IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 WP(C).No. 6024 of 2009(W) -------------------------------- PETITIONER(S): ------------------- M/S.VHB LIFE SCIENCES LTD. 40-B/2 SHANKAR SMRUTHI, SIR BHALCHANDRA ROAD DADAR (EAST) MUMBAI 400014. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENT(S): ------------------- 1. STATE OF KERALA, REP BY ITS SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT GOVT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA MEDICAL SERVICE CORPORATION LTD, NRHM BUILDING, GENERAL HOSPITAL JUNCTION THIRUVANANTHAPURAM 695 035. ADV. SRI.M.AJAY,SC,KERALA MEDICAL SERV.CORPN FOR R2 GOVT.PLEADER SRI.P.N.SANTHOSH FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ============== W.P.(C) NO. 6024 OF 2009 (W) ==================== Dated this the 12th day of March, 2009 J U D G M E N T Ext.P1 is the tender notice published by the 2nd respondent inviting tenders for the supply of Pharmaceutical products. 2. In response to Ext.P1, petitioner submitted their offer for certain products. However, they apprehended that they will not be prequalified for the reason that they were debarred by the Central Medical Stores Organisation, Gandhi Nagar by Annexure B order dated 8/5/2006, produced along with the statement filed on behalf of the 2nd respondent. According to the petitioner, Annexure B has the effect of only “debarring” and not “blacklisting” and therefore their tender was a valid one and that they are entitled to be prequalified. It is with this contention the writ petition was filed and this court by order dated 25/2/2009 directed that the prize bids of the petitioner would also be provisionally opened. 3. In the statement filed by the respondents, they have extracted the eligibility criteria as contained in the tender document. Clause 2(e), being relevant reads as under: WPC 6024/09 :2 : “ Concern/Company which has been blacklisted either by Tender Inviting Authority or by any State Government or Central Government Organization should not participate in the tender during the period of blacklisting”. 4. It is stated that two other tenderers objected to the prequalification of the petitioner by submitting Annexure A and C letters and that both of them relied on Annexure B order referred to above. It is stated that it was taking into account the aforesaid objection that the respondents decided not to prequalify the petitioner, but however, their prize bid was opened in pursuance to the interim order passed by this court. In the statement, they also say that the price quoted by the petitioner is far less than those quoted by others and that taking into account the vide disparity in price, the respondents will also take a decision as to whether they have to go for a fresh tender or not. 5. This Court is only concerned about the eligibility of the petitioner to be prequalified in terms of the tender conditions. Admittedly, an organization, which has been blacklisted is ineligible to be prequalified in terms of Clause 2(e) of the tender conditions. Annexure B is the order that has been relied on against the petitioner. The relevant portion of the said order reads WPC 6024/09 :3 : as under: For next 5 years, starting from the date 8.5.2006 M/s.VHB Lifesciences Inc., 40 B, Sir Bhalchandra Road, Dadar (E), Mumbai-400 014 along with partners (1) Shree Vipul Ramesh Bhagat (2) Smt.Hansaben Ramesh Bhagal (3) Ramesh Chhotalal Bhagat are debarred from the business relations for Health and Family Welfare Department & all Head of the Departments/ Hospitals/ Dispensaries under Health & Family Welfare Department. (emphasis supplied) 6. A reading of the order shows that for five years from the date of the order, the petitioner and its partners are “debarred from business relations” in the manner as stated therein. Counsel for the petitioner contends that the order is only one debarring the petitioner for a specified period and that it does not have the effect of blacklisting. Counsel placed reliance on the meaning of the word 'blacklisting' and 'debarring' as given in the Law Lexicon of Ramnath Iyyer and contended that their tender is a valid one. 7. In my view, what is to be examined is the effect of Annexure B order. Admittedly, the effect of Annexure B is that the petitioner is debarred for a period of five years from business relations. The effect of this order is the same as that of WPC 6024/09 :4 : blacklisting the petitioner for a specified period. This Court cannot be simply guided by the word used in the order and decide the claim of the petitioner. Since the effect of Annexure B debarring the petitioner is the same as an order blacklisting the petitioner, I see absolutely no substance in the contention raised by the petitioner that debarring does not render them ineligible to be considered in terms of Clause 2(e) of the tender conditions. 8. In view of the above, I am satisfied that the petitioner is ineligible to be prequalified, and if so, the decision of the respondents in not prequalifying the petitioner cannot be faulted. 9. Counsel for the petitioner raised the plea that considering the fact that the price offered by the petitioner was less than what was offered by the other bidders, in public interest, the tender deserves to be prequalified. It may be true that on commercial consideration, it may be profitable to accept the tender made by the petitioner, but having regard to the fact that the petitioner has failed to satisfy the tender conditions and that they are ineligible in terms of Clause 2(e) of the tender conditions, I am not persuaded to hold that they should be prequalified WPC 6024/09 :5 : irrespective of their ineligibilities. However, if the price that is offered by others is exorbitant, it is always open to the tender inviting authority to take a decision as to whether the offers should be considered or fresh tenders should be invited and thus safeguard public interest. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp