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IN THE HIGH COURT OF DELHI AT NEW DELHI
SATISH CHANDRA SHARMA, SUBRAMONIUM PRASAD, JJ.
Triveni Healthcure Private Limited – Petitioner
Versus
Govt. of NCT of Delhi and Another – Respondents
W.P. (C) No. 9508 of 2022, C.M. Application No. 28376 of 2022
Decided On : 12-07-2022
Constitution of India, 1950 - Articles 14 and 19(1)(g) - Companies Act, 1956 - Promotion of Industry and Internal Trade - Terms of policies and circulars - Framing of tender - refusal to grant relaxation - Grievance stating that the GNCTD has failed to exercise due supervision upon respondent No. 2 - GB Pant Hospital, in matter of public procurement through the process of tender, and failure on part of respondent No. 1 in respect of non-grant of exemptions/relaxations has caused serious prejudice to rights of the petitioner as guaranteed under Constitution of India - Framing of tender condition is sole discretion of authority who has floated tender and unless and until tender conditions are arbitrary, or are contrary to any statutory provisions, or having tailored made to favour any individual, question of interference by this Court does not arise. The petitioner has not been able to establish violation of any right.
Finding of the Court:
Court view the executive instructions dated 10.03.2016 and 16.09.2016, is of the view that non-grant of relaxation in Annual Turnover, past experience and EMD/bid security amount for Startups/MSMEs, is certainly not an unreasonable restriction keeping in view the peculiar nature of work i.e. supply of Stents and other implants especially keeping in view the death rate in the Hospital - Policy framed by the GNCTD aims to recognize Start-ups which are working towards innovation, development or improvement of products or processes or services or if it is a scalable business model with a high potential of employment generation or wealth creation. The petitioner is merely a trader who has to supply goods, and no innovation of any kind is involved in so-called Start-up of the petitioner, and, therefore, this Court does not find any reason to interfere with the tender conditions - Petitioner has not been able to establish violation of any right. The safety of patients is of paramount importance and, therefore, the respondent Hospital has rightly not at all granted any relaxation to Startups and MSMEs in the peculiar facts and circumstances of the case.
Result: Writ Petition dismissed.
JUDGMENT :
SATISH CHANDRA SHARMA, J.
1. The petitioner before this Court is a Private Limited Company incorporated in the Companies Act, 1956 and is registered as a Start-up Company vide registration Certificate issued by Department of Promotion of Industry and Internal Trade dated 24.07.2020. The petitioner has filed the present petition being aggrieved by the inaction on the part of the respondents in providing relaxation for the Start-ups in terms of the policies and circulars issued by the Government of India from time to time.
2. The petitioner's contention is that Rajiv Gandhi Super Speciality Hospital is an autonomous institute under the Government of National Capital Territory of Delhi (hereinafter referred as GNCTD) and has issued tenders dated 12.04.2022 for procurement of Stents, Grafts, Valves for Cardiology Department and the details of tenders issued by respondent No. 2 are as under:
“(a) 2022-RGSSH-220415-1, Rate Contract of cardiology consumables (Part-1).
(b) 2022-RGSSH-220436-1, Rate Contract of cardiology consumables (Part-2).”
3. The petitioner's contention is that the Central Government in order to promote the Start-up and MSME entities came up with a policy i.e. Start-up India initiative in 2016, and, accordingly, executive instructions were issued through circulars to various Ministries for granting relaxation to the Start-up entities and MSME Enterprises with regard to past performance, bid security and turnover, only with an aim and object to promote the new talent and to ensure that they are also able to participate in the competition. The Executive Instructions dated 10.03.2016 have been brought to the notice of this Court.
4. The petitioner further stated that the GNCTD has also framed a policy for promoting Start-up and MSME in 2019, and the same has been brought into force with effect from 05.05.2022.
5. The petitioner's contentions that all other Hospitals like All India Institute of Medical Sciences and GB Pant Hospital - which are also Government Hospitals, have issued tenders for procurement granting relaxations for Start-ups and MSMEs with regard to turnover, past performance and bid security. However, the respondent No. 2 has not granted any such relaxation to Start-up/MSMEs arbitrarily without any reason.
6. The petitioner being aggrieved by non-grant of relaxations protested the matter during the pre-bid meeting which was held on 20.04.2022, and the petitioner was informed that no relaxation in respect of Annual Turnover Certificate, Past Experience and EMD/Bid security for Start-up Registered Company shall be given. The petitioner's contention is that non-grant of relaxation is clearly arbitral and violative of Articles 14 and 19(1)(g) of the Constitution of India and the petitioner has been denied level playing field.
7. The petitioner further stated that the representation was submitted on 07.06.2022, however, no response has been received, and, therefore, the petitioner has been left with no other choice except to approach this Court in the matter.
8. The petitioner has raised various grounds in this Court, and has stated that refusal to grant relaxation to the Start-up for turnover, past performance, bid security is against the Start-up policy of respondent No. 1 as well as against the Start-up policy of Government of India and hence it is violative of Articles 14 and 19(1)(g) of the Constitution of India.
9. The petitioner raised another grievance stating that the GNCTD has failed to exercise due supervision upon respondent No. 2 - GB Pant Hospital, in the matter of public procurement through the process of tender, and the failure on the part of the respondent No. 1 in respect of non-grant of exemptions/relaxations has caused serious prejudice to the rights of the petitioner as guaranteed under the Constitution of India.
10. The petitioner's further contention is that the respondents have acted in completely unfair manner by issuing NIT and by not including relaxations in respect of Start-up/MSME
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