The court ruled that ongoing contracts must be honored, and procurement from alternative sources without adherence to tender processes is unjustifiable.

JUDGMENT

[W.P.(C) Nos. 702 of 2022 and 21808 of 2023]

These two writ petitions are filed by the same petitioner, who is stated to be a chemist/ druggist in Kochi, seeking to challenge the action of respondents 1 to 4 in proceeding to procure life-saving drugs from the 5^th respondent herein during the currency of Exts.P3 and P4 agreements entered into by the petitioner.

2. Short facts necessary for the disposal of these writ petitions are noticed as under:

The 3^rd respondent is the Ex-Servicemen Contributory Health Scheme (ECHS) Polyclinic, Kochi, and the 4^th respondent is the ECHS Polyclinic, Muvattupuzha, coming under the jurisdiction of respondents 1 and 2. They are essentially rendering medical facilities to Ex-Servicemen from Navy, Army and Air Force. The polyclinics referred to above require various medicines, including life-saving drugs, in the course of their activities. Such medicines are being purchased/procured from the market. This is usually carried out on the basis of certain invitation/tender process, as evidenced by Exts.P1 and P2. Ext.P1 is the tender with reference to supply for the ECHS at Kochi, and Ext.P2 is the tender with respect to the proposed supply for ECHS, Muvattupuzha. The petitioner participated in the tender process in response to Exts. P1 and P2. Ultimately, the petitioner being the lowest tenderer, the agreements at Exts.P3 and P4 were entered into for the period 13.01.2020 to 13.01.2022 as regards ECHS, Kochi, and 23.03.2021 to 23.03.2023 as regards ECHS, Muvattupuzha, respectively.

3. The petitioner states that there was a decline in procurement as noticed with reference to the invoices being raised by him for the period from September 2021 onwards. Therefore, when he made enquiries, the petitioner came to realise that respondents 3 and 4 were independently procuring the life savings drugs from the 5^th respondent herein, during the currency of Exts.P3 and P4. Though a complaint at Ext.P11 was preferred, insofar as no corrective steps were taken, the petitioner has instituted W.P.(C) No.702 of 2022, seeking the following reliefs:

“i) Issue a writ of certiorari or other appropriate writ, order or direction quashing/setting aside Exhibit P12 and P13 to the extent to which it provides that the Jan Aushadhi stores may be considered as deemed empanelled with ECHS, without providing for any process of calling for competitive Tenders by the 1^st and 2^nd respondents for procuring medicines and consumables;

ii) declare that clause (e) in Exhibit P12 and P13 which provides the Jan Aushadhi stores may be considered as deemed empanelled with ECHS without providing for any process of calling for competitive Tenders by the 1^st and 2^nd respondents for procuring medicines and consumables, as illegal, arbitrary, unreasonable and do not have any intelligible differentia with the object sought to be achieved,

ⅲ) Declare that the Willingness Letter/Memorandum of Understanding, if any, given by the 5^th respondent for supplying medicines and consumables to the 1^st and 2^nd respondents without participating in the competitive Tender, is void;

iv) issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 to 4 to stop the practice of procurement of Medicines and Consumables for the 3^rd and 4^th respondents, from the 5^th respondent during the period of contract with the petitioner for the very same purpose/job, as per Exhibits P1 and P2;

v) issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 to 4, not to satisfy the requirements of Medicines and co