Sinjini Chakrabarti Advocate C/o Sudipta Dasgupta Advocate High Court, Catcutta 10, KS.Roy Road, 2™ Floor, Room no. 35, (Mezzanine) Kolkata- 700 001 Mobile : 9432977913. To Date: July 15, 2024 . Government Pleader, High Court, Calcutta 2. CHAITALI CHAKRABORTY, Special Commissioner of D&E, Government of West Bengal, having her office at Swasthya Bhawan, Sector-V, Kolkata-700091; 3. CHAYAN SAHA, Deputy Secretary of D&E, Government of West Bengal, having his office at Swasthya Bhawan, Sector- V, Kolkata-700091; 4, ELLENBARRIE INDUSTRIAL GASES LIMITED having its office at 3A, Ripon Street, Esplanade, Taltala, Kolkata, West Bengal- 700016; 5, MTC INDIA GASES PRIVATE LIMITED having its office at 228, Sevoke Road, Siliguri, District- Darjeeling, West Bengal- 734 001; 6. INDESSA GASES PRIVATE LIMITED having its office at 8, B.B.D Bag East, Kolkata, West Bengal-700001. So FM ND Bt OF 20Ry, Re: CAN No. 1 of 2024 MAT No. 1212 of 2024 Siboiram Bhatta Versus The State of West Bengal & Ors Dear Sir, Enclosed please find a copy of the Memorandum of Appeal and Stay Application along with all annexure in the above matter. Please note that the above matter has been filed before this Hon'ble High Court, Calcutta for being listed before the Hon'ble Chief Justice T.S Sivagnanam and the Hon'ble Justice Hiranmay Bhattacharyya on 25% July 2024 at 10.30 A.M or so soon thereafter as and when the business of the Hon'ble Court may permit. Kindly make it convenient to be present at the time of hearing. Yours truly Enclo: as above Ex veda darh oc‘7h 6/24, 11:40 PM (Case Status : Search by Case Number Calcutta High Court - Appellate side ance i nee Ae Sr ASoC OOP CASE atari Appallate side Case Details (Case Type ] Fling Number Fling Date: 2-06-5008 Registration Number Registration Date: 24-06-2024 ‘ENR Number = WECHCA-D31T00-2024 Case Status [First Hearing Date ath July 2024 Next Hearing Date z Siago of Caso {FOR ADMISSION Bench Division Bench State West Bengal District KOLKATA, Judlotal FIRST MISCELLANEOUS APPEAL (FMA) SECTION ‘Causelist Name, : Dally List Not Before Me : Petitioner and Advocate T)SIBORAMBHATTA Respondent and Advocate i "STATE OF WEST BENGAL AND ORS. ‘Subordinate Court Information ‘Cour Number and Name Case Number and Year Gase Decision Date : stale Distict IA Detaits TA Number. Party, [Date of Fiting |[_Next Date [1A Status ] w/tr2028 [SIBORAM BHATTA sification + ISTATE OF WEST BENGAL AND ORS. freorz0ee [25-07-2024 [Pending Case Conversion Old Case Name New Case Name Date MRTAT2ORA FMATB7O72024 TOO7-BA History of Case Hearing [eaves Uertype | Judge[— Business On aie [Hearing Date Daily List jos-o7-2024 “OR ADMISSION, Orders Order ‘Order Iwumber | Orderon | Judge ‘Order Date Ipetaits Catagory Details Category GROUP A (WRIT MATTERS) (1) ‘Sub Category Residuary (26) OBJECTION [ScNio. [Scrutiny Date [OBJECTION [Compliance Date [Receipt Date ft [24-06-2024 [All Objections are Complied = E blips: ncservices.ecours govinlecourtadiaHCicases/case_ro.phpstate_ed=16Bdist_cd=18court_code=3BstaleNen=Celcutla a78/24, 14:80 PM ‘Cose Status: Search by Cace Number Orders i ‘Old Case Name New Case Name Date MATa 1zioao4 FMA/a7Or2024 0-07-2024, Document Details SeNe.| Document No. | Date of Receiving Filed by Name ef Advocate _| Document Filed 7 a 25-08-2026 ‘SIBORAM BHATIA EMO AND VOKA ttpe:hoserices scours gov inlecourtindiaHCycases/oese_no.php?stala_cd=168dist_od1&cour_code=dAstaloN=CaleutaDISTRICT- KOLKATA IN THE HIGH COURT AT CALCUTTA, CIVIL APPELLATE JURISDICTION MEMORANDUM OF APPEAL FROM ORIGINAL ORDER mat.No. [22 of 2024 IN THE MATTER OF: SIBORAM BHATTA -- APPELLANT. -VERSUS- THE STATE OF WEST BENGAL & ORS .-RESPONDENTS LIST OF DATES: DATES EVENT 4d 4'h November, 2023 Notice Inviting Tender for supply of medical gases floated by the concerned respondent authorities 13% December, 2023 Bid Submission Date | [27% December, 2023 “The Appellant places bid for the tender 1S® January, 2024 Respondent no. 2 issued a notice highlighting all alleged shortfall /findings during the technical bid evaluation. lage Jarnmary, 2024 ‘The appellant responds to the notice by Respondent no. 2 | providing justifications and documents {19% February, 2024 Respondent no.2 issued a bid summary notice in respect of all technical evaluation done for technical bids by various bidders 26% February, 2024 ‘The Appellant issues a letter responding to the alleged four grounds of rejection. a7 February, 2024 The respondent no. 2 replies [1S® March , 2024 WPA 7987 of 2024 is filed by the appellant challenging the rejection of technical bidTae April, 2024 Order Passed by the Learned Single Bench in WPA No. 7987 of 2024 SYNOPSIS: ‘The Appellant is a law-abiding citizen and partner of Gita Oxygen Company engaged in the production and supply of medical gases. The respondents, including the State of West Bengal and health officials, are collectively referred to as the "respondent authorities. The appellant preferred a writ petition bring WPA No, 7987 of 2024 challenging the rejection of the technical bid of the appellant with respect to the tender process dated 24% November, 2023. The appellant sought relief under Article 226 of the Constitution, urging the court to quash the arbitrary actions of the respondent authorities, reinstate their name in the tender, and consider their bid in line with the tender terms. However, the submissions of the appellants were considered and rejected by the Learned Single Bench vide order dated 18 April, 2024. Therefore, the appellant bas preferred the instant appeal.DISTRICT- KOLKATA IN THE HIGH COURT AT CALCUTTA : CIVIL APPELLATE JURISDICTION Xo MEMORANDUM OF APPEAL FROM ORIGINAL ORDER Lb? MAT.No. 4Q4Q, of 2024 In the matter of: SIBORAM BHATTA, carrying on ‘business under the name and style of "GITA OXYGEN COMPANY" as partner thereof from his office at 100/1 Shahid Dinesh Sarani Road, Durganagar (North) ‘Kolkata- 700065.; APPELLANT. - VERSUS - 1 STATE OF WEST BENGAL, through the Principal Secretary, Health and Family Welfare Department, Government of West Bengal, having his office at Swasthya Bhawan, — Sector-V, Kolkata-700091; 2. DEPUTY DIRECTOR of Health Services (E & §), Government of West Bengal,having his office at 141, AJC Bose Road, Kolkata- 700014; 3. CHAITALI CHAKRABORTY, Special Commissioner of D&E, Government of West Bengal, having her office at Swasthya Bhawan, Sector-V, Kolkata-700091; 4. CHAYAN SAHA, Deputy Secretary of D&E, Government of West Bengal, having his office at Swasthya Bhawan, Sector-V, Kolkata-700091; 5. ELLENBARRIE INDUSTRIAL GASES LIMITED having its office at 3A, Ripon Street, Esplanade, Taltala, Kolkata, West Bengal- 700016; 6. MTC INDIA GASES PRIVATE. LIMITED having its office at 228, Sevoke Road, Siliguri, District- Darjeeling, West Bengal-734 001; 7. INDESSA GASES PRIVATE LIMITED having its office at 8, BBD Bag East, Kolkata, ‘West Bengal-700001. RESPONDENTS Being aggrieved by and dissatisfied with the Impugned Judgment/ Order dated 18 April, 2024 passed by the Hon’ble Justice Sabyasachi Bhattacharyya in W.P.A. No. 7987 of 2024 ( Siboram Bhatt Vs. State ofWest Bengal and others) your appellant/writ appellant begs to move this appeal on the following amongst other: 1. il. :GROUNDS: FOR.THAT Hon'ble Judge has erred in law and in facts and circumstances of the case in failing to appreciate that the respondents authorities have miserably failed to perform the statuary duties and discharge their bounded obligation as per as the instant case concerned; FOR THAT, Hon’ble Judge hes erred in law and in facts and circumstances of the case in failing to appreciate that the respondent authorities have dishonestly plotted against the appellant, who is a comparatively smaller yet very and industrious capable bidder in the market, and have entered into some kind of an unholy nexus with the other bidders for inevitably permitting practice of cartelization absolutely destroying the level-playing field, which is completely illegal and untenable in law inasmuch as the illegal connivance can be evidenced by the fact that the respondent authorities with utmost mala fide intent removed and/or deleted the name of the appellant from the web portal without any notice or intimation or knowledge of the appellant in advance and thereafter have illegally replaced the name of the appellant with the names of the respondent Nos.S and 7 of the writ petition, who are not the successful bidder with respect to the tender dated 17th December, 2021 in Zone C and B; FOR THAT, the Hon’ble Judge has erred in law and in facts and circumstances of the case in failing to appreciate that the contents of the email of the concerned respondent authority dated 27% February, 2024, is an eyewash to ultimatelyfacilitate the completion of the tender process dated 24 November, 2023 in favour of respondent no. 5 inasmuch as appellant had categorically explained and overcome all the shortfalls at technical stage, and even after that the appellants were not allowed to participate in the financial bid stage; FOR THAT, the Hon'ble Judge has erred in law and in facts and circumstances of the case in failing to appreciate that the first ground of rejection of the appellant's bid in terms of the tender process dated 24 November, 2023 is arbitrary and against the terms of the notice inviting the tender inasmuch as in terms of clause 3 and 11 of the notice inviting tender, the appellant is eligible since, the aforementioned clauses did not require the intending bidders to possess 3 (three) years of experience in each of the 3 (three) medical gases namely oxygen, nitrous oxide and carbon dioxide, the requirement of the notice inviting terider was that the bidders should have at least 3 (three) years of experience in the field of production and selling of medical gases, which the appellant possesses; FOR THAT, Hon’ble Judge has erred in law and in facts and circumstances of the case in failing to appreciate that the second ground of rejection of the appellant’s technical bid in terms of the tender process dated 24% November, 2023 is discriminatory and preconceived in as much that even though other respondent bidders had shortfalls, their technical bids were accepted and they were allowed to proceed to the financial bid but on the contrary, although, appellant has the necessary cash reserve anda self-declaration for the cash reserve as necessitated by annexure B, which the appellants had provided supported by relevant documents;Vil. vu. FOR THAT, Hon'ble Judge has erred in law and in facts and circumstances of the case in failing to appreciate that the third ground of rejection of the appellant’s bid in terms of the tender process dated 24% November, 2023 is conjectural and prejudicial in as much that there is no specific complaint that appellant has entered into an agreement with some other separate oxygen marufacturer inasmuch as appellant is at present an independent manufacturer and supplier of various kinds of medical gases and it is further emphasized that the appellant has no kind of arrangement, let alone any written and exccuted agreement, in place with any other refilling company/agency/organization, and such practice was only adopted during extremely dire situations like the COVID 19 pandemic and was in line with standard industry practice to ensure continuous and quality supply during crisis, which in effect conforms to the clause (7) of the eligibility criteria as specified in the notice inviting tender dated 24! November, 2023; FOR THAT, Hon’ble Judge has erred in law and in facts and circumstances of the case in failing to appreciate that the fourth ground of rejection of the appellant's bid in terms of the tender process dated 24% November, 2023 is arbitrary, fallacious and baseless and in this regard the appellant relies on Annexure P-18’ and ‘P-19" as annexed in the writ petition which evidences that the appellant have completed all supplies and made uninterrupted supply of medical gas cylinders; FOR THAT, the Hon’ble Judge erred in law and facts and circumstances of the instant case in interalia, holding that part from the respondent No.6 having met the cash reserve criterion, the appellant seeks to assert a negative equalitywhich is not permissible in Jaw. Inasmuch as the appellants bid was rejected at the technical stage citing baseless and insufficient reasons, and at that time appellant had satisfied the shortfalls, even though they were arbitrary and stricken with mala fide and, further, during the stage of technical bid all the bidders have equal right and if one of the bidders are rejected on a certain pretext, the other bidders cannot be allowed to continue while having the same shortfalls and respondent no. 2 being a statutory body is duty bound to maintain a level playing field with the same rules for cach player; IX. FOR THAT, Hon'ble Judge has erred in law and in facts and circumstances of the case in interalia, holding that Over and above, even regarding medical Oxygen, the refilling sought to be substantiated by the appellant, as per the rejection reasons, were beyond those approved by the terms and conditions of the earlier tender and Hence, the appellant was deficient on the yardstick of past experience as well as per the terms and conditions of the present tender inasmuch as the appellant even in the previous tenders has never taken any supply from any other manufacturer in respect of orders by this tendering authority, X. FOR THAT, Hon'ble Judge has erred in law and in facts and circumstances of the case in interalia, holding that Non- supply/irregular supply of medical oxygen in the previous tender was also a valid ground for rejection of the appellants’ bid, since it vitiated the appellant's past experience in such field and Thus, the appellant’s deficiency not only touched medical Oxygen production, manufacturing, filling and bulk supply, it also pertained to medical Nitrous Oxide, hencexm. vitiating the entire bid of the appellant inasmuch as appellant has even received performance certificates from various other hospitals where the appellant has made uninterrupted and complete supply of medical oxygen and/or other gases in cylinders and further appellant did not fall under non supply criteria as per NIT. FOR THAT, Hon'ble Judge has erred in law and in facts and circumstances of the case in failing to appreciate that the appellant has the capacity to bid much lower prices as compared to the other bidders and thus the chances of the appellant becoming the lowest bidder was more, and therefore the respondent authorities in connivance with other bidders have rejected the technical bid of the petition on whimsical and arbitrary grounds; FOR THAT, Hon’ble Judge has erred in law and in facts and circumstances of the case in failing to appreciate that the bid submitted by the appellant pursuant to the notice inviting tender was not considered by the respondent authorities in accordance with law and in spirit of the tender documents and in the event the appellant is found to be and has the capability to become the successful tenderer, the appellant be issued the work order in respect of the works due to be undertaken in pursuance of the said notice inviting tender; FOR THAT, Hon’ble Judge has erred in law and in facts and circumstances of the case in failing to appreciate that the impugned acts and culpable omissions while passing the order dated 18% April, 2024 are otherwise arbitrary, illegal, unreasonable, unlawful, whimsical, capricious, bad in law and cannot be suffered or allowed to continue, but ought to be corrected by way of judicial review;xav, FOR THAT, Hon'ble Judge has erred in law and in facts and circumstances of the case in failing to appreciate that the action of the respondent authorities particularly are illegal, arbitrary and violative of Article 14 of the Constitution of India; xv. FOR THAT, Hon’ble Judge has erred in law and in facts and circumstances of the case in failing to appreciate the actions on the part of the respondent authorities is otherwise bad in law and liable to be interfered with in exercise of constitutional writ jurisdiction, XVI, FOR THAT the Judgment/order dated 18 April, 2024 passed by Hon'ble Justice Sabyasachi Bhattacharyya in W.P.A. No. 7987 of 2024 is otherwise bad in law and liable to be set aside. LIST OF PAPERS: List of Documents :- 1) This memo of appeal - 2 2) Vakelatnama - ot 3) The impugned order of the Hon’ble Single - Bench of High Court, Calcutta 4) Seconds Judge’s Copy sl Total- 4 ope GlanDISTRICT: KOLKATA ‘w INTHE HIGH COURT AT CALCUTTA . CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE, wpa. No. 77 8F of 2024 IN THE MATTER OF: ‘An application under Article 226 of the Constitution of India; -AND- IN THE MATTER OF: SIBORAM BHATTA, carrying on business under the name and style of “GITA OXYGEN COMPANY” as partner thereof from his office at 100/1 Shahid Dinesh Sarani Road, Durganagar (North) Kolkata 700065. cove Petitioner -VERSUS- 1. STATE OF WEST BENGAL, through the Principal Secretary, Health and Family Welfare Department, Government of West Bengal, having his office at Swasthya Bhawan, Sector-V, Kolkata-700091. 2.DEPUTY DIRECTOR of Health Services (E & S), Government of West Bengal, having bis office at 4° yr? jp DPR141, AJC Bose Road, Kolkata- 700014, 3. CHAITALI CHAKRABORTY, Special Commissioner of D&E, Government of West Bengal, having her office at Swasthya Bhawan, Sector-V, Kotkata-700091. .CHAYAN SAHA, Deputy Secretary of D&E, Government of West Bengal, having his office at Swasthya Bhawan, —Sector-V, Kolkata-700091, 5. ELLENBARRIE. INDUSTRIAL : GASES LIMITED having its office at 3A, Ripon Street, Esplanade, Taltala, Kolkata, West Bengal- 700016. 6.MTC INDIA GASES PRIVATE LIMITED having its office at 228, . . Sevoke Road, Siliguri, District- Darjeeling, West Bengal- 734 001. 7.INDESSA GASES PRIVATE LIMITED having its office at 8, B.B.D Bag East, Kolkata, West Bengal- 700001 Respondents poe eyIn the High Court at Calcutta Constitutional Writ Jurisdiction Appellate Side ‘The Hon'ble Justice Sabyasachi Bhattacharyya, WPA Ro, 7987 of 2024 can + 1 of 2024 + CAN 2 of 2024 : ‘Stboram Bhatta State of West For the petitioner For the State For the respondent no.5: For the respondent no.6: For the respondent no.7: Hearing concluded on Judgment on by pte Ve. Bengal and othiers Mr. Utpal Bose, Sr. Advocate, Mr. Chayan Gupta, Mr. Ankan Rai, Mr. Sayantan Chatterjee, Mr. Ratnesh Kr. Rai, Mo. Sakshi Kejrival, Ms. Priyanshi Bajaj Mr. Anirban Roy, Mr. Biswabrata Basu Mallick, Mr. Tanoy Chakraborty, Mr. Rezatil Hossain Mr, Rishav Banerjee, Mr, Supriyo Gole, Ms. Prerna Shaha Mr. Sakya Sen, Mr. Sumanta Ganguly Mr. Abhrajit Mitra, Sr. Adv., Mr. Satadeep Bhattacharya, Mr. Tanuj Kakrania, Mr. S.R. Kakrania, 09.04.2024 18.04.20243 Sabyasachi Bhattacharyya, J:- The petitioner participated in a tender floated by the respondent- authorities for supply of medical gases in cylinders to various hospitals. It is contended by learned counsel for the petitioner that the rejection of the petitioner’s technical bid was perverse, It is argued that Clause 3 of the eligibility criteria of the tender document required that the bidder must be a manufacturer and bulk filler of either medical oxygen or medical nitrous oxide and not manufacturers of all kinds of medical gases forming the subject-matter of the Notice Inviting Tender (NIT), being medical Oxygen, medical Nitrous Oxide and Carbon Dioxide. A bidder, according to the tender document, should only have the capability to supply all three gases but did not require a bidder to manufacture all three. Clause 11 of the NIT stipulated that the bidders have to have at least three year’ experience in the field of production and selling of medical gases and did not mandate such experience in each or all ofthe three medical gases. The petitioner, it is argued, had the requisite three ‘years’ experience in production and selling of medical Oxygen and as such qualified on the technical requirements. Although the terms of the NIT did not require three years’ experience in produgtion of all medical gases, the petitioner also had requisite three years’ experience in production and selling of medical Nitrous Oxide, The first ground of rejection is thus illegal, since the respondents relied on the petitioner not meeting the requirements of B pee 2087 “4.medical Nitrous Oxide whereas it did meet the requirements for ‘Oxygen. Learned counsel also challenges the second ground of rejection regarding Cash Reserve Requirement. It is argued that the same was a non-essential criterion, which was evident from the conduct of the respondent-authorities, since the said condition was not insisted upon in the case of respondent no.6, one of the successful bidders at the technical stage. Learned counsel places much reliance on the non- fulfilment of MTC (India) Gases Private Limited, the respondent n0.6, regarding cash reserve and argued that the said entity was on similar footing as the petitioner but the petitioner was discriminated against, thereby violating Article 14 of the Constitution of India. ‘The petitioner also challenges the arguments of respondent no.6 on such count. Although respondent no.6 contends that the zones for which it was qualified are different from those for which the Petitioner's bid was rejected, the petitionér argues that the standards could not be different for the different zones, since the tender document contemplated uniform eligibility criteria for all the zones. Learned counsel also secks to distinguish the judgments cited by the respondents. ‘The respondents argue that the petitioner, not being a technically qualified bidder, has no locus standi to prefer the instant challenge. It is argued that all the Clauses including Cash Reserve were essential conditions of the tender. A10. 4 Respondent 10.6 controverts the allegation that it did not meet the cash reserve criterion. By placing reliance on the documents pertaining ite declaration, the said respondent argues that a uniform short-fall notice was given to all the bidders who fell short on the technical qualifications, including the respondent 0.6 and the petitioner. The petitioner participated at that stage and as such cannot now resile from the position by challenging the short-fall notice itself. After such notice, the minor errors which were there in the initial submission of bid were rectified by the respondent No.6. Leamed counsel for the respondent No.7 argues on similar lines and submits that Clause 5 of the tender document requires a subjective satisfaction of the tendering authority. It is argued that it is. well- settled that the Tender Inviting Authorities are the final judge of the interpretation of the tender Clauses. Leamed counsel for the respondents No.7 also argues that the petitioner seeks to apply the negative equality doctrine by arguing that since respondent No.6 did not meet the eligibility criteria but was technically qualified, the petitioner also has a similar right. However, such negative equality cannot be claimed in law. It js reiterated that in view of the petitioner, having failed to meet the eligibility criteria, was rightly turned down at the technical stage. Learned counsel for the respondent No.5 places reliance on Raunag Intemational Ltd. v. LV.R. Construction Lid, and others, reported at (1999) 1 SCC 492 where the Supreme Court observed that the challenger to the tender itself did not fulfill the requisite criteria and & 24 ; brwu. 13. did not possess the prescribed experience qualification. Therefore, it ‘was held, any judicial relief at the instance of a party which does not fulfil the requisite criteria seems to be misplaced. Learned counsel next cites 5.8. & Company v. Orissa Mining Corporation Limited, reported at. (2008) 5 SCC 772 where it was held that it is axiomatic that the Corporation is the best judge of its interests and needs and it is always open to if to suitably modify or change the eligibility criteria so as to best serve its purposes. Reliance is next placed on Tata Motors Limited v. Brihan Mumbai Blectrie Supply & Transport Undertaking (BEST) and others, reported at (2023) SCC OnLine SC 671 for the proposition that the court ordinarily should not interfere in matters relating to tender or contract, to set at naught the entire tender process at the stage when the contract is well underway, which would not be in public interest. Leamed counsel appearing for respondent no, 5 next cites Reliance Teletom Limited and another ». Union of India and another, reported at (2017) 4 SCC 269 for the proposition that the terms of the invitation to tender cannot be open to judicial serutiay because itis in the realm of contract and the Government must be allowed to have a fair play in the joints as it is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. The owner or employer of a project, it was held, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. Thus, it is argued that the writ petition ought to be dismissed. & Lye, 202" ‘t14. 18. 16. Upon hearing learned counsel, what acquires relevance is that the petitioner himself did not qualify at the technical stage. Admittedly, the case reserve requirement was not met by the petitioner. The petitioner seeks to slip past such deficiency by arguing that cash teserve ratio was not a necessary cligibility criterion and as such could be waived. It is also argued that the conduct of the respondents in waiving similar deficiency of respondent No.6 itself relegetes the cash reserve condit{on to a non-essential one. To examine such argument, the tender document dated November 24, 2023 is required to be looked into. Annexure-A thereof stipulates eligibility criteria for participating in the tender. As rightly pointed out by learned counsel for the respondent No.5, the very first sentence of the said Annexure states that all the criteria are essential and must be met for being successful in the technical bid, thus making the said criteria essential ones for eligibility. ‘The argument of the petitioner, that the conduct of the respondents- authorities rendered the cash reserve condition non-essential, is defeated on two counts. First, the respondents have shown from the document annexed to the writ petition that the respondent No.6 did actually meet the cash reserve criterion after the short-fall notice was uniformly given to all deficient bidders. Having taken advantage of the short-fall notice and having not challenged the same at the relevant juncture, the petitioner cannot now argue that the said opportunity ‘was beyond the tender terms. # pe rerra7. 18. 19. 7 Apart from the respondent No.6 having met the cash reserve criterion, the petitioner seeks to assert @ negative equality which is not permissible in law. it is cliché and proverbial that “two wrongs do not make a right’, Even if it were the case that onc of the bidders had been permitted to commit an illegality, the same docs not automatically clothe another deficient bidder with a right to have the ‘same unlawful advantage given to him. Hence, on both the above counts, the petitioner's argument fails. ‘The ratio laid down in Raunag Internation {supra} is apt in the context, As held therein, any judicial relief at the instance of a party which does not itself fulfil the requisite criterion is misplaced. Hence, the petitioner does not have the right, being itself ineligible, to open up for scrutiny the exercise under the tender document. Insofar as the other ground of the petitioner is concerned, the petitioner does not qualify on the said count as well. The reasons for the petitioner’s bid being rejected were clearly given in the bid summary notice dated February 19, 2024, The same was supplemented by the e-mail communication dated February 28, 2024, ‘The respondent authorities complied with all norms of natural justice and went a step ahead in considering in detail the request of the petitioner for re-evaluation of its technical bid. By the e-mail dated February 28, 2024, elaborate reasons, which are not even required in an administrative action, were given for the rejection. Coupled together, the said two sets of reasons suffice to justify the rejection of the petitioner's bid. It is seen from the rejection that not only was the & 6 eetau petitioner deficient on past experience in respect of Nitrous Oxide, having a mismatch on the three years’ experience criterion in its document, ne document for production for three years was also furnished by the petitioner. Over and above, even regarding medicel Oxygen, the refilling sought to be substantiated by the petitioner, as per the rejection reasons, were beyond those approved by the terms and conditions of the earlier tender. Hence, the petitioner was deficient on the yardstick of past experience ss well as per the terms and conditions of the present tender. Non-supply irregular supply of medical oxygen in the previous tender was also a valid ground for rejection of the petitioner's bid, since it vitigted the petitioner's past experience in such Geld. Thus, the petitioner's deficiency not only touched medical Oxygen production, manufacturing, filing and bulk supply, it also pertained to medical Nitrous Oxide, hence vitiating the entire bid of the petitioner. AAs held earlier, the petitioner admittedly failed on the Cash Reserve criterion even after its attempt to rectify the same subsequent to the shortfall notice. There’ was a mismatch in the Cash Reserve documents submitted by the petitioner, which wae never explained by the petitioner at any point of time. The defence of the petitioner against such mismatch was a negative equality argument which has been tumed down above. Furthermore, since the petitioner itself was deficient, it could not be said to have the right to challenge the tender process further, as even A 06: 204425. 27. 29. 9 if the challenge succeeded, the petitioner would not have any cause of action, since it was itself deficient on several counts and never ‘qualified at the technical stage itself. In any event, the respondent No.6 has been held to fulfil the criteria and it is the perception of the Tender Inviting Authorities, in the absence of any mala fides or unreasonableness or arbitrariness, which has primacy over the Court's notions. Accordingly, the present challenge fails on all counts. ‘This Court does not find any unreasonablencss, arbitrariness or perversity in the decision-making process of the Tender Inviting Authorities, who were at liberty to interpret the terms of the tender documents. In fact, the interpretations advanced by the Tender Inviting Authorities are not found to be deficient or unreasonable but are in consonance with the tender document itself. ‘The respondent-authorities went a step ahead in assigning specific and clear reasons/clarifications for the refiisal of the petitioner's bid upon a re-consideration of the petitioner’s rejection. Such re- considered reasons are elaborate and cannot be faulted on any count whatsoever. In view of the above discussions, the petitioner does not have any valid ground or the right to challenge the tender process. No fault can be found with the decision-making process of the Tender Inviting Authorities. Accordingly, WPA No. 7987 of 2024 is dismissed on contest. zg30. 10 Consequentially, CAN 1 of 2024 and CAN 2 of 2024 also stand disposed of. There will be no order as to costs. Urgent certified server copies, if applied for, be issued to the parties upon compliance of due formalities. U5 hbelfoetocge tDISTRICT : KOLKATA IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION MEMORANDUM OF APPEAL FROM. ORIGINAL ORDER MAT.No. [22 of 2004 IN THE MATTER OF: IN THE MATTER OF: - SIBORAM BHATTA ++APPELLANT -VERSUS- THE STATE OF WEST BENGAL & ORS -RESPONDENTS MEMORANDUM OF APPEAL MS. SINJINI CHAKRABARTI Advocate MR. SUDIPTA DASGUPTA Advocate, High Court Calcutta 10, Kiran Sankar Roy Road, Room no. 35, 284 Floor, (Mezzanine}, Kolkata-700 001. Mob: 9432977913. Email: sudiy te.der jail.comDISTRICT : KOLKATA IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION CAN NO. 4 OF 2024 MAT NO. 1212 OF 2024 IN THE MATTER OF: An application for appropriate orders in terms of the Order dated 18 April, 2024 inter alia, passed in WPA No. 7987 of 2024 ( Siboram_ Bhatta Vs. State of West Bengal and others) passed by the Hon’ble Justice Sabyasachi Bhattacharyya. And IN THE MATTER OF: SIBORAM BHATTA, carrying on business under the name and style of "GITA OXYGEN COMPANY" as. partner thereof from his office at 100/1 Shahid Dinesh Sarani Road, Durganagar (North) Kolkata- 700065.; |. APPELLANT / PETITIONER - VERSUS — eer L STATE OF WEST BENGAL, through the Principal Secretary, Health and Family Welfare Department, Government of West n .Bengal, having his office at Swasthya Bhawan, Sector-V, Kolkata-700091; 2. DEPUTY DIRECTOR of Health Services (E & §), Government of West Bengal, having his office at 141, AJC Bose Road, Kolkata- 700014; 3. CHAITALI CHAKRABORTY, Special Commissioner of D&E, Government of West Bengal, having her office at Swasthya Bhawan, Sector-V, _Kolkata- 700091; 4, CHAYAN SAHA, Deputy Secretary of D&E, Government of West Bengal, having his office at Swasthya Bhawan, Sector-V, Kolkata-700091; 5. ELLENBARRIE INDUSTRIAL GASES LIMITED having its office at 3A, Ripon Street, Esplanade, Taltala, Kolkata, West Bengal- 700016; 6. MTC INDIA GASES PRIVATE LIMITED having its office at 228, Sevoke Road, Siliguri, District- Darjeeling, West Bengal-734 001; 7. INDESSA GASES PRIVATE LIMITED haying its office at 8,ay BBD Bag East, Kolkata, ‘West Bengal-700001. RESPONDENTS To, ‘The Hon'ble T. 8. Sivagnanam, Chief Justice and His Companion Justices of the said Hon’ble Court. ‘The humble petition on behalf of the petitioner abovenamed: MOST RESPECTFULLY SHEWETH:- 1. The petitioner is a peace loving and law-abiding citizen of India and is one of the partners of Gita Oxygen Company engaged in the business of production and supply of medical oxygen, nitrous oxide, carbon dioxide etc. for at least four and a half years now. 2, The respondent No.2 had previously floated a notice inviting e- tender on 17% December, 2021 for inviting bids from various tenderers for supply of medical gasses in cylinders to various government hospitals and health units. The said tender was floated for an initial tenure of 2 years from the date of award of contract. ‘The Petitioner had bid for the said tender and was selected as one of the L-1 bidders. 3, Such notice inviting e-tender and contract was extended from time to time and was ultimately extended until 31st March, 2024. As per the extension, the petitioner has been supplying the required materials till date. 4, Suddenly, on or about Llth March, 2024 at around 1 p.m., the petitioner finds that its name has been deleted from the online portal by which the online booking can be done for sale and supply of materials. The name of the petitioner was earlier showing in respect of the said tender of 2021. However, very recently on or about 11th March, 2024, the name of the petitioner who is carryingon works as the L-1 bidder with respect to the said tender of 2021, has been deleted and/or removed even when the period of contract has not ended and is only due to end on 31st March, 2024. The petitioner had been successfully completing the works with regard to the said tender. | Tt would be evident from the said screenshot that the respendent authorities surreptitiously and with utmost mala fide intent removed and/or deleted the name of the petitioner from the web portal with regard to the tender dated 17 December, 2021 without any notice or intimation or knowledge of the petitioner in advance. ‘The respondent authorities, post removal of the name of the petitioner, have illegally replaced the name of the petitioner with the names of the respondent Nos.5 and 7 of the writ petition. It is stated by the petitioner that the respondent Nos.5 and 7 are not the successful bidder with respect to the tender dated 17% December, 2021 in Zone C and E, The respondent nos. 5 allegedly the successful bidders only with respect to the tender floated subsequently on 24th November, 2023 by the reepondent authorities and not with respect to the tender floated on 17th December, 2021. ‘The petitioner states that insofar as the tender floated on 17th December, 2021, as concerned, the petitioner has been adjudged as the 1-1 bidder and was awarded the contract by the respondent authorities. Pursuant to the same, the petitioner has been supplying the required materials till date and the period of the contract has been extended till 31 March, 2024, till which the petitioner is fully entitled to supply the required materials and its name cannot be struck off or removed or deleted in any manner, especially without any prior notice or consent or knowledge of the petitioner.vo a 8, Be that as it may, the respondent no, 2 had also floated a notice inviting e-tender on 24th November, 2028 hereinafter referred to a8 oNIT" for inviting bids for the supply of medical gases in cylinders to various Government hospitals and health units. The said tender was floated for a tenure of 2 (two) years from the date of award of contract. 9, The bidding process was through online mode and technical bid for the seid tender was opened on 28th December, 2023. 10. The petitioner placed bid for the said tender on 27% December, ‘2023 along with the bid documents which were required to be farnished by the petitioner to the tender inviting authority. 11, The timelines were clearly stated in the notice inviting tender. ‘the date of bid submission was fixed to be 13% December, 2023 from 06:00 P.M. and the bid submission closing date was fixed to be 28th December, 2023 till 11:00 A.M. 12, Itis pertinent to mention that the date of uploading of the list of qualified bidders after the evaluation in the technical ground was to be published and/or notified in the website, Lic “guru wohealth.gov.in by the tender evaluation authority as per the terms and conditions of the tender 18. The respondent no. 2, upon evaluation of the technical bide as submitted by the respective bidders, issued a notice on 15th January, 2024 in respect of certain alleged shortfall/findings during the technical bid evaluation. 14 tn terms of such notice of alleged shortfall, certain alleged discrepancies were indicated by the respondent no. 2 apropos the petitioner's technical bid. The petitioner was called upon to produce various documents to be submitted before the respondent ho, 2 for curing and/or justifying such alleged discrepancies as indicated. ,aN gt 15. The petitioner states that the petitioner had submitted the required documents against the alleged shortfall as indicated by the respondent no. 2 by way of an email dated 23rd January, 2024 and attached the justifications/explanations and documents in the said email. 16. On 19th February, 2024, a bid summary notice was issued by the respondent no. 2 in respect of the technical evaluation done of the technical bids submitted the different bidders in the present tender. Through, the said bid summary notice the petitioner was shocked to found that the technical bid of the petitioner was rejected on the following four grounds as indicated in the bid summery column of the said bid summery notice: Gi [Name of the [Participated [CAT] Item Name Bid Summary No. | Bidder No. $e Gita OXYGEN |C.E&F | MGOI | Medical “Oxygen | 1. Endorsement co. iP 2010 less than 3 years specification: Max for Medical working pressure 350 kgt/em2. @aR) at 15°C, Minimum Pressure at supply 140 keffem2, at ambient conditions (for all types of Cylinder ~ A Type, B Type & Dype) Nitrous Oxide LP-2007. Cash reserve declaration is grossly mismatched and cexorbitantly Audited Balance ‘Sheet. Refilling of Medical — gases (Medical Oxygen. PP, 2010) in Cylinders nd of ‘approved T & C1 4 different hospitals. Hence, Technically rejected for all. zones r WG 04 | Medical Nitrous Oxide 1-P-2007 Specification: Filling ratio Keg/It=0.667, (for all types, of Cylinder-A ‘Type & D NG 06 « Pressure at supply 124 kgf/em2, at ambient conditions SGOT | Testing of cylinders (including Gland Nut, Washer and thread Cutting) SE02 ‘SG03 3604 Sa05, ‘The contents of the bid summery notice are completely untrue, incorrect and arbitrary. 17. Upon coming to learn of the aforesaid alleged grounds of rejection of the technical bid of the petitioner, the petitioner issued another letter dated 26! February, 2024 to the respondent no, 2. In such letter, the petitioner mentioned specific justifications point wise ‘with regard to the alleged four grounds of rejection along with the references of the tender terms and conditions. 18, ‘Thereafter, the respondent authorities by way of an email dated orth February, 2024 replied to the letter of the petitioner dated» 26th February, 2024. In the said letter, the respondent no.2 disputed the explanations and documents in support of the same as provided by the petitioner against the four alleged grounds of rejection. The petitioner states that such stands taken by the respondent authorities are baseless, false, frivolous and arbitrary in nature. 19. The first ground of rejection that the petitioner has less than 3 (three) years’ experience for medical nitrous oxide is fallacious and a result of complete non-application of mind and are illegal end arbitrary which would be evident from the following: a) b) a ‘The terms of the tender clearly provided that an intending participant in the NIT required to, inter alia, satisfy the eligibility criteria must be the manufacturer and bulk filler of either medical oxygen or medical nitrous oxide and bulk filler should have the necessary tie-ups with the gas manufacturers to be able to supply the gases as per requirement. ‘The petitioner fulfils the said criteria. The petitioner is a manufacturer of medical oxygen from 13th August, 2019 and has the experience in such field as the manufacturers ‘of medical oxygen for more than four and a half years. This would be evident from the certificate of the petitioner in such regard. Clause 11 of the NIT did not require the intending bidders to possess 3 (three) years of experience in each of the 3 {three) medical gases namely oxygen, nitrous oxide and carbon dioxide, The requirement of the notice inviting tender was that the bidders should have at least 3 (three) years of experience in the field of production and selling of medical gases, which the petitioner possesses.ye a) a) i ‘The petitioner, in fact, has much greater experience than the threshold limit required as per the notice inviting tender as it has been in the business of manufacture of medical oxygen for more than four and a half years. The rejection of the petitioner's bid, insofar as medical nitrous oxide is concerned, on such ground is thus fallacious. In fact, only the respondent no.6 is engaged in production of nitrous oxide and none of the other tenderera produce nitrous. oxide. ‘The participation of the respondent no.S in the tender as manufacturer of nitrous oxide is on the basis of their declaration that they would be taking supply of the same from the respondent no.6 and supply the same. This would be evident from the documents uploaded by the respondent no.5. In fact, the respondent no.7 has also participated in the tender and has been successfully awarded the contract on the basis of its statement that it would supply nitrous oxide upon taking delivery of the same from the manufacturer, Shivam Anesthesia Gases Thus, none of the respondent nos.5 and 7 was manufacturer of medical nitrous oxide and despite thereof, they hhave been permitted to participate in the tender and contracts have been awarded upon declaring them as successful tenderers. ‘Thus, the requirement of manufacturing nitrous oxide for at least 3 (three) years of all intending bidders is not and cannot be an essential criterion for which the bid of the petitioner could have been rejected at the technical stage.10 k) This is, however, without prejudice to the fact that the tender conditions did not require the bidders to have 3 (three) years of manufacturing experience in all the 3 (three) gases and the requirement was only in respect of "medical gases" which the petitioner had satisfied by possessing an experience of more than four and a half years in production of medical oxygen. 1] The fact that such condition in the tender has also not been treated as an essential qualifying criterion would also be evident from the conduct of the respondent authorities in not only technically qualifying the respondent nos.5 and 7 ‘put also to technically qualifying the petitioner in respect of carbon dioxide where the experience of the petitioner is less than 1 (one) year. m) That apart, the petitioner also bas an additional facility which is also a credential requirement as per the notice inviting tender which is the testing and periodical examination of gas cylinders. As per the requirement of Petroleum and Explosives Safety Organization (PESO), the intending bidders are required to have in-house CCE approved Certificate of Periodical Examination and Testing of Gas Cylinders. Only the petitioner has such facility in its plant and none of the qualified bidders being the respondent nos.5 to 7 have such facility. 20. The second ground of rejection that the petitioner did not fulfill the cash reserve requirement as per clause 14 of the notice inviting tender is fallacious and a result of complete non- application of mind and are illegal and arbitrary which would be evident from the following: a) From the conduct of the respondent authorities it would be evident that such criterion was never treated as anAs uw essential criterion as per the notice inviting tender and the fulfilment of such criterion was consciously given a go-bye by the respondent authorities, This would be evident from the fact that the respondent no.6 had shown a tumover of Rs.8,79,02,207.13/- in its nelf- declaration and had also shown the cash reserve of about Rs.45 lakhs, which is no manner in 1/3rd proportion. 2) A perusal at the said documents would clearly show that the cash reserve is way below the notice inviting tender condition of 1/3rd and it is apparent that the respondent authorities have not treated the said condition as an essential criterion and by the conduct of the respondent authorities, it would be evident that the respondent authorities had never treated that non- fulfilment of the said criterion would amount to rejection of the bid of the participants on technical grounds. ¢) In fact, the cash reserve proportion of the respondent 1n0.5 is also below the requisite 1/3rd as per clause 14 of the notice inviting tender. This would be evident from the documents uploaded by the respondent no.5. 4) Thus, once such condition had been given = go-bye by the respondent authorities by their conduct, the bid of the petitioner could not have been rejected on the ground of non-fulfilment of the same. €) It is a settled proposition of law that the rules of the game cannot be changed after the game has begun. f. The respondent authorities being State authorities are duty-bound to afford a level playing field to all the intending tenderers. Once such criterion has been consciously difuted and/or given a go-bye by the\ 2 respondent authorities for the other tenderers, the same could not have been imposed as a condition precedent for the petitioner only. 2) Thus, the rejection of the petitioner's bid on such ground is also fallacious, arbitrary, mala fide and is required to be struck down and/or set aside. 21, The third ground of rejection that the petitioner had entered into contract beyond the contract with the respondent authorities is fallacious end a result of complete non-application of mind and are illegal and arbitrary which would be evident from the following: a) ‘The respondent authorities are completely and grossly mistaken by stating the fact that the petitioner bas entered into an agreement with some other separate oxygen manufacturer. The petitioner is at present an independent manufacturer and supplier of various kinds of medical gases. The petitioner has no kind of arrangement, let alone any written and executed agreement, in place with any other refilling company /agency/organization. ‘The petitioner carrying on partnership business under the name and style of ‘Gita Oxygen Company’ and is entirely a self-sufficient business, who has no other agreement or arrangement or understanding in place with any other oxygen manufacturer in the area of Kalyani, Nadia. ‘The petitioner further states that the petitioner has not taken any help from any other manufacturer or supplier or company for refilling, supplying or producing any type of medical gas cylinders to the tendering authority, being the respondent no. 2:a) 3 It is also a fact that the petitioner even in the previous tenders, as indicated hereinabove, has never taken any supply from any other manufacturer in respect of orders by this tendering authority. Although, there may have been a few occasions wherein due to extreme crisis and Keeping in mind the patient requirement and/or breakdown and/or power shutdown of the plants or warehouses of the petitioner, the petitioner may have had to obtain emergency supply from certain other licensed refilling facilities. However, it is stated that such incidents are only in isolation and due to extreme emergency, patient requirements and very critical times like the COVID- 19 pandemic. Such facts have also been informed to the respondent no. 2 by way of a letter dated 23rd January, 2024. ‘The petitioner further states that such action, aa explained hereinabove, is also within purview of the terms and conditions of the notice inviting tender, specifically Clause-7 of Annexure-A. Needless to ‘mention that in euch field which is related medical hospitals and units, uninterrupted supply and availability of medical oxygen and other gases is a mandatory requirement at all times for obvious reasons, it is stated that the petitioner is engaged in manufacture and distribution of various kinds of medical gases. The petitioner has arrangements with several companies in respect of the same.an nh) 4 However, the petitioner clarifies that the petitioner nad never re-filled medical gases from any other company and had not supplied the same to the respondent authorities. The re-flling of medical gases from other companies are for supply to private nursing homes and not the respondent authorities. 22, The fourth ground of rejection is fallacious and a result of complete non-application of mind and are iMlegal and arbitrary which would be evident from the following: a) b) it has been dishonestly and erroneously alleged by the respondent no. 2 that the petitioner has not been able to supply and/or failed to supply medical gas cylinder to the Howrah District Hospital. 'n fact, the petitioner would rely on certain documents to show that the petitioner had successfully supplied the order placed by the Howrah District Hospital from time to time. ‘Additionally, the Howrah District Hospital has farther issued @ performance certificate dated 16th January, 2024 certifying that the petitioner has completed all supplies and made uninterrupted supply of medical gas cylinders to the said Howrah District Hospital. It would therefore be evident that the alleged ground of rejection with regard to non-supply or irregular supply of medical oxygen at different hospitel is completely erroneous, baseless and is instigated from a severe mala fide on the part of the respondent authorities. The petitioner has even seceived performance certificates from various other23. 24. 15 hospitals where the petitioner has made uunintermupted and complete supply of medical oxygen and/or other gases in cylinders. ‘The petitioner herein further contends that the petitioner as the highest percentage of supply successfully completed compared with the other bidders of the present tender. A chart indicating the percentage of supply of the other bidders as well as the petitioner is indicated hereinbelow: Bilenbarnie 2023-24 D type Oxygen 87% 2022-23 -do 94% Indessa 2023-2024 ~do- 84% 2022-2023 ~do 89% ‘Sona 2023-2024 -do- 96% ~| 2022-2023 ~do- 100% Gita Co 2023-2024 ~do- 38% 2022-2023 ~do- 35% ‘the petitioner states that such chart is obtained from Store Management System ‘Information available at https:/ /drewb.wbhealth.gov.in/ in the internet and is operated ‘and maintained by the respondent authorities for the purpose of retaining comprehensive records and status of tenders floated by them. tis also pertinent to state that the petitioner, if qualifies in the technical and financial bid of the present tender, and if the contract is awarded to the petitioner, the petitioner would be able to supply oxygen cylinders at the rate of Rs. 26.49 per25. 26. 16 cubic meter, Rs, 27.81 per cubic meter and Rs. 29.89 per cubic meter for Zone C, E and F respectively. For nitrous oxide fat the rate of Rs. 300 per cubie meter for Zone C, E and F respectively. For Carbon di-oxide at the rate of Rs- 20 per kg, Rs 20 per kg and Re. 28 per ke for Zones ©, B and F cespectively whereas the other bidders would supply OYE" at the rate of Rs. 29.91 per cubic meter, 39.90 per cubic meter and Rs. 39.90 per cubic meter for Zone C, B snd F respectively. The other bidders would be able to supply Nitrous oxide at the rate of Rs. 440 per cubic meter, Rs, 340 per cubic meter and Rs. 340 per cubje meter for Zone CF end F respectively. The carbon di-oxide would be provided by other bidders at the rate of Rs, 100, 80, 90 per kg for Zone CE and F respectively. Thus, clearly the petitioner has the capability of becoming the lowest bidder in respect of the present tender in question and at the same time would be in @ position to successfully and uninterruptedly complete the contract, if awarded. The respondent authorities have surreptitiously and with ‘utmost mala fide intent removed and/or deleted the name of the petitioner from the Pre-Purchase Order Entry appearing in the web portal of the ‘Central Medical Stores’ or the respondent authorities with regard to the tender dated 17th December, 2021 without any notice or intimation oF Inowledge of the petitioner in advance. ‘The respondent authorities, post removal of the name of the petitioner, have illegally replaced the name of the petitioner ‘with the names of the respondent Nos.6 and 7 of the present ‘writ petition when the respondent Nos.5 and 7 are not the successful bidder with respect to the tender dated 17th December, 2021.7 27. The respondent authorities erred in failing to appreciate that the respondent nos, 5 and 7 are allegedly the successful bidders only with respect to the tender floated subsequently on ‘24th November, 2023 by the respondent authorities and not with respect to the tender floated on 17th December, 2021. 28. The respondent authorities erred in failing to appreciate that insofar as the tender floated on 17th December, 2021, as concerned, the petitioner has been adjudged as the L-1 bidder ‘and was awarded the contract by the respondent authorities and pursuant to the same, the petitioner has been supplying the required materials presently and the period of the contract has been extended till 31 March, 2024, till which the petitioner in fully entitled to supply the required materials and its name cannot be struck off or removed or deleted in any manner, especially without any prior notice or consent or knowledge of the petitioner. 29. It is evident from the technical rejection of the petitioner's bids that the respondent authorities have proceeded with treating equals unequally and as such there is blatant violation of Article 14 of the Constitution of India. 30, Your petitioner states that, fining no alternative remedy, the petitioner came up with an application under Article 226 before this Hon'ble Court being WPA No. 7987 of 2024 { Siboram Bhatta Versus State Of West Bengal & Ors.) ‘true copy of the writ petition is annexed hereto and marked as Annexure “A”. 81, Your petitioner states that aforesaid writ petition was taken up for hearing before the Hon'ble Justice Sabyasachi Bhattacharyya, on 9% April, 2024 when it was reserved for judgment by His Lordship. Thereafter, on 18% April, 2024, His Lordship, was pleased to dismiss the writ petition.18 ‘True copy of the said order dated 18% April, 2024 is annexed thereto and marked as Annexure “B’. 32, Your petitioner states that challenging the said judgment and order dated 18% April, 2024, your petitioner has preferred an appeal being MAT. No. 1212 of 2024 before this Hon'ble Court and the same is pending for adjudication. Your petitioners crave leave to produce the copy of the said memo at the time of hearing, 32, Your petitioner states that the aforesaid grounds of rejection. were absolutely baseless and irrational and were given with a sole intention of putting your petitioner out of contention for the tender process dated 24% November, 2024. It is germane to mention herein that the petitioner vide letter dated 26% February, 2024 to respondent no.2 categorically negated all the aforementioned grounds for rejection and substantiated the same through necessary documents and certificates, and asked the respondent no. 2 to reconsider their bid. 434. Your petitioner states that while passing the order dated 1g April, 2024, the Hon’ble Judge has erred in law and in facts ‘and circumstances of the case in failing to appreciate thet the respondents authorities have ‘miserably failed to perform the statuary duties and discharge their bounded obligation as per as the instant case concerned; 436, Your petitioner states that the Hon'ble Judge has erred in jaw and in facts and circumstances of the case in failing to appreciate that the first ground of rejection of the petitioner's bid in terme of the tender process dated 24 November, 2023 is arbitrary and against the terms of the saotice inviting the tender inasmuch as in terms of clause 3 and 11 of the notice inviting tender, the petitioner is eligible19 since, the aforementioned clauses did not require the intending bidders to possess 3 {three} years of experience in cach of the 3 (three) medical gases namely ovygen, nitrous oxide and carbon dioxide, the requirement of the notice inviting tender was that the bidders should have at least 3 (three) years of experience in the field of production and eelling of medical gases, which the petitioner possesses 36, Your petitioner states that the Hon'ble Judge has erred in tow and in facts and circumstances of the case in failing to appreciate that the third ground of rejection of the petitioner's bid in terms of the tender process dated 24% November, 2023 is conjectural and prejudicial in as much that there is no specific complaint that petitioner has entered into an agreement with some other separate oxvESn manufacturer inasmuch as petitioner is at present an independent manufacturer and supplier of various kinds of snedical gases and it is further emphasized that the petitioner has no Kind of arrangement, let alone any written and exeeuted agreement, in place with any other refilling company/agency/organization, and such practice was only adopted during extremely dire situations Hee the COvID 19 pandemic and was in line with standard industry practice to ensure continuous and quality supply during crisis, which in ‘effect conforms to the clause (7) of the eligibility criteria as specified in the notice inviting tender dated ‘24th November, 2023; 4a7.Your petitioner states that the Hon'ble Judge has erred in aw and in facts and circumstances of the case in filing fo appreciate thet the third ground of rejection of the appellant's bid in terms of the tender process dated 24%20 November, 2023 is conjectural and prejudicial in as much thet there is no specific complaint that appellant has entered into an agreement with some other soparate Oxygen. manufacturer inasmuch as appellant is at present an independent manufacturer and supplier of various kinds of medical gases and itis further emphasized that the appellant has no kind of arrangement, let alone any written and executed sgreement, in place with’ any other refilling company/agency/organization, and such practice Was only adopted during extremely dire situations like the COvID 19 pandemic and was in line with standard industry practice to cngure continuous and quality supply during crisis, which in efiect conforms to the clause (7) of the eligibility criteria as specified in the notice inviting tender dated 24% November, 2023; 438, Your petitioner states that the Hon'ble Judge has erred in law and in facts and circumstances of the ease in failing to appreciate that the fourth ground of rejection of the petitioner's bid in terms of the tender Process dated 24% November, 2023 is arbitrary, fallacious and baseless and in this regard the petitioner relies on Annexure ‘P-18" and P-19° fas annexed in the writ petition which evidences that the appellant have completed all supplies and made uninterrupted supply of medical gas cylinders; 439, Your petitioner states that the Hon'ble Judge has erred in raw and in facts and cizcumstances of the ease in interalia holding that Non-supply/irregular supply of medicsl oxvEen in the previous tender was also a valid ground for rejection of the petitioner’s bid, since it vitiated the petitioner's past experience in such field and Thus, the petitioner's deficiencya not only touched medical Oxygen production, manufacturing, filling and bulk supply, it also pertained to medical Nitrous Oxide, hence vitiating the entire bid of the appellant inasmuch as petitioners has even received performance certificates from various other hospitals where the petitioner has made uninterrupted and complete supply of medical oxygen and/or other gases in cylinders; 40. Your petitioner state that although one of the ground for rejection was non supply of medication oxygen in previous tender but the petitioner was requested considering the goodwill for filling up of 02 cylinders on May 6, 2024 and 18% June 2024 by the Superintended Fortgloster S.G. Hostpital Bauria, Howrah inspite of the fact that petitioner has not received the tender work order, ‘True copies of the orders are annexed hereto and collectively marked with letter “C” 41. The balance of convenience is entirely in favour of passing of orders as prayed for herein. 42. Unless orders as prayed for herein are passed, the petitioner shall suffer irreparable los, prejudice and injury. 48.This application is made bonafide and for the ends of justice. ‘Under the fact and circumstances as aforesaid your petitioner most humbly pray that your Lordships may graciously be pleased to stay of operation of the order dated Aptil 18, 2024 passed by the Hon'ble Justice | SabyasachiBhattacharyya in WPA No. 7987 of 2024 and further be pleased to set aside /cancel/ rescind/ «quash the rejection of Technical bid of the petitioner dated February 19, 2024. And Pass such further and/or other order or orders as Your Lordships may deem, fit and proper. ‘And for this act of kindness your petitioner, as in duty bound shall ever bot ore Akal ~ 10. OF 2034 pray.I, SIBORAM BHATTA, son of Late ulin Behari Bhatta, aged about 57 year, by faith-Hindu, by occupation: business, residing at 132, Rabindra Sarani, Durganagar, Kolkata- 700 065; do hereby solemnly affirm and state as follows 1. That I am the petitioner in the instant petition and as such T am fully conversant with the facts and circumstances of the above mentioned case as well as this instant petition and as such I am competent to affirm this affidavit. are true to my knowledge and the rests are my humble . 4p-32- ono yh g? ‘That the statements made in paragraph 4-27 te hereinabove submissions before this Hon’ble Court. bilan Cans Ahotin Prepared in my office, The deponent is known to me SuppiCoank Solve Soafr-fabon. »-55 ivocate ‘Clerk to : Mr. % A Hi F/ A908) 4%S4/2088, ve gts, Solemnly affirmed before me POL Rhen. ‘This thadkdey of July, 2024. Locertify that all annexures are . Advocate oT. 4 F/ 4304/4764 [ 2098. @ ST Commissioner ti Boar, rice Saloutta,DISTRICT: KOLKATA Amenure._\f\! IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Advocate-on-Record RAI & COMPANY SOLICITORS & ADVOCATES Ratnesh Kumar Rai. Proprietor / Advocate Hastings Chambers Room no. 2,12 and13, 24 floor 7C, Kiran Shankar Roy road, Kolkata - 700 001 Mob: 9830091235 rairatnesh1961 F-865/827 of 1989 W.P.A.No, 7987 of 2024 IN THE MATTER OF: ‘An application under Article 226 of the Constitution of India; -AND- IN THE MATTER OF: SIBORAM BHATTA vue Petitioner -VERSUS- STATE OF WEST BENGAL & ORS. sues Respondents Subject Matter relating to appointment under Group “TX”, Head ‘NIL’, Residuary Matter; WRIT PETITIONLge + IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE wpa. No. 7987 of 2024 IN THE MATTER OF: ‘Ap application under Article 226 ‘of the Constitution of Indias -AND- IN THE MATTER OF: SIBORAM BHATTA con Petitioner -VERSUS- STATE OF WEST BENGAL & ORS. uw Respondents LIST OF DATES DATE PARTICULARS, T715.2001 Notice laviting e-tender for the supply of medical gases in linders to various hospitals is floated. _ | GAALBOIS TA new notice inviting e-tender for the supply of medical gases is floated. " " 19:19-2005_| Deadline for bid submission. 27-12.2023 | Petitioner places bid for the tender. 28.12.2023 | Closing date for bid submission (until 11 a.m.) 75.01.2024 | Respondent no. 2 issued a notice highlighting all alleged shortfall/findmgs during the technical bid evaluation. 18.01.2024 ‘The Howrah District Hospital issued a performance certificate certifying the petitioner's uninterrupted supply of medical gas cylinders. 23.01.3024 ‘The petitioner responds to the notice by Respondent no. 4, providing justifications and documents. 19.02.2024 Rigpondent no.2 issued a bid summary nonce in Fespect of all technical evaluation done for technical bids by various bidders. 26.02.2024 27.02.2024 11.03.2024 "The petitioner issues @ letter responding to the alioged four | grounds of rejection, _. __| ‘She respondent no. 2 responds {0 the petitione:’s letter | disputing explanations and documents. __ The petitioner discovere their name has been deleied from the online portal around 11 a.m. 2024 The extended date for the contract awarded after the December 17,2021, tender. TdSYNOPSIS ‘The petitioner is a law-abiding citizen and partner of Gita Oxygen Company engaged in the production and supply of medical gases. The respondents, including the State of West Bengal and health officials, are collectively referred to as the “respondent authoiities."The petitioner, having successfully bid for a medical gases supply contract in December 2021, shockingly discovers on March 11, 2024, that their name has been deleted from the online portal without notice. This deletion had occured despite an extended contract until March 31, 2024, during which the petitioner had been fulfilling their obligations.The petitioner alleges that the respondent authorities have removed their name with mala fide intent and replaced it with respondents 5 and 7, who were allegedly successful bidders for a tender floated on November 24, 2023. The petitioner emphasizes that they are the L-1 bidder for the 2021 tender and have been supplying medical gases, substantiated by documents and performance certificates.The petitioner also challenges the rejection of their bid in a subsequent tender floated on November 24, 2023, citing alleged discrepancies, They argue that the rejection is based on fallacious grounds, such es insufficient experience in medical nitrous oxide production, failure to meet cash reserve requirements, entering contracts with other manufacturers, and purportedly failing to supply medical gases to Howrah District Hospital. The petitioner provides evidence refuting these claims.Further, the petitioner contends that the rejection violates Article 14 of the Constitution, treating cquals unequally, They assert that the authorities have not considered the petitioner's greater experience in medical oxygen production and their additional facility for testing gas cylinders. The petitioner also questions the impartiality of the evaluation process, alleging collusion between the authorities and other bidders, ultimately aiming to eliminate the petitioner from the market-The petitioner seeks relief under Article 226 of the Constitution, urging the court to quash the arbitrary actions of the respondent authorities, reinstate their name in the tender, and consider their bid in line with the tender terms. They emphasize the importance of maintaining a level playing field, ensuring sensible expenditure of public funds, and protecting their fundamental rights, Therefore, the writ petition challenges the alleged unfair treatment of the petitioner in tender processes, emphasizing the importance of transparency, faimess, and adherence to tender terms by the respondent euthorities. Hence this appeal.ao DISTRICT: KOLKATA W.P.A.No. 7987 of 2024 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE IN THE MATTER OF: An application under Article 226 of the Constitution of India; -AND- IN THE MATTER OF: SIBORAM BHATTA ++, Petitioner -VERSUS- STATE OF WEST BENGAL & ORS. .-.. Respondents. INDEX SF Particulars ‘Annexure | Pg No | No. 1, | List of Dates A 3, | Synopsis 5 3, | Points of law Ce 4. | Writ Petition 1-33) S.|Copy of the notice inviting e-tender dated]~ P-1 | 94- 17.12.2021 66 “JA copy of the document evidencing such} P-2 | 67- extension of tender till 31.03.2024 68 7. [A copy of the name of the petitioner which was | P-3 6 showing in respect of the said tender of 2021 70