Judgment:
Ajay Kumar Tripathi, J.
1. Heard learned Counsel for the parties.
2. The Bihar Drugs & Pharmaceutical Manufacturer's Association have filed the present writ application through their Secretary pleading discrimination against their members in award of rate contract for various medical supplies which are mentioned in categories 'A' to 'D' of the notice inviting tender dated 24.1.2009, what is known as State Health Society.
3. The State of Bihar has a registered society known as Health Society which has been formed for implementation of the scheme formulated under the National Rural Health Mission. Instead of allowing procurement at the local level or at the various levels, the Society has been given responsibility to channelise the procurement and distribution through the said State Health Society. The notice inviting tender dated 24.1.2009 is annexure-2 to the writ application. Minimum eligibility criteria have been laid down in the said notice. For category 'A' procurement which is that the Company must have a turnover of Rs. 25 crores for the last three consecutive financial years which relates to the year 2005-06, 2006-07 and 2007-08. The minimum turnover for category 'B' is five crores, for category 'C' is one crore and for category 'D' is one crore. The other minimum eligible criterion does not irk the members of the Association. The problem lies in category 'A'. The primary reason is that the category 'A' relates to supply of drugs and none of the members of the petitioner's Association have a turnover of more than 25 crores for the last three years. This has effectively ousted them from participation in the said tender floated by the Society.
4. Learned Counsel for the petitioner therefore pleads hostile discrimination, arbitrariness in fixing minimum turnover as well as deliberate effort made by certain vested interest only with a view to oust the local industry engaged in the business of drug manufacture from participating. Petitioner has brought certain other materials on record to show that this minimum eligible criteria in terms of turnover, is on much lower side in the other States. It is urged on behalf of the petitioner that if other States have kept their minimum turnover on lower side to encourage their local manufacturers, why should the authority in the State of Bihar be permitted to peg it up at 25 crores which effectively debars the local manufacturers from bidding.
5. So far the legal submission which has been made at the bar is concerned, the Court is not very convinced that by fixing a minimum turnover limit, the respondents have ended up violating Article 14 or even Article 19(1)(g) of the Constitution of India.
6. The respondents in their counter affidavit have explained the rational and the basis. It has been done to ensure that the quality and quantity of supply of drugs be maintained looking at the volume of procurement which is made every year in the State. This decision, according to them, has been taken after analyzing the ground reality and the past problem which the Government has had to face in such procurement. To that extent the policy cannot be interfered with by this Court only on the ground that the local manufacturers of Bihar are being denied opportunity to participate in such tender notice.
7. Petitioner however has a genuine submission to make that even in terms of policy the State authority must consider that even the local manufacturers have right to survive, participate and be given encouragement. This is the issue which requires consideration at the highest level as to the kind of policy which needs to be formulated which will help such local manufacturers, who have survived or are surviving in the State of Bihar, despite difficult time they underwent in the past.
8. Learned Counsel for the petitioner informs that they have tried to knock at the door of the various authority of the State but they are not in a mood to take cognizance of their grievance and have allowed their representation to lie in the files and record only.
9. In totality, the Court is not inclined to interfere with the notice inviting tender and the minimum eligibility criteria laid down therein. But the Court surely gives an opportunity to the petitioner's Association to file their detailed claim with supporting materials before the Chief Secretary, Government of Bihar and the Chief Secretary, Government of Bihar will be obliged to form a committee with the Principal Secretary may be of the Department of Health as well as Industrial Development Commissioner and formulate a policy through which proper encouragement can be given to the local manufacturers in this regard.
10. The Court expects such an exercise to be taken on the deliberation which may be made in this regard within a time frame which is within six months of filing their representation.
11. This writ application stands disposed of with the above observation.