(1) wp6418-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6418 OF 2011 Gajanan Mahadeo Chimankar PETITIONER VERSUS The State of Maharashtra & others RESPONDENTS ..... Mr. S.G. Dodya, advocate for the Petitioner. Mr. K.S. Patil, A.G.P. for the Respondent-State. ..... CORAM : B.R. GAVAI AND M.T. JOSHI, JJ. DATED : 26th SEPTEMBER, 2011 ORAL ORDER: 1. By way of present petition, the petitioner challenges a condition in the Tender Notice, dated 27th July, 2011, issued by Respondent No. 3, which requires Class-A Contractor to have average annual turnover of ` 29.37 lacs during last three years and further requires that he must have completed one similar type of work of ` 11.75 lacs in Government Sector during last three years. 2. Mr. Dodya, learned counsel appearing for the (2) wp6418-11 petitioner, submits that the said condition in the Tender Notice is totally unreasonable and violative of Article 19 (1) (g) of the Constitution of India. He further submits that once there is a reasonable classification of the Contractors in various categories and once having provided that only the Contractors in Class-A category would be required to compete in the tender process, the condition as imposed in the Tender Notice is discriminatory, which is not permissible in law. The learned counsel relies on the decision of the Apex Court in the case of "Comptroller and Auditor General v. Kamlesh Vadilal Mehta" AIR 2003 S.C. 1096 and the decision of a Division Bench of this Court in the matter of "Mahesh Varma and another vs. State of Maharashtra and others" 2009 (1) Bom.C.R. 448. 3. By now, it is settled principle of law that an Authority while inviting the tenders would be permitted to prescribe minimum qualifying requirements. However, the only requirement would be that such a qualifying requirement is not unreasonable or arbitrary or is not made with an (3) wp6418-11 intention to favour someone. 4. The condition of pre-qualification which has been put by the Respondents requires that a person eligible to participate in the tender process must have an average annual turnover of ` 29.37 lacs during last three years and further that he should have completed one similar type of work of ` 11.75 lacs in Government Sector during last three years. It can be seen that the estimated cost of the Tender is ` 39,15,399/-. It, therefore, cannot be said that the condition which requires a person to have average annual turnover of ` 29.37 lacs and further, it requires to have completed one similar type of work of ` 11.75 lacs during last three years in Government Sector, is either arbitrary or irrationale. It also cannot be said that the condition was so imposed so as to create a monopoly in someone in as much as thirty persons have submitted their bids in response to the Tender Notice. 5. In so far as the decision in "Comptroller and Auditor General v. Kamlesh Vadilal Mehta" (supra) is concerned, in the said case, by an advertisement, (4) wp6418-11 the Comptroller and Auditor General had invited applications only from partnership firms and not from proprietary concerns. In the facts of the said case, the Apex Court found that for the work of auditing, the Chartered Accountants having qualification are eligible for being considered for entrustment of audit work. It is further held that once it is accepted that the Chartered Accountants are qualified and eligible for the audit work and also are eligible for being brought on the panel of audit work for public sector undertakings, there appears no valid reason why the advertisement (in that case) has created a sub-classification from the general class of eligible Chartered Accountants who form partnership concerns only. Such classification was held arbitrary and violative of Article 14 of the Constitution. 6. In so far as the decision of the Division Bench of this Court in "Mahesh Varma and another vs. State of Maharashtra and others" (supra), is concerned, this Court in the facts therein found that the condition so imposed was imposed so as to award (5) wp6418-11 the Contracts in favour of chosen people and, therefore, such a condition was not permissible in law. 7. Imposing of the qualifying terms/conditions by an Authority and satisfaction of the Authority thereof has been upheld in catena of judgements including the one in the case of "G.J. Fernandez v. State of Karnataka and others" AIR 1990 S.C. 958. In that view of the matter, we do not find that the condition as imposed in the present case is either arbitrary, unfair, unreasonable or irrationale, which would permit this Court to exercise its judicial powers while sitting under Article 226 of the Constitution of India. The Writ Petition is, therefore, rejected. 8. In view of rejection of the Writ Petition, Civil Application No. 10838/2011, for stay, does not survive and hence, stands dismissed. [M.T. JOSHI, J.] [B.R. GAVAI, J.] npj/wp6418-11