKA 1934** **WP(C).No. 24398 of 2012 (Y) ---------------------------** **PETITIONER:** - **-----------** **THE PADMAVATHY MEDICAL FOUNDATION SASTHAMCOTTA, SASTHAMCOTTA P.O., KOLLAM KEREALA REPRESENTED BY ITS MANAGING PARTNER DR. SMITHA SUMITHRAN.** **BY ADVS.SRI.P.B.SURESHKUMAR SRI.LEO GEORGE SRI.J.OM PRAKASH** **RESPONDENTS:** **------------** **1. THE EMPLOYEES STATE INSURANCE CORPORATION (ESIC), REPRESENTED BY ITS DIRECTOR GENERAL PANCHADEEP BHAVAN, C.I.G MARG, NEW DELHI - 110 002.** **2. THE STATE MEDICAL COMMISSIONER (SMC) OFFICE OF THE SMC -ESIC, PANCHADEEP BHAVAN NORTH SWARAJA ROUND, P.B. NO.2, THRISSUR - 682 002.** **3. THE MEDICAL SUPERINTENDENT ESIC MODEL HOSPITAL, ASRAMAM, KOLLAM - 691002.** **4. M/S. LIFECARE INSTITUTE OF MEDICAL SCIENCES AND RESEARCH PRIVATE LIMITED, SARDAR PATTEL STATUE, STADIUM ROAD AHAMEDABAD, GUJARAT - 380 001. R1-3 BY ADV. SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN R4 BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 24398 of 2012 (Y)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT-P1-TRUE COPY OF THE NOTICE PUBILSHED BY THE CORPORATION IN THEIR WEBSITE** **EXHIBIT-P2-TRUE COPY OF THE PROVISIONAL BALANCE SHEET OF THE PETITIONER FOR THE YEAR 2011-2012** **EXHIBIT-P3-TRUE COPY OF THE AUDIT REPORT AND THE BALANCE SHEET OF THE PETITIONER FOR THE FINANCIAL YEAR 2011-2012 DATED 26/09/2012** **EXHIBIT-P4-TRUE COPY OF THE COMMUNICATION ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT TO THE PETITIONER DATED 24/09/2012** **EXHIBIT-P5-TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN W.P(C) 21934/2012 DATED 10/10/2012.** ## **RESPONDENTS' EXHIBITS:** **R1: TRUE COPY OF THE TENDER DOCUMENT SUBMITTED BY THE PETITIONER.** **R1(A): TRUE COPY OF THE RELEVANT RULES OF GFR** // **TRUE COPY//** **PA TO JUDGE** **Scl.** **T.R. RAMACHANDRAN NAIR, J. --------------------------------------W.P.(C) No.24398 OF 2012 --------------------------------------Dated this the 31[st] day of October, 2012.** ## **J U D G M E N T** This writ petition is filed by the petitioner challenging the proceedings Ext.P4 to the extent it rejects the petitioner's tender, in the tender process commenced as per Ext.P1 tender notice. 2. The tender notification is one for establishing a Cardiology Centre at ESIC Hospital, Kollam. The issue pertains to the interpretation of Clause 4(1) of Ext.P1. It is the case of the petitioner that the rejection is only for the reason that the petitioner is not having the required turn over for the year 20082009 whereas the petitioner is having the required turn over of Rs.10 Crores for the years 2009-2010, 2010-2011 and 20112012. Learned Senior Counsel for the petitioner pointed out that their intention is to have the turn over for the last three preceding financial years and then only appropriate evaluation can be done as otherwise a tenderor who is not fulfilling the qualification with regard to the turn over for the last of the **W.P.(C) No.24398/2012** **2** preceding years namely, 2011-2012 can even get consideration. It is pointed out that Clause 4(2) of Ext.P1 indicates that the service provider should have an experience of setting up and managing at least one cardiac catheterization lab, must be carrying out more than 1000 cardiac catheterization procedures annually for the last three years (upto the financial year ending 2012). My attention is also invited to Clause 12 under the heading 'Technical Proposal'. 3. Learned Senior Counsel for the petitioner Sri.P.B.Sureshkumar further submitted that in the counter affidavit filed in the earlier writ petition produced as Ext.P5, in paragraph 7, an explanation has been offered in the matter. It is pointed out that the last sentence therein indicates that the requirement is to verify the audited statement of accounts for the year 2011-2012. Learned Senior Counsel, therefore, submits that the only interpretation that can be attributed to the two Clauses namely, Clauses 4(1) and 4(2) is to interpret as the last three preceding years upto the financial year ending 2012. 4. Heard the learned Standing Counsel appearing for the **W.P.(C) No.24398/2012** **3** 1[st] respondent as well as the learned counsel appearing for the 4[th] respondent. In fact, the petitioner has got an allegation that if the tender submitted by the petitioner is accepted, it will be more beneficial to the 1[st] respondent also. Learned Senior Counsel for the petitioner has also relied upon the decision of the Apex Court in _**Poddar Steel Corpn.** vs._ _**Ganesh Engineering Works**_ ((1991) 3 Supreme Court Cases 273) especially paragraph 6 therein to contend that there is a difference between the essential conditions and other ancillary and subsidiary conditions and thus it is contended that Clause 4(1) of Ext.P1 is not an essential condition. 5. Sri.Sandesh Raja, learned counsel who appeared for the 1[st] respondent, submitted that three financial years have been specifically mentioned in Clause 4(1) of Ext.P1. But, as far as the technical qualification is concerned, what is required is experience for the last three financial years which does not have any conflict with Clause 4(1). It is pointed out that to prove the financial stability, one should have the audited financial accounts and the said aspect alone has resulted in providing in Clause 4(1) **W.P.(C) No.24398/2012** **4** specifically the three years namely, 2008-2009, 2009-2010 and 2010-2011. It is also submitted that there is no ambiguity either in paragraph 12 since three financial years have been specifically provided with a further direction to provide duly audited financial statements, balance sheets, income and expenditure statement etc. It is pointed out that there cannot be an interpretation of Clause 4(1), to read it as last three preceding financial years. 6. Sri.C.Unnikrishnan who is appearing for the 4[th] respondent submitted that the position will be further clear from page 19 of Ext.P1 in the column under the heading 'Cardiac Cath Lab Tender - Technical Bid - Check List' where item 4 requires copies of annual reports/balance sheets and/or financial statements for last three financial years namely, 2008-2009, 2009-2010 and 2010-2011 whereas column 6 provides for production of a certificate indicating more than 1000 cardiac cath procedures done annually by the bidder for the last three financial years namely, 2009-2010, 2010-2011 and 2011-2012. 7. As far as the tender conditions are concerned, it is well settled that the Court cannot add or subtract any conditions. A **W.P.(C) No.24398/2012** **5** challenge to the tender conditions if at all be there, can only be on the plea of arbitrariness or discrimination which is not the situation herein. As far as the conditions herein namely, under Clauses 4(1) and 4(2) are concerned, they are specific and the financial years are specifically mentioned. Therefore, I do not find any ambiguity in the said Clauses. 8. It is true that reflection of the financial particulars of a particular tenderor for the year 2011-2012 may show variation after the audited accounts are produced. But the requirement of the 1[st] respondent is to have the financial statements for the three years namely, 2008-2009, 2009-2010 and 2010-2011 showing the required turn over. Clause 4(2) deals with technical details and there is no conflict between these two. These requirements being specifically made with reference to the years themselves as far as turn over is concerned under Clause 4(1), Clause 12(2) and in the internal page 19 of Ext.P1, there is no ambiguity in the matter. Therefore, even though other possibilities for a change in the turn over may be there, since the requirement of the 1[st] respondent is only for the said years, this **W.P.(C) No.24398/2012** **6** Court will not be justified in interpreting the Clauses in a manner which goes against the specified provisions of Ext.P1. In the light of the above, I do not find any reason to interfere with the matter. This writ petition is dismissed. No costs. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp