Writ Petition No. 7641 of 2024 · Bombay High Court
Case Details
2024:BHC-AUG:29028-DB 294(i).WP-7641-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 7641 OF 20241. Ashtavinayak Tours and TravelsAt and Post Manikduandi, Tq. Pathardi,District Ahmednagar,Through its Proprietor,Mahesh s/o Murlidhar Kulkarni,Age : 46 years, Occupation : Business.2. Ishwar TravelsParijat Chowk, Savedi Ahmednagar,District Ahmednagar,Through its Proprietor,Subhash Damodhar Amolik,Age : 53 years, Occupation : Business,R/o : Parijat Chowk, Savedi,Ahmednagar, Dist. Ahmednagar.3. Sayeed Sikandar Sayeed AmarTours and Travels,At and Post Patoda,Taluka Patoda,District Beed.Through its Proprietor,Sayyed Sikandar Sayeed Amar,Age : 38 Years, Occ. Business,R/o Kranti Nagar, in front of Court,Patoda, Tq. Patoda, Dist. Beed.4. Kirti Sushikshit Berojgar SevaSahakari Sanstha, Bari Colony,Chhatrapati Sambhajinagar,Through its Chairman,Imran Isaque Patel,Age : 34 years, Occ. Business,R/o : Beribaug, Harsool,Page 1 of 24 294(i).WP-7641-2024.odtChhatrapati Sambhajinagar,District Chhatrapati Sambhajinagar.5. Mahalaxmi Enterprises, PuneThrough its ProprietorNana Shivaji RandilAge 46 years, Occ. Business,R/o. Sr. No. 26/3, Randil Niwas,Colony No.04, Shitaladevi Mandir,Shitalanagar, Randil Corner,Jambe, Pune.6. M/s Ratnam Tours and TravelsParatwada Tq. Achalpur,District AmravatiThrough its ProprietorSayyad Rafiyoddin Sayyad BahaoddinAge 52 years, Occ. Business,R/o Behinf Shiya Maasjid, Fharmanpura,Achalpur, Tq. Achalpur,Dist. Amravati. …Petitioners Versus 1The State of MaharashtraThrough the Secretary forHealth Department Mantralaya, Mumbai.2The Joint Director of HealthServices (Procurement Cell)Mumbai,1st Floor, Arogya BhavanSaint George Hospital CompoundMumbai 400 001.3The Commissioner of Health Services and Director,National Health Mission, Mumbai1st Floor, Arogya BhavanSaint George Hospital Compound,Mumbai 400 001.Page 2 of 24 294(i).WP-7641-2024.odt4The Deputy Director of Health Service (Transport),8 Kennedy Road,Naidu Hospital Road,Pune – 411001. …RespondentsWITHCIVIL APPLICATION NO. 12298 OF 2024INWRIT PETITION NO. 7641 OF 2024Maharashtra Vikas Group CompanyThrough Proprietor Sharad Balasaheb DeoreAge : 55 years, Occu. : Business,R/o : Flat No.701/702, A-Wing, Rutugandh Apartment,Near Rathi Amarai, Gangapur Road,Nashik. …Applicant1. Ashtavinayak Tours and TravelsAt and Post Manikduandi, Tq. Pathardi,District Ahmednagar,Through its Proprietor,Mahesh s/o Murlidhar Kulkarni,Age : 46 years, Occupation : Business.2. Ishwar TravelsParijat Chowk, Savedi Ahmednagar,District Ahmednagar,Through its Proprietor,Subhash Damodhar Amolik,Age : 53 years, Occupation : Business,R/o : Parijat Chowk, Savedi,Ahmednagar, Dist. Ahmednagar.3. Sayeed Sikandar Sayeed AmarTours and Travels,At and Post Patoda,Taluka Patoda,District Beed.Through its Proprietor,Sayyed Sikandar Sayeed Amar,Page 3 of 24 294(i).WP-7641-2024.odtAge : 38 Years, Occ. Business,R/o Kranti Nagar, in front of Court,Patoda, Tq. Patoda, Dist. Beed.4. Kirti Sushikshit Berojgar SevaSahakari Sanstha, Bari Colony,Chhatrapati Sambhajinagar,Through its Chairman,Imran Isaque Patel,Age : 34 years, Occ. Business,R/o : Beribaug, Harsool,Chhatrapati Sambhajinagar,District Chhatrapati Sambhajinagar.5. Mahalaxmi Enterprises, PuneThrough its ProprietorNana Shivaji RandilAge 46 years, Occ. Business,R/o. Sr. No. 26/3, Randil Niwas,Colony No.04, Shitaladevi Mandir,Shitalanagar, Randil Corner,Jambe, Pune.6. M/s Ratnam Tours and TravelsParatwada Tq. Achalpur,District AmravatiThrough its ProprietorSayyad Rafiyoddin Sayyad BahaoddinAge 52 years, Occ. Business,R/o Behinf Shiya Maasjid, Fharmanpura,Achalpur, Tq. Achalpur,Dist. Amravati.7. The State of MaharashtraThrough the Secretary forHealth Department Mantralaya, Mumbai.8. The Joint Director of HealthServices (Procurement Cell)Mumbai,Page 4 of 24
Legal Reasoning
294(i).WP-7641-2024.odtoverwhelming public interest to justify judicial intervention in matters ofcontract involving the State instrumentalities; the courts should give wayto the opinion of the experts unless the decision is totally arbitrary orunreasonable; the court does not sit like a court of appeal over theappropriate authority; the court must realise that the authority floatingthe tender is the best judge of its requirements and, therefore, thecourt's interference should be minimal. The authority which floats thecontract or tender, and has authored the tender documents is the bestjudge as to how the documents have to be interpreted. If twointerpretations are possible then the interpretation of the author must beaccepted. The courts will only interfere to prevent arbitrariness,irrationality, bias, mala fides or perversity. With this approach in mindwe shall deal with the present case.”35.The further reference is made to Michigan Rubber (India)Limited (supra) and more specifically to Paragraph Nos. 21 to 23.We propose to refer to paragraph no.23 which is as follows :“From the above decisions, the following principles emerge: (a) the basic requirement of Article 14 is fairness in action by the State, andnon-arbitrariness in essence and substance is the heartbeat of fair play. Theseactions are amenable to the judicial review only to the extent that the Statemust act validly for a discernible reason and not whimsically for any ulteriorpurpose. If the State acts within the bounds of reasonableness, it would belegitimate to take into consideration the national priorities; (b) fixation of a value of the tender is entirely within the purview of theexecutive and courts hardly have any role to play in this process except forstriking down such action of the executive as is proved to be arbitrary orunreasonable. If the Government acts in conformity with certain healthystandards and norms such as awarding of contracts by inviting tenders, in thosecircumstances, the interference by Courts is very limited; (c) In the matter of formulating conditions of a tender document and awardinga contract, greater latitude is required to be conceded to the State authoritiesunless the action of tendering authority is found to be malicious and a misuseof its statutory powers, interference by Courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down toensure that the contractor has the capacity and the resources to successfullyexecute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in publicinterest in awarding contract, here again, interference by Court is veryrestrictive since no person can claim fundamental right to carry on business withthe Government.” .We are bound by above principles.Page 20 of 24 294(i).WP-7641-2024.odt36.A useful reference can be made to the view taken by thecoordinate bench in the matter of M/s. D.M. GaikwadConstructions Vs. State of Maharashtra and Others, Writ PetitionNo. 2399/2024. In that matter also the petitioner had challengedthe tender conditions. Following observations are relevant : “11. It would be prerogative of the tendering authority to fix the tenderconditions. It is open for the tendering authority to modify or deviate fromany tender condition which was existing in the earlier tender process. Thetendering authority is the best Judge to select the conditions to suit itspurpose. In writ jurisdiction, the conditions cannot be substituted or modifiedjust on the ground of hardship to any party or inconvenience. It is clearly laiddown in following paragraph of Supreme Court in Airport Authority of IndiaVs. Centre for Aviation Policy, Safety & Research (CAPSR) & Others; A.I.R.2022 Supreme Court 4742.“6. Even otherwise, even on merits also, the High Court has erred in quashingand setting aside the eligibility criteria/tender conditions mentioned in therespective RFPs, while exercising the powers under Article 226 of theConstitution of India. As per the settled position of law, the terms andconditions of the Invitation to Tender are within the domain of thetenderer/tender making authority and are not open to judicial scrutiny, unlessthey are arbitrary, discriminatory or mala fide. As per the settled position oflaw, the terms of the Invitation to Tender are not open to judicial scrutiny, thesame being in the realm of contract. The Government/tenderer/tender makingauthority must have a free hand in setting the terms of the tender.7. While considering the scope and ambit of the High Court under Article 226of the Constitution of India with respect to judicial scrutiny of the eligibilitycriteria/tender conditions, few decisions of this Court are required to bereferred to, which are as under:In the case of Maa Binda Express Carrier (supra), in paragraph 8, this Courtobserved and held as under: “8. The scope of judicial review in matters relating to award of contracts bythe State and its instrumentalities is settled by a long line of decisions of thisCourt. While these decisions clearly recognise that power exercised by theGovernment and its instrumentalities in regard to allotment of contract issubject to judicial review at the instance of an aggrieved party, submission of atender in response to a notice inviting such tenders is no more than making anoffer which the State or its agencies are under no obligation to accept. Thebidders participating in the tender process cannot, therefore, insist that theirtenders should be accepted simply because a given tender is the highest orlowest depending upon whether the contract is for sale of public property orfor execution of works on behalf of the Government. All that participatingbidders are entitled to is a fair, equal and non-discriminatory treatment in thematter of evaluation of their tenders. It is also fairly well settled that awardof a contract is essentially a commercial transaction which must be determinedon the basis of consideration that are relevant to such commercial decision.This implies that terms subject to which tenders are invited are not open tothe judicial scrutiny unless it is found that the same have been tailor-made tobenefit any particular tenderer or class of tenderers. So also, the authorityinviting tenders can enter into negotiations or grant relaxation for bona fideand cogent reasons provided such relaxation is permissible under the termsPage 21 of 24 294(i).WP-7641-2024.odtgoverning the tender process.”In the case of Michigan Rubber (India) Ltd. (supra), after considering the lawon the judicial scrutiny with respect to tender conditions, ultimately it isconcluded in paragraph 23 as under:“23. From the above decisions, the following principles emerge:(a) The basic requirement of Article 14 is fairness in action by the State, andnon-arbitrariness in essence and substance is the heartbeat of fair play. Theseactions are amenable to the judicial review only to the extent that the Statemust act validly for a discernible reason and not whimsically for any ulteriorpurpose. If the State acts within the bounds of reasonableness, it would belegitimate to take into consideration the national priorities;(b) Fixation of a value of the tender is entirely within the purview of theexecutive and the courts hardly have any role to play in this process exceptfor striking down such action of the executive as is proved to be arbitrary orunreasonable. If the Government acts in conformity with certain healthystandards and norms such as awarding of contracts by inviting tenders, in thosecircumstances, the interference by courts is very limited;(c) In the matter of formulating conditions of a tender document and awardinga contract, greater latitude is required to be conceded to the State authoritiesunless the action of the tendering authority is found to be malicious and amisuse of its statutory powers, interference by courts is not warranted;(d) Certain preconditions or qualifications for tenders have to be laid down toensure that the contractor has the capacity and the resources to successfullyexecute the work; and(e) If the State or its instrumentalities act reasonably, fairly and in publicinterest in awarding contract, here again, interference by court is veryrestrictive since no person can claim a fundamental right to carry on businesswith the Government.” In the aforesaid decision, it is further observed that the Governmentand their undertakings must have a free hand in setting terms of the tenderand only if it is arbitrary, discriminatory, mala fide or actuated by bias, thecourts would interfere. It is further observed that the courts cannot interferewith the terms of the tender prescribed by the Government because it feelsthat some other terms in the tender would have been fair, wiser or logical. Similar views have been expressed in the case of Educomp DatamaticsLtd. (supra) and Meerut Development Authority (supra).37.We cannot be oblivious of further guidelines of the SupremeCourt in the matter of N.G. Projects Limited (supra). Following isthe relevant paragraph : “23. In view of the above judgments of this Court, the Writ Court shouldrefrain itself from imposing its decision over the decision of the employer asto whether or not to accept the bid of a tenderer. The Court does not havethe expertise to examine the terms and conditions of the present- day economicactivities of the State and this limitation should be kept in view. Courts shouldbe even more reluctant in interfering with contracts involving technical issuesPage 22 of 24 294(i).WP-7641-2024.odtas there is a requirement of the necessary ex-pertise to adjudicate upon suchissues. The approach of the Court should be not to find fault with magnifyingglass in its hands, rather the Court should examine as to whether the decision-making process is after com- plying with the procedure contemplated by thetender conditions. If the Court finds that there is total arbitrariness or that thetender has been granted in a malafide manner, still the Court should refrainfrom interfering in the grant of tender but instead relegate the parties to seekdamages for the wrongful exclusion rather than to injunct the execution of thecontract. The injunction or interference in the tender leads to additional costson the State and is also against public interest. Therefore, the State and itscitizens suffer twice, firstly by paying escalation costs and secondly, by beingdeprived of the infrastructure for which the present-day Governments areexpected to work.” 38.For the above analysis, we find that petition has no merit.Hence it is dismissed. Rule is discharged. 39.Civil Application is disposed of. [ SHAILESH P. BRAHME ] [ S.G. MEHARE ] JUDGE JUDGE40.After pronouncement of the judgment, learned Counsel forthe petitioners requests for continuation of the interim reliefwhich was in operation from 23.07.2024. 41.Learned AGP would oppose the request. He would submitthat the work order could not be issued because of the interimrelief. 42.We have already expressed our opinion on the merits of thePage 23 of 24
Arguments
294(i).WP-7641-2024.odt1st Floor, Arogya BhavanSaint George Hospital CompoundMumbai 400 001.9. The Commissioner of Health Services and Director,National Health Mission, Mumbai1st Floor, Arogya BhavanSaint George Hospital Compound,Mumbai 400 001.10. The Deputy Director of Health Sciences, Pune. …RespondentsAPPEARANCES : Advocate for the PetitionersSenior Adv. Mr. V. D. Hon i/by Mr. A.V. HonAddl.GP for the Respondents/StateMr. P.S. PatilAdvocate for the Applicant/Intervenor in CASenior Adv. Mr. P.R. Katneshwarkar i/by Mr. L.S. MahajanCORAM:S.G. MEHARE ANDSHAILESH P. BRAHME JJ.Date On Which The Arguments Were Heard :02 DECEMBER 2024Date On Which The Judgment Is Pronounced :10 DECEMBER 2024J U D G M E N T (Per Shailesh P. Brahme, J.) :- .Rule. Rule is made returnable forthwith. With the consentof both the sides, heard finally at the admission stage consideringexigency in the matter. 2.The petitioners are aspiring Contractors who are unable toPage 5 of 24 294(i).WP-7641-2024.odtparticipate in the tender process due to arbitrary, stringent andunconscionable tender conditions have approached this Courtunder Article 226 of the Constitution of India, seeking quashmentof the tender process, bearing no. E-23/DDHS (Tr.) and furtherseeking directions to issue fresh tender process circle wise byomitting Clause No.2.3, 2.6A and 17.3.a and 17.3.b of the tenderconditions. 3.By our interim directions passed on 23.07.2024, therespondents/authorities were restrained from issuing work order.The tender process moved forward and stopped by selectingintervenor of Civil Application No.12298/2024. Intervenor islikely to be affected by the result of the present petition. We alsoheard Applicant-Intervenor alongwith contesting parties.4.The tender process in question pertains to procurement ofthe vehicles for Rashtriya Bal Swasthya Karyakram (RBSK). Theduration of the contract is three years. The respondents/authorities formulated the clusters in the State of Maharashtra.The petitioners are unable to participate in the process and theypropose to challenge Condition Nos. 2.3, 2.6A and 17.a.3 of thetender conditions on various grounds. This is 4th tender processfloated on 28.06.2024. 5.The earlier tender processes were recalled after theindulgence was caused by High Court. It is the case of thepetitioners that due to the interim orders passed by High Court onearlier occasions, respondents/authorities strategically revokedPage 6 of 24 294(i).WP-7641-2024.odtthe processes and floated the fresh one to eliminate thepetitioners. Every time, the petitioners quoted competitive rates. 6.The impugned 4th tender process commenced from28.06.2024. The last date for obtaining tender documents was22.07.2024 which was also final date for submission of the tender.The opening of the technical bid was scheduled on 23.07.2024.Pre-bid meeting was scheduled on 09.07.2024. The tenderconditions were founded on Central Vigilance Commission ofGovernment of India (for short CVC). In all seven bids werereceived and out of them, five were disqualified in the technicalbid. Only two tenderer were in fray for opening of the final bids.The intervenor was declared to be successful bidder. Beingaggrieved by the tender conditions and the tender process,present petition is filed. 7.Learned Senior Counsel Mr. V.D. Hon appearing for thepetitioners submits that Condition Nos. 2.3, 2.6A and 17.a.3 arearbitrary, perverse and tailor-made. Those are not only stringentbut designed to favour the intervenor. The impugned tenderconditions are against Central Vigilance Commission anddiscriminatory. He would further submit that impugned tenderconditions and the entire pending process are against principles oflevel playing field and violative of Article 14 and 19(g) of theConstitution of India. He would further submit that the decision ofclubbing the districts and floating clusters wise tender was toeliminate small players like the petitioners. The impugned tenderconditions are introduced for the first time. Page 7 of 24 294(i).WP-7641-2024.odt8.It is further submitted that the conditions are so designed soas to avoid the competition and to eliminate the competitiveplayers. The rates quoted by the petitioners to the average ofabout Rs.27000/- was very much moderate than the rate of thesuccessful bidders causing great loss to the public exchequer. It isfurther submitted that the pre-bid meeting was surprisinglyconducted on 09.07.2024 before submission of the bids, so as todeprive opportunity to challenge or to seek modification of thestringent conditions. 9.Learned Senior Counsel would further submit that thecircular dated 17.09.2019 has been violated. He submits that nosatisfactory explanation has been tendered in the reply to meetthe challenges of the petitioners. No meetings were held to cancelthe previous tender processes and without soliciting permission ofHigh Court, the earlier process was being aborted and new processwas resorted to. It is further contended that the grounds forcancellation of earlier tender processes have been supplied for thefirst time in the affidavit-in-reply without disclosing them earlierwhich is against law laid down by the Supreme Court in the matterof Mohinder Singh Gill and Another Vs. The Chief ElectionCommissioner, New Delhi and Others, 1977 0 Supreme (SC) 350. 10.Learned Senior Counsel tenders on record the list of therates in various districts proposed by the petitioners. He relies onthe following judgments :i.Reliance Energy Ltd. And Another Vs. Maharashtra State Road, Development Corpn. Ltd. And Others, (2007) 8 SCC 1.Page 8 of 24 294(i).WP-7641-2024.odtii.Haffkine Bio-Pharmaceutical Corporation Limited, A Government of Maharashtra Undertaking Through Manager Vs. Nirlac Chemicals through Its Manager and Others, (2018) 12 SCC 790.iii.Vaishnorani Mahila Bachat Gat Vs. State of Maharashtra andOthers, (2019) 15 SCC 718.11.Per contra, learned AGP appearing for Respondent Nos. 1 to4 repels submission on the basis of affidavit-in-reply dated13.08.2024 and surrejoinder dated 10.11.2024. It is contendedthat impugned tender conditions are challenged by the petitioners’case on the ground of suitability or inconvenience. Those areincorporated to test the financial strength, experience, ability toperform the work of the successful bidder. It is the prerogative andchoice of the tendering authority to select the tender conditions.Learned AGP would advert our attention to paragraph nos. 5 to 7of reply to justify the tender conditions. 12.It is further submitted that the earlier tender processes wererequired to be recalled for the reasons stated in paragraph nos. 5to 7 of the surrejoinder. It is submitted that the comprehensiveand cluster wise tender process was floated in view of the pastexperience for better coordination and smooth execution of thecontract and it was not to target the petitioner. The eligibilitycondition of 50% turnover was incorporated with specificintention. The petitioners did not participate in the process andthey are estopped from challenging the tender notice and theconditions thereof. Our attention is invited to Manual forProcurement for Consultancy and other Services and specificallyPage 9 of 24 294(i).WP-7641-2024.odtClause No.9.15.2. Learned AGP submits that few of the petitionerswere previously selected as contractors and they are stillcontinuing with the work by obtaining the extension of time. Theydo not want any new contractor to take their place and hencepresent petition is filed. Learned AGP refers to paragraph no.11 ofthe surrejoinder to justify tender condition no.17.3.a.13.Learned Senior Counsel Mr. P. R. Katneshwarkar appearingfor intervenor submits that after following due procedure of lawhis client has been selected to be a successful bidder. He wouldsubmit that the impugned conditions are incorporated consideringthe nature of the work and the objects sought to be achieved. It isfurther submitted that parameters laid down in CVC regardingfinancial capacity cannot be made applicable. Those are meant forcivil/electrical work. He would submit that the specific nature ofthe vehicles are required for the work concerned. The tenderingauthority has given specification which cannot be doubted orfaulted. He would further submit that though it is argued bylearned Counsel for the petitioners that there were malafide, forwant of pleadings and better particulars, those are not proved.The tender conditions including impugned conditions areuniformly made applicable to all the participants. The petitionerswere unable to qualify the conditions and therefore they haveapproached this Court challenging entire processes. 14.Learned Senior Counsel relies on the following judgments :a.Balaji Ventures Pvt. Ltd. Vs. Maharashtra State Power Generation Company Ltd. & Anr., 2022 LiveLaw (SC) 295.Page 10 of 24 294(i).WP-7641-2024.odtb.Gautam Mangilal Katariya Vs. The State of Maharashtra andAnother, Writ Petition No.12450/2017.c.Michigan Rubber (India) Limited Vs. State of Karnataka and Others, (2012) 8 SCC 216.15.We have considered rival submissions of the parties and wehave gone through the respective pleadings. 16.There is no controversy as to the facts that the presentpetition pertains to 4th tender process and earlier processes wererecalled. The petitioners are not the participants in the presentprocess. In all five bidders participated including intervenor. Outof them five were disqualified in the technical evaluation and twocould qualified financial bid. The intervenor was found to be asuccessful bidder. The petitioners are challenging tender processas well as tender conditions.17.The following tender conditions are challenged by thepetitioners :“2.3. The annual turnover of the bidder shall be 50% of total Annual Valueof the Contract as mentioned in the following table for three consecutivefinancial year’s i.e. 2020-21, 2021-22 and 2022-23 to qualify per year.”2.6. The Bidder should submit Past Performance as below -A) The bidder should have (in hand or completed) experience of 20% (i.e. 243Vehicles) of a minimum one work order of the below estimated quantity oftotal vehicles in supply of T-permit vehicles to government departments/ semi-government departments (central or state)/Local Self Government/PSU’s withinState of Maharashtra during any of the last three consecutive financial years(2021-22, 2022-23 and 2023-24) in the format given in Annexure-3. Per tripexperience will not be considered for evaluation of experience. The bidder should provide a work order, employer work experience certificate,contract agreement, and one year invoices of the work other period. Page 11 of 24 294(i).WP-7641-2024.odtExperience of Goods Transport/ Livestock Transport (Animals, Birds, Poultry,etc)/ Liquid Transport (Milk, Petroleum Products, etc)will not be considered forevaluation. Only Passenger Transport (Excluding School Bus Transport)Experience shall be considered. Along with that as per following table bidder should have provided minimumnumber of vehicles during any one of the financial Year out of the last threeconsecutive financial years (2021-22, 2022-23 and 2023-24) Bidder shouldprovide work order and employer work experience certification for the same. Sr.No.Name of The WorkNumber of RBSK UNITExperience of providing 20% of the quantity of T-permit vehicles1Supply of Vehicles for RBSK program, in Govt. health facilities in the State ofMaharashtra as per Specifications givenin Bid Document. 1213 Vehicles243 Vehicles 17.a.3. The vehicle registration shall not be older than 5 years & it should bevalid up to the end of contract. Vehicles with BS VI norms will be preferred.Vehicle engine cc not less than 1000 cc and vehicle seating capacity not lesthan 4+1. Vehicle type will be of monocoque body like Car, entry level Sedan,or Compact SUV/MUV/SUV (from only amongst M&M TUV 300/ M&M Bolero/TATA Zest/ TATA Tigor/ TATA Nexon/ TATA Punch/ Maruti Suzuki Dzire/Maruti Suzuki Ertiga/ Maruti Brezza/ Hyundai Venue/ Hyundai Aura/ ToyotaUrban Cruiser/ KIA Sonet) Any other model supplied, should require priorapprval from the Commissioner of Health Services, Mumbai. Such vehiclesprovided should be in good condition considering passenger Safety & Comfort. The bidder should either have his own T-Permit vehicles or have a tie up withthe owners for 1213 T-Permit Vehicles to be supplied. The bidder shouldsubmit list of vehicles with registration number of T-Permit vehicles with nameof owner. If bidder wants to replace any vehicle from this list, priorpermission should be taken from the authority and appropriate decision will betaken. 18.Before appreciating the challenge to the above tenderconditions, it would be necessary to consider the nature of thework. The contract is for the procurement of the vehicles.Rashtriya Bal Swasthya Karyakram (RBSK) is an initiative toprotect and promote child health which seeks to put together asystematic approach to child health screening and earlyintervention. Rashtriya Bal Swasthya Karyakram (RBSK) aims toPage 12 of 24 294(i).WP-7641-2024.odtcover over 2 crores children of 0-18 years of age in Maharshtra.The vehicles are needed for discharging the work in rural, tribaland hilly area of the State of Maharashtra. The work pertains toextending the medical aid to the children. The tendering authorityis bound to ensure financial strength of the bidder, its capacity todischarge the work, the efficiency and sturdiness of the vehiclesand smooth execution of the contract within the time stipulated. 19.The respondents/tendering authorities are the best judges oftheir need. They have prerogative to select the tender conditionsto suit purpose for smooth execution of the contract. They arebound to consider their previous experience for molding theconditions or incorporating new conditions or upgrading earlierconditions. Though few conditions are modified from earlier roundof tender process, that would not be a ground to brand theconditions in question as arbitrary or tailor-made. Therespondents have that liberty. It is not the case of the petitionersthat impugned conditions are violative of any statutoryprovisions, Rules or Regulations. 20.We have considered first impugned condition no.2.3 whichpertains to annual turn over to the extent of 50%. We have gonethrough CVC and its clause no.5A. Its clause 5A speaks aboutfixing of eligibility criteria for civil/electrical work. The samecannot be made applicable to the nature of the work involved inthe present tender process. It provides for minimum turn over tobe 30% of the estimated costs. The impugned condition of annualturn over of 50% cannot be said to be contrary. In this regard, thePage 13 of 24 294(i).WP-7641-2024.odtjustification tendered by the respondent nos. 1 to 4 in paragraphno.5 of the affidavit-in-reply and paragraph no.8 of thesurrejoinder, cannot be said to be unreasonable. 21.The objection to condition no.2.6 is exclusion of school bustransport. According to the learned AGP, school buses would bebigger in size and that those are not required for carrying out thework. A team of five to seven personnel of the health departmentwould be traveling in the vehicle to reach needy children.Considering paragraph no.6 of the reply and paragraph no.9 of therejoinder, we do not find any perversity in the justification.. We donot find that there is any merit in the challenge to conditionno.2.6. 22.The challenge to the last tender condition no.17.a.3 isrepelled by paragraph no.7 of the reply and paragraph nos. 9 to 11of surrejoinder. The tendering authority has to ensure thesturdiness of the vehicles. Considering the nature of the work, thevehicles deployed are expected to be of good conditions and lessolder than five years. The same tender condition also specifies thenature of the vehicles. It is wisdom and the choice of the tenderingauthority. We are not impressed by the submission of learnedSenior Counsel for challenging the last tender condition also. 23.Previously the tenders were district wise. Considering thepast experience, respondents thought it fit to float cluster wise.The objection of the petitioners for consolidating the tenders aremet with by the respondents vide their reply given in paragraphPage 14 of 24 294(i).WP-7641-2024.odtno.07 of the surrejoinder. The present process of cluster wisetender provides single rate for entire State and there is possibilityof securing qualified and efficient bidder which would ensure toachieve the object of the tender. We do not notice any illegality forcluster wise tender. There is no thumb rule or statutory provisionto force the tendering authority to resort to the district wisetender only. 24.In the present tender process, five tenderer participatedwhich is indicative of the fact that the tender conditions wereagreeable to them. The petitioners preferred not to participate inthe process but they are before this Court challenging fewconditions. Just because a particular tender condition is notsuitable or convenient to them, cannot be a ground to vitiateimpugned conditions. The tender conditions are equally madeapplicable to all. The respondents have supplied the reasons forimposing stringent condition which is well within their discretionand wisdom. We do not find that there is violation of principles of‘level playing field’. Neither can we find any violation of article 14and 19(g) of the Constitution of India. 25.Learned Senior Counsel for the petitioners vehementlysubmitted that the conditions are tailor-made and designed toeliminate the petitioners or to favour the successful bidder. We donot find any material to corroborate the submissions. On thecontrary, we cannot be oblivious of the fact that few of thepetitioners are still executing the work under the extension oftime and possibility of dodging the successful bidders, cannot bePage 15 of 24 294(i).WP-7641-2024.odtruled out. After unsuccessful attempts on three previousoccasions, present tender process is on the verge of conclusion.Considering the facts and circumstances, we are not inclined tocause interference. 26.The submission of the petitioners is that they have proposedmoderate rate to the tune of Rs.26,700/- to 27000/-. Just becausethe successful bidder has quoted higher rate, it would not beimperative to quash the proceeding. After under goingcompetition, the rate of successful bidder has been accepted. Thepetitioners who are proposing the rates, chose not to participantsof the present tender process. There would have been some meritin the submission of the petitioners, had they been successful inthe technical evaluation by participating in the tender process. Weare not impressed by this submission. 27.The grievance regarding pre-bid meeting conducted on09.07.2024 has also no substance. All the lapses in the tenderprocess cannot be ground to vitiate the process. Some aberrationshere and there need to be ignored. The scope of the judicial reviewhas already been crystallized by the Supreme Court in the matterof N.G. Projects Limited Vs. Vinod Kumar Jain and Others, (2022)6 SCC 127. The tendering authority needs to be given leverage.The writ Court cannot examine the tender process or its conditionwith magnifying glasses. Our jurisdiction is not meant for findingthe false or lapses which are marginal in nature. 28.Our attention is adverted to circular dated 17.09.2019. It isPage 16 of 24 294(i).WP-7641-2024.odtcontended by the petitioners that the impugned conditions cutacross clause no.3 and therefore they are unsustainable. Thepresent tender process pertains to Health Services Department.The circular in question was issued by Public Works Department.We have our reservation for applying the parameters laid down inthe circular to the present tender process. We find no merit in thesubmission in this regard. 29.It is also submitted by the petitioners that the earlier tenderprocesses were recalled, without assigning reasons and withoutconducting any meetings. Learned AGP has adverted our attentionthat first tender process was revoked in a meeting dated03.05.2023 vide Agenda No.12 by the reasons mentioned therein.Second tender process was revoked in a meeting dated 11.01.2024for the reasons stated therein. Third tender process was revokedby a reason disclosed in online portal. We find that it is prerogativeof the respondents to not to proceed with the tender process ifthere exist good and convincing in grounds. We cannot examinethe validity of the reasons assigned by the respondents forrevoking earlier tender process.30.Learned Counsel for the petitioners relies on the judgment ofthe Supreme Court in the matter of Mohinder Singh Gill andAnother (supra) and adverts our attention to the principles laiddown in paragraph no.8. In the present petition, 4th tender processis under challenge. Few tender conditions are also challenged todemonstrate arbitrariness and violation of level playing field. Therevocation of the earlier three tender processes is not the subjectPage 17 of 24 294(i).WP-7641-2024.odtmatter of inquiry in the present case. Therefore the endeavour ofthe respondents to supply reasons for revoking earlier tenderprocesses for the first time in the High Court, would beinconsequential. Earlier revocation has only nexus to showconduct of the tendering authority. The ratio laid down by theSupreme Court is not applicable. 31.Learned Counsel for the petitioners relied on the judgment inthe matter of Reliance Energy Ltd. And Another (supra) and morespecifically ratio laid down in paragraph no.36. The significance ofthe principles of ‘level playing field’ has been emphasized therein.The said principles undoubtedly has application to the contractualmatters also. The ratio laid down cannot be disputed. However, wehave also recorded that the petitioners failed to prove violation ofdoctrine of ‘level playing field’ or discrimination. The judgment isof no avail to the petitioners. 32.Learned Counsel for the petitioners also refers to thejudgment of Haffkine Bio-Pharmaceutical Corporation Limited, AGovernment of Maharashtra Undertaking Through Manager(supra). We have gone through paragraph nos. 8 to 10. Theviolation of CVC guidelines is held to be sufficient to vitiate theentire tender process. In the present case, the petitioners failed todemonstrate violation of CVC guidelines. The guidelines are citedto challenge tender conditions no.2.3. We have already recordedthat 30% benchmark provided by the guidelines is minimumfinancial capacity. The impugned condition stipulating 50% of thefinancial capacity cannot be said to be violative of the guidelines. Page 18 of 24 294(i).WP-7641-2024.odt33.The reliance is placed on the matter of Vaishnorani MahilaBachat Gat (supra). We have gone through paragraph no.49 of thejudgment. The facts are distinguishable from the case at hand. Inthose facts and circumstances, the Honourable Supreme Courtrecorded that the condition under challenge was to favour the bigplayers and that was not in the tune with spirit of act and ordersof Court. The petitioners in the case at hand, failed to demonstratethat impugned conditions are designed to ensure the big players tobe left in the field. Neither any provision of any statute is pointedout to show that there is violation of purport and objective of theact. 34.Learned Senior Counsel Mr. P.R. Katneshwarkar relies onthe judgment in the matter of Balaji Ventures Pvt. Ltd. (supra). Wehave considered Paragraph Nos. 5.1 and 5.2 of the judgmentwhich according to us applies to the case in hand. Those are asfollows :“5.1 Now so far as the impugned Judgment and order passed by the HighCourt dismissing the writ petitions is concerned, what was challenged beforethe High Court was one of the tender conditions/clauses. The High Court hasspecifically observed and noted the justification for providing clause 1.12(V).The said clause was to be applied to all the tenderers/bidders. It cannot besaid that such clause was a tailor made to suit a particular bidder. It wasapplicable to all. Owner should always have the freedom to provide theeligibility criteria and/or the terms and conditions of the bid unless it is foundto be arbitrary, mala fide and/or tailor made. The bidder/tenderer cannot bepermitted to challenge the bid condition/clause which might not suit himand/or convenient to him. As per the settled proposition of law as such it isan offer to the prospective bidder/tenderer to compete and submit the tenderconsidering the terms and conditions mentioned in the tender document.5.2 In the case of Silppi Constructions Contractors vs. Union of India, (2020)16 SCC 489, it is observed in para 20 as under:“20. The essence of the law laid down in the judgments referred toabove is the exercise of restraint and caution; the need forPage 19 of 24
Decision
294(i).WP-7641-2024.odtmatter and dismissed the writ petition. No work order could beissued because of the interim relief. The work in question has beenstalled. This is not a fit case to continue the interim relief. Therequest is discharged. [ SHAILESH P. BRAHME ] [ S.G. MEHARE ] JUDGE JUDGENAJEEB..Page 24 of 24