1. The petitioner has filed this writ petition for quashing Annexure-10 advertisement and Brochure dt. 09.05.2022 issued by the respondents for the purpose of engaging service provider for providing manpower and various services at the retail outlet, namely, Bharat Petroleum-Ranchi, alleging that some of the conditions in the advertisement and brochure were tailor-made conditions for selection of a service provider for the Company Owned and Company Operated Pump. He sought stay operation of the selection process.

2. Initially, on 16.05.2024, this Court had granted an ad interim stay of the Provisional Merit Panel at page 179 and directed that during pendency of the writ petition, the respondents should not proceed with the said Provisional Merit Panel. The said order also permitted the petitioner to operate the retail outlet since he was previously the successful tenderer.

3. The principal objection of the petitioner in the writ petition was that the criteria of managerial experience of working in any sector and capability to provide suitable manpower, which were essential qualifications in the earlier advertisements, pursuant to which the petitioner was selected as a service provider in 2017 and in 2020, were modified in the impugned advertisement by excluding the experience parameter altogether and by prescribing new criteria mentioned at page 104 i.e., including parameter of age of the service provider, educational qualification, financial capability and personal interview.

4. Sri Rajiv Ranjan, Senior Counsel appearing for the petitioner, contended that a person with satisfactory experience of running an outlet like the petitioner for six years cannot be ousted by providing age criteria and educational qualification, which, according to the petitioner, may even be Class 10.

5. We may point out in the amended criteria prescribed by the respondents, it is not as if the previous experience has been totally ousted from consideration. In the heading “personal interview” at page 104 to 105, it is stated as under:-

iv. Personal Interview

Evaluation under this head will be made based on leading questions during interview to assess the candidate’s knowledge/skills on following parameters:

• Business environment (Labour Laws, ESIC, PEF, Shops & Establishment Act, Factories Act, Contract Labour (R&A) Act, Local Laws such as Trade / Municipal Laws, Safety and Environment and other statutory rules etc.) – 10 marks.
• Work experience, communication skills, presentablity etc. – 5 mark
•  On customer service – 5 mark.”(emphasis supplied)

6. Work experience, as can be seen, is also a matter on which evaluation would be done in the personal interview, though the weightage given is probably not much.

7. I.A. No. 8719 of 2024 has been filed by the respondents to vacate the said interim order passed on 16.05.2024.

8. It is stated by respondent- Bharat Petroleum Corporation that Ms. Shreya Anand was declared as the most suitable candidate by the respondents; and without impleading her, the writ petition has been filed challenging the provisional merit list alleging that it was tailor-made to suit her.

It is pointed out that the selection brochure challenged in the writ petition has not been framed by the Bharat Petroleum Corporation alone, but it was framed by all the three Oil Marketing Companies, i.e., Indian Oil Corporation Limited, Hindustan Petroleum Corporation Limited and Bharat Petroleum Corporation Limited jointly, and it was approved by the Ministry of Petroleum and Natural Gas and applies to all the three Oil Marketing Companies.

It is pointed out that in the criteria of educational qualification, the petitioner secured only 18 marks, while the successful candidate Ms. Shreya Anand got 25 marks, because the petitioner was only a Class 12 pass, while the successful candidate had an MBA degree.

It is pointed out that in 2017, selection brochure had given weightage for managerial experience of working in any sector, but the same had been done away with in the brochure of 2022.

It is stated that the tenure of the petitioner was only from 22.03.2021 to 21.03.2024 and he was given an extension from 01.04.2024 to 30.06.2024 or till appointment of a new service provider, whichever is earlier.

9. Learned Senior Counsel for the petitioner reiterated his contention that exclusion of the work experience from the criteria for selection of a service provider is discriminatory and arbitrary.

10. Reliance is placed by the learned Senior Counsel for the petitioner on the judgment of Madhya Pradesh High Court in Balaji Security Services Pvt. Ltd. Vs. State of Madhya Pradesh 2024 SCC OnLine MP 484 , to contend that judicial intervention in contracts involving the State or instrumentalities of the State should be considered in the light of the overwhelming public interest and also looking at the question whether there has been infirmity in the decision making process.

11. In Balaji Security Services Pvt. Ltd ( 1 supra), the impugned tender had provided for a Tie-Breaking clause for choosing L-1 on the basis of maximum number of manpower supplied by such bidder specifically in the Calendar Year 2022 only.

This was found fault with by the Madhya Pradesh High Court on the ground that there is no justification for the same, as there was no nexus between the tender clauses and the objects sought to be achieved by it and it was intentionally done to accommodate respondent no.3.

It held that the respondents did not act in a fair, transparent and non-partisan manner, and that the High Court was obliged to interfere on the ground of arbitrariness and violation of principle of natural justice.

12. Senior Counsel appearing for the respondents, however, refuted the said contentions and pointed out that terms of the invitation to tender are not open to judicial scrutiny as the same are in the realm of contract and a bidder/tenderer cannot be permitted to challenge the bid condition/clause which might not suit him and/or inconvenient to him. He also contended that the bidding conditions were applicable to all and, therefore, cannot be said to be tailor-made. According to him, basing criteria on educational qualification is not discriminatory or arbitrary, and is a reasonable restriction under Article 19(1)(g) of the Constitution of India.

13. In Michigan Rubber (India) Limited Vs. State of Karnataka and Others (2012) 8 SCC 216 , the Supreme Court dealt with the scope of interference with the conditions of a tender document and summed up the principles as under:-

“23. From the above decisions, the following principles emerge:

(a) The basic requirement of Article 14 is fairness in action by the State, 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. 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 the 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 the 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 a fundamental right to carry on business with the Government.

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” 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.”

(emphasis supplied)

14. In the instant case, by applying the said principles, we are not able to find anything malicious on part of the Bharat Petroleum Corporation in prescribing conditions reducing weightage to the work experience.

15. We are conscious of the fact that a contract is a commercial transaction; evaluating tenders and awarding contracts are essentially commercial functions; no person can claim a fundamental right to carry out business with Government or instrumentality of the Government; and, the greater latitude is required to be conceded by the State authorities in formulating conditions of a tender document and awarding a contract. 

16. The Supreme Court in Monarch Infrastructure (P) Ltd Vs. Commissioner Ulhasnagar Municipal Corporation (2000) 5 SCC 287 , declared that the terms and conditions of the tender are prescribed by Government bearing in mind the nature of the contract; and in such matters, authority calling for the tender is the best judge to prescribe the terms and conditions of the tender. It is not for the courts to say whether the conditions prescribed in the tender under consideration were better than the ones prescribed in the earlier tender invitation; and that terms of the invitation to tender are not open to judicial scrutiny, since they are in the realm of contract and Government must have a free hand in setting the terms of the tender.

17. In M/s. N.G. Projects Limited Vs. Vinod Kumar Jain (2022) 6 SCC 127 , the Supreme Court had cautioned the High Courts about granting of interim orders in contractual matters and for interfering with contracts involving technical issues, where there is a requirement of certain expertise to adjudicate upon such issues. The Supreme Court held that the High Court does not have expertise to examine the terms and conditions of the present day economic activities of the State, that this limitation should be kept in view and the Courts should be even more reluctant in interfering with contracts involving technical issues. The approach of the courts should be not to find fault with a magnifying glass in its hands, rather, the Courts should examine as to whether the decision making process is after complying with the procedures contemplated by the tender conditions

18. Applying these decisions to the instant case, we note that qualifications prescribed in the brochure of 2022 by the respondents were, in fact, framed not only by the respondent-Bharat Petroleum Corporation, but other two Oil Marketing Companies as well, and they would apply to all tenderers/bidders for all the three companies. It cannot be said that such a clause was tailor-made to suit the successful bidder in the instant case. We reiterate that the respondent, which floated the tender, is the best judge of its requirements and in the absence of any mala fides or arbitrariness, prescription by respondents of the conditions in the brochure of 2022 cannot be found fault with.

19. Accordingly, I.A. No.8719 of 2024 is allowed; order dt. 16.05.2024 in W.P. (C) No.2613 of 2024 is vacated; and the writ petition is dismissed. No costs.

20. Pending Interlocutory Applications, if any, stand disposed of