Vs. The State of Kerala & Ors  Insc 262 (22 February 2008)
Sinha & Harjit Singh Bedi
APPEAL NO 1512 / 2008 (arising out of S.L.P. (C) No. 22587/2004) HARJIT SINGH
Special leave granted.
Central Purchase Committee of the State Government of Kerala floated tenders
for the supply of anti- rabies vaccine for various Government Hospitals in the
State for the year 2002-03. The 7th respondent, the Human Biological Institute
amongst others submitted the tenders and quoted its price of Rs.148/- per vial.
This rate was accepted by the State Government in its order of 30th March 2002. On 11th October 2002, Dr. Binu Upendran,
Assistant Surgeon, District Hospital, Kollan reported that four patients had
developed severe reactions after taking a second dose of the vaccine from Batch
No. AYB 90/2001. The Director, Health Services accordingly vide his order dated
22nd October, 2002 directed the purchase officer to
freeze the utilization of the vaccine until further orders. The Drug Controller
also sent a sample of the vaccine for analysis to the Central Research
Institute, Kasauli for examination. It appears that one Ramachandran who had
allegedly been administered the vaccine on 17th November 2002 died on 9th December 2002.
Joint Director, Central Drugs Laboratory in his letter dated 3rd February 2003 also reported that the vaccine had
failed in all four parameters fixed for its evaluation. The District Medical
Officer, Kannur vide his letter dated 25th March 2003 also informed the Director, Health
Services that the vaccine supplied in Batch No.90/2001 had been declared as
sub-standard by the Central Drugs Laboratory. A committee was thereafter
appointed by the Govt. of Kerala to examine the reasons as to why the samples
taken had been found to have failed and on enquiry it transpired that the
vaccine had not been stored in a proper way. While this investigation/enquiry
was going on, respondent No.7 submitted its tender for the year 2003-04 as
well. In the meanwhile, the Director, Health Services also invited tenders for
the supply of the said vaccine by short tender Notice dated 20th March 2004. The present petition was filed on 6th April 2004 in public interest seeking a
direction to the State Government that the 7th respondent should not be allowed
to submit a tender for the vaccine. A reply was filed by the State Government
of Kerala as well as by the 7th respondent. The High Court in its judgment
dated 10th August 2004 dismissed the Writ Petition holding
that there were no extraneous considerations in the award of the supply
contract to the 7th respondent. It is in this background that the present
appeal has been filed. When the matter first came up for hearing on 16th November 2004, this Court issued a limited notice
only with regard to the quality of the vaccine supplied by the 7th respondent.
Replies, affidavits and counter affidavits etc. have been filed by the parties.
In the affidavit filed by the State Government it has been deposed that the
contract had been awarded to the 7th respondent keeping in view the quality of
the vaccine and that prima facie no adverse reactions to the vaccine had been
reported from any quarter. It was also pleaded that the allegation that Ramachandran
had expired on 9th
December 2002 after
the administration of anti-rabies vaccine was incorrect as subsequent enquiries
had identified his death on account of clinical rabies and not because of the
adverse reaction of the vaccine. The Union of India has also filed its
affidavit to indicate that the vaccine had passed three parameters and that
only one batch i.e. Batch No. AYB 90/2001 had failed in the fourth i.e.
have heard the learned counsel for the parties. As would be clear from the
facts given above, the dispute pertains only to one batch of the vaccine
supplied in the year 2002-03.
is no dispute whatsoever with regard to any other batch or subsequent tender.
In the light of the positive stand taken by the Union of India and the State of
Kerala and the limited notice given in
these proceedings, we are of the opinion that no relief can be granted to the
appellant at this stage.
learned counsel for the 7th respondent has emphasized that the Writ Petition
was manipulated and the public interest raised was only a camouflage for the
interests of a rival manufacturer. In the absence of any material on this
score, we are unable to give a finding either way. We however dismiss the
appeal with the observations that the State Government shall take adequate
measures to ensure that the quality of the anti-rabies vaccine, which is the
only preventive in a case of a bite from a rabid animal, is maintained.