RUBYCHEM LABORATORIES LUCKNOW Vs. STATE OF U P

JUDGEMENT

(1.) The non-acceptance of petitioner's lower tender for cough syrup and acceptance of higher tender of opposite party No.6 for supply of cough syrup mentioned at items 70 and 71 of tender notice has brought the petitioner a manufacturing small unit of medicines duly registered and approved by Drug Controller before this court. The Government order dated 30th March 1989, approving the tender of opposite party No.16 is in pursuance of tender notice dated 1-9-1989 though not filed by the petitioner was produced. The complaint of petitioner is that it is because of the act of favouritism and manoeuvreing of the Director General of Medical and Public Welfare U. P. who was to retire after two months and has now retired. The tender notice was couched in such a language so that all the manufacturers small and big may be eliminated and have been so eliminated. He being a person in authority obviously was to succeed and succeeded in accepting the higher tender of opposite party No.6 for higher amount who having supplied a sub-standard medicine was disqualified for any supply in the year in question and its tender was not accompanied by certain sales and income-tax certificate as per condition of tender notice which was not accepted a few months earlier on the representation of the petitioner has been so accepted against the norms and rules giving him edge over other which could not be dons in previous year viz. the addition of Eucalyptus oil in his syrup. According to the petitioner Eucaplyptus oil is only a flavouring agent and not an active ingredient in cough and syrup which are and have been approved without it medicinally and the inclusion of the same in the syrup of opposite party No.6 is only by way of flavour and not medicinally being defective from that point of view is as much as in pharmacopia on which parties also the minimum use is .06 mm. while in the formula of opposite party No.6 it is.002 ml. only which is a negligible quantity as against the prescribed limit and thus its inclusion is only by way of flavouring agent. The petitioner's challenge, that none of the cough syrup prepared by various approved manufacturing companies use this oil, has not been met by the State Government which did not file any counter affidavit and even Dr. K.P.Gupta, the then Director of Medical and Public Health U. P. (since retired) also has filed a counter affidavit has not said anything to the company but the opposite party No.6 has wrongly denied this assertion of the petitioner without naming a single company or syrup using the Eucalyptus oil as an ingredient in it.

(2.) From the affidavit on record it appears that the Government has laid down certain norms and formation of committee for purchase of medicines there is a Drug Samicha Committee consisting of 12 members and headed by Director General for approving the unit of drugs prepared to be purchased for public hospitals and to add and delete any new formulation in public interest. There is a Central Purchase Committee consisting of 11 members, all officials mostly of the Department of Medical and Public Health and headed by the Director General which finalizes quantity and rate contracts. When the purchase exceeds 25 lacs the High Power Committee at the Governmental level is to approve the tender which was done in the instant case and syrup at No.71 alone was accepted. For the year in question viz. 1987-88 the tender lists were approved by the Central Purchase Committee and the tenders for the year were floated. The said committee adopted the tender list approved in 1987-88 for the purchase of drugs for the year 1987-88 and it appears that the same was done unanimously as has been alleged by the petitioner which is evident from the report of Dr. G.P. Gupta, Professor and Head of Pharmocology K. G. Medical College, Lucknow who was member of the Committee and whose report to the Government referred to. In his representation the petitioner stated that difference in formula is very slight and for purpose of efficacy of the two should be considered identical and that ingredients in the formula of the petitioner were more in quantity and as such the cost of the production of the said product is higher.

(3.) The then Director in his affidavit has stated that it is the function of the Drug Controller to see the formulation and same does not fall within the ambit of Central Purchase Committee or Samichha Samiti to sanction or supplement any formulation. It is thus clear that in the preparation of list of approved drugs or medicine which are to find place in tender list is not prepared by the Samichha Samiti or Purchase Committee. It goes before it after being prepared obviously from the directorate in which ingredient of medicines, prepared to be taken is also purchased and the same was purchased in tender drug list which was placed before the Purchase Committee which cannot be done without the association or approval of Director of Medical and Public Health. The said committees are to consider for approval of the approved medicine or drugs of specification as sent before it. In 1988-1989 the petitioner's quotation was lower than that of opposite party No.6 but it was rejected by the committee. The petitioner represented against the same before the Government which was accepted and the purchase of said cough syrup of opposite party No.6 for that year was dropped. Again for 1988-1989 the committee accepted the higher tender of same formulation of opposite party No.6 which included Eucalyptus oil .002 mm. per 5 mm against which the petitioner represented which was allowed and the tender of opposite party No.6 was not allowed. This time the petitioner's representation against the higher tender of opposite party No.6 of the same formulation with no change in the strength of Eucalyptus oil was rejected wherefore the instant writ petition was filed for the year in question cough syrup of opposite party No.6 which was duly approved by the Drug Controller containing Eucalyptus oil though not even the minimum extent required for medicinal purpose alone was before the Purchase Committee and it fulfilled the formulation mentioned in the tender notice viz. .002 mlm. only less than minimum prescribed in pharmacopoeia relied on by opposite party No.2 and there was no reason for not accepting the said tender of one which alone contained a particular ingredient up to a particular strength only. It is to be noticed that Purchase Committee and High Committee approved the same may it be that it alone fulfilled the requirement of specification mentioned in tender notice though it did not contain the minimal strength required prescribed for medicinal use.