Johnson, Johnson Private Limited @APPELLANT@Hash State of Rajasthan & Ors

,,,,,,,,,

By way of this appeal, the appellant has assailed the judgment and order of the learned Single Judge whereby learned Single Judge has dismissed",,,,,,,,,

the writ petition filed by the petitionerappellant herein confirming the order of the First Appellate Authority and Second Appellate Authority.,,,,,,,,,

The facts of the case are that respondent No.2 (a Government Company) issued Notice Inviting Bids (NIB) for supply of surgical equipment and,,,,,,,,,

sutures including “Regular Suturesâ€, “Synthetic Absorbable Sutures†and “Synthetic Absorbable Antibacterial Triclosan Coated",,,,,,,,,

Suturesâ€​. Items at Serial No.R-9, R-11, R-12, R-13, R-15, R-17, R-18 R-19, R-64, R-65 & R67 related to “Synthetic Absorbable Suturesâ€​. Items",,,,,,,,,

at serial No. R-68 to R-74 related to “Synthetic Absorbable Antibacterial Triclosan Coated Suturesâ€. E-bids were required to be submitted in two,,,,,,,,,

parts namely Technical Bid and Price Bid. The controversy in the present case relates to antibacterial coated sutures. The bidders were required to be,,,,,,,,,

either manufacturer having valid manufacturing licence or direct importer holding valid import licence. All bidders were required to have at least three,,,,,,,,,

years Market Standing as manufacturer/importer. All bidders were required to submit attested copy of requisite licence as well as Market Standing,,,,,,,,,

Certificate duly issued by the Competent Authority.,,,,,,,,,

The petitioner-appellant herein has mainly raised the controversy on the ground that samples of the appellant were sent to a laboratory of ISO,,,,,,,,,

whereas sample of respondent no.6 is sent to University and they were not allowed to play on equivalent play ground. The product of the appellant,,,,,,,,,

was found to be on better footing over and above the required criteria which reads as under:,,,,,,,,,

The following samples were tested SA-323, SA324, SA-325, SA-326, SA-327, SA-328 and SA329. Overall, the results show that the sutures are",,,,,,,,,

effective and have bacteriostatic properties. The sutures exhibit higher effectiveness towards S. aureus (+20%) than towards E. coli (-3%) as,,,,,,,,,

compared to controls.,,,,,,,,,

3.1 It is alleged that the product of respondent no.6 was not matching with the product of the appellant so the appellant claim its product to be better,,,,,,,,,

placed than respondent no.6.,,,,,,,,,

3.2 Counsel for the appellant has taken us to provisions of Section 13 and 32 of the Rajasthan Transparency Public Procurement Act, 2012 and Rule 5",,,,,,,,,

of the Rajasthan Transparency in Public Procurement Rules 2013Â which reads as under:-,,,,,,,,,

Single part and two part bids.- (1) Subject to the provisions of this Act and the rules and guidelines made thereunder, a procuring entity may",,,,,,,,,

choose to-,,,,,,,,,

(a) call for bids in which the technical, quality and performance aspects, commercial terms and conditions and the financial aspects including the price",,,,,,,,,

are contained in a single envelope; or (b) if it is of the opinion that it is essential to evaluate the technical aspects of a bid before considering its,,,,,,,,,

financial aspect, call for bids in two envelopes, namely:-",,,,,,,,,

(i) the techno-commercial bid containing thetechnical, quality and performance aspects, commercial terms and conditions; and",,,,,,,,,

(ii) the financial bid containing financial aspectsincluding the price.,,,,,,,,,

(2) In case the procuring entity calls for bids in terms of clause (b) of sub-section (1), the techno-commercial bid shall be opened and evaluated first",,,,,,,,,

and the financial bid of only those bids which have been found technically acceptable, shall be opened and evaluated.",,,,,,,,,

Two stage bidding.- (1) A procuring entity may choose to procure the subject matter of procurement by the method of two stage bidding, if-",,,,,,,,,

(a) it is not feasible for the procuring entity toformulate detailed specifications or identify specific characteristics for the subject matter of,,,,,,,,,

procurement, without receiving inputs regarding its technical aspects from bidders; or",,,,,,,,,

(b) the character of the subject matter ofprocurement is subject to such rapid technological advances and market fluctuations to make open,,,,,,,,,

competitive bidding unfeasible; or (c) the procuring entity seeks to enter into a contract for the purpose of research, experiment, study or development,",,,,,,,,,

except where the contract includes the production of items in quantities sufficient to establish their commercial viability or to recover research and,,,,,,,,,

development costs; or (d) the bidder is expected to carry out a detailed survey or investigation and undertake a comprehensive assessment of risks,",,,,,,,,,

costs and obligations associated with the particular procurement.,,,,,,,,,

(2) Subject to the rules as may be made in this behalf, the procedure for two stage bidding shall include the following, namely:-",,,,,,,,,

(a) in the first stage of the bidding process, theprocuring entity shall invite bids containing the technical aspects and contractual terms and conditions of",,,,,,,,,

the proposed procurement without a bid price;,,,,,,,,,

(b) all first stage bids, which are otherwiseeligible, shall be evaluated in accordance with the procedure laid down in the rules through an appropriate",,,,,,,,,

committee constituted by the procuring entity;,,,,,,,,,

(c) the committee may hold discussions with thebidders and if any such discussion is held, equal opportunity shall be given to all bidders to participate",,,,,,,,,

in the discussions;,,,,,,,,,

(d) in revising the relevant terms and conditionsof the procurement, the procuring entity shall not modify the fundamental nature of the procurement",,,,,,,,,

itself, but may add, amend or delete any specifications of the subject matter of procurement or criterion for evaluation;",,,,,,,,,

(e) notwithstanding anything contained insections 29 and 30, in the second stage of the bidding process, the procuring entity shall invite bids from all",,,,,,,,,

those bidders whose bids at the first stage were not rejected, to present final bid with bid prices in response to a revised set of terms and conditions of",,,,,,,,,

the procurement;,,,,,,,,,

(f) any bidder, invited to bid but not in a positionto supply the subject matter of procurement due to changes in the specifications, may withdraw from",,,,,,,,,

the bidding proceedings without forfeiting any bid security that he may have been required to provide or being penalised in any way, by declaring his",,,,,,,,,

intention to withdraw from the procurement proceedings with adequate justification.,,,,,,,,,

5- bZ&mikiu-& izkDdfyr ewY; ds mikiu dh leLr fo""k; oLrq] tks /kkjk 28 dh mi&/kkjk ¼2½ ds v/khu jkT; ljdkj }kjk vf/klwfpr dh tk;s] bZ&mikiu ds",,,,,,,,,

ek/;e ls mikfir dh tk;saxhA ,sls ekeyksa esa izR;sd cksyh yxkus okyk ,sls mi;ksDrk izHkkjksa dk fu{ksi djsxk tks le;≤ ij jkT; ljdkj }kjk fu;r fd;s tk;sA",,,,,,,,,

izR;sd cksyh] cksyh yxkus okys }kjk fMftVy :i ls gLrk{kfjr dh tk;sxhA bZ&mikiu dh izfØ;k jkT; yksd mikiu iksVZy ij bl iz;kstu ds fy, fofufnZ""Vkuqlkj",,,,,,,,,

gksxhA,,,,,,,,,

3.3 He further contended that the authority has committed a serious error in not considering the difference between the two products and the,,,,,,,,,

respondent no.6 was not fulfilling the technical bid and was not having license for importing the product and all the authorities including the learned,,,,,,,,,

Single Judge have not considered the case of the appellant in correct perspective.,,,,,,,,,

3.4 He has also taken us to Rule 7 of the tender document which reads as under:,,,,,,,,,

Opening of Technical Bid and Technical Evaluation,,,,,,,,,

(a) The Bid will be scrutinized by Bid evaluationcommittee and inspection of manufacturing unit for compliance of GMP may be carried out by,,,,,,,,,

technical committee. Price Bid (BOO) of the Bidder found eligible on satisfying the criteria for technical evaluation and inspection, will only be",,,,,,,,,

opened.,,,,,,,,,

(b) Technical Evaluation:- Technical Evaluation ofthe Bid will be done in two stages. (I) Technical Evaluation on the basis of documents. This is to,,,,,,,,,

examine whether the bidder qualifies as per given eligibility and other prescribed conditions.,,,,,,,,,

(ii) Evaluation/Examination Testing of samples of Items. Bids of the item, samples not found technically fit in such evaluation will be declared as",,,,,,,,,

rejected/non-responsive.,,,,,,,,,

3.5 Counsel for the appellant contended that opening of technical bid is contrary to tender condition and therefore contract awarded to respondent no.6,,,,,,,,,

is contrary to tender condition and in view of decision of Supreme Court the same is required to be quashed and set aside.,,,,,,,,,

3.6 Counsel for the appellant has taken us to the order of First Appellate Authority dt. 21.4.2017 where the Authority has observed as under:-,,,,,,,,,

4- geus mHk; i{kksa }kjk izLrqr rdZ forZdksa ij euu fd;k ,oa i=koyh ij miyC/k nLrkostksa dk voyksdu Hkh fd;k x;kA nLrkostksa dk voyksdu djus rFkk",,,,,,,,,

nksuksa ikfVZ;ksa ds i{k ds fcUnqvksa ij euu djus ds mijkUr ;g Li""V gS fd eq[;:i ls vihydrkZ us bl fcUnq ij vkj,e,llh ds fo:) vihy dh gS fd muds }kjk",,,,,,,,,

vkjVhihih vf/kfu;e@fu;eksa dh vogsyuk djrs gq, rduhdh fcM esa lQy fd;s fcuk dqN mRiknksa dh foRrh; fufonk ][kksy yh xbZ gSA bl laca/k esa muds",,,,,,,,,

}kjk vkjVhihih vf/kfu;e ds izko/kkuksa dk mYys[k djus ds lkFk&lkFk dydrk mPp U;k;ky; ds fu.kZ;ksa dk Hkh gokyk fn;k x;k fd muds }kjk foRrh;,,,,,,,,,

fufonk [kksyh tk ldrh gS tcfd rduhdh fcM esa cksyhnkrk lQy gksrk gSA blds lkFk gh vihydrkZ }kjk mRikn “Anti Bacterial†izÃ'fr ds laca/k esa,,,,,,,,,

Hkh cgl dh xbZ rFkk mudk ;g er Fkk fd lQy cksyhnkrk ds bl mRikn dh bl xq.koRrk lafnX/k gSA vkj,e,llh }kjk fcUnqokj viuk i{k izLrqr fd;k x;kA",,,,,,,,,

izcU/k funs’kd vkj,e,llh }kjk loZizFke vkjVhihih vf/kfu;e ds fu;eksa dh vogsyuk ds laca/k esa viuk er izLrqr fd;kA muds vuqlkj fcM izfØ;k iwjh rjg",,,,,,,,,

ls ikjn’khZ gS rFkk fufonk bZ izksD;wjesaV lkbV ds tfj;s gh tkrh gSA pwafd vihydrkZ }kjk ;g Lohdkj dj fy;k x;k gS fd jsLiksMsUV }kjk iow Z,,,,,,,,,

esa gh ;g voxr djok fn;k Fkk fd dqN vkbZVel~@mRiknksa dh rduhdh fufonk ckn esa [kkyh tk;sxh] blfy, bl rF; dks lkfcr djus dh vko’;drk ugha",,,,,,,,,

gSaA ml laca/k esa dEiuh }kjk fdlh izdkj dh vkifRr ntZ ugha djkbZ xbZ gSA ;gkW rd fd tc bZ izksD;wjesaV lkbZV ds laca/k esa lHkh lQy lEifu;ksa,,,,,,,,,

ds mRiknksa dh foRrh; fcM [kksyh xbZ ftlesa iz’uxr vkj&68 ls vkj&74 mRikn 'kkfey Fks] ml le; dEiuh }kjk dksbZ vkifRr ugha dh xbZ ysfdu tc,,,,,,,,,

iz’uxr mRiknksa dh rduhdh fjiksVZ lQy cksyhnkrk ds i{k esa gqbZ tc vihydrkZ dEiuh }kjk vihy dh xbZ gSa ftlesa ;g Kkr gksrk gS fd dEiuh dks,,,,,,,,,

lkjh izfØ;k iwjh rjg ls irk Fkh rFkk dqN Hkh lacaf/kr cksyhnkrk dh tkudkjh ds fcuk ugha gqvk gSA gekjs }kjk bZ izksD;wjesaV lkbZV ij rduhdh rFkk,,,,,,,,,

foRrh; fufonk dh izfØ;k dks le>us ds ckn gh fu.kZ; fd;k x;k gSA tc Hkh fcMlZ dh foRrh; njksa (BoQ) dks [kksyk tkrk gS rks mlds }kjk Hkjh gqbZ,,,,,,,,,

lHkh njsa iznf’kZr gksrh gS pkgs og vkbVe Responsive gks ;k Non-Responsive A bZ&izksD;wjesaV ds flLVe esa ;g lqfo/kk miyC/k ugha gS fd,,,,,,,,,

fdlh fcMlZ ds vkbVe fo’ks""k nj dks Hide fd;k tk lds vFkkZr dqN vkbVeksa dh njksa dks NksMrs gq, vU; vkbVeksa dh njksa dks [kksyk tk lds ,oa",,,,,,,,,

ckn esa NksMs gq, vkbVeksa dh foRrh; njksa dks [kksyk tk ldsA",,,,,,,,,

tgkW rd dEiuh ds iz’uxr mRiknksa ds rduhdh :i ls Anti Bacterial gksus ;k ugha gksus dk iz’u gS] gekjs }kjk dsoy ;g ns[kk tk ldrk gS fd,,,,,,,,,

cksyhnkrk dks fdlh izdkj dk vfrfjDr ykHk rks ugha fn;k tk jgk gS rFkk rduhdh lfefr;ksa }kjk fd;s x;s ijh{k.k ,oa dk;Z iz.kkyh ij iz’ufpUg yxk;k tkuk",,,,,,,,,

rFkk ml ij fdlh izdkj dh lquokbZ djuk bl izfØ;k esa vko’;d ugha ik;k x;kA vkj,e,llh }kjk lQy cksyhnkrk ds mRiknksa dh tkWp ds laca/k esa iwjh",,,,,,,,,

izfØ;k crk nh xbZ FkhA,,,,,,,,,

vr% vihy lkjghu gksus ls Lohdkj djus ;ksX; ugha gS rFkk fujLr dh tkrh gSA bl laca/k esa tkjh LFkxu vkns’k dks Hkh fujLr fd;k tkrk gSA,,,,,,,,,

3.7 He has also taken us to the observations made by the Second Appellate Authority holding as under:-,,,,,,,,,

tgka rd iz’uxr mRiknksa ds rduhdh :i ls Antibacterial gksus ;k ugha gksus dk iz’u gS] fuxe }kjk fo""k; fo’ks""kKksa dh vfHk’ka""kk",,,,,,,,,

vuqlkj Laboratory Test djok;k x;kA rhuksa QeksZ dh izkIr Laboratory Test Reports ij rduhdh jk; gsrq funs’kd] jktdh; vkS""kf/k iz;ksx’kkyk]",,,,,,,,,

t;iqj ,oa vkS""kf/k fu;a=d jktLFkku ds izfrfuf/k dh ,d lfefr dk xBu fd;k x;kA lfefr dh fjiksVZ ds lkFk Laboratory Test Reports dks layXu dj v/kh{kd]",,,,,,,,,

lokbZekuflag vLirky] t;iqj dks Technical/clinical evaluation Report izLrqr djus gsrq fy[kk x;kA ewY;kadu gsrq xfBr lfefr }kjk vkbVe dksM vkj&68 ls,,,,,,,,,

vkj&74 ds fy, fufonk esa Hkkx ysus okyh rhuksa QeksaZ ds lSEiyl~ dks Antibacterial ,oa fufonk Specification ds vuqlkj ekuk x;k gSA fuxe ds }kjk",,,,,,,,,

mifLFkr Jh vthr tSu] lgk;d vkS""kf/k fu;a=d us Li""V fd;k fd “Antibacterial Coating is broad term which mean antibacterial efficacy either by",,,,,,,,,

bactericidal or bacteriostatic properties. Bactericidal agents are used to Kill microorganisms inhibiting the synthesis of cell wall whereas Bactriostatic,,,,,,,,,

agents are used to limit the growth and reproduction of microorganisms by interfering with their protein production and DNA replication. The testing,,,,,,,,,

of two firm’s (1 M/s Johnson & Johnson Pvt. Ltd. 2. M/s Futura Surgicare Pvt. Ltd.) product are bactericidal (zone of Inhibition) and third firm,,,,,,,,,

(M/s Covidien Healthcare India Pvt. Ltd.) have bacteriostatic properties. Testing by both methods considered antibacterial by the technical/clinical,,,,,,,,,

evaluation committeeâ€. VihykUV }kjk lQy cksyhnkrk ds mRikn ds Antibacterial ugha gksus ds laca/k esa dksbZ Technical opinion izLrqr ugha dh,,,,,,,,,

xbZ gSA vr% Li""V gS fd vkj,e,llh }kjk lQy cksyhnkrkvksa ds mRiknksa dh tkap izfØ;k fcuk fdlh HksnHkko ds lEikfnr dh xbZ gS ,oa blls vihykUV ds",,,,,,,,,

fgrksa ij dksbZ foijhr izHkko ugha iMk gSA geus i{kksa }kjk izLrqr rdZ fordksZ dk ,oa izLrqr nLrkostksa dk v/;;u fd;kA fuxe }kjk fufonk 'krksZ ds",,,,,,,,,

rgr ds vuqlkj dk;Zokgh dh xbZ gS og vihy ds tokc ls ,oa lquokbZ ds le; es fn;s x;s rF;ksa ij fLFkfr Li""V gks xbZ gSA",,,,,,,,,

3.8 Counsel for the appellant contended that both the authorities have not dealt with the arguments which were raised by the appellant.,,,,,,,,,

3.9 He has also invited our attention to ground-J taken by him in appeal before the second appellate authority which reads as under;-,,,,,,,,,

J. Because the learned respondent no.1 erred in not considering the fact that none of the existing product documents (import License, IFU, product",,,,,,,,,

label, etc.) of Covidien contain claim of antibacterial coating. It was submitted by the appellant that the CHIPL was trying to make a new claim on",,,,,,,,,

their existing product, which as per provisions of Rule 122A read with 122E(b) of Drugs and Cosmetics Rules, 1945 under the Drugs and Cosmetics",,,,,,,,,

Act 1940 is required to be approved by the Drug Regulator. None such regulatory approval document has been submitted for the new claim. It was,,,,,,,,,

also submitted by the appellant that CHIPL has not complied with the qualification requirement for R68-R74 of submitting a valid drug licence which,,,,,,,,,

includes their claim of being an “antibacterial coated sutureâ€. The finding of the First Appellate Authority is clearly demonstrative of the fact that,,,,,,,,,

it is just a ruse so as to give a perverse order against the Appellant.â€​,,,,,,,,,

3.9 He contended that the said aspect has not been properly appreciated by the authorities and in a stereo type manner, the authorities without",,,,,,,,,

considering the contention of present appellant rejected the appeal.,,,,,,,,,

3.10 Counsel for the appellant has also taken us to the analysis which was done in the Oasis test house wherein it was found as under:,,,,,,,,,

Result of Test:-,,,,,,,,,

Anti-bacterial efficacy of coated sutures via zone of inhibition:,,,,,,,,,

“Anti-microbial efficacy was determined on agar plate by diffusion plate test by using the strain,,,,,,,,,

Staphylococcus aureus (ATCC 6538P),",,,,,,,,,

Escherichia coli (ATCC 8739), Staphylococcus epidermidis (ATCC 12228) and Salmonelia abony (NCTC 6017).",,,,,,,,,

The zone of inhibition was measured from the middle of the thread. The suture containing triclosan showed following zone of inhibition after 24 hours,,,,,,,,,

S.N

o.","Descrip

tion","Item

Code",Units,"Quanti

ty","Bidder

Name","Rate

Withou t

Tax","Tax %

& Amoun

t","Total

Rate

With

Tax",Bid Rank

1,,,,,"Covidien

Healthcare

India Pvt.

Ltd.","1725.0

0","2% =

34.50","1759.5

0",L2

2,,,,,"Johnson &

Johnson

Private

Limited","2860.0

0",0.00,"2860.0

0",L3

above) but must be free from arbitrariness not affected by bias or actuated by mala fides. 23. In Master Marine Services (P) Ltd. v. Metcalfe &,,,,,,,,,

Hodgkinson (P) Ltd and Anr, reported in AIR (2005) Page 2299 it has been ruled that the State can choose its own method to arrive at a decision and",,,,,,,,,

it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It has been further held that the State, its",,,,,,,,,

corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making",,,,,,,,,

process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public",,,,,,,,,

interest and not merely on the making out of a legal point. 24. In Michigan Rubber (India) Ltd. Vs. State of Karnataka reported in (2012) 8 SCC 216,",,,,,,,,,

the Court referred to the earlier judgments and opined that before a court interferes in tender or contractual matters, in exercise of power of judicial",,,,,,,,,

review should pose to itself the question whether the process adopted or decision made by the authority is mala fide or intended to favour someone or,,,,,,,,,

whether the process adopted or decision made is so arbitrary and irrational that the judicial conscience cannot countenance. Emphasis was laid on the,,,,,,,,,

test, that is, whether award of contract is against public interest.",,,,,,,,,

Counsel for the petitioner has cited severaljudgments to submit that there is an inherent imbalance in the entire action of the respondent and there,,,,,,,,,

was an unwanted hurry as the Transparency Act does not term discretion for alternate procedure. It is further submitted that the procedure that,,,,,,,,,

where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and such a principle has to be strictly,,,,,,,,,

followed in contractual disputes. In support thereof, he relies on law laid down by the Apex Court reported in (2016) Vol.8 SCC, 622; Central",,,,,,,,,

Coalfields Limited & Anr. Vs. SLLSML (Joint Venture Consortium) & Ors. & Anr.,,,,,,,,,

However, after having noted all the facts andthe law, this Court finds that each and every judgment has to be applied to the facts and",,,,,,,,,

circumstances which may arise in the given case. It is not to be made of a cut, copy and past process. The law propounded in a given judgment has to",,,,,,,,,

be applied on given facts and it is to be noted where the facts in which the judgment was pronounced would be of similar nature to the given facts,,,,,,,,,

found in the present case so that the law is followed verbatim. Otherwise a single word or a single circumstance can change the entire scenario and,,,,,,,,,

the interpretation of law has to be determined in the facts which are presented. What can be corrected, possible and plausible in certain facts may not",,,,,,,,,

be found to be corrected in a different set of facts,,,,,,,,,

In the present case, as noted, there was aminimum benchmark laid down and once the product reached to that benchmark, the procurement",,,,,,,,,

agency has thought it proper to guide itself and choose a product which is technically sound and at the same time cost effective. Thus, there has been",,,,,,,,,

an objective assessment. There has been a detailed appreciation at the level of the procurement agency and decision taken by them for a product,,,,,,,,,

which they required ought not be disturbed by applying legal jargane. Let the experts have their own say and decision. This Court is completely on a,,,,,,,,,

weigh to such decisions. It is although true that a lawyer and a Judge are supposed to have knowledge in each fields but they cannot chose to deal,,,,,,,,,

with matters relating to public health and decided which product would be more suitable where a decision is taken manifestly, in consonance with the",,,,,,,,,

requirement. This Court is loathe to interfere in the circumstances. The product which has been approved and finalised cannot be said to be of sub-,,,,,,,,,

standard quality or that it was not in conformity with the requirements of the bid.,,,,,,,,,

It is a settled law that Court would onlyinterfere if the decision making process is in any manner contrary to the provisions of law. However, the",,,,,,,,,

decision is not a subject matter of judicial review as has been held by the Apex Court in the case of State of Bihar Vs. Bal Mukund Shah reported in,,,,,,,,,

AIR (2000) SC 1296.,,,,,,,,,

In view of the aforesaid analyses, I do notfind any reason to interfere with the decision of the procuring authority. In view thereof, the order",,,,,,,,,

passed by the appellate authority does not call for any interference and accordingly the writ petition is dismissed in the facts and circumstances.,,,,,,,,,

No costs.,,,,,,,,,

6.5 Counsel for the respondent further contended that the learned Single Judge has found that the different committees including the Drugs Committee,,,,,,,,,

and SMS Committee, all the three products were found to be eligible. It might be that product of the appellant was better but product of the",,,,,,,,,

respondent no.6 was matching with the requirement of the tender, in that view of the matter, law is settled by the Supreme Court that where the bid",,,,,,,,,

which has been accepted is matching with the technical need of the requirement, merely because one product is better which has not been stated that",,,,,,,,,

the respondent no.6 is not better. Taking into consideration the expert opinion, committee which was formed and the report which has been submitted",,,,,,,,,

being considered by the competent three committees, in our considered opinion, the learned Single Judge has not committed any error in passing the",,,,,,,,,

impugned order.,,,,,,,,,

It is well settled that the expert committee decision has to be accepted unless it is found to be so perverse with the support of the expert books,,,,,,,,,

opinion and the opinion of the committee was so palpably wrong. The tender of the appellant was also accepted, it was well within his knowledge that",,,,,,,,,

the financial bid was to be opened vide notice dt. 20.1.2017 and he has to object on or before 24.1.2017 to which he has not objected, therefore, it was",,,,,,,,,

not proper for the appellant to argue that financial bid was opened without his notice. The omission and non responsiveness of the appellant will not,,,,,,,,,

make any action of the respondents bad in law especially when it was made publicly known that excepting all other products, the financial bid is",,,,,,,,,

required to be opened subject to rider which we have reproduced from the same notice.,,,,,,,,,

7.1 Apart from it, vide order dt. 30.3.2017, he was given opportunity to lower down his price, which he has not done. In that view of the matter, we",,,,,,,,,

are of the opinion that this litigation is very luxurious and statutory appeal has been filed only after the tender was opened between the party without,,,,,,,,,

joining the affected party. In our considered opinion, the appeal filed without joining the affected party is not bona fide litigation and the same is",,,,,,,,,

required to be viewed very seriously which we do.,,,,,,,,,

7.2 With regard to argument of Section 13 of the RTPP Act, in our considered opinion, the financial bid was opened after notice to the parties in view",,,,,,,,,

of the peculiar facts and circumstances that the tender was for more than 75 items and deal is to be made by the State Government and it was for,,,,,,,,,

medicines and other things which are required to be supplied to public at large that too free of cost.,,,,,,,,,

7.3 In that view of the matter, we are of the opinion that even if section 13 is read closely that there is no breach all throughout even before the lower",,,,,,,,,

authorities, the argument regarding Section 13 of the RTPP Act was not argued and it has been raised for the first time. Section 32 of the RTPP Act",,,,,,,,,

which has been emphasized by all the authorities was not made applicable by the authorities and the reasoning for the same, we have already",,,,,,,,,

reproduced hereinabove.,,,,,,,,,

Thus, in our considered opinion, there is nothing wrong in accepting the tender in favour of respondent no.6 and the appeal being devoid of merit",,,,,,,,,

deserves to be dismissed.,,,,,,,,,

Hence, the appeal filed by the appellant stands dismissed with a cost of Rs.1,00,000/- (Rs. One lac) on the appellant to be paid to respondent No. 6.",,,,,,,,,