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3. On 9 August 2024 BPCL issued tender notice for road transportation of Bulk POL products (MS/HSD/Branded Fuels, etc.) by Top Loading Tank Lorries from BPCL, Manmad Installation Maharashtra to various locations (Depots, Retail Outlets/ direct customers, etc.) within and outside the State. The contract period indicated in the tender notice is for five years. Petitioners have challenged some of the tender conditions in the impugned tender notice, which seek to provide concession in respect of the security deposit as well as non-requirement of the actual ownership of the lorries by bidders belonging to SC and ST categories. Additionally, 15% reservation is provided for SC category and 7.5% reservation is provided for bidders belonging to ST category in the impugned tender, which condition is also challenged by the Petitioners. Petitioners have also challenged Clause 10(C) of the tender document providing for reservation to Micro and Small Enterprises (MSE). According to Petitioners, provision of such reservation eats up larger pie of the lorries Megha 19_wp_12106_2024_judgment_fc.docx leaving open not even 50% of the lorries to bidders not belonging to any reserved category. Accordingly, the present Petition is filed challenging the impugned tender notice.

4. Respondent No.1 -BPCL has appeared in the Petition and filed affidavit-in-reply inter alia contending that the provision for reservation in the tender is made in accordance with guidelines of Government of India vide circular dated 18 August 1994. Petitioners have accordingly amended the Petition by challenging the guidelines dated 18 August 1994.

5. We have heard Mr. Mirza, the learned senior advocate appearing for the Petitioners, who would submit that the provisions made by Respondent No.1-BPCL for reservation in the matter of allotment of contract to SC/ST bidders is constitutionally invalid. That provision for such reservation violates fundamental right of the Petitioners to do business under Article 19(1)(g) of the Constitution of India. That the reservation is sought to be justified merely on the basis of guidelines, which cannot partake character of law. That right of doing business by competing in respect of the entire tender cannot be taken away by issuance of mere guidelines. That Respondent No.1-BPCL has not been able to connect the provision for reservation to any specific source of power. That provision for reservation can only be made under Article 15 or 16 of the Constitution of India in the matter of public employment and the same is impermissible while awarding contracts during Megha 19_wp_12106_2024_judgment_fc.docx the course of business of a public sector undertaking. It is also submitted that the provision for reservation to SC/ ST categories as well as MSEs virtually leaves less than 50% of the lorries for allotment to the Petitioners thereby grossly affecting their right of doing business. He would submit that the unfilled quota during the previous tender process has been carried forward by the BPCL in the current tender process, which actually results in total percentage of reservation exceeding 50%. In support, Mr. Mirza has relied upon following judgments :-

9. Rival contentions of the parties now fall for our consideration.

10. Petitioners are essentially aggrieved by conditions in the tender document providing for concession and reservation to bidders belonging to SC/ST categories as well as MSEs. The tender notice is issued for awarding contract for road transportation of bulk POL products by Top Loading Tank Lorries from BPCL, Manmad installations to various locations. The eligibility criteria for general category bidders is possession of minimum 5 Tank Lorries (TL), out of which 3 must be owned. For MSE bidders, relaxation is provided where they can possess only 3 TLs, out of which only 2 need to be owned. For bidders belonging to SC/ST categories, further relaxation is granted where the bidders can possess only two TLs, out of which one must be owned. For the general category bidders, it is compulsory to submit booking slip of new Chassis alongwith affidavit for offer of TL against Chassis booking slip as per format, which essentially means that general category must purchase at least 3 TLs for becoming eligible in the tender process. However, SC/ST bidders could merely submit booking slips without actually owning the TLs. The next concession given to SC/ST bidders is in respect of relaxation in security deposit in the form of bank guarantee. For general category bidders, it is Megha 19_wp_12106_2024_judgment_fc.docx compulsory to submit bank guarantee of Rs.8 lakhs, which is reduced to only Rs.50,000/- for SC/ST bidders. The third grievance of the Petitioners in respect of reservation provided for SC/ST bidders is that as per Clause 10(A) of the tender document, reservation of 15% of total requirement is made for SC bidders and reservation of 7.5% of total requirement is made to ST bidders. The tender condition has carried forward previous tender's unfilled quota for SC of 20 TLs and ST of 15 TLs Accordingly, the total tender requirement of 257 TLs is sub divided into 59 TLs for SC category (representing to 22.96%) and 35 TLs for ST (representing to 13.62%). Petitioners are aggrieved by reservation of 59 TLs for SC and 35 TLs for ST category.

25. We therefore do not find any reason to interfere either in the impugned guidelines dated 18 August 1994 or the impugned tender process providing reservation for SC/ST.

26. So far as the issue of rolling over reservation of previous year is concerned, the issue appears to be well settled by judgment of Punjab and Haryana High Court in Sunil Kumar @ Sushil Kumar V/s. Staff Selection Commission (supra).

27. So far as grant of concession in the matter of security deposit and actual ownership of TLs is concerned, we are of the view that the tendering authority is the best judge to determine the eligibility conditions for different categories of bidders. The said concession is provided keeping in mind the broad objective of upliftment of weaker sections of society.