Fayaz Bukhari
SRINAGAR, Apr 13: High Court has dismissed the petitions filed by drug companies on shifting of funds from Indian System of Medicine (ISM) to JK Medical Supplies Corporation Limited for procurement of ISM drugs and termed it in the larger interest of public.
Justice Tashi Rabstan dismissed the bunch of writ petitions filed by various drug supply companies seeking therein direction from the Court to prohibit the authorities from shifting funds allocated to purchase medicines to any other Corporation or authority.
“In view of the aforesaid analysis, especially in absence of malafide, prejudice, unreasonableness, arbitrariness, extraneous consideration or the impugned decision being against public interest; the decision of respondent department, cancelling/ withdrawing supply order(s), addendum to clause 16 of supply orders or shifting funds to JKMSCL for procurement of ISM drugs and medicines, is immune from judicial review in the given facts and circumstances”, Justice Tashi Rabstan concluded and said the writ petitions are devoid of any merit.
After perusal of records and in view of policy decision, court said, it transpires that ISM Department didn’t care to place indents in right earnest to JKMSCL for timely procurements and the whole issue was unnecessarily delayed, which was a matter of grave concern and considering the fact that only five months of the financial year had remained, approval for procurement was given in the interest of patient care and to ensure timely availability of medicine.
It has also been mentioned in the reply of Government that Vigilance Organisation consequent upon a Joint Surprise Check, the probe was being conducted by Vigilance Organisation at Jammu and during probe, scientific analysis of about 11 samples out of total taken from different dispensaries and stores of ISM Department from Jammu, Samba and Kathua districts, had been got conducted through an NABL accredited laboratory, outside the State, and as per the laboratory test reports five samples had been found substandard and severely infested with fungus and pathogen, rendering these drugs/medicines unfit for human consumption.
Thereafter Vigilance Organisation at Jammu sought appropriate action vis-à-vis public distribution of these medicines and in view of purchase of sub-standard drugs by ISM Department, sanction was accorded in November last year to constitution of Enquiry Committee to go into all procedures and processes, followed for procurement of medicine by ISM Wing of Health and Medical Education Department during 2016-17 by Directorate of ISM, J&K, and the steps taken/procedures adopted for ensuring quality of medicines during procurement.
“Not only this, pending inquiry into the matter related to purchase of substandard drugs in Directorate of Indian System of Medicine, the then Director General, ISM, was attached with Health & Medical Education Department (Administrative Department)”, court said.
Thereafter Health and Medical Education Department withdrew / cancelled its earlier letter by virtue of which approval was conveyed to ISM Department for procurement of medicines up to March 31 2017 and it was also directed that all future procurement of ISM drugs and medicines must be made through JKMSCL after ensuring quality and all codal procedures.
Court said, it becomes clear that to purchase ISM drugs and medicines through JKMSCL is a policy decision of the J&K State Government and it has been taken for public interest and added that, it may not be out of place to mention here that we must not forget that in complex matters, like instant one, every decision is necessarily empiric and it is based on experimentation or what one may call ‘trial and error method’ and, therefore, its validity cannot be tested on the application of any straitjacket formula.
“The Court must while adjudging the Constitutional validity of an executive decision relating to complex matter or the matter like one in the present case, grant a certain measure of freedom to play in the joints to the Executive and the Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical”, reads the judgment.
Justice Tashi said that in his opinion and having regard to the fact that probe/enquiries against the ISM department are underway; the extent of involvement of manufacturers will get known, only on conclusion of the probe/enquiries and observed that at this stage, there is enough basis for respondents to take a decision not to continue with the contract it entered into with petitioners and other manufacturers. The decision in this behalf would be entirely that the State and the decision is immune from judicial review.
Court has referred the Article 226 of the Constitution and declined to interfere with the observation that there is no breach of principles of natural justice in the instant case as such lacks of jurisdiction. “The adequacy of material does not fall within the scope of consideration of the court. The State is free to take the stand that it will not engage with petitioners and manufacturers. Surely this Court, exercising equitable jurisdiction under Article 226, will not interdict this decision of respondents and foist them to continue a relationship, which it has terminated in terms impugned decision”, Court said.
Court rejected the argument of companies that the allegations are not linked to them as they are not named anywhere in the probe/enquiries being conducted by Vigilance Organisation Jammu and cannot be fully grappled with in the midst of a probe/enquiries. “The material presently available with respondents would, to my mind, provide strong justification for respondents to say that it does not wish to continue to deal with petitioners, more particularly in view of shift in policy by establishing JKMSCL as Nodal Agency of J&K State for procurement of all goods, material, drugs and medicines for Government Hospitals/ institutions”, court said.
The companies who have approached the court to seek prohibition on Government decision are M/s Himalaya Research Laboratory, M/s Shaheen Pharmaceuticals, M/s Talwar, Medical Agencies, M/s Jai Durga Engg & Contractors,M/s Kashmir, Herbal Remedies, M/s Shree Dhanwantri Herbal, M/s Pravek Kalp, M/s Herbs and Herbs, M/s Apt Technologies, M/s Aditi International, M/s Multani Pharmaceuticals, M/s Dru Laboratories, M/s Surya Herbal Ltd, M/s Rahul Pharma and M/s Jammu Inst of Ayurveda.
The State counsel while opposing the writ petitions contended before the court that Government has earlier decided to set up a Medical Supplies Corporation for purchasing drugs and medical equipment at State Health Care Institutions and so, establishment of Jammu and Kashmir Medical Supplies Corporation Limited (JKMSCL) for purchasing drugs, instruments and disposables and other equipment required in health care institutions, was given go ahead signal.
This move necessitated in the wake of a fake drugs case unearthed in the State, he submitted, that JKMSCL being an undertaking of the Government of Jammu & Kashmir, is a Nodal Agency for procurement of Drugs, Medicines, Surgical Equipment for Government Medical Institutions in the State.
Court on maintainability of writ petitions said, it is settled law that disputes relating to contracts cannot be agitated under Article 226 of the Constitution of India and for enforcing contractual rights and obligation, remedy of filing a civil suit is available to aggrieved party and hence this Court will not exercise its prerogative writ jurisdiction to enforce such contractual rights or obligations.
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