IMPORTANT POINT
Tender – Terms and conditions of Invitation to Tender are within domain of tenderer/tender making authority and are not open to judicial scrutiny, same being in realm of contract, unless they are arbitrary, discriminatory or mala fide.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 14.07.2021 passed by the High Court of Delhi at New Delhi in Writ Petition (Civil) No. 5722 of 2020, by which the High Court, in exercise of its powers under Article 226 of the Constitution of India, has allowed the said writ petition and has struck down the decision to carry out region-wise sub-categorisation of the 49 airports falling under Group D-1; the stipulation that only previous work experience in respect of providing GHS to scheduled aircrafts shall be considered acceptable for the purpose of the impugned tender/RFP and the revised minimum Annual Turnover criteria of INR 18 crores as discriminatory and arbitrary, the Airport Authority of India (for short, ‘AAI’) has preferred Civil Appeal No. 6615/2022. The subsequent order dated 24.09.2021 rejecting the review application being Review Petition No. 150/2021 to review and recall the final judgment and order passed in Writ Petition No. 5722/2020 is also the subject matter of Civil Appeal No. 6616/2022.

2. The facts leading to the present appeals in a nutshell are as under:

The appellant herein – AAI floated a Request for Proposal (for short, ‘RFP’)/tender for concession of ground handling services at Group ‘A’, ‘B’ and ‘C’ airports owned by it on 01.05.2018. The appellant herein – AAI also floated a RFP/tender for concession of ground handling services at Group ‘D’ airports owned by it on 02.05.2018. That the RFP for Group ‘D’ airports was modified multiple times and finally republished as Corrigendum No. 21. However, subsequently, vide letter dated 10.06.2019, AAI cancelled the tender earlier floated for Group ‘D’ airports. That thereafter, the AAI published a fresh RFP on 28.07.2020 for Group ‘D1’ airports. The respective RFPs contained the eligibility criteria which include the technical and financial qualifications.

2.1 Respondent No.1 herein – Centre for Aviation Policy, Safety & Research (CAPSR) filed a writ petition before the High Court challenging the eligibility criteria and the respective RFPs with respect to Group ‘C’, ‘D1’ and ‘D2’ airports on the ground that the eligibility criteria contained in the RFPs are not only a radical departure from the past, but also stipulate onerous technical and financial qualifications, thereby rendering most of the extant Ground Handling Agencies (for short, ‘GHAs’) ineligible to participate in the tender process, especially those which have been providing Ground Handling Services (for short, ‘GHS’) at the smaller airports of the country, that fall under the categories of Groups ‘C’, ‘D1’ and ‘D2’ airports, for the last many years. It was also the case on behalf of the original writ petitioner that the prescribed technical and financial qualifications have no corelation with the GHS that the service providers are expected to provide at the Groups ‘C’, ‘D1’ and ‘D2’ airports and that the same have been arbitrarily and whimsically tailored with a view to oust the existing GHS providers, who have been providing these services for years, without any complaint.

2.2 The writ petition was opposed by the AAI by filing a counter affidavit. It was the case on behalf of the AAI that the objective of the tenders for Group ‘C’, ‘D1’ and ‘D2’ airports was not to oust small players but sought to exclude GHAs, which lack expertise and infrastructure and used casual and unskilled labour in workforce which allowed them to offer better rates as compared to other GHAs. It was also the case on behalf of the AAI that considering the importance of experience in GHS for scheduled aircrafts given the nature of work involved in scheduled flights are wider than non-scheduled flights. Thus, 36 months of experience in past 7 years of handling ground handling services for scheduled flights was reasonable. It was also submitted on behalf of the AAI that the earnest money deposit, Annual Turnover criterion and qualifying experience criterion is not arbitrar