The terms of invitation to tender are not open to judicial scrutiny unless they are arbitrary, discriminatory, mala fide, or actuated by bias.

JUDGMENT :

1. National Hydroelectric Power Corporation invited e-tender (NIT) i.e., online electronic bids (e-tender) for Hiring of Tata Buses LPT1512 TC BSIV with horizontal protective grills on the windows or equivalent with drivers and cleaners for 02 years for Salal Power Station, Jyotipuram, District Reasi, J&K.

2. The tender for three buses was issued by the respondent No. 3 vide Bid Nos. GEM/2022/B/1887815 dated 24.01.2022, GEM/2022/B/1904088 dated 29.01.2022 and GEM/2022/B/1927563 dated 05.02.2022.

3. The petitioner, who is a sole proprietor of the firm under the name and style of M/s Pritam Bus Service is an Army contractor and fleet owner possess the requisite experience in the business of transportation and executed various contracts of transportation was unable to participate in the same due to eligibility condition prescribed in these e-NITs though the petitioner was earlier awarded contract for hiring of three Tata Buses for a period of two years by the respondent which he successfully completed.

4. The petitioner is aggrieved of the eligibility condition prescribed in these tenders that only Project Affected Families of Salal Power Station District Reasi (hereinafter referred to as PAF) are eligible to participate which debars the petitioner's firm for participation in the tendering process as arbitrary, not justified and discriminatory. The condition of eligibility which is under challenge in this petition reads as under :

“To safeguard the economic opportunities offered voluntarily to PAFs of Salal Power Station, District Reasi are only eligible to participate in the tender”.

5. Mr. Achal Sharma, learned counsel for the petitioner submits that this condition precludes the petitioner from participating in the tendering process even though the petitioner's firm satisfies all the requirements and possess the competence to participate and perform the contract. The petitioner's firm earlier allotted the tender for the same work in the year 2019 which he executed without any complaint. According to the petitioner, the impugned condition of tender is violative of Article 14 of Constitution of India which intends to favour only certain class of persons and eliminate all others from participating in the bidding process for which there is no reasonable justification. The respondents failed to act in a reasonable manner to afford equal opportunity of participation to all and, therefore, the eligibility condition is arbitrary and amenable to judicial review.

6. It is further contended that these conditions which have been imposed are an arbitrary exercise of power, as such, the same required to be set aside. The impugned bids whereby the respondents have incorporated eligible criteria only to PAF is also unreasonable because the Salal Power Project was under operation for more than 50 years back and no such condition has been imposed earlier, therefore, incorporating the same on the plea that economic interest of Project Affected Families is to be safeguarded is unwarranted and is required to be set aside. It is further submitted that this condition has been incorporated only to restrict participation and award the contract to few favoured contractors of the choice of the respondents. This condition is being unreasonable, irrational and has no rational or the nexus with the object sought to be achieved, therefore, is violative of Articles 14 and 16 of the Constitution of India and is required to be set aside.

7. Mr. A.P. Singh, learned counsel appearing for the respondents submits that this writ petition is not maintainable as the aforesaid tendering process has been initiated pursuant to the approval of the Board of Directors of the NHPC Ltd. a public sector enterprise company of the Government of India to implement a policy to safeguard the interest and welfare of PAF who have been affected by the construction of the said project.

8. In view of the larger public interest and to uplift their social and economic status, the said p