Courts lack the authority to direct government policy-making in procurement; however, they can mandate consideration of representations from affected parties to ensure lawful treatment.

JUDGMENT

Subramonium Prasad, J. The instant Writ Petition under Article 226 of the Constitution of India has been filed with the following prayers:

"(a) Direct the Government of Delhi to frame a policy under Section 11 of Micro, Small and Medium Enterprises Development Act, 2006 granting fiscal incentives to micro and small enterprises in tenders for public procurement of Ayurvedic, Siddha and Unani (ASU) Drugs; And

(b) Until the framing of such policy, direct the Government of Delhi to strictly follow the Policy dated 23.03.2012 framed by the Ministry of Micro, Small and Medium Enterprises and other directions dated 10.03.2016, 25.07.2016 and 06.12.2017 issued pursuant thereto in its public procurement tenders for supply of ASU Drugs; and

(c) Direct the Government of India to direct all State Governments that have not framed policies in terms of Section 11 of MSMED Act, 2006 do so expeditiously; and

(d) Declare that in the absence of a specific policy authorizing the same, it is illegal in a public procurement tender for supply of ASU drugs to impose a purchase preference in favour of Government bodies, enterprises and PSUs; and

(e) Restrain the Ministry of Ayush, Government of India from imposing a mandatory requirement of procuring ASU drugs from government enterprises/PSUs as a condition for releasing grants-in-aid under the National Ayush Mission to the State Governments; And

(f) Declare that in public procurement tenders for supply of ASU drugs within India, it is illegal to impose a mandatory requirement of producing WHO-GMP or AYUSH Premium or any other non-statutory quality certification apart from the statutory quality certification (GMP) issued under Rule 155B read with Schedule T of the Drugs and Cosmetics Rules, 1945; and

(g) Quash Tender No. 2018_DAYUS_ 158870_1 dated 20.09.2018 issued by Directorate of AYUSH, Government of NCT of Delhi and direct fresh tendering in compliance with prayers (a) to (f) above; AND

(h) Grant such other reliefs as this Hon'ble Court may deem fit and proper in light of the facts and circumstances of the case."

2. It is stated that the Petitioner is a federation of private individuals engaged in manufacture of Ayurvedic, Siddha and Unani (hereinafter referred to as 'the ASU') drugs. It is stated that the members of the Petitioner Federation fall under Micro, Small and Medium Enterprises (hereinafter referred to as 'MSME') as enumerated in the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as 'the MSMED Act'), and have valid manufacturing licenses and Good Manufacturing Practices (GMP) certificates. It is stated that being micro and small enterprises, the members of the Petitioner Federation have domestic presence and they provide health care in far flung and remote areas of the country. It is further stated that apart from catering to needs of the people from remote parts of the country, the members of the Petitioner Federation rely on public tenders floated by the respective Governments and/or PSUs for their survival.

3. MSMED Act was enacted with the objective of facilitating the promotion and development of the MSMEs. It is stated that in terms of Section 11 of the MSMED Act, the Union of India, vide Order dated 23.03.2012, framed a Public Procurement Policy for Micro and Small Enterprises Order, 2012, for procurement of goods and services by the Central Departments/Ministries and PSUs from Micro and Small Scale Enterprises. It is stated that the policy provides that every Central Ministry or Department or Public Sector Undertaking shall procure a minimum of 20 percent of total annual purchases from Micro and Small Enterprises.

4. It is stated that Para 10 of the Policy categorically provides that Micro and Small Enterprises shall be provided with tenders free of cost, and be exempted from payment of earnest money. Moreover, by directions dated 10.03.2016 issued in terms of Para 16 of the policy, the Ministry of Micro, Small and Medium Enterp