Romesh Kumar Wadhwa, Proprietor vs The Ministry Of Health & Family ...
2016 Latest Caselaw 3572 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 13.05.2016

+       W.P.(C) 3150/2016
ROMESH KUMAR WADHWA, PROPRIETOR                                 .... Petitioner


                                       versus
THE MINISTRY OF HEALTH &
FAMILY WELFARE & ORS                                            .... Respondents

Advocates who appeared in this case:

For the Petitioner  : Mr Rajiv Garg and Mr Sanjay Gupta
For the Respondents : Mr Peeyoosh Kalra, Additional Standing Counsel with
                      Mr Shiva Sharma, Advocates for GNCTD.
                       Mr Jasmeet Singh for R -4/Union of India.
                       Mr Sangram S.Saran
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                                  JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

W.P.(C) 3150/2016 & CM Nos.13487/2016(stay), 15651/2016(stay)

1. This writ petition is concerned with the e-tender bearing No.16_2008

dated 04.03.2016 for the supply of drugs and medicines to Department of

Health and Family Welfare, Government of NCT of Delhi for the year 2016-

2017.

2. The grievance of the petitioner is that in Annexure XV, there is a list of

items with specifications, for which bids have been invited.

3. Before the tabular listing of the item, there are certain notes (a) to (l). The petitioner has a grievance with notes (b), (c) and (g). The said notes read as under:-

"b. Sitagliptin 100mg/Vildagliptin 100mg/Saxagliptin 5mg shall be considered equivalent for L-1 calculation; the demand of Gliptin shall be shifted to the item declared L-l as per this equivalence.

c. Inj Insulin Aspart, lnj Insulin Glulisine and Inj Insulin Lispro shall be considered equivalent for L1 calculation; the demand of L1 shall be increased by adding the demands of the remaining two Insulin Injections.

g. For Surfactant Solution for intratracheal instillation, the L1 shall be derived on the basis of lowest price quoted per mg of phospholipids."

4. To be clear, the petitioner's grievance is that in note (b), three drugs

have been mentioned, namely, Sitagliptin, Vildagliptin and Saxagliptin and that

as per the note, these three drugs are to be considered equivalent for the L-1

calculation. According to him, this cannot be done because the three drugs are

entirely different. The counter-affidavit filed on behalf of respondent Nos.2 &

3 specifically deals with this issue. Paragraph 6 reads as under:-

"6. It is further submitted that in the year 2013, the EML Committee recommended the procurement of any one out of the three Gliptins namely, Sitagliptin, Vildagliption and Saxagliptin, whichever was found to be most cost effective as Gliptins are costly in nature. The Committee further suggested equivalence for comparison based on daily dosing pattern. The Government of NCT of Delhi has thus been procuring Gliptin on such same principle and administering

the same to the patients in the hospitals under its authority and supervision."

5. From the above extract, it is evident that the EML Committee had

recommended the procurement of any one, out of the three Gliptins, whichever

was found to be most cost effective, as Gliptins are costly in nature. The

Committee had suggested equivalence for comparison based on the daily

dosing pattern. We may point out that the constitution of the Committee for

selection of essential medicines for Hospitals under the Government of NCT of

Delhi comprises of 24 doctors. The constitution of the said Committee is as

under:-

"Committee for Selection of Essential Medicines for Hospitals under Government of NCT, Delhi

1. Professor Ranjit Roy Chaudhury Chairman Advisor to Minister, Health & Family Welfare Govt. of NCT of Delhi

2. Dr. N.V. Kamat Member Director Health Services Government of NCT of Delhi

3. Sh. S.B. Shashank Member Drug Controller, Government of NCT of Delhi or his nominee

4. Dr. S.K. Bhattacharya Member Professor & Head, Department of Pharmacology, University College of Medical Sciences, Government of NCT of Delhi.

5. Dr. A.P. Dubey Member Director Professor & Head, Department of Paediatrics, Maulana Azad Medical College & Associated Hospitals, New Delhi-2.

6. Dr. B. Ghosh Member Director, Guru Nanak Eye Center New Delhi-2, Government of NCT of Delhi.

7. Dr. Vijay Kumar Garg Member Director Professor & Head, Department of Dermatology, Maulana Azad Medical College & Associated Hospitals, New Delhi-2.

8. Dr. Anju Garg Member Director Professor, Department of Radiodiagnosis, Maulana Azad Medical College & Associated Hospitals, New Delhi-2.

9. Dr. Promila Gupta Member Consultant Ophthalmology & Medical Superintendent, Deen Dayal Upadhyay Hospital, Government of NCT, Delhi.

10. Sh. P.K. Jaggi Member Asst. Drugs Controller Government of NCT, Delhi.

11. Dr. B.K. Jain Member Director Professor & Head, Department of Surgery, University College of Medical Sciences & Guru Teg Bahadur Hospital, GNCT, Delhi.

12. Dr P. Kar Member Director Professor, Department of Medicine, Maulana Azad Medical College & Associated Hospitals, New Delhi-2.

13. Dr. Ashok Khurana Member Medical Superintendent, GB Pant Hospital, New Delhi-2.

14. Dr. Puneeta Mahajan Member Consultant, Obstetrics & Gynaecology & Medical Superintendent, Sanjay Gandhi Memorial Hospital, GNCT, Delhi.

15 Dr S.V. Madhu Member Professor & Head, Department of Medicine, University College of Medical Sciences & Guru Teg Bahadur Hospital, GNCT, Delhi.

16 Dr. Lalit Maini Member Professor, Department of Orthopaedics, Maulana Azad Medical College And Associated Hospitals, New Delhi-2.

17. Dr. J.C. Passey Member Director Professor, Department of ENT, Maulana Azad Medical College And Associated Hospitals, New Delhi-2.

18. Dr. Sudha Prasad Member Director Professor, Department of Obstetrics & Gynaecology, Associated Hospitals, New Delhi-2.

19. Dr. Rajpal Member Medical Superintendent, Guru Teg Bahadur Hospita, Government of NCT of Delhi.

20. Dr. Kishore Singh Member Director Professor & Head, Department of Radiotherapy, Maulana Azad Medical College & Associated Hospitals, New Delhi -2.

21. Dr U.C. Verma Member Director Professor & Head, Department of Anaesthesia, Maulana Azad Medical College & Associated Hospitals, New Delhi-2.

22. Dr. Mahesh Verma Member Director, Maulana Azad Institute of Dental Sciences, New Delhi -2

23. Dr. Vijoy Kumar Member Additional Director Central Procurement Agency, Directorate of Health Services, GNCT of Delhi.

           24.     Dr. Vandana Roy                                  Member
                   Professor, Department of Pharmacology,           Secretary

Maulana Azad Medical College & Associated Hospitals, New Delhi-2."

6. From the constitution of the said Committee, it is evident that it

comprises of Doctors from different specialities of medicine and also includes,

as noted above, the Controller and the Assistant Drug Controller. When an

expert body comprising of specialists in the field of medicine have suggested

that the three Gliptins can be treated as equivalent on the basis of their daily

dosing pattern, this Court would not interfere with such a judgment.

7. Insofar as note (c) is concerned, the same argument has been raised by

the learned counsel for the petitioner that the three kinds of insulin injections

cannot be considered equivalent for L-1 calculation. We note that the response

of the respondent Nos.2 & 3 is given at paragraph 5.14 of the said counter-

affidavit and it reads as under:-

"5.14 In response to the contents of paragraph 5.14, it is submitted that it has been decided after due deliberation by the EML Committee that any one out of the three newer Insulin Aspart, Insulin Glusin and Insulin Lispro) shall be used in the healthcare facilities under the supervision of the Government of NCT of Delhi, the thousands available in the marketplace be procured for use in the health facilities under the Department of Health and Family Welfare. This committee is known as the EML Committee and the list of medicinal drugs thus selected by it is known as the EML i.e. Essential Medicine List."

8. The same Committee has opined that any of the three newer insulins,

namely, Insulin Aspart, Insulin Glusin and Insulin Lispro can be used in the

health-care facilities under the supervision of the Government of NCT of Delhi

and whichever is the most cost effective ought to be considered. Once again,

this is a decision of an Expert Committee and this Court does not sit in

judgment over such a decision.

9. With regard to note (g) also, it is the Expert Committee's

recommendation, which has been put in note (g) that for Surfactant Solution for

intratracheal instillation, L-1 should be derived on the basis of the lowest price

quoted per milligram of phospholipids.

10. We have no material before us to indicate that this decision of the expert

body is, in any way, arbitrary or mala fide.

11. For all these reasons, we find no merit in the present writ petition. The

same is dismissed.

                                          BADAR DURREZ AHMED, J


May 13, 2016                               SANJEEV SACHDEVA, J
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