R. K. Abichandani, J. - The petitioner challenges the award of rate contract by the respondent No. 2 to the respondents Nos. 3 to 6 on the footing that he has been arbitrarily denied to participate by offering F(II) quality bandage cloth and absorbent gauge.

2. The case of the petitioner is that F(II) quality of absorbent gauze and bandage cloth has been prescribed under Rule 124-C of the Drugs and Cosmetics Rules, 1945 in Schedule F(II) thereof and these goods offered by the petitioner were of the standards so prescribed and therefore, the petitioner could not have been prevented from participating as a tenderer on the ground that the petitioner's goods do not have ISI mark certification more particularly since the tender notice never prescribed the requirement that the goods should be of ISI mark. The case of the petitioner is that the standards prescribed for the surgical dressings under the Drugs and Cosmetics Rules and the Indian Standard prescribed under Bureau of Indian Standard Acts, 1986 hardly had any difference, and, they were almost identical except in case of 'pH factor' for which the limits were indicated in the standards prescribed under the Bureau of Indian Standards Act while there was no reference to it in the standards prescribed in Schedule F(II) of under Rule 124-C of the Drugs and Cosmetics Rules.

3. The learned Counsel for the petitioner contended that the requirement of ISI mark was not mentioned in the tender notice and was beyond its scope. Therefore, the respondent authorities could not have insisted on that requirement and denied the tender form to the petitioner on that ground. It was contended that the petitioner had approached the respondent No. 2 on 17-5-1997, as stated in the petition, but was not given the tender form on the ground that the petitioner was not in a position to supply the goods bearing ISI mark. According to the learned Counsel for the petitioner, under the provisions of BIS Act, it was not mandatory for the dealer to have BIS specification in respect of its goods unless a notification was issued under Section 14 of that Act. It was further argued that pH value in context of surgical dressings like bandages and absorbent gauze is of no consequence and since there is no provision under the Drugs and Cosmetics Rules prescribing the standard of pH value that requirement ought to have been ignored. It was pointed out that in the communication sent to the petitioner in a different context namely in response to the letter of the petitioner regarding ISI licence for. Disposable Hypodermic syringes, the Bureau of Indian Standards had replied on 19-9-1996 as per copy at Annexure 'D' to the petition informing the petitioner that the said product of syringes was not amenable for certification as the product comes under the Drugs Act. Relying on this letter it was contended that if the provisions of the Drugs Act were attracted there was no question of complying with the Standards of Bureau of Indian Standards and ISI certificate was not required in such cases. It was further contended that at one point of time on 3-5-1997 a communication was sent by the Government to the hospitals and the Medical Authorities by which they were asked to make purchase of absorbent gauze/cotton wool which satisfied the Indian pharmacopeia standards and it was not necessary for insisting on ISI standards. It was submitted that this conduct indicated that at one point of time even the Government took note of the fact that there was hardly any difference in the standards prescribed under the Drugs Act and under the BIS Act in respect of these goods. In support of his contention that the respondent authorities could not have gone beyond what was stated in the tender notice the learned Counsel relied on the decision of Hon'ble the Supreme Court in Dutta Associates Pvt. Ltd. v. Indo Merchantiles Pvt. Ltd. ((1996) 10 JT (SC) 419 = 1997(1) Arb. LR 87). In that decision Hon'ble the Supreme Court held that whatev