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M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 14.07.2021 passed by the High Court of Delhi at New Delhi in Writ Petition (Civil) No. 5722 of 2020, by which the High Court, in exercise of its powers under Article 226 of the Constitution of India, has allowed the said writ petition and has struck down the decision to carry out region-wise sub-categorisation of the 49 airports falling under SNEHA Group D-1; the stipulation that only previous work experience in respect of providing GHS to scheduled aircrafts shall be considered acceptable for the purpose of the impugned tender/RFP and the revised minimum Annual Turnover criteria of INR 18 crores as discriminatory and arbitrary, the Airport Authority of India (for short, ‘AAI’) has preferred Civil Appeal No. 6615/2022. The subsequent order dated 24.09.2021 rejecting the review application being Review Petition No. 150/2021 to review and recall the final judgment and order passed in Writ Petition No. 5722/2020 is also the subject matter of Civil Appeal No. 6616/2022.

2. The facts leading to the present appeals in a nutshell are as under:

The appellant herein – AAI floated a Request for Proposal (for short, ‘RFP’)/tender for concession of ground handling services at Group ‘A’, ‘B’ and ‘C’ airports owned by it on 01.05.2018. The appellant herein – AAI also floated a RFP/tender for concession of ground handling services at Group ‘D’ airports owned by it on 02.05.2018. That the RFP for Group ‘D’ airports was modified multiple times and finally republished as Corrigendum No. 21. However, subsequently, vide letter dated 10.06.2019, AAI cancelled the tender earlier floated for Group ‘D’ airports. That thereafter, the AAI published a fresh RFP on 28.07.2020 for Group ‘D1’ airports. The respective RFPs contained the eligibility criteria which include the technical and financial qualifications. 2.1 Respondent No.1 herein – Centre for Aviation Policy, Safety & Research (CAPSR) filed a writ petition before the High Court challenging the eligibility criteria and the respective RFPs with respect to Group ‘C’, ‘D1’ and ‘D2’ airports on the ground that the eligibility criteria contained in the RFPs are not only a radical departure from the past, but also stipulate onerous technical and financial qualifications, thereby rendering most of the extant Ground Handling Agencies (for short, ‘GHAs’) ineligible to participate in the tender process, especially those which have been providing Ground Handling Services (for short, ‘GHS’) at the smaller airports of the country, that fall under the categories of Groups ‘C’, ‘D1’ and ‘D2’ airports, for the last many years. It was also the case on behalf of the original writ petitioner that the prescribed technical and financial qualifications have no corelation with the GHS that the service providers are expected to provide at the Groups ‘C’, ‘D1’ and ‘D2’ airports and that the same have been arbitrarily and whimsically tailored with a view to oust the existing GHS providers, who have been providing these services for years, without any complaint.
2.2 The writ petition was opposed by the AAI by filing a counter affidavit. It was the case on behalf of the AAI that the objective of the tenders for Group ‘C’, ‘D1’ and ‘D2’ airports was not to oust small players but sought to exclude GHAs, which lack expertise and infrastructure and used casual and unskilled labour in workforce which allowed them to offer better rates as compared to other GHAs. It was also the case on behalf of the AAI that considering the importance of experience in GHS for scheduled aircrafts given the nature of work involved in scheduled flights are wider than non-scheduled flights. Thus, 36 months of experience in past 7 years of handling ground handling services for scheduled flights was reasonable. It was also submitted on behalf of the AAI that the earnest money deposit, Annual Turnover criterion and qualifying experience criterion is not arbitrary, irrational and discriminatory. It was also pointed out that the amount of earnest money deposit required in the tender for Group ‘D1’ airports has been reduced from Rs. 35 Lakhs per region to Rs. 15 Lakhs per region. AAI also tried to justify the Annual Turnover criterion of Rs. 30 crores for Group ‘D1’ airports. At this stage, it is required to be noted that pursuant to the directions of the High Court, the AAI agreed to reduce the requirement of Annual Turnover criterion to Rs. 18 crores for Group ‘D1’ airports. The AAI also challenged the locus of respondent No. 1 – original writ petitioner.

4.3 It is then submitted that in the present case the AAI earlier had disregarded the provisions of Section 12(5) of the AAI Act, 1994 r/w the provisions of the MSME Act and MSME Order of 2012 and the statutory Public Procurement Policy of the Government wherein it is mandated that the AAI must procure 25% of services from MSME sector along with giving other benefits such as free of cost tender and exemptions to be granted from payment of Earnest Money Deposit (EMD) to register small and medium enterprises. It is submitted that in the present case the AAI artificially introduced differentiation in technical eligibility criteria, specifying experience in providing GHS to scheduled airlines flights only even there is no differentiation between GHS provided to non-scheduled or scheduled airlines in the AAI (GHS) Regulations, 2018. 4.4 It is further submitted that as rightly observed and held by the High Court the terms and conditions set forth in the tenders are discriminatory, restrictive, and exclusionary. It is submitted that clustering of small airports of different sizes, different capacity to handle aircrafts, different financial viabilities, different locations into regions etc. is not based on intelligible differentia nor does it have any rational nexus to the avowed objective of the respondent of security. It is submitted that as the relevant eligibility criteria and the conditions mentioned in the respective tenders were found to be discriminatory and arbitrary and no nexus with the object of providing such eligibility criteria, the High Court has not committed any error in striking down the decision to carry out region- wise sub-categorisation of the 49 airports falling under Group D-1; the stipulation that only previous work experience in respect of providing GHS to scheduled aircrafts shall be considered acceptable for the purpose of the impugned tender/RFP and the revised minimum Annual Turnover criteria of INR 18 crores as discriminatory and arbitrary. 4.5 Making the above submissions, it is prayed to dismiss the present appeals.