IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI &

HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA th ON THE 14 OF MARCH, 2024 WRIT PETITION No. 6460 of 2024 BETWEEN:-

MODERN LABORATORIES, PARTNERSHIP FIRM THROUGH ITS PARTNER SHRI ARUN KHARIA, AGED ABOUT 60 YEARS, OCCUPATION: BUSINESS, R/O A-35, ANJAY UPVAN, BEHIND CHL HOSPITAL, INDORE (MADHYA PRADESH)

.....PETITIONER (SHRI VIVEK DALAL, LEARNED COUNSEL FOR THE PETITIONER)

AND

1. THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL SECRETARY, DEPARTMENT OF PUBLIC HEALTH AND FAMILY WELFARE, VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

2. SECRETARY AND COMMISSIONER, DIRECTOR OF HEALTH SERVICES, GOVT. OF M.P. VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)

3. M.P. PUBLIC HEALTH SERVICES CORPORATION LTD. THROUGH MANAGING DIRECTOR, NEAR MP OILFED BUILDING, ARERA HILLS, BHOPAL (MADHYA PRADESH)

.....RESPONDENTS (NONE FOR THE RESPONDENTS)

This petition coming on for admission/hearing this day, Justice Sushrut Arvind Dharmadhikari passed the following:

ORDER

Heard on the question of admission.

Signature Not Verified Signed by: PREETHA HARI This writ petition under Article 226 of the Constitution of India has been filed by the petitioner seeking the following reliefs :-

(i) to allow the writ petition;

(ii) to issue a writ of mandamus thereby setting aside/quash the impugned condition 2(g) of subject tender dated 15.02.2024(Anexure-

P/1).

(iii) Any other order or direction, which this Hon'ble Court deems fit and proper, be passed in favour of the petitioner firm.

2. Brief facts of the case are that the petitioner herein is a registered partnership firm vide registration no.03/27/01/0089/16 dated 14.09.2016 and is in possession of valid drug manufacturing licenses issued by the competent authority. The petitioner having annual turnover of Rs.88 Crores is in the business of manufacturing pharmaceutical drugs and its sale to the Central and State Government and other entities. The petitioner has been supplying pharmaceutical drugs to the respondent no.3 across the State of M.P. and pan India for last 40 years with approximately average turnover of Rs.60 Crores.

3. That, recently, the Madhya Pradesh Public Health Services Corporation Limited which is a Government of Madhya Pradesh Undertaking has issued a Notice Inviting Tender (for short ....."NIT") dated 15.02.2024 bearing Reference No.T-539/MPPHSCL/Pharma/RC/2024 from eligible and qualified bidders for supply of pharmaceuticals to the various Government hospitals of Madhya Pradesh specifying various terms and conditions which are supposed to be followed by all the prospective bidders. The petitioner being the prospective bidder by way of filing this writ petition has prayed to quash the condition no.2(g) of the subject tender.

4. The aforesaid tender dated 15.02.2024 contains the following impugned condition:-

"2(g) The Company/Firm which has been blacklisted/debarred either Signature Not Verified Signed by: PREETHA HARI by Tender Inviting Authority or by any State Government or Central Government Organization on any ground should not participate in the tender during the period of blacklisting."

5. Learned counsel for the petitioner submitted that the condition no.2(g) of the subject tender is arbitrary and should not be imposed by the Corporation because no such type of condition is generally being imposed upon the prospective bidders in other tender matters. He further submitted that the impugned condition No.2(g) of the subject tender dated 15.02.2024 issued by the respondent No.3 is violative of the principles of natural justice as well as is violative of the Office Memorandum by the Government of India, Department of Expenditure, Ministry of Finance. He further submitted that the condition of blacklisting of company in another State would dis- entitle the bidder from bidding in subject tender is oppressive, discriminatory and arbitrary and, thus, liable to be quashed.

6. Heard the learned counsel for the petitioner and perused the r