AI Structured Summary
Not yet generated for this judgment
Judgment
S. Muralidhar, J.—The prayers in both the writ petitions are common. The Petitioners seek quashing of the "Combined Formulary" of the Central Government Health Services (''CGHS'')/Medical Stores Organization (''MSO'') in respect of 622 Branded/Proprietary drugs announced by a letter dated 17th September 2010 issued by the Government of India, Ministry of Health and Family Welfare ("MHFW?) and an alternative prayer is to direct the Respondents to include the names of the drugs of the Petitioners in the Combined Formulary list already announced.
Earlier this Court had dismissed four writ petitions seeking similar relief by an order dated 31st January 2011. These were Writ Petition (Civil) Nos. 552 of 2011 (M/s AAR ESS Remedies Pvt. Ltd. v. Union of India), 573 of 2011 (M/s Vivid Biotek Pvt. Ltd. v. Union of India), 574 of 2011 (M/s Zunison Health Care v. Union of India) and 575 of 2011 (M/s Grownbury Pharmaceuticals Pvt. Ltd. v. Union of India).
Mr. Sudhir Nandrajog, learned Senior Counsel appearing for the Petitioners seeks to distinguish the aforesaid order on the ground that it was observed therein that there was no list of suppliers from which the Petitioners could infer that they have been left out. He submits that the impugned Combined Formulary is itself the final list, which excludes the drugs of the Petitioners. It is submitted that both the Petitioners were asked by the MSO to supply information regarding the names of their medicines, their chemical composition, shelf life etc. by a letter dated 2nd June 2009. Reference is made to notes on the file of the MHFW and in particular, the comments of the Director General of Health Services (''DGHS'') who observed that:
I do not have a very high level of comfort with large number of drugs which are included in category II of the proposed formulary because the name of drugs and companies are quite unknown to me and some of the practicing government physician whom I consulted.
It is submitted that the above observations of the DGHS came after the Committee constituted by the MSO, under the Chairmanship of the Joint Secretary in the MHFW, prepared a draft Combined Formulary which included the Petitioners? drugs. It is surmised that since the Petitioners? drugs were thereafter excluded from the Combined Formulary, they ought to have been informed of what was being held against them by the MHFW and given an opportunity to explain.
It is stated that the Petitioners made applications under the RTI Act to which they are yet to receive replies. According to the Petitioners, the inference to be drawn is that their drugs have been wrongly left out from the Combined Formulary for reasons not indicated to the Petitioners and, therefore, there has been a violation of the principles of natural justice. It is further contended that the exclusion of the Petitioners? drugs from the Combined Formulary is arbitrary. Reliance is placed on a series of judgments including M/s. Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and Others, ; Verigamto Naveen Vs. Government of Andhra Pradesh and Others, ; Raj Restaurant and Another Vs. Municipal Corporation of Delhi, ; Onkar Lal Bajaj Vs. Union of India (UOI) and Another etc. etc., ; A.K. Kraipak and Others Vs. Union of India (UOI) and Others, ; Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, ; Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant AIR 2001 SC 24; Erusian Equipment and Chemicals Ltd. Vs. State of West Bengal and Another, ; Food Corporation of India Vs. M/s. Kamdhenu Cattle Feed Industries, and Association of Registration Plates Vs. Union of India (UOI) and Others, .
While it may be true that there was a Committee constituted to revise the Combined Formulary, the list prepared by it was obviously a tentative one. It then was reviewed by the DGHS. The note of the DGHS does not specifically name any one supplier or its drugs for being excluded from the Combined Formulary.
In the considered view of this Court, these petitions are premature insofar as the Petitioners have contended that the exclusion of their drugs from the Combined Formulary constitutes a negative opinion of their past performance. It is ultimately for the MHFW to decide which drugs are to be included in the Combined Formulary. There is nothing on record to suggest what reasons weighed with the MHFW for excluding the drugs of the Petitioners. In the circumstances, the question of giving any prior notice or hearing to the Petitioners does not arise. The judgments relied upon by the learned Senior Counsel for the Petitioners have no application to the facts and circumstances of the present case. Consequently, it is not possible for this Court to hold the combined formulary announced by the Respondents on 17th September 2010 is arbitrary or illegal.
As already observed by this Court in its order dated 31st January 2011, it is for the Petitioners to pursue the applications made by them under the RTI Act. If they are able to come across any definite material which substantiates their apprehensions as to why their drugs have been excluded from the Combined Formulary, they can seek appropriate remedies available to them in accordance with law.
The writ petitions and pending applications are dismissed.