Hon'ble Yogendra Kumar Sangal,J.
1. Heard learned counsel for the petitioner Ms. Pushpila Bisth and Shri Mukund Tewari learned counsel for the State.
2. Petition under Article 226 of the Constitution of India has been preferred against the impugned advertisement (Annexure-1 to the writ petition) inviting tender for supply of Anti Rabies Vaccine. Petitioner is aggrieved by condition no. 13, which provides that only firm dealing with Indian manufacturer shall be entitled to submit their tenders in response to impugned advertisement. For convenience condition no. 13 is reproduced as under:-
"सवदेशी िनमारता फमर ही िनिवदा मे भाग ले सके गी परनतु यिद िकसी सवदेशी फमर दारा इस आशय का पमाण पत िदया जाता है िक उक फमर अपने उतपादो का िवपणन के वल सोल सेिलग ऎजेट के माधयम से ही कर रही है तो ऎसे एजेनट भी िनिवदा मे भाग ले सके गे परनतु पितबनध यह होगा की इस पकार के ऎजेट िक िनिवदा सवीकार िकए जाने की िसथित मे ऎजेट को मूल िनमारता फमर के नाम से ही िबल पसतुत करना होगा तथा िबलो का भुगतान भी िनमारता फमर को भी िकया जाएगा ।
3. While assailing the impugned order, it has been stated by the petitioner's counsel that condition imposed by respondents suffers from arbitrary exercise of power. Such condition can not be imposed.
4. Admittedly, petitioner deals with anit rabies vaccine manufactured in China. In case, petitioner is not permitted to submit tender then it shall be deprived to launch its product in India. While assailing impugned advertisement it has also been submitted by petitioner's counsel that earlier there was no such provision but later on by impugned advertisement the condition no. 13 has been inducted. The submission is that it has been done for extraneous reasons to give undue advantage to some Indian firms.
5. Attention has been invited towards an order dated 2.4.2010 passed by this Court in Writ Petition No. 2775 of 2010 (MB) where without entering into merit of the controversy with regard to earlier tender where no such condition was imposed this court had directed to decide the representation.
6. It has also been submitted that earlier tender was given to M/s Bharat Biotech International which has been cancelled later on and thereafter fresh 2 impugned advertisement has been issued inviting tender.
7. Shri Mukund Tewari learned counsel for the respondents submits that impugned advertisement is neither arbitrary nor unjust and improper. Submission is that classification is not bad and it is the prerogative of respondent to frame policy and call for tender accordingly.
8. We have considered the arguments advanced by the parties' counsel and perused the record. Now it is settled proposition of law that government while dealing with the contractual assignment may frame appropriate rules, regulations guidelines or conditions (Statutory or non-statutory) to meet out its requirement. The condition framed by the Government dealing with the contractual assignment being a policy matter is ordinarily not call for interference under the judicial review except if the condition is arbitrary capricious or malafide. Policy decision of the state government may be interfered on there very limited grounds. It falls within the domain of state government to make reasonable classification to meet out its requirement. In the present case, by impugned condition the foreign manufacturer have been deprived to submit tender for supply of anit rabies vaccine. It has been stated by petitioner's counsel that no such condition has been imposed by the state government with regard to certain other medicinal product but the condition has been imposed only for anti rabies vaccine. Whether a drug or vaccine or a pharmacy product should be purchased from Indian manufacturer or a foreign manufacturer is a subject matter ordinarily call for appropriate decision by the state government. Government has got right to take decision giving preferential treatment to Indian manufacturer who are producing certain product in this country from giving over and above foreign product. Such classification shall not be bad in law and neither can be termed as unreasonable nor arbitrary exercise of power by the State Government or its instrumentalities..
9. One of the argument advanced by the petitioner's counsel that condition has been imposed with regard to anti rabies vaccine and not for other products. Submission made by the petitioner's counsel seems to be misconceived. It is for the state government or competent authority to take a decision to impose such condition. In case, a product is available in India and it is up to mark, fulfills necessary condition and norms then government have right to impose such condition. Of course, in case the product is not available in the country manufactured by Indian industries or product manufactured by Indian industries is not up to mark, government has got option to purchase such product from outside the countries by floating global tenders. The action taken by the government keeping in view the basic facet of commercial activities can not be termed as unreasonable exercise of power or may be unjust and improper.
10. The Courts are not expert to decide as to which product should be purchased 3 from Indian manufacturer or which product should be purchased from foreign manufacture. Of course there may be cases where from the record if it is found that the government while exercising its power is acting arbitrarily with ulterior motive or as submitted to grant tailor made contract, court may interfere under judicial review in pursuance to power conferred by Article 226 of the constitution of the Constitution of India. But present case does not seem to cover by the exception calling for interference under extraneous remedy of Article 226 of the constitution of India. Whether it is one product or more than one product it is for the government to take a decision which product should be purchased from Indian manufactured and which product should be purchased from the foreign manufactures. Preferential treatment given to Indian producers by the government or its instrumentalities does not seem to suffer from arbitrary exercise of power. Government has got right to give preference to Indian manufacturer as observed herein-above.
11. In view of above, writ petition devoid of merit. Dismissed in limine. Order Date :- 16.6.2010 Madhu