The main legal point established in the judgment is the limited jurisdiction of the court to interfere in Tender conditions and the requirement for a discernible reason and non-arbitrariness in the decision-making process.

JUDGMENT :

1. Heard Sri Prashant Chandra, Senior Advocate appearing on behalf of the petitioner, Sri Savitra Vardhan Singh, learned counsel for opposite party nos. 1 & 2, Sri Shobhit Mohan Shukla, learned counsel for the opposite party no. 4 and learned standing counsel for the State.

2. By this writ petition, a challenge is made to Clause 46(4) of the Tender Specification dated 16.01.2020.

3. It is a case where side opposite floated tender to procure the medicines under Ayush Mission. The tender was floated on 16.01.2020 containing certain terms and conditions. A challenge to Clause 46 (4) of the Tender has been made, as it requires average turnover of 5 crore in last three years with total turnover of Rs. 15 crore in the year 2016-17, 2017-18 & 2018-19.

4. Challenge to the eligibility condition is on requirement of the prior turnover. It is mainly in reference to the Government order dated 10.03.2016 under para 16 of the Public Procurement Policy for Micro and Small Enterprises order of 2012 (in short 'the order of 2012'). It was to relax the condition of prior experience and prior turnover criteria. A reference of Para 4 of the said order has been given to show a direction to the Central Ministries/Departments/Public Sector Undertakings to relax the requirement of prior turnover and prior experience subject to procurement of quality material with technical specifications.

5. It is submitted that the conditions of prior turnover is in ignorance of the Government Order dated 10.03.2016 under para 16 of the order of 2012. Para 16 permits Government to remove the difficulties for procurement of goods and services from Micro and Small Enterprises. The respondents should not have kept the requirement of prior turnover, as it otherwise reduces competitions.

6. Coming to the facts of this case, it is submitted that by virtue of Clause 46(4) of the Tender, there would be no competition as only one enterprise would be eligible to get contract. It is for the reason that after the tender notice, only three enterprises participated therein out of which one is petitioner not confirming to the requirement of minimum turnover criteria. Out of two others, one Kerala State Homoeopathic Cooperative Pharmacy would also be eliminated having been blacklisted. It would leave only one Company namely M/s. Goa Antibiotics and Pharmaceuticals Limited. The aforesaid is not only contrary to the Government Order dated 10.03.2016 but to eliminate competition at the cost of public exchequer.

7. In view of above, a challenge to tender condition has been made. No purpose is sought to be achieved by putting condition of prior turnover in procurement of drugs under the Ayush Mission. A reference of Ayush Mission has also been given. It has been introduced by the Government of India to purchase Drugs. The Scheme introduced by the Government of India does not provide a condition of prior turnover for procurement of the drugs. Accordingly, the procurement agency could not have put a condition de hors the Scheme of the Government of India. The entire funding is by the Central Government thus the State Ayush Society Mission had no authority to act contrary to the Scheme.

8. The complete framework for the implementation of Ayush Mission has been given. The procurement of drugs has to be made from M/s. IMPC or a Public Sector Undertaking or pharmacies under the State or the cooperative Societies manufacturing quality drugs. Emphasis of the procurement agency should have been on the purchase of quality drugs than prior turnover eliminating competition.

9. Reference of the Government Procurement Policy has also been given. Therein also, no direction exist for a condition of prior minimum turnover. The condition laid down by the opposite party no. 4 is thus arbitrary and otherwise suffers from mala fide, as it intend to favour only one party leaving others. In the light of aforesaid, prayer is to set aside clause 46(4) of the Tender with a direction to the opposite parties to c