JUDGMENT : 1. Heard Sri Prashant Chandra, Senior Advocate appearing on behalf of the petitioner, Sri Savitra Vardhan Singh, learned counsel for opposite party nos. 1 & 2, Sri Shobhit Mohan Shukla, learned counsel for the opposite party no. 4 and learned standing counsel for the State. 2. By this writ petition, a challenge is made to Clause 46(4) of the Tender Specification dated 16.01.2020. 3. It is a case where side opposite floated tender to procure the medicines under Ayush Mission. The tender was floated on 16.01.2020 containing certain terms and conditions. A challenge to Clause 46 (4) of the Tender has been made, as it requires average turnover of 5 crore in last three years with total turnover of Rs. 15 crore in the year 2016-17, 2017-18 & 2018-19. 4. Challenge to the eligibility condition is on requirement of the prior turnover. It is mainly in reference to the Government order dated 10.03.2016 under para 16 of the Public Procurement Policy for Micro and Small Enterprises order of 2012 (in short 'the order of 2012'). It was to relax the condition of prior experience and prior turnover criteria. A reference of Para 4 of the said order has been given to show a direction to the Central Ministries/Departments/Public Sector Undertakings to relax the requirement of prior turnover and prior experience subject to procurement of quality material with technical specifications. 5. It is submitted that the conditions of prior turnover is in ignorance of the Government Order dated 10.03.2016 under para 16 of the order of 2012. Para 16 permits Government to remove the difficulties for procurement of goods and services from Micro and Small Enterprises. The respondents should not have kept the requirement of prior turnover, as it otherwise reduces competitions. 6. Coming to the facts of this case, it is submitted that by virtue of Clause 46(4) of the Tender, there would be no competition as only one enterprise would be eligible to get contract. It is for the reason that after the tender notice, only three enterprises participated therein out of which one is petitioner not confirming to the requirement of minimum turnover criteria. Out of two others, one Kerala State Homoeopathic Cooperative Pharmacy would also be eliminated having been blacklisted. It would leave only one Company namely M/s. Goa Antibiotics and Pharmaceuticals Limited. It is for the reason that after the tender notice, only three enterprises participated therein out of which one is petitioner not confirming to the requirement of minimum turnover criteria. Out of two others, one Kerala State Homoeopathic Cooperative Pharmacy would also be eliminated having been blacklisted. It would leave only one Company namely M/s. Goa Antibiotics and Pharmaceuticals Limited. The aforesaid is not only contrary to the Government Order dated 10.03.2016 but to eliminate competition at the cost of public exchequer. 7. In view of above, a challenge to tender condition has been made. No purpose is sought to be achieved by putting condition of prior turnover in procurement of drugs under the Ayush Mission. A reference of Ayush Mission has also been given. It has been introduced by the Government of India to purchase Drugs. The Scheme introduced by the Government of India does not provide a condition of prior turnover for procurement of the drugs. Accordingly, the procurement agency could not have put a condition de hors the Scheme of the Government of India. The entire funding is by the Central Government thus the State Ayush Society Mission had no authority to act contrary to the Scheme. 8. The complete framework for the implementation of Ayush Mission has been given. The procurement of drugs has to be made from M/s. IMPC or a Public Sector Undertaking or pharmacies under the State or the cooperative Societies manufacturing quality drugs. Emphasis of the procurement agency should have been on the purchase of quality drugs than prior turnover eliminating competition. 9. Reference of the Government Procurement Policy has also been given. Therein also, no direction exist for a condition of prior minimum turnover. The condition laid down by the opposite party no. 4 is thus arbitrary and otherwise suffers from mala fide, as it intend to favour only one party leaving others. In the light of aforesaid, prayer is to set aside clause 46(4) of the Tender with a direction to the opposite parties to consider the bid given by the petitioner and if it is competitive, allow the supply of the drugs. 10. To substantiate the argument, learned counsel for the petitioner has made a reference of the judgment of the Apex Court in the case of Maa Binda Express Carrier and Another vs. North-East Frontier Railway and Others, (2014) 3 SCC 760 . 10. To substantiate the argument, learned counsel for the petitioner has made a reference of the judgment of the Apex Court in the case of Maa Binda Express Carrier and Another vs. North-East Frontier Railway and Others, (2014) 3 SCC 760 . A specific reference of para 8 & 11 of the aforesaid judgment has been given. A further reference of the judgment of the Apex Court in the case of Michigan Rubber (India) Limited vs. State of Karnataka and Others, (2012) 8 SCC 216 has been given. Para 11, 12, 13 & 24 has been referred. 11. Learned counsel appearing for side opposite has contested the writ petition. It is submitted that the condition of prior turnover under Clause 46(4) has not been introduced for the first time but it was existing in the previous Tender also. The condition aforesaid was challenged earlier also. The writ petition was dismissed as rendered infructuous. The issue has no merit as condition of minimum turnover is to ensure supply of Drugs worth Rs. 15 crore (approx.) in this year. 12. To clarify the aforesaid, learned counsel has given an illustration. It is submitted that if the minimum turnover criteria is eliminated, the bids would be given without showing the capacity to supply the drugs. An establishment having a turnover of Rs. 50 lakh in a year may remain successful in the bid and if the purchase order is issued thereupon, the supply of Drugs worth Rs. 15 crore in a year would not be possible. The criteria of minimum turnover is to ensure supply of the volume of drugs for which the Tender is floated. It is not to eliminate the petitioner or to favour someone. 13. The bidders in this case are non else but the Public Sector Undertakings only and not a Private Enterprise. The opposite parties cannot have a reason to eliminate any of the Public Sector Undertaking because supply under the Ayush Mission has been emphasized through IMPC, Public Sector Undertaking or Pharmacies under the State Government and the Co-operative Societies manufacturing drugs in their own Unit having Good Manufacturing Practices (GMP) compliances. The participation pursuant to Tender is of non else but of Public Sector Undertakings which include even the petitioner. Thus the allegation of elimination with a view to favour someone is for sake of it. 14. The participation pursuant to Tender is of non else but of Public Sector Undertakings which include even the petitioner. Thus the allegation of elimination with a view to favour someone is for sake of it. 14. It is further stated that jurisdiction of this Court to review conditions of the Tender is limited in view of the judgment of the Apex Court in the case of Tata Cellular vs. Union of India, 1994 (6) SCC 651 . The court cannot sit as court of appeal on the terms and conditions of the Tender. It cannot even review terms and conditions of Tender. The interference is limited to the cases of mala fide or arbitrariness. Aforesaid grounds are not attracted in this case. The prayer is accordingly to dismiss the writ petition. 15. We have considered the rival submission of the parties and perused the record. 16. By this writ petition, a challenge is made to clause 46(4) of the Tender. For ready reference, the aforesaid clause is quoted hereunder:- ^^foxr rhu o”kksZ ¼2016&17] 2017&18] 2018&19½ esa gksE;ksiSfFkd vkS"kf/k;ksa fuekZrk QeksZa dk vkSLkru VuZ vksoj :0 5 djksM+ U;wure gks] vFkkZr xr rhu o"kksZa dk LkQy VuZ vksoj :0 15 djksM+ gksA** 17. The clause quoted above requires minimum average turnover of Rs. 5 crore in three years with gross turnover of Rs. 15 crore in the year i.e. 2016-17, 201718, 2018-19. The condition aforesaid has been kept for procurement of drugs worth Rs. 15 crore in this year. The challenge to Clause 46(4) of the Tender has been made firstly in reference to the Government order dated 10.03.2016, which has been issued under para 16 of the order of 2012. Para 4 of the order is quoted below for ready reference:- "(4) In exercise of Para 16 of Public Procurement Policy for Micro and Small Enterprises Order 2012, it is clarified that all Central Ministries/Departments/Central Public Sector Undertakings may relax condition of prior turnover and prior experience with respect to Micro and Small Enterprises in all public procurements subject to meeting of quality and technical specifications." 18. The para quoted above gives discretion to the Central Ministries/Departments/Central Public Sector Undertakings to relax the condition of prior turnover and prior experience. It is for the Micro and Small Enterprises in all the public procurements. The para quoted above gives discretion to the Central Ministries/Departments/Central Public Sector Undertakings to relax the condition of prior turnover and prior experience. It is for the Micro and Small Enterprises in all the public procurements. It is not in dispute that the procurement of drugs in this case is under a Scheme floated by the Government of India namely National Ayush Mission. It is even funded by the Central Government, thus it is for public procurement. 19. In the light of the aforesaid, the order of 2012 and the Government order dated 10.03.2016 would apply. The question would however be as to whether the order dated 10.03.2016 gives a mandate to relax the condition of prior turnover and prior experience in all the public procurement. We find use of the word 'may' in para 4 and thereby a discretion has been given in public procurement to relax the condition of prior turnover. 20. It is urged by the learned counsel for the petitioner to read the word 'may' as 'shall' in the facts and circumstances of this case. 21. We have considered the aforesaid submission but unable to accept it. The word 'may' cannot be read as 'shall' as the order dated 10.03.2016 was not issued to restrain condition of minimum turnover criteria in all circumstances. The order dated 10.03.2016 was issued in pursuance to Para 16 of the order of 2012 which is quoted hereinbelow for ready reference:- "16. Removal of difficulty. % Any difficulties experienced during the course of implementation of the above policy shall be clarified by Ministry of Micro, Small and Medium Enterprises through suitable Press releases which would be kept on the public domain." 22. Para 16 of the order of 2012 is to take care of the difficulties. The procurement from Micro and Small Enterprises with condition of prior experience or prior turnover criteria has not been taken away in all the cases but a liberty is given to eliminate the condition which can be in an appropriate case. It can be where procurement may not have nexus with the turnover. 23. In the light of aforesaid, challenge to clause 46(4) of the Tender cannot be accepted in reference to the order dated 10.03.2016. 24. The other issue raised by learned counsel for the petitioner is in reference to the procurement under the Ayush Mission. It can be where procurement may not have nexus with the turnover. 23. In the light of aforesaid, challenge to clause 46(4) of the Tender cannot be accepted in reference to the order dated 10.03.2016. 24. The other issue raised by learned counsel for the petitioner is in reference to the procurement under the Ayush Mission. A reference of the Scheme introduced by the Government of India has been given. It is to emphasize that a condition does not exist for prior turnover criteria in procurement of drugs under the said Mission. 25. The contest to the argument has been made by learned standing counsel appearing for opposite party no. 4. He submits that the Scheme does not lay down terms and conditions of the Tender. It only gives guidelines as to how the Scheme is to be implemented. In the light of the aforesaid, procurement under the Ayush Mission is made after formulating terms and conditions of the agreement. It is not only to ensure procurement of drugs but the quality to benefit the public. 26. We find that the Manual for Procurement of Drugs under Ayush Mission does not provide terms and conditions of the Tender. It has given general guidelines of the Scheme. The terms and conditions of Tender is to be formulated by the procurement agency. Accordingly, challenge to clause 46 (4) of the Tender cannot be accepted in reference to the Manual for Procurement of Drugs under Ayush Mission. 27. It cannot be accepted even in the light of the Manual for Procurement of Goods 2017. The Government of India, Ministry of Finance, Department of Expenditure has issued the Manual for Procurement of Goods. It has a reference for procurement of the goods from micro and small enterprises. The clause in regard to procurement of material for small and micro enterprises is similar to what exists in the order dated 10.03.2016. The word 'may' has been used therein also. Condition of prior turnover and prior experience has been left at the discretion of the Procurement Agency. Clause 1.10.4 (ix) is quoted hereunder for ready reference:- "(ix) Ministry of MSME have clarified that all Central Ministries/Departments/Central Public Sector Undertakings may relax condition of prior turnover and prior experience with respect to Micro and Small Enterprises in all public procurements subject to meeting of quality and technical specifications." 28. Clause 1.10.4 (ix) is quoted hereunder for ready reference:- "(ix) Ministry of MSME have clarified that all Central Ministries/Departments/Central Public Sector Undertakings may relax condition of prior turnover and prior experience with respect to Micro and Small Enterprises in all public procurements subject to meeting of quality and technical specifications." 28. If the comparison of the language of Clause quoted above is made with the order dated 10.03.2016, it would show use of same language, as exist in the order dated 10.03.2016 thus, the policy of 2017 does not incorporate a different condition than what exist under the Government order dated 10.03.2016. The word 'may' has been used even in the policy of 2017. 29. Now we may refer to the factual aspect raised by learned counsel for the petitioner. An allegation to eliminate competition has been made because pursuant to the tender, only three bids have been received. It is stated that the petitioner may be ousted on account of condition of prior turnover and another Public Sector Undertaking i.e. Kerala State Homoeopathic Co-operative Pharmacy having been blacklisted would also be ousted leaving only one Public Sector Undertaking. The condition is otherwise said to be tailor made. 30. We find that the condition of minimum turnover was incorporated in the Tender without knowing turnover of different Public Sector Undertakings and Cooperative societies so as to eliminate one or other undertaking. It is not a case where a favour is extended with pre-conceived notion to benefit any Private Enterprise. The bid pursuant to the Tender has been given only by Public Sector Enterprises of different States. 31. It is otherwise a fact that the clause 46(4) of the Tender cannot be said to be tailor made. It is looking to the volume of the drugs to be procured in a year. It is of Rs. 15 crore (approx) and for that if the side opposite has insisted for prior turnover of minimum 5 crore in average with 15 crore in last three years, it cannot be said to be a tailor made condition. The capacity of the bidder is required to be taken into consideration to ensure supply, thereby we cannot accept the submission of learned counsel for the petitioner for challenge to the Clause 46(4) on the aforesaid ground. If a bidder is having turnover of Rs. The capacity of the bidder is required to be taken into consideration to ensure supply, thereby we cannot accept the submission of learned counsel for the petitioner for challenge to the Clause 46(4) on the aforesaid ground. If a bidder is having turnover of Rs. 50 lakh or even one crore in a year, whether he would be in a capacity to supply drugs worth Rs. 15 crore on remaining successful in the Tender. All these issues remain in the realm of the procurement agencies and not open for review by the Court exercising jurisdiction under Article 226 of the Constitution of India. 32. The allegation of mala fide is also looked into. It is always easy to make allegation of mala fide then to prove it. The condition of prior turnover was inserted without having knowledge of the bidders thus question of mala fide does not arise. It may be unfortunate that out of many eligible Public Sector Enterprises, only three have participated in the Tender but merely for that reason, it cannot be said that conditions of Tender suffers from mala fide rather we find the condition to be reasonable. It is to ensure supply of drugs worth Rs. 15 crore. No reason of mala fide has been given by the petitioner other than eliminating the competitors. No bias against the petitioner has been shown. 33. In the light of the facts given above, we are unable to accept the allegation of mala fide so as to cause interference in Clause 16(4) of the Tender. 34. We may now refer to the judgment cited by learned counsel for the petitioner. It is in the case of Maa Binda Express Carrier (supra). The Apex Court has taken note of the limited jurisdiction of the Court in the contractual matters and even in the condition of Tender. Para 8 & 11 of the said judgment have been referred by learned counsel for the petitioner and are quoted hereunder for ready reference:- "8. The scope of judicial review in matters relating to award of contract by the State and its instrumentalities is settled by a long line of decisions of this Court. Para 8 & 11 of the said judgment have been referred by learned counsel for the petitioner and are quoted hereunder for ready reference:- "8. The scope of judicial review in matters relating to award of contract by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognize that power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. The bidders participating in the tender process cannot, therefore, insist that their tenders should be accepted simply because a given tender is the highest or lowest depending upon whether the contract is for sale of public property or for execution of works on behalf of the Government. All that participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. It is also fairly well-settled that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision. This implies that terms subject to which tenders are invited are not open to the judicial scrutiny unless it is found that the same have been tailor made to benefit any particular tenderer or class of tenderers. So also the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process. 11. In Michigan Rubber (India) Ltd. v. State of Karnataka and Ors. (2012) 8 SCC 216 the legal position on the subject was summed up after a comprehensive review and principles of law applicable to the process for judicial review identified in the following words: “19. From the above decisions, the following principles emerge: (a) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government. 20. Therefore, a Court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"; and (ii) Whether the public interest is affected. If the answers to the above questions are in negative, then there should be no interference under Article 226.” (emphasis supplied) 35. Para 8 makes it clear that condition of Tender is not open to judicial scrutiny unless it is found to be tailor made. If the answers to the above questions are in negative, then there should be no interference under Article 226.” (emphasis supplied) 35. Para 8 makes it clear that condition of Tender is not open to judicial scrutiny unless it is found to be tailor made. At the end of para 11, a reference of the earlier judgment has been given to show as to when interference in the Tender condition can be made. It is when it suffers from mala fide or intend to favour someone. The case in hand is not covered by the aforesaid judgment. The condition under challenge is neither suffering from mala fide nor it is tailor made to favour someone. 36. Another judgment cited by learned counsel for the petitioner is in the case of Michigan Rubber (India) Ltd. (supra). Para 11, 12, 13 & 24 have been referred and are quoted hereunder for ready reference:- "11. In Tata Cellular vs. Union of India, (1994) 6 SCC 651 , this Court emphasised the need to find a right balance between administrative discretion to decide the matters on the one hand, and the need to remedy any unfairness on the other, and observed: “94. (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” 12. In Raunaq International Ltd. vs. I.V.R. Construction Ltd. & Ors. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” 12. In Raunaq International Ltd. vs. I.V.R. Construction Ltd. & Ors. (1999) 1 SCC 492 , this Court reiterated the principle governing the process of judicial review and held that the writ court would not be justified in interfering with commercial transactions in which the State is one of the parties except where there is substantial public interest involved and in cases where the transaction is mala fide. 13. In Union of India & Anr. vs. International Trading Co. & Anr., (2003) 5 SCC 437 , this Court, in similar circumstances, held as under: “15. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness. 16. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. 16. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary. 22. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed. 23. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. 24. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”; (ii) Whether public interest is affected." 37. In para 11 of the judgment quoted above, the Apex Court has made a reference in the case of Tata Cellular vs. Union of India, (1994) 6 SCC 651 . In para 11 of the judgment quoted above, the Apex Court has made a reference in the case of Tata Cellular vs. Union of India, (1994) 6 SCC 651 . In the said case, certain restrictions have been imposed on the Courts to cause interference in the conditions of Tender. 38. A reference of the judgment in the case of Union of India (UOI) And Anr. vs International Trading Co., 2003 (5) SCC 437 would also be relevant on the facts of this case. It is not a case where there is overnight change in the condition of the Tender rather in the last year also, the condition of minimum turnover was existing though the prior turnover required was of Rs. 9 crore. The minimum turnover criteria depend on the volume of procurement and other requirements. Interference therein be made if mala fide exists to favour someone. We have already expressed our opinion on the aforesaid. A case of mala fide or favour is not made out. 39. In view of above, writ petition fails and is dismissed.