JUDGMENT
Badar Durrez Ahmed, J.
1. With the consent of the parties, this writ petition is taken up for final disposal. This petition is a sequel to an earlier petition being WPC 4298/2003 which has been heard and in which separate orders will be passed. In this writ petition, the petitioner essentially prays for a writ, order or direction in the nature of mandamus directing the respondents 1 – 5 to permit the petitioner to proceed in the bidding for all the categories, including Product Codes 1, 2, 3 & 4 for which the petitioners had applied and not to reject the bid submitted by the petitioners in pursuance to IFB: MECON/DRUGS/IFB-12 for procurement of pharmaceuticals under Revised National Tuberculosis Control Programme. It is an admitted position that the petitioners were not considered for these product codes only on the ground of de-registration under order dated 18.09.2001, which was to take effect from 09.08.2001 and which is the subject matter of the other writ petition. As of today, the de-registration is no longer in force. Without going into the issue in this writ petition as to whether the de-registration was valid or invalid, the counsel for the parties have addressed arguments.
2. The learned counsel for the petitioner submitted that the subject matter of the present bid, included several products as indicated in the pre-qualification invitation document which was issued some time in July, 2003. The products are described in paragraph 2 of the invitation for pre-qualification. The Product Codes 1, 2, 3 & 4 included the medicine Pyrazinamide for which the petitioner had been de-registered. There is no dispute with regard to the other products. Clause 3 of this very document clearly indicates that the second stage, i.e., invitations to bid were to be made in November, 2003 and clause 4 indicates that the pre-qualification applications were to be submitted by 16.09.2003. In other words, it was notified that between September and November, 2003, the first phase of pre-qualification would be conducted and finalised. The pre-qualification phase was to be followed by the actual invitation to tender after shortlisting of the pre-qualified suppliers. Clause 3 also indicates that pre-qualification was open to all applicants from eligible source countries as defined in the guidelines mentioned therein. Appended to the said document are the general instructions to applicants (GITA). Clause 8 bears the heading “Purchaser’s Notification and Bidding Process”. Clause 8.1, which is of vital importance for a decision in this case reads as under:-
“Invitation for Bid
8.1 Within the period stated in the PITA from the date for submission of applications, the Purchaser will notify all Applicants in writing of the results of their application and of the names of all prequalified and conditionally prequalified applicants (see Sub-Clause 8.2 below). At the same time, successful applicants will be invited to submit a bid, in the format of the Invitation for Bids annexed to the PITA.”
3. The acronym PITA stands for “Pre-qualification Instructions To Applicants” and clause 8.1 thereof prescribes the time period for submission of applications to be 84 days or less. It is an admitted position that these time periods were not adhered to and no grievance is made on this ground by either party. The learned counsel for the petitioner strongly relied on clause 8.1 of the General Instructions to show that it was incumbent upon the purchaser to notify all the applicants “in writing” of the results of the applications and of the names of all the pre-qualified and conditionally pre-qualified applicants.
4. According to the learned counsel for the respondent, dehors the merits of the petitioner’s case in the other writ petition, the petitioner is not entitled to any indulgence in this petition in view of the fact that although the petitioner had knowledge that they might not be pre-qualified for the product Pyrazinamide in July 2004 itself, the petitioner had, in fact, filed the petition after much delay in November 2004. Therefore, the respondent contends, this delay on the part of the petitioner would disentitle it to any relief. It was also the contention of the learned counsel for the respondent that the first phase of pre-qualification was also over when this petition was filed.
5. Countering these submissions, the learned counsel for the petitioner submitted that the terms of the tender ought to be strictly followed. Clause 8.1 of the General Instructions clearly required the respondent to notify all the participants in writing and that writing was received by the petitioner only after 24.09.2004. The learned counsel for the petitioner drew my attention to the said document at page 25 of the Paper Book which reads as under:-
“Ref: 11.51.09G9.PQ-2/08 Dated: 24.09.2004
To
M/s Nestor Pharmaceuticals Limited
GL-5, Ashoka Estate
24, Barakhamba Road
New Delhi – 110 001
Phone: 23314799, 23320348, 23320379
Fax : 011-23314812
Email: nestorcp@mantraonline.com / nestoris@boi.net.in
Sub: Procurement of Anti-TB Drugs — Pre-qualification.
Ref: Invitation for Pre-qualification application Ref. MECON/RNC/PRMT/RNTCP/2003/08 dated 01.06.2003.
Dear Sir,
With reference to your application in reference to above mentioned Invitation for Pre-qualification, we are pleased to inform you that you have pre-qualified for the Product Code (s) & lot (s) as given in the annexure.
The schedule of sale of Bidding document and submission of Bids shall be intimated to you shortly.
We look forward to your participation in the Bidding for above procurement.
Thanking you,
Yours faithfully,
for MECON LIMITED
–sd–
(A. Bhattacharya)
AGM (Contracts)”
Encl: As above
He particularly drew my attention to the subject matter of the letter which reads– “Procurement of Anti-TB Drugs–Pre-qualification.”—as also to the reference to point out that for the first time, the notification in writing as prescribed under clause 8.1 of the General Instructions was communicated to the petitioner by this letter dated 24.09.2004 and shortly thereafter that he has approached this Court by way of this writ petition. An important argument that has been addressed by the learned counsel for the petitioner is this: He contends that even if it were assumed that the de-registration for a period of three years were valid, it would expire on 08.08.2004 and this letter was issued thereafter implying thereby that when the letter of 24.09.2004 was issued, there was no impediment in the way of the petitioner. The learned counsel for the respondent fairly stated that the only ground on which the petitioner has not been pre-qualified for the product codes 1 to 4 is that there was a de-registration order in force. He, however, qualifies this by saying that at the time when the applications for pre-qualification were invited, the de-registration was in force and it is only subsequently that the de-registration came to an end.
6. The learned counsel for the respondent pointed to the document at page 145 which indicates that even at the stage of submitting the application, a certificate was to be rendered and the last line of the certificate reads as under:-
“The Bidder who have been deregistered or debarred or blacklisted as given in sub-clause No. 4.2 II(h) of PITA (Part B) shall modify this certificate accordingly].
To this, the learned counsel submitted that only a modification is contemplated and not a prohibition.
7. After having considered the arguments addressed on both sides, it does appear that clause 8.1 specifically required the respondent to notify all the applicants in writing as to the result of the pre-qualification applications. This notification came only on 24.09.2004 and on that date, the petitioner’s de-registration had, in any event, worked itself out. Keeping this in mind, it does appear that the petitioners ought to be permitted to participate in the second phase provided there is no other disqualification.
8. Accordingly, the respondents are directed to also consider the petitioner’s bids for product codes 1 to 4 Along with those of other pre-qualified applicants at the time of finalisation of the tender. The writ petition is accordingly disposed of. No orders as to costs. A copy of the order be given dusty to the counsel for the parties.