Indian Kanoon - Search engine for Indian Law

3.3 Originally, eggs were procured through a Centralised State level single tender system. Thereafter, in the year 2006, District-wise tender was floated first by three months and then by every month, which was in vogue till 2012, which led to the formation of cartels and other defects.

3.4 To rectify all the defects, the first respondent passed G.O.Ms.No.264, Social Welfare and Nutritious Meal Programme Department, dated 17.10.2012 (for short, “G.O.Ms.No.264”) and adopted the methodology of floating State-wise tender for the supply of eggs to all the noon meal centres in the entire State. As per the said G.O., the Tender Inviting Authority floated State level tender and the terms and conditions were designed as per the Tamil Nadu Transparency in Tenders Act (for short, “the Act”) and the Rules made thereunder and contracts were awarded to the qualified tenderers for the past five years from 2013-14 to 2017-18.

19. Mr.M.S.Krishnan, learned Senior Counsel appearing for the petitioner in WP.No.25142 of 2018, in his reply, stated that the petitioner is not questioning the right of the Government to change the policy, but the manner in which it has been done. According to him, while issuing the impugned G.O.Ms.No.57 as well as the consequential tender notification, all the earlier safeguards framed by the Government for providing good quality eggs to beneficiaries, who are all school going children, have been completely given a go by, which may be detrimental to their interest; further, the Government, while dealing with the State largess, cannot have the right to choose a buyer from a particular group of individual, which is against Article 14 of the Constitution of India. The learned Senior Counsel also submitted that one of the sound reasonings assigned by the Government in arriving at the earlier policy decision in 2012 is that in a single State level tender system, a firm and stable price could be fixed due to the fluctuating price of eggs, whereas, the present tender notification is a notification inviting six separate tenders, which will again bring instability in the price of eggs. Further, there was no reason assigned by the Government in the impugned G.O.Ms.No.57 as to how it seeks to achieve the object of a stable and firm price. The learned Senior Counsel further submitted that there was no rhyme or reason for speedy decision taken by the Government on the representation submitted by the http://www.judis.nic.in Association. It is also submitted that the Government, in its press release dated 18.07.2018, has substantiated that there is no flaw in the existing State level single tender system being carried on by it, whereas, the impugned G.O.Ms.No.57 does not reveal any reason as to why the departure is being made from State level single tender to Zone-wise tender. Thus, according to the learned Senior Counsel, when a change is brought to an existing policy decision, it is the duty of the Government that such change is fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment, as otherwise, the process of decision making by the Government is subjected to judicial review and the Courts can interfere with the same.

29.1 The next bone of contention made by the petitioners is that G.O.Ms.No.57 is not a policy decision; under the garb of policy decision, the Government cannot avert judicial scrutiny of a perfunctory executive order sans any policy; on the other hand, G.O.Ms.No.264 was propounded as a policy decision for the introduction of State Level Tender, after much deliberation and consideration of pros and cons at several levels by the officers and departments over a long period extending about 6 months in public interest for the welfare of the children, being the objective sought to be achieved. The learned Senior Counsel appearing for the petitioners submitted that G.O.Ms.No.57 has been issued, not to achieve public interest, but for extraneous reasons i.e., the same was brought about within 6 working days; the decision to introduce Zonal level tender and the exclusion of egg suppliers from participation cannot be termed to be fair, just and legally valid; the decision making process has not considered the relevant factors and it is not justified, as to why such a decision was arrived at; the qualifying conditions for deciding the eligible tenderers and other stipulations mentioned in the consequential tender notification dated 20.08.2018 issued pursuant to G.O.Ms.No.57 are neither in furtherance or supportive http://www.judis.nic.in of the alleged reasoning viz., benefiting poultry farmers nor have any nexus to the object of the Nutritious Meal Scheme viz., ensuring uninterrupted supply of quality eggs at a competitive same price for the whole year to the children; and the tender conditions were formulated in such a way that the successful poultry farmers are going to do the same work as the egg traders and suppliers in the single state level tender, but by excluding them; as such, the terms and conditions of the tender excluding the egg traders and suppliers are veritably colourable exercise of power and violative of the fundamental rights guaranteed under the Constitution.

29(iii) A perusal of the Government Order would disclose that pros and cons in the floating of State Level Tender have been analyzed and discussed in detail and in depth and the Government has decided to accept the proposal/recommendation of State level tender system and ordered as follows:

8....

http://www.judis.nic.in I. State Level Single tender system which was in vogue prior to 2006 shall be introduced and the Principal Secretary/Special Commissioner, Integrated Child Development Services Scheme may make procurement of eggs by following the provisions of Rule 31 of Tamil Nadu TIT Act 1998 and Rules 2000.