IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4302 of 2010 1. INDIAN IMMUNOLOGICALS LIMITED,(A WHOLLY OWNED SUBSIDIARY OF THE NATIONAL DAIRY DEVELOPMENT BOARD) ROAD NO.44,JUBILEE HILLS,HYDERABAD-500033,INDIA THROUGH ITS AUTHORIZED SIGNATORY NAMELY DWIPENDRA NATH BANDYOPADHYAY,AT PRESENT POSTED AS REGIONAL IN-CHARGE,III,EAST ZONE Versus 1. THE STATE OF BIHAR THROUGH PRINCIPAL SECRETARY HEALTH DEPARTMENT GOVERNMENT OF BIHAR,PATNA 2. PRINCIPAL SECRETARY,HEALTH DEPARTMENT GOVT.OF BIHAR,PATNA 3. DIRECTOR ,HEALTH DEPARTMENT GOVT.OF BIHAR,PATNA 4. THE DRUGS CONTROLLER GOVERNMENT OF BIHAR,PATNA 5. THE STATE HEALTH SOCIETY ,BIHAR PARIWAR KALYAN BHAWAN SHEIKHPURA,PATNA-14 THROUGH IT EXECUTIVE DIRECTOR 6. TECHINACAL CORE COMMITTEE FOR PURCHASE ,THE STATE HEALTH SOCIETY ,BIHAR PARIWAR KALYAN BHAWAN SHEIKHPURA,PATNA THROUGH DIRECTOR-IN-CHIEF HEALTH SOCIETY ,BIHAR,PATNA 7. ADDITIONAL EXECUTIVE DIRECTOR ,STATE HEALTH SOCIETY BIHAR,PATNA 8. M/S. BHARAT BIOTECH INTERNATIONAL LTD. VAMSI SADAN, PLOT NO. 265/266, KAMLAPURI COLONY, PHASE II, HYDERABAD THROUGH ITS DIRECTOR. ----------- For the Petitioner:- M/S. Naresh Dikshit, Kunal Tiwari For the State :- Mr. N. K. Sinha, AAG X & Mr. Md. Anis Akhtar, A.C. to AAG X For Respondent no. 7 :- Mr. Y. V. Giri, Sr. Advocate & Mr. Shekhar Singh ----- 4 02/04/2010 Origin of the present dispute is a notice inviting - 2 - tender by a body known as the State Health Society, Bihar. The said tender notice is annexure-2 to the writ application. The petitioner was one of the Companies who participated in the tender pursuant to the said notice. Their stand is that they fulfill all the eligible criterion but on a wrong understanding of the actual state of affair and the inter-play between the petitioner Company, Indian Immunologicals Limited as well as a Division of theirs known as Human Biological Institute, their technical bid has been rejected by the respondents. The tender was for supply of anti rabies vaccine to the State Health Society, Bihar. Notice inviting tender very categorically lays down that the tender bid is invited only from the original Pharmaceutical Manufacturers who manufacture Anti Rabies Vaccine at their own manufacturing unit or by direct importers only. In other words the respondents did not want to deal with intermediaries or distributors. Reason for filing of the present writ application by the writ petitioner is that tender committee after considering the technical bid of the petitioner came to an erroneous decision that Human Biological Institute is not a Division of - 3 - the company and, therefore, they are not manufacturers of the Anti Rabies Vaccine. Since Indian Immunological Limited was not a manufacturer, in the understanding of the tender committee, the petitioner’s technical bid was rejected and they have been ousted from participation and further consideration. After filing of the writ application certain developments have taken place. Information was furnished to this Court that the tender has already been awarded to one M/S. Bharat Biotech International Limited. Two I.A. applications came to be filed, one of the petitions was for seeking impleadment of M/S. Bharat Biotech International Limited and other by M/S. Bharat Biotech International Limited seeking intervention in the matter. Both I.A. applications stood allowed on 29.03.2010. Counter affidavit has come to be filed by both private respondents as well as by the official respondents. The stand of the official respondents is that when doubts arose in the mind of the tender committee, the petitioner was asked to furnish information and details in support of their claim that Human Biological Institute is a division of the - 4 - Company and not a separate entity. This doubt was bona fide based on some other input that in some other States it was Human Biological Institute which had participated and bid for tender in its own right. The reason for Human Biological Institute not participating in the tender in the State of Bihar and making a bid through present petitioner was not fully explained. Since the tender committee could not be fully satisfied on the inputs they came to a bonafide considered opinion that the Human Biological Institute is not a Division of the present petitioner and the present petitioner is not a manufacturer of Anti Rabies Vaccine. Submission on behalf of the intervenor is that there is nothing wrong with the award of tender. If the petitioner failed to provide adequate information and material to show that Human Biological Institute manufacturing Anti Rabies Vaccine is a division of Indian Immunologicals Limited and petitioner has no capacity to manufacture the said vaccine, then in terms of the notice inviting tender they were ineligible to participate. Certain mud slinging has also been indulged with regard to reputation and the quality of the vaccine which has been supplied by the Human Biological Institute in some - 5 - other States. But that is not the subject matter of dispute to be adjudicated upon in the present writ application. It goes without saying that the Bihar Health Society would be well advised to test the quality and wholesomeness of the vaccine whoever be the successful bidder when the final tender is awarded. When this matter was taken up on 16.03.2010 the Court had something to record with regard to status of a Company and its Division or Unit and the interplay or relationship between the two. Based on the pleadings as also supported by the additional evidence which has come to be filed by way of reply by the petitioner, this Court has no hesitation in recording that the Human Biological Institute is a Division of the Indian Immunologicals Limited, the present petitioner by virtue of which they are manufacturers of the Anti Rabies Vaccine. The rejection order of their technical bid for the reasons otherwise is held to be bad. The tender awarded in favour of the intervenor is hereby quashed. The matter is remitted back to the Bihar Health Society with a direction that they shall accept the technical bid of the petitioner if it - 6 - does not suffer from any other disqualification in terms of the notice inviting tender. If the only reason for rejection of the technical bid is the relationship between the Human Biological Institute and the present petitioner, then that shall not be held out against them in this regard. The Bihar Health Society and the tender committee would be well advised to consider the tender of the petitioner along with other successful bidders afresh based on the declarations and the documentations which have already been filed including the financial bid which are lying sealed with the respondents and have not been opened. This writ application is allowed and the matter is remanded back to the respondents for needful. AMIN (Ajay Kumar Tripathi, J.)