Bombay High Court
Ganesh Enterprises Through Its ... vs The State Of Maharashtra Through Its ... on 25 April, 2025
Author: M. S. Karnik
Bench: M. S. Karnik
2025:BHC-AS:18858-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13158 OF 2024
M/s. Ganesh Enterprises,
A registered Partnership Firm
Having Registration No.MA/21639
Having registered address
At Sagar Roadways, 1st Floor,
Opposite Congress Bhavan,
Lane No.1, Dhule
Through its authorized person
Shri Pawan Subhash Agrawal
Age: 46 years, Occupation : Business
Resident of : 104/2, Shanti Sadan,
Agrawal Nagar, Dhule ... Petitioner
Versus
1. The State of Maharashtra
Through the Secretary,
Medical Education, Research
And Aayush Department,
Mantralaya, Mumbai
2. The Commissioner,
Medical Education, Research
And Aayush Department,
Government Dental College and
Hospital Building,
St. George's Hospital Compound,
Mumbai - 01
[Copies to be served on the
Government Pleader,
High Court, At Aurangabad]
3. Smart Services Private Limited,
An Establishment registered
Under Shops and Establishments
Act, 2017 having Registration No.
PMB 1
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2331000318186895
And Registered office at :
403, Western Court,
Ganeshkhind road, Opp E Square,
Bhanburda, Shivajinagar,
Pune - 16 .... Respondents
****
Mr. Mukul Kulkarni a/w Mr. Sahil Choudhari, for the Petitioner.
Mr. Venkatesh Dhond, Senior Advocate (Special Counsel) a/w
Mrs. Neha S. Bhide, Government Pleader, Mr. O. A.
Chandurkar, Additional Government Pleader, Mrs. G. R.
Raghuwanshi, AGP, for Respondent Nos.1 and 2.
Mr. Atit Soni, for Respondent No.3.
****
CORAM : ALOK ARADHE, CJ &
M. S. KARNIK, J.
RESERVED ON : 22nd APRIL, 2025
PRONOUNCED ON : 25th APRIL, 2025
JUDGMENT (PER M. S. KARNIK, J.) :
1. This Petition under Article 226 of the Constitution of
India by the Petitioner - M/s. Ganesh Enterprises a bidder in
the tender process seeks to challenge the decision dated
2nd August 2024 of Respondent No.2 - The Commissioner,
Medical Education, Research And Aayush Department whereby
the Petitioner is held to be disqualified in the bidding process.
A further relief is sought challenging the decision of
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Respondent No.2 holding the Respondent No.3 - Smart
Services Private Limited as qualified bidder.
2. The facts of the case in brief are as follows :-
Respondent No.2 floated a tender for providing
foodgrains, fruits and vegetables to the patients admitted in
Government hospital published on 18th June 2024. The term of
the tender is for three years with extension of two years.
3. Mr. Kulkarni, learned counsel for the Petitioner
assailing the impugned order rejecting the bid of the
Petitioner submitted that the reason disqualifying the
Petitioner on the ground that he did not fulfil the prescribed
eligibility condition is completely illegal and bad in law. It is
submitted that the Petitioner has the experience of loading
and unloading and in support of such submission, our
attention is invited to the documents on record to
demonstrate that the Petitioner has done the works in the
past. It is submitted that the Petitioner satisfies the essential
requirement of the tender conditions. It is the submission of
Mr. Kulkarni that in fact it is the Respondent No.3 who is
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selected, does not have the requisite experience of loading
and unloading. Relying on Clause 16 of the tender document,
Mr. Kulkarni submitted that the requirement was that the
bidder should have experience of having 50 persons employed
for loading-unloading of goods at different sites in preceding
three years from single work order.
4. In the pre-bid meeting dated 24 th June 2024 the
Petitioner's objection to the aforesaid condition was rejected.
Learned counsel relied upon the certificate dated 4 th July 2024
of Education Officer, Zilla Parishad, Dhule to show that he has
the necessary eligibility fulfilling the criteria. Then a certificate
by Dhule District Hamal Kamgar Sangathana, a registered
Labour Society about the supply of 50-100 Hamals to the
Petitioner is relied upon. So far as the bid of Respondent No.3
is concerned, it is submitted that Respondent No.3 is
disqualified as the work order dated 1st January 2019 from
Maharashtra State Warehousing Corporation would reveal that
Respondent No.3 was given the contract for supply of skilled
and semi-skilled manpower i.e. Attendants/Data Entry
Operators/Drivers/Specialised technical hands/Engineers
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(Diploma) which does not fulfil the eligibility criteria.
Moreover, the certificate dated 11th November 2022 in favour
of Respondent No.3 issued by the Maharashtra Warehousing
Corporation is about supply of Attendant cum operator/
Data Entry Operators/Drivers/Specialised technical
hands/Refrigeration technicians/Jr. Engineers/Quality Control
Personnel, which according to Mr. Kulkarni do not fulfil the
essential conditions of the tender.
5. Mr. Kulkarni relied upon the provisions of the
Maharashtra Mathadi, Hamal and other Manual Workers
(Regulations of Employment and Welfare) Act, 1969 which
deals with provisions relating to employment in connection
with loading and unloading of goods in vegetable markets,
loading of foodgrains which according to learned counsel
clearly supports the Petitioner stand that it fulfills the
eligibility condition. Mr. Kulkarni submitted that the decision
making process is flawed and that in the pre-bid meeting held
on 24th June 2024, all the objections raised were discarded on
the basis of communication from the State Government dated
1st July 2024, which was not available on the date of pre-bid
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meeting. One of the objection of Mr. Kulkarni to the tender
process is that the technical bids were opened on 2 nd August
2024, whereas, the food samples of "Technically Qualified
Bidders" passed the laboratory test on 2 nd August 2024 itself
which according to him raises a doubt about the manner in
which the tender process proceeded.
6. Mr. Dhond, learned Senior Advocate for Respondent
Nos.1 and 2-State Government submitted that it is because
the Petitioner who did not fulfil the eligibility criteria that the
Petitioner was disqualified. Mr. Soni, learned counsel for
Respondent No.3 made his submissions in line with those of
Mr. Dhond, learned Senior Advocate.
7. Heard learned counsel. We have perused the Petition,
the relevant exhibits and the pleadings on record.
The Petitioner has challenged the decision of Respondent
Nos.1 and 2 in holding him to be technically ineligible.
The Petitioner also challenged the decision of Respondent
Nos.1 and 2 in holding Respondent No.3 as being technically
qualified. The Petitioner relies on the certificates at pages 287
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and 328 of the paper-book to demonstrate that the petitioner
fulfills the eligibility condition. At this stage it will be relevant
to note that condition No.16 of the tender has been upheld by
the Aurangabad Bench of this Court in its decision dated
20th July 2024 in the case of Moreshwar Mahila Prathamik
Grahak Sahakari Sanstha Limited and another vs. The State
of Maharashtra and others in Writ Petition No.7104 of 2024.
Paragraphs 8 to 14, 21 are relevant which read thus :-
"8. We have considered the rival submissions of the
parties. Undisputedly, the condition nos. 15 and 16 of the
tender notice dated 18.06.2024 are founded on clauses
no. 19 and 20 of the government resolution dated
12.06.2024. The impugned condition nos. 15 and 16 in
verbatim are as follows:
"15) At least one work in the last three years
up to the last date of submission of tender to the
tenderer for the said tender, including experience
of supplying food grains, grocery materials,
vegetables and fruits and other non-vegetable
items to at least 45 Government/Semi-
Government Institutions /Government
Hospitals/Residential Schools/Hostels in
Maharashtra or at least 6600 Individuals should
have experience in daily food supply and should
have completed work of at least Rs.12 crores by
the last date of submission of tenders through
the same service.
16. The tenderer shall also provide the
manpower (loading-unloading etc.) required for
the supply of goods to the Government/Semi-
Government Institutions in the State,
accordingly, in a single work order completed in
the last three years till the last date of
submission of tenders in Government/Semi-
Government Establishments in Maharashtra at 25
different places should have experience of
providing minimum 50 manpower elsewhere."
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9. The tender in question is floated for supply of food
grains, vegetables, fruits etc. to the Government Medical
Colleges and Hospitals attached to it. The duration of the
contract is of three years. The tender conditions are based
upon the government resolution dated 12.06.2024. The
impugned conditions correspond to clauses no. 19 and 20
of the government resolution dated 12.06.2024. Though
an affidavit in reply is not filed in the present writ petition
by the respondents, the purpose for incorporating the
conditions can be gathered from the reply dated
01.07.2024.
10. Considering the duration of the contract and the
nature of work, it would be reasonable for the
respondent-employer to expect more experienced and
competent contractors to participate in the bids. The
condition no. 15 and clause no. 19 has an option. This
indicates that there is rationale. It is the wisdom and
discretion of the employer to choose the
conditions/clauses which are best suited for the work to
be performed.
11. The impugned conditions are stringent but they
cannot be branded per se arbitrary or illegal. Even if the
submission of the learned senior counsel for the
petitioners are accepted that few bidders are likely to be
excluded because of this stringent conditions, that would
not lead to violation of principles of 'level playing field'.
We have not been shown violation of any statutory or
constitutional provision.
12. Though it is submitted that the impugned conditions
are tailor made and incorporated with an oblique motive,
no material is placed on record to show as to how the
petitioners have been targeted for their exclusion in the
tender process. There is no material to show that the
impugned conditions are designed to favour a particular
bidder. For want of necessary particulars, we are not
inclined to accept the submissions of the learned senior
counsel for the petitioners.
13. It is informed by the learned Addl. Government
Pleader that there are 10 bidders in the fray. It means
there are bidders, who are complying with the conditions
and interested in participating the tender process. Had the
impugned conditions been arbitrary and absurd per se,
the respondents would not have received response.
14. Though, previously such type of conditions were not
incorporated, that would not preclude the respondents
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from introducing the impugned conditions. The impugned
conditions are fall out of a policy decision. The petitioners
fail to point out any perversity, patient illegality and
arbitrariness in the government resolution dated
12.06.2024.
21. The case in hand represents that respondent no. 1
issued the government resolution dated 12.06.2024 and
impugned conditions are based on it. It is prerogative of
the respondents to settle the terms of the tender based
on policy. We, therefore, do not find any substance in the
petition."
8. According to Respondent Nos.1 and 2, the Petitioner is
not technically qualified. The tender condition No.16 provides
that the tenderer shall also provide the manpower (loading
and unloading) required for supply of goods to the
Government/Semi-Government Institutions in the State,
accordingly, in a single work order completed in the last three
years till the last date of submission of tenders in
Government/Semi-Government Establishments in
Maharashtra at 25 different places, should have experience of
providing minimum 50 manpower elsewhere. The certificate at
page 287 relied upon by the Petitioner indicates that the
Petitioner has successfully for three years supplied foodgrains
to the schools. So far as the certificate at page 328 is
concerned, the same indicates that the Dhule District Hamal
Kamgar Sangathana has supplied 50-100 Hamals to the
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Petitioners for enabling them to provide foodgrains to the
various schools. Respondent Nos.1 and 2, in our opinion, are
best suited to know their requirements and are at liberty to
interpret the tender conditions to further the objective of the
tender unless the same is arbitrary, irrational or malafide. The
Technical Scrutiny Committee of the Respondents, on
considering and analysing the petitioner's documents found
the Petitioner to be ex facie ineligible. Thus, if Respondent
Nos.1 and 2 are of the opinion on considering all the relevant
factors that the petitioner has experience of supplying
foodgrains and not that of supplying manpower while coming
to the conclusion that the petitioner does not fulfil the
essential eligibility criteria, is not a view that is palpably
arbitrary or irrational. We therefore do not see any reason to
interfere with the decision of Respondent Nos.1 and 2 in
disqualifying the Petitioner in the bidding process.
9. The next ground of challenge is as regards the
decision of Respondent Nos.1 and 2 holding the Respondent
No.3 to be technically eligible. At this juncture it would be
material to rely upon the decision dated 2nd September 2024
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of this Court in Just Universal Pvt. Ltd. vs. State of
Maharashtra and others1. Paragraphs 31 to 35 is relevant
which read thus :-
"31. The relevant clause PQ5 of RFP/Tender document is
extracted hereunder:
# Requirement Basic Eligibility Documents to be
Criteria Submitted as
per RFP
PQ5 Other The experience of Bidder shall
Experience loading, unloading, [or] submit the
handling of food grains, following
food items etc. to be documents:
provided by bidder.
Hence, bidder should 1. Relevant Work
have experience of Orders or Contract
providing at least 200 Agreements or
labourers in 70 multiple Award of Contract
locations in Government or LoI.
and Semi-Government 2. Experience or
establishment within Completion
Maharashtra in single certificates should
work order completed be submitted
during last 3 years (upto clearly stating the
the last date fo scope of work
submission of Tender). performed.
The value of such work
shall not be less than Rs.
25 Crores.
32. According to the petitioner, the experience certificates
annexed to the petition at Exhibit C, D and E unambiguously
fulfill all parameters of condition PQ5. However, according to the
respondents, the petitioners in both the petitions failed to meet
ingredients of condition No. PQ5. For the purpose of adjudicating
the issue of eligibility of petitioners to fulfill requirement under
condition PQ5, it is necessary to dissect condition PQ5 as under:
""loading", "unloading [OR] "handling" Food grains/food
items, etc.
AND
(a) should have been Providing 300 labourers in number;
[AND]
1 2024 SCC OnLine Bom 2848
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(b) in 80 multiple locatioins; [AND]
(c) under a Single Work Order, which should be completed
during last 3 years (upto the last date of submission of
Tender) [AND]
(d) such experience shall be in Government or Semi
Government Establishment [AND]
(e) the value of such completed work should not be less
than Rs. 25 crores."
33. The dispute primarily hinges on the interpretation of the
term 'providing labourers' as eligibility condition set out in the
tender document. The term 'providing manpower/labourers' may
contemplate a situation where the agency provides workers along
with the execution of specific tasks or projects as per the scope
of work defined in the tender. The workers remain under the
control of the agency, and the agency is responsible for the work
outcome. The service provided is generally considered a 'works
contract' or 'contract for services', where the agency not only
provides manpower but also assumes responsibility for the
completion of tasks or projects. In other words if an agency
provides manpower along with the responsibility to perform a
particular Job or service, it may fall under the category of a
contract for services. Providing Manpower/Labourers implies a
more integrated role where the contractor not only supplies
personnel but also manages and oversees their activities as part
of a broader service delivery. Providing manpower/labourers can
imply a range of responsibilities, including recruitment,
management, and even ensuring that the manpower meets
certain standards or qualifications required for the specific tasks
outlined in the tender. It is imperative to observe that 'providing
manpower/labourers' may carry different connotations depending
on the context and objectives of the tender. In the wake of these
aspects, the interpretation of 'providing manpower/labourers'
may vary significantly based on the context of the tender. The
tendering authority, familiar with the project's requirements, is in
the best position to determine whether the term encompasses
merely the supply of personnel or extends to a broader set of
obligations. In conclusion, the term 'providing labourers' within
tender conditions must be interpreted in its full context,
considering the technical and commercial aspects of the project.
34. For the purpose of interpreting eligibility criteria PQ5 and
considering involvement of public interest, it is necessary to
understand the nature and scope of work which is the subject
matter of tender process. Respondent No. 1 took a decision to
distribute food kits-Anandacha Shidha consisting of four items
vide Government Resolution dated 12th July 2024. It was decided
to distribute the said food kits to 1,70,82,086 beneficiaries
having ration card of NFSA (National Food Security Act) and APL
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(Above Poverty Line) farmers scheme. It is stated that during the
course of hearing that the number of eligible beneficiaries on
verification have been reduced to around Rs. 1.56 Crore. Gauri-
Ganpati festival is to be celebrated on 7th September 2024 and
this supply is intended to be distributed well in advance within a
short time. Respondent No. 1 oversees nearly 900 Taluka
godowns spread over 357 Talukas in 42 food districts in
Maharashtra and the MTRA (Mumbai Thane rationing area)
region. The quantity of 68,328 Metric Ton food grains
commodities comprising "Anandacha Shidha" has to first reach
these Taluka godowns and from there, there will be further
dispatch of food grains to 52500 fair price shops. Thereafter, the
food grains packets will be supplied to the eligible beneficiaries.
According to respondent No. 1, ordinarily to execute the work of
subject matter of tender, a supplier procures items in bulk which
are unloaded at their packaging unit(s). At these unit(s), the
items sourced in bulk are sorted, cleaned, aggregated and
packed as per the directions of the Government of Maharashtra in
packets of 1 Kg. The packed food kits/goods are thereafter
loaded on to trucks and sent to the Taluka godowns. There are
around 900 Taluka godowns to which deliveries are to be made.
Considering such scope of work and past experience of similar
contract, supplier may need to carry on the packaging at multiple
locations. Therefore, it was thought necessary that in order to
assess the ability of the supplier and their past experience to
provide 300 labourers at 70 locations need to be considered and
was therefore made a criteria in RFP/Tender document. In the
opinion of the Court, this condition is a reasonable condition,
imposed to assess the minimum past experience of bidder which
in the opinion of the tendering authority will enable him to make
such supplies. The validity of PQ5 has already been upheld by
this Court.
35. Having considered the eligibility criteria PQ5 in the context
of purpose and scope of work of tender condition and having
scrutinized Exhibits C, D and E, what we find is that the
respondents are justified in contending that the experience of
engaging manpower for cooking and supplying meal is not the
same as 'providing labourers' as per tender condition PQ5."
10. The Technical Committee relied upon the documents
which were produced by Respondent No.3 to hold that the
Respondent No.3 is technically qualified since it has the
requisite experience for supply of manpower. Respondent
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Nos.1 and 2 are of the opinion that Respondent No.3 has
relied upon the document issued by Maharashtra State
Warehousing Corporation for the purpose of establishing its
technical eligibility to show that it has the requisite experience
for supply of manpower. The essence of Clause 16 was
experience in manpower supply. Though we have adverted to
the eligibility of Respondent No.3 since a serious objection
was raised by the Petitioner, we must remind ourselves that
the Supreme Court in Raunaq International Ltd. vs. IVR
Construction Ltd. and others 2 in paragraph 27 has clarified
that judicial relief sought at the instance of a party which does
not fulfil the criteria itself is misplaced. This Court in Reliance
Infrastructure Ltd. vs. Maharashtra State Road Development
Corporation Ltd.3 in paragraph 15 has stated that a bidder
who does not meet the eligibility criteria, cannot complain of
award of a contract on the ground that its financial bid offers
better terms. Financial bids can only be compared amongst
eligible bidders. The financial bid of the Petitioner was never
opened as he does not fulfil the eligibility criteria. Learned
counsel for the Petitioner however insisted that the bid of the
2 (1999) 1 SCC 492
3 2020 SCC OnLine Bom 1679
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Petitioner is the lowest which aspect should be given due
weightage. In our opinion such a submission is misplaced.
We therefore do not find any merit in this Writ Petition. The
Writ Petition is dismissed with no order as to cost.
(M. S. KARNIK, J.) (CHIEF JUSTICE)
11. At this stage learned counsel for the Petitioner requested
for staying this order for a period of four weeks.
12. We are not inclined to accede to the said request.
The request is rejected.
(M. S. KARNIK, J.) (CHIEF JUSTICE)
