Bombay High Court
Yashwant Bahuuddeshiy Sewabhavi ... vs The State Of Maharashtra And Others on 21 September, 2019
Bench: S. V. Gangapurwala, Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8877 OF 2019
Navjeevan Yuvak Mandal, Shirud,
Through its Authorized Signatory
Kalyan Dattu Bachate .. Petitioner
Versus
The Secretary, Ministry of Chemical
and Fertilizers, Govt. of India, New
Delhi and others .. Respondents
Shri D. S. Bagul, Advocate for the Petitioner.
Shri S. B. Deshpande, A.S.G. for Respondent Nos. 1 and 2.
Shri Shrihari Aney, Senior Advocate i/by Shri P. S. Patil, Addl.
G. P. for the Respondent No. 3/State
Shri V. D. Hon, Senior Advocate a/w Shri A. V. Hon, Advocate for
Respondent Nos. 4 to 6, 14 and 18.
Shri Vijay V. Deshmukh, Advocate for the Respondent No. 7.
Mrs. Smita S. Kulkarni, Advocate for the Respondent No. 8.
Shri Hanmant V. Patil, Advocate for Respondent Nos. 9, 10, 16
and 17.
Ms. P. S. Talekar, Advocate i/by Talekar and Associates,
Advocate for Respondent Nos. 11, 13 and 20.
Shri A. R. Syed, Advocate for the Respondent No. 12.
Shri S. P. Brahme, Advocate for the Respondent No. 15.
Shri R. N. Dhorde, Senior Advocate i/by Shri V. P. Latange,
Advocate for the Respondent No. 19.
WITH
WRIT PETITION NO. 8996 OF 2019
Yashwant Bahuuddeshiy Sewabhavi
Sanstha Shahu Nagar, Beed
Through Chairman
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Rajeshwar Pandurangrao Jadhav .. Petitioner
Versus
The State of Maharashtra
Through Secretary and others .. Respondents
Shri G. K. Naik (Thigle), Advocate h/f Shri Devdatt D. Palodkar,
Advocate for the Petitioner.
Shri Shrihari Aney, Senior Advocate i/by Shri P. S. Patil, Addl.
G. P. for Respondent Nos. 1 to 3.
Shri S. P. Brahme, Advocate for Respondent Nos. 4 and 15.
Ms. P. S. Talekar, Advocate i/by Talekar and Associates,
Advocate for Respondent Nos. 05, 16 and 20.
Shri Hanmant V. Patil, Advocate for Respondent Nos. 06, 08, 17
and 18.
Shri V. D. Hon, Senior Advocate a/w Shri A. V. Hon, Advocate for
Respondent Nos. 07, 09 to 11, 13 and 16.
Shri Vijay V. Deshmukh, Advocate for the Respondent No. 12.
Shri V. P. Latange, Advocate for the Respondent No. 14.
Mrs. Smita S. Kulkarni, Advocate for the Respondent No. 19.
CORAM : S. V. GANGAPURWALA AND
ANIL S. KILOR, JJ.
Closed for orders on : 13.09.2019 Order pronounced on : 21.09.2019 FINAL ORDER : . The Directorate of Medical Education and Research,
Mumbai (for short "DMER") published e-tender notice inviting the Expression of Interest in one envelop system for starting, "Jan Aushadhi Kendra" for all hospitals and medical colleges ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 3 wp 8877.19 under DMER.
02. The petitioners in both the writ petitions are assailing the allotment of Jan Aushadhi Kendra to the successful bidders on the same set of facts, as such these writ petitions are decided together. For the sake of convenience facts are referred from Writ Petition No. 8877 of 2019.
03. On or about 14th August, 2019 the matters were heard. Mr. Bagul and Mr. Thigle, the learned advocates for petitioners submitted that, the petitioners had raised objections to the eligibility of the bidders. The objections were not decided. Ignoring the objections raised by the petitioners to the eligibility of the bidders, the Jan Aushadhi Kendras (for short "JAK") were allotted to respondent Nos. 5 to 19.
04. Mr. Dixit, the learned senior advocate appearing for the respondent No. 3/State on 14.08.2019 upon instructions of the officers present in the Court accepted that objections raised by the petitioners were not decided. On 14 th August, 2019, we had directed the respondent No. 3 to decide the objections raised by the petitioners by giving opportunity to the petitioners and all the respondents. The respondent No. 3 constituted committee. The committee conducted hearing and decided the objections. Upon considering the objections raised by the petitioners, the authority came to the conclusion that out of nineteen successful ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 4 wp 8877.19 bidders were enlisted for allotment of JAK, eleven were ineligible and not qualified. The authority withdrew/cancelled the work orders of those eleven ineligible respondents. The respondent No. 3/State submitted that, it would proceed further for fresh process for the JAK allotted to those ineligible respondents. As such, the eligible respondents would only be eight. Mr. Bagul, the learned advocate contended that, out of those eight respondents, respondent Nos. 11, 15 and 19 are eligible. Under order dated 06th September, 2019, we had clarified that the authority may take further steps in respect of respondent Nos. 11, 15 and 19 and there would be no prohibitory orders against them. Now we would be required to consider the case and objection of the petitioners with regard to five respondents only viz respondent Nos. 5, 8, 12, 13 and 20.
05. The main thrust of Mr. Bagul and Mr. Thigle, the learned advocates for petitioners as against these respondents is that, they do not comply with Clauses 4, 5 and 10 of the minimum eligibility criteria required under the tender. So also do not possess license for sell of medicine under the provisions of the Drugs and Cosmetic Act. The objections raised by the learned advocate for petitioners as against said respondents can be detailed as under :
06. The details of objections in respect of Respondent No. 5
i) No valid license under the provisions of Drug and Cosmetic ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 5 wp 8877.19 Act for sale of medicine.
ii) There is overwriting in the bylaws submitted by the respondent No. 5. Bye-laws of Ekatmik Gramin Vikas Swayam Rozgar Sahkari Sanstha Ltd. Is annexed along with the tender document. Bye-laws do not provide aim to provide help to poor and needy patients.
iii) The respondent No. 5 submitted copy of understanding letter on non judicial stamp dated 11.11.2016 issued by Aarogya Pharma, Shop No. 5, PBM Complex, Aurangabad. It does not show any experience in selling of medicine. Same is stereotype copy as submitted by the respondent No. 4. The understanding letter is dated 11.11.2016. It do not provide experience in selling medicine and on the last date of submission of tender i. e. 04.02.2019 till that day experience was of two years and four months and on that day three years were not completed.
iv) The certificate of appreciation is issued by local MLA who belongs to ruling party in the State. The donation given in the nature of medicals to poor and needy people is shown to be experience by the Government Medical College and Hospital, Aurangabad. The said experience certificate is not of sale of medicine.
v) In the audit report, the expenses are shown towards the amount of purchase of medicine and surgical in the tune of Rs. 24,80,512/-, however, such type of huge purchase of medicine is without license and the same is contrary to the ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 6 wp 8877.19 provisions of the Drugs and Cosmetic Act, 1940.
vi) The turnover certificate is not issued by Chartered Accountant and is issued by Certified Auditor, as such the same is contrary to the terms and conditions of tender notice. This contention is accepted by the State in its additional affidavit in reply.
07. The details of objections in respect of Respondent No. 8
i) The respondent No. 8 has not produced valid license under the provisions of the Drug and Cosmetic Act for sale of medicine. So also experience is shown of Mr. Ajeet Gopchade, Mr. Sanjay Bhonge, Mr. Madhavrao Gopchade, Ms. Mansi Bhonge and Mr. Sadashiv Jadhav partners of Amrutpath Medical and General Stores. Same is not experience of trust.
ii) In the audit report/balance sheet no expenses are shown towards the amount of purchase of medicine.
iii) The partnership deed produced by the respondent No. 8 is of Mr. Ajeet Gopchade and Mr. Sadashiv Venkat Jadhav and same is not of the respondent No. 8. This contention is also accepted by the respondent/State in its additional affidavit in reply.
iv) The Bye-laws of the respondent No. 8 do not provide help to poor and needy patient.
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08. The details of objections in respect of Respondent No. 12.
i) The respondent No. 12 has not produced valid license under the provisions of the Drug and Cosmetic Act for sale of medicine.
ii) As per tender document and the corrigendum issued on 25.03.2019, the society should be registered under the provisions of the Bombay Public Trust Act, 1950 and the Societies Registration Act or under the Maharashtra Co- operative Societies Act, 1960. However, the respondent No. 12 possesses certificate only under the provisions of the Bombay Public Trust Act, 1950.
iii) Bye-laws do not provide help to poor and needy patient.
The hospital license was submitted along with tender, but the same was expired long back in the year 2016.
iv) Receipt of donations included in turnover and balance sheet do not show sale of medicine. Sale of cow dung included for turnover purpose.
v) There is no reference of sale of medicine in balance sheet.
In the additional affidavit the State has accepted that the bye-laws do not provide for help to poor and needy patient. It generally provides public and personal health and implementing various health departments scheme.
09. The details of objections in respect of Respondent No. 13.
i) The respondent No. 13 has not produced valid license under the provisions of the Drug and Cosmetic Act for sale ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 8 wp 8877.19 of medicine.
ii) The respondent No. 13 has annexed certificate of Nursing Home in the name of Maishalkar Shinde Hospital dated 04.04.2019 and last date for submission of tender was 02.04.2019.
iii) The experience certificate produced by the respondent No. 13 is of running and managing hospital and not sale of medicine for three years. So also experience certificate is issued by the respondent No. 13 itself.
vi) The balance sheet produced by the respondent No. 13 do not provide sale of medicine.
10. The details of objections in respect of Respondent No. 20.
i) The respondent No. 13 has not produced valid license under the provisions of the Drug and Cosmetic Act for sale of medicine.
ii) As per the tender document and the corrigendum issued on 25.03.2019, the society should be registered under the provisions of the Bombay Public Trust Act, 1950 and the Societies Registration Act or the Maharashtra Co-operative Societies Act. The respondent No. 20 only possesses registration certificate under the provisions of the Bombay Public Trust Act, 1950.
iii) The respondent No. 20 has produced the drug license of Mamali Ashish Bothra Proprietor of Navkar Medicals. The respondent No. 20 is running medical shop without license.
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iv) The respondent/State has accepted in its additional affidavit in reply that bylaws of provides for start of hospital, research centre, laboratories.
11. The learned counsel for the petitioners further submit that, though these tenderers do not have experience, nor are qualified to sale the medicines, they are issued with the tender for JAK. According to the learned counsel, in respect of one Yashwant Bahuuddeshiy Sewabhavi Sanstha, Beed, its tender is rejected only on the ground that, said institute did not possess experience for sale of medicine, whereas respondents whose tenders are accepted also did not possess the experience to sale the medicine. The decision and action of the respondent No. 3 is arbitrary. The learned advocates for petitioners rely on the judgment of the Apex Court in a case of Central Coalfields Limited and another Vs. SLL (Joint Venture Consortium) and others reported in (2016) 8 SCC 622 and submit that, the Courts should as far as possible avoid a construction which would render the words used by the author of the document meaningless. The terms in the tender cannot be defeated. According to the learned counsel, the respondents are misinterpreting Clause 4 of the minimum eligibility criteria. Clause 4 does not permit those societies not possessing qualification and experience to sale medicine to be eligible to apply. The Non Governmental Organizations (for short N.G.O's.) having experience to run clinic, hospital without ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 10 wp 8877.19 possessing any license to sale medicine would not be eligible to apply. According to the learned counsel the arbitrary action of the respondent No. 3 would be open for judicial review. The learned counsel place reliance on the judgment of the Apex Court in a case of Tata Cellular Vs. Union of India reported in (1994) 6 SCC 651 and the judgment in a case of Paharpur Cooling Towers Ltd. Vs. Bangaigaon Refinery and others of the Delhi High Court decided on 07th January, 1994.
12. The learned counsel for petitioners also rely on the following judgment.
I) Aurangabad Electrical Contractors Association Vs. State of Maharashtra reported in 2015(1) Mh.L.J. 182. II) S. K. Transline Vs. State of Maharashtra reported in 2015(1) Mh.L.J. 182.
III) M/s Monarch Infrastructure Pvt. Ltd. Vs. Commissioner, Ulhasnagar Mun. Corp. and others reported in 2000(3) Bom.C.R. 1.
IV) Afcons Infrastructure Vs. Nagpur Metro rail Corporation Ltd. Reported in (2016) 16 SCC 818.
V) Consortium of Titagarh Firema Adlr Vs. Nagpur Metro Rail Corporation Ltd. Reported in (2017) 7 SCC 486. VI) Municipal Corporation Ujjain and another Vs. B.V.G. India Ltd. And others reported in (2018) 5 SCC 462. VII) State Rep. by the Drugs Inspector Vs. Manimaran reported ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 11 wp 8877.19 in Criminal Appeal No. 1493 of 2018 decided on 30 th November, 2018.
VIII) Prabhudas Kalyani Adhia Vs. State decided by Bombay High Court on 09th April, 1969.
IX) Ramesh Giri Prop. Goswami Medical Stores Vs. State of UP and others of the Allahabad High Court decided on 29.01.1996 in C.M.W.P. No. 981 of 1994.
13. Mr. Aney, the learned senior advocate for the respondent/State submits that, after the order was passed by this Court directing the respondent No. 3 to consider the objections raised by the petitioners, the respondent No. 3 constituted a High Power Committee consisting of six members and the objections raised by the petitioners were considered threadbare. The Committee individually considered claims of all the tenderers after allowing them to submit additional documents so as to substantiate their submissions. Out of nineteen tenderers, eleven did not meet the eligibility criteria. The learned senior advocate submits that, the scheme of allotting JAK for sale of generic medicine (non branded) is with the laudable object. The same is under Pradhan Mantri Bhartiya Janaushadhi Pariyojana (for short "PMBJP"). The conditions of the eligibility have been scrupulously followed. The bids are not commercial in nature. The JAK are to be allotted to the NGOs or such institutes or societies which in its bye-law contains aim to facilitate or help poor and needy patients in medical terms.
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14. In view of that, Clause No. 4 of the minimum eligibility criteria is to be read. The NGO/Institutes/Societies that has aim to facilitate or help poor and needy patients in medical terms in its bye-laws and has experience and qualification either of running medicine shop, clinic or hospital would be eligible. It would be difficult for a NGO which has its aim to help poor and needy patients in medical term to have annual turnover of Rs. 20 Lakhs in sale of medicine. Wider interpretation shall be given to Clause Nos. 4 and 5 of the minimum eligibility criteria and same has been considered by the authority and eligible bidders have been selected. The margin is also restricted to 20%. This Court would not sit in appeal over the decision of the high power committee regarding eligibility criteria. The High Power Committee has considered eligibility criteria of the tenderers.
15. Mr. Dhorde, the learned senior advocate for the respondent No. 19 and Mr. S. P. Brahme, the learned advocate for the respondent No. 15 submit that these respondents have the license under the Drugs and Cosmetic Act and they are eligible. The petitioners are disqualified. They are not challenging their disqualification, as such, the petitioners who are disqualified do not have right to assail the allotment of tender to the successful bidder.
16. Miss Talekar, the learned advocate for respondent Nos. 11, ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 13 wp 8877.19 13 and 20 submits that, Clause No. 4 of the minimum eligibility criteria read with Clause 5 shall have to be read in a manner to make it workable. All the tenderers either NGO or charitable societies who have in their bye-laws the object to facilitate or help poor and needy patients in medical term are eligible to fill in the tender. The license would be required after the location for the shop is allotted to the tenderer and it is only after obtaining the license, the respondents would sale the medicine. For the purpose of applying pursuant to the tender for allotment of JAK, the license under the Drugs and Cosmetic Act is not a precondition. The respondent Nos. 11, 13 and 20 have in their bye-laws the object of helping the needy and poor people in medical terms. The experience certificates are issued to them for running the hospital. All these respondents possess the necessary certificates. The learned counsel has taken us through various documents to substantiate her contention about the eligibility of these respondents. The learned advocate submits that, this Court under Article 226 of the Constitution of India would possess a limited jurisdiction to interfere in the tender process. The learned counsel relies on the judgment of the Apex Court in a case of The Silppi Constructions Contractors Vs. The Union of India and another in Special Leave Petitin (C) Nos. 13802-13805 of 2019 decided on 21.06.2019. The learned counsel further submits that, the petitioners did not fulfill the requisite criteria and as such this Court would not entertain the petitions. The same yardstick is applied for all ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 14 wp 8877.19 tenderers and the decision is arrived at in fair manner after considering all the facts. The same would be non discriminatory. This Court would not entertain the petitions. The learned counsel relies on the judgment of the Apex Court in a case of Raqnaq International Ltd. Vs. I.V.R. Constructions Ltd. and others reported in (1999) 1 SCC 492. The policy of the respondent No. 3 to consider those possessing experience of running clinic and hospital eligible is not justifiable more particularly when the said policy is not arbitrary and does not infringe any of the statutory provision. The learned counsel relies on the judgment of the Apex Court in a case of State of Rajasthan Vs. Sevanivatra Karamchari Hitkari Samiti reported in (1995) 2 SCC 117 and another judgment of the Apex Court in a case of Sher Singh and others Vs. Union of India reported in (1995) 6 SCC 515 so also another judgment in a case of All India Ex-Emergency Commissioned Officers and Short Commissioned Officers Welfare Assn. And others vs. Union of India reported in (1995) Suppl. SCC
78.
17. Mr. Sayed, the learned advocate appears for the respondent No. 12 and submits that, respondent No. 12 is eligible. It possessed necessary qualification. The respondent No. 12 is registered under the provisions of the Bombay Public Trust Act and is rendering dedicated service as NGO. It is running nursing home for more than three years. The respondent No. 12 has a license under the Bombay Nursing ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 15 wp 8877.19 Home Registration and same is valid till 31.03.2032. It is running nursing home since long period. The turnover of the respondent No. 12 is more than Rs. 20,00,000/-.
18. Before we proceed to deal with the contentions canvassed by the learned advocate for the respective parties, it will be appropriate to refer to the terms and conditions of the e-tender notice that are subject matter of debate.
2. MINIMUM ELIGIBILITY CRITERIA The following shall be the minimum technical eligibility criteria for selection of agency.
1. ..........
2. ..........
4. The applicants/bidders should have minimum 3 years Qualifications & 3 years experience in selling of medicine and. The agency should attach experience certificate showing required experience to run medicine shop/clinic/hospital/medicine manufacturing.
5. They should have minimum annual turnover of Rs. 20 lakhs.
10. Institute/society must have own bye-laws containing aim to facilitate or help poor and needy patients in medical terms.
19. The JAK is launched by the Department of ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 16 wp 8877.19 Pharmaceuticals, Ministry of Chemical and Fertilizers, Government of India with avowed aim to make available quality generic medicines at affordable prices to all through special outlets known as Jan Aushadhi Kendra to be opened in each district of all states.
20. The branded (Generic) medicines are sold at significantly higher prices than their un-branded generic equivalents, though are identical in the therapeutic value. Given the widespread poverty across the country, making available reasonably priced quality generic medicines in the market would benefit everyone. It is with this avowed objective the Pharma Advisory Forum in its meeting held on 23rd April, 2008 decided to launch the Jan Aushadhi Campaign starting with the sale of generic medicines through dedicated sales outlets called Pradhan Mantri Bhartiya Janaushadhi Kendra (for short PMBJK) in various districts of the country. The Bureau of Pharma PSUS of India (for short "BPPI") implementing agency for JAK is established. The guidelines are provided for opening a new PMBJK. The eligibility criteria to open PMBJK is also laid down. The NGO, Charitable Institutions/Hospitals, Reputed professional bodies/organizations, Private Hospitals, Trusts, Societies, Self Help Groups, etc. are eligible to open new PMBJK. The margin and incentives so also the functioning of the JAK is detailed under the scheme.
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21. The terms of eligibility provided under the tender document have to be in consonance with the guidelines provided by the Bureau of Pharam Public Sector Undertaking of India for opening new PMBJK. The minimum eligibility criteria in the tender document shall have to be read in consonance with the eligibility prescribed under the guidelines.
22. The scope of judicial review in tender matter is now well settled. In matters of tender, the powers of judicial review are to be sparingly exercised. The principle of judicial review will apply to the exercise of contractual power by the Government bodies in order to prevent arbitrariness and favouritism. The duty of the court is to confine itself to the question of legality. The judicial review is more concerned with the decision making process. The Court in its realm of judicial review does not exercise powers like an appellate authority in an appeal from the decision. The Court is more concerned with due adherence to the decision making process and the manner in which the decision was made. In a case of Tata Cellular Vs. Union of India (supra) the Apex Court referred to the limitations relating to the scope of judicial review of administrative decisions and exercise of powers in awarding contracts.
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 18 wp 8877.19 have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
23. Initially when the writ petitions were filed, the decision making process was flawed. The authorities did not entertain the objections raised by the petitioners and straightway without application of their mind proceeded to allot the tenders and JAK to respondent Nos. 5 to 19. This Court under order dated 14 th August, 2019 directed the respondent No. 3 to decide the objections. Pursuant thereto the respondent No. 3 constituted a ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 19 wp 8877.19 High Power Committee consisting of (i) Director of Medical Education and Research Dr. Lahane, (ii) Joint Director Dr. P. T. Wakode, (iii) Chief Administrative Officer Mr. Dorve, (iv) The Accounts Officer Mr. Chavan, (v) Associate Professor, J. J. Hospital Dr. Sinha and (vi) Pharmacist Mr. Parmeshwar Kogunure to decide the objections of the petitioners. The Committee heard the parties, considered their objections and the say. Upon deciding the objections the Committee came to the conclusion that out of nineteen tenderers held eligible by the respondent No. 3, eleven were ineligible and only eight were eligible. The flaw in the decision making process was rectified. The respondent No. 3 withdrew/cancelled the allotment of work order to those eleven ineligible respondents. So far as respondent Nos. 11, 15 and 19 are concerned, the petitioners did not have any objection against respondent Nos. 11, 15 and 19 qua their eligibility. The petitioners now have restricted objection to eligibility of five respondents.
24. The gravamen of the petitioners objection vis a vis eligibility of respondents is that, they do not possess license under the Drugs and Cosmetics Act. The question would be whether it is necessary to possess such a license for opening a shop or participating in the tender. The license would be required to run the shop and sell medicine. The eligibility criteria provides that the applicant/bidder should have minimum three years qualification and three years experience in selling ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 20 wp 8877.19 medicine. The agency should attach experience certificate to show required experience in medicine shop/clinic/hospital/medicine manufacturing and they should have minimum turnover of Rs. 20 Lakhs. The eligibility criteria as provided by the Bureau of Pharma Public Sector Undertakings of India for opening of new PMBJK provides that NGO, Charitable Institutions/Hospitals, Reputed professional bodies/organizations, Private Hospitals, Trusts, societies, Self Help Groups, etc. are eligible to open new JAK. Clause 4 shall have to be read in context of the guidelines issued by the BPPI. Reading clause 4 of the eligibility criteria provided under the tender document and the eligibility criteria prescribed by BPPI harmoniously, the irresistible conclusion would be that, a bidder/tenderer possessing three years qualification and three years experience in running a clinic, hospital, medicine undertaking or medicine shop would be eligible. Predominantly the bidder should be associated with the medical faculty.
25. In the light of the above, the bidder though may not possess the license under the Drugs and Cosmetic Act at the time of filling the e-tender would be eligible to apply provided, it has experience of three years and more in running clinic/hospital/medicine undertaking.
26. The reasons are given for selection of the bidders and deciding the objections.
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2½ R;kaP;k laLFksl ikp o'kkZapk vuqHko vkgs-
3½ R;kaP;k ck; ykWt e/;s uewn mn~ns"kkae/;s oS|dh; {ks=kpk mYys[k vkgs- 4½ R;kauh VsaMj Hkjrkuk lqj{kk jDde ns[khy lknj dsysyh ukgh-
::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 :::22 wp 8877.19 mijksDr ckchapk fopkj djrk ojhy eqn~nk dz- 1 o 4 ph lnj laLFkk iwrZrk djr ulY;kus laLFkk fufonsdjhrk ik= ukgh-
3- Hkwehiw= lqf"kf{kr csjkstxkj lsok lgdkjh vkt lquko.kh P;k osGsl Hkwehiw= lqf"kf{kr laLFkk] vkSjaxkckn csjkstxkj lsok lgdkjh laLFkk] Resp. No. 5 in W.P. No. vkSjaxkckn ;k laLFksps izfrfu/kh Jh- iadt 8877/2019 tks"kh gs mifLFkr gksrs- ek- U;k;ky;kps vkns"k fn- 14@8@2019 uqlkj 1½ R;kaph ljkljh myk<ky gh :- 20 y{kkais{kk tkLr vkgs-
2½ lnj laLFksl vkSjaxkckn ftYgk vlksfl,s"ku dsehLV vW.M MªxhLV vuqHko izek.ki= vkgs- laLFksps vkjksX; QkekZlkscr daMDVhax vWxzhesaV vlwu esMhdy "kkWiP;k mRiUu o [kpkZpk mYys[k laLFksP;k rkGscan e/;s mYys[k vkgs-
3½ laLFksP;k ck; ykWt e/;s fo'k;kafdr ckcrhr mYys[k dsysyk fnlwu ;srks-
mijksDr ckchapk fopkj djrk ojhy loZ vVhaph lnj laLFkk iwrZrk djr vlY;kus laLFkk fufonsdjhrk ik= vkgs vls lferhps er vkgs-
4- IakMhr fnun;kG mik/;k; lsok izfr'Bku] vkt lquko.kh P;k osGsl iaMhr fnun;kG ukansM mik/;k; lsok izfr'Bku] ukansM ;k Resp. No. 8 in W.P. No. laLFksdMwu v/;{k MkW- vftr xksifpMs gs 8877/2019 mifLFkr gksrs- ek- U;k;ky;kps vkns"k fn-
14@8@2019 uqlkj 1½ R;kaph ljkljh myk<ky gh :- 20 y{kkais{kk tkLr vkgs-
2½ 10@1@2006 iklwu R;kaPkh laLFkk ckWEcs uflZax gkse vWDV uqlkj dk;Zjr vkgs-
3½ laLFksP;k ck; ykWt e/;s fo'k;kafdr ckcrhr mYys[k dsysyk fnlwu ;srks-
mijksDr ckchapk fopkj djrk ojhy loZ vVhaph lnj laLFkk iwrZrk djr vlY;kus laLFkk fufonsdjhrk ik= vkgs vls lferhps er vkgs-
5- LkkbZ lsok lferh lkekftd laLFkk] vkt lquko.kh P;k osGsl lkbZ lsok lferh tGxkao lkekftd laLFkk] tGxkao ;k laLFksps Resp. No. 12 in W.P. No. izfrfu/kh Jh- lqfuy lksuo.ks gs mifLFkr 8877/2019 gksrs- ek- U;k;ky;kps vkns"k fn-
14@8@2019 uqlkj 1½ R;kaph ljkljh myk<ky gh :- 20 y{kkais{kk tkLr vkgs-
2½ 9@4@2013 iklwu R;kaph laLFkk ckWEcs uflZax gksEk vWDV uqlkj dk;Zjr vkgs-
::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 :::23 wp 8877.19 3½ laLFksP;k ck; ykWt e/;s fo'k;kafdr ckcrhr mYys[k dsysyk fnlwu ;srks-
mijksDr ckchapk fopkj djrk ojhy loZ vVhaph lnj laLFkk iwrZrk djr vlY;kus laLFkk fufonsdjhrk ik= vkgs vls lferhps er vkgs-
6- v..kklkgsc f"kans EgS"khydj pkjhVscy vkt lquko.khP;k osGsl v..kklkgsc f"kans VªLV] lkaxyh EgS"khydj pkjhVscy VªLV ;k laLFksdMwu Resp. No. 13 in W.P. No. v/;{k MkW- jfojkt f"kans gs mifLFkr gksrs- 8877/2019 ek- U;k;ky;kps vkns'k fn- 14@8@2019 uqlkj 1½ R;kaph ljkljh myk<ky gh :- 20 y{kkais{kk tkLr vkgs-
2½ R;kauk 19 o'kZ :X.kky; pkyfo.;kpk vuqHko vkgs- R;kizhR;FkZ R;kauh ckWEcs uflZax gkse vWDVps lVhZQhdsV lknj dsys vkgs-
3½ laLFksP;k ck; ykWt e/;s fo'k;kafdr ckcrhr mYys[k dsysyk fnlwu ;srks-
mijksDr ckchapk fopkj djrk ojhy loZ vVhaph lnj laLFkk iwrZrk djr vlY;kus laLFkk fufonsdjhrk ik= vkgs vls lferhps er vkgs-
7- izofrZuh Hkkrjekrk iwT; izeksnlwnkth ek- vkt lquko.kh P;k osGsl izofrZuh lk- lkekftd laLFkk] iq.ks Hkkrjekrk iwT; izeksnlwnkth ek- lk- Resp. No. 20 in W.P. No. lkekftd laLFkk] iq.ks ;k laLFksps lfpo 8877/2019 Jh- dfiy izeksn ns"kew[k gs mifLFkr gksrs-
ek- U;k;ky;kps vkns"k fn- 14@8@2019 uqlkj 1½ R;kaph ljkljh myk<ky gh :- 20 y{kkais{kk tkLr vkgs-
2½ lnj laLFksus tSu nok[kkU;kekQZr esMhdy "kkWi fnukad 24@8@2005 iklwu pkyfor vlY;kps R;kauh izek.ki= lknj dsys vkgs-
3½ laLFksP;k ck; ykWt e/;s fo'k;kafdr ckcrhr mYys[k dsysyk fnlwu ;srks-
mijksDr ckchapk fopkj djrk ojhy loZ vVhaph lnj laLFkk iwrZrk djr vlY;kus laLFkk fufonsdjhrk ik= vkgs vls lferhps er vkgs-
27. As observed above, we would be more concerned with the decision making process and would not sit in appeal over the ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 24 wp 8877.19 decision of the authorities. The committee is consisted of experts. Malafides cannot be attributed to the members of the committee. They have independently assesed the documents submitted by the tenderer and have come to the conclusion about the eligibility of these successful bidders. Upon going through the judgments as referred to by the counsel for the parties, it is evident that while exercising powers of judicial review under Article 226 of the Constitution of India in contractual matters Court shall observe restraint and should be loath, unless it would be a case of malafides or would result in egregious injustice.
28. The tender in issue is not in strict sense a commercial one. The same is floated with an avowed cause and the object of establishing JAK so as to provide generic (non branded medicines) at affordable prices to the poor and needy people. In strict sense, it cannot be said to be a profitable venture. The respondents floating the tenders are the best judge to cull out the requirements.
29. We do not find that the decision made by the authorities is malafide or intended to favour some one. We also do not find that the process adopted is arbitrary or irrational.
30. According to Mr. Thigle, the learned counsel for the petitioner in Writ Petition No. 8996 of 2019, those persons ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 ::: 25 wp 8877.19 allotted contracts had letters of recommendations from the political persons in power and because of such recommendation they were unduly favoured. The said argument is required to be repelled for the simple reason that out of nineteen persons held eligible by the respondent No. 3, the High Power Committee appointed by the respondent No. 3 considered objections and found eleven of them to be ineligible and the Government has made a statement that they are withdrawing and/or cancelling the work order and the location issued to them.
31. In the light of the above, writ petitions stand disposed of. No costs.
[ANIL S. KILOR, J.] [S. V. GANGAPURWALA, J.]
31. At this stage, Mr. Bagul and Mr. Thigle, the learned counsel for petitioners seek continuation of interim orders.
32. Considering the fact that interim orders passed earlier are continued from time to time, we continue interim orders for a period of two (02) weeks from today.
33. Needless to state, on lapse of two (02) weeks, interim orders shall come to an end.
[ANIL S. KILOR, J.] [S. V. GANGAPURWALA, J.] bsb/Sept. 19 ::: Uploaded on - 23/09/2019 ::: Downloaded on - 23/09/2019 22:54:05 :::