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7. Mr. Gadhavi seeks to invoke the doctrine of 'level playing field'. The principal argument in this regard is that by prescribing a very onerous and stringent eligibility criteria, the doctrine of 'level playing field' stood frustrated.

8. Mr. Gadhavi seeks to place strong reliance on the decision of the Supreme Court in the case of Reliance Energy Limited & Others Vs. Maharashtra State Road Development Corporation Limited reported in 2007 (8) SCC 1. Mr. Gadhavi seeks to rely upon the observations made by the Supreme Court that when Article 19(1)(g) of the Constitution confers the fundamental right to carry on business to a company or a proprietary concern, it is entitled to invoke the said doctrine of 'level playing field'.

11. On the other hand, this writ-application has been vehemently opposed by Mr. Devang Vyas, the learned Assistant Solicitor General of India assisted by Mr. Ritutaj Meena, the learned counsel appearing for the Corporation submitting that the writ-applicants are not entitled to invoke the doctrine of 'level playing field' as the said doctrine would come into play among equal and among equals C/SCA/11514/2020 JUDGMENT DATED: 18/08/2021 and not unequal. It is argued that the writ-applicants are not one among equals and as such, they cannot maintain a complaint against the conditions of the Tender, merely because, it does not suit them. Mr. Vyas would argue that the terms of the invitation to tender are not open to judicial scrutiny, the same being in the realm of contract. He would submit that the impugned eligibility criteria cannot be termed in any manner as arbitrary, discriminatory, malafide or actuated by bias. Mr. Vyas invited the attention of this Court to some of the averments made in the affidavit-in-reply filed on behalf of the Corporation, which reads thus:-

C/SCA/11514/2020 JUDGMENT DATED: 18/08/2021

26. We take notice of the fact that the very same eligibility criteria as sought to be challenged in the present writ-application was a subject matter of challenge before the Gauhati High Court. It appears that a learned Single Judge of the Gauhati High Court took the view that the eligibility criteria as prescribed by the Corporation was violative of Article 14, 19(1)(g) as well as Article 21 of the Constitution. The learned Single Judge took the view that the doctrine of 'level playing field' was being frustrated by stipulating such stringent eligibility criteria. The decision of the learned Single Judge was challenged in appeal by the ONGC. In the Writ Appeal No.116 of 2021, the Appeal Court while upholding the legality and validity of the eligibility criteria observed as under:-

29. We are not impressed by the submissions of Mr. Gadhavi as regards the doctrine of 'level playing field'. In commerce, a 'level playing field' is a concept about fairness, not that each player has an equal chance to succeed, but they all play by the same set of rules. We are not impressed by the submissions canvassed on behalf of the writ-applicants that onerous/stringent eligibility criteria of having five medical stores in the City has led to frustrating the doctrine of 'level playing field'. The Supreme Court, in Reliance Energy Limited [Supra] upon which strong reliance has been placed C/SCA/11514/2020 JUDGMENT DATED: 18/08/2021 by Mr. Gadhavi has said, in so many words, that the doctrine of 'level playing field' is subject to public interest. Just because the writ-applicants also happen to be running medical stores, the same, by itself is not sufficient to invoke the doctrine of 'level playing field'. The doctrine provides space within which the equally placed competitors are allowed to bid so as to subserve the larger public interest.