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14. The learned senior counsel further submits that even the Association of State Road Transport Corporation (ASRTU), of which MSRTC is a Member, in its terms and conditions formulated for inviting tenders, does not prescribe pre-qualification criteria to the effect that the suppliers should be OEM suppliers. Thus, the pre-qualification criteria fixed by the MSRTC to the effect that the tenderers should be OEM suppliers is discriminatory and is violative of Article 14 and 19(1)(g) of the Constitution. He submitted that the prequalification criteria that the tenderer should be a OEM supplier neither ensures quality nor the capacity of the supplier to supply the goods tendered but only purports to create monopoly in favour of few favoured suppliers which is not permissible in law. The quality of the products manufactured by the petitioners are certified by CIRT, Pune and in fact in the past, the petitioners had supplied their products to MSRTC. In these circumstances, depriving the petitioners of their right to participate in the tender by incorporating wholly unreasonable pre qualification eligibility criteria is arbitrary, discriminatory and hence liable to be quashed and set aside.

23. On the contrary, the petitioners have specifically averred that the selection of OEM suppliers by the Original Equipment Manufacturers is solely based on cost advantage and payment terms. According to the petitioners, they could not become OEM suppliers not because their product was of inferior quality but because they could not afford the payment terms demanded by the original equipment manufacturers. These contentions are neither controverted nor any material is placed on record by the MSRTC to show that the selection of OEM suppliers by the Original Equipment Manufacturers is based on the superior quality of the products. Therefore, the contention of the MSRTC that the products of OEM suppliers are of superior quality is wholly based on conjectures and is not based on facts. Consequently, the decision of the MSRTC to award contract only to OEM suppliers must be held to be violative of Article 14 of the Constitution.

24. Moreover, it is pertinent to note that the MSRTC is not purchasing the products at the rate at which the OEM suppliers are supplying their products to Original Equipment Manufacturers. Thus, the OEM suppliers have an unfair advantage of quoting one price for their products to Original Equipment Manufacturers and Anr. price to MSRTC. Admittedly, there are only two to three OEM suppliers. Thus, the eligibility criteria fixed by the MSRTC enables the OEM suppliers to create a monopoly or a cartel among themselves which cannot be said to be in the best interests of MSRTC.

25. The argument of the MSRTC that restricting the eligibility criteria for supply of spare parts to OEM suppliers is based on public safety is totally vague and devoid of any merit. There is no material on record to suggest that the spare parts manufactured by persons other than the OEM suppliers were found to be lacking in quality or use of the said spare parts has affected the public safety.

26. The contention that the products of the petitioner No. 2 purchased by the MSRTC in the past were found to be giving lesser kilometer average have been disputed by the petitioners. In any event, the petitioner No. 2 is not excluded from the race not because the product of the petitioner No. 2 gives lesser average but because, the petitioner No. 2 is not an OEM supplier. As noted earlier, there is nothing on record to suggest that the selection of the OEM suppliers by the Original Equipment Manufacturers is based on the quality of the products. Therefore, the decision of MSRTC in inviting tenders only from OEM suppliers is wholly unreasonable and unjustifiable.