Mobile Caterers Welfare Association and Harish Kumar Arora and Classic Caterers and Ratan Refreshment Pvt. Ltd. and Singh Caterers and Vendors V. The Union of India through the Secretary, Ministry of Railways and The Secretary, Ministry of Railways and The Railway Board, Ministry of Railways and The Member- Finance, Railway Board and The Director (Tourism & Catering), Ministry of Railways and Indian Railway Catering & Tourism Corporation Limited and The Group General manager (Procurement), Indian Railway Catering & Tourism Corporation Ltd. and The General Manager, South Eastern Railway, Kolkata Zonal Office and The Regional Manager, Ranchi Railway Office

WPC/766/2024

AI Insights

The case involves M/s Mobile Caterers Welfare Association and other petitioners challenging the Commercial Circular No. 24/2023 issued by the Railway Board, which amended the Catering Policy 2017. The petitioners argued that the amendments were discriminatory and designed to exclude certain bidders, thereby violating Article 14 of the Constitution. The respondents, including the Ministry of Railways and IRCTC, defended the amendments as necessary for improving the quality and hygiene of catering services on trains. The court examined the legal provisions regarding judicial review of tender processes and the specific changes brought about by the Commercial Circular No. 24/2023. After considering the arguments and evidence, the court dismissed the petition, supporting the respondents' position.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 817392 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 27-02-2024
• Assessment Year: misc
• Other Referred Cases: Meerut Development Authority versus Association of Management Studies & Anr., Michigan Rubber (India) Limited versus State of Karnataka and Others, Jagdish Mandal versus State of Orissa and Others, M/s. N.G. Projects Limited versus M/s. Vinod Kumar Jain & Ors.
• Laws Referred To: Article 14 of the Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: TUSHAR MEHTA
• Assessee Lawyers: S D SANJAY
• Keywords: Article 14; Catering Policy; Discrimination; Judicial review; Tender process
• Section: 2017

Judgement Text

" IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 766 of 2024 --------- 1. M/s Mobile Caterers Welfare Association, an Association of Caterers having its Registered Office at Khasra No. 304, Vandana Vihar, Khora Colony, P.O. & P.S. Ghaziabad, District Ghaziabad (Uttar Pradesh) through its Authorized Representative namely, Bijay Kumar Singh, S/o Sri Shashi Bhushan Singh, R/o Gram Nawabandh, P.O. Pathradda, P.S. Nababand, District- Deoghar, PIN 815353 (Jharkhand). 2. M/s. Harish Kumar Arora, a Proprietary concern, having its Office at Sehnai Banquet Hall, MCD Car Parking, Asaf Ali Road, P.O. Ajmeri Gate Extention, P.S. Chandni Chowk, District- New Delhi, pin- 110002 (New Delhi) through its Authorized Representative namely, Bijay Kumar Singh, S/o Sri Shashi Bhushan Singh, R/o Gram Nawabandh, P.O. Pathradda, P.S. Nababand, District- Deoghar, PIN 815353 (Jharkhand) 3. M/s Classic Catereres, a Proprietary concern, having its Head Office at Mitrakutir, A-33, Chander Vihar, I.P Extension, Patparganj, P.O. & P.S. Patparganj, District- Delhi, PIN- 110091 (Delhi), through its Authorized Representative Bijay Kumar Singh, S/o Sri Shashi Bhushan Singh, R/o Gram Nawabandh, P.O. Pathradda, P.S. Nababand, District- Deoghar, PIN 815353 (Jharkhand) 4. M/s. Ratan Refreshment Pvt. Ltd., having its office 501, 5th Floor, Safalya Building Baburao Parulkar Marg, Near Jai Gopal Industries, Dadar (West), Mumbai, P.O. & P.S. Dadar West, District Mumbai, PIN 400014, (Maharashtra) through its Authorized Representative Bijay Kumar Singh, S/o Sri Shashi Bhushan Singh, R/o Gram Nawabandh, P.O. Pathradda, P.S. Nababand, District- Deoghar, PIN 815353 (Jharkhand) 5. M/s. Singh Caterers and Vendors, having its Registered office at Kunwar House, Road No. 11, Rajendra Nagar, P.O. Rajendra Nagar, P.S. Kadamkuan, District- Patna, PIN 800016 (Bihar) through its Authorized Representative Bijay Kumar Singh, S/o Sri Shashi Bhushan Singh, R/o Gram Nawabandh, P.O. Pathradda, P.S. Nababand, District- Deoghar, PIN 815353 (Jharkhand) ... … Petitioners Versus 1. The Union of India through the Secretary, Ministry of Railways, Government of India, having its office at Rail Bhavan, Raisina Road, New Delhi, P.O. Sansad Marg Head Quarter & P.S. Central Delhi, District- Central Delhi, PIN- 110001 (New Delhi). 2. The Secretary, Ministry of Railways, Government of India, having its office at Rail Bhavan, Raisina Road, New Delhi, P.O. Sansad Marg Head Quarter & P.S. -2- Central Delhi, District- Central Delhi, PIN- 110001 (New Delhi). 3. The Railway Board, Ministry of Railways, Government of India, through its Chairman having its office at Rail Bhavan, Raisina Road, New Delhi, P.O. Sansad Marg Head Quarter & P.S. Central Delhi, District- Central Delhi, PIN- 110001 (New Delhi). 4. The Member- Finance, Railway Board, Ministry of Railways, having its office at Rail Bhavan, Raisina Road, New Delhi, P.O. Sansad Marg Head Quarter & P.S. Central Delhi, District- Central Delhi, PIN- 110001 (New Delhi). 5. The Director (Tourism & Catering), Ministry of Railways, Government of India, having its office at Rail Bhavan, Raisina Road, New Delhi, P.O. Sansad Marg Head Quarter & P.S. Central Delhi, District- Central Delhi, PIN- 110001 (New Delhi). 6. M/s Indian Railway Catering & Tourism Corporation Limited, through its Group General Manager (Procurement), having its office at 10th and 11th Floor, Statesmen House Building, Barakhamba Road, New Delhi. 7. The Group General manager (Procurement), M/s Indian Railway Catering & Tourism Corporation Ltd., having its office at 10th and 11th Floor, Statesmen House Building, Barakhamba Road, P.O & P.S New Delhi, District New Delhi, PIN- 110001 (New Delhi) 8. The General Manager, South Eastern Railway, Kolkata Zonal Office, Kolkata having its office at Ist Floor, 17, N.S. Road, Fairlie Place, Kolkata, P.O. & P.S. Kolkata, District Kolkata, PIN- 700001 (West Bengal) 9. The Regional Manager, Ranchi Railway Office, Ranchi, having its office at Ranchi, P.O. G.P.O. & P.S. Kotwali, District Ranchi, PIN- 834001 (Jharkhand). ... … Respondents --------- For the Petitioner : Mr. S.D. Sanjay, Sr. Advocate M/s. Sumeet Gadodia, Shilpi Sandil Gadodia, Mohit Agarwal, Shruti Shekhar, Advocates For the Respondents : Mr. Tushar Mehta, S.G.I., Mr. Indrajit Sinha, Advocate P R E S E N T HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE DEEPAK ROSHAN --------- C.A.V. on 21/02/2024 Pronounced on: 27/02/2024 Per Rongon Mukhopadhyay, J. Heard Mr. S.D. Sanjay, learned Senior Counsel for the petitioners and Mr. Tushar Mehta, learned Solicitor General of India appearing for the respondents. -3- 2. In this writ application, the petitioners have prayed for quashing of the Commercial Circular No. 24/2023 dated 14.11.2023 issued by the respondent-Railway Board, Ministry of Railways, Government of India, New Delhi whereby addendum to Catering Policy 2017-Para 1 & Para 3 of Catering Policy 2017 has been issued contrary to the object and spirit of the Catering Policy, 2017. The petitioners have also prayed for quashing of the notice inviting e-Open Tender bearing e-Open Tender No. 2024/ IRCTC/ P&T/ Cluster/ FEB/ EZ/ SER/ CLT/ B-7 whereby e-Open Tender for provision of on board catering services in trains for the period of five years further extendable up to two years for category of Cluster-Category ‘B’ floated by the respondent-IRCTC for which the last date and time for submission of Bid is 22.02.2024, 12:00 hrs. and the date and time of opening of Technical Bid is 22.02.2024 at 15:15 hrs. The petitioners have further prayed for quashing of the notice inviting e-Open Tender bearing e-Open Tender No. 2024/ IRCTC/ P&T/ Cluster/ FEB/ NR/ CLT/ A-2 whereby e-Open Tender for provision of onboard catering services in trains for the period of five years further extendable up to two years for category of Cluster- Category ‘A’ floated by the respondent-IRCTC for which the last date and time for submission of Bid is 22.02.2024, 12:00 hrs. and the time of opening of Technical Bid is 22.02.2024 at 12:15 hrs. Another prayer which has been made by the petitioners is of quashing the notice inviting e-Open Tender bearing e-Open Tender No. 2024/ IRCTC/ P&T/ Cluster/ FEB/ 162/ 562/ CLT/ A-4 by which e-Open Tender has been floated for provision of on board catering services in trains for the period of five years further extendable up to two years for category of Cluster-Category ‘A’ floated by the respondent-IRCTC for which the last date and time for submission of Bid is 15.02.2024, 12:00 hrs. and the date and time of opening of Technical Bid is 15.02.2024 at 12:15 hrs. The petitioners have prayed for a declaration that the addendum to Catering Policy 2017, Para 1 and Para 3 of Catering Policy 2017 issued vide impugned Commercial Circular No. 24/2023 dated 14.11.2023 is not only arbitrary, discriminatory and tailor made -4- but also contrary to the object of the Original Catering Policy 2017 and as such amounts to formulating such terms and conditions with ulterior motive to exclude certain class of Bidders and to make favour to another class of Bidders amounting to selective discrimination which is violation of Article 14 of the Constitution of India. The petitioners have also prayed for a declaration that the impugned notice inviting e-Open Tender on the basis of the Commercial Circular No. 24/2023 dated 14.11.2023 is tailor made as the same has been designed in such a manner to exclude and eliminate certain class of Bidders with motive to favour another class of Bidder(s) and hence is violation of Article 14 of the Constitution of India. A restrainment order has also been sought for from this Court for restraining the respondents from proceeding with the impugned Tender process which is to commence from 15.02.2024 and to continue with the Original Catering Policy 2017 so that the consumers and the passengers of the train may not suffer any inconvenience in the matter of catering. 3. Mr. S.D. Sanjay, learned Senior Counsel appearing for the petitioners has commenced his submission by referring to the legal provisions as enunciated by the Hon’ble Supreme Court in various pronouncements touching upon the scope of judicial review of the Court in a Tender process. He has referred to the case of “Meerut Development Authority versus Association of Management Studies & Anr.” reported in (2009) 6 SCC 171, while submitting that if the terms and conditions of a notice inviting Tender is tailor made to suit a particular person, judicial review in such circumstance is permissible. Reference has also been made to the case of “Michigan Rubber (India) Limited versus State of Karnataka and Others” reported in (2012) 8 SCC 216. He has submitted that the basic requirement of Article 14 of the Constitution of India is fairness and non-arbitrariness in the actions of the State which is embodied in the said Article itself. The interference by the Court in a Tender matter in exercise of the powers of judicial review has to answer the following questions in the affirmative to justify such interference and, in such context, -5- Mr. Sanjay, has taken up through the judgment of “Michigan Rubber (India) Limited versus State of Karnataka and Others” (supra), wherein the following questions were framed and quoted hereinunder: 24………. (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”? and (ii) Whether the public interest is affected? 4. Based on the broad contours of the proposition of law governing this case Mr. Sanjay has sought to demonstrate from the factual aspects of the case as to how the Court in the given features can exercise its power of judicial review. The Catering Policy 2010 came into existence pursuant to the speech of the Minister of Railways in the Railway Budget, 2009-10 and the preamble as well as the objectives of the said policy was highlighted by Mr. S.D. Sanjay in order to impress upon the Court as to how the Catering Policy has evolved over the years finally culminating in introduction of a discriminatory policy affecting the petitioners who were sought to be excluded from the parameters of the said policy. For better appreciation the preamble and the objectives are being quoted hereinunder: PREAMBLE Pursuant to a Cabinet decision, the Catering business of Indian Railways was being progressively hived off to the Indian Railways Catering and Tourism Corporation (IRCTC) through provisions in the Catering Policy of 2005. Modification of the policy has now been necessitated after the experience gained and public perception since the operation of this policy. The modifications pertain to establishing good governance standards and improving the quality of these services for providing food and beverage services to passengers travelling on trains through mobile catering services and operation and management of the static catering contracts dealing with provision of food and -6- beverages to passengers travelling on train, or railway premises like platforms, concourses etc. 1. OBJECTIVES OF CATERING POLICY 1.1 To provide hygienic, good quality affordable food to the travelling public by adopting best trade and hospitality industry practices. 1.2 The policy will have an inclusive approach where from the least advantaged passenger to the relatively affluent will be provided catering services in a socially responsible manner. 1.3 It should meet all the social objectives of the Government, including provision of reservations as per Government Directives issued from time to time. 5. While taking us through the various provisions of the Catering Policy 2010, Mr. Sanjay has pointed out that prior to 2010 it was the contractors who were providing the facility of catering. He has thereafter pointedly referred to Clause 3, 4 and 9 of the Catering Policy, 2010 which reads as under: 3. ROLE OF RAILWAY BOARD, ZONAL RAILWAYS AND IRCTC 3.1 Railways shall progressively take over management of all mobile catering services including base kitchens and mobile catering through departmental catering in a phased manner. 3.2 Railway Board shall determine the menu and tariff for the standard meals, breakfast, tea, coffee and catering charges for meals, etc., which are included in the fare. Zonal Railways will determine the menu and tariff for all other items including a-la-carte items and Jan Ahar outlets. 3.3 IRCTC will be primarily responsible for running of Food Plaza, Food Courts, fast food units within the ambit of this policy. 3.3.1 All existing major and minor catering units will be awarded and managed by the Zonal railways, except Food Plaza, Food Courts, fast food units. All such contracts presently being managed by IRCTC, on expiry of the contract period, will be -7- awarded by the Zonal railways. IRCTC will not renew any contract required to be handed over to zonal railways on expiry of the contract. 3.3.2 The base kitchens and the mobile catering services will be taken over by the Zonal railways in phases. To avoid disruption in services for the time being, railways will manage these services through departmental supervision by engaging reputed professionals till railways are in a position to manage them departmentally. 3.3.3 All existing contracts, which are to be managed by zonal railways and have been awarded by IRCTC will be transferred to Zonal Railways in a phased manner to ensure smooth transfer without disruption in services to the passengers subject to fulfilment of all legal procedures. The monitoring of the static and mobile catering units will henceforth be done by the zonal railways. 3.4 A specialized team of ex-cadre supervisors and officers upto senior scale will be formed which will be filled by incumbents from existing Railway cadres having necessary aptitude, through redeployment as per extant rules by the zonal railways for monitoring of catering services and will be trained by providing in-service training by reputed institutions. 3.4.1 For provision of such services departmentally, trained personnel from reputed Institutes of Hotel Management/ Catering Institutes/Food Craft Institutes, etc. may also be involved to upgrade and modernize the departmental catering services. 3.5 Zonal Railways will be responsible for ensuring that the standards, as laid down for different services, are maintained and policy directives issued by Railway Board from time to time are strictly complied with. Zonal Railways will institutionalize a -8- mechanism for monitoring the catering services. 3.5.1 Zonal Railways will decide the extent, type and scale of catering services required to be provided at each station, on board trains ensuring adequate availability of affordable food for common passengers. 3.5.2 Zonal Railways will benchmark, standardize and audit production and food processes to improve the quality of mobile catering and base kitchens. 3.6 In view of the change in roles of IRCTC and Zonal railways, the MoU between Ministry of Railways and IRCTC shall be redefined and the revised MoU shall be issued. 4. QUALITY ASSURANCE PROGRAMME: IR shall have the mandate to frame an efficient quality assurance programme to ensure good quality and hygienic food to the passengers. Progressively ISO 22000 Standards & relevant international standards in vogue from time to time will be implemented for all major contracts/units. 4.1 Standard Bidding Documents shall be drafted by the Railway Board by engaging suitable professional agency. This will be co-ordinated and supervised by a cross functional team comprising Executive Directors of T&C, Finance, Stores, Health and Mechanical Directorates of Railway Board. Domain knowledge experts may also be co-opted from reputed institutions having expertise such as Food craft Institutes, Quality Council Institute run by the Government. 4.1.1 Special Tender Conditions, wherever required, may be framed by Zonal Railways or IRCTC, as the case may be. 4.2 Two Packet Systems of Tendering will be followed while selecting the successful bidder for award of major contracts and GMUs at A, B and C category stations Adequate weightages shall be given to the quality of services offered/conformity of the -9- bid to the laid down standard of quality in the bid documents. For this purpose, suitable formulae shall be worked out and these along with the bid evaluation criteria/eligibility criteria shall be defined clearly in the SBD document. 4.3 With a view to ensuring high quality hygiene, cleanliness and use of standard ingredients for food served on trains, the mobile catering units will pick up meals for nominated base kitchens. The base kitchens would be managed and controlled by zonal railways progressively in phases to ensure quality of the food served on trains. 9. CATERING BY MOBILE UNITS: 9.1 Mobile catering services shall be provided from suitably designed pantry cars and providing equipments with state or art technology. There should be progressive switch over from gas burner to safer electrically powered equipments. Panels, counters, etc. should be made of stainless steel. 9.2 Zonal Railways will manage mobile catering services through departmental management. During the period of non- availability of departmental staff, Railways may award service contracts to be supervised by departmental supervisors for service of meals picked up from nominated base kitchens. 9.3 Ownership of pantry car: In order to maintain effective control over on-board services, the Division responsible for the primary maintenance of the train would own the rake of the train and also undertake maintenance of the pantry car. For any complaint in this regard the division concerned would be accountable. 9.4 As a policy pantry cars should be attached to more and more Premier/Super fast and Mail/Express trains. Manufacture of pantry cars should be progressively increased. -10- Priority for allotment of pantry cars for various Zonal Railways will be as under: 9.4.1 First priority to Duronto and Rajdhani Express trains. 9.4.2 Second priority to long distance premier, superfast trains. 9.4.3 Third priority to mail & express trains with more than 24 hours journey time either way. 9.4.4 Fourth priority, the remaining trains, preference to those trains where vestibules are provided. 9.5 Pantry cars of Rajdhani Express trains / Duronto trains should be designed to ensure that pre-cooked and hygienically packed food are supplied from base kitchens with minimum handling in transferring the same to the passengers. Suitable space should be earmarked in coaches of Rajdhani and Duronto trains for stacking and service of meals and installation of catering equipments and trolleys. This will eliminate the usage of vestibules and area around the toilets presently being used for this purpose and this will ensure hygienic services. Light weight compact trolleys (specially designed) will be used on Rajdhani /Duronto trains to ensure that food is not kept on the floors of the trains at the time of service. The trolleys would provide quick, clean and hygienic services in trains. 9.6 All shatabdi Express / Duronto trains should have mini pantries equipped with modern gadgets such as hot cases, water boiler, bottle cooler etc. in all coaches. There should be no cooking and washing on board. Food should be served in pre-set trays, and service in all the coaches should be through trolleys. 9.7 In case of an increase in the frequency of train services and / or extension of trains the departmental unit already managing the services should manage the services on additional trip(s) and/or on extended -11- portion of the run. In case of trains wherein services are managed through engagement of professionals / service providers the extension would be subject to revision of due charges on pro rata basis. 9.8 Allotment and priority will be decided by the Railway Board. 6. It has been stated that the policy of 2010 had fixed a ceiling limit for the contractors to prevent monopoly. The policy of 2010 continued till 2017 but it was superseded by the Catering Policy of 2017 which came into existence based on the Budget speech of 2016-17 of the Minister of Railways wherein there has been an unbundling of the norms provided earlier and IRCTC has been mandated to create a distinction between food preparation and food distribution. Learned Senior Counsel has submitted that it was the IRCTC which was ordained to set up new kitchens and upgrade the existing ones. Mr. Sanjay has led us through the objectives of the Policy of 2017 at Clause 1 and the Management of Catering Services in the mobile units as at Clause 3. The relevant provisions highlighted by Mr. Sanjay, learned Senior Counsel for the petitioners is quoted hereinunder: 1. OBJECTIVES With the objective to provide quality food to our customers unbundling of catering services on trains has been envisaged in Catering Policy 2017. This policy supersedes Catering Policy 2010 and related instructions, unless specifically referred to in this policy document. IRCTC has been mandated to carry out the unbundling by creating a distinction primarily between food preparation and food distribution. In order to upgrade quality of food preparation IRCTC shall be setting up new kitchens and upgrade existing ones. Modifications have been necessitated in the management of catering service on mobile and static units to implement social objectives of the Government besides -12- encouraging fair competition in allotment of catering units over stations. IRCTC shall be responsible for catering services through mobile catering units. Base kitchens, Cell kitchens, Refreshment Rooms at A1 & A category of stations, Food Plazas, Food Courts, Train Side Vending, Jan Ahaars. All other catering units like Refreshment Rooms at B and below category of stations. AVMs, Milk Stalls, trolleys shall be managed by the Zonal Railways. 3. MANAGEMENT OF CATERING SERVICES IN MOBILE UNITS 3.1 All pantry car service contracts awarded by zonal railways shall be reassigned to IRCTC on the same terms and conditions, as per the plan decided mutually by IRCTC and Railways. Sharing of license fee between IR and IRCTC shall be in the ration of 40:60 in all cases other than departmentally managed units by IRCTC wherein revenue shall be shared in the ratio of 15:85. Also all such reassigned contracts should be got vetted by Legal Deptt. of Zonal Railways. 3.2 IRCTC shall submit its business plan for approval of Railway Board, for managing mobile catering services on the trains after the issuance of this policy. Business plan may be prepared by IRCTC separately for those trains in which cost of meals is included in the ticket and for those where catering is optional. While framing the Business Plan IRCTC may take into consideration the terms and conditions of existing contracts re-assigned to IRCTC and time frame required to put into effect various provisions contained in paras 3.7, 3.8 and other relevant provisions of this policy. 3.3 IRCTC shall manage catering service on all mobile units having pantry car service presently with IRCTC. IRCTC shall also take over management of catering services -13- on trains for which contracts have not been awarded by zonal railways due to various reasons or trains are being run departmentally by zonal railways. 3.4 Management of catering services on all new trains/ trains started on short notice shall also be done by IRCTC. 3.5 Since all trains are not provided with pantry cars. Train Side Vending will be provided from a suitable unit of nominated station/stations enroute. For this purpose, arrangements will be made through static kitchen units under the management of IRCTC by either segmentation of run or on end to end basis, as practicable. IRCTC shall manage Train Side Vending as per instructions entailed in this policy. 3.6 IRCTC should submit the Business Plan within a period of 30 days from the date of issuance of the policy, which shall be approved by Railway Board within 30 days from the date of submission by IRCTC. 3.7 Method of Operation of Mobile Catering Service 3.7.1 Preparation of Food: To ensure quality, hygiene and cleanliness, meals for all mobile units will be picked up from the nominated kitchens owned, operated and managed by IRCTC. This is subject to Business Plan for mobile catering as well as Base Kitchens, as approved by Board. 3.7.2 Service of Food in Trains: IRCTC can engage service providers from hospitality industry for service of food in train. 3.7.3 IRCTC shall supervise catering services on each mobile unit through its own supervisors directly employed by IRCTC. 3.7.4 IRCTC shall determine the menu of standard meals, in consultation with zonal railways, keeping into consideration the local taste and cuisine. The standard meals served in trains shall be within the fixed tariff approved by Railway Board. -14- 3.7.5 Sale of a-la-carte items, Ready-to-Eat (RTE) Meals shall be permitted both through e- catering and onboard services by IRCTC. 3.7.6 The rates of standard, a-la-Carte and RTE items shall be prominently displayed in coaches and Railways’ websites and shall be made available through mobile apps. 3.8 Setting up and Operation of Kitchen Units 3.8.1 All four Base Kitchens under departmental operation of Zonal Railways (Nagpur, Chhtrapati Shivaji Terminus, Mumbai Central and Balharshah) shall be handed over to IRCTC on ‘as is where is basis’ i.e. the infrastructure including equipments shall be transferred to IRCTC. All kitchen units i.e. Refreshment Rooms at A1 and A category stations (i.e. excluding Refreshment Rooms at B and below category stations being minor units that will remain with Railways), Jan Ahaar, Cell Kitchens shall also be handed over to IRCTC on ‘as is where is basis’ i.e. the infrastructure including equipments shall be transferred IRCTC. 3.8.3 The setting up/development/refurbishment of new or existing Base Kitchens/Kitchen units (after contract ceases to exist in case of units discussed in Para 3.8.1) shall be undertaken by IRCTC on the following broad parameters:- i. IRCTC shall develop different types of kitchens keeping in view supply of food and usage assessed. ii. Kitchen should be on a Business model so that they can expand and enhance the service. Revenue sharing, operational modalities are to be submitted by IRCTC for prior approval of Railway Board. Land license fee for such cases shall be decided as per the plan submitted by IRCTC and terms -15- agreed by Land & Amenities (L&A) Directorate. iii. IRCTC shall prepare a detailed concession agreement of the Business Model proposed for setting up of the kitchens, which shall be approved by Board. The services provided currently through Refreshment Rooms, Jan Ahaars and Cell Kitchens shall be provided by IRCTC. 3.8.4 IRCTC shall not outrightly outsource or issue licenses for provision of catering services to private licensees. IRCTC shall retain the ownership and shall be fully accountable for all the issues pertaining to setting up and operation of the Base Kitchens and quality of food. 3.8.5 The kitchens set up/ developed/ refurbished by IRCTC shall be modern and mechanized. IRCTC shall ensure that the kitchens acquire valid ISO certification within the specified fixed time period including compliance of all statutory guidelines and food safety norms issued from time to time. 3.8.6 Apart from kitchen units handed over by zonal railway, IRCTC may set up its own Kitchens at additional stations identified by it preferably within the railway premises and as per availability of land. 7. It has been submitted that Clause 3.7.2 of the Catering Policy, 2017 demarcates the role of the petitioners as service providers to the effect that kitchen will be owned, operated and managed by IRCTC and the service providers will be engaged for service of foods in the trains. The ceiling limit was also in existence in the 2017 Policy as well. 8. Having embodied the various features of the Catering Services in the Railways as per the policies formulated from time to time Mr. S.D. Sanjay, learned Senior Counsel for the petitioners has drawn our attention to the impugned Commercial Circular No. 24/2023 which is an addendum to the Catering -16- Policy, 2017-Para 1 and Para 2 of the Catering Policy, 2017 and which according to Mr. Sanjay provides for a paradigm shift in the policy detrimental to the cause of the petitioners being discriminatory and formulated with a view to oust the petitioners from the entire scheme of things. The objectives of the addendum read as follows: 1. Objective From the experience gained during the past few years after implementation of Catering Policy 2017, it has been necessitated that state of the art Base Kitchen infrastructure, adequate logistics and service infrastructure, deployment of qualified and skilled manpower to handle food production and services have to be put in place not only at originating but also at enroute stations to ensure service of good quality and hygienic food to passengers on trains. Hence, it is imperative that an experienced professional agency is vested with full accountability of production of meals and services on board under IRCTC’s direct supervision and monitoring of entire operations. 9. The following Clauses of the addendum germane for the case of the petitioners have also been referred to by Mr. Sanjay which are as follows: 3. Catering Services in Mobile Units 3.1. Management of Catering Services 3.1.1 Catering services on trains over Indian Railways shall be managed by IRCTC under the framework of this policy and related instructions issued by Railway Board from time to time. The trains for catering services shall be approved by the Board. 3.1.2 Sharing of revenue/license fee between IR and IRCTC shall continue to be governed as per Para 3.1 and Para 3.8.2 of Catering Policy 2017. 3.2 Clustering of Trains: 3.2.1 All trains shall be mapped with service locations and accordingly Base Kitchen shall be designated for pickup and supply of meals depending upon service requirements. Route-wise cluster of trains and Base -17- Kitchens shall accordingly be formed in consultation with the Zonal Railways before invitation of bid. To consider adequate volume and economies of scale, award of contract shall be done for a cluster of trains and the Base Kitchens mapped with the cluster instead of an individual train. 3.2.2 (i) Cluster of trains and Base Kitchens shall be formed in the following two groups: a) Cluster A – Includes premium prepaid trains and Mail/Express trains with pantry cars. In one cluster of Premium Prepaid and Mail Express trains, if the total no. of trains in a cluster is up to 5 pairs, then the cluster should contain on premium prepaid train along with Mail/Express trains. If the cluster contains 6 to 10 pairs of trains then it should have a maximum of two premium prepaid trains. b) Cluster B – Includes Mail/Express trains with Pantry Cars and TSV trains (cluster of upto 10 pairs of trains). In one cluster of Mail/Exp. Train with pantry car and TSV trains, if total no. of trains in a cluster is upto 5 pairs, then the cluster should contain minimum 01 pair and maximum “50% of the cluster” Mail/Exp. With pantry car train pairs. If a cluster contains 6 to 10 pairs of trains then it should have minimum 02 pairs and maximum “50% of the cluster” Mail/Exp. with pantry train pairs. (ii) Trains of only owning Zonal Railways (where Primary maintenance is done) shall be taken up for forming a cluster. (iii) Trains in a particular route shall be taken up for clusters and not more than 10 pairs of trains should be taken in one cluster. (iv) It must be ensured that at least two clusters exist on one route/direction. 3.3 System of Allotment and Operationalization of Contract -18- 3.3.1 Tenders shall be awarded for a cluster, consisting of locations required for commissioning of Base Kitchens and the trains identified in the cluster for service, through Two Packet Tender Systems (e- tender). The selected Service Provider shall be responsible for commissioning and operation of Base Kitchens at required locations along with service of meals in all trains of cluster which shall be pre-notified with the bid. 3.3.2 Contract agreement as well as Letter of Award (LOA) shall have Two Parts: (i) Part A – Commissioning of Base Kitchens at all identified locations of the cluster. Acceptance of LOA, completion of all commercial formalities and signing of agreement for Part A shall be completed within 15 days from the date of LOA. Setup and commissioning of Base Kitchen at designated locations shall be mandatory within the stipulated timelines. Scope of work for Part A shall include identification/ leasing/ renting of land/ building/ space, completion of civil works, equipment furnishing by the successful bidder as per defined specifications of IRCTC, Staff deployment and procurement system in place by the successful bidder, nomination of IRCTC supervisor for deployment and issue of commissioning certificate jointly by IRCTC, Railway & the Service Provider. (ii) Part B – Commencement of services in the notified trains of the cluster. The services by the successful bidders shall commence with immediate effect on signing of agreement for Part B. Agreement for Part B shall be signed only when Part A is executed and a joint certificate is issued for commissioning of all Base Kitchens. Scope of work for Part B shall include deployment of onboard infrastructure and manpower, putting in place the onboard/offboard logistics and provision of catering services in -19- trains as per standards and norms fixed by Indian Railways. 3.4 Model of Operation and setting up of Base Kitchens 3.4.1 It shall be ensure that meals of the trains are picked up only from the designated Base Kitchens under direct supervision of IRCTC and no meal is sourced from any other Kitchens. 3.4.2 Locations and specifications for setting up of Base Kitchens shall be pre-notified in the tender document. Location of Base Kitchen shall be decided keeping in view the transit time and delivery to the station so that there is no impact on food quality. 3.4.3 To meet the quality and hygiene in production as per laid down standards, the Service Provider shall be responsible for setting up Base Kitchens at all the designated locations (as per route & requirement of trains) before commencement of contract. The Service Provider shall bear the entire investment and make their own arrangements in land/ building/ space having easy road access. 3.4.4 Setup and commissioning of Base Kitchen at designated locations (originating & enroute stations) shall be mandatory within 3 months after acceptance of Letter of Award (LoA) of contract. In case of extreme exigency / unavoidable circumstances, an extension of timeline only upto 01 months’ for setting up of Base Kitchens and ISO certification can be considered, thereafter the contract shall be discharged with forfeiture of SD and advance license fee. 3.4.5 Acceptance of Letter of Award (LOA) shall be done within 15 days from the date of issue of LOA during which completion of all commercial formalities i.e. submission of SD (in the form of BG/FDR), which is 10 % of the quoted license fee for the entire Cluster for entire duration, and advance annual license fee shall be done. -20- 3.4.6 Designated Base Kitchens should acquire ISO certification within 6 months of commencement of operations i.e. within 9 months from acceptance of Letter of Award. 3.4.7 Sourcing of high-quality raw material, packaging material and proper inventory shall be maintained at each Base Kitchens and it shall be ensured that the same are available for audit/inspection and matching with GST returns. 3.4.8 Use of insulated/air-conditioned food vans for transportation of meals from Base Kitchen to Station by the Service Provider shall be ensured. 3.4.9 Setting up and Commissioning of Base Kitchens shall be checked and certified jointly by Sr. DCM of concerned Division along with Officers from IRCTC (not below the rank of AGM/GM) prior to commencement of services. 3.4.10 The base kitchens set up outside the Railway premises (not in the restricted residential area) should be uniform in design with a minimum of 1500 to 2000 sq ft. The kitchen should be well equipped for bulk production of minimum 1000 meals at a time with adequate storage/packing facilities, restroom facilities and pot wash area. 3.4.11 It shall be ensured that each designated Base Kitchens is equipped with CCTV monitoring (as per enclosed Schedule-2), QR code stickers, insulated food vans. 3.4.12 Standard Minimum equipment and specification of Base Kitchens are enclosed as Schedule -1. 3.4.13 Deployment of catering staff shall be ensured by IRCTC as per the norms defined in Schedule -3. 3.4.14 Compliance of onboard service protocols shall be ensured as per Schedule-4. 3.4.15 Deficiency, complaints and corresponding penalties have been defined in Schedule -5. -21- 3.4.16 It shall be ensured that the condition precedent to commencement of contract is fulfilled as per enclosed Schedule -7. 3.4.17 IRCTC shall prepare their schedule of inspection and monitoring mechanism for monitoring of onboard services and base kitchens by the Officers and staff, approval of which shall not be below the rank of Director Catering Services, IRCTC. 3.5. Eligibility Criteria 3.5.1 Annual turnover from Food & Beverages Business: (Food & beverages means production, sale/service of cooked food which is to be verified through GSTR (9/9C) and duly certified by approved CAs with UDIN number). During the consideration of 3 FYs, there should not be NIL turnover in any of the years under consideration. a) Rs. 25 Cr (For Cluster A) average per year in any of the three years (during the last 6 preceding years). b) Rs. 10 Cr (For Cluster B) average per year in any of the three years (during the last 6 preceding years). For avoidance of doubt, an example is given below: (Preceding 6 FYs are 2017-18, 2018-19, 2019-20, 2020-21, 2021-22 & 2022-23. If the applicant is submitting certified turnover for FYs 2018-19, 2021-22 & 2022-23, the total turnover must not be less than 75 Cr for cluster A and 30 Cr for Cluster B. Besides above, there should not be NIL turnover during any FYs 2018-19, 2021-22 & 2022-23) 3.5.2 Annual Net Worth – At the end of preceding FY, net worth of the participating bidder must be (duly certified by approved CA/Statutory Auditor with UDIN number) a) Rs. 10 Cr (For Cluster A) b) Rs. 05 Cr (For Cluster B) (Net worth at the end of the year = Total Asset – Total liability) 3.5.3 Ownership of Kitchen -22- a) For Cluster A :- Ownership of at least two operational ISO 22000-2005 certified Kitchen in any two different cities in India with a valid FSSAI license, having the capacity to produce at least 2500 meals per day (each) and proof of supply of at least 45,000 meals each [i.e. average 500 meals per day (meals include Lunch/ Dinner/ Breakfast)] in any of the 4 preceding quarters. b) For Cluster B :- Ownership of at least one operational ISO 22000-2005 certified Kitchen in any city in India with a valid FSSAI license, having the capacity to produce at least 2500 meals per day and proof of supply of at least 45,000 meals [i.e. average 500 meals per day (meals include Lunch/ Dinner/ Breakfast)] in any of the 4 preceding quarters. (Certified and notarized copies of proof of ownership, valid ISO certification, valid FSSAI license and proof of supply/tax invoice to be submitted.) 3.5.4 Must have a presence in the Catering & Hospitality business which means production and service/sale of cooked food in India. 3.5.5 Minimum Average Workforce on roll including having degree/diploma/certificate in any catering/hospitality related course during the last completed Financial Year (FY 2022-23): a) For Cluster A :- 150 staff on roll during the last 12 months with at least 10 staff having Three-year Degree / Diploma in Hotel Management / Hospitality and 15 staff having certificates in any catering / hospitality related course from any government recognized organization / institute. b) For Cluster B :- 50 staff on roll during the last 12 months with at least 3 staff having Three-year Degree / Diploma in Hotel Management / Hospitality and 5 staff having certificates in any catering / -23- hospitality related course from any government recognized organization / institute. (Duly certified by the approved Chartered Accountant (CA) / Statutory Auditor with UDIN number based on monthly EPF and ESI contribution of the employer/PF Trust) 3.5.6 The bidder must be registered under appropriate authorities i.e. must be registered with GST authorities/Income Tax/EPF/ESI authorities. 3.5.7 Joint Ventures (JV)/Consortium shall not be allowed. 3.5.8 Bidder must not have been debarred by any authority and debarment is continuing as on the date of opening of tender. A declaration on affidavit to this effect should be furnished. 10. It has been asserted by Mr. Sanjay, learned Senior Counsel appearing for the petitioners that Clause 3.5 of the Commercial Circular No. 24/2023 demonstrates the eligibility criteria as the turn over required for Cluster A and Cluster B are beyond the financial capabilities of the petitioners and have been purposely incorporated to eliminate the petitioners from the tender process and is tailor made to favour the contractors of Vande Bharat as also the large hospitality industries. It is now the contractors who have to prepare the food in kitchen setup as per ISO 22000-2005 which is against the 2017 Catering Policy and the provisions are designed to eliminate such contractors as like that of the petitioners. Mr. Sanjay has harped upon Clause 3.5.7 of the Commercial Circular No. 24/2023 while reasoning that there is no rationale for ousting joint ventures and permission to Bid through joint ventures would have allowed the petitioners some breathing space. The respondents have allowed participation of Joint Ventures / Consortium in other projects and he in this context has referred to Commercial Circular No. 29/2023 wherein at Clause 8 Joint Ventures / Consortium have been allowed to participate which has further been enumerated in the Standard Bid Document. It has been submitted that in the addendum there is no -24- ceiling limit which would encourage monopoly practices. Mr. Sanjay, learned Senior Counsel has submitted that the perceptible change in the Policy of 2017 through the addendum and its discriminatory contents are palpable on the face of it. The unbundling of the 2010 Policy by the 2017 Policy seems to have been negated by virtue of the addendum and the same has been specifically brought into existence to favour a chosen few and create a monopoly while ousting the petitioners from ever participating owing to the stringent eligibility conditions. It has also been stated that the intention of the Railways of excluding the micro, small and medium enterprises is against the policy of the Government of India. 11. Mr. Tushar Mehta, learned Solicitor General of India has submitted that the broad spectrum of the addendum would indicate that the fundamental feature is to provide hygienic food to the passengers. It has been submitted that the rationale behind the issuance of Commercial Circular No. 24/2023 has been depicted in the counter affidavit wherein it has been stated that due to logistical and operational challenges including disruption due to Covid-19 pandemic it was experienced in some cases that production of meals had been devolved to one licensee and catering/service of food was to another licensee which caused accountability issues and in the meantime passengers complaints regarding the quality and hygiene of food and catering on trains kept increasing. Since it was felt that the expected objectives of the Catering Policy 2017 were not being achieved in letter and spirit the Ministry of Railways (Railway Board) by order dated 18.07.2023 decided to constitute a committee comprising five senior officials of the Railway Board, Zonal Railways and IRCTC to review the modalities for operation of mobile units and to suggest required changes. The committee undertook a comprehensive exercise including studying the best policies of the hospitality industry engaged in the catering business and including engaging with various stake holders such as caterers. The report of the -25- committee dated 15.09.2023 made several recommendations as under: a) Review of eligibility criteria with more emphasis on technical presentation so that only capable and experienced professionals in the catering field are engaged in mobile catering of Railways. b) Licensees should be mandated with setting up standardized, organized state of art kitchens (modern, mechanized and ISO certified with minimum approved specifications) and meals would be picked up only from such designated kitchens. c) Each identified kitchens should be equipped with CCTV monitoring, QR code stickers insulated food vans. d) End to end accountability of one licensee whereby a single service provider/licensee was vested with responsibility and accountability of both production of meals in designated kitchen and service onboard trains. e) Development of base kitchen and logistic infrastructure to be made mandatory before commencement of contract so that Bidders are committed and inclined to make investment in required infrastructure and their stakes are high in case of poor service. f) Due to substantial investment involved in setting up such kitchens and for achieving economies of scale, licensees were to be incentivised by awarding licenses for their clusters where trains may be mapped with service locations and base kitchens for preparing route wise cluster of trains. g) Technical eligibility to be fixed in accordance with sound financial infrastructural and manpower capabilities to successfully manage the service to passengers in such clusters. h) Licensee should also be responsible for statutory compliances such as FSSAI, the Tax Laws and various Labour Laws. 12. Having taken us through the rationale behind issuance of the addendum, learned Solicitor General has referred to the impugned Commercial Circular No. 24/2023 and the objections of the circular itself state in no uncertain terms that -26- quality of food and its hygiene which is to be served to the passengers form the fulcrum around which the entire addendum revolves. Mr. Mehta, has drawn our attention to the relevant provisions of Commercial Circular No. 24/2023 which includes Management of Catering Services, Clustering of Trains, System of Allotment and Operationalization of Contracts, Model of operation and setting up of base kitchen as well as the issue of paramount importance to the petitioners which is regarding the eligibility criteria. It has been submitted that the addendum has been formulated in such a fashion that only Bidders with experience and expertise in the food industry can apply which will lead to enhanced hygiene and quality of food to be served to the passengers. Discarding the apprehension of the learned Senior Counsel for the petitioners that the stringent condition in the Commercial Circular No. 24/2023 will lead to subletting and frustrate the very object of the addendum. Mr. Mehta has referred to Clause (iii) of the other mandatory conditions which reads as follows: (iii) Prohibition of Sub-letting Sub-letting of any kind during the contract operation is prohibited. Subletting of any kind, if noticed, must lead to termination of contract and debarment of licensee from future catering contracts. Following measures must be incorporated in the tender to confirm that there is no subletting…… 13. A pertinent question has been raised by the learned Senior Counsel for the petitioners regarding Clause 3.5.7 of the Commercial Circular No. 24/2023 prohibiting joint Ventures / Consortium to participate in the tender process though in another circular of the Railways issued in close proximity to the impugned circular joint ventures have been given the permission to participate, Mr. Mehta, learned Solicitor General has explained the rationale behind such exclusion to the effect that if a joint venture is created between a small firm and a big enterprise not having any expertise in the food industries the entire scheme of upgrading the quality and hygiene of food will be frustrated. It has been submitted that the addendum is not a scheme for social -27- upliftment and is only aimed at providing good quality hygienic food. The purpose of the addendum is not to ouster any individual but to have an overall improvement in the service of food to the passengers and in terms of the scheme it is but natural that the eligibility criteria has been upgraded. Mr. Mehta, has also pointed out the conduct of the petitioners to have approached various High Courts for redressal of their grievance which is similar in nature and in fact the writ application preferred before the Karnataka High Court being W.P. No. 4162 of 2024 has been dismissed on 19.02.2024 while another writ application being W.P.(C) No. 317 of 2024 is pending before the Gauhati High Court. Mr. Mehta while referring to the judgment of the Karnataka High Court has submitted that the said judgment is though not binding on this Court but has a persuasive value. He has submitted that the same plea as existing in the present writ application has been negated by the Karnataka High Court. Submission has also been made that Commercial Circular No. 29/2023 has nothing to do with the present policy/addendum as the said circular is for a pilot project for a few trains in the Southern Section of the Railways extending the domain of the contractors. The right of the petitioners under Article 19(1)(g) of the Constitution of India is pitted against Article 21 of the Constitution of India and the petitioners have failed to assign any solitary rationale imbibing this Court to exercise its powers of judicial review. 14. The Commercial Circular No. 24/2023 which is an addendum to Catering Policy 2017 is according to the learned Senior Counsel for the petitioners actuated with discriminatory conditions especially with respect to the eligibility criteria. When we peruse the Catering Policy 2017 it becomes abundantly visible that the IRCTC had been assigned a dominant role to the extent that the preparation of food was in the absolute domain of IRCTC. Clause 3.7 of the Catering Policy 2017 deals with method of operation of mobile catering service and Clause 3.8 envisages setting up an operation of kitchen units. The sub-Clauses of Clause 3.7 and Clause 3.8 extensively deal with the mechanism of -28- preparation of food and the hygienic condition it has to put in place by way of modern and mechanized kitchen for the preparation of food. As per Clause 3.7.2 for service of food in trains the responsibility was bestowed upon IRCTC to engage service providers from hospitality industry for service of food in trains and Clause 3.7.3 gave the supervisory power upon the IRCTC to supervise through its own supervisors catering services in each mobile unit. There did not seem to be any grudge of the petitioners so far as the Catering Policy 2017 is concerned. The impugned Commercial Circular No. 24/2023 according to Mr. S.D. Sanjay, learned Senior Counsel for the petitioners had undergone a tectonic shift towards monopolising the market of catering services in the Railways and aimed at a favourite few. It is no doubt true that there has been a departure from the earlier policy of 2017 but we have to see the object behind such departure. The objectives do not disclose the role of IRCTC which as per the 2017 policy was assigned the task of owning, operating and managing the kitchens but instead has been tasked with direct supervision and monitoring the professional agency which is to be entrusted with full accountability of production of meals and services onboard. The focal point of divesting such operations between the professional agencies and IRCTC is for ensuring that passengers have good quality and hygienic food not only at the originating stations but also at the enroute stations. The cluster of trains and base kitchens have been divided into two groups; (i) Cluster A which includes premium prepaid trains and mail/express trains with pantry cars and, (ii) Cluster B which includes male/express trains with pantry cars and TSV trains (cluster of upto 10 pairs of trains). The service providers have to set up base kitchens at designated locations and the standard of the base kitchens has been enumerated in Clause 3.4 onwards to Clause 3.4.11 of the addendum. The policy adopted by the Railways, the primary aim of which is to provide hygienic and good quality food to the passengers entails huge investments and, therefore, the justification of eligibility criteria as at Clause 3.5.1 and Clause -29- 3.5.2 of the addendum. As per Clause 3.5.4 the Bidder must have presence in the catering and hospitality business. The rationale behind issuance of Commercial Circular No. 24/2023 has been suitably explained by the respondents as well. The endeavour as per Mr. Mehta, will not distinguish the pricing of the meal which belies the apprehension of the learned Senior Counsel for the petitioners that such policy will only benefit the premium class passengers. 15. Having discussed the factual aspects of the case, we now venture to consider the various judicial pronouncements on the subject. 16. In “Meerut Development Authority versus Association of Management Studies & Anr.” (supra), it has been held as follows: “26. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor-made to suit the convenience of any particular person with a view to eliminate all others from participating in the bidding process.” 17. In “Michigan Rubber (India) Limited versus State of Karnataka and Others” (supra), it has been held as follows: “23. From the above decisions, the following principles emerge: (a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly -30- have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government. 35. As observed earlier, the Court would not normally interfere with the policy decision and in matters challenging the award of contract by the State or public authorities. In view of the above, the appellant has failed to establish that the same was contrary to public interest and beyond the pale of discrimination or unreasonable. We are satisfied that to have the best of the equipment for the vehicles, which ply on road carrying passengers, the 2nd respondent thought it fit that the criteria for applying for tender for procuring tyres should be at a high standard and thought it fit that only those manufacturers who satisfy the eligibility criteria should be permitted to participate in the tender. As noted in various decisions, the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the courts would interfere. The courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. In the case on hand, we have already noted that -31- taking into account various aspects including the safety of the passengers and public interest, CMG consisting of experienced persons, revised the tender conditions. We are satisfied that the said Committee had discussed the subject in detail and for specifying these two conditions regarding pre- qualification criteria and the evaluation criteria. On perusal of all the materials, we are satisfied that the impugned conditions do not, in any way, could be classified as arbitrary, discriminatory or mala fide.” 18. In “Jagdish Mandal versus State of Orissa and Others” reported in (2007) 14 SCC 517, the scope of judicial review has been considered and it has been held thus: “22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. -32- Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”; (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.” 19. Similarly, in the case of “M/s. N.G. Projects Limited versus M/s. Vinod Kumar Jain & Ors.” reported in (2022) 6 SCC 127, it has been held as under: “23. In view of the above judgments of this Court, the writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The -33- injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present day Governments are expected to work.” 20. The Commercial Circular No. 24/2023 was under challenge as we have noted above before the Karnataka High Court in W.P. No. 4162 of 2024 which was dismissed on 19.02.2024 and the following are the relevant paragraphs: “12. The learned Solicitor General places emphasis upon what is quoted hereinabove, a part of the statement of objections. It is clearly indicated that new policy is brought in, as it would ensure end to end accountability, quality and hygiene and all other aspects of food that is served in the Indian trains. Therefore, there is clear justification as to why the Railways had to bring in this addendum to the Circular. If hygiene, quality of food and accountability is to be brought in, it cannot be said that such policy is illegal and contrary to public interest. Catering contractors are seeking to project their interest over and above what is aforesaid, which is in the realm of public interest. Therefore, the submission of the learned senior counsel Sri Jayakumar S.Patil, that Commercial Circular 24 of 2023 does not serve the purpose, as was necessary in Catering Policy of 20 of 2017, is unacceptable. 13. The petitioners want this Court, to enter into the arena of food preparation and monitoring as to where the base kitchen should be; who should distribute food and who should be accountable for such distribution. If all these submissions are accepted, it would amount to this Court monitoring preparation of food and distribution of food in the trains, which is purely the dominion of Railways. The petition seeks this Court to enter into such area, which this Court, in exercise of its jurisdiction under Article 226 of the Constitution of India would be ‘loathe to even peep into’. It is for the Railways to bring in such policy which would advance the cause of public interest, travelers in trains qua hygiene and quality of food, and what is now sought to be done by the Railways is exactly what the learned Solicitor General has projected. The projection by the learned Solicitor General is threadbare, as to why this had to come about, with which this Court is in complete agreement. No right of the petitioner is taken away, as it is the averment in the statement -34- of objections that the existing tenderers or contractors will not suffer any prejudice qua the new policy, as at paragraph 15 of the statement of objections, the statement made is that the catering contracts which have already been granted will not be disturbed. Therefore, if any interference would be made by this Court, on the contentions advanced by the petitioner, it would run foul of the settled principle of law. It, therefore, becomes appropriate to refer to certain judgments of the Apex Court qua interference in contractual and commercial matters, in exercise of jurisdiction of this Court under Article 226 of the Constitution of India. 17. Insofar as the companion petition in W.P.No. 4296 of 2024 is concerned, which calls in question a tender notified subsequent to initiation of the policy, an offshoot of the policy in Commercial Circular No.24 of 2023, the petition also deserves rejection, as the policy is upheld in the course of the order supra. Thus, the companion petition in Writ Petition No.4296 of 2024 would also fail.” 21. What can be culled out from the afore-quoted judgments is the limited scope the writ court has of judicial review of the tender process or the decision-making process. The rationale behind issuance of Commercial Circular No. 24/2023 has been suitably explained in the objectives as well as in the counter affidavit and the impugned Circular is based on sound reasoning and such administrative action does not espouse any arbitrariness. The policy is aimed at benefiting a large section of passengers by providing them with good quality hygienic food. In these modern times upgrading the facilities in the trains and making endeavour to provide good quality food prepared at standard kitchens supervised by IRCTC are laudable exercise initiated by the respondents which will ultimately benefit the travellers in the trains. The act of the respondents in issuance of Commercial Circular No. 24/2023 does not suffer from any arbitrariness or unreasonableness and was not designed to exclude the petitioners and bestow favour on someone. The exclusion of Joint Venture /Consortium in the addendum is also as per the policy decision of the respondents and though learned Senior Counsel for the petitioner has referred to Commercial Circular No. 29/2023 but the same relates to a pilot project of Yatri Seva Anubandh (YSA) -35- and it encompasses several facilities which has to be ensured by the service provider. The pilot project operating in a separate domain cannot be taken to be a benchmark to question the action of the respondents and term it as arbitrary. The questions which were formulated in the case of “Michigan Rubber (India) Limited versus State of Karnataka and Others” (supra) and which has been quoted above is answered in the negative. This Court in exercise of the powers of writ jurisdiction as repeatedly stated above has a limited jurisdiction of exercising its powers of judicial review and since the Commercial Circular No. 24/2023 does not indicate any arbitrariness in the action of the respondents, we refrain from entertaining this writ application and consequently the same is hereby dismissed. 22. Pending I.A., if any, stands closed. (Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) Alok/- "