Bela M. Trivedi, J. - (1.) The petition has been filed by the petitioner under Article 226 of the Constitution of India, seeking the following prayer: - - "In view of the facts and circumstances of the case, it is most respectfully prayed that this Hon'ble Court may be pleased to: (a) issue an appropriate writ, order or direction to set aside, quash the RFP dated 29.10.2015(Annex -5) issued by the Respondent No. 1 to the extent of Clause -15(a) Eligibility condition whereby experience with State Government/PSU is not considered and therefore making the same as illegal, unconstitutional and opposed to public policy; (b) pass any such other order or orders as may be deemed fit by this Hon'ble Court in the facts and circumstances of the case in the favour of petitioner."
(2.) As per the case of the petitioner, the petitioner is a registered manpower supply agency and human resource contractor having vast and varied experience, and is also possessing the requisite statutory licenses. The respondent No. 1 in January, 2015 had issued a Request for Proposal (RFT) for outsourcing of 315 conservancy Safai Walas at the Station Head Quarters in Jaipur. The petitioner having qualified itself in the said tender, the work order was allotted to it on 29/4/2015 for executing the said work for the period from 1/4/2015 to 31/5/2016 as per the RFP annexed at Annexure -6. It appears that thereafter some dispute having arisen between the petitioner and the respondent No. 1, the respondent No. 1 had stopped making payment to the petitioner and therefore the petitioner had given a legal notice, seeking arbitration in terms of the agreement. Thereafter certain correspondence ensued between the parties but the dispute could not be resolved. The respondent No. 1 thereafter floated fresh tender for RFP (Annexure -5) for the period from 1/12/2015 to 31/3/2016, in which the following terms and conditions was incorporated in the eligibility criteria: - - "15. Eligibility Criteria. (a) The contractor shall have at least three years experience in any Central Govt. Organisation or Formations or Units of Army/Navy/Air Force. (Experience with State Govt/PSUs/private organizations will not be considered). The details of the monetary value, client proof of satisfactory completion etc are to be submitted. (b) The tenderer should have had a minimum business turnover of not less than Rs. One Crore during each of the last three financial years in execution of services of similar nature. Documentary evidence of adequate financial standing, audited profit and loss accounts and balance sheet, annual turnover of Rs. One Crore in the each of last three financial years are to be submitted alongwith tender. (c) The tenderer cannot employ any sub -contractor for executing any part of the work assigned in this contract. (d) The buyer reserves all right to reject/accept any/all tender(s) without assigning any reason."
(3.) As per the case of the petitioner, the said condition of eligibility criteria was inserted intentionally and malafidely to debar the petitioner from participating in the said tender process, and to favour the respondent No. 4 and hence the petitioner has filed the petition, challenging the said condition 15(a) to the extent of excluding the experience with State Government/PSU from the eligibility criteria. The petition has been resisted by the respondent Nos. 1 to 3 by filing the reply denying the allegations made therein and further contending inter alia that the petitioner having committed financial irregularities, audit objections were raised, and that the challans submitted by the petitioner were also found at variance with the names with which the agreement was signed, for which enquiry was constituted to investigate the issue. It has further been contended that since the petitioner had stopped the work of conservancy services, the respondents had floated the tender incorporating the terms and conditions, which were approved by the duly constituted Procurement Committee of the respondents. According to the respondents, inclusion/exclusion of certain terms and conditions in the tender or RFP is an ongoing evolutionary process, and there was no arbitrariness or malafide in inserting the condition No. 15(a) as alleged by the petitioner.;