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2025 DIGILAW 2 (GAU)

Orion Health Foods Private Limited v. State of AP

2025-01-03

KARDAK ETE

body2025
JUDGMENT : Heard Mr. G. N. Sahewalla, learned Senior Counsel assisted by Mr. A. K. Sahewalla, learned counsel for the petitioner in WP(C)/115(AP)/2024; Mr. S. Dutta, learned Senior Counsel assisted by Ms. I. Das, learned counsel and Ms. N. Anju, learned counsel for the petitioners in WP(C)/93(AP)/2024, WP(C)/105(AP)/2024 and WP(C)/227(AP)/2024 and respondent No. 5 in WP(C)/115(AP)/2024. Also heard Mr. R. H. Nabam, learned Additional Advocate General assisted by Ms. P. Pangu, learned Government Advocate for the State respondents in all the writ petitions. None appears for the private respondent Nos. 6 & 7, despite service of notices. 2. In view of the similar factual background and law, present bunch of writ petitions were heard analogously and the same are disposed of by this common judgment and order. 3. By filing these Writ Petitions, the petitioners have put to challenge the terms and conditions incorporating qualification points as Annexure-B pertaining to Notice inviting e-Tender bearing no. DWCD-14/4/2021[C-11400], dated 20.02.2024, issued by the Secretary, Women & Child Development Department, Government of Arunachal Pradesh, inviting bids from the manufacturer of repute with past experience in the field and sound financial capability for supply of Ready to Eat (RTE) food items, in respect of the : (1) Rice and Pulse Based Energy Food (RTE) fortified with minerals and vitamins; (2) Kheer (Ready to Eat) as energy dense food fortified with minerals and vitamins and (3) Puffed Rice fortified with minerals and Vitamins. 4. The brief facts of the case are that the Secretary, Women & Child Development Department, Government of Arunachal Pradesh issued a Notice inviting e-Tender bearing no. DWCD-14/4/2021[C-11400] dated 20.02.2024, (hereinafter referred to as NIeT in short) in a two bid system, i.e. Technical and Price/Financial bid separately, inviting manufacturer of repute with past experience in the field and sound financial capability for supply of Ready to Eat (RTE) food items, namely : (1) Rice and Pulse Based Energy Food (RTE) fortified with minerals and vitamins; (2) Kheer (Ready to Eat) as energy dense food fortified with minerals and vitamins and (3) Puffed Rice Fortified with minerals and Vitamins, for an estimated cost of Rs.1000 (one thousand) Lakhs. The submission of the bid started from 23.02.2024 and the last date for submission of tender was 14.03.2024, up to 4:00 p.m. The date for opening of the tender (technical bid) was 15.03.2024. The submission of the bid started from 23.02.2024 and the last date for submission of tender was 14.03.2024, up to 4:00 p.m. The date for opening of the tender (technical bid) was 15.03.2024. It is stipulated that the financial bid(s) of those tenderers, qualified in technical bid would only be opened and the date of opening would be intimated within one week for opening of the technical bid in the official website. 5. In WP(C)/115(AP)/2024, the petitioner being a reputed company and the financial state of the Art food processing company based in Meghalaya and being manufacturer of micronutrient fortified energy dense food products, especially suitable for malnourished and severely malnourished infants and children, adolescent girls and pregnant and lactating mothers, decided to participate in the tender process and accordingly, downloaded the tender documents from the official website. On perusal of the documents, according to the petitioner, it is found that in Part-I of the bid documents, two points appearing at serial No.5 and serial No.8 of Annexure-B, amongst others are absolutely arbitrary and without any justification. The petitioner contended that the tender has provided with the eligibility criteria in clause 20, wherein the chart providing qualification points are absolutely arbitrary and without any justification inasmuch as, in a tender the eligibility criteria is the main question and as such, the chart providing qualification points is liable to be set aside and quashed. 6. The further case of the petitioner is that in the year 2018, the same respondent Department in the State of Arunachal Pradesh had floated a tender where there was no point system as introduced in the present NIeT. Even assuming but not admitting that the point system is correct, even then, there must be some rationale with the value of tender and the criteria specified in order to qualify the same. It is contended that in the previous tenders the contract value was Rs.20 Crores and in terms of the earlier NIT, a bidder with net worth of Rs. 15 Crore was also eligible to participate. Furthermore, there was no provisions in the previous tender stating therein that the bidders shall have to supply to various number of States, so as to be eligible and/or qualify in the NIeT process. 7. Mr. 15 Crore was also eligible to participate. Furthermore, there was no provisions in the previous tender stating therein that the bidders shall have to supply to various number of States, so as to be eligible and/or qualify in the NIeT process. 7. Mr. G.N. Sahewalla, learned senior Counsel for the petitioners, submits that clause 20 of bid document contains restrictive clause as Clause 20 (d) of the tender documents requires the bidder to have experience in supply to Government departments in the North-Eastern States of the country including Sikkim. Again, Clause 21 (q) of the tender document requires the bidder to have a turnover of Rs. 10 Crores. These two clauses together define the qualification requirement of any bidder. However, the same tender has introduced an arbitrary and preposterous clause requiring bidders to have experience of supplying to multiple States. There cannot be any justifiable reason as to why any bidder who has supplied to any four North Eastern States will be able to perform better in Arunachal Pradesh, than a bidder who has supplied in two or three North Eastern States or any other states of the country. If such criteria are incorporated taking into account the terrain, he submits, then such terrain differs in each and every State even within North East India. Inclusion of said clause and the points allocated to it thereof makes it impossible for any bidder to qualify if they have not previously supplied to at least three States. 8. He submits that as per the bid documents, the minimum qualification points required is 90 and a bidder will lose at least 15 points if they have supplied to less than three states. The possibility cannot be ruled out that a bidder will fail to qualify in the present NIeT if a bidder had supplied more quantity of goods in two States in respect of a bidder with lesser supply of quality in three States. In fact the petitioner supplied in Meghalaya, Assam and Mizoram, i.e. 3 States. The points that are attributed to 1 State and 2 States are redundant inasmuch as, even assuming that in all the other marking system, the bidder gets full marks, still the bidder shall be ineligible inasmuch as, 5 points for 1 State and/or 10 points for two States will not allow the bidder to qualify the threshold point and/or cut off mark of 90 points. He submits that the qualification point no. 5 in Annexure-B of the tender document is completely arbitrary and may have been specifically introduced to favour some bidders. There is no conformity with the objective which is sought to be achieved with the present tender condition. 9. Mr. Sahewalla, learned senior counsel, submits that in the Minutes of Meeting held on 25.01.2024 for finalization of tender documents only two points were taken into consideration which needs to be included in the NIeT, i.e. (i) net worth of the bidder and (ii) financial stability certificate. In the said meeting, there was no spell of inclusion of number of States so as to include into the marking points and as such, the same has no bearing for its inclusion in the NIeT. 10. Mr. Sahewalla, learned senior counsel, submits that in terms of Clause no. 21 (l) of the bid document, the bidder is required to have a net worth of Rs. 10 crores. However, the qualification points of the same tender document favor bidders who have a net worth of more than Rs. 20 Crores, and makes it impossible for bidder with net worth below Rs. 25 crores to qualify at all. Now, as per the qualification points in Annexure-B of the bid document, any bidder with a net worth of upto Rs. 20 crores shall score 5 points, whereas net worth of upto Rs.25 crores is 10 points. Similarly, net worth upto Rs.30 crores is 15 points and net worth upto Rs.35 crores is 20 points. The qualification marks required as per the bid document are 90, and a bidder will lose at least 15 points, if its net worth is less than Rs.25 Crores and will eventually loose in the bidding process. Such a provision in the NIeT is incorporated in all probability that the qualification points have been specifically designed in a manner so as to favour some large companies for whom the tailor-made NIeT has been floated. Furthermore, the Clause no. 21 (l) was later replaced by way of corrigendum and directed to Annexure-B requiring bidders to have at least 25 Crore net worth in order to qualify. Furthermore, another irrelevant tender condition is that a tender whose tentative value is Rs. Furthermore, the Clause no. 21 (l) was later replaced by way of corrigendum and directed to Annexure-B requiring bidders to have at least 25 Crore net worth in order to qualify. Furthermore, another irrelevant tender condition is that a tender whose tentative value is Rs. 10 Crores should require the bidders to have much higher net worth and if the same is compared with the past NIT floated in the year 2018, it would fortify that there has been no basis for which the net worth upto Rs.35 crores has been sought for and 20 points have been allotted thereof. 11. Mr. Sahewalla, learned senior counsel. submits that Clause 21(q) of the tender document requires a bidder to have a supply experience of Rs. 10 Crores in at least 1 year out of the last 3 years. However, the same tender document requires the bidder to have an 'average turnover' of Rs. 10 Crores in 'each' financial year out of the last 3 years. These two clauses are contradictory to each other and also the clause in the qualification point is contradictory to itself as turnover can either be average of 3 years, or in each of the 3 years, but not both. He submits that Clause 20 read with Qualification No. 5 of Annexure-B; clause 21(h), Clause 21(l) read with Qualification Point No.8 of Annexure-B, Clause 21(q), Clause 22 and Clause 26 of the Part -I of the bid document of NIeT dated 20.02.2024 are tainted with unreasonableness. Applying the Wednesbury Rule of arbitrariness and unreasonableness the aforesaid clauses of the Part-I of the bid document read with qualification points No.5 and No.8, mentioned in Annexure-B of the bid document are shockingly disproportionate to the objective sought to be achieved. The doctrine of proportionality demands that there must be a nexus with the terms and conditions of the contract read as a whole and the objective which is sought to be achieved with the tender conditions. But, in the instant case, no nexus is found and therefore, the petitioner had represented before the State authorities regarding the same, however, the respondent authorities failed to consider the same in its proper perspective, compelling the petitioner to institute the present proceeding. But, in the instant case, no nexus is found and therefore, the petitioner had represented before the State authorities regarding the same, however, the respondent authorities failed to consider the same in its proper perspective, compelling the petitioner to institute the present proceeding. Therefore, he submits that the Annexure-B, attached to the NIeT dated 20.02.2024 is liable to be interfered with direction to the respondent authorities to re-evaluate both the technical and financial stages and thereafter to finalise the tender. 12. In support of his submissions, Mr. G. N. Sahewalla, learned Senior Counsel for the petitioner in WP(C) No.115/2024, has relied following decisions: (1) Nandhini Delux Vs. Government of Andhra Pradesh, reported in 2006(1)ALD 212/AIR 2006 (NOC) 190. (2) National High Speed Rail Corporation Limited vs. Montecarlo Limited and another reported in (2022) 6 SCC 401 . (3) M.P. Power Management Company Limited, Jabalpur vs. Sky Power Southeast Solar India Private Limited and others, reported in (2023) 2 SCC 703 and (4) Chatradhar Das and others vs. State of Assam and others, reported in (2023) 1 GLR 581. 13. In WP(C)/105(AP)/2024, the petitioner is a manufacturer and supplier of Ready to Eat (RTE) Food Item viz., Soyabean/Millet Based Biscuits Fortified with Vitamins and Minerals. In pursuance of various NITs floated in the past, the Petitioner has undertaken similar work for supply of RTE items to the respondent State. The petitioner also challenges the terms and conditions incorporated in the impugned NIeT dated 20.02.2024 for supply of RTE Food Items floated by the respondent State being arbitrary and unreasonable. The petitioner contends that impugned NIeT has been issued with certain arbitrary, discriminatory and unreasonable conditions viz., Clauses 4, 5 & 8 of Annexure-B to the NIeT. These are incongruous to other conditions of NIeT and have no reasonable nexus with the object sought to be achieved under the NIeT which is for selection of a supplier of the best product. 14. In WP(C)/93(AP)/2024 and WP(C)/227(AP)/2024, the ppetitioners are manufacturers and suppliers of Ready to Eat (RTE) Food Items. In pursuance of various NITs floated in the past, the Petitioners have undertaken similar work for supply of RTE items to the respondent State. 15. It is contended that authorities issued the completion certificate on 19.12.2019, for the years 2015-16; 2016-17 and 2017-18 in favour of the petitioners. In pursuance of various NITs floated in the past, the Petitioners have undertaken similar work for supply of RTE items to the respondent State. 15. It is contended that authorities issued the completion certificate on 19.12.2019, for the years 2015-16; 2016-17 and 2017-18 in favour of the petitioners. On 06.07.2023, completion certificate for the year 2021-22 was issued by the respondent department in favour of the petitioner. On 20.02.2024, the impugned NIeT was issued for supply of RTE Items, for an amount of Rs. 10 Cr. On 04.03.2024, by filing the WP(C) No.93/2024, the present petitioner challenged the conditions incorporated in the NIT dated 20.02.2024 and this Court directed the Addl. Advocate General, Arunachal Pradesh to produce before this Court, the basis for incorporation of Clauses 5 & 8 of the Annexure-B Table for qualification points and as an interim measure, provided that the respondent shall receive the bids in pursuance of the NIeT dated 20.02.2024 and shall process the same on its own merits; however, the award of work shall not be effected without leave of the Court - Interim Order continued from time to time. On 10.03.2024, the impugned Corrigendum was issued and Clause 21(1) and Clause 4 of the Annexure-B, to the NIT dated 20.02.2024 were amended. Against the said amendment, one interlocutory application i.e. I.A. (Civil) No.84/2024 was filed on 18.05.2024 by one Rausheena Udyog Ltd. On 14.03.2024, the petitioner submitted its bid (Bid Acknowledgment enclosed), who was unaware about the corrigendum dated 10.03.2024. On 07.06.2024, the W.P. (C) No.227/2024 was filed moved and the corrigendum dated 10.03.2024 was stayed till returnable date and said interim order extended from time to time. Thereafter, the State respondents rejected the petitioner's bid and prepared a Note and Technical Summary Report holding the private respondent No.3 as L1 bidder in respect of the item (2) and the private respondent No.4 as L1 bidder in respect of the items (1) and (3). However, on 30.09.2024, 30/09/2024, in view of the order passed in I.A. (Civil) No.123/2024, in connection with W.P. (C) No.93/2024, was accordingly amended to challenge the aforesaid Summary of Technical Bid Evaluation and Tender Summary Report both dated 24.07.2024 and Note dated 29.07.2024 and Tender Summary Report dated 01.08.2024. 16. Mr. However, on 30.09.2024, 30/09/2024, in view of the order passed in I.A. (Civil) No.123/2024, in connection with W.P. (C) No.93/2024, was accordingly amended to challenge the aforesaid Summary of Technical Bid Evaluation and Tender Summary Report both dated 24.07.2024 and Note dated 29.07.2024 and Tender Summary Report dated 01.08.2024. 16. Mr. Surojit Dutta, learned Senior counsel for the petitioners, while referring to the various clauses of NIeT and Annexure-B, submits that the Clauses 4, 5 & 8 of Annexure-B are totally contradictory and against the prescribed General Terms and Conditions of Contract. The Tender Conditions, though require a tenderer to fill up Annexure-B i.e., the Qualification Points, however, these do not stipulate that in order to qualify in the Technical Bid one has to score 90 points. Such a requirement has only been incorporated in the Annexure-B in a departure from what have been enumerated under the Eligibility Criteria (Clause 20). The requirement of securing minimum 90 points as in Annexure-B has no reference in the conditions that pertain to Eligibility Criteria stipulated under Clauses 19 and 20 in particular or those running up to Clause 23 i.e., Evaluation of Technical Bid. The Annexure-B, therefore, does not have any reasonable nexus with the other conditions of eligibility and the objective sought to be achieved by the NIT i.e., selection of a supplier of the best product. 17. He submits that when the Clauses 21(l) stipulates Rs. 5 Cr. as the minimum net worth of a tenderer as on 31/03/2023 and the requirement of Financial Stability vide Clause 21(n) is of Rs. 2.5 Cr., there is no basis for incorporation of the Clause 8 in the Annexure-B so as to give points for net worth up to Rs. 20 Cr or above. Secondly, if this is applied, a tenderer whose net worth is up to Rs. 20 Cr. will eventually be deprived of 15 points and get eliminated at the stage of assessment of Technical Bid itself. This is crucial because as per Annexure-B one has to score 90 out of 100. The Clause 8 as well as the requirement of scoring 90 points are, therefore, discriminatory, arbitrary, incongruous to the other conditions of the NIeT and unreasonable and has no nexus with the objective sought to be achieved which is to select the best supplier of the product. The Clause 8 as well as the requirement of scoring 90 points are, therefore, discriminatory, arbitrary, incongruous to the other conditions of the NIeT and unreasonable and has no nexus with the objective sought to be achieved which is to select the best supplier of the product. In a contract for supply of goods like the one in hand, it is the quality of the product which is of paramount consideration and viewed thus, the allocation of marks against net worth of a bidder up to Rs. 20 Cr or above is really of no significance and as such, on this ground alone, the impugned NIeT is liable to be interfered with. 18. Mr. Surojit Dutta, learned Senior counsel contends that if the Clause 8 is tested as against the Clause 4 of the Annexure-B, it will appear to be in defiance of logic inasmuch as when the Average Turnover of Rs. 10 Cr. has been asked for in the Clause 4 and for that 5 points have been allocated, there is no reasonable basis for incorporation of net worth criteria of up to Rs. 20 Cr. or above in Clause 8 and to assign as much as 20 points for it. It is elementary that Average Turnover denotes the complete sum of sales made by a business in a year and is also referred to as gross revenue whereas the Net worth is calculated by assessing the assets after deduction of total liabilities from the gross revenue. In such view of the matter, the Clause 8 of the Annexure-B is also clearly in contradiction with the Clause 4 and therefore, liable to be interfered with. What essentially follows is that if in Clause 4 of the Annexure-B, the department is seeking average turnover of Rs. 10 Cr. for each financial year, it can under no circumstances seek net worth of more than Rs. 10 Cr. in a year. The stipulations of rupees 20, 25, 30 and 35 crores and marking points on the basis thereof are only extraneous and without any logical basis. The Annexure-B is totally de-hors the stipulations provided in the General Conditions of Contact. 19. Mr. 10 Cr. in a year. The stipulations of rupees 20, 25, 30 and 35 crores and marking points on the basis thereof are only extraneous and without any logical basis. The Annexure-B is totally de-hors the stipulations provided in the General Conditions of Contact. 19. Mr. Surojit Dutta, learned Senior counsel submits that Clause 5 of the Annexure-B also suffers from vagueness and compounds the irrationality and arbitrariness in the Annexure-B. Whereas the Clause 5 allocates 25 points to be earned based on supply made in the last three financial years, it does not specify as to whether the points are allocable against supply made in just one year or each of the financial years. To elaborate, it does not specify whether to earn 5 points for supply against 1 (one) State one has to have supply in each or just in anyone of the three financial years. The method of assessment as provided in Annexure-B forms a second and contradictory eligibility criteria. The Clauses 4, 5 & 8 of Annexure-B are contrary to Clause 21(1), 21(n) & 21(q), giving room for arbitrariness and hence, liable to be interfered with. 20. Mr. Surojit Dutta, learned Senior counsel submits that Clauses 20(d) and 21(q) which are the minimum requirements to participate in the tender as accepted by the respondents, already indicate the minimum technically qualifying criteria of the tender. In fact, Annexure-B only serves to make the qualifying clauses redundant in as much as a bidder who achieves the minimum criteria will still not be eligible as per "Annexure-B". Thus, the impugned NIeT, particularly the requirement of securing 90 marks as set out in the Annexure-B thereof, is liable to be interfered with. 21. Mr. Surojit Dutta, learned Senior counsel submits that despite there being a specific order from this Court [Order dared 11/03/2024], the respondents have not furnished any material to justify the basis for incorporation of the Clauses 5 & 8 in the Annexure-B to the NIeT. In the circumstances, the contentions of the respondents are fallacious for more than one reason. Assuming but not admitting that a marking system of the kind has been adopted by the State of Meghalaya, that itself is no justification for incorporation of the grossly arbitrary conditions in the Annexure-B to the NIeT. In the circumstances, the contentions of the respondents are fallacious for more than one reason. Assuming but not admitting that a marking system of the kind has been adopted by the State of Meghalaya, that itself is no justification for incorporation of the grossly arbitrary conditions in the Annexure-B to the NIeT. This stand of the respondents itself shows non- application of mind and a mechanical approach behind formulation of the conditions of the NIeT. The NIT of the State of Meghalaya has not been produced and the rationale behind the said NIT is unknown. It is submitted that faced with the challenge, it is the responsibility of the State respondents to justify their action by their own strength and not otherwise. The support sought to be derived from a purported NIT by the State of Meghalaya is itself outrageous. 22. Mr. S. Dutta, learned senior counsel submits that as per the Tender Conditions, though require a tenderer to fill up Annexure-B i.e., the Qualification Points, these however do not stipulate that in order to qualify in the Technical Bid one has to score 90 points. Such a requirement has only been incorporated in the Annexure-B in a departure from what have been enumerated under the Eligibility Criteria. The requirement of securing minimum 90 points as in Annexure-B has no reference in the conditions that pertain to Eligibility Criteria stipulated under Clauses 19 and 20 in particular or those running up to Clause 23, i.e., Evaluation of Technical Bid. The Annexure-B, therefore, does not have any reasonable nexus with the other conditions of eligibility and the objective sought to be achieved by the NIT i.e., selection of a supplier of the best product. When the Clauses 21(1), as it stood prior to issuance of Corrigendum, stipulates Rs. 10 Cr. as the minimum net worth of a tenderer as on 31/03/2023 and the requirement of Financial Stability [vide Clause 21(n)] is of Rs. 5 Cr., there is no basis for incorporation of Clause 8 in the Annexure-B so as to give points for net worth up to Rs. 20 Cr or above. The Clause 21(l), after issuance of Corrigendum, makes the case even worse because it states that the net worth of the tenderer shall be as indicated in Sl. 8 of Qualification Points at Annexure-B and this makes the minimum benchmark of net worth a redundant criterion. 20 Cr or above. The Clause 21(l), after issuance of Corrigendum, makes the case even worse because it states that the net worth of the tenderer shall be as indicated in Sl. 8 of Qualification Points at Annexure-B and this makes the minimum benchmark of net worth a redundant criterion. Noticeably, the Clause 8 of the Annexure-B does not define the minimum benchmark of net worth. The allocation of marks for net worth, in such a case, is without any basis. Moreover, it comes in direct conflict with the Clause 4 of the Annexure-B where the required Turnover is Rs. 10 Cr. annually in a "single year" and not "financial year". In this circumstance as well, there is no basis for incorporation of Clause 8 in the Annexure- B so as to give points for net worth up to Rs. 20 Cr or above. 23. Mr. Surojit Dutta, learned Senior counsel submits that the factual feature of the case clearly brings home the assertion of the petitioners that the impugned tender conditions are aimed at facilitating ouster of the bidders like the petitioners and selection of the private respondents. From the Summary of Technical Bid Evaluation and Tender Summary Report both dated 24.07.2024 and Note dated 29.07.2024 and Tender Summary Report dated 01.08.2024, it is apparent that the rates quoted by the petitioner is much lower than the rates at which the impugned NIT is sought to be settled with the private respondents. The records, would justify the assertion of the petitioner in this respect. It proves the contention of the petitioners that the tender conditions have been tailor made to suit the specific interest of the private respondents and hence, this is against the public interest. 24. Mr. Surojit Dutta, learned Senior counsel submits that the selection of the private respondents on the basis of the arbitrary and unreasonable tender conditions is illegal and unjustified. The action of the State respondents in issuing the Corrigendum dated 10.03.2024 as well as in selecting the private respondents on the basis of the arbitrary and unreasonable conditions are illegal, anti- competitive, unreasonable and against the principle to encourage wider participation of bidders. The action of the State respondents in issuing the Corrigendum dated 10.03.2024 as well as in selecting the private respondents on the basis of the arbitrary and unreasonable conditions are illegal, anti- competitive, unreasonable and against the principle to encourage wider participation of bidders. As such, the NIeT dated 20.02.2024, the Corrigendum dated 10.03.2024 as well as the selection of the private respondents for supply of the RTE Food products under the impugned NIeT dated 20.02.2024 in terms of the Summary of Technical Bid Evaluation and Tender Summary Report both dated 24.07.2024 and Note dated 29.07.2024 and Tender Summary Report dated 01.08.2024 are liable to be interfered with, set aside and quashed. 25. In support of his submissions, Mr. S. Dutta, learned Senior Counsel, has relied upon the case of Chatradhar Das and others vs. State of Assam and others, reported in (2020) 1 GLT 645. 26. E Converso, Mr. R. H. Nabam, learned Additional Advocate General, Arunachal Pradesh appearing for the respondent Nos.1-4, submits that Clause 20 describes the eligibility criteria to participate in the bid whereas Annexure-B, i.e. qualification points, prescribes the method of assessment of capability and relative merit amongst and hence there is nothing arbitrary in it. He further submits that all the terms and conditions are to be fulfilled by prospective bidders and also to qualify in the points mentioned in the qualification points chart. Clause 4 of the qualification chart refers to average turnover of Rs.10.00 crores whereas clause 10 in qualification point at Annexure-B refers supply of micronutrient energy food in the North Eastern States for last 3 years. There is no contradiction in Clause 4 and 10 as pointed out by the petitioner. Furthermore, Clause 5 is regarding the experience of the bidder in supplying more states. This is required to assess the experience of the bidder. The net worth of the bidder proves its financial health. If the net worth is high, then the financial health will be strong. Such bidders can easily execute the work if awarded. 27. Mr. Nabam, the learned Additional Advocate General, further submits that it is a mandatory requirement to file GST returns timely by the business entities. The respondent authority required GST returns up to the previous financial year. Up to date GST return will be required from the successful bidders at the time of issue of offer letter for award of contract. Mr. Nabam, the learned Additional Advocate General, further submits that it is a mandatory requirement to file GST returns timely by the business entities. The respondent authority required GST returns up to the previous financial year. Up to date GST return will be required from the successful bidders at the time of issue of offer letter for award of contract. This cannot be termed as favouring some bidders. He submits that there were some mistakes in clause 21 (1) of the bid document and clause 8 in qualification points in Annexure-B which later rectified by issuing corrigendum vide No. DWCD-14/4/2021[11400] dated 10.03.2024. Furthermore, the petitioners have totally misinterpreted the clause 22 of the tender document. There is no arbitrary power vested with the 'Board of Officers' of Tender Selection Committee (TSC). In view of the Supplementary Nutrition Programme's objective to augment the daily nutritional intake of targeted beneficiaries i.e, children and women, there can be no compromise in the quality of food items being supplied in Anganwadi centres. Hence, if the samples do not conform to the stipulated conditions of preparation and packing, that is liable for rejection. 28. It is further submitted by the learned Additional Advocate General that Clause 26 states that the committee has the right to reject the tender who quotes below average rate or highly exorbitant rate, comparing the input material cost, cost of production and other incidental expenses, taxes etc. But the petitioner bidders are trying to misinterpret the clause by quoting a part of the clause as per their conveniences. The cost of a product is determined on the basis of its material cost, labour cost, overhead expenses and keeping a margin of profit by the manufacturer. If the quoted cost will be far below than the cost so calculated as mentioned above, there is a possibility to compromise with the quality of the product which cannot be permitted to occur. Great caution is required in regard of the quality of the product which is going to be consumed by the women and children who are already vulnerable to under-nourishment. Moreover, an appropriate reply was given to the petitioner vide letter No. DWCD-14/4/2021[E-185953], dated 13.03.2024, with full justification for inclusion of the clauses. A corrigendum was also issued vide No. DWCD- 14/4/2021[11400] dated 10.03.2024 rectifying some contradictory clauses pointed out by the petitioner. As such the allegation of the petitioners is baseless. 29. Moreover, an appropriate reply was given to the petitioner vide letter No. DWCD-14/4/2021[E-185953], dated 13.03.2024, with full justification for inclusion of the clauses. A corrigendum was also issued vide No. DWCD- 14/4/2021[11400] dated 10.03.2024 rectifying some contradictory clauses pointed out by the petitioner. As such the allegation of the petitioners is baseless. 29. It is the further submission of learned Addl. AG, that public procurement is an essential component of public service. The procurement is made by inviting bids. Standard terms and conditions are an essential part of a tender document. The procuring authority is responsible for free and fair procurement of goods and services in public service. So in order to complete the contract deals in free and fair manner standard terms and conditions are incorporated in the tender document so that the successful bidders have a good reputation in the market for completing such contracts earlier. Therefore, the criteria fixed by the tendering authority cannot be challenged because if something happened adversely during the execution of the contract, the tender inviting authority is solely responsible. Keeping all these in view, the terms and conditions of tender are finalized. Hence the bidder cannot challenge the authority of the tender inviting authority. The tender document is finalized after studying the tender documents of some other North Eastern states of Nagaland, Manipur, Assam and Meghalaya by an internal committee constituted for the purpose and the qualification points is a methodology followed by Meghalaya State. Moreover, the State respondents are the sole authority to set the standards in the tender document and the bidders are to abide by it. The tender document once finalised and notified in public domain cannot be amended at the whims and fancies of the petitioners. However, corrections were made wherever required to resolve the contradictions in the correlated clauses in the tender document. Amendments could not be made once notified. Therefore, the learned Additional Advocate General, Arunachal Pradesh submits that there is no arbitrariness in the Annexure-B as well as various clauses of the tender, as the terms of the tender is not open to challenge and as such the writ petitions are liable to be dismissed. 30. Mr. Nabam, Learned Addl. Amendments could not be made once notified. Therefore, the learned Additional Advocate General, Arunachal Pradesh submits that there is no arbitrariness in the Annexure-B as well as various clauses of the tender, as the terms of the tender is not open to challenge and as such the writ petitions are liable to be dismissed. 30. Mr. Nabam, Learned Addl. AG, in support of his submissions, has placed reliance on the following judgements: - (1) Air India Ltd vs. Cochin International Airport Ltd., reported in (2000) 2 SCC 617 , (2) Association of Registration Plates vs. Union of India & others, reported in (2005) 1 SCC 679 , (3) Ameya Developers Private Ltd., vs State of Assam & others, reported in (2006) 2 GLT 483 and (4) Jagdish Mandal vs. State of Orissa and others, reported in (2007) 14 SCC 517 . 31. Due consideration has been extended to the submissions of learned counsels for the parties and the materials available in the record. 32. Essentially the petitioners have challenged the terms and conditions of the NIeT as incorporated at Annexure-B, the qualification points, being arbitrary and irrational as well as having no nexus to the object sought to be achieved in the NIeT. 33. Pursuant to the NIeT dated 20.02.2024, inviting bids for supply of Ready to Eat (RTE) food items, as noted hereinabove, altogether 5 (five) bidders, namely, Chandigarh Sweets Limited, Chandigarh, Continental Milkose, Panazar, Guwahtai, H.O. New Delhi, Rusheena Udyog Limited, Guwahati Assam, the petitioner in WP(C) No. 115/2024 and the petitioners in WP(C)227/2024 and WP(C)93/2024 have participated. The writ petitioner in WP(C)105/2024, namely, M/s Abhinav Food Products has not participated in the tender process. 34. Vide the Minutes of the Tender Selection Committee, dated 29.07.2024, M/s Continental Milkose, New Delhi has been recommended for supply of Rice and Pulse Based Energy Food & Fortified Puffed Rice and M/s Rusheen Udyog Pvt. Limited, Guwahati Assam for Fortified Kheer. The above 2 (two) bidders have been recommended subject to the final judgment of this Court. 35. Clause 20 of NIeT provides the eligibility criteria. Clause 21 provides the general conditions. Clause 21(l) provides that the net worth of the tenderer shall not be less than Rs.10,00,00,000.00 (Rupees ten crores) only as on 31.03.2023 as reflected in the audited balance sheet. Relevant certificate issued by a Chartered Accountant/Statutory Auditor should be enclosed. 35. Clause 20 of NIeT provides the eligibility criteria. Clause 21 provides the general conditions. Clause 21(l) provides that the net worth of the tenderer shall not be less than Rs.10,00,00,000.00 (Rupees ten crores) only as on 31.03.2023 as reflected in the audited balance sheet. Relevant certificate issued by a Chartered Accountant/Statutory Auditor should be enclosed. Clause 21(n) provides that Financial Stability Certificate issued during current financial year (i.e. 01 April 2023 onwards) from Financial/Scheduled Bank, preferably Nationalized Bank mentioning the approximate value up to which the tenderer is capable of undertaking the contract. Financial Stability Certificate should mention the amount up to which the bidder is capable to do the business, and the same should be at least equal to or more than 50% of the total value of the tender. Clause 21(q) provides that the bidder should have turnover of manufacturing and supplying of Micro Nutrient Energy Dense Food against the orders placed in their own names directly by the Government department of any State Government/UT Government of not less than Rs.10.00 crores in a single year during the last three financial years, i.e. 2020-21, 2021-22 and 2022-23. The bidder should submit annual turnover Statement for at least one year during the last 3 years of sale exclusively from manufacture and supply of Micronutrient Fortified Energy Dense Food directly to Government department duly certified by a Chartered Accountant and also submit the order copies and certificates from concerned departments as the case may be. 36. The qualification points at Serial No.4 provides for average Turnover of Rs.10 crores (Rupees ten crores) each financial year for supply of Micro Nutrient Energy Dense Food for the last 3 financial years 2020-21, 2021-22 and 2022-23. Point at Serial No.5 provides that supply of Micro Nutrient energy dense Food to Social Welfare/Women and Child Development Department under ICDS Scheme for last 3 (three) financial year (2020-21, 2021-22 & 2022-23) with the following points:- 1. State - 5 points 2. States - 10 points 3. States - 15 points 4. States and above- 25 points 37. Qualification Points at Serial No.8 provides that net Worth of the bidder during the last financial year i.e. 2022- 23 as per audited balance sheet supported by CA certificate with the following points- Upto 20 crores: 5 points Upto 25 crores: 10 points Upto 30 crores: 15 points Upto 35 crores: 20 points. 38. States and above- 25 points 37. Qualification Points at Serial No.8 provides that net Worth of the bidder during the last financial year i.e. 2022- 23 as per audited balance sheet supported by CA certificate with the following points- Upto 20 crores: 5 points Upto 25 crores: 10 points Upto 30 crores: 15 points Upto 35 crores: 20 points. 38. On careful comparison of the above Clauses 21(l), Clause 21(n) and Clause 21(q) and the Qualification Points, at the first blush, reflects an irreconcilable term, as the requirement of average turn over is 10 crores, the points after the average net worth of 10 crores upto 35 crores would be 20 points. It is also noticed that the qualification points provided in the bottom that the minimum points required for qualification in the Technical Bid is 90 points. Any person having net worth of 10 crores for the last financial year, he would be having 10 points and the person having more than 30 crores would be 15 points and upto 35 crores, would be 20 points. If one calculate that if a bidder is eligible to bid having net worth of 10 crores, it would be difficult to have minimum 90 points. Thus, qualification points at Annexure-B to the Clauses in the NIeT appears not rational. However, these are the terms and the conditions of the NIeT which is not open to challenge unless same are arbitrary, unreasonable, malafide or it is so tailor-made to favour some particular bidders. There is no material to indicate to that effect. It is only plea and submissions on behalf of the petitioners that the qualification points particularly at serial Nos. 4, 5 and 8 are contradictory to the clauses of eligibility criteria and having no nexus to the object sought to be achieved. On consideration of the materials on record reveals that the respondent authority have explained sufficiently and interpreted the terms without any scope of ambiguity. Therefore, for the sake of repetition, although at the first blush, the qualification points as Annexure-B, appears contradictory and irreconcilable with the eligibility criteria clauses of NIeT, in my view, there is no contradiction or unreasonableness in essence. Therefore, for the sake of repetition, although at the first blush, the qualification points as Annexure-B, appears contradictory and irreconcilable with the eligibility criteria clauses of NIeT, in my view, there is no contradiction or unreasonableness in essence. Moreso, it is not for the Court to interpret the terms of a contract, when the authority, who issued the NIeT, has given a clear explanation and interpretation of the same as the author of the document is the best judge to interpret and determine its requirements. 39. It is noticed, as explained by the respondent authorities, that Clause 20 prescribes the eligibility criteria to participate in the NIeT whereas qualification points at Annexure-B, prescribes the method of assessment of capability and relative merit amongst bidders. The terms and conditions are to be fulfilled by bidders and also to qualify the points mentioned in the qualification points. Serial No. 4 of the qualification points refers to average turnover of Rs.10.00 crores whereas serial No. 10 refers supply of micronutrient energy food in the North Eastern States for last 3 years. Serial No. 5 is with regard to the experience of the bidders in the other States as it is required to assess the experience of the bidder. The requirement of having strong financial health of the bidders for execution of the contract of present nature, in my view appears reasonable. 40. Now, I would refer to and consider the case laws relied on by the learned counsel for the parties. 41. In the case of Nandhini Delux (Supra), the Andhra Pradesh High Court has observed and held that it is accepted position in law that when essential qualifications are prescribed and incidentally it is specified that a given additional qualification or criteria is 'desirable' or persons with such specified additional criteria or qualifications would be 'preferred' to others, it only means that in the event of two persons achieving a similar bench mark or above bench mark, the persons with specified additional qualifications or criteria would be selected subject to other conditions of compliance. In the method adopted by the tender evaluation committee, this principle was ignored and therefore the decision making process suffers from incurable defect. In the method adopted by the tender evaluation committee, this principle was ignored and therefore the decision making process suffers from incurable defect. In the above case, the Court found that the committee, which evaluated the tenders, identified eight other qualifying conditions besides three mandatory criteria and while allotting marks, the mandatory criteria were allotted low weightage and for other qualifying conditions, which were described in the tender notice as "desirable" or "preferred" qualifications were given more weightage. Therefore, held to be irrational, which in my view, has no applicable in the present case. 42. In the case of Chatradhar Das (Supra), a co-ordinate Bench of this Court, after having considered the decisions of the Hon’ble Supreme Court, has held that terms of a tender is a policy matter and, therefore, the Government must be permitted ample latitude to settle the terms and conditions in respect thereof. There can be hardly any debate on the settled law that the State must have the freedom of entering into contract but what must be borne in mind is that the procedure adopted by the State or its instrumentality to award a government contract must not only be reasonable, just and fair but the same must also aim towards serving the larger public interest. In the name of freedom of entering contracts, the State cannot claim to have unfettered discretion. It has further held that it is a matter of common knowledge that a school uniform is required to be stitched as per the measurement applicable to each individual student. Therefore, it is not under stood as to how and why a textile mill engaged in the business of manufacturing cloths has been found to be more suitable for manufacturing school uniforms. There is no discernible reason as to why the respondents had to choose owners of textile mills with over 100 crores turn over so as to prepare a panel of suppliers. The court while rejecting the justification of the authority not supported by record, has held that if quality control was the only reason, there is no reason to presume that a composite textile mill will not falter on such count. That apart quality of the uniforms and their timely supply can always be ensured by inserting stringent conditions in the contract agreement. That apart quality of the uniforms and their timely supply can always be ensured by inserting stringent conditions in the contract agreement. A mere presumption that smaller business groups would fail to deliver quality items, which is merely school uniform, cannot be the justification for excluding such entrepreneur from the realm of the contract. Accordingly, found that the eligibility condition in the Eol, has been designed in fashion so as to ensure that the supply orders are received only by a few composite textile mill to the exclusion of all others, which would lead to concentration of wealth in a few hands to the common detriment and the respondent-authorities have failed to provide sufficient justification for incorporating the impugned eligibility conditions and the impugned eligibility clause is neither in consonance of the provisions of the tender nor is it aimed at serving the larger public interest. Therefore, on the facts of that case, it was found have inserted to favour a chosen bidder, which in my view, is distinguishable with the present case. 43. In the case of Montecarlo Limited (Supra), the Hon’ble Supreme Court has held which is reproduced herein under:- “29. Thus, from the aforesaid decisions, it can be seen that a court before interfering in a contract matter in exercise of powers 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 c accordance with relevant law could have reached"? And (ii) Whether the public interest is affected? If the answers to the above questions are in the negative, then there should be no interference under Article 226”. 44. In the case of Sky Power Southeast Solar India Private Limited (Supra), the Hon’ble Supreme Court has held which is reproduced herein under:- “75. We would, therefore, sum up as to when an act is to be treated as arbitrary. The Court must carefully attend to the facts and the circumstances of the case. It should find out whether the impugned decision is based on any principle. If not, it may unerringly point to arbitrariness. We would, therefore, sum up as to when an act is to be treated as arbitrary. The Court must carefully attend to the facts and the circumstances of the case. It should find out whether the impugned decision is based on any principle. If not, it may unerringly point to arbitrariness. If the act betrays caprice or the mere exhibition of the whim of the authority it would sufficiently bear the insignia of arbitrariness. In this regard supporting an order with a rationale which in the circumstances is found to be reasonable will go a long way to repel a challenge to State action. No doubt the reasons need not in every case be part of the order as such. If there is absence of good faith and the action is actuated with an oblique motive, it could be characterised as being arbitrary. A total non-application of mind without due regard to the rights of the parties and public interest may be a clear indicator of arbitrary action. A wholly unreasonable decision which is little different from a perverse decision under the Wednesbury doctrine would qualify as an arbitrary decision under Article 14. Ordinarily visiting a party with the consequences of its breach under a contract may not be an arbitrary decision”. 45. In the case of Air India Ltd vs. Cochin International Airport Ltd. (Supra), the Hon’ble Supreme Court held that the award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision consideration which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is a called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the could should intervene. 46. In the case of Association of Registration Plates (Supra), the Hon’ble Supreme Court held that 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. Article 14 of the Constitution prohibits the Government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim a fundamental right to carry on business with the Government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated, to the detriment of public interest. 47. In the case of Jagdish Mandal (Supra), the Hon’ble Supreme Court held that judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made lawfully and not to check whether choice or decision is sound. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. 48. On perusal of the decisions of the Hon’ble Supreme Court, it is settled that the Writ Court should refrain itself from imposing its decision over the decision of the employer. The Court does not have the expertise to examine the terms and conditions. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. 49. It is also settled position that that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. 49. It is also settled position that that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It has been held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere. While invoking power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. 50. The Hon’ble Supreme Court has also held that it is not for the Courts to interpret the terms of a contract, when the concerned authority has given a clear interpretation of the same as the author of the document is the best judge to determine its requirements. 51. Reverting back to the present case, as noted herein above that Clause 20 prescribes the eligibility criteria to participate in the NIeT whereas qualification points at Annexure-B, prescribes the method of assessment of capability and relative merit amongst bidders. 51. Reverting back to the present case, as noted herein above that Clause 20 prescribes the eligibility criteria to participate in the NIeT whereas qualification points at Annexure-B, prescribes the method of assessment of capability and relative merit amongst bidders. The terms and conditions are to be fulfilled by bidders and also to qualify the points mentioned in the qualification points. Serial No. 4 of the qualification points refers to average turnover of Rs.10.00 crores. Serial No. 5 is with regard to the experience of the bidders in the other States as it is required to assess the experience of the bidder. Serial No.8 provides that net Worth of the bidder during the last financial year i.e. 2022- 23 as per audited balance sheet supported by CA certificate with the following points- Upto 20 crores: 5 points, Upto 25 crores: 10 points, Upto 30 crores: 15 points, Upto 35 crores: 20 points. The requirement of having strong financial health of the bidders for execution of the contract of present nature, in my view, appears reasonable. It is settled law that in the case of a tender, the author of the tender document is the best Judge of its requirements and the interpretation of the tendering authority has to be given due deference. 52. As held by the Hon’ble Supreme Court that that grant of judicial relief at the instance of a party which does not fulfill the requisite criteria is something which could be termed as misplaced. The relevant consideration being that the terms of tender are not open to challenge unless it is so tailor-made to favour some bidders and manifestly arbitrary and unreasonable, no judicial relief at the instance of a party which does not fulfill the requisite eligibility criteria can be granted. That apart, there is no overwhelming public interest and there is no materials to show that the terms of tender particularly the qualification points at Annexure-B has been incorporated and so tailor-made to favour some particular bidders or of any malafide against any person in substance, or collateral reasons for such prescription, except mere plea and submission to that effect by the learned Senior counsels for the petitioners. 53. 53. In view of what has been discussed herein above and the law laid down by the Hon’ble Supreme Court in contract matter, this court finds the terms and conditions of the tender provided by the respondent authority in prescribing qualifications points to the clauses of NIeT dated 20.02.2024, reasonable. No ground is made out by the petitioners for interference as the action of respondent authority does not suffer from manifest illegality, arbitrariness or malafide. Thus, no interference is called for. 54. Consequently, the writ petitions stand dismissed being devoid of merit. However, no order as to costs.