ORDER : This Writ Petition is filed under Article 226 of Constitution of India by the sole petitioner Attal Plastics for issue of Writ of Mandamus declaring the action of the respondents in issuing tender Notification No.SS-16021/3/2021-CMO SEC-SSA/7/2021-22, dated 15.03.2021 for supply of school bags to all students studying class-I to X in Government/MPP/ZPP/Municipal/Residential schools/Ashram schools/Aided schools, Model schools/KGBVs of Education and Welfare Departments, etc. in the State of Andhra Pradesh during the academic year 2021-22 by incorporating unreasonable eligibility criteria conditions with respect to average annual turnover and furnishing of solvency certificate as illegal, arbitrary, unreasonable, not transparent and violation of Article 14 of the Constitution of India and consequently directed the respondents to issue fresh tender Notification with respect to aforesaid work by setting aside the tender Notification No.SS-16021/3/2021-CMO SEC-SSA/7/2021-22, dated 15.03.2021. 2. The case of the petitioner in nutshell is that the petitioner is carrying on business in plastic including school bags and other bags, in pursuance of the Notification issued by the 2nd respondent herein i.e., E-procurement tender notification (Reverse tendering process) in Notification No.SS-16021/3/2021-CMO SEC-SSA/1/2021-22, dated 21.01.2021 for supply of school bags to all students studying class I to X in Government/MPP/ZPP/Municipal/Residential schools/Ashram schools/Aided schools, Model schools/KGBVs of Education and Welfare Departments, etc. in the State of Andhra Pradesh during the academic year 2021-22. 3. As per the tender Notification, the successful bidder has to supply 43,88,687 number of school bags to 4034 destination points/school complexes as specified by the tender inviting committee at the time of allotment of tender. As per tender Notification, bid publishing date was 22.01.2021, uploading of corrigendum/addendum was 03.02.2021, bid closing date was 06.02.2021, pre-qualification bid opening was 06.02.2021, technical bid evaluation was on 09.02.2021, opening of financial bid was 10.02.2021 and reverse auctioning was on 10.02.2021. As per the Notification, one of the eligible criteria is the annual turnover of the firm during the last three years i.e., 2017-18, 2018-19 and 2019-20 should be more than 30 crores. The other eligibility criteria, is that the firm should furnish latest solvency certificate. The respondent authorities issued a corrigendum-I dated 08.02.2021 amending the existing description in the tender document. The other eligibility criteria, is that the firm should furnish latest solvency certificate. The respondent authorities issued a corrigendum-I dated 08.02.2021 amending the existing description in the tender document. One of the amendment is the eligibility criteria mentioned in Section II Eligibility Criteria 1.1(h) i.e., ‘the firm should furnish latest solvency certificate’ was amended as ‘the firm should furnish latest solvency certificate for a minimum value of 50% of the Estimated Contract Value ( for short ‘ECV’)’. After issue of the corrigendum, respondent authorities conducted a pre-bid meeting on 09.03.2021. In the pre-bid meeting, the petitioner informed the respondents that the corrigendum issued amending the eligibility criteria with respect to furnishing of solvency certificate is two days prior to bid closing date is not reasonable and incorporating the condition that bidder should complete the supply of school bags to any government organization/department/PSU for the value of not less than 50% to 80% of the ECV under a single contract in any one year of the last five years will ensure fair bidding opportunity. The petitioner also communicated the objection as to the furnishing of solvency certificate for a value of 50% of the ECV and other objections through e-mail on 10.03.2021. Without considering any of the objections, the respondent authorities issued another tender Notification SS-16021/3/2021-CMO SEC-SSA/7/2021-22, dated 15.03.2021 for supply of school bags to all students studying class I to X in Government/MPP/ZPP/ Municipal/ Residential schools/Ashram schools/Aided schools/Model schools/KGBVs of Education and welfare Departments, etc. in the State of Andhra Pradesh during the academic year 2021-22 by cancelling the earlier tender Notification. 4. As per the conditions of the second tender Notification, dated 15.03.2021, the minimum eligibility criteria for participation in the bids with respect to average annual turnover of the firm during last three years (2017-18, 2018-19 & 2019-20) should be more than 100 crores and the firm should furnish latest solvency certificate for a minimum value of Rs.39 crores (50% of the ECV) issued by scheduled bank. The action of the respondents in incorporating these two conditions i.e., with respect to average annual turnover of the firm and furnishing latest solvency certificate is illegal, arbitrary, not transparent and violation of Article 14 of the Constitution of India. 5. The action of the respondents in incorporating these two conditions i.e., with respect to average annual turnover of the firm and furnishing latest solvency certificate is illegal, arbitrary, not transparent and violation of Article 14 of the Constitution of India. 5. In the first tender notification, dated 21.02.2021 with regard to procurement and supply of school bags, the eligibility criteria with respect to annual turnover is more than 30 crores, now it is 100 crores in the second Notification and also increased the value of the solvency, which is contrary to the earlier Notification and on account of such onerous conditions, the petitioner was unable to participate in the tender process. 6. The Government of Andhra Pradesh constituted a cabinet sub-committee as per G.O.No.938 TR&B [R.1] Department, dated. 29.11.2000 to examine various issues relating to revision and streamlining of tender process and after considering the recommendations of the said sub-committee, the Government issued G.O.Ms.No.94 Irrigation and CAD (PW-COD) Department, dated 01.07.2003 (for short ‘G.O.Ms.No.94’), issued certain guidelines for streamlining of tender process. As per clause 10 of Annexure-I enclosed to the said G.O., to qualify for award of contract, each bidder in its name should have, during last five years, satisfactorily completed as a prime contractor, similar works of value not less than 50% of the ECV. But the respondent authorities, only to eliminate most of the bidders and to extend undue favour to some of the bidders, imposed unreasonable conditions in the minimum eligibility criteria. The petitioner earlier satisfactorily executed a contract with Tamil Nadu Text book and Educational Services Corporation by supplying 54,61,268 number of school bags in 527 locations in Tamiln Nadu during the year 2017-18 and the total value of the purchase order is Rs.75,22,50,226/-But due to the above eligibility criteria fixed in the second Notification, dated 15.03.2021, the petitioner was not in a position to participate in the tender process and those two conditions are in violation of G.O.Ms.No.94. 7. The procurement and supply of school bags is a goods contract unlike construction contract. After inspecting the material that is going to be supplied in the pre-bid meeting and after satisfying with the material only, the work order will be given to the bidders. 7. The procurement and supply of school bags is a goods contract unlike construction contract. After inspecting the material that is going to be supplied in the pre-bid meeting and after satisfying with the material only, the work order will be given to the bidders. After production of delivery reports and stock certificates along with the invoices, 80% of the contract amount will be paid, 10% of the amount will be paid after receiving confirmation from the field functionaries and remaining 10% will be paid after receiving positive test reports from the respective test agencies. Even as per G.O.Ms.No.94, the bidders should satisfactorily completed as a prime contractor, similar works of value not less than 50% of the estimated value of the contract in any one year. Even though the Estimated Contract Value of the present case is only 78 crores, the respondent authorities incorporated conditions in the eligibility criteria that average annual turnover of the firm during the last three years should be more than 100 crores and the firm should furnish latest solvency certificate for a minimum value of 39 crores (50% of the ECV) issued by the scheduled bank are only tailor made conditions to fit only some of the bidders and to avoid participation of more bidders. Therefore, the tender Notification, dated 15.03.2021 prescribed certain eligibility criteria is illegal, arbitrary, in violation of G.O.Ms.No.94 and in violation of Article 14 of the Constitution of India and requested to issue a direction to the respondents to issue fresh tender Notification with respect to aforesaid work by setting aside the tender Notification No.SS-16021/3/2021-CMO SEC-SSA/7/2021-22, dated 15.03.2021. 8. The respondents did not file counter and argued the petitioner raising certain objections as to the maintainability of the Writ Petition, since the petitioner did not participate in the tender process, relying on certain judgments. 9. Sri C. Subodh, learned counsel for the petitioner mainly contended that the petitioner was disabled to participate in the tender process on account of onerous conditions imposed in the second tender Notification and it is contrary to G.O.Ms.No.94. Therefore, mere failure to participate in the tender process by itself is not a ground to dismiss the Writ petition, since the onerous conditions imposed in the second tender Notification, dated 15.03.2021 disabled the petitioner to participate in the tender process. Therefore, mere failure to participate in the tender process by itself is not a ground to dismiss the Writ petition, since the onerous conditions imposed in the second tender Notification, dated 15.03.2021 disabled the petitioner to participate in the tender process. When imposition of such onerous conditions are under challenge, as they are violative of G.O.Ms.No.94, failure to participate in the tender process itself is not a ground to dismiss the Writ Petition and requested to set aside the impugned Notification, dated 15.03.2021. 10. The learned Government Pleader, while challenging the very maintainability of the Writ Petition, placed on record the judgments of the National Highways Authority of India v. Gwalior-Jhansi Expressway Limited, (2018) 18 SCC 243, VHCPL-ADCC Pingalai Infrastructure Pvt. Limited & Another v. Union of India & Others, (2010) 171 DLT 370 (DB) and the judgment delivered by the Division Bench of Calcutta High Court in Dairy and Poultry Development Corporation Limited v. Smt.Jayanti Bose & Others. On the basis of the principle laid down in all the three judgments, the learned Government Pleader contended that the petitioner is not entitled to claim the relief in the Writ Petition and requested to dismiss the same. 11. Considering the rival contentions, the points that arose for consideration are: 1) Whether the petitioner is entitled to claim any relief in the present Writ petition, as he did not participate in the tender process? If so, whether the Writ Petition is liable to be dismissed? (2) Whether the conditions imposed in the impugned tender Notification No.SS-16021/3/2021-CMO SEC-SSA/7/2021-22, dated 15.03.2021 fixing pre-qualification of 100 Crores turnover for the years 2017-18, 2018-19 & 2019-20 and furnishing of solvency for 50% of ECV issued by the scheduled bank are contrary to G.O.Ms.No.94 and violation of Article 14 of the Constitution of India? If so, whether the impugned Notification is liable to be set aside? POINT NO.1:- 12. If so, whether the impugned Notification is liable to be set aside? POINT NO.1:- 12. The first and foremost contention raised by the learned Government Pleader is that the Writ petition is not maintainable, as the petitioner did not participate in the tender process, whereas Sri C.Subodh, learned counsel for the petitioner contended that on account of imposition of onerous conditions referred supra, the petitioner could not participate in the tender process and therefore, failure to participate in the tender process is not a ground to dismiss the Writ Petition, since the petitioner is challenging imposition of such onerous conditions in the second tender Notification is contrary to G.O.Ms.No.94. 13. In support of her contention, the learned Government Pleader placed reliance on the Judgment of National Highways Authority of India v. Gwalior-Jhansi Expressway Limited (1st cited), wherein the Full Bench of the Hon’ble Apex Court held that: “the plain working of the eligibility clause in the tender documents (for balance work) and the incidental stipulations made, it is explicit that the respondent was required to participate in the tender process by submitting its sealed bid (technical and financial). Further, having failed to participate in the tender process for the balance work and, more so, despite the express terms in the tender documents, validity whereof had not been challenged, the respondent could not be heard to contend that it had acquired any right whatsoever to receive the balance work. Further there was nothing in the entire application to even remotely suggest that the respondent had prayed that it be exempted from participating in the proposed tender process for the balance work as such, and could yet exercise ROFR before the letter of intent was to be issued to the lowest bidder. Thus, in the absence of such express exemption, the respondent was obliged to comply with the terms and conditions of the tender documents publicly notified by the appellant. Therefore, having failed to participate in the bidding process for the balance work in consonance with such notified terms and conditions, the respondent lost the opportunity granted to match the lowest bid or to exercise ROFR. The Court further held that any other view would fall foul of the fundamental policy of the Indian law and could not be countenanced.” 14. The Court further held that any other view would fall foul of the fundamental policy of the Indian law and could not be countenanced.” 14. In the facts of the said judgment, the respondent without challenging the terms and conditions of the tender Notification, challenged the respondent’s action in failure to entrust the balance of work, though did not participate in the tender process. But the Court held that when the validity of the terms and conditions of the Notification had not been challenged, the respondent could not be heard to contend that he had acquired any right whatsoever and rejected the contention of the contractor therein. But in the present case, the petitioner challenged the onerous conditions referred supra regarding turnover of 100 crores and production of solvency certificate for 50% of ECV in the second Notification which is impugned in the present Writ Petition. When the petitioner is questioning the very validity of those two conditions, the claim of the petitioner cannot be thrown out on the ground that he did not participate in the tender process at the threshold. The principle laid down in the above judgment has no direct application to the present facts of the case for the simple reasons that the petitioner challenged the incorporation of two onerous conditions in the present Writ petition. Therefore, the principle has no application and on that ground, the claim of the petitioner cannot be thrown out at the threshold. 15. The learned Government Pleader placed reliance on another Judgment of VHCPL-ADCC Pingalai Infrastructure Pvt Ltd. & Another Vs Union of India & Others (2nd cited), the Division Bench of the Delhi High Court also took similar view. 16. In an unreported Judgment of the Calcutta High Court in Dairy and Poultry Development Corporation Limited v. Smt.Jayanti Bose & Others, the facts of the case are that an e-tender was floated by the appellant on 17th June, 2014 as the existing contract with the writ petitioner was due to expire in July, 2014. Three bids including that of the writ petitioner were received under the said tender. The said first tender was withdrawn/cancelled by the appellant as minimum number of bids expected, were not received. On 2nd July, 2014, the appellant again floated another tender for the same work. The bidders of the second tender were similar to the first e-tender. Three bids including that of the writ petitioner were received under the said tender. The said first tender was withdrawn/cancelled by the appellant as minimum number of bids expected, were not received. On 2nd July, 2014, the appellant again floated another tender for the same work. The bidders of the second tender were similar to the first e-tender. However, as the three bids received were 234.45% higher than the approved rate for service charge, the said tender process was also abandoned, cancelled and withdrawn. On the 7th of August, 2014, (third tender) the appellant once again floated a tender for the same work. The third tender was also abandoned as the same three bidders who participated in the first two tenders submitted their quotes. The appellant decided to re-tender again. On the 28th August, 2014 (fourth tender) the said tender was floated again. The writ petitioner who participated in the first three tenders did not participate in the fourth tender. The said fourth tender was awarded to the 4th respondent in the writ petition as he quoted rates lower than that of the other tenderers in the said process. Without participating in the 4th tender, the respondent filed the writ petition under Article 226 of the Constitution of India inter alia contending that the 4th tender dated 28th August 2014 could not have been issued without opening the third tender. But the Court held that without participating in the fourth tender, the respondents therein were not entitled to claim relief in the Writ Petition and rejected the claim of the respondents by the Division Bench. 17. On the strength of the principle laid down in the above judgments, the learned Government pleader contended that the Writ Petition was not maintainable, as the petitioner did not participate in the second tender Notification which is impugned in the Writ petition, but there is a thin difference between the facts of the above judgments and the present facts. 18. In the present case, the petitioner challenged the very incorporation of two conditions i.e. (a) the average annual turnover of the firm during last three years (2017-18, 201819 & 2019-20) should be more than 100 Crores and (b) the firm should furnish latest solvency certificate for a minimum value of Rs.39 crores (50% of the ECV) issued by scheduled bank. In the present case, the petitioner challenged the very incorporation of two conditions i.e. (a) the average annual turnover of the firm during last three years (2017-18, 201819 & 2019-20) should be more than 100 Crores and (b) the firm should furnish latest solvency certificate for a minimum value of Rs.39 crores (50% of the ECV) issued by scheduled bank. The petitioner was disabled to participate in the tender notification on account of the above two onerous conditions. The petitioner did not challenge the work appended to any third party, but very incorporation of conditions itself is challenged. Therefore, distinguishing the facts of the present case with the facts of the judgments relied on by the counsel, it is difficult to upheld the contention of the respondents that the petitioner is disentitled to any relief in the Writ Petition for failure to participate in the tender process, for the simple reason that the petitioner challenged the onerous conditions incorporated in the second Notification referred above and thereby the principles laid down in the above judgment will have no direct or indirection application ex facie, consequently, the contention of the learned Government Pleader is hereby rejected, while accepting the contention of the learned counsel for the petitioner regarding the maintainability of the Writ petition. Accordingly, the Point is answered in favour of the petitioner and against the respondents. POINT NO.2:- 19. The main thrust of the learned counsel for the petitioner is that the imposition of two such conditions referred above deprived this petitioner to participate in the tender process. Initially in the first tender document in SS-16021/3/2021-CMO SEC-SSA/1/2021-22, dated 21.01.2021, section-II (Instructions to bidders) 1.1 deals with ‘Minimum Eligibility criteria for participation in the bids’ Clause (c) thereby prescribes the eligibility of 30 crores of turnover for the years 2017-18, 2018-19 & 2019-20. Similarly clause (h) requires ‘the firm should furnish latest solvency certificate’. Thus, the minimum turnover for the three years is 30 crores and solvency for no specific amount is required to be furnished, but this notification was cancelled. However, the impugned Notification SS-16021/3/2021-CMO SEC-SSA/7/2021-22,dated 15.03.2021 was issued imposing identical conditions except the condition in clauses (c) and (h) in Section-II 1.1 and these two conditions are modified as follows. Thus, the minimum turnover for the three years is 30 crores and solvency for no specific amount is required to be furnished, but this notification was cancelled. However, the impugned Notification SS-16021/3/2021-CMO SEC-SSA/7/2021-22,dated 15.03.2021 was issued imposing identical conditions except the condition in clauses (c) and (h) in Section-II 1.1 and these two conditions are modified as follows. c) The average annual turnover of the firm during the last three years (2017-18, 2018-19 & 2019-20) should be more than Rs.100 Crores (g) The Firm should furnish latest Solvency Certificate for a minimum value of Rs.39 crores (50% of ECV) issued by the scheduled bank. 20. The petitioner participated in the tender Notification in pursuance of the Notification in SS-16021/3/2021-CMO SEC-SSA/1/2021-22, dated 21.01.2021. As the petitioner satisfied the condition i.e., 30 crores of turnover for three years and able to furnish solvency certificate, but whereas on account of incorporation of two conditions (c) and (g) in the impugned Notification, the petitioner could not participate in the tender process. The basis for such contention is that it is contrary to G.O.Ms.No.94 issued by the Government. G.O.Ms.No.94 was issued on the basis of recommendations made by cabinet subcommittee in G.O. No.938, TR & B [R1] Department, dated 29.11.2000 and issued certain guidelines. 21. Clause 10 of Annexure-I of the said G.O. deals with ‘Qualification Criteria’ and it is extracted hereunder for better appreciation. 10. Qualification Criteria: A. To quality for award of the Contract, each bidder in its name should have, during the last five years (specified financial years ie., they should be immediately preceding the financial year in which tenders are invited) (a) Satisfactorily completed as a prime contractor, similar works of value not less than Rs. /-@ (usually not less than 50% of Estimated value of contract) in any one year b) Executed in any one year, the following minimum quantities of works: Cement concrete including RCC and PSC Cum. Earth work in both excavation and Embankment Cum. (relevant principal items be indicated (usually 50 per cent of the expected peak quantities of construction per year) B. Each Bidder should further demonstrate: a) Availability (either owned or leased or to be procured against mobilisation advances) of the following Key and critical equipment for this work. 22. Earth work in both excavation and Embankment Cum. (relevant principal items be indicated (usually 50 per cent of the expected peak quantities of construction per year) B. Each Bidder should further demonstrate: a) Availability (either owned or leased or to be procured against mobilisation advances) of the following Key and critical equipment for this work. 22. In view of this G.O., the petitioner is required to satisfy the condition that the turnover of the work value not less than 50% of the value of the work, here the value of the work is Rs. Rs.77,84,755/-, but insisted for 100 Crores turnover during the years 2017-18, 2018-19 and 2019-20 which is contrary to clause 10-A (a) of Annexure-I of G.O.Ms.No.94, I& CAD (PWW) Department, dated 01.07.2003. Similarly furnishing of latest solvency certificates for a minimum value of 39 Crores i.e., 50% of ECV issued by the scheduled bank is not prescribed as one of the conditions in clause 10 of the qualifications criteria. Hence, incorporation of such two conditions is contrary to G.O.Ms.No.94. 23. Though initially tender was floated and this petitioner was allowed to participate in the tender process, tender was cancelled for unknown reasons, the respondents are entitled to issue tender afresh cancelling the earlier tender, but incorporation of such conditions are contrary to clause 10 in Annexure-1 of G.O.Ms.No.94. Imposition of such onerous conditions is only to disable or disqualify some of the bidders and to confer benefit of the bidders visited by the Government. Therefore, incorporation of such two conditions referred above is not only violation of clause 10 in Annexure-1 of G.O.Ms.No.94, but also amounts to arbitrary exercise of power in violation of Article 14 of the Constitution of India. Therefore, imposition of such condition contrary to G.O.Ms.No.94 by exercising arbitrary power disabled the petitioner to carry on his business, which is a right guaranteed under Article 19 of the Constitution of India, as such the conditions are liable to be struck down, as they are violative of Article 14 of the Constitution of India and clause 10 in Annxure-I of G.O.Ms.No.94. The G.O.Ms.No.94 relates to works contract. In the absence of any criteria specifically fixed by Government by its order the same principle/guidelines shall be applied to procurement contracts. 24. One of the major contentions of the respondent is that the petitioner is disentitled to question the tender, having not participated in the tender process. The G.O.Ms.No.94 relates to works contract. In the absence of any criteria specifically fixed by Government by its order the same principle/guidelines shall be applied to procurement contracts. 24. One of the major contentions of the respondent is that the petitioner is disentitled to question the tender, having not participated in the tender process. I already answered this contention vide discussion of Point No.1 and no other reason was assigned for incorporating such conditions, but ex facie the conditions are onerous, obviously for the reasons known to respondents the condition appears to have been incorporated to confer benefit of some other persons, depriving the petitioner to participate in the tender process. 25. Learned counsel for the petitioner also place on record another similar tender document SS-16021/3/2021-CMO SEC-SSA/11/2021-22, dated 07.04.2021 for procurement and supply of ‘A pair of shoes and two pairs of socks’. The relevant conditions prescribed therein are that the average annual turnover of the firm during the last three years (2017-18, 201819 & 2019-20) should be more than Rs.40.00 crores besides furnishing solvency certificate for a minimum value of 50% of the ECV i.e., 47.32 Crores issued by scheduled bank. 26. When the value of the work is Rs.94,64,128/-, the turnover insisted by the respondent is 40 crores for three years, but here in this case, though the value of the work is Rs.77,84,755/-, they insisted turnover during the last three years is 100 crores, which is discriminatory and appears to have been incorporated the above conditions for unknown reasons explainable by the respondents by filing separate counter affidavit, to avoid explanation for incorporation of onerous condition, conveniently avoided to file counter. 27. On overall consideration of the facts of the case, including G.O.Ms.No.94, it is clear that the conditions i.e, The average annual turnover of the firm during the last three years (2017-18, 2018-19 & 2019-20) should be more than Rs.100 crores and the Firm should furnish latest Solvency Certificate for a minimum value of Rs.39 crores (50% of ECV) issued by the scheduled bank are onerous and arbitrary. Therefore, the two conditions are hereby set aside, declaring the action of the respondents in issuing tender notification No.SS-16021/3/2-21=CMO SEC-SSA/7/2021-22, dated 15.03.2021 for supply of school bags to all students studying class I to X in Government /MPP/ZPP/Municipal/Residential Schools/Ashram schools/Aided schools/Model schools/KGBVs of Education and Welfare Departments, etc in the State of Andhra Pradesh during the academic year 2021-22 by incorporating unreasonable eligibility criteria conditions with respect to average annual turnover and furnishing of solvency certificate as illegal, arbitrary and violation of Article 14 of the Constitution of India. Accordingly, Point No.2 is answered in favour of the petitioner and against the respondents. 28. In the result, the Writ Petition is allowed setting aside the tender Notification No.SS-16021/3/2-21=CMO SEC-SSA/7/2021-22, dated 15.03.2021 declaring the same as illegal, arbitrary and violative of Article 14 of the Constitution of India, while directing the respondents to issue fresh tender Notification with respect to supply of school bags to all students studying class-I to X in Government/MPP/ZPP/Municipal/Residential Schools/Ashram Schools/Aided Schools, Model Schools/KGBVs of Education and Welfare Departments, etc. in the State of Andhra Pradesh during the academic year 2021-22 without incorporating onerous conditions. There shall be no order as to costs of the Writ petition. Consequently, miscellaneous petitions, pending if any in the Writ Petition, shall stand closed.