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Madhya Pradesh High Court says it can’t overlook eligibility conditions for tender

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The Madhya Pradesh High Court has recently observed that it cannot substitute its view or suggestions of experts in the matter of prescription of qualifications or eligibility conditions.

The Division Bench of Justice Rohit Arya and Justice Milind Ramesh Phadke dismissed a petition filed by a businessman dealing with food stuffs against a condition in the tender document for supply of Moringa Peanut Bar and Soya Peanut Bar to school children under “PM Poshan Shakti Nirman Yojna” (Flexi Fund) for 2021-22.

Section 2 of tender document deals with instructions to bidders and Clause 1 inter alia deals with eligibility criteria. Clause 1 (1.1)(C) prescribes that the bidder should have an experience of manufacturing or supply of Moringa Peanut Bar and Soya Peanut Bar or identical types of bars and/or any other appropriate food items to any State/Central Government Department/Semi Government Department in at least 2 or more than 2 States only be counted have experience. No sub let work count as experience.

Prashant Sharma, counsel for the petitioner, submitted that the condition is arbitrary in nature and affront to Article 14 of Constitution of India. According to him, the requirement of experience to deal with specified food items in two States is not a valid one. The requirement could have been that the bidder should have experience and knowledge in the matter of manufacturing or supply of specified food items. Therefore, the same deserves to be declared as ultra vires to Article 14 of Constitution of India, the Counsel added.

Ankur Modi, Additional Advocate General (AAG) for respondents/State, on advance notice contended that the argument is far fetched and self-pleasing inasmuch as the prescription of eligibility condition particularly in context of experience in the tender document for the nature of the contract in hand has direct nexus with the object of supply of specified food items to school children.

The Government cannot afford to take the risk of introducing a person who has no experience in supplying such food products to school children in other States. Requirement of experience in that behalf in two States by no stretch of imagination can be said to be affront to Article 14 of Constitution of India.

It is further submitted by that the requisite experience in the matter of supply of specified food items in the tender document is based on relevant consideration, therefore, the same cannot be said to be unreasonable. The Writ Petition, therefore, deserves to be dismissed.

On consideration of the submission advanced, the Court found substantial force in the submission of Modi. The law is well settled that prescription of qualification or eligibility conditions be it in the matter of public employment or that of the tender, in fact, is in the domain of the principal or employer as the case may be. “The Courts cannot substitute their view or suggestions for that of experts in the matter of prescription of such qualifications or eligibility conditions.”

The Court held that indeed the condition under challenge may be tested on the anvil of Article 14 of Constitution of India to ascertain whether the same qualifies the twin tests enshrined under Article 14 of Constitution of India i.e.

(i) classification based on intelligible differentia and;

(ii) the same has nexus with the object sought to be achieved. The experience for supply of Moringa Peanut Bar and Soya Peanut Bar to school children in two States is a reasonable condition and has a direct nexus with object of ensuring safe and healthy supply of such food items to children under the scheme namely “PM Poshan Shakti Nirman Yojna” (Flexi Fund) for the year 2021-22″

Consequently, the challenge made to the aforesaid condition is found to be misconceived and untenable and the Bench dismissed the petition.

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