Andhra Pradesh High Court - Amravati
K Eswar Reddy vs The State Of Andhra Pradesh on 24 January, 2023
Bench: B Krishna Mohan
HIGH COURT OF ANDHRA PRADESH
WRIT PETITION Nos.19712, 21018, 21023, 21500, 21860, 21862,
21864, 21866 and 30848 of 2022
W.P.No. 19712 of 2022:
# 1. K. Eswar Reddy.
2. K. Chengalarayudu Naidu.
......Petitioners
Vs.
$ The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District and other.
.....Respondents
W.P.No. 21018 of 2022:
#T. Sravana Kumar Reddy.
......Petitioner
Vs.
$ The State of Andhra Pradesh,
rep. by its Principal Secretary,
School Education Department,
Velagapudi,Guntur District
and other.
....Respondents
W.P.No. 21023 of 2022
1. #T. Sravana Kumar Reddy.
......Petitioner
Vs.
$ The State of Andhra Pradesh,
rep. by its Principal Secretary,
School Education Department,
Velagapudi,Guntur District and
other.
....Respondents
W.P.No. 21500 of 2022
#P. Yella reddy.
......Petitioner
Vs.
$ The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District and other.
....Respondents
W.P.No. 21866 of 2022:
#M. Ramana Reddy.
......Petitioner
Vs.
$ The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District and other.
....Respondents
W.P.No.21860 of 2022:
#P. Janardhan Reddy.
......Petitioner
Vs.
$ The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District and other.
....Respondents
W.P.No. 21862 of 2022:
#S. Surendra Rao.
......Petitioner
Vs.
$ The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District and other.
....Respondents
W.P.No. 21864 of 2022:
#M. Chandrasekar Reddy.
......Petitioner
Vs.
$ The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District and other.
....Respondents
W.P.No. 30848 of 2022:
#Dommalapati Prakash.
......Petitioner
Vs.
$ The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District and other.
....Respondents
DATE OF ORDER PRONOUNCED: 24.01.2023.
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE B KRISHNA MOHAN
1. Whether Reporters of Local newspapers may
be allowed to see the Order? Yes/No
2. Whether the copies of order may be marked
to Law Reporters/Journals? Yes/No
3. Whether Your Lordships wish to see the fair
Copy of the Order? Yes/No
_______________________________
JUSTICE B KRISHNA MOHAN
* THE HON'BLE SRI JUSTICE B KRISHNA MOHAN
+ WRIT PETITION Nos.19712, 21018, 21023, 21500, 21860, 21862,
21864, 21866 and 30848 of 2022
% 24.01.2023
W.P.No. 19712 of 2022:
# 1. K. Eswar Reddy, S/o. K.
Raghava Reddy, aged about 50
years, R/o. Nennuru Village,
Ramachandrapuram Mandal,
Chittoor District.
2. K. Chengalarayudu Naidu, S/o.
Srinivasulu Naidu, aged about 56
years, R/o. Kammapalli Village,
Ramachandrapuram Mandal,
Chittoor District
...Petitioners
Vs.
$ 1. The State of Andhra Pradesh,
rep. by its Principal Secretary,
School Education
Department,
Velagapudi,Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No. 129,
Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
.....Respondents
W.P.No. 21018 of 2022:
# T. Sravana Kumar Reddy, S/o.
Prabhakar Reddy, Aged about
37 years, R/o. Sannapalli
Village, Kazipeta Mandal,
Kadapa District.
......Petitioner
Vs
$ 1. The State of Andhra Pradesh,
rep. by its Principal Secretary,
School Education
Department, Velagapudi,
Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No. 129,
Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
W.P.No. 21023 of 2022:
# T. Sravana Kumar Reddy, S/o.
Prabhakar Reddy, Aged about 37
years, R/o. Sannapalli Village,
Kazipeta Mandal, Kadapa
District.
......Petitioner
Vs.
$ 1. The State of Andhra Pradesh,
rep. by its Principal Secretary,
School Education
Department,
Velagapudi,Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No. 129,
Road No. 5, Nagarjuna Nagar,
Vijayawada, NTR District.
....Respondents
W.P.No. 21500 of 2022:
#P. Yella Reddy, S/o. P. Chinna
Yella Reddy, aged about 42 years,
R/o. Naraharipuram Village,
Veduru Mandal, YSR Kadapa
District.
......Petitioner
Vs.
$ 1. The State of Andhra Pradesh,
rep. by its Principal Secretary,
School Education
Department,
Velagapudi,Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No. 129,
Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
W.P.No. 21866 of 2022:
#M. Ramana Reddy, S/o. Adi
Reddy, Aged about 29 years,
Occu: Poultry Farmer, R/o. 2-71F
Pusapagulla Village and Mandal,
Prakasam District.
......Petitioner
Vs.
$ 1. The State of Andhra Pradesh,
rep. by its Principal Secretary,
School Education
Department,
Velagapudi,Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No. 129,
Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
W.P.No.21860 of 2022:
#P. Janardhan Reddy, S/o. P.
Obula Reddy, aged about 50 years,
Occu: Poultry Farmer, R/o. 1-93,
Chinnagurvaluru Village and
Mandal.
......Petitioner
Vs.
$ 1. The State of Andhra Pradesh,
rep. by its Principal Secretary,
School Education
Department,
Velagapudi,Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No. 129,
Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
W.P.No. 21862 of 2022:
#S. Surendra Rao, S/o. Venkoji
Rao, Aged about 52 years, Occu:
Poultry Farmer, R/o.
Desireddyganpalli Village, Pileru
Mandal, Annamayya District.
......Petitioner
Vs.
$ 1. The State of Andhra Pradesh,
rep. by its Principal Secretary,
School Education
Department,
Velagapudi,Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No. 129,
Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
W.P.No. 21864 of 2022:
# M. Chandrasekar Reddy, S/o.
Yerulula Reddy, Aged about 50
years, Occu: Poultry Farmer, R/o.
28/3/998, JNTU College Road,
Ananthapuram, Ananthapuram
District.
......Petitioner
Vs.
$ 1. The State of Andhra Pradesh,
rep. by its Principal Secretary,
School Education
Department,
Velagapudi,Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No. 129,
Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
W.P.No. 30848 of 2022:
#Dommalapati Prakash, S/o. Nagula
Naidu, Aged about 53 years, Occ:
Poultry Farmer, R/o. Door No. 10-E,
Vijayanagar Colony, Kothapeta,
Chandragiri, Tirupati District.
......Petitioner
Vs.
$ 1. The State of Andhra Pradesh,
rep. by its Principal Secretary,
School Education
Department,
Velagapudi,Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No. 129,
Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
!Counsel for the petitioners : Sri K. Naga Phanindra
Sri. K. Rathangapani Reddy
Sri. B.S. Venkata Ramesh
Sri. Balaji Medamalli
^Counsel for the respondents : Government Pleader for School
Education
Sri. G. Seena Kumar,
Sri Ravi Teja Padiri.
<Gist:
>Head Note:
? Cases referred:
(2012) 8 SCC 216
(2009) 6 SCC 171
2022 Live Law (SC) 392
Laws (Mad) 2020-3-209
Laws(Tlng)-2022-4-95
IN THE HIGH COURT OF ANDHRA PRADESH ::
AMARAVATI
THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN
WRIT PETITION Nos.19712, 21018, 21023, 21500, 21860, 21862,
21864, 21866 and 30848 of 2022
(THROUGH PHYSICAL MODE)
W.P.No. 19712 of 2022:
1. K. Eswar Reddy, S/o. K.
Raghava Reddy, aged about 50
years, R/o. Nennuru Village,
Ramachandrapuram Mandal,
Chittoor District.
2. K. Chengalarayudu Naidu,
S/o. Srinivasulu Naidu, aged
about 56 years, R/o.
Kammapalli Village,
Ramachandrapuram Mandal,
Chittoor District
......Petitioners
Vs.
1. The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No.
129, Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
.....Respondents
W.P.No. 21018 of 2022:
1. T. Sravana Kumar Reddy,
S/o. Prabhakar Reddy,
Aged about 37 years, R/o.
Sannapalli Village, Kazipeta
Mandal, Kadapa District.
......Petitioner
Vs.
1. The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No.
129, Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
W.P.No. 21023 of 2022
1. T. Sravana Kumar Reddy,
S/o. Prabhakar Reddy,
Aged about 37 years, R/o.
Sannapalli Village, Kazipeta
Mandal, Kadapa District.
......Petitioner
Vs.
1. The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No.
129, Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
W.P.No. 21500 of 2022
P. Yella reddy, S/o. P. Chinna
Yella Reddy, aged about 42
years, R/o. Naraharipuram
Village, Veduru Mandal, YSR
Kadapa District.
......Petitioner
Vs.
1. The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No.
129, Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
W.P.No. 21866 of 2022:
M. Ramana Reddy, S/o. Adi
Reddy, Aged about 29 years,
Occu: Poultry Farmer, R/o. 2-
71F Pusapagulla Village and
Mandal, Prakasam District.
......Petitioner
Vs.
1. The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No.
129, Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
W.P.No.21860 of 2022:
P. Janardhan Reddy, S/o. P.
Obula Reddy, aged about 50
years, Occu: Poultry Farmer,
R/o. 1-93, Chinnagurvaluru
Village and Mandal.
......Petitioner
Vs.
1. The State of Andhra
Pradesh, rep. by its
Principal Secretary, School
Education Department,
Velagapudi,
Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No.
129, Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
W.P.No. 21862 of 2022:
S. Surendra Rao, S/o. Venkoji
Rao, Aged about 52 years,
Occu: Poultry Farmer, R/o.
Desireddyganpalli Village,
Pileru Mandal, Annamayya
District.
......Petitioner
Vs.
1. The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No.
129, Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
W.P.No. 21864 of 2022:
M. Chandrasekar Reddy, S/o.
Yerulula Reddy, Aged about 50
years, Occu: Poultry Farmer,
R/o. 28/3/998, JNTU College
Road, Ananthapuram,
Ananthapuram District.
......Petitioner
Vs.
1. The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No.
129, Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
W.P.No. 30848 of 2022:
Dommalapati Prakash, S/o.
Nagula Naidu, Aged about 53
years, Occ: Poultry Farmer, R/o.
Door No. 10-E, Vijayanagar
Colony, Kothapeta, Chandragiri,
Tirupati District.
......Petitioner
Vs.
1. The State of Andhra
Pradesh, rep. by its Principal
Secretary, School Education
Department, Velagapudi,
Guntur District.
2. The Director,
Mid day Meal & School
Sanitation, Government of
Andhra Pradesh, Plot No.
129, Road NO. 5, Nagarjuna
Nagar, Vijayawada, NTR
District.
....Respondents
COMMON ORDER:
W.P.No.19712 of 2022:
This writ petition is filed questioning the action of the
respondent No.2 in issuing the e-procurement notice NIT No.125/2022
dated 15.06.2022 incorporating the condition No.2.2.3 (a).
2. The counsel for the petitioners submits that the petitioners are
the farmers running poultry farms for the last so many years. While so
the respondent No.2 issued e-procurement notice NIT No.125/2022
dated 08.06.2022 for the year 2022-23 giving eligibility criteria under
para 2.2.2 by allowing the consortium of poultry farmers to participate
in the tenders subject to fulfilling all the other eligible conditions with a
restriction of the number of farmers in the consortium to a maximum
of four original poultry farmers which cannot be exceeded to. The Para
2.2.3 of the said notice envisages that the suppliers, dealers, traders,
marketers, third persons and brokers forming joint venture or
partnership or doing poultry formation on lease farms or tenant farmer
are not eligible to participate in the bid. The said tender notification
was also published in the daily newspapers. Instead of adhering to the
said conditions, the respondent No.2 suddenly issued a corrigendum to
the said tender notification dated 08.06.2022 by inserting the para
2.2.3(a) enabling the lease poultry farmers also to participate in the bid
provided they are properly registered with the registration and stamps
department for a period of at least two years till 30.06.2024 subject to
fulfilling all the other conditions on par with the poultry farmers. The
counsel for the petitioners submits that the said corrigendum was
issued in order to facilitate the corporate egg traders at the cost of real
poultry farmers. In furtherance of the said action, the respondent No.2
cancelled the earlier tender notification dated 08.06.2022 and issued the
impugned tender notification dated 15.06.2022 with the introduction of
para 2.2.3(a) as stated above. No sufficient time was also given for
submission of the bids pursuant to the impugned tender notification
dated 15.06.2022. Hence, the said procurement notice NIT
No.125/2022 dated 15.06.2022 is assailed in this writ petition.
3. On the other hand, the learned Government Pleader relying
upon the counter affidavit of the respondent No.2 submits that the
e-procurement tenders were called for procurement of supply of eggs to
all the schools and Anganwadi centers under the scheme of Jagananna
Gorumudda and YSR Sampoorna Poshana in the State.
The 26 tenders were floated from NIT Nos.107 to 132 i.e., one bid for
each district. The tender notification was published in the widely
circulated Telugu daily newspapers i.e., Sakshi and Eenadu and in the
English newspaper dated 08.06.2022. The schedule of the tender was as
follows:
Sl.No. Activity Date/Time
1. Invitation of Bid (notice 08.06.2022-10-00
inviting tenders) AM
2. Last date/time for sale of 16.06.2022 17-00
document PM
3. Bid closing date/Time 16.06.2022-17:30
PM
4. Pre-bid meeting date/time 10.06.2022-11-00
AM
5. Submission of samples On or before
17.06.2022 at 10.00
AM
6. Technical evaluation 17.06.2022 11:00
date/time AM
7. Declaration of financial bid Within 14 days
and reverse tendering from bid due date
8. Letter of Award (LOA) Within 21 days
from bid due date
or as decided by the
government.
He has specifically denied that the lease poultry farmers are
allowed under the impugned tender notification dated 15.06.2022 only
in order to facilitate the corporate egg traders and submits that it is far
from truth. The leased poultry farmers are also the poultry farmers. The
term 'lease poultry farmer' itself denotes that they are poultry farmers
but not the corporate traders as alleged by the petitioner. Similar to the
leased farmer in agricultural sector, leased poultry farmers who have
taken the poultry farm on lease for the purpose of the scale of economy,
increase in production capacity and for logistical purposes. As stated
supra, the tenders were called for in NIT Nos.107 to 132 (26 tenders)
on 08.06.2022. Later the corrigendum was issued to the above NITs on
11.06.2022 as mentioned above. The officials of the APTS suggested
that more clarity should be given about the breakup of Z value -
differential value of transportation cost minus discount on NECC rate
per egg along with an online form (Form F) to quote the same.
To enable this and for giving clarity to the bidders to clearly mention
about the discount on NECC rate and transportation cost, the tender
document was cancelled on 15.06.2022 and is republished on the same
date. The purpose of republishing the tenders is only to facilitate the
transparency in getting the rates with the discount on the NECC price,
transportation cost and the differential value of the transportation cost
minus discount on NECC rate.
He further submits that the NIT Numbers were the same and the
tender documents which were published on 08.06.2022 and the
corrigendum dated 11.06.2022 were the same except a small provision
wherein the mere application of getting AGMARK was ruled out and
the availability of AGMARK certificate was insisted as the eggs are
direct consumable items by children and any deviation in quality
parameters will be dangerous to the health of the children. There was
no further necessity of paper notification since wide publicity was
already given in two Telugu newspapers and one English newspaper on
08.06.2022. Moreover all the participants of the pre bid meeting were
also informed over phone on 15.06.2022 about the republishing of the
tenders.
The last date of submission of the bids in the tenders called on
08.06.2022 was 16.06.2022 but the same tenders were cancelled on
15.06.2022 and on the same date tenders were republished and the last
date for the tender was made upto 18.06.2022 and then it was extended
upto 20.06.2022. The paper notification was also published widely in
the daily newspapers of Eenadu, Sakshi and the English Newspaper.
The tender document published on 15.06.2022 was just a
comprehensive document binding all the conditions laid in the original
document published on 08.06.2022. The corrigendum was issued on
11.06.2022 to have a clarity for entering the values like transportation
cost, discount on NECC rate and final rate. But it is not a fresh tender
and the contention of the petitioners is baseless. If the petitioners are
really the poultry farmers, they should have filed the bid as per
Section2, clause 2.2.1 i.e., Poultry Farmer but they have not chosen to
file their bid even pursuant to the tender notification dated 08.06.2022.
The petitioners neither attended the pre bid meeting held on 10.06.2022
nor participated in the bid and they have not represented for rejecting
the lease poultry farmers from participating under the tender
notification before the last date of tender i.e., 20.06.2022. Instead they
waited till the end of the tender process i.e., till the completion of
tender process including the financial bid/reverse auction and after
successful bidders commenced the work, they filed this writ petition
with a mala fide intention and ulterior motive to disturb the supply of
the eggs to the poor children studying in Anganwadis and Schools. The
essential terms of the NIT can be changed by the tender inviting
authority on the recommendations of the committee. The Government
constituted tender committee with senior most officials working in the
State Level and field level of the mid day meal wing of the School
Education Department and Women and Child Welfare Department
only to facilitate transparency, checks and balances, discussing State
level & field level issues in the procurement of eggs and for realising the
ultimate objective of providing quality eggs to the children in Schools
and Anganwadis in a timely manner. As alleged the corporate egg
traders were not facilitated in this tender process.
The learned Government Pleader further submits that the
G.O.Ms.No.94, I & CAD, Dated 01.07.2003 pertains to the guidelines
in tenders in irrigation department in general. The Govenrment has
issued orders for implementation of procurement of goods through e-
procurement in G.O.Ms.No.20 Information Technology &
Communications dated 06.07.2004. later the revised orders on
implementation of e-auction for purchase of any type of goods in
G.O.Ms.No.30 Information & Technology & Communications dept.,
dated 09.08.2012 was issued and it was further revised in
G.O.Ms.No.79 Finance (HR-V-TFR) Dept., dated 25.08.2020
stipulating reverse auction as mandatory in tender process. As per the
Government of India General Financial Rules, 2017, E-publishing and
E-procurement is mandatory for Ministries/Departments to receive all
the bids through e-procurement portals in respect of all procurements.
As per the procedure, the bidders have to register on the e-procurement
market place/platform in https://tender.apeprocurement.gov.in and
the complete tender document can be viewed/downloaded from AP E-
procurement portal from 08.06.2022 till the date of closing i.e.,
20.06.2022. The department followed the guidelines/instructions
issued by the Central Vigilance Commissioner (CTE's Organisation),
Satarkata Bhavan, INA, New Delhi, vide letter No.12-021-CTE -6,
dated 17.12.2002 regarding scope of work, eligibility criteria, minimum
qualifications experiences etc. The tender process is carried out with
transparency and fairness duly following the open tender system by
publishing the notification of tender in a widely circulated Telugu
Daily newspapers i.e., Sakshi and Eenadu and in the English
newspaper. The pioneer dated 08.06.2022 the tender document is
hosted in the e-procurement platform in accordance with the policy of
the Government. The tenders were called for with NIT Nos.107 to 132
(26 tenders) on 08.06.2022. As stated supra, after conducting the prior
meeting with the poultry farmers and on suggestion made by the
poultry farmers, a corrigendum was issued to the above NITs on
11.06.2022 allowing the lease poultry farmers to participate in the bid.
Hence, the petitioners cannot find fault with the impugned notification
dated 15.06.2022 as it is akin to the rules and regulations followed in
the fair manner.
4. The respondent No.3 who is the successful bidder and
commenced the work under the impugned tender notification dated
15.06.2022 got itself impleaded in this writ petition and supported the
case of the respondent No.2 contending that they are fully eligible to
participate in the said bid as per the para 2.2.3(a) under the head of
leased poultry farmers. The learned counsel appearing for the
respondent No.3 submits that by virtue of the
amendment/corrigendum along with the poultry farmers, the lease
poultry farmers are also made eligible for filing the bid if they are
properly registered. The poultry farmers as well as leased poultry
farmers stand on the same footing as they are indulged in the same
work and the prohibition is continued in respect of the suppliers,
dealers, traders, marketers, trade persons and brokers forming joint
venture or partnership under the tender notification dated 08.06.2022
and as well as under the tender notice dated 15.06.2022 after issuance
of the corrigendum. Hence the petitioners cannot make out any
grievance as they have not even applied for the bid pursuant to the
tender notice dated 08.06.2022 and as such they cannot be even
construed as poultry farmers. Had they got eligibility they would have
applied for the same. Hence, they cannot maintain this writ petition at
all.
5. The other writ petitioners in the other writ petitions are also
sailing with the above said writ petitioners and they have not applied
for the bids except stating that they are the poultry farmers.
6. As stated supra, the respondents' counsels addressed the
arguments commonly for the other writ petitions also.
7. The learned counsel for the petitioners relied upon the following
citations:
1. In the matter of MICHIGAN RUBBER (INDIA) LIMITED
VS. STATE OF KARNATAKA AND OTHERS 1 at para 24 it was
observed as follows:
"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 negative, then there should be no interference under
Article 226."
2. In the matter of MEERUT DEVELOPMENT AUTHORITY
VS. ASSOCIATION OF MANAGEMENT STUDIES AND
ANOTHER2 at para 28 it was observed as follows:
"It is so well settled in law and needs no restatement at
our hands that disposal of the public property by the State or
its instrumentalities partakes the character of a trust. The
methods to be adopted for disposal of public property must be
(2012) 8 SCC 216
(2009) 6 SCC 171
fair and transparent providing an opportunity to all the
interested persons to participate in the process."
8. Per contra, the learned Government Pleader cited the judgment
in the matter of M/S.N.G.PROJECTS LTD VS. M/S.VINOD
KUMAR JAIN AND OTHERS 3 wherein it was observed at paras 23
and 26 as follows:
"23. In view of the above judgments of this Court, the
Writ Court should refrain itself from imposing its decision over
the decision of the employer as to whether or not to accept the
bid of a tenderer. The Court does not have the expertise to
examine the terms and conditions of the present day economic
activities of the State and this limitation should be kept in
view. Courts should be even more reluctant in interfering with
contracts involving technical issues as there is a requirement in
the necessary expertise to adjudicate upon such issues. The
approach of the court should be not to find fault with
magnifying glass in its hands, rather the court should examine
as to whether the decision-making process is after complying
with the procedure contemplated by the tender conditions. If
the court finds that there is total arbitrariness or that the tender
has been granted in a mala fide manner, still the Court should
refrain from interfering in the grant of tender but instead
relegate the parties to seek damages for the wrongful exclusion
rather than to injunct the execution of the contract. The
injunction or interference in the tenders leads to additional
costs on he State and is also against public interest. Therefore,
the State and its citizens suffer twice, firstly by paying
escalation costs and secondly, by being deprived of the
2022 Live Law (SC) 392
infrastructure for which the present day governments are
expected to work.
24. ...
25. ...
26. A word of caution ought to be mentioned herein
that any contract of public service should not be interfered with
lightly and in any case there should not be any interim order
derailing the entire process of the services meant for larger
public good. The grant of interim injunction by the learned
Single Bench of the High Court has helped no one except a
contractor who lost a contract bid and has only caused loss to
the State with no corresponding gain to anyone."
9. Similarly, the counsel appearing for the respondent No.3 also
relied upon the following citations:
1. In the matter of CHENNAI GOODS TRANSPORT
OWNERS SERVICES VS. TRAVEL DISTRICT GOODS
TRANSPORT OWNERS SERVICE4 at paras 13, 14, 25 and 26 it was
observed as follows:
"13. This Court has carefully considered the submissions made
on either side and also the materials available on record.
14. It is not in dispute that the petitioners had
participated in the tender only with respect to 28 routes and 51
routes respectively out of the total of 137 routes for which the
tender was floated. Ultimately, after price negotiation, the
Board Level Technical Committee approved, by their
proceedings dated 24.12.2019, the price quoted by the
petitioners and the 2nd respondent awarded work order for 25
Laws (Mad) 2020-3-209
vehicles insofar as the petitioner in W.P.No.396 of 2020 is
concerned and 51 vehicles insofar as the petitioner in
W.P.No.401 of 2020 is concerned. There is no dispute with
regard to the fact that the petitioners did not participate in the
tender for the 52 routes wherein it was only the 5th respondent
who had participated along with one Deepika Transports.
15 to 24 ....
25. There is yet another reason as to why this Court
does not want to interfere with the impugned proceeding of the
2nd respondent. In this case, the petitioners did not participate
in the tender for the 52 routes.
Therefore, the question is whether they have locus standi
to question the work order issued in favour of the 5th
respondent who actually participated in the tender for these
routes. To decide this issue, the judgment relied upon by the
learned counsel for the 5th respondent in Maharaja
Chintamani Saran Nath Shahdeo vs. State of Bihar and
others reported in (1999) 8 SCC 1, referred supra, will have a
lot of significance. This Court, after relying upon some of the
earlier judgments, came to categorical conclusion that, persons
who have not participated in the tender cannot question the
tender process or the ultimate order issued in favour of the
successful bidder who participated in the tender. As rightly
contended by the learned counsel for the 5th respondent, the
petitioners who did not even participate in the tender were
allowed to make price negotiation for 52 routes and after the
work order was given in favour of the 5th respondent, they have
proceeded to question the same on the basis of the work order
given to them. In other words, non-tenderers are questioning
the work order issued in favour of a tenderer and the same
cannot be allowed by this Court. The petitioners do not have
the locus standi to question the work order issued in favour of
the 5th respondent who was the successful bidder for the 46
routes which is covered under the impugned proceedings dated
31.12.2019.
26. In view of the above discussion, this Court does not
find any merits in both the writ petitions and accordingly both
the writ petitions are dismissed. Consequently, connected
miscellaneous petitions are closed. No Costs."
2. In the matter of SIDDI VINAYAKA INDUSTRIES VS.
STATE OF TELANGANA (TELANGANA HIGH COURT)5,
it was observed by the learned single judge as follows:
"Admittedly, in the instant case, in the absence of any
documentary proof to show that the petitioners are having
requisite capacity to produce the minimum number of units as
stipulated under Clause 2.2.1.4 of the tender conditions within
the stipulated time period, the other conditions fixing the
annual turnover and also the required machinery cannot be
said to be arbitrary, mala fide, and tailor-made to suit any
person or company.
9. The petitioners having failed to plead and prove that
they are having requisite production capacity or financial
capacity cannot complain that the conditions imposed in the
tender notification are onerous merely because the same do not
suit this or that they do not meet the criterion.
It is an admitted fact that the supply of dual desks is a
time bound programme. In case the petitioners are unable to
supply the required material before the start of the academic
Laws(Tlng)-2022-4-95
year, it is the students, who will ultimately suffer the most and
there is every likelihood of the academic year getting delayed
due to the non-supply of the required furniture in time to the
schools. For the aforestated reasons, the writ petition fails and
the same is, accordingly, dismissed."
10. In the light of the above said rival contentions, averments and
decisions relied upon it is to be seen that the respondent No.2 issued e-
procurement notice NIT Nos. 107 to 132 dated 08.06.2022 wherein at
para 2.2. The eligibility and qualifications requirements of bidder is
given as follows:
"2.2.1 The Tenderer should be a Poultry Farmer.
2.2.2 Consortium of poultry farmers are allowed to
participate in the Tender, provided that they fulfil all other
eligible conditions and the number of farmers in the
consortium does not exceed more than four original poultry
farmers.
2.2.3 Supplier, Dealers, Traders, Marketers, Third
persons and Brokers forming Joint Venture or partnership or
doing poultry formation on lease farms or Tenant Poultry
Farmer are not eligible to participate in the bid."
11. Thereafter corrigendum was issued as stated supra and in
pursuance of the same the respondent No.2 issued e-procurement
notice under NIT No.125 of 2022 dated 15.06.2022 in which at para
2.2 the eligibility and qualification requirements of bidder is given as
follows:
"2.2- ELGIBILITY AND QUALIFICATION
REQUIREMENTS OF BIDDER:
2.2.1 The Tenderer should be a Poultry Farmer.
2.2.2 Consortium of poultry farmers are allowed to
participate in the Tender, provided that they fulfil all other
eligible conditions and the number of farmers in the
consortium does not exceed more than four original poultry
farmers.
2.2.3 Supplier, Dealers, Traders, Marketers, Third
persons and Brokers forming Joint Venture or partnership or
doing poultry formation on lease farms or Tenant Poultry
Farmer are not eligible to participate in the bid.
2.2.3 a) Lease Poultry farmers will be considered. Lease
Poultry farmers shall be properly registered with Registration
and Stamps department for period of at least (02) years till 30th
June,2 024 provided that they fulfil all other
conditions/instructions mentioned in the Tender document on
par with the poultry farmers. The lease poultry farmers shall
submit the proof of experience being the lease poultry farmers
for the last 3 financial years (i.e., 2019-20, 2020-21 and 2021-
22).
b) Supplier, Dealers, traders, Marketers, Third persons
and Brokers forming Joint Venture or Partnership or Tenant
Poultry Farmer are not eligible to participate in the Bid."
12. Now that the petitioners challenged this introduction of 2.2.3(a)
enabling the lease poultry farmers also to participate in the bid along
with the consortium of poultry farmers as per the eligibility under 2.2.2.
13. As discussed above, tenders were called for in NIT Nos.107 to
132 (26 tenders) on 08.06.2022. Then Corrigendum was issued to the
above NITs on 11.06.2022 as mentioned above in order to give more
clarity to give the break up of Z value - (minus) differential value of the
transportation cost - (minus) discount on NECC Rate per egg along
with an online form (form F) to quote the same by the bidders. Hence
the tender document was cancelled on 15.06.2022 and the same was
republished on the same date. In order to facilitate the transparency of
getting the rates like the discount on the NECC price, Transportation
cost and the differential value of the transportation cost - (minus)
discount on NECC rate, as seen above, the wide publicity was given in
the two telugu newspapers and in the English newspaper on 08.06.2022
and all the participants of the pre bid meeting were also informed on
15.06.2022 about the republishing of the tender. The time was also
extended upto 20.06.2022 and paper publication was also given to that
effect. Whether the petitioners are poultry farmers or not even to
ascertain the same, admittedly they have not even participated by
submitting their bids under the said tender notification except making
an averment in the writ petition that they are the poultry farmers.
Admittedly, the petitioners have not participated in the pre bid meeting
held on 10.06.2022 and not even represented to reject the inclusion of
lease poultry farmers from participating in the said tender notification
at least before 20.06.2022. After tenders are finalised and the successful
bidders commenced the work, these writ petitions have been filed on
the ground that corporate traders are being facilitated by virtue of the
incorporation of the clause 2.2.3(a) under the tender notification dated
15.06.2022.
14. It is to be noticed from the above said tender notifications that
the safe guards provided in para 2.2 regarding the eligibility and
qualifications requirements of bidder are not removed and specifically
the suppliers, dealers, traders, marketers, third persons and brokers
forming joint venture or partnership or tenant poultry farmer are kept
out of participation in the above said tenders to submit their bids. Only
the lease poultry farmers are enabled to participate in the bid along
with the consortium of poultry farmers as provided in condition
No.2.2.3(a) and condition no. 2.2.2 respectively of the tender
notification dated 15.06.2022 which can't be termed as discminatory
or ultra vires to the policies of the Government and as well as the rules,
the Government Orders and notifications as referred above. Hence it
cannot be said that the process adopted or decision made by the 2nd
respondent is mala fided or intended to favour someone. In fact, a fair
and transparent opportunity was provided to all the interested persons
to participate in the tender as per the conditions of the eligibility. The
impugned tender notification dated 15.06.2022 is not contrary to any of
the provisions of law and there is no deviation of the principles laid
down in the above said citations of the Hon'ble Courts in the action
taken by the respondent No.2 incorporating the above said clause
under the above said tender notification. Any of the members of the
consortium of poultry farmers is not before this court in these writ
petitions and the petitioners questioned this tender notification have
not participated in the tender process at any stage and they are not even
unsuccessful bidders. Hence, they cannot espouse the cause of poultry
farmers if any. Since the poultry farmers and the leased poultry farmers
are doing the same nature of business/work belonging to the
homogenous class cannot be excluded by one another in respect of
participation and submission of their bids under e-tender notifications
when they are made eligible to participate.
In the result, this court does not find any merit in these writ
petitions.
15. Accordingly, all these writ petitions are dismissed without any
costs. Interim orders, if any, shall be deemed to have been vacated.
As a sequel the miscellaneous applications pending if any shall
stand closed.
_______________________________
JUSTICE B. KRISHNA MOHAN
JANUARY 24, 2023
LMV
HON'BLE SRI JUSTICE B. KRISHNA MOHAN
WRIT PETITION Nos. 19712, 21018, 21023, 21500, 21860, 21862,
21864, 21866 and 30848 of 2022
January 24, 2023
LMV
