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Judgment
Ramesh Ranganathan, CJ
Both Sri B.S. Parihar, learned Standing Counsel for the State Government, and Sri Rakesh Thapliyal, learned Assistant Solicitor General for the
Union of India, express no objection for condonation of the six days’ delay in preferring this Special Appeal. The Application seeking condonation
of delay in preferring the Special Appeal is, therefore, allowed and the delay is condoned.
Heard Sri Rajendra Dobhal, learned Senior Counsel appearing on behalf of the appellant-writ petitioner, Sri B.S. Parihar, learned Standing Counsel
for the State Government, and Sri Rakesh Thapliyal, learned Assistant Solicitor General for the Union of India and, with their consent, the Special
Appeal is disposed of at the stage of admission.
The appellant herein filed Writ Petition (M/S) No. 99 of 2019 seeking a writ of certiorari to quash the Memo dated 09.10.2018 issued by the second
respondent in so far as it related to the appellant-writ petitioner Society; for a writ of certiorari to quash the consequential letter dated 29.11.2018
issued by the second respondent; and a writ of mandamus commanding the respondents to complete the tender process afresh after including the
appellant-writ petitioner Society within the zone of consideration being fully eligible to participate in the tender process initiated pursuant to the tender
document dated 13.07.2018, after cancelling the contract, if any, awarded for the same to anybody else.
Facts, to the limited extent necessary, are that the appellant-writ petitioner is a Co-operative Society manufacturing Ayurvedic drugs having its own
manufacturing units. A certificate in this regard has been issued by the Kerala State Government Drug Authority. The Government of India launched
the National Ayush Mission Scheme in the year 2014 for providing healthy medical assistance to the public. Operational guidelines were issued for the
National Ayush Mission, which stipulated that the procurement of the medicines shall be made from M/s Indian Medicine Pharmaceutical Corporation
Limited (a Central Government public sector undertaking) or from public sector undertakings, pharmacies under State Governments and Co-operatives
manufacturing in their own manufacturing units, and having good manufacturing practices compliance. The State Ayush wing of the Government of
Uttarakhand issued an e-tender to procure medicines for the Financial Year 2018-19. On 13.07.2018, the appellant-writ petitioner Society submitted its
tender pursuant thereto. Their tender was rejected by proceedings dated 09.10.2018 on the ground that the certificate of the Co-operative Society
submitted by the appellant-writ petitioner was not as per the conditions of the tender documents. The appellant-writ petitioner’s certificate was
issued by the Joint Registrar General of the Co-operative Society, Kozhikode Co-operative Department, Government of Kerala. The tender summary
was uploaded in the official website of the second respondent on 10.10.2018.
The appellant-writ petitioner submitted a representation on 12.10.2018 stating that it was fully eligible and qualified to participate in the tender
process. This was followed by another representation dated 15.11.2018. The second respondent, by his letter dated 29.11.2018, informed the
appellant-writ petitioner that its tender had been rejected on the ground that it was not a Central Government / State Government undertaking, and did
not have the required certificate issued by the Secretary of the concerned Department under the Central Government / State Government. It is the
appellant-writ petitioner’s case that they are a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969 having
Registration No. F-1654; and they were working under the administrative control of the Co-operative Department of the State of Kerala having its
office at Kozhikode. The certificate produced by them, from the Joint Registrar of the Department of the Co-operation, is in terms of Section 8 of the
Kerala Co-operative Societies Act, 1969, which stipulates that where a co-operative society is registered under the Act, the Registrar shall issue a
certificate of registration signed and sealed by him, which shall be conclusive evidence that the said Society is registered under the Act.
In the order under appeal, the learned Single Judge observed that, as per Condition No. 2 of the e-tender, only such units, which were under the
control of the Government of India or was a State Government undertaking, and had the relevant certificate issued by the Principal Secretary /
Secretary of the relevant authority, were eligible to participate in the e-tender; as per the terms and conditions of the e-tender, the appellant-writ
petitioner was not even eligible to apply; yet they had participated in the bid; it is only after their bid was rejected that they had invoked the jurisdiction
of the Court; and, even in the said writ petition, they had not challenged the condition ousting them from participating in the bidding process. The
learned Single Judge, thereafter, examined the guidelines issued by the Central Government under the National Ayush Mission, and observed that, in
terms of Clause 4 (vi) (b), Co-operatives, manufacturing in their units and having good manufacturing practices compliance, were also eligible to
participate.
The learned Single Judge held that there was no prohibition even for private companies to apply for 50% of the requisition made by the State
Government, and the appellant-writ petitioner, being a Co-operative Society, was eligible to participate in the e-tender both under Clause 4(vi)(b) as
well as 4(vi)(c), provided they submitted the relevant certificates duly authenticated by the Department as required by the State Government in future.
On the ground that the appellant-writ petitioner had participated in the bid process, the learned Single Judge found no justification in interfering with
the present bidding process, or the contract which had already been executed. He, however, directed that, for the process which was under the same
Government of India scheme, governed by the same conditions, the State authorities should adhere to the conditions as stipulated by the Government
of India for future similar contracts. Aggrieved thereby, the present Special Appeal.
Sri Rajendra Dobhal, learned Senior Counsel appearing on behalf of the appellant, would submit that though the learned Single Judge had, in the
order under appeal, observed that the appellant-writ petitioner should submit the relevant certificates duly authenticated by the Principal Secretary /
Secretary of the Department as required by the State Government in future, no such condition is stipulated in Clause 4(vi) (b) or (c) of the National
Ayush Mission scheme; since 90% of the funds, relating to the Scheme, are provided by the Government of India and only 10% by the State
Government, the guidelines issued for the National Ayush Mission should have been strictly adhered to; and since the said Scheme does not prescribe
any such certificate being issued by the Principal Secretary / Secretary to the State Government, insistence on such a condition, in the e-tender issued
by the State Government, is illegal; Section 8 of the Kerala Cooperative Societies Act merely requires the Registrar to issue a certificate that the Co-
operative Society has been registered under the Act; and insistence on a certificate being issued by the Principal Secretary / Secretary is illegal.
Our attention is also drawn by the learned Senior Counsel to the certificate issued by the Assistant Registrar of Co-operative Societies (General),
Kazhikode, Kerala, which shows that 66% of the entire share capital of the appellant-writ petitioner Co-operative Society is held by the Government
of Kerala.
It does appear, therefore, that the appellant-writ petitioner was eligible, even in terms of the e-tender issued by the State Government, as it was a
State Government controlled Co-operative Society. It does also appear that their bid was rejected on a hyper technicality that they had failed to
produce a certificate from the Principal Secretary / Secretary to the Government.
While we are satisfied that insistence on such a condition may not be in order, we must also bear in mind that the appellant-writ petitioner had
participated in the bidding process being well aware of the said condition having been imposed by the State Government and, despite their bid having
been rejected, they have not chosen to challenge the validity of such a condition being prescribed in the e-tender document. The learned Single Judge
was, therefore, justified in refusing to interfere with the tender process.
In terms of Clause 4(vi) (b), State Government public sector undertakings and Co-operative Societies manufacturing in their own units, and having
good manufacturing practices compliance, are eligible to participate in the bidding process. While insistence on a certificate by the Principal Secretary
/ Secretary to the Government, that the Society is a State Government Co-operative Society, may be justified, it may not be possible for a non-Govt.
Co-operative Society registered under the Act to produce a certificate from the Secretary / Principal Secretary to the Government, and since Section
8 of the Kerala Co-operative Societies Act, 1969 requires such a certificate to be issued by the Registrar of Co-operative Societies, we find
considerable force in the submission of Sri Rajendra Dobhal, learned Senior Counsel for the appellant-writ petitioner, that such a certificate issued by
the Registrar should suffice.
As the learned Single Judge has observed in the order under appeal that the appellant-writ petitioner had participated in the tender process, and
since the contract has already been executed, we see no reason to interfere with the tender process undertaken by the State Government. Suffice it to
observe that, since 90% of the funds are provided by the Government of India, the State Government should bear in mind such guidelines while
prescribing conditions for procurement of such medicines, through the e-tender process, in future. Suffice it to also make it clear that the observation
of the learned Single Judge shall not be understood as requiring even co-operative societies, which do not claim to be State Government controlled Co-
operative Societies, to produce a certificate from the Secretary / Principal Secretary, in as much as the law (Section 8 of the Kerala Co-operative
Societies Act, 1969) only requires a certificate, issued by the Registrar of the Co-operative Societies, to be submitted in proof of the fact that the
applicant is a Co-operative Society.
The Special Appeal is accordingly disposed of. No costs.