S. Sujatha, J.

1. These petitions involving similar and akin issues, have been considered together and are taken up for final disposal at this stage with the consent of the learned counsel appearing for the parties.

2. The petitioners have assailed the tender bearing Enquiry Nos. BESCOM/BCP-11092/ 2018-19/BMAZ, BESCOM/BCP-1093/2018-19/BRC, BESCOME/BCP-1094/2018-19/ Ramanagara Circle, BESCOM/BCP-1095/2018-19/Kolar Circle, BESCOM/BCP-1095/ 2018-19/Kolar Circle, BESCOM/BCP-1096/2018-19/Tumkur Circle and BESCOM/ BCP-1097/2018-19/Davanagere Circle, all dated 23.11.2018 issued by the respondents in so far as Clauses 5(b) to (d) are concerned.

3. The petitioners are claiming to be the registered proprietorship concerns and partnership firms engaged in the business of manufacturing, testing and supply of Prestressed Cement Concrete Poles (PSCC) and Reinforced Cement Concerte (RCC) Poles of different dimensions and are into manufacturing, testing and supply of PSCC and RCC poles to BESCOM and to various contractors under Turnkey Projects who in turn carry out work for Electricity Supply Companies and other private purchasers. It is contended by the petitioners that they have participated in various tenders and Turnkey Projects, by manufacturing, testing and supply of PSCC and RCC poles and ESCOMs. The BESCOM and Contractors have issued certificate of merits to the petitioners considering the successful and satisfactory job maintained in the quality of poles and timely delivery including the BESCOM.

4. It is contended that the respondent Nos. 2 and 3 have called for tenders for supply of RCC and PSCC poles for 6 Circles of BESCOM under different notifications through e-procurement portal. The tender notifications issued by the respondents prescribes the qualifying requirements for the bidders. The petitioners are aggrieved by the Clauses 5(b)(c) and (d) of the tender notifications dated 23.11.2018. Hence, these writ petitions.

5. Learned counsel Sri. Vivek Holla representing the petitioners' counsel, during the course of arguments would restrict the scope of the writ petitions to the clauses 5 (c) and (d) of the tender notification. It was submitted that the petitioners possess adequate experience to supply PSCC and RCC poles to various contractors under Turnkey Projects but such an experience possessed by them would not avail them to participate in the tender process in view of the Clauses 5(c) and (d). Sub-clauses (c) and (d) of Clause 5 now structured, only qualifies such class of manufactures and vendors who are supplying to the ESCOMs and PSCCs to participate in the tender process resulting in the elimination of other players who are in the business of supplying the RCC and PSCC poles to Private entities which would tantamount to discrimination without basis and has no nexus to the objective that is sought to be achieved.

6. The learned Senior Counsel contended that the said qualifying clause has no bearing on the quality of the material to be supplied or the competence of the supplier/vendor. It was further contended that the Clause 5(d) is consequential as the certifying authority is the Executive Engineer or equivalent officer of the concerned Electrical utilities and only those who have supplied minimum 25% of the tendered quantity would be able to secure the completion certificate and all other players in the private market would be eschewed from the process of participation which is discriminatory and arbitrary. It was argued that the objective of tender process is not only to adhere to a transparent mechanism but to encourage the competition equally to all the players in the market resulting in getting a fair offer. Learned counsel placed reliance on the judgment of the Hon'ble Apex Court in the case of National Highways Authority of India vs. Gwalior-Jhansi Expressway Limited, (2018) 8 SCC 243 in support of his contention.

7. Learned Senior Counsel Sri. S. Naganand, appearing for the respondent Nos. 1 and 2 argued that t