GROWNB URY PHARMACEUTICAL S & Ors. v. UNION OF INDIA & ORS

Through: Mr. Sudhir Nandrajog, Senior Advocate with Mr. Sumit Sama. Advocate. VETSUS UNION OF INDIA & ORS. ..... Respondents Through: Mr. Ravinder Agarwal, CGSC with Mr. Nitish Gupta, Advocate for CGHS. CORAM: JUSTICE S. MURALIDHAR ORDER 21.02.2011 t. rg.

1. The prayers in both the writ petitions are common. The Petitioners seek quashing of the "Combined Formulary" of the Central Government Health Services ('CGHS')/l\4edical Stores Organisation ('MSO') in Signature Not Verified Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. w.P.(c) 70c7-08 of 2077 Y 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. 9 i

2. Earlier this Court had dismissed four writ petitions seeking similar reHef by an order dated 31't January 2011. These were Writ Petition (Civil) Nos.552 of 2011(lWs AAR,ESS Remedies Pvt. Ltd. v. (Inion of India), 573 of 20ll Ql,Ih Vivid Biotek Pvt. Ltd. v. (Inion of India), 574 of 201 I (IWs Zunison Health Csre v. Union of India) and 575 of 2011 (M Grownbury Phurmacetdiccrls Pvt. Ltd. v. (Jnion of Inctit).

3. I\4r. 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 W.P.(c) 7007-08 of 2077 9 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: f !1, "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 whorn I consulted."

4. 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 MIIFW, prepared a draft Combined Formulary which included the Petitioners' drugs. It is surmised that since the Petiiioners' 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.

5. It is stated that the Petitioners made applications under the RTI Act to which they are yet to receive repljes. 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 w.P.(c) 7007-08 of 2077 6 is fuither contended that the exclusion of the Petitioners' drugs from the Combined Formulary is arbitrary. Reliance is placed on a series of judgments including Monarch Infrastructure (P) Ltd. v. Commr., Ulhasnagar Manicipal Corpn. AIR 2000 SC 2272; Veriyamto Naveen v. {. Government of Andhra Pradesh AIR 2001 SC 3609; M/s Raj t- -,a Restaurant v. Municipal Corporation of Delhi AIR 1982 SC 1550; Onkor Lal Bajaj v. Union of India AIR 2003 SC 2562; A K Kraipak v. Union of India AIR 1970 SC 150; Romana Dayaram Shetty v. Internutional Airport Authority of India AIR 1979 SC 1628; Kumaon Mundal Vikas Nigam Ltd. v. Girja Shankar Pant AIR 2001 SC 24; M/s Erusian Equipment & Chemicals Ltd v. Stute of WB (1975) 1 SCC 70; Food Corporation oj'India v. M/s Komdhenu Cuttle Feed Industries (1993) 1 SCC 7I and Association of Registration Plaies v. Union of India (2005) I SCC 679.

6. 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. lt 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. w.P.(c) 7007-oB of 2077 f t_ e 1

7. 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 MFIFW to decide which drugs are to be included in the Combined Formulary. There is nothing on record to suggest what reasons weighed with the MItrW 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.

8. As already observed by this Court in its order dated 31't January 2011, it is for the Petitioners to pursue the applications made by them uncler the RTI Act. If they are able to corne 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. w.P.(C) 7007-08 of 2077 L

9. The.writ petitions and pending applications are dismissed. FEBRUARY 2I., 2OII (- S. MURALIDHAR, J k. W.P.(c) 7007-08 of 2077 Poge 6 of 6