V.S.SIRPURKAR, J. - (1.) LEAVE granted.
(2.) IN this appeal, the appellant INdian Drugs and Pharmaceutical Ltd. (IDPL) challenges the judgment of Delhi High Court whereby the Writ Petition filed by respondent, Famy Care and another was allowed. The High Court passed the following operative order while allowing the writ petition: "We quash the Rate Contract No. S-140013/4/2008-OP/100 dated 2nd December, 2008 awarded by respondent No.1 in favour of IDPL, respondent No.2 herein, to the extent that it awards 175 lakhs cycles of other OCP brands apart from Mala-D in the abovestated quantity of 25 lakhs cycles. The writ petition is partly allowed in the aforesaid terms." The respondent, Famy Care Company is engaged in the business of manufacture and supply of family planning products including Oral Contraceptives Pills (hereinafter "OCPs"). They have been supplying these OCPs to the Union of India. Respondent Nos. 1 and 2 distribute these OCPs under the family welfare programmes by Union of India (respondent No.3) free of cost and/or at substantially subsidized rates. It was claimed in the petition that for OCPs in India, almost 85-90% of the market is only through family welfare programmes of respondent No.3. Respondent No.3 used to procure the OCPs through open tender where all companies who fulfilled the eligibility criteria were permitted to participate. Tender was invited for the supply of OCPs on 14.03.2005 and a rate contract was awarded to various parties including Famy Care Ltd. on 18.10.2005, initially for the period of two years which was subsequently extended for another year, till 17.10.2008. One open tender was floated on 18.09.2008 by the Union of India (respondent No.3) and for that, notice inviting tender was published in various newspapers. Following were the requirements: JUDGEMENT_282_TLPRE0_2010Html1.htm
(3.) THE date of sale of tender inquiry document was from 24.09.2008 to 05.11.2008. THE respondent companies herein were desirous of participating in the tender. On being unable to download the tender inquiry document, respondent Nos.1 and 2 wrote letters to the Union of India (respondent No.3 herein) on 29.09.2008 requesting respondent No. 3 to issue the tender inquiry documents. However, it is claimed in the Writ Petition that the Union of India refused to accept the pay orders and instead stated that the tender documents had not been issued by the Department and the same were likely to be issued shortly. Again, letters were written on 22.10.2008 and 23.10.2008 by respondent Nos.1 and 2, respectively, requesting the Union of India to issue tender documents to enable them to participate in the tender for the OCPs. The original writ petitioners, respondent companies herein also contacted the concerned officers of the Union of India and were informed that the date of sale of tender inquiry documents had been extended and they would be informed of the finalization of the date. In the meantime, M/s. IDPL (appellant herein) pointed out to the Union of India and claimed that the Government had introduced a Purchase Preference Policy for 102 medicines exclusively from Pharma Central Public Sector Enterprises (CPSEs) and their subsidiaries. Reliance was made on letter dated 07.08.2006 issued by the Ministry of Chemicals and Fertilizers, Department of Chemicals and Petrochemicals, bearing No. 50013/1/2006-SO(PI-IV). It was pointed out that the OCPs were listed at serial No. 51 of that list under the said Purchase Preference Policy and, therefore, the purchases should be made exclusively from Pharma CPSEs. On this, corrigendum dated 04.11.2008 came to be effected by the Union of India to the tender notice for OCPs to the effect that the tender enquiry documents for OCPs would not be opened on 05.11.2008 as was promised. The respondent companies herein contacted the Union of India again on 03.12.2008, when they were informed that the rate contract of the entire quantity of 275 lakh cycles of OCPs had already been placed by the respondent No. 3 on appellant IDPL. In short, the whole contract went in favour of the appellant. This was challenged before the High Court by way of a Writ Petition filed by Famy Care Ltd. and Phaarmasia Ltd., the respondents herein. It was urged before the High Court that the impugned rate contract dated 02.12.2008 was awarded in flagrant violation of the tender notice dated 18.09.2008 and was also contrary to the Purchase Preference Policy. The High Court, by its impugned judgment, has allowed the Writ Petition and quashed the said rate contract dated 02.12.2008 insofar as it awards 175 lakh cycles of the other brands of OCPs apart from Mala D to the extent of 25 lakh cycles.;