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CASE NO.: Appeal (civil)  1512 of 2008

PETITIONER: M.P.Ayyappankutty

RESPONDENT: The State of Kerala & Ors

DATE OF JUDGMENT: 22/02/2008

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO 1512 / 2008 (arising out of S.L.P.(C) No. 22587/2004)

HARJIT SINGH BEDI,J.

1.      Special leave granted.

2.      The 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.   The 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

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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. physical test. 3.      We 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.   There 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.   The   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.