ERBIS ENGINEERING CO. LTD. Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of certiorari quashing letter No. 15P/Upkaran Kray/12/2005/10013 dated 20th March, 2006 (copy Annexure -8 to the writ petition) issued by respondent No. 2, cancelling the alleged acceptance of tender of the petitioner regarding purchase of Echo Cardiography machines. A mandamus has also been sought commanding respondent 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.

(3.) THE Joint Director in the office of Director General, Medical Health and Family Welfare, Uttaranchal, filed counter -affidavit on behalf of respondent No. 2, while respondent No. 3 filed its separate two counter -affidavits, one shorter counter -affidavit and Anr. a detailed one. According to the counter -affidavit filed by respondent No. 2, it is admitted that the petitioner was participant 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 6.12.2005, but the financial bid of the respondent No. 3 being the lowest one, the financial bid of the petitioner could not be accepted. Respondent No. 2 has disclosed in his counter -affidavit comparison of financial bids, as under: L.1. Innovative Philips Brand (Res. No. 3) Rs. 49,23,380 perMedicare Unit L.2. Erbis Engineering Toshiba Brand (Petitioner) Rs. 69,78,574 perunitL.3. Siemens Ltd. Siemens Brand Rs. 84,12,208 perunit According to respondent No. 2, equipments of both Innovative Medicare and that of Erbis Engineering were found as per tender specification by the Demonstration Committee, and technical evaluation report with financial comparative chart was sent to the Government of Uttaranchal for Its approval. However, since financial 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 sanctions which was received vide G. O. No. 57/XXVIII -5 -2006 -122/02 (T.S.) II dated 25.1.2006 (copy Annexure -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 currency, a letter of acceptance was issued to them in February, 2006, for the reason that in case said company gets Government sanction their letter of credit can be opened before the close of the financial year. However, financial sanction 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 machines from 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. 15P/Upkaran Kray/12/2005/9414 dated 17th March, 2006 and formal agreement and contract was entered into with respondent No. 3. And, supply order was also placed vide order No. 15P/Upkaran Kray/12/2005/9712 dated 17th March, 2006 (copy Annexure -C.A. 7 to the above counter -affidavit) to said company.