BABLU MITRA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) On the menu is a limited diagnosis of the state of health of the public healthcare in the State. A clutch of petitions challenges a government memorandum of June 12, 2009 and subsequent notices inviting tender for supply of cooked diet for indoor patients at State-run hospitals and like institutions. Most of the petitioners, including the ones in the first petition, are existing suppliers of cooked diet to Government hospitals; some of the other petitioners are not existing suppliers but, like the petitioners in the first petition, intended to put in their bids at the time that the petitions were instituted. The petitioners challenge the notification and the tender terms on two primary grounds: that the eligibility criteria set therein are absurd and mala fide and have no nexus with the work covered thereby; and, that the revised rates for supply of cooked diet to all Government-run hospitals are irrational and contrary to the observations found in at least one earlier order of this Court.

(2.) Apart from the State which resists any judicial incursion into the executive's exclusive fiefdom, a rival group of caterers - some existing suppliers and some aspiring - are vehement in their opposition. A few of the rival contractors have applied to be impleaded. The substance of the opposition is that there is no obligation on the petitioners to offer to supply; if they feel that the tender terms are unfair or unsuitable or if they are of the opinion that the rates specified would not permit them to supply the food demanded, they may as well not participate and go away.

(3.) There is a history to these proceedings. Prior to 2001 the State engaged contractors for supply of raw materials to Government hospitals and the cooking thereat was conducted by the State through its employees. By a memorandum of November 26, 2001 it was decided that contractors would supply cooked diet to indoor patients at Government hospitals and offers were invited for supply of cooked diet to be begun on April 1, 2001. By a circular of May 20, 2002 the principal rate for supply of cooked diet was fixed at Rs. 28.50 per patient per day and a suggested diet with the break-up of the cost thereof was furnished. A further circular of July 24, 2002 fixed a daily rate of Rs. 28.50 for the standard diet for any indoor adult patient and Rs. 14.25 for patients upto the age of eight years. Such circular advised bidders to quote either at par or below the rates indicated which implied that the rates would be the highest to be paid. Paragraph 9 of the lead petition recounts that on August 23, 2002 a clarification was issued regarding the proposed invitation of offers for supply of cooked diet to Government hospitals. A subsequent notice inviting tender of June 16, 2005 was issued by the State. Such tender notice came to be challenged in WP No. 13434 (W) of 2005 on which an interim order was made on July 13, 2005 arresting any further progress thereunder. The rates fixed in the year 2002 were not reviewed till 2007. By a Government order of February 20, 2007 it was notified that the rates fixed in the year 2002 would be applicable for the year 2007-08. Three sets of contractors supplying cooked diet to Government hospitals instituted WP No. 5971 (W) of 2007, WP No. 5976 (W) of 2007 and WP No. 6076 (W) of 2007. They contended that the rates fixed were unreasonable, unfair and unrealistic as quality diet could not be supplied at such rates. These petitioners appeared to espouse the patients' cause to obtain higher commercial rates for themselves. It is irrelevant that some of the petitioners who clamoured for higher rates in the year 2007 are satisfied with the new rates that have now been declared; or that some of the contractors who had opposed those petitions in 2007 seek an upward revision of the rates now set. In passing an interim order on the three petitions on March 29, 2007 the Court concurred with the view expressed when WP No. 13434 (W) of 2005 had been admitted and observed that "when a patient is admitted in a hospital for treatment for any disease that is ailing him, quality diet is as essential for his recovery as drugs and medicines are." The Court felt that asking the contractors to provide three meals a day and tea at the rate of Rs. 28.50 per adult patient made it "absolutely unrealistic and impracticable for anyone engaged in catering business to provide quality food at such abnormally low rate." The Court wondered whether there was any machinery for quality control and stayed further progress of the tender process in respect of some of the Government hospitals where the work orders had not been finalised or issued.