Delhi High Court
Grownbury Pharmaceuticals vs Union Of India & Ors on 21 February, 2011
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 1007 of 2011 & CM APPL 2123/2011 (for stay)
GROWNBURY PHARMACEUTICALS ..... Petitioner
Through: Mr. Sudhir Nandrajog, Senior
Advocate with Mr. Sumit Sarna, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Ravinder Agarwal, CGSC with
Mr. Nitish Gupta, Advocate for CGHS.
AND
W.P.(C) 1008 of 2011 & CM APPL 2125/2011 (for stay)
VIVID BIOTEK PVT LTD ..... Petitioner
Through: Mr. Sudhir Nandrajog, Senior
Advocate with Mr. Sumit Sarna, Advocate.
versus
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
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‟)/Medical Stores Organisation („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.
2. 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).
3. 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."
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 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.
5. 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 Monarch Infrastructure (P) Ltd. v. Commr.,
Ulhasnagar Municipal Corpn. AIR 2000 SC 2272; Veriyamto Naveen v.
Government of Andhra Pradesh AIR 2001 SC 3609; M/s Raj
Restaurant v. Municipal Corporation of Delhi AIR 1982 SC 1550;
Onkar Lal Bajaj v. Union of India AIR 2003 SC 2562; A K Kraipak v.
Union of India AIR 1970 SC 150; Ramana Dayaram Shetty v.
International Airport Authority of India AIR 1979 SC 1628; Kumaon
Mandal Vikas Nigam Ltd. v. Girja Shankar Pant AIR 2001 SC 24; M/s
Erusian Equipment & Chemicals Ltd v. State of WB (1975) 1 SCC 70;
Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries
(1993) 1 SCC 71 and Association of Registration Plates v. Union of
India (2005) 1 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. 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.
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 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.
8. 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.
9. The writ petitions and pending applications are dismissed.
S. MURALIDHAR, J
FEBRUARY 21, 2011
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