ORDER : Leave granted. 2. This appeal arises out of an order dated 20.12.2010 passed by the High Court of Orissa, whereby W.P.(C)No. 18496 of 2009 filed by respondent-Utkal Pharmaceuticals Manufacturers Association has been allowed and Clause 2.1 of Tender Conditions relevant to Tender Call Notice No. SDMU/2009-2010-DMC-11-009 struck down as unconstitutional. 3. Clause 2.1 assailed by the writ petitioner stipulates that principal manufacturing units with an annual turnover of 10 crores for the last three financial years alone shall be eligible for participating in the tender process for supply of drugs to the State of Orissa. The challenge mounted by the writ petitioner primarily proceeded on the ground that the condition aforementioned disqualifying smaller units from empanelment for supply of drugs was arbitrary, discriminatory and contrary to Industrial Policy Resolution 2007 (IPR 2007) as well as the Orissa Micro, Small and Medium Enterprise Development Policy, 2009 declared under notification dated 17.02.2009 published in the Orissa Gazette on 09.03.2009. That contention, it is noteworthy, has found favour with the High Court who has in terms of the impugned judgment and order struck down clause 2.1 of the Tender Conditions insofar as the same makes an annual turnover of 10 crores as the only basis for determining whether a manufacturing unit does or does not qualify for empanelment. The High Court has while doing so held that Clause 2.1 of the tender conditions was contrary to the State Government policies under which small scale industrial units, including drug manufacturing units are entitled to certain specific benefits in terms of payment of earnest money, price preference and price comparison by reference to VAT payable in Orissa. 4. Shri Vikas Singh, learned senior counsel appearing for the appellants contended that the High Court was in error in interfering with Clause 2.1 which stipulated a valid condition of eligibility for empanelment with regard to supply of drugs in the State. He urged that the legal position is settled by a long line of decisions rendered by this Court whereby this Court has declared that tender condition cannot be assailed unless such conditions are found to be wholly arbitrary or discriminatory in any manner. He urged that the legal position is settled by a long line of decisions rendered by this Court whereby this Court has declared that tender condition cannot be assailed unless such conditions are found to be wholly arbitrary or discriminatory in any manner. Inasmuch as the State Government had, according to the learned counsel, formulated a policy based on past experience, there was neither any arbitrariness nor any irregularity in the policy prescribing an annual turnover of 10 crores for 3 years immediately preceding the empanelment, as a condition of eligibility. 5. Shri Arunav Patnaik, learned counsel for the respondent-writ petitioner, per contra, argued that while the High Court has struck down Clause 2.1 only on the ground that it was contrary to the industrial policy of the State the respondent is entitled to support the said judgment on other grounds. It was contended that the policy underlying Clause 2.1 was not supported by any empirical data. It was also urged that there is no material on record before the High Court to suggest that small scale industrial units had defaulted in making the supplies of drugs as and when required to do so to justify their exclusion from empanelment on that ground. The inference that small scale units just because of their size will fail to perform their contractual obligations with the State was according to the learned counsel not correct especially when the material placed on record by the respondent in the form of additional affidavit filed in this Court clearly shows that defaults committed by medium and large scale units in the matter of supply of drugs were equal in number if not more when compared with the defaults committed by SSI units. It was also contended on behalf of the respondent-writ petitioner that reservation of as many as 269 drugs in the medium and large scale sector was much too high a number to be fair and reasonable vis-a-vis small scale units. It was submitted that the small scale units were reduced to supplying just about 20 drugs which was not enough for their survival in a competitive industrial scenario. 6. The High Court has in our opinion failed to address the two aspects of the controversy mentioned above. It was submitted that the small scale units were reduced to supplying just about 20 drugs which was not enough for their survival in a competitive industrial scenario. 6. The High Court has in our opinion failed to address the two aspects of the controversy mentioned above. The High Court has not examined whether the State policy whereby Pharmaceutical units with an annual turnover of 10 crores and above alone are considered eligible for empanelment was supported by any empirical data or study to justify the formulation of such a policy. It is true that the appellant State has in the form of rejoinder affidavit as well as additional affidavit filed in this Court tried to bring on record certain material to justify the formulation of the policy and to support its conclusion that small scale units were not able to supply drugs considered essential whenever called upon to do so, yet the fact remains that the High Court did not have the advantage of looking into that material and examining the question whether the policy was indeed based on credible data supporting the same. So also the question whether the appellant State is justified in reserving as high as 269 drugs for medium and large scale establishments has not been adverted to in the judgment. The fact of the matter is that small scale units are reduced to compete for just about 20 drugs which according to the writ petitioner is not sufficient for their survival. The question whether reservation of 269 drugs for the larger sector and reduction of the number of drugs to 20 in the case of small scale sector constitutes infringement of any right of the small scale units, has not engaged the attention of the High Court. It is evident that the High Court had not been invited by the parties to examine both these aspects while disposing of the writ petition, but since the said aspects are of some significance they need be examined by the High Court. 7. We accordingly, allow this appeal, set aside the impugned judgment and order passed by the High Court and remand the matter back to the High Court with a request to the High Court to re-examine and decide the writ petition afresh, keeping in view the observations made above. 7. We accordingly, allow this appeal, set aside the impugned judgment and order passed by the High Court and remand the matter back to the High Court with a request to the High Court to re-examine and decide the writ petition afresh, keeping in view the observations made above. Needless to say that the High Court shall be free to permit the parties to file additional pleadings and pass appropriate orders as expeditiously as possible. No costs.