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5. The tender documents were purchased by five parties, including the petitioner, who were manufacturing the said Chemical. The bids were, however, submitted only by the following three parties:

1. M/s. Bayer Crop Science India Limited (successful bidder)

2. M/s. Gharda Chemicals Limited (Petitioner)

3. M/s. Hernaba Industries Limited

6. The petitioner is aggrieved by the following eligibility criteria, as contained in the NIT:

''Tenders for Chemical will be accepted only from the licensed technical-grade manufacturers, who are actually manufacturing technical formulation and must be having experience of at least 3 years manufacturing of ISI marked Chemical. Proof of the same must be enclosed with the tender. The parties shall offer the material strictly conforming in the specifications, terms and conditions of the tender enquiry. The tender not conforming strictly to specifications, other terms and conditions of the tender enquiry and incomplete/conditional tender will summarily be rejected as invalid. Further in order to assess manufacturing facilities available with the tenderers, the inspection facilities may be required and to be arranged by the party at the discretion of the Corporation....'' (Highlighted for ready reference)

7. The stand of the petitioner is that the condition of ''at least three years experience of manufacturing ISI marked Chemicals'' has been inserted by the CWC with a collateral motive in order to avoid competitive bidding and to ensure that the tender was awarded to M/s. Bayer Crop Science India Limited, hereafter referred to as 'Bayer Crop', who were manufacturing the Chemical, though under different corporate names, since the year 1994 and were making supplies in the past. The petitioner was manufacturing the Chemical since December 2001 and M/s. Hernaba Industries Limited since July 2003. It is alleged that the insertion of pre-qualification condition is aimed at seeing that no other manufacturer, including the petitioner qualifies for the bid as it as bids certification only for the last two years. In support of their plea that the impugned action is to favor Bayer Crop, it is pointed out in the additional affidavit that one M/s. Hoechst Schering Agro Evo Limited was incorporated on 9 March 1994; is name was changed to Agro Evo India Limited on 3 September 1998; on 9 March 2000 the name was changed to Aventis Crop Science India Limited which has now been changed to Bayer Crop with effect from 22 January 2003 and that the tender has again been awaded to Bayer Crop despite the fact that the samples of the same company, under the old corporate name, namely Aventis Crop Science India Limited, had failed in the past.

(iii) sample failures in the past. It is pointed out that in the last tender enquiry, the offer of rate contract given to the petitioner had to be cancelled because they had failed to produce the bids certificate in their own name. It is, thus, asserted that the decision to incorporate the condition of experience of three years has been taken in public interest, based on past experience and not for any mala fide reasons.

9. Refuting the claim of the CWC that the impugned condition would ensure quality and consistency in supplies, in the rejoinder-affidavit, it is pleaded that the duration/age of holding bids certificate is meaningless because it has no nexus with either the quality assurance or consistency in supplies, particularly when the product to be supplied has to be ISI marked. It is also alleged that though the CWC has withheld the name of the supplier whose sample had failed but being the sole supplier, in all probability, it was Bayer Crop, whose samples had failed despite their possessing bids certificate for more than three years. It is, thus, asserted that the pre-qualification condition imposed by the CWC is arbitrary, unreasonable and against the public interest as it promotes monopoly.

10. Mr. H.L. Tiku, learned Senior counsel appearing for the petitioner, while reiterating that the impugned pre-qualification condition has absolutely no nexus either with the quality assurance or consistency in supplies because even in the absence of such a stipulation, the product to be supplied has to be of ISI certification, has alleged that the impugned condition has been deliberately designed to keep out the manufacturers of the said Chemical, who are otherwise eligible and fully equipped to supply ISI marked product. It is urged that the impugned eligibility criteria is destructive of the need to have a fair competitive tendering process. Learned counsel asserts that since Bayer Crop is the sole company manufacturing the Chemical since 994, the impugned stipulation is tailored for them. To buttress the argument that the length of holding of a bids certificate is no assurance of the quality of the Chemical ultimately produced and supplied, learned counsel has cited the case of Baer Crop itself, whose samples had failed despite their holding bids certificate for over ten years. In support of the proposition that all the participants in the tender process should be treated alike and the State or its strumentalities cannot be permitted to act arbitrarily, reliance is placed on the decisions of the Supreme Court in Monarch Infrastructure (P) Ltd Vs. Commissioner Ulhasnagar Municipal Corporation and Ors. and Rashbihari Panda Etc Vs. State of Orissa .