JUDGMENT :

Deepak Gupta, J.

Delay condoned in Special Leave Petition (C)....CC No(s).9316 of 2017.

2. Leave granted.

3. All the appeals are being disposed of by this common judgment.

4. M/s. Haffkine Bio-Pharmaceutical Corporation Ltd. (hereinafter referred to as “Haffkine”) is a Government of Maharashtra undertaking. It is engaged in the business of manufacture of vaccines and other pharmaceuticals and biological products. One of the main businesses of Haffkine is the manufacture of polio vaccines. It is the admitted case of the parties that oral polio vaccine is manufactured by formulation of various bulk drugs including Monovalent Bulk of Poliomyelitis Type 1 (Oral) Sabin Strain and Monovalent Bulk of Poliomyelitis Type 3 (Oral) Sabin Strain respectively. These drugs are combined and formulated along with other materials by Haffkine and oral polio vaccine is prepared. M/s. Haffkine issued a tender notice on 20.01.2016, for supply of bulk drugs including Monovalent Bulk of Poliomyelitis Type 1 (Oral) Sabin Strain and Monovalent Bulk of Poliomyelitis Type 3 (Oral) Sabin Strain. The bids were to be submitted in two parts. The first part was the techno-commercial bid and the second part was price bid. The techno-commercial bid was to be opened on 10.02.2016 at 4.30 p.m. and the date for opening of the price bid was to be fixed thereafter. It is pertinent to mention that the tender provided that the polio bulk drug should be manufactured by M/s. P.T. Biofarma, Indonesia, a World Health Organisation (WHO) prequalified bulk manufacturer, for the supply of Bivalent Oral Polio Vaccine Bulk (bOPV).

5. M/s. Nirlac Chemicals (hereinafter referred to as ‘Nirlac’) is a registered partnership firm, which is an Indian partner of M/s. Universal Exim FZE, an enterprise organised and existing under the laws of United Arab Emirates (UAE). This firm had been supplying the bulk drugs to Haffkine as a distributer of M/s. P.T. Biofarma, Indonesia for the last 15 years. On 25.01.2016, Nirlac sent a letter to Haffkine protesting against the issuance of tender. However, they took part in the tender. The date of opening of tender was changed to 12.02.2016.

On 12.02.2016, the representatives of Haffkine were present in the office of Haffkine and according to Nirlac though the bid of Universal Exim FZE represented by Nirlac was opened, the meeting was adjourned after lunch without opening the tender of M/s. Bionet Asia Co. Ltd., Thailand (for short ‘Bionet’). According to Nirlac, the tender of Bionet was not opened in their presence. However, later in the evening, they were shown a comparative chart of analysis wherein it was mentioned that the bid of Nirlac had not been found to be technically qualified. Nirlac immediately sent objections on the same day and one of the main grounds taken was that the bid of Bionet had not been opened in their presence. It was also complained that the tender conditions had been tailor-made to suit the requirements of Bionet. Nirlac also sent two other representations to the Minister of Food, Civil Supplies, Consumer Protection, Food and Drug Administration, Government of Maharashtra. According to Nirlac, they were informed about the rejection of their bid only on 22.06.2016 and thereafter they filed writ petition in the High Court of Bombay challenging the rejection of their bid and the award of the tender in favour of Bionet.

6. The main ground raised was that the Central Vigilance Commission (‘CVC’ for short) guidelines had been violated in as much as the tender of Bionet was not opened in the presence of the representatives of Nirlac who were present. The High Court allowed the writ petition. It not only held that Haffkine had violated the CVC guidelines but also came to the conclusion that Nirlac complied with all the tender conditions and, therefore, the tender of Nirlac had been wrongly rejected. The tender dated 20.0