D. P. WADHWA,j. ( 1 ) THIS judgment will apply to four different writ petitions. The challenge, however,in all these petitions is to the non-inclusion of the petitioners in the final list of eight partiesfor grant of licence to operate the Cellular Mobile Telephone Services in four cities,namely, Bombay, Delhi, Calcutta and Madras. These are C. W. P. No. 4030/92 (Indiatelecomp Limited), C. W. P. No. 4031/92 (Adino Telecom Limited), C. W. P. 4302/92 (Kanazia Digital Systems Pvt. Ltd), and C. W. P. 163/92 (M/s. Hutchison Max Telecompvt. Ltd ). Respondents number 11. First three respondents are the Union of India throughthe Department of Telecommunications (Dot), Director General of Telecommunications,and Chairman, Dot. Other eight respondents are those to whom licences to run thecellular Mobile Telephone Services have been agreed to be given though provisionally. It is better to set out their names as well:- 1. TATA Cellular P. Ltd. (respondent No. 4)2. Bharti Cellular, (respondent No. 5)3. Skycell Communications Pvt. Ltd. (respondent No. 6)4. Sterling Cellular, (respondent No. 7)5. Mobile Telecom Services Ltd. (respondent No. 8)6. Usha Martin Telecom, (respondent No. 9)7. BPL Systems and Projects Ltd. (respondent No. 10)8. Indian Telecom Pvt. Ltd. (respondent No. 11) ( 2 ) RESPONDENTS number have been given with reference to the petition of Indiatelecomp Limited (C. W. P. No. 4030/92 ). Facts or allegations except otherwise stated inthe judgment have reference to this writ petition of India Telecomp Limited. Similarly,unless otherwise stated, reference to respondents would mean respondents 1,2 and 3. ( 3 ) THE prayer in all these four petitions is to the effect that these petitioners havebeen wrongly denied the licence and that on reconsideration of the matter they be grantedthe licence. ( 4 ) SINCE all these matters pertain to Cellular Mobile Telephone (or "cellularphone") we may understand what it means in the layman s language. A cellular telephonemakes its possible for the user to have a 2-way telephone conversation from his car utilisingthe latest radio telephony technologies. The user can dial out or receive any call from thecar (or "mobile location") like any normal telephone to another car having such phoneand telephones at stationary location within or outside the city. The word "cellular" isderived from the "cell" or the radio-zone created around an antenna to transmit and receivetelephone messages. Such many antennas and cells are repeated at many places in acityto provide city-wide coverage. The word "cellular" isderived from the "cell" or the radio-zone created around an antenna to transmit and receivetelephone messages. Such many antennas and cells are repeated at many places in acityto provide city-wide coverage. The cells are inter-connected for uniterrupted communiction from moving vehicle and the whole system is linked to telephone exchanges of thetelecom Authority (or MTNL) so that user not only can talk to any other user in the samecity (either "stationary" or "mobile") but also can make STD/isd calls from the movingvehicle. There are many cellular technologies, for instance, amps which was popularso far and now gsm which is now standardised by most European countries and is alsoselected by Dept. of Telecom of India. ( 5 ) DEPARTMENT of Telecommunications with a view to licence the operation ofcellular Mobile Telephone Services in four metro areas, namely, Bombay, Delhi,calcutta and Madras, invited tenders from Indian companies. In response thereto 30indian companies gave their bids. The tenders were opened on 30/03/1992. After thebids were received, a Tender Evaluation Committee (TEC) was set up to examine the offersfor shortlisting on the basis of tender documents and the clarifications which had beenissued. As a matter of fact, tender documents were processed in various stages. In thefirst stage, bids were invited as per specifications of Dot containing tenchnical,commercial and eligibility conditions. The TEC which had been constituted examined thethirty bids recommended shortling of sixteen parties, four of them by condoning certaindeficiencies in their tender documents, though staling at the same time that theirtechnical offers were sound and with reputed collaborators. The TEC on the basis oftender documents laid certain eligibility criteria [one of these being the approval of thegovernment of India for the terms of foreign collaboration, if already taken, otherwisecopy of the application submitted to the competent authority of Government of India inthat regard together with the proof of submission. In this regard the TEC also decided thatan application to any one of the three agencies, namely, SIA, FIPB, and RBI, would meetthis requirement] and offers of the bidders which satisfied all the criteria and recommended for shortlisting were- I. SKYCELL Communications Pvt. Ltd. ii. Adino Telecom Limited. iii. Ashok Ley land Limited. iv. Hutchison Max Telecom Private Limited. v. Vam Organic Chemicals Ltd. vi. TCIL Vanguard Ltd. vii. India Tele-comp Ltd. viii. Usha Martin Telecom Ltd. ix. Bharti Cellular Ltd. x. Tata Cellular Pvt. Ltd. xi. Modi Telecommunication Ltd. xii. Adino Telecom Limited. iii. Ashok Ley land Limited. iv. Hutchison Max Telecom Private Limited. v. Vam Organic Chemicals Ltd. vi. TCIL Vanguard Ltd. vii. India Tele-comp Ltd. viii. Usha Martin Telecom Ltd. ix. Bharti Cellular Ltd. x. Tata Cellular Pvt. Ltd. xi. Modi Telecommunication Ltd. xii. Sterling Cellular Ltd. ( 6 ) THE four companies whose offers did not fully satisfied the criteria and (asmentioned above) recommended for shortlisting were as under :- I. BPL Systems and Projects Ltd. ii. Mobile Communications India Pvt. Ltd. iii. Mobile Telecom Services Ltd. iv. Indian Telecom Pvt. Ltd. ( 7 ) THE follwing members constituted the TEC:- 1. MR. S. Muthuswamy, Deputy Director General (T) TEC- Chairman. 2. Mr. T. V. Sivakumaran, Deputy Director General (MS)3. Mr. P. N. Abrol, Deputy Director General (SW)4. Mr. S. Satagopan, Deputy Direcgtor General (TM)-Convenor. 5. Mr. B. B. Bhatia, Director (IA)6. Mr. Ujagar Singh, Director (MMC)7. Mr. A. K. Mittal, Director (CS)8. Ms. Sadhna Dixit, Director (T and C ). ( 8 ) THEY are all senior officers of the Dot of the ranks of Joint Secretaries anddeputy Secretaries to the Government of India. ( 9 ) IN the second stage, the recommendations of the TEC were examined by thetelecom Commission in the Dot. As to whatare the functions of Telecom Commissionand how the recommendations of TEC were processed we will come to a little later. Thetelcom Commission accepted the recommendations of Dot for shortlisting of sixteencompanies. The matter was then referred to a Selection Committee (called by varyingnames as Screening Committee, Apex Committee, High Power Committee, High Levelcommittee ). This was formed by the Minister of State in the Department of Communications [mos (C)or Minister] and consisted of Principal Secretary to the Prime Minister,finance Secretary, Secretary (Electronics) and the Chairman, Telecom Commission whois also Secretary in the Dot. This would be the third stage. This Selection Committeeagain examined all the thirty bids and recommended shortlisting of fourteen companies. The two companies which were deleted were M/s. Ashok Leyland Limited and M/s. Vamorganic Chemicals Ltd. The Selection Committee also suggested/recommended guidelines for financial bids. We may note that this Selection Committee is not statutory innature and is merely advisory body constituted by the Minister. This Selection Committeeagain examined all the thirty bids and recommended shortlisting of fourteen companies. The two companies which were deleted were M/s. Ashok Leyland Limited and M/s. Vamorganic Chemicals Ltd. The Selection Committee also suggested/recommended guidelines for financial bids. We may note that this Selection Committee is not statutory innature and is merely advisory body constituted by the Minister. ( 10 ) THE recommendations of the Selection Committee were accepted by the Telecomcommission and the MOS (C) and thereafter criteria for financial bids was laid andfinancial bids invited from fourteen shortlisted companies. This was the fourth stage. Thefinancial bids were opened on 17/08/1993. Then in the fifth stage another Tenderevaluation Committee was constituted which consisted the following officers Of the Dot: - I)SH. R. C. Rastogi, Senior Deputy Director General (Fiii) Sh. S. Muthuswamy, Deputy Director General (TEC)iii) Sh. T. V. Sivakumaran, Deputy Director General (MS) iv) Sh. S. Satagopan, Deputy Director General (TM) - Convener. v) Sh. Ujjagar Singh, Director (MMC)vi) Sh. B. Bhatia, Director (IA)vii) Smt. Anita Soni, Director (Finance)IT may be noted that that the officer mentioned against (i) above is of the rank ofadditional Secretary, (ii) to (iv) are of the rank of Joint Secretaries and the remaining areof the rank of Deputy Secretaries. ( 11 ) THIS second TEC submitted its recommendations on 2/09/1992. Thematter was again referred back to it to arrive at gradation of different bidders on the basisof adoption of 21. 75%interestrate when the TEC had adopted the criteria of 13% interest. The recommendations were again sent to the Telecom Commission on 7/09/1992. In the next stage again, the recommendations of the second TEC were processed in thetelecom Commission which would be the last stage. In between, at the instance of theminister, the matter was again referred to the Selection Committee, but since some delaywas being caused at that end the Minister decided to finalise the matter in the Dot itself. Ultimately, decision was taken to grant licence to respondents 4 to 11, two respondents ineach city, as under- BOMBAY: 1. Bharti Cellular2 BPL Systems and Projects. Delhi: 1. Indian Telecom Pvt. Ltd. 2. Tata Cellular. Calcutta 1. Usha Martin. 2. Mobile Telecom. Madras: 1. Sterling Cellular Ltd. 2. Skycell. Ultimately, decision was taken to grant licence to respondents 4 to 11, two respondents ineach city, as under- BOMBAY: 1. Bharti Cellular2 BPL Systems and Projects. Delhi: 1. Indian Telecom Pvt. Ltd. 2. Tata Cellular. Calcutta 1. Usha Martin. 2. Mobile Telecom. Madras: 1. Sterling Cellular Ltd. 2. Skycell. ( 12 ) IT was, however, mentioned that these companies would be intimated thatprovisional selection had been maded which would be confirmed after finalisation of otherformalities, like acceptance of counter offers on rental and other charges etc. ( 13 ) PETITIONERS have contended that the decision of the Government in selectingeight parties, two for each cities of Bombay, Delhi, Calcutta and Madras, is bad on thegrounds of (1) bias; (2) invoking of certain hidden conditions; (3) irrelevant considerations; (4) by-passing of Selection Committee; (5) parties which were otherwiseunqualified were selected; and (6) marking system which was evaluated by the secondtec for grading various bidders was manipulated and criteria was devised which wastailor made to knock out petitioners or resulting in knocking out of the petitioners in thecase of India Telecomp Ltd. and Adino Telecom Limited. Petitioner in the case ofhutchison Max Telecom Pvt. Ltd. said that though it was highest in the gradation it was notconsidered on a very technical and filmsy reason that the compliance statement requiredto be furnished with the bids was not complete. Kanazia Digital Systems Pvt. Ltd. (CWPNo. 4302/92) was not in the shortlist either of the first TEC or the Selection Committeeand its case is that consideration of its technical bid was left out on certain wrong premise. ( 14 ) TO understand the rival contentions of the parties it would be appropriate tounderstand the working of the Dot and how the matter was processed by the Telecomcommission and as to what is its constitution. ( 15 ) UNDER the Government of India (Allocation of Business) Rules, 1961, framedunderclause (3) of Article 77 of the Constitution by the President of India, it is the Centralgovernment in the Ministry of Communications which handles the matters relating todepartment of Telecommunications. This would include telegraphs, including Telephones, Wireless and other like forms of communications as mentioned in the Rules. ( 16 ) THE Telecom Commission was constituted by resolution dated 6/04/1989 ofthe Government of India. This would include telegraphs, including Telephones, Wireless and other like forms of communications as mentioned in the Rules. ( 16 ) THE Telecom Commission was constituted by resolution dated 6/04/1989 ofthe Government of India. The resolution noticed that in order to promote rapid development in all aspects of telecommunications including technology, production andservices, it was considered necessary to set up an organisation which would haveresponsibility in the entire field of telecommunications, and that after careful consideration the Government of India had decided to establish a Telecommunication Commission (Telecom Commission) with full executive and financial powers modelled on the linesof the Atomic Energy Commission. The resolution described the Constitution andfunctions of the Telecom Commission, which are as under:- "the Telecom Commission shall be responsible:- (a) For formulating the policy of the Department of Telecommunications for approval of the Government. (b) For preparing the budget for the Department of Telecommunications for each financial year and getting it approved by the Government. (c) Implementation of the Government s policy in all mattersconcerning telecommunication. Within the limits of the budget provision approved by theparliament, the commission shall have. the powers of the Governmentof India, both administrative and financial, for carrying out the work ofthe Department of Telecommunications. " ( 17 ) THE Chairman of the Telecom Commission which is the Secretary to thegovernment of India in the Department of Telecommunications has been given functionswhich are as under :- (A) The Chairman, in his capacity as Secretary to the Governmentof India in the Department of Telecommunications, shall be responsible under the Minister of Communications for arriving at decisionson technical questions and advising Government on policy and alliedmatters of telecommunication. All recommendations of the Commission on policy and allied mattrs shall be put to the Minister of Communications through the Chairman. (b) In case of any difference of opinion in the meetings of thecommission, the decision of the Chairman shall be final, but in financialmatters, Member (Finance) of the Commission will have access tofinance Minister. (c) The Chairman may authorise any Member of the Commissionto exercise on his behalf, subject to such general or special orders as hemay issue from time to time, such of his powers and responsibilities ashe may decide. (c) The Chairman may authorise any Member of the Commissionto exercise on his behalf, subject to such general or special orders as hemay issue from time to time, such of his powers and responsibilities ashe may decide. ( 18 ) FUNCTIONS of Member Finance have also been given which are as under :-The Member for Finance shall exercise powers of the Government ofindia in financial matters concerning the Department of Telecommunications except in so far as such powers have been, or may in futurebe conferred on or delegated to the Department. ( 19 ) SECTION 3 (vi) of the Indian Telegraph Act, 1885, defines the telegraph authority". Mr. B. R. Nair was Member (Production) in the Telecom Commission and on 29/05/1992he was appointed as Member (Services ). A notification was, therefore, issued on 28/07/1992 where it was stated that consequent on his posting as Member (Services), Telecomcommission, as per order dated 29/05/1992, the President was pleased to decide thatshri B. R. Nair, Member (Services) will function as the Director General (Telecommunications), and will exercise all powers of telegraph authority conferred by section 3 (vi)of the Indian Telegraph Act, 1885, w. e. f. 29/05/1992. In the tender documents "telecomauthority" was defined. It was stated that telecom authority "for the purpose of this licenceshall mean Director General (Telecommunications), Govemment of India, or its successoror any authority so appointed by the Government of India. " It was also mentioned thattelecom authority reserved the right to grant Cellular operating licence to the successfulbidders for one or more service areas for which bid had been submitted and also thattelecom authority reserved the right to reject any bid without assigning any reason. Yetanother clause in the tender document mentioned that registration fee, security depositand other financial charges or deposits shall be fixed by the licensee in consultation withthe telecom authority. It is, thus, the telecom authority which in fact is to perform variousfunctions and exercise powers under the tender documents. ( 20 ) WHEN the first TEC sent in its recommendations, Kanazia Digital Systemspvt. Ltd. was not recommended for shortlisting on the grounds: (1) the company had notsubmitted any application for foreign collaboration, and (2) it had also not givenengineering details like traffic, number of cell sites, splitting of cells etc. as required undercondition 2. 2. 3 (Section III) of the tender. Ltd. was not recommended for shortlisting on the grounds: (1) the company had notsubmitted any application for foreign collaboration, and (2) it had also not givenengineering details like traffic, number of cell sites, splitting of cells etc. as required undercondition 2. 2. 3 (Section III) of the tender. ( 21 ) THE recommendations of the first TEC were considered in the Dot starting fromnote dated 19/05/1992 of Mr. G. T. Narayan, Adviser (Operations), Telecomcommission. He noted that the TEC had suggested shortlisting of 12 companies whichsatisfied all the criteria as laid and had also recommended 4 more companies taking intoaccount their technical offers and the reputation of their collaborators as the TEC felt thatthese companies might also be considered for shortlisting after condoning deficiencies intheir tender documents. Mr. Narayan strongly recommended that these four companiescould also be included so that the competition become more broad based. With the notewas annexed list of companies who participated in the bid, their collaborators, types ofequipment proposed to be used, and cities for which they had submitted the bids. Thenote then recorded that as per the procedure approved by the Minister the recommendations of TEC were to be circulated to Members and Chairman, Telecom Commission. Then the note suggested that amongst the short-listed bidders the second bid had to becalled which mostly included the financial bid and other conditions, and for formulating thefinancial bid document again a committee of 7 members was suggested. The note was marked to Member (Finance), Member (Prod.), Member (Tech)and Chairman (TC ). Member (Finance) first recorded his note approving the shortlisting of 16 firms. He also noted that a few firms had not qualified on the ground ofnot furnishing the engineering details stipulated in Clause 2. 2. 3 of "commercial"section of Tender Document and that Technical Member might consider if their casesneeded review from the point of experience of collaborator. Member (Finance) recordedhis note on the same day. Then the file went to Member (Technical ). His note is dated 20/05/1992. He also recommended the short-listing of l6 parties. He was of the opinionthat re-consideration of the remaining 14 parties as suggested by Member (Finance)needed consultation with TEC as he was of the opinion that only one reputed collaboratorcould be cited (?) among them. His suggestion was that on this point the matter mightbe referred back to TEC for a response. He also recommended the short-listing of l6 parties. He was of the opinionthat re-consideration of the remaining 14 parties as suggested by Member (Finance)needed consultation with TEC as he was of the opinion that only one reputed collaboratorcould be cited (?) among them. His suggestion was that on this point the matter mightbe referred back to TEC for a response. He marked the file to Member (Production) andchairman (TC ). Member (Production) was Mr. B. R. Nair. His note is dated 21/05/1992. He said for frenchising the cellular services what was basically looked for wasexperienced cellular operators from abroad with a tie-up with an Indian Company ofadequate financial resources. His opinion was that basic criteria for short-listing shouldbe the foreign collaborator and then the status of the Indian company. He also noted thatin the first 12 names recommended for acceptance by the TEC, M/s. Telecom Malaysia,a foreign collaborator, had tied-up with two Indian Companies and said that that thisforeign collaborator should appear only once in the short-list and a choice between thetwo Indian Companies should be made. He said that since adequate information aboutthe Indian Companies was not given in the file, this aspect had to be referred back to thetec. Similar was the case of ALTA Telecom, Canada, which had also tied-up with twoindian Companies. Mr. Nair agreed with the recommendation of TEC that four firms (which had some deficiencies) should be included in the shortlist. According to him,therefore, there would be 14 companies in the shortlist. He thereafter sent the file to thechairman, TC and Adviser (0 ). The Chairman in his note dated 27/05/1992 referredto the report of the TEC and notes of M (F), M (T) and M (P ). He said that shortlist of16 bidders - 12 bidders who met all the requirements of TEC and other 4 in whose casecompliance of commercial conditions was not complete - might be accepted. He didnot agree that matter be again referred back to TEC for evaluation of the case of other 14bidders who were not in the shortlist. According to him 16 was adequately a large numberfor consideration at the second stage. The Chairman did not agree with the observationof Mr. Nair, M (P) that only one of the Indian companies who had same foreign collaboratorshould be in the shortlist. He, however, was of the opinion that this point could bekeptin view while making final selection. According to him 16 was adequately a large numberfor consideration at the second stage. The Chairman did not agree with the observationof Mr. Nair, M (P) that only one of the Indian companies who had same foreign collaboratorshould be in the shortlist. He, however, was of the opinion that this point could bekeptin view while making final selection. The Chairman then recommended that shortlist ofbidders, the recommendations of the TEC and the proposal for financial bids might beplaced before the Selection Committee at the earliest. He sent the file thereafter to theadviser (Operations ). Adviser (O) then records that letter to the Members of the Committee was issued on 19/06/1992 for their perusal and approval and he put up the file to the Chairman, TC, asdesired by him. Then again the Chairman records his note on 16/07/1992 wherein herefers to his discussions with the Minister held a day before. He said that the Selectioncommittee held four meetings so far to discuss the proposals which included theproposed shortlist and the draft financial bids and that the Committee submitted aninterim report on 16/07/1992. The Chairman then records that in the interim reportthe Selection Committee had resolved many issues but it felt that it should meet therepresentatives of the manufacturers who were likely to indicate the manufacture ofequipment of Celullar Mobile System in the country (as indicated by the bidders) beforefinalising the shortlist and the details of the financial bids. The Chairman then notedthat he expected that the Selection Committee would be able to finalise the shortlist/financial bid in about 10 days time and that meetings with the manufacturers werebeingorganised. The file was then marked to M (F), M (S), M (O) and the Minister for opinion,and for further orders of the Minister. On the same day, i. e. , 16/07/1992, the Chairman again records his note. In thishe says that the case was discussed that day with the Minister when the Deputy Minister,m (F), M (S) and M (P) were present and that the Minister desired that the financial biddocuments be reframed to include the decisions indicated in the interim report of theselection Committee and the proposed shortlist (as approved by the Telecom Commission) with the draft financial bid documents be put up to the Minister for approval by thenext day. The Chairman marked the file to M (F) to prepare the financial bid documents. The Chairman marked the file to M (F) to prepare the financial bid documents. Then on 17/07/1992, Member (F) records his note and he says that financial bid documenthas been recast in the light of the comments of the interim report of the high level selectioncommittee and the discussion held in the chamber of the Minister. He records the changesmade in the financial bid. Then the file is sent to M (S) and Chairman, TC. The revisedfinancial bid as prepared by M (F) and the shortlist approved by the Telecom Commissionare put up for approval by the Chairman, TC, by M (S) on 20/07/1992. The Chairman then records on 24/07/1992 that the financial bid document had been further revised andthat there had been further meetings of the Selection Committee. The Chairman recordsthat he expected to get the final report shortly. Copy of the report of the Selectioncommittee, it appears, was sent on 28/07/1992. The Chairman records his note on 29/07/1992 that the report was generally discussed on 28/07/1992 and on 29/07/1992with the Minister and that further action to invite the financial bids might be takenaccordingly. The file is then marked to M (S) who marks it to Adviser (0 ). If we now see the report of the Selection Committee we find that whole of theexercise in the Department of Tele communications upto the stage of receipt of report ofthe Committee has been a mere exercise in futility. The Committee itslf examined manufacturing companies and held discussions with them respect main features of theproduction and investment plans of these manufacturing companies. The Committeewent into details regarding the import and foreign exchange requirements for theequipment and found that several manufacturing companies also had plans for exportof software and other components from India and the Committee concluded that on thebasis of the plans discussed there would not be a heavy outflow of foreign exchange. Thecommittee also looked into the nature of tie-ups between the operating companies and themanufacturers. Then the Committee went into the question of shortlisting of thecompanies and examined various aspects connected with the case, laid criteria andsuggested guidelines for financial bids. On that basis the Committee itself independentlyexamined all the 30 bids and recommended 14 companies for shortlisting, and said thatfinancial bids be invited from them. This recommendation was accepted by the Telecom Commission and actedon that thereafter. On that basis the Committee itself independentlyexamined all the 30 bids and recommended 14 companies for shortlisting, and said thatfinancial bids be invited from them. This recommendation was accepted by the Telecom Commission and actedon that thereafter. We do not think it is necessary for us to go in details on the report ofthe Selection Committee as it had only a recommendatory role, and ultimate decision laywith the Central Government in the Ministry of Telecommunications. Then we come to further processing of the case in the Dot reflected throughvarious notings. The first noting is again of the Adviser (0) dated 29/07/1992 who has markedthe same to M (S ). He recorded that there port of the Selection Committee consisted of therecommended short-list and also approval of the draft financial bid. It was noted that theapproval/concurrence of MOS (C) was required for announcing the 14 names included inthe short-list before taking further action. It was also noted that the financial bid hasstressed upon the following points with due weightage - " (I) Proposed ceiling on the monthly rental - lower ceiling will begiven more weightage. (ii) Project Financing Plan. (iii) Foreign exchange inflow and outflow. (iv) Purchase plan for cellular equipment within the countryincluding tie-ups with proposed Indian manufacturers. (v) Experience of the foreign operating partner. (vi) Financial strength of the promoters/partner companies. (vii) Financial projections of the proposed cellular mobile service. "the most important point to note in the tariffs is ceiling of Rs. 1,000. 00 fixed asrental and in the financial bid the bidders are free to quote below this ceiling which willform a criteria for selection. Apart from this the licensing fee as given in Chapter 4 is alsofixed for various cities on yearly basis. This is given in detail in Chapter 4 of the financialbid placed below. The note finally recorded that after the Minister approves the short-listing,financial bid, tariffs and the criteria for selection based upon the financial bid, thefinancial bid is to be sent to the prospective bidders. Then the Member (S) Mr. B. R. Nair also records on the same day. He referredto the discussion in the room ofmos (C) by the Chairman when other members of thetelecom Commission were also present. Mr. Nair records that what he understood fromthe discussion was that the selection critria in the financial bid was going to be proposedrental charge by the franchisee from the subscribers. B. R. Nair also records on the same day. He referredto the discussion in the room ofmos (C) by the Chairman when other members of thetelecom Commission were also present. Mr. Nair records that what he understood fromthe discussion was that the selection critria in the financial bid was going to be proposedrental charge by the franchisee from the subscribers. In the draft financial bid receivedfrom the Chairman, however, 7 items were listed out as criteria for the financial charge. This according to Mr. Nair de-focussed the attention from the main criteria which wasrental to be charged by the franchisee. He recommended that para 2. 4 in the draftfinancial bid should be modified as follows:- "para 2. 4. 1 The main criteria for the selection of the licencee wouldbe the proposed monthly rental the licencee proposes to charge the sub-scribers - a lower rental will be given more preference. Other points on which information is required are -Para 2. 4. 2 Project Financing Plan. Para 2. 4. 3 Foreign exchange inflow and outflow. Para 2. 4. 4 Purchase plan for cellular equipment within the countryincluding tie-ups with proposed Indian manufacturers. Para 2. 4. 5 Experience of the foreign operating partner. Para 2. 4. 6 Financial strength of the promoters/partner companies. Para 2. 4. 7 Financial projections of the proposed cellular mobileservice. "mr. Nair also recorded that it was for consideration whether the companieswhich were not being selected should be informed of the basic criteria on the basis of whichthey had not been shortlisted. According to him this would enable the objective oftransparent selection of shortlisting as had been stressed by MOS (C) during the variousdiscussions. The file was then marked to Chairman (TC) and to the MOS (C ). Thechairman, however, marked the file to M (F ). M (F) recorded his note on 30/07/1992. He referred to the discussion in thechamber of the MOS (C) on date. He did not agree with M (S) on para 2. 4. 1 and accordingto him this should be as under :-"2. 4. 1. Quoted rental ceiling. This parameter will carry highestweightage; lower rate of rental will be given preference. "m (S) had also suggested for production of certificate by the collaborator regarding operating experience to be certified by the telecom authority of the country concernedand had recommended that the period of three weeks should be given for the purpose. 4. 1. Quoted rental ceiling. This parameter will carry highestweightage; lower rate of rental will be given preference. "m (S) had also suggested for production of certificate by the collaborator regarding operating experience to be certified by the telecom authority of the country concernedand had recommended that the period of three weeks should be given for the purpose. M (F) recorded that MOS (C) had desired that returnable date should be 17/08/1992,but that should be very tight in view of the stipulation regarding authentication of certaindocuments as required in the financial bids. He proposed that bidders be allowed toproduce some of the stipulated documents separately one week after submission of theiroffers at the latest. M (F) also recorded that MOS (C) had desired that concept of revenuesharing should not be completely given up. M (F), therefore, suggested two clause inchapter II and Chapter IV of the draft financial bid. He further added his note withreference to the Selection Committee report regarding factors such as inflation, exchangerate of variation etc. , and allowing escalation in the licence fee. The file was then sent tothe Chairman, TC. He in his note of the same date agreed with M (F ). He desired themos (C) to approve the issue of financial bids with suggested modifications to theshortlisted companies as recommended by the Selection Committee. In his opinion actionto convey non-acceptance to other 16 bidders could be taken without indicating thereasons for non-acceptance. He did not, therefore, wholly agree with M (S) on this point. The Minister then sent the file to the Deputy Minister for him to see who said that theproposal of M (F) giving one week time for production of stipulated documents be deleted. The file is again sent to MOS (C) who records as under:- "discussed with Deputy Minister (C), Chairman (TC ). M (F), M (S),m (P ). Cleared as proposed above. I agree with Deputy Minister (C ). 17/08/1992 should be the final day for opening the financial bidsas per the standard procedure of department. "this was on 30/07/1992. File is then sent to the Chairman, TC, and M (F) whoafter putting their signatures sent the same toAdviser (Operations ). Then we come to the note dated 8/09/1992 of Adviser (Operations)which he prepared after receipt of the financial bids and after these had been againevaluated by the Tender Evaluation Committee. "this was on 30/07/1992. File is then sent to the Chairman, TC, and M (F) whoafter putting their signatures sent the same toAdviser (Operations ). Then we come to the note dated 8/09/1992 of Adviser (Operations)which he prepared after receipt of the financial bids and after these had been againevaluated by the Tender Evaluation Committee. After discussing in detail the require-ments of the Financial bids, deficiencies in financial bids, and other relevant criteria as laid,he recommended the following operators for giving the cellular licence: -. . . . . . . . . . . . . . . . . MARKS. . . . . . . . . . . . . . . . Name of the Equated FE in- Exp- Over- Colla-company rental flow/ eri- all boratorout- enceflow0} 12} 13} 14}15}i6}bombay1. Bharti Cellular 37. 3 715 78. 3 SRF France2. BPL Systems and33. 2 614 76. 2 Franceprojects Ltd. Telecom. DELHI1. Bharti Cellular 41. 0 8 15 83. 0 SRF France2. BPL Systems and33. 8 614 76. 8 Franceprojects Ltd. Telecom. MADRAS1. Bharti Cellular 38. 5 815 80. 0 SRF France2. Skycell 24. 6 10 15 71. 6 Bell Southcalcutta1. Bharti Cellular 27. 1 815 69. 1 SRF Francethere is no other bidder who qualifies for giving the licence. Even though Tatacellular fulfills all the conditions but in bid document they have based their calculationson single operator concept. However, we may, if approved by Telecom Commisionand High Power Committee, make a counter offer to operate on a non-exclusive basis. After the operators are selected, tariff fixation and other licensing terms can be negotiatedby the Telecom authorities. "the Adviser (O) also recorded that a separate note was being prepared for sendingto the Selection Committee. The file is then sent to M (S), M (P), M (F) and Chairman (TO. They all approve the recommendation so made by Adviser (O ). On 10/09/1992, Chairman (TC) records that proposal as given by Adviser (O) with all the relevantcalculation sheets and TEC report, copy of the financial bid document, might be sent tothe Selection Committee nominated by MOS (C) for its consideration and for making finalrecommendations to the Govt. regarding selection of licensees. After this there is a note again of Adviser (O) which is perhaps dated 9/10/1992 though no date is mentioned. regarding selection of licensees. After this there is a note again of Adviser (O) which is perhaps dated 9/10/1992 though no date is mentioned. He records that MOS (C) discussed the case of finalisingthe case of licensees for providing Cellular Mobile Service in Delhi, Bombay, Calcuttaand Madras with Chairman (TC), Member (P), Member (F), Member (S) and Adviser (O) on 7/10/1992 who had desired that in view of the time taken by the High Powercommittee the issue might be decided internally by Dot (Department of Telecommunications) and put up to him for approval immediately. The MOS (C) also desired thatlicence to aparty be restricted to one location so that as many parties as possible (maximum8) could be issued licences. The note of Adviser (O) is quite a detailed one. Ultimatelyhe recorded that actual selection of the licensee for a particular station will have to begoverned by following considerations:-"1. The least rental charges to the subscribers for the Cellular Mobileservice;2. The selection to be based on total marks including the marks givenfor foreign exchange inflow/outflow;3. Experience of the licensee. "the lower of the two monthly rental of the two operators in each city will be theaccepted rental for that city. Security deposit and installation fee will be normalisedby Dot before award of contract. Hence, for Madras negotiations will have to be donewith two selected firms so that the rental from Rs. 960/1000 is brought down to a lowerfigure. He finally recorded that based on ranking and making awarded by TEC for thefour cities, selections have been made for each of the four cities including the details ofstations and that the companies selected for franchise citiwise were as follows :-City Indian Company Collaboratorbombay 1. Bharti Cellular SFR Franceerntel Mauritius2. BPL Systems and Proj. France Telecomlcc USA. Delhi I. Tata Cellular BCE Canada2. Mobile Telecom Vodofonecalcutta 1. Modi Telecom Ltd. Nynex Network2. Usha Martin Telecom Malaysiamadras I. Skycell Bell South2. Mobile Communica- Singapore Telecom. tions 1. P. Ltd. The note is then marked to M (S), M (P), M (F), Chairman (TC) and MOS (C ). Thenote is then approved by M (S) and M (P ). M (F) also agreed with the recommendations withthe following qualifications :-"in the distribution proposed, it is seen that the subscriber rental inmadras will be considerably higher (Rs. 960. 00) than at any other city. Thenote is then approved by M (S) and M (P ). M (F) also agreed with the recommendations withthe following qualifications :-"in the distribution proposed, it is seen that the subscriber rental inmadras will be considerably higher (Rs. 960. 00) than at any other city. The rental for Madras may, therefore, have to be negotiated so as tobring it at least on the level of Calcutta (Rs. 600. 00), as otherwise thedifferential will attract criticism. "then the Chairman records his note on the same day, i. e. 9/10/1992. Sincethis note makes final recommendation, it may be set out in full:-Citiwise list of Franchisees, recommended for issue of licence for providingcellular Mobile Service in the four Metro cities is put up for consideration and approvalby MOS (C) at X pre-page. Important points on which the recommendations are based are given below:1. Analysis based on the TEC examination/report regarding the inflow of Foreignexchange reveals that if we were to exclude the export earnings, the inflow of FE overthe ten year period for the four cities, as projected by the bidders, is negative in all thecases. It is positive in some of the cases, if we were to consider only the first three yearsof the build up of the infrastructure. Details of the analysis are at page 67/c. It hasbeen proposed that the companies will be asked to comply with the conditions of thefinancial bid in cl. 2. 4. 7 of Chapter II, while granting the licence and ensure that allrequired FE is provided by the Foreign Partner. M/s. Bharati (Bombay), Modi Telecom (Cal) and Mobile Comm. (Madras) fall in this category as per statement at 67/c. 2. Eight out of the 14 shortlisted companies have been recommended for issue of thelicence. Other six companies and reasons for their exclusion are as follows :- (a) Hutchison MAX. h Non-compliance of operative and Financial conditions laid downin Chapter III at the time of opening of Financial Bids. They have recently acceptedthese conditions, through a letter, explaining their earlier non-compliance as typographical error. (b) Sterling Cellular This J. V. has the Indian partner M/s. Sterling Computers Ltd. whichis under investigation by CBI in respect of their dealings with MTNL for publicationof directories. Delhi H. C. has in recent judgment passed strictures on the deal. Thejoint Venture has, therefore, been excluded from consideration. (b) Sterling Cellular This J. V. has the Indian partner M/s. Sterling Computers Ltd. whichis under investigation by CBI in respect of their dealings with MTNL for publicationof directories. Delhi H. C. has in recent judgment passed strictures on the deal. Thejoint Venture has, therefore, been excluded from consideration. CBI report is, however,yet to be received and formal blacklisting proposal in respect of the firm has not beeninitiated so far. Exclusion has, therefore, to be justified unde4rcl. 4, Sec. II, Main tenderdocument (right to reject without assigning reasons ). (c) Adino Telecom Inadequate experience - onlyltd. 35000 lines. (d) Indian Telecom Condition of exclusivity ofltd. (Partner the contract is not acceptableotc Australia) (e) India Telecomp Limited experience. Telecom (Partner Tele- Malasia already selected ascorn Malasia) partner of M/s. Usha Martin for Calcutta. (f) TCIL-Vanguard Exclusive licence sought Indian partnertcil is a PSU. It may be mentioned that both M/s Hutchison MAX and M/s. Sterling have quotedvery competitive rental rates. 3. The assignment of different cities to the eight companies have been done on the basisof their ranking in TEC report and their choice of city. The selection has been finalisedin order, Bombay, Delhi, Calcutta and Madras. Recommended parties for Bombay, M/sbharti and M/s. BPL have both french partners and it would have been better if one of themwas switched to Delhi. However, the companies' choice has been accepted. Other considerations have been outlined in para 4. 1 of the note of Adv (O) at p. 23/n. MOS (C) may kindly consider the recommendations for approval. "then again the Chairman (TC) records his note on the following day which isagain reproduced as under :-"mos (C) further discussed the case with me today, when M (S) was present. He indicated that after examining the reason for elimination of the six shortlistedparties from consideration for selection (page 26/n-27/n), he is of the opinion that M/s. Sterling Cellular need not be excluded outright, since CBI report has not yet beenreceived. The company may be considered for selection and included in the selectlist on aprovisional basis, if found eligible otherwise. Similarly, M/s. Indian Telecomltd (Partner OTC Australia) need not be eliminated just because they have desiredexclusive licence. We may offer them the licence on a nonexclusive basis, if they arefound eligible. It is upto them to convey acceptance to the offer. Exclusion of other fourcompanies can stand for reasons indicated. Similarly, M/s. Indian Telecomltd (Partner OTC Australia) need not be eliminated just because they have desiredexclusive licence. We may offer them the licence on a nonexclusive basis, if they arefound eligible. It is upto them to convey acceptance to the offer. Exclusion of other fourcompanies can stand for reasons indicated. I have examined the case again. I recommend that if M/s. Sterling Cellular is tobe selected on a provisional basis, the company may be allotted Madras for followingreasons. (a) Foreign exchange investment profile submitted by the company indicates that therewill be a heavy F. E. outflow over 3 years, if the company were to be allotted Bombayor Delhi. (b) Madras is the least popular of the stations along with Calcutta. Rentals quoted arehigh as pointed in our earlier note. M/s. Usha Martin will help bring down the rentalsin Calcutta. Allotment of M/s. Sterling to Madras will achieve the same purpose. (c) Any delay in allotment of licence to M/s. Sterling on account of the CBI investigationswill have the leastadverse effect in Madras for lack of competition to other licensee. M (S) may kindly examine the case again in the light of the observations ofmos (C)andreworkoutthe select list. The case may be put up forapprovalof MOS (C ). "the file is then sent to M (S) who records the following note :-"with the above modifications, the select list of Delhi, Calcutta and Madras will getchanged to what is put up at 24/n. The revised list is as follows :-Bombay Collaborator1) Bharti Cellular SRF Franceemitel Mauritius2) BPL Stystems and Projectsfrance Telecomlcc USADelhi1) Indian Telecom P. Ltd. OTC Australia. 2)Tata Cellularh BCE Canada. Calcutta1) Usha Martin Malayasia Telecom2) Mobile Telecomvodofonemadras1) Sterling Cellular Ltd. Cellular Comm. Intl. 2) Skycell Bell Souththe firms will be intimated that provisional selection has been made as aboveand will be confirmed after finalisation of other formalities like acceptance of counteroffer on rental and other charges etc. "the file is then sent to M (P), M (F) and Chairman. They all approve this note. Finally the file is sent to the Minister who grants his approval as under:-"the case was discussed with the full-time Members of the Telecomcommission and it was felt that franchising eight different operatorswill have. the twin advantages of increased availability of foreignexchange through their foreign collaborators as well as a large fieldof experienced operators becoming available for future growth/expansion. Finally the file is sent to the Minister who grants his approval as under:-"the case was discussed with the full-time Members of the Telecomcommission and it was felt that franchising eight different operatorswill have. the twin advantages of increased availability of foreignexchange through their foreign collaborators as well as a large fieldof experienced operators becoming available for future growth/expansion. In view of above the proposal made by the Members and Chairman, TC standsapproved. Sd/- (RAJESH PILOT)10 Oct 92"we have had to refer to all these notings in detail as great deal of arguments hadbeen addressed on the question of bias in the selection of franchisees. Allegation of bias in the manner of selection is on two counts though independentof each other: (1) that the Selection Committe was by-passed and when the Chairman,telecom Commission was out of country the matter was rushed through by the Ministerin-charge and final stage of the bids finalised; and (2) Mr. B. R. Nair, Director General (Telecommunictios), was one of the members of the Telecom Commission. His son wasemployed with B. P. L. Systems and Projects Ltd (for short 'bpl'), respondent No. 10, andbpl was one of the parties selected for grant of franchise. It is alleged that Nair couldnot bring upon himself an independent mind in the selection process and he must haveinfluenced other members of the Telecom Commission in order to favour BPL. It was stated that the petitioner understood that reason for undue favour shownto BPL, first by allowing it to submit the important foreign collaboration document "fc (SIA)" after the last date for submission of tender and thereafter awarding the contractto it, was that a close relative of one of the very influential member of the Telecomcommission directly involved in this tender was in the employment of the BPL group,and, therefore, the grant of licence/franchise to BPL was based solely upon considerationof nepotism. Mr. Nair has not been made respondent byname. Counter-affidavit wasfiled for respondents 1, 2 and 3 by Mr. S. Satagopan, Deputy Director General, Dot, uponhis knowledge based upon official records maintained in' the regular course of work of thedepartment. The allegations of the petitioner were denied that the grant of licence/franchise to BPL was based on any extraneous consideration other than merit. It wasstated that same parameters were applied in respect of all the companies including BPL. S. Satagopan, Deputy Director General, Dot, uponhis knowledge based upon official records maintained in' the regular course of work of thedepartment. The allegations of the petitioner were denied that the grant of licence/franchise to BPL was based on any extraneous consideration other than merit. It wasstated that same parameters were applied in respect of all the companies including BPL. Then the petitioer in its rejoinder specifically brought out the fact that R. Satish Kumar whowas employed in BPL was a close relative of Nair who had an important and key rolein the decision for the grant of licence inquestion. After rejoinder had been filed BPLfiled its counter-affidavit. BPL also denied that grant of licence to it was based on anyextraneous consideration as alleged or otherwise. It was stated that an advertisementwas given in various National newspapers in August 1991 for the post of certain Managersand Executives in the Company. Eligibility conditions were prescribed. Inpursuanceto the advertisement R. Satish Kumar applied for the post of Territory Manager (Sales)by his application dated 28/08/1991. The advertisement and the application of R. Satish Kumar have been brought on record. In the bio-data he mentioned his father's nameas B. R. Nair but did not state as to what was his occupation (it was not required aswell ). R. Satish Kumar was interviewed on 6/09/1991 along with other candidates. Aninternal assessment was made of the candidates at the end of the interview by theinterview Board which has also been brought on record. R. Satish Kumar was selectedand letter dated 21/10/1991 was addressed to him offering him the post. He wasrequired to report for duty on or before 2/12/1991 At Bangalore. He, however. requested for more time to enable him to hand over charge of his previous employmentwhich was agreed to. R. Satish Kumar joined BPL on 6/01/1992. His qualificationsas stated by him in his application were also duly verified from the university concerned. It is nobody's case nor has even been suggested that Nair had any role to play in theemployment of his son in the BPL. It is also nobody's case nor it has been alleged thatbpl tried to bring upon any influence to secure the licence in question. The Selection Committee was not a statutory body and if we see the Governmentof India (Allocation of Business) Rules, 1961, it had no role to play. It is also nobody's case nor it has been alleged thatbpl tried to bring upon any influence to secure the licence in question. The Selection Committee was not a statutory body and if we see the Governmentof India (Allocation of Business) Rules, 1961, it had no role to play. The Minister,however, in his wisdom constituted this Committee to go into the recommendations of thedot, and as we have seen above. Selection Committee itself examined all the thirty bidsof its own and recommended for short-listing of fourteen bidders. This was accepted bythe Minister and till this stage the role of Nair became irrelevant. Asamatter of fact whenwe examine the minutes of the Telecom Commission in the Dot, we do not find even aninkling that Nair in any way tried to favour BPL. In the stage after the financial bids hadbeen received and evaluated by the second TEC it is only the question of granting marksand the selection was based substantially on arithmatic calculations. Whatever policydecisions were there that were of the Minister and Nair had no role to play. It is difficultfor us to see from the notes as to how even it could be suggested that Nair could influencethe decision making process in the case. After the financial bids had been received andexamined by TEC and then by Telecom Commission the matter was again sought to bereferred to the Selection Committee. This was on 10/09/1992. Then there is anote of the Adviser (Operations) dated 9/10/1992, almost a month after, that theminister had desired that in view of time taken by the Selection Committee the issue maybe decided internally by the Dot and put up to him for approval. The matter is againexamined in the department and final recommendations have been made by the Chairman,telecom Commission, on 9/10/1992 itself and the file sent to the Minister. On thenext day the Chairman records another note after discussion with theMinister and laysdown further criteria. On that basis Member (S) finalises the list of the parties who havebeen selected which is approved by all the Members of the Telecom Commission and it isthe Chairman who again puts up the file to the Minister. When the Minister accords hisapproval on 10/10/1992 he sends the file to the Chairman, Telecom Commissionand to Member (S ). On that basis Member (S) finalises the list of the parties who havebeen selected which is approved by all the Members of the Telecom Commission and it isthe Chairman who again puts up the file to the Minister. When the Minister accords hisapproval on 10/10/1992 he sends the file to the Chairman, Telecom Commissionand to Member (S ). At that time it is recorded that Chairman is on tour and the file isthen sent to Member (S) who on 12/10/1992 directs issue of intimation to theselected parties and sends the file back to the Adviser (Operations) for further necessaryaction. Since the Selection Committee was taking a great deal of lime and the matterwas of urgent nature, there was nothing wrong in the Minister ordering that the mattermay be examined in the department itself where in fact it should have remained in the firstinstance. It was also wrong on the part of the petitioner to allege that the Minister tookthe decision while the Chairman was on tour. Court cannot look at every act of a publicauthority with the proverbial jaundice eye and thus distort its judicial vision. The courtcannot proceed to examine every case on the premise that every act of the Governmentcomplained against is questionable. In the case of Sterling Computers Limited v. M/s. Mand N Publications Limited and others, JT 1993 (1) S. C. 187, the court observed that whenthe contracts are entered on behalf of the State, a court by way of judicial review cannotact as a court of appeal. The court can certainly examine whether the "decision makingprocess" was reasonable and rational and not arbitrary and violative of Article 14 of theconstitution. As we shall presently see, we do not find any of the actions of the Ministerwhch are impugned before us to be motivated by any bias in order to favour any particularparty. Allegations of bias have been made against Nair, he being a Member of thetelecom Commission and also being Director General (Telecommunications) and atelecom Authority not only under the Indian Telegraph Act, 1885, but also under thecontract documents. It is really a paradoxical situation for the petitioners. On the onehand, it is alleged that the Minister was biased as he by-passed the Telecom Commission. If that be so how any allegation of bias against Nair could stand, it is difficult to perceive. It is really a paradoxical situation for the petitioners. On the onehand, it is alleged that the Minister was biased as he by-passed the Telecom Commission. If that be so how any allegation of bias against Nair could stand, it is difficult to perceive. Then we have seen that selection of 14 shortlisted companies had been done independentlyby the Selection Committee and whatever the notings of the members of the Telecomcommision and also of Adviser (0) were there these become irrelevant. Nevertheless,the allegations have been made on the basis that there was reasonable likelihood of biasbecause of Nair's close relationship with an employee of BPL. We think when allegations of personal nature are made against an official heshould be impleaded as respondent by name. It may happen that that person is no longerholding the post at the time proceedings are instituted and his actions which are matter of controversy were taken by him during his tenure in that particular post. In thepresent case, counter-affidavit has been sworn by Mr. S. Satagopan, Deputy Directorgeneral in the Dot, holding the rank of Joint Secretary to the Government of India. Heis competent to file an affidavit on behalf of the respondents 1,2 and 3. He has sworn hisaffidavit on the basis of the records maintained in the office. Those official records wouldnot show if R. Satish Kumar was the son of Nair and that he was in the employment ofbpl and as to how he secured that employment and when and what position he washolding. The petition when originally filed made a very vague allegation and the counteraffidavit of the respondents 1, 2 and 3 in answer to that is quite correct. In the rejoinder,however, more facts were brought out by the petitioner. It is matter of commonknowledge that pleadings end after filing of the rejoinder unless court grants permissionto file furtheaffidavit which in the normal circumstances it does, and in the proceedingsdocuments are also brought on record during the course of hearing. Of course, one shouldnot go by technicalities and once Nair had come to know that allegation of personal naturewere made against him he could have filed an affidavit in answer to that. But then thequestion arises, as rightly put by the learned Solicitor General, as to what would Mr. Nairsay in his affidavit when everything was already on record. Of course, one shouldnot go by technicalities and once Nair had come to know that allegation of personal naturewere made against him he could have filed an affidavit in answer to that. But then thequestion arises, as rightly put by the learned Solicitor General, as to what would Mr. Nairsay in his affidavit when everything was already on record. Allegations of bias aremade against him on the basis of suspicion on the mere fact that his son is in theemployment of BPL. In support of his case Mr. Desai referred to a decision of thesupreme Court in Dr. (Mrs) Kirti Deshmankar V. Union of India and others, (1991) 1supreme Court 104. In this case the Collegal and Hospital Council was to make selectionfor appointment to Post Graduate Course in Obstetrics and Gynaecology in the G. R. Medical College, Gwalior. Five candidates were selected and appellant was put on thetop of the waiting list. She was admitted to Diploma Course. She, however, challengedby writ petition the selection of one of the candidates (respondent No. 5 in that case) whomshe alleged was a foreign national, and could not seek admission without the necessarycertificate from the Ministry concerned. Nevertheless she was selected by the Council. Earlier when merit list was prepared objection was raised by the appellant about thiscandidate. The objection was considered by the Council of which besides others thedean as also the mother-in-law of respondent No. 5, a former Professor and Head of thedepartment of Obstetrics and Gynaecology of the College were members. It wascontended that the selection of respondent No. 5 was vitiated on account of participationof the respondent's mother-in-law as a member. This objection was upheld by thesupreme Court. The court said that the mother-in-law was vitally interested in theadmission of her daugher-in-law and her presence in the meeting of Council must be heldto have vitiated the selection of her daughter-in-law, respondent No. 5, for admission. The court referred to its earlier decision in A. K. Kraipak and others v. Union of India andothers (AIR 1970 Supreme Court 150) and said that there was a conflict between herinterest and duty and taking into consideration human probabilities in the ordinary courseof human conduct, there was reasonable ground for pleading that she was likely to havebeen biased. The court referred to its earlier decision in A. K. Kraipak and others v. Union of India andothers (AIR 1970 Supreme Court 150) and said that there was a conflict between herinterest and duty and taking into consideration human probabilities in the ordinary courseof human conduct, there was reasonable ground for pleading that she was likely to havebeen biased. The court also referred to its earlier decisin on Ashokkumaryadav v. Stateof Haryana, [ (1985) 4 SCC 417 ] where it was emphasised that it was not necessary toestablish bias and that it was sufficient to invalidate the selection process if it could beshown that there was reasonable likelihood of bias. In A. K. Kraipak case there waschallenge to the selection and selection list to the Indian Forest Service from the forest department of the State of Jammu and Kashmir. One of the grounds of challenge was thatthe selections were vitiated by the contravention of principles of natural justice. Theselection was made by a board, one of the members of which was himself a candidate. Though he did not take part in the deliberations of the board at the time of his own selection,he had taken part throughout while making selections of other candidates including hisrival candidates. In the selection list so prepared name of that candidate was at the top ofthe list of selected offiers. There was, thus, not only selection but placement in the list ofselection. The court said there was conflict between interest and duty of such amemberand there was reasonable likelihood of bias. It set aside the selection list so prepared bythe board. A great deal of controversy was raised before the court as to whether powerconferred on the selection board was a quasi judicial power or it was a purelyadministrative power. For the purpose of decision the court assumed that the powerexercised by the selection board was an administrative power, andad then proceeded totest the validity of the impugned selection on that basis. The court said in a groupdeliberations each member of the group is bound to influence the others, more so if themember concerned is a person with special knowledge and that his bias was likely tooperate in a subtle manner. The court did not accept the contention that in adjudgingthe suitability of the candidates the members of the board did not have any mutualdiscussion and that the members functioned like computers. The court did not accept the contention that in adjudgingthe suitability of the candidates the members of the board did not have any mutualdiscussion and that the members functioned like computers. The courtsaid that principlesof natural justice had been violated in the case. It said whenever a complaint was madebefore a court that some principles of natural justice had been contravened the court hadto decide whether the observance of that rule was necessary for ajust decision on the factsof that case. The court also observed that in the case before it it was essentially concernedwith the question whether the decision taken by the board could be considered as havingbeen taken fairly and justly. The court ruled that that particular member who was himselfa candidate was a party to the preparation of the selection list in order of preference andthat he was shown as No. 1 in the list. To that extent he was undoubtedly ajudge in his owncase, a circumstance which is abhorent to our concept of justice. The court also referredto its earlier decision in Sumer Chand Jain v. Union of India (Writ Petition No. 237 of1966, date of decision 4/05/1967, which had been cited before it during the courseofarguments by the learned Attorney-General appearing for the respondent ). It said that (herein the court repelled the contention that the proceedings of adepartmentalpromotion committeee were vitiated as one of the members of that committee wasfavourably disposed towards one of the selected candidates. The question before the courtwas whether the plea of mala fides was established. The court came to the conclusionthat on the material on record it was unable to uphold that plea. It said in that case therewas no question of any conflict between duty and interest, nor any member of thedepartmental promotion committee was a judge in his own case, and that the only thingcomplained of was that one of the members of the promotion committee was favourablydisposed towards one of the competitors. That would appear to be the case before us aswell. In S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 S. C. 2701, the courtobserved as under :- "the test of likelihood of bias which has been applied in a number ofcases is based on the "reasonable apprehension" of a reasonable manfully congnizant of the facts. That would appear to be the case before us aswell. In S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 S. C. 2701, the courtobserved as under :- "the test of likelihood of bias which has been applied in a number ofcases is based on the "reasonable apprehension" of a reasonable manfully congnizant of the facts. The courts have quashed decisions on thestrength of the reasonable suspicion of the party aggrieved withouthaving made any finding that a real likelihood of bias in fact existed (seer. v. Huggins (1985) 1 QB 563; R. v. Sussex JJ. , ex p. Mc Carthy (1924)1 KB 256; Cottle v. Cottle (1939) 2 All ER 535; R. v. Abingdon JJ. ex. p. Cousins (1964) 108 SJ 840. But in R. v. Camborne JJ. ex. p. Pearce, (1955) 1qb 41 at p. 51, the Court after a review of the relevant casesheld that real likelihood of bias was the proper test and that a reallikelihood of bias had to be made to appear not only from the materialsin fact ascertained by the party complaing, but from such further factsas he might readily have ascertained and easily verified in the courseof his inquiries. "then it said the question was: "whether a real likelihood of bias exited is to bedetermined on the probabilities to be inferred from the circumstances by courtobjectively, or, upon the basis of the impressions that might reasonably beleft on theminds of the party aggrieved or the public at large", and then went on to say as under :- "the tests of "real likelihood" and "reasonable suspicion" are reallyinconsistent with each other. We think that the reviewing authority mustmake a determination on the basis of the whole evidence before it,whether a reasonable man would in the circumstances infer that thereis real likelihood of bias. The court must look at the impression whichother people have. This follows from the principle that justice must notonly be done but seem to be done. If right minded pesons would thinkthat there is real likelihood of bias on the part of an inquiring offier, hemust not conduct the enquiry; nevertheless, there must be a reallikelihood of bias. Surmise or conjecture would not be enough. Theremust exist circumstances from which reasonable men would think itprobable or likely that the inquiring officer will be prejudiced againstthe delinquent. The court will not inquire whether he was reallyprejudiced. Surmise or conjecture would not be enough. Theremust exist circumstances from which reasonable men would think itprobable or likely that the inquiring officer will be prejudiced againstthe delinquent. The court will not inquire whether he was reallyprejudiced. If a reasonable man would think on the basis of the existingcircumstances that he is likely to be prejudiced, that is sufficient toquash the decision (see per Lord Denning, M. R. in Metropolitanproperties Co. (F. G. C.) Ltd. v. Lannon (1968) 3 WLR 694 at p. 707- etc. ). We should not however, be understood to deny that the courtmight with greater propriety apply the "reasonable suspicion" test incriminal or in the proceedings analogous to criminal proceedings. "in Dr. G. Sarana v. University of Lucknow and others, (1976) 3 S. C. C. 585, thecourt said that what had to be seen in a case where there was an allegation of bias in respectof a member of an administrative board or body was whether there was a reasonableground for believing that he was likely to have been biased. In other words, whether therewas substantial possibility of bias animating the mind of the member against the aggrievedparty, In this case the court did not interfere in the matter as it came to the conclusionthat the aggrieved party knew all the relevant facts and he did not before appearing forthe interview or at the time of the interview raised even his little finger against theconstitution of the selection committee. He seemed to have voluntarily appeared before thecommittee and taken achance of having a favourable recommendation from it, and havingdone so, it was not now open to him to turn round and question the constitution of thecommittee. In International Airports Authority of India v. KD. Bali and another (1988)2 S. C. C. 360, the question was on the revocation of authority of an arbitrator onapprehension of bias, and again the court said that it was well settled that there must bea real likelihood of bias and not mere suspicion of bias before the proceedings could bequashed on the ground that the person conducting the proceedings was disqualified byinterest. It said that the apprehension must be judged from a healthy, reasonable andaverage point of view and not on mere apprehension of any whimsical person. The courtquoted with approval the observation of Lord O'brien in King (De Vosci)v. Justice ofqueen's Country. (1908) 2 Ir R 285. It said that the apprehension must be judged from a healthy, reasonable andaverage point of view and not on mere apprehension of any whimsical person. The courtquoted with approval the observation of Lord O'brien in King (De Vosci)v. Justice ofqueen's Country. (1908) 2 Ir R 285. which was as follows:- "by bias I understand a real likelihood of an operative prejudice,whether conscious or unconscious. There must in my opinion bereasonable evidence to satisfy us that there was areal likelihood of bias. I do not think that their vague suspicions of whimsical, capricious andunreasonable people should be made a standard to regulate our actionhere. It might be a different matter if suspicion rested on reasonablegrounds - was reasonably generated - but certainly mere flimsy, elusive,morbid suspicions should not be permitted to form a ground of decision. (emphasis supplied by the court)"the court finally observed as under :- "while indorsing and fully maintaining the integrity of the principle'justice should not only be done, but should manifestly be seen to bedone', it is important to remember that the principle should not be ledlo the erroneous impression that justice should appear to be done than itshould in fact be done. "in this case the court also referred to the observations of Slade, J. in R. v. Camborne Justice ex parte Pearce (1954) 2 All ER 850, 855. In G. B. Mahajan and others v. Jalgaon Municipal Council and others, (1991)3s. C. C. 91, the appellants assailed certain contracts of the Municipal Council of Jalgaonwith a developer of real estate for the execution of a project for 'administrative Building'and a 'commercial Complex' on aplot. of land belonging to the Municipality. One of thecontentions raised was that the resolutions of the Municipal Council touching the approvalof the project and authorised its execution by a particular respondent were vitiated by'unreasonableness' and 'arbitrariness'. The unreasona bleness was said to consist in thechoice of the manner of the execution of the project and arbitrariness in the processenabling the choice of particular respondent. It was contended that both these 'sins' werethe result and in furtherance of the anxiety on the part of the Municipal Council to favourthat particular respondent. After examining various decisions of the English andamerican courts and standard text books, the court said the 'reasonableness' in administrative law must, therefore, distinguish between proper use and improper abuse of power. It was contended that both these 'sins' werethe result and in furtherance of the anxiety on the part of the Municipal Council to favourthat particular respondent. After examining various decisions of the English andamerican courts and standard text books, the court said the 'reasonableness' in administrative law must, therefore, distinguish between proper use and improper abuse of power. Nor is the test the court's own standard of 'reasonableness' as it might conceive it in agiven situation. Then the court said as under:- "while it is true that principles of judicial review apply to the exerciseby a government body of its contractual powers, the inherentlimitations on the scope of the inquiry are themselves a part of thoseprinciples. For instance, in a matter even as between the parties, theremust be shown a public law element to the contractual decision beforejudicial review is invoked. Inthe present case the material placedbefore the court falls far short of what the law requires to justifyinterference. In regard to the allegation that the project scheme was tailoredto suit respondent 6 alone or that the project as put to tender did notadmit of tenders on fixed comparable parameters, we find no merit. Srik. K. Singhvi submitted that the tender papers were prepared by reputedarchitects and the precise points on which comparative quotations wereinvited were specifically incorporated in the tender papers. The pointagain is that no other tenderer expressed any grievance. The tenderswere such that the tenderer could identify the terms which form the basisof comparative evaluation. The charge of arbitrariness cannot beupheld. Tests to be applied in a given case may be influenced by theextent to which a decision is supported by ademocratic unanimity whichevidences the decision - granted, of course, the power. "in Hindustan Petroleum Corpn. Lid. v. Yashwant Gajanan Joshi and others, AIR1991 Supreme Court 933, one Mrs. Gadre, an employee of the appellant company, wasappointed as competent officer of the appellant under the Petroleum and Minerals Pipeline (Acquisition of Right of User in Land) Act, 1962, for award of compensation. Herappointment was challenged on the ground that she being an employee of the Corporationwas biased against the petitioner (now respondent) whose rights had been affected bylaying down of pipes by the appellant. The court held that merely beause a person wasan employee of the appellant he could not be held to have a bias in deciding thecompensation under the Act. Herappointment was challenged on the ground that she being an employee of the Corporationwas biased against the petitioner (now respondent) whose rights had been affected bylaying down of pipes by the appellant. The court held that merely beause a person wasan employee of the appellant he could not be held to have a bias in deciding thecompensation under the Act. However, in the case of Mrs. Gadre the court found thata certain compensation case was decided by the Additional District Judge in favour ofthe respondent and Mrs. Gadre in that case in her own name filed a writ petition challengingthe legality of the award passed by the Additional District Judge. The grievance of therespondent was that some interim orders of stay were also obtained in the said writpetitioner behind the back of the respondent and certain contempt proceedings had alsobeen initiated against Mrs. Gadre which were pending in the Bombay High Court. Thus,taking in view the entire facts and circumstances of the case the court held that it wasinclined to take the veiw that the respondent was right in contending that Mrs. Gadre mighthave a bias while determining the amount of compensation as she herself was a litigatingparty in this very matter in the High Court against the respondent. The court said thatan apprehension in the mind of the respondent was well founded and on this ground thecourt did not find any justification to interfere with the order of the Bombay High Courtholding that the appointment of Mrs. Gadre was not valid. Reference was also drawn to dictum of Blackburn, J. in The Queen v. Ran andothers, 1866 (Vol. 1) Q. B. 230, where it was said that "though any pecuniary interest,however small, in the subject-matter disqualifies ajustice from acting in a judicial inquiry,the mere possibility of bias in favour of one of the parties does not ipso facto avoid thejustice's decision; in order to have that effect the bias must be shown at least to be real. This dictum of Blackburn, J. was referred to in R. v. Camborne Justices. Ex partepearce,1954 (Vol. 2) All. E. R. 850, and it was further laid that the real likelihood of bias must bemade to appear having regard not only to the materials ascertained by the partycomplaining, but also to such further facts as he might readily have ascertained and easilyverified in the course of his inquiries. Ex partepearce,1954 (Vol. 2) All. E. R. 850, and it was further laid that the real likelihood of bias must bemade to appear having regard not only to the materials ascertained by the partycomplaining, but also to such further facts as he might readily have ascertained and easilyverified in the course of his inquiries. Per curiam it was said: "the frequency with which allegations of bias have come before thecourts in recent times seems to indicate that the reminder of Lordhewart, C. J. ,in R. Sussex JJ. Ex p. Mccarthy ([1924] 1 K. B. 259), thatit is "of fundamental importance that justice should not only be done, butshould manifestly and undountedly (undoubtedly?) be seen to be done"is being urged as a warrant for quashing convictions or invalidatingorders on quite unsubstantial grounds and, indeed, in some cases on theflimsiest pretexts of bias. While endorsing and fully maintaining theintegrity of the principle reasserted by Lord Hewart, CJ. , this court feelsthat the continued citation of it in cases to which it is not applicable maylead to the erroneous impression that it is more important that justiceshould appear to be done than that it should in fact be done. "we have seen above that this judgment has been quoted with approval in thedecisions of the Supreme Court. If we refer to Full Bench decision of the Madhya Pradesh High Court in Pr (Mrs)Kirti Deshmankar v. Union of India and others, AIR 1990 Madhya Pradesh 357, (againstwhich the matter went to Supreme Court, and already referred to above) it will be seen thatthe court had held that the fifth respondent was more meritorious having secured 17marks more than that of the petitioner and in that view of the matter the High Court saidthe selection could not be said to be vitiated. In the book Natural Justice (Principles and Practical Application) by Geoffreya Flick, Butterworths, (1977 Edition), the learned author quoting de Smith said: "whenever a decisionmaker becomes personally involved with one of the parties therearises the suspicion that a determination may not be reached exclusively on the merits ofthe case as discussed at the hearing. In the book Natural Justice (Principles and Practical Application) by Geoffreya Flick, Butterworths, (1977 Edition), the learned author quoting de Smith said: "whenever a decisionmaker becomes personally involved with one of the parties therearises the suspicion that a determination may not be reached exclusively on the merits ofthe case as discussed at the hearing. Unlike allegations of bias by reason of the pecuniaryinterest of the decisionmaker however, allegations of bias founded upon a personalinvolvement will only result in disqualification where there is a real likelihood that ahearing will not be fair", and further said: "the most obvious group of cases calling forscrutiny are those in which one of the parties has close ties of kinship with thedecisionmaker. "bernard Schwartz in his Administrative Law (Third Edition), Little, Brownand Company, said: "at the same time, in these cases, "it is of fundamental importancethat justice should not only be done, but should manifestly and undoubtedly be see to bedone. " Not only bias, but also an appearance of bias should be enough to invalidate agencyaction. Illustrative is a case where, during a lunch recess, the hearing officer sat arestaurant table where the agency counsel and a witness were eating. The cause wasremanded for new proceedings on this mere appearance of impropriety. "h. W. R. Wade in his Administrative Law (Sixth Edition) was of the view that "aswill be seen from the modem cases, pecuniary interests play a relatively small part, andthe courts are vigilant to eliminate anything smacking in any way of favouritism. " Hesays although it was once said that a less stringent standard should be applied toadministrative than to judicial cases, this suggestion has not in practice been followed. Whether the dominant test is 'reasonable suspicion 'or 'real likelihood', and the way inwhich the test should be applied, is the question. The learned author formulated his viewsas under:- "much confusion has been caused by the concurrent use of twodifferently formulted tests for disqualifying bias. Many judges havelaid down and applied the 'real likelihood' formula, holding that thetest for disqualification is whether the facts give rise to a real likelihoodof bias, and this test has naturally been emphasised in cases where theallegation of bias was excessively far-fetched. Many judges havelaid down and applied the 'real likelihood' formula, holding that thetest for disqualification is whether the facts give rise to a real likelihoodof bias, and this test has naturally been emphasised in cases where theallegation of bias was excessively far-fetched. At the same time it wasfrequently emphasised that justice must be seen to be done, and that noperson should adjudicate in any way if it might reasonably be though thathe ought not to act because of some personal interest. "the learned author also observes: "but in later cases the courts do not seem tohave felt that the position was clear. Sometimes they have suggested that the two testsproduce the same result; and sometimes that, in the 'somewhat confusing welter ofauthority', it suffices to say that either test is satisfied on the facts. He also observes thatthe latest judicial suggestion is that the two tests are substantially the same, but inapplicableto policy-based decisions such as those of planning authorities, since these are radicallydifferent from those of bodies such as rent tribunals, which decide objectively accordingto rules. On the question of principle of necessity Wade observes that there are manycases where no substitution of adjudicator is possible, since no one else is empoweredto act. He says in these cases natural justice then has to give way to necessity; for otherwisethere is no means of deciding and the machinery of justice or administration will breakdown. Where statue empowers a particular minister or official to act, he will usually bethe one and only person who can do so. There is then no way of escaping the responsibility,even if he is personally interested. Transfer of responsibility is, indeed, a recognisedtype of ultra vires. So much on the principle of bias in quasi-judicial or administrative decisions. We are not considering this case from the angle of bias infact or actual bias as it has notbeen alleged. The distinction is to be drawn between reasonable suspicion and reallikelihood of bias. As Wade points out that in the great majority of cases either test willlead to the same result. The Supreme Court has laid stress on real likelihood of bias ina given ease. To us it appears that the distinction between reasonable suspicion andlikelihood of suspicion is quite blurred, but perhaps for fairness or probity in publicadministration in the grant of contract of the Government it will be better to adopt theprinciple of reasonable suspicion. The Supreme Court has laid stress on real likelihood of bias ina given ease. To us it appears that the distinction between reasonable suspicion andlikelihood of suspicion is quite blurred, but perhaps for fairness or probity in publicadministration in the grant of contract of the Government it will be better to adopt theprinciple of reasonable suspicion. Whatever the terms 'reasonable suspicion' or 'real like lihood' of bias in a givencase it should be that of a reasonable man. That would not mean a layman in a street buta man versed with the functioning of the department and as to how the tender documentsare processed in that office. It is not that there were only two contestants - one BPL andthe other another party - and selection was made out of that. Eight parties had to beselected out of thirty who gave bids and sixteen were shortlisted by the Telecomcommission and fourteen by the Selection Committee. It is not the case of the petitionersthat any attempt was made to ease them out in order to bring in BPL. The contention aswe understood was that a certain criteria was laid and certain mandatory conditionsof tender ignored in order to favour a few resulting in easing out of the petitioners whenthey could have been in the select list of their own. Contention was also that the marksgiven had been fudged but not particularly in the case of BPL. We may also note thatfor Calcutta the petitioner India Telecomp Limited and Usha Martin had qualified butsince they were having the same foreign collaborator, as per guidelines, Usha Martin wasselected as it was higher in marking than the petitioner. Petitioner had not allegedfavouritism in the case of Usha Martin and no malice or motive had been alleged qua thepetitioner to oust him. We have examined the notings in the Dot and we find that members of thetelecom Commission have independently examined the case and given their views, andultimately the views of the Chairman in consultation with the Minister prevailed. Wehave not been able to see any note on the file by Nair from which it could be inferred thathe at his end otherwise tried to favour BPL. His consideration of the case has beenobjective whenever he recorded his notings. In the context of working of the Telecomcommission the role of each member is limited. The case of the Supreme Court indr. His consideration of the case has beenobjective whenever he recorded his notings. In the context of working of the Telecomcommission the role of each member is limited. The case of the Supreme Court indr. (Mrs) Kirti Deshmankar [ (1991) SCC 104] is inapplicable here. In no way could havenair influenced the members of the two Evaluation Committees, other members and thechairman of the Telecom Commission, members of the Selection Committee, or theminister. Rather in all fairness to him he even in fact had suggested in his noting dated 29/07/1992 that it was for consideration whether the companies which were not beingselected should be informed of the basic criteria on the basis of which they had not beenshortlisted. This, Nair said, will enable the objective of transparant selection of theshortlisting. Chairman, Telecom Commission, did not agree with this suggestion. According to him, action to convey non-acceptance to other sixteen bidders could be takenwithout indicating the reasons for non-acceptance. This was approved by the Minister. We do not think in a case like this the mere fact that Nair was part of the machinery tomake selection was enough to show that there could be reasonable suspicion or reallikelihood of bias in favour of BPL. We also do not think that deficiency in the tenderdocuments of BPL had been ignored on that account. That is not a correct allegation tomake. We agree with learned Solicitor General that this principle of likelihood of biashas to give way to necessity in certain circumstances. This would be a case comingunder that principle. Nair is a Member of Telecom Commission which had to takedecision in the matter and then recommend the same to the Minister. He, as a Directorgeneral, was also an authority under the Indian Telegraph Act, 1885 and then a Telecomauthority under the tender documents. He was to sign the contract on behalf of thecentral Government. He was appointed Director General from a back date when hebecame Member (Services) in the Telecom Commission. It is difficult for us to imaginethat Nair would not deal with the matter on the ground that his son was an employee of BPLwhich employment, as we find, has nothing to do with the submission of tender documentsand shortlisting and ultimate slection of BPL as one of the eight parties for grant of licence. It is difficult for us to imaginethat Nair would not deal with the matter on the ground that his son was an employee of BPLwhich employment, as we find, has nothing to do with the submission of tender documentsand shortlisting and ultimate slection of BPL as one of the eight parties for grant of licence. Ultimate selection has been made after quite a complex process with the matter havingbeen examined at various stages. The final selection was not made on any note orrecommendation of Nair. As noted above, it was not a question whether one has beenselected or other went out. Nexus of father and son in the chain of decision makingprocess is too remote to be of any consequence. It is quite interesting to note that of thefour companies which were having some deficiencies in their tender documents in the firststage and were recommended for consideration by the first TEC, three companiesincluding BPL made it to the final list of eight. Plea of bias is not alleged in the selectionof other two companies. In the circumstances it is not possible for us to hold any allegationof bias made against Nair. Respondents have submitted that after the financial bids were received in thesecond stage, the Evaluation Committee which consisted of high ranking officers forevaluation adopted the various parameters and devised amarking system taking intoconsideration those parameters, and the weightage assigned to each parameters was asunder:- "parameter Total Marksi) Rental 50ii) Project financing 8iii) Foreign exchangeinflow/outflow 10v) Purchase plan forcellular equipment withinthe country including tieups with the proposed 5indian manufacturersv) Experience 15vi) Financial strength12"for rental parameter, the Evaluation Committee took into account the quotedrental ceiling, security deposit and installation and other charges indicated in the bidswhich were the same in the case of all the bidders and was done in order to arrive at anequated or effective figure of monthly rental for each bidder. Based on these parametersand the marks for each parameter, the bids were ranked as per total marks of the differentbidders in each of the four cities. Thus, four lists were prepared in which the differentbidders were arranged in descending order of marks awarded on these basis. Theevaluation report thus prepared was considered by the Telecom Commission whichconsisted of the Chairman and four full time members, all of the rank of Secretary tothe Government of India. Thus, four lists were prepared in which the differentbidders were arranged in descending order of marks awarded on these basis. Theevaluation report thus prepared was considered by the Telecom Commission whichconsisted of the Chairman and four full time members, all of the rank of Secretary tothe Government of India. After discussion with the Minister the following selectioncriteria were adopted for selection of successful bidders:- "i) Not more than one city is to be allotted to one party. Two partieswould be selected for each city. 013ii) Bidders with limited experience (i. e. bidders having experience ofoperation of system less than one lakh lines at the time of submision ofbids) would be considered only for the smaller cellular systems incalcutta and Madras. iii) Subject to the above, the selection would be based citywise in theorder of Bombay, Delhi, Calcutta and Madras on total marks obtainedfor that city. iv) In case of bidders having the same foreign partners only one of themwould be considered for selection as per their ranking. "these respondents then state that in the case of India Telecomp Limited, thepetitioner in C. W. P. No. 4030/92. it was not able to compete with others in the cities ofbombay, Delhi and Madras in the gradation list. However, for the city of Calcutta, themarks awarded to the petitioner placed it after Usha Martin Limited and since, however,the foreign partner of the petitioner wasTelecom Malaysia which was also the foreignpartner of Usha Martin Limited and as per cirteria laid only one of them was to beselected, the petitioner was not selected. The respondents say that this criteria wasadopted to ensure open and free competition and to avoid concentration of work in oneforeign hand. The second bidder accordingly which was selected for Calcutta could not,therefore, be the petitioner India Telecomp Limited, and Mobile Telecom Services wasselected. It was also mentioned that experience of Telecom Malaysia was limited to70,000 lines and in any event both Usha Martin Limited and Indian Telecomp Limited,the petitioner, could be considered only in Calcutta and Madras. It is denied that anyfavour has been shown to anthe petitioners have contended that no new criteria could be laid after the bidshad been received, and it was also stated that same criteria has been applied twice whichcould not be so. It is denied that anyfavour has been shown to anthe petitioners have contended that no new criteria could be laid after the bidshad been received, and it was also stated that same criteria has been applied twice whichcould not be so. For example, it was stated that at the time of shortlisting experience hadalready been gone into and this was again taken into consideration while making the finalselection. Then it was contended that while examining the financial bids certain conditionswhich related to the technical evaluion were incorporated and on that accountpetitioners were sought to be eased out, or which resulted in their easing out. Thepetitioners had contended that in the case of BPL, Bharti, Mobile Telecom, Indiantelecom, Usha Martin and Sterling Computers certain conditions of tender were waivedto the prejudice of the petitioners. Petitioners complained that respondents had stated that "quoted rental ceiling,security deposit, installation and other charges indicated in the bids were taken intoconsideration in order to arrive at equated or effective figures of monthly rental for eachbidder. " Certain other service charges quoted by BPL, Bharti and Sterling had not at allbeen taken into account which would have shown higher rental to be charged by theseparties. It was, therefore, stated that the basis for calculation of equated rental was nowherethere. But then the respondents have contended that they took into consideration chargeswhich related to the same items respecting all the tenders and if any other charges forservices were given by any one of the parties that were not taken into account. It was statedthat these were optional services and were not taken into account and the idea was notto exclude any one on that account. They said what these respondents took into accountto arrive at equated rental were (1) rental ceiling quoted: (2) deposit per subscriber; (3)installation charges: (4) monthly interest of installation: and (5) monthly amortisation (where deposit was not refundable ). It was also stated that registration charges andconnection charges had been included in the installation charges while calculating thesame and figure of rate of interest was 21. 75% p. a. On the question of marking givenfor purchase plans it was stated that it could not be same for all and where there was morestress on Indian market, higher marking was given. On the question of foreign exchangeinflow/outflow, it was stated that the marking devised was 10 marks where the outflow offoreign exchange and inflow matched. 75% p. a. On the question of marking givenfor purchase plans it was stated that it could not be same for all and where there was morestress on Indian market, higher marking was given. On the question of foreign exchangeinflow/outflow, it was stated that the marking devised was 10 marks where the outflow offoreign exchange and inflow matched. On the question of experience it was contendedby the petitioners that 80,000 lines + GCM was tailor made for a particular party being thebharti. This was countered by the respondents who said that parameter of 15 marks wasgiven for experience and for over 10,000 lines the mark given was one and TEC hadseparately fixed the marks for GCM. TEC further devised that party who was havingexperience of a collaborator of 1,00,000 lines and got minimum marks of 10 would beeligible to be considered, and 2 marks were provided for GCM experience and, thus, anyparty who was having 80,000 lines + GCM would get 10 marks and would be selected forconsideration in the final stage. It was denied that this criteria was laid in order to helpany party. It was stated by the respondents that no Indian party was having anyexperience and it was the experience of the foreign collaborator which per force had onlyto be taken into account. Licensee is not only to instal the instrument and to operate thesame but has also to provide service for maintenance, correction of defects in hand sets,shifting of phones, etc. , and also billing. In fact a consumer is more concerned withservices than the technicalities as to how the cellular phone would operate. Respondentsstate that it was on that account that an experience of a foreign party in connection withthe services rendered was taken into account. Various other deficiencies have been pointed out by the petitioners in workingof the criteria laid down by the respondents in making the selection of the tenderers. Wehave already noted above what the Supreme Court has said that a court is not sittingin appeal for examining an administrative decision, and while exercising the power ofjudicial review in respect of contracts entered into on behalf of the State the court isprimarily concerned as to whether there has been any infirmity in the "decision makingprocess". The court cannot examine the details of the terms of the contract. Courtshave inherent limitation on the scope of any such enquiry. The court cannot examine the details of the terms of the contract. Courtshave inherent limitation on the scope of any such enquiry. The "decision making process"has to be reasonable, rational and not arbitrary and violative of Article 14 of theconstitution. A court is certainly ill-equipped to examine in detail the intricacies ofworking of tender documents in a given case. Tender documents with annexures in thecase of any party in the present case run into hundreds of pages. However, we mayexamine some of the alleged deficiencies referred to by the petitioners: (1) Parameter of quoted rental ceiling has been given the higher weightage; low rate ofrental given preference. Petitioner India Telecomp Limited says that it quoted the rentaltariff structure for all the four cities on slab system basis ranging from RS. 0. 00to Rs. 600/-a month, but the respondents took the monthly rental at Rs. 600. 00. Then in the quotedrental ceiling security deposit, installation and other charges indicated in the bids weretaken into consideration in order to arrive at equated or effective figures of monthly rentalfor each bidder. This it said on the basis of respondents' case. But the petitioner says thatin the chart so prepared by the respondents on these basis there is no column for "othercharges" which were not taken into account though three parties had claimed other chargesand that these charges would be in addition to installation, security deposit, registrationcharges and connection charges which have been totally excluded from the calculation ofequated rental which should not have been done. Yet again the amount of security depositper subscriber in the case of the petitioner is wrongly stated for Delhi/bombay asrs. l2,568. 00 and, therefore, wrong marks were calculated. For Calcutta/madras, however,the correct figure was taken into account which was Rs. 7,998. 00. It is said that this figureof Rs. 7,998. 00 should have been worked out for Delhi and Bombay as well. It is thencontended that in several cases average/weightage average has been taken for securitydeposit and installation charges while in other cases this has not been done. (2) Although several bidders submitted identical purchase plan, i. e. , supply of equipmentfrom Motorola - Siemens combine along with same indigenisation programme, from 1994onwards, different marks were given. It is thencontended that in several cases average/weightage average has been taken for securitydeposit and installation charges while in other cases this has not been done. (2) Although several bidders submitted identical purchase plan, i. e. , supply of equipmentfrom Motorola - Siemens combine along with same indigenisation programme, from 1994onwards, different marks were given. (3) Marking system adopted by the respondents was never disclosed to the bidders toenable them to appreciate the system to be followed in making the final selection, and,therefore, dealing of the respondents (Dot) was not transparent as to which factors wereconsidered and taken into consideration for drawing up the merit list. This, it is said, wasdeliberately done to promote BPL from Delhi to Bombay, Tata Cellular promoted fromcalcutta to Delhi and Usha Martin was shifted to Calcutta, its home territory, it being acalcutta based company. It is stated that Tata Cellular had quoted for Calcutta on exclusivebasis and, therefore, by getting Delhi it was accommodated. (4) Adino Telecom, the petitioner in C. W. 4031/92, did not apply forCalcutta and Madrasin Financial Bid though in the Technical Bid it had applied for all the four cities. It is statedthat it is unimaginable that had this criteria (namely, 1 lakh lines cut off point for Bombay/delhi) had been disclosed earlier Adino would not have still have applied for Calcuttaand Madras. In order to favour Bharti Cellular whose collaborator did not haveexperience of one lakh lines, another criteria of "80,000 lines with GSM experience' 'wasinserted. (5) Again in the case of Bharti Cellular it is stated that its two other foreign collaborators,i. e. , EMTEL had only an experience of 1982 lines, and Talkland, U. K. , was only adistributor/marketing company and had no operating experience. Yet the experience oftalkland taken into consideration and licence for Bombay granted to Bharti arbitrarily forextraneous consideration. (6) Yet another criteria was evolved, stated by the petitioner to be a "hidden criteria", thatin case of bidders having the same foreign collaborator only one of them would beconsidered for selection as per their ranking which had the effect of eliminating thepetitioner from the city of Calcutta. It was contended that out of 14 parties which hadbeen shortlisted, only the petitioner and Usha Martin had a common foreign collaboratorand this criteria was tailor made to knock out the petitioner, and this way Mobile Telecomgot accommodated in Calcutta along with Usha Martin. It was contended that out of 14 parties which hadbeen shortlisted, only the petitioner and Usha Martin had a common foreign collaboratorand this criteria was tailor made to knock out the petitioner, and this way Mobile Telecomgot accommodated in Calcutta along with Usha Martin. (7) On the question of deficiencies in the bids of the parties which were yet in the shortlist,the petitioners say as under :-Re. B. P. L. : (a) The foreign collaboration approval application was first made to ther. B. I. which was not the authority concerned and after the closing datethe application was made to SIA (Secretariat for Industrial Approvals)which was the only competent authority. (b) The Joint Venture Company BPL Cellular which was to beincorporated with foreign equity participation of foreign collaboratorwas registered only after 31/03/1992. The bid made a clear distinctionbetween "name of bidder" and the "name of Indian company which willoperate the service". In all other cases Joint Venture Companies wereregistered before March 1992. (c) At the technical bid stage BPL had three foreign partners one ofwhich was Mc Caw Cellular which was dropped at the stage of financialbid resulting in the change in the joint venture which was not permissible. Re. Indian Telecom (P) Ltd. (a) This company had quoted on an exclusive basis stating that as perits comprehensive commercial and technical market studies it believedthat the market will warrant only one operator in each city in order toensure economic viability of the service and that this was the basis onwhich its bid had been prepared and submitted. It is stated that uptil 9/10/1992 the bid of this company stood rejected and strangeenough it was selected on 10/10/1992. (c) Customs duty was assumed by this company at the rate of 36% inthe first year against the existing rate of 95%. Investment in a singleoperator project compared to two is only marginally higher. To maintaina desired pay back period rental, installation charges and securitydeposit will be much lower in case of single operator compared to twooperators. In spite of assuming one operator, the investments shownby them are less than half (Rs. 40cr) compared to all other Companiesbased on two operators (Rs. 80 to 100 Cr. ). This again is to give betterfinancial figures on impossible investment figures. All these factorshave vitiated the quotations/projections in the Financial Bid and it oughtto have been rejected. Re. In spite of assuming one operator, the investments shownby them are less than half (Rs. 40cr) compared to all other Companiesbased on two operators (Rs. 80 to 100 Cr. ). This again is to give betterfinancial figures on impossible investment figures. All these factorshave vitiated the quotations/projections in the Financial Bid and it oughtto have been rejected. Re. Sterling: (a) In view of C. B. I, enquiry going on concerning MTNL case and inspite of its high markings it was rejected upto 9/10/1992 but wasbrought back into consideration at the instaance of the MOS (C) on 10/10/1992. It could not have been allotted Madras since it wasconsidered unfit for the reasons of the CBI enquiry. (b) Sterling showed its foreign exchange earning through tourists usingtheir services without evidencing any commitments from their foreigncollaborator which got them full marks in Bombay and Delhi against theproposal of the petitioner collaborator's letter of support for meeting fullforeign exchange requirements as well as exports from India and wasawarded only one mark. Re. Mobile Telecom:here also the bidder assumed one operator for Calcutta andmade its bid on that basis. It assumed contract for 20 to 25 years againstdot condition of 10 years and also did not agree with tender conditionsby clearly stating that its calculations which were based on Vodaphone'sextensive experience as the world's most successful cellular networkoperator, demonstrates that the business would not be properly viable ifall the terms of the lender were to be met to the letter. Re. Tata Cellular:this company had stated that it had assumed that only onelicence would be granted for Madras/calcutta area and its financial bidoffer was conditional upon its being granted exclusive licence formadras/calcutta. Respondents have submitted that allthese allegations are not warranted on thefacts of the case. They say that same method had been adopted in each case and that rentalceiling was a relevant factor. It was not necessary or possible to evaluate the range0 - 600 as given by the petitioner when it was required to indicate the ceiling and had infact done so as Rs. 600. 00. The petitioner clearly indicated Rs. 600. 00 as ceiling of monthlyrent payable and that ceiling was taken for evaluation. The contention of the petitionerthat it quoted Re. 0 to Rs. 600. 00 as the rental for all four cities was only hypothetical andcould not be taken into account, the respondents allege. 600. 00. The petitioner clearly indicated Rs. 600. 00 as ceiling of monthlyrent payable and that ceiling was taken for evaluation. The contention of the petitionerthat it quoted Re. 0 to Rs. 600. 00 as the rental for all four cities was only hypothetical andcould not be taken into account, the respondents allege. We also find that the petitionerdid quote the monthly rental of Rs. 600. 00 in the financial bid document submitted by itin the specified format and its saying that it had quoted Re. 0 to Rs. 600. 00 giving differentrental figures for different bid amount could certainly not be relevant for comparativeevaluation. In the form meant for the purpose the petitioner clearly indicated Rs. 600/- as the monthly rental. Then the respondents say that it was not necessary to includecharges for "other services" if quoted by bidders for comparision purposes. Even thepetitioner had indicated "fixed network charges" and "reconnection fees" which were notnecessary to be taken into account for comparative purposes and were not in fact takeninto account. What was relevant was the incident of deposit, installation charges,connection charges or registration charges, besides the quoted rental ceiling. Incidenceof interest on the deposit and monthly amortization of certain deposits were also takeninto account while arriving at the equated rental. On the allegation that the amount ofsecurity deposit in the case of the petitioner was wrongly stated for Delhi and Bombay. and though correctly for Calcutta and Madras, the respondents contend that the petitionervery clearly indicated in the financial bid form that deposits from subscriber in the year1994 was Rs. 560 lakhs and in the year 1995 it was Rs. 980 lakhs. The estimated numberof subscribers upto 1995 was shown as 12253. In the cash flow statement annexed to thefinancial bid form the cash inflow for first year on account of security deposit was shownat approximately Rs. 560 lakhs and again second year apporoximately Rs. 980 lakhs. Therespondents say there could not be any doubt that so far as Bombay was concerned thesewere expected cash inflow figures in each of the years in question. The same figures hadbeen given for Delhi. In the case of Calcutta and Madras the figures were different. Then the respondents say that in the case of Mobile Telecom (Calcutta) it was specificallystated that figure of 1058 lakhs as deposits from the subscribers for the year 1995 wascumulative. The same figures hadbeen given for Delhi. In the case of Calcutta and Madras the figures were different. Then the respondents say that in the case of Mobile Telecom (Calcutta) it was specificallystated that figure of 1058 lakhs as deposits from the subscribers for the year 1995 wascumulative. It was on that basis the calculation for Mobile Telecom was made. Therespondents say it was not possible to accept the figure of Rs. 7,998. 00 as the amount ofsecurity deposit in the case of the petitioner because the petitioner nowhere stated in thefinancial bid form that the figures given by it was cumulative for Bombay as well as fordelhi. In fact the figures of the petitioner for Bombay and Delhi could not be cumulativebecause for Calcutta and Madras figures were non-cumulative. Thus, the respondents saythat the petitioner could not have adopted one basis for Bombay and Delhi and altogetherdifferent basis for Calcutta and Madras. It is further stated that figures for deposit havebeen correctly taken in the cases of Mobile Communication and Sterling and full andcorrect calculations were made in respect of all the bidders. But then the petition p73 nerindia Telecomp Ltd. (CWP No. 4030/92) did not state that figures for Calcutta and Madraswere non-cumulative. But from the figures the respondents figured it to be so. There,we find, an apparent error crept in and the figures for Bombay and Delhi had to be takenas cumulative. Even if what the respondents say they though to be correct. Afterdetailed arguments addressed in the present case and various statements brought on recordwe are of the view that the figures for Delhi and Bombay as given by the petitioner forsecurity deposit amount was cumulative and on that basis marking should have been done. Respondents have also denied that identical purchase plans were submitted by certainbiddersor by Adino, Usha and the petitioner, In the financial bid documents the purchaseplan of each bidder would appear where the capital investment on account of purchase ofimported and indigenous equipment as well as the local equipment production by thepromotor/collaborator of the bidder company had to be shown separately. A higherpercentage of investment in indigenous equipment as well as an identified tie up for localequipment production were graded higher and marks were awarded on that basis. Sinceadino and Usha Martin had higher proportion of indigenous procurement they hadobtained higher marks on that account. A higherpercentage of investment in indigenous equipment as well as an identified tie up for localequipment production were graded higher and marks were awarded on that basis. Sinceadino and Usha Martin had higher proportion of indigenous procurement they hadobtained higher marks on that account. Adino had indicated a tie-up for production andtherefore obtained higher marks on that account. The respondents say that the markingsystem was entirely objective and based on figures and the information given in thefinancial bid form by the bidders. Coming to the allegation of net foreign exchange inflow and outflow certainparagraphs of the financial bid document formed the basis for deducing this over a periodof ten years. Respondents in this connection adopted the following parameter awarding10 marks for the project period 10 years (ignoring at the same time foreign exchangeobtained in India from open market):more than Rs. 100 crores net outflow : 0rs. 10 crore to RS. 100 crore net outflow : 1upto Rs. 10 crorc aet outflow : 2neutral (Infloweoutftow) : 5upto Rs. 15 crore inflow: 6more than Rs. 15 cr. to Rs. 30 cr. netinflow : 7more than Rs. 30 cr. to Rs. 45 cr. netinflow : 8more than Rs. 45 cr. to Rs. 60 cr. netinflow : 9more than Rs. 60 cr. : 10projections of Skycell for Madras showed a high figure of foreign exchangeinflow whereas the same company had indicated foreign exchange outflows for Bombayand Delhi. On that basis Skyeell secured high marks under this heading in the case ofmadras. Again it is asserted that marking system was objectively based on the inflow/outflow figures given by the bidders. We find no error in this approach of the respondents. Petitioner itself showed net outflows of varying figures in all the four cities which,according to the marking system, secured for it one mark in each case. p73 Respondentshave pointed out that the bidders had to conform to GSM standards and therefore GSMexperience was relevant. It was also noticed that the choice could not be confined to onlythose with GSM experience because very few would then qualify. In the marking system10,000 lines experience carried one mark and one lakh lines carried ten marks. GSMlicence carried two marks. Thus, one lakh lines carrying 10 marks was consideredequivalent to 80,000 lines with GSM lines. It was also noticed that the choice could not be confined to onlythose with GSM experience because very few would then qualify. In the marking system10,000 lines experience carried one mark and one lakh lines carried ten marks. GSMlicence carried two marks. Thus, one lakh lines carrying 10 marks was consideredequivalent to 80,000 lines with GSM lines. Even otherwise the respondents say that thishad no impact in the case of Bharti as its collaborators included Talkland who was oneof the largest service providers in U. K. Experience of providing service was an importantconsideration and experience of Talkland in computing Bharti's foreign collaborators wascorrectly included in the computations and, thus, its experience exceeded 2. 51 lakh lines. The respondents say that Bharti was treated on this basis and not on the basis of 80,000lines. In support of this argument Mr. Gupta, learned Solicitor General, submitted thatall services were to be provided by the licensee, and though Talkland had no operatingexperience it was having service experience for rendering service to subscribers whichwas an important factor. A subscriber is more concerned with the service than as to howthe Cellular Telephone operates. The service would be of any typelike billing, correctionof defects in hand sets, shifting of phones, etc. The operation and service though go handin hand we do not find anything wrong in taking into account the experience of Talklandwhich has been done by the respondents. The alleged defects in individual cases asalleged by the petitioner all pertain to the first stage or technical stage of bid. When 14parties were shortlisted after the advice of the Selection Committee it is difficult tounderstand how a challenge to that can be made by the petitioner when it itself iscomplaining that in the second stage the Selection Committee was by-passed. From thearguments of the petitioner it would appear that not only Nair but whole of TEC, thetelecom Commission, the Minister, the Selection Committee, were set against them andhad devised methods and means only to keep the petitioners out of the ranking. This isnot at all correct. We do not find anything wrong for the respondents not allowing asingle foreign collaborator for more than one Indian party, and when the respondents saythis was rational, logical and desirable and that there was no desire of eliminating thepetitioner or any other party, we would not hold otherwise. This isnot at all correct. We do not find anything wrong for the respondents not allowing asingle foreign collaborator for more than one Indian party, and when the respondents saythis was rational, logical and desirable and that there was no desire of eliminating thepetitioner or any other party, we would not hold otherwise. When during the course ofevaluation it transpired that some of the foreign telecom administrations had not beenmonitoring the number of subscribers and hence the certificates could not be insistedupon from them as required underclause 13 of Chapter 2 of the Financial Bid Document,we find nothing wrong in the decision that requirement of certificate was not insistedupon from any of the bidders. This certainly in any case did not operate to the prejudiceof the petitioners. We do not find there was any "hiddern criteria" as alleged by thepetitioners or any such criteria was laid in knocking out the petitioners. Rather we findthat the marking system adopted by the Tender Evaluation Committee was objectiveand was based on the details and informations supplied by the bidders in the financial biddocuments. The object of the marking method was toestablish a comparative gradationcity wise and when final selection of 8 bidders was to be made further considerations werenecessary and inevitable in the final stage of selection process. Some of the factors whichwere not relevant in the comparative grading were also relevant in the selection processand there was nothing wrong if these factors were again taken into consideration. Weagree with the respondents that the process of selection and the considerations taken intoaccount at the stage of final selection cannot be pre-determined and it was neithernecessary nor possible to pre-determine the exact method of comparative evaluation, orto disclose the same to the bidders in advance. The question of giving or denying benefitsdoes not arise. We find that the process of selection was quite a complex affair and thematter was examined at various stages. In the case like this also there could not be anydeclared policy as to how different bids were to evaluated. A criteria had to be evaluatedin the context of consideration and ultimate selection of the bidders. We reject theallegation of the petitioner that the criteria so laid was in any way irrelevant, irrational,arbitrary or whimsical. That is all we have to see in this jurisdiction. A criteria had to be evaluatedin the context of consideration and ultimate selection of the bidders. We reject theallegation of the petitioner that the criteria so laid was in any way irrelevant, irrational,arbitrary or whimsical. That is all we have to see in this jurisdiction. In Ramana Dayaram Shetty v. The International Airport Authority of India andothers, AIR 1979 Supreme Court 1628, the Supreme Court observed as under:-"it must, therefore, be taken to be the law that where the Governmentis dealing with the public, whether by way of giving jobs or enteringinto contracts or issuing quotas or licences or granting other forms oflargess, the Government cannot act arbitrarily at its sweet will and, likeaprivate individual, deal with any person itpleases, butits action mustbe in conformity with standard or norm which is not arbitrary, irrationalor irrelevant. The power or discretion of the Government in the matterof grant of largess including award of jobs, contracts quotas, licences,etc. must be confined and structured by rational, relevant and nondiscriminatory standard or norm and if the Government departs fromsuch standard or norm in any particular case or cases, the action of thegovernment would be liable to be struck down, unless it can be shown bythe Government that the departure was not arbitrary, but was based onsome valid principle which in itself was not irrational, unreasonable ordiscriminatory. " and also" Obviously what Court meant to say was that merely because oneperson is chosen in preference to another, it does not follow that thereis aviolation of Article 14, because the Government must necessarilybe entitled to make a choice. But that does not mean that the choicebe arbitrary or fanciful. The choice must be dictated by public interestand must not be unreasoned or unprincipled. "in M/s. Kasturi Lal Lakshmi Reddy, etc. But that does not mean that the choicebe arbitrary or fanciful. The choice must be dictated by public interestand must not be unreasoned or unprincipled. "in M/s. Kasturi Lal Lakshmi Reddy, etc. v. The State of Jammu and Kashmir andanother, AIR 1980 Supreme Court 1992, the Supreme Court spelled out certaincircumstances under which the Government could depart from the rule that it could notgive a contract or sell or lease out its property for a consideration less than the highest thatcould be obtained for it, and said as under:-" We have referred to these considerations only illustratively, for theremay be an infinite variety of considerations which may have to betaken into account by the Government in formulating its policies and itis on a total evaluation of various considerations which have weighedwith the Government in taking a particular action, that the Court wouldhave to decide whether the action of the Govt. is reasonable and in publicinterest. But one basic principle which must guide the Court in arrivingatits determination on this question is that there is always apresumptionthat the governmental action is reasonable and in public interest andit is for the party challenging its validity to show that it is wanting inreasonableness or is not informed with public interest. This burdenis a heavy one and it has to be discharged to the satisfaction, of the Courtby proper and adequate material. The Court cannot lightly assume thatthe action taken by the Government is unreasonable or without publicinterest because, as we said above, there are a large number of policyconsiderations which must necessarily weigh with the Government intaking action and therefore the Court would not strike downgovernmental action as invalid on this ground, unless it is clearlysatisfied that the action is unreasonable or not in public interest. Butwhere it is so satisfied, it would be the plainest duty of the Court underthe Constitution to invalidate the governmental action. This is one ofthe most important functions of the Court and also one of the mostessential for preservation of the rule of law. " It will be, thus, seen thatthe criteria adopted by the respondents was equally applicable to all thebidders and no fault can be found with the criteria so laid. Coming again to the deficiencies pointed out in the bids of other parties it mustbe noticed that the policy is to give best possible service to the consumers with best of theforeign collaborators. Coming again to the deficiencies pointed out in the bids of other parties it mustbe noticed that the policy is to give best possible service to the consumers with best of theforeign collaborators. The Technical Evaluation Committee was of the view thatdeficiency in the case of four parties mentioned in the beginning of the judgment be waivedtaking into account their technical offers and the reputation of their collaborators. Thosedeficiencies were not essential and were merely ancillary and even the Selectioncommittee had waived the same which recommendation was accepted by therespondents. It is again a matter of policy and of discretion with the department so longas the action is not termed arbitrary. We find the discretion was rightly exercised inthe matter and complaint of the petitioner on that score has no value. In the case of BPLit was stated by the respondents that any foreign collaboration proposal required thesanction of the Reserve Bank of India (RBI) under section 28 of the Foreign Exchangeregulation Act, 1973 (FERA ). It may also require the departmental approval of one ormore of the departments of the Government. Depending upon the circumstances,applications of this nature were received by SIA or the RBI or FIPB. It is stated that evenwhen an application is received by SIA, the processing include the approval of the RBIunder section 28 of the FERA. What was, therefore, material was the submission ofthe application for technical collaboration by the bidder by a particular date. The Tenderevaluation Committee had decided that filing of the application before any of the threeparties aforesaid would meet the requirement of the bid, and thus, the bid of the BPL wasconsidered to be evaluated by the Tender Evaluation Committee. BPL in the firstinstance had applied to the RBI on 27/03/1992 when its application was returned byletter dated 20/04/1992 of RBI advising that an application be filed with SIA in thematter. BPL then filed this application with SIA on 22/04/1992. Mr. Nariman, learnedcounsel for BPL, referred to a press note dated 13/12/1992 prescribing differentforms for making applications to RBI and SIA to obtain approval for foreign investmentand/or foreign technology agreement. He also referred to a press note dated 26/03/1992 of the respondents which was as under :-DEPARTMENT OF TELECOMMUNICATIONSSIA (Secretariat for Industrial Approvals) in the prescribed format;ii) FIPB (Foreign Investment and Promotion Board);iii) RBI (Reserve Bank of India) in the prescribed format. He also referred to a press note dated 26/03/1992 of the respondents which was as under :-DEPARTMENT OF TELECOMMUNICATIONSSIA (Secretariat for Industrial Approvals) in the prescribed format;ii) FIPB (Foreign Investment and Promotion Board);iii) RBI (Reserve Bank of India) in the prescribed format. Respondents state that BPL submitted application to RBI in proper format theproof of which was enclosed to the tender documents, and there was nothing wrong inthat as alleged by the petitioner. Mr. Nariman also referred to the marks obtained by BPL vis-a-vis the petitionerand said BPL was much higher in ranking than the petitioner. The respondents havealso stated that it was not correct to say that all other bidders applied with the SIA and thatsome had in fact filed the application before FIPB as well and one more bidder apart frombpl had filed an application before the RBI. If we look at the Memorandumand Articlesof Association of the BPL (BPL Systems and Projects Ltd) it has in its objects to run cellulartelephone services. When its very first main object is "to design, develop, fabricate,manufacture, assemble, export from and import into India, buy, sell or otherwise deal inand to act as consultants and render services in connection with all kinds oftelecommunication equipments,. . . . " it will certainly include cellular telephones. We alsodo not find any error on the part of the respondents in treating the financial bid of BPL inorder if at that stage BPL dropped one of its three foreign collaborators (which were namedby it at the technical bid stage) as otherwise financial bid satisfied all the criteria anddropping of one of the collaborators made no difference. As regards Indian Telecom Pvt. Ltd. the respondents state that this companyhad given unconditional compliance statement and it was only in the covering letter whereit gave the view of the company regarding economic viability of the service and bidder'spreferences. Mr. Gupta said that that could be ignored so long the company had filedthe compliance statement. The decision was to offer it licence on non-exclusive basisif it was found otherwise eligible and that was upto the company to convey acceptanceof the offer. We, however, think that this what was recorded in the note of the Chairmanon 10/10/1992 after discussion with the Minister. The decision was to offer it licence on non-exclusive basisif it was found otherwise eligible and that was upto the company to convey acceptanceof the offer. We, however, think that this what was recorded in the note of the Chairmanon 10/10/1992 after discussion with the Minister. The respondents had proceededon the basis that M/s. Indian Telecom Pvt. Ltd. had asked for exclusive licence and nowthey are stating that that was merely a wish of the company expressed in covering letter,cannot be of any avail to the respondents. However, we do not find any error in therespondents coming to the conclusion that the company had to be offered licence on non-exclusive basis and in that way its acceptance could be obtained. This is an importantconsideration, however, which was missed in the case of Hutchison Max Telecom Pvt. Ltd. which we will discuss shortly. The case of Sterling Cellular, however, appears to us to berather strange. Therewere no strictures against the holding company of this company by the name Sterlingcomputers Ltd. in M/s. M and N Publications Limited v. Mahanagar Telephones Nigamlimited and others 1992 (24) DRJ 484 (D8) [ (1992) 4 DL 24] by this Court and thestrictures were only against MTNL and United India Periodicals Pvt. Ltd. (UPI) andunited Database (India) Pvt. Ltd. (UDI ). M/s. Sterling Computers Ltd. had got associatedwith UPI/udi in getting a supplementary agreement for publication of telephonedirectories for the cities of Bombay and Delhi. This supplementary agreement was struckdown. The Supreme Court in appeal (Sterling Computers Limited v. M/s. M and NPublications Limited and others. JT 1993 (1) S. C. 187) against that judgment also did notappear to have made any strictures. There was nothing on the record of the respondentsto suggest that any CBI enquiry was pending against this company. There was no FIR andno preliminary report adverse to the company and we feel the ghost of CBI has beenunnecessarily brought into play. The company appears to have been punished for no sin of its. However, since the company has not complained we will leave the matter at that. Regarding Mobile Telecom also the respondents have submitted that suggestionof this company in the alternative and giving its views and preferences could not be takennotice of so long the company had filed the compliance statement. However, since the company has not complained we will leave the matter at that. Regarding Mobile Telecom also the respondents have submitted that suggestionof this company in the alternative and giving its views and preferences could not be takennotice of so long the company had filed the compliance statement. We, therefore find that stand of the petitioner that any undue preference had beengiven to some of the companies cannot beupheld. We even otherwise do not find thatdeviation or relxation in the standards prescribed has resulted in any arbitrariness ordiscrimination. (See in this connection G. J. Fernandez v. State of Karnataka, (1990) 2scc 488 ). We do not think it is necessary for us to go into each and every deficiency asalleged by the petitioner we find that the action of the respondents had been bonafide. Motivation is providing of best possible service to the consumers. In view of our discussion, writ petition filed by India Telecomp Limited (CWP No. 4030/92) is partly allowed to the extent that marks given for rental as per parameter prescribed have to be given on the basis that security deposit figures were cumulative andnot non-cumulative for Bombay and Delhi and as mentioned above. There is no suchplea in the case of Adino Telecom Limited (CWP No. 4031/92) which is dismissed. Kanazia Digital Systems Pvt. Ltd. (CWP No. 4302/92) did not at all figure in the first stage of shortlisting. In the beginning of this judgment we have recorded the reasonsgiven by the TEC as to why this company was not found eligible to be shortlisted in the firststage itself. The tender of Kanazia was absolutely silent and gave no engineering details underthe relevant clause which required the following details :-"the Tenderer shall furnish complete technical details with allcalculations for engineering, planning (Cell and Frequency usingminimum spectrum bandwidth) and dimensioning of thesystem/network etc. The detailed calculations about link engineering, fieldstrength, fade margin, distribution of frequencies, etc. should beprovided. The proposal should indicate complete equipment details. The following information shall also be included in the proposal:i) The overall network structure for all the four metropolitan areas. ii) Splitting of cells. iii)Call processing mechanism including the assignment offrequencies. iv) Minimum Co-channel reuse distance. v) Diversity Methods Used. vi) Guaranteed MTTR on subscribers complaints. "the company itself had no experience of operating any cellular serviceanywhere. Mr. The following information shall also be included in the proposal:i) The overall network structure for all the four metropolitan areas. ii) Splitting of cells. iii)Call processing mechanism including the assignment offrequencies. iv) Minimum Co-channel reuse distance. v) Diversity Methods Used. vi) Guaranteed MTTR on subscribers complaints. "the company itself had no experience of operating any cellular serviceanywhere. Mr. Kaul, who appeared for the petitioner in this case, said that it was notnecessary to give the name of any foreign collaborator as the tender documents requiredname of the foreign collaborators, if any. He laid stress on the words "if any". Mr. Gupta,however, said that these words "if any" were mentioned as some Indian company mighthave some experience outside India and since no Indian company had any such experiencethe name of the foreign collaborator had to be mentioned. Since the important aspect ofthe tender documents had not been fulfilled by the petitioner in its tender, we do not thinkwe have to see any other deficiencies in the lender of Kanazia and we are of the opinionthat no fault can be found with the respondents in not shortlisting Kanazia even in the firststage. The case of M/s. Hutchison Max Telecom Pvt. Ltd. (CWP No. 163/93) isdifferent. Mr. D. D. Thakur for the petitioner (reference is now to Hutchison Max) said thathe was also pleading bias but in a different context, there being unreasonableness andnon-application of mind. He said the petitioner had been disqualified as the compliancestatement to the tender document was not submitted in full in the form prescribed. The proforma of the compliance statement as given with the tender documentswas as under :-"compliance STATEMENT________________annexure IVThis company hereby agrees to fully comply with all Technical. Commercialand General conditions of Tender document No. 44-24/92-MMC includingamendments/clarifications issued by the Department of Telecom without anydeviations and reservations. This company also hereby agrees to fully comply with all paragraphs ofchapter II: General conditions. Chapter III: Operating conditions. Chapteriv: financial conditions, and Chapter V: Tariffs of document number44-24/91-MMC (FINANCIAL) without any deviations and reservations. Signature of the authorised signatory of the bidder/operating company for and onbehalf of _____________________________________________________________ (Name of the company) (page 1 of annex IV) CONCLUDED "and what the petitioner gave was :"compliance STATEMENTThis company hereby agrees to fully comply with all Technical,commercial and General conditions of Tender document No. 44-24/91-MMC including amendments/clarifications issued by the Department of Telecom without any deviations and reservations. This company also hereby agrees to fully comply with allparagraphs of Chapter II: General conditions, and Chapter-V: Tariffs ofdocument number44-24/91-MMC (FINANCIAL) without any deviations and reservations. Signature of the authorised signatory of the bidder/operatingcompany. "the compliance statement which the petitioner submitted was though in the formprescribed but had omitted the words underlined in the compliance statement reproducedabove. It may noticed that in the first stage of technical evaluation done by the Tendersevaluation Committee the petitioner was successful and it was one among 16 companieswhich had been shortlisted by the Committee to whom the documents concerningfinancial bids were to be given. In fact it was in one of the 12 companies which hadsatisfied the technical criteria in the first stage and the Committee had recommended 4more companies taking into account their technical offers, the reputation of theircollaborators and though there were some deficiencies in their tender documents theywere nevertheless considered for shortlisting, thus making a total of 16 such shortlistedcompanies. Petitioner was there even in the shortlist of 14 parties recommended by theselection Committee. The tender documents for the second stage were also submitted well within thetime, the date of submission being 17/08/1992. On 11/09/1992 the petitionerwrote a letter addressed to the Minister of State for Communication, Government of India,and while drawing reference to the tender in question, stated that its collaborator M/shutchison Telecom Limited had brought to its notice a typographical error which had ledto the inadvertent omission of words "chapter III: Operating Conditions, Chapter IV:financial Conditions" from its compliance statement. The petitioner said that this wasan inadvertent error and should not be misconstrued as non-compliance or deliberateomission on itspart of any sort. It said it would like to confirm once again its seriousnessof intent and all-out effort in presenting the best opportunity on India Cellular in line withdot's objectives. The petitioner, therefore, sought to correct the typographical error in the compliance statement. The concluding para of the letter reads as under:- "we reiterate and reconfirm our unequivocal compliance without anyreservations and deviations with the said tender conditions. Accordingly,enclosed herewith is a corrected Compliance Statement duly signed bythe authorised signatory of the Company which may kindly be taken onrecord. "it may noticed that for four different cities of Bombay, Delhi, Calcutta andmadras, the petitioner had submitted four separate tender documents and the error existedin all the four Compliance Statements which the petitioner sought to correct. Accordingly,enclosed herewith is a corrected Compliance Statement duly signed bythe authorised signatory of the Company which may kindly be taken onrecord. "it may noticed that for four different cities of Bombay, Delhi, Calcutta andmadras, the petitioner had submitted four separate tender documents and the error existedin all the four Compliance Statements which the petitioner sought to correct. Againon 16/09/1992 the petitioner wrote letter to the Secretary Dot and Chairmantelecom Commission to the same effect as abovementioned, and it was stated that theomission was due to typographical/clerical mistake and that may not be taken as amountingto non-compliance from the side of the petitioner. The petitioner reiterated that by makingthis clarification the petitioner was not proposing any change whatsoever in its financialbid. Yet another letter dated 18/09/1992 was written to the Chairman, APEXTelecom Committee, on similar lines. Nevertheless, the petitione. came to know it hadbeen exlcuded from the contest and it wrote a letter dated 15/10/1992 to thechairman, Telecom Commission, complaining that there has been a grave miscarriage ofjustice which has resulted in serious injury to it and its principals Hutchison Telecom Ltd. ,hong Kong, and Max India Ltd, New Delhi. It sought opportunity to present its case personally to know and understand fully the reasons for the rejection of its bids. Thepetitioner also brought to the notice of the Chairman in its letter that (1) Dot had givenhigher rating to its bid for Bombay and Delhi, (2) Possible damage to the Image of thegovernment, and (3) Foreign collaborator was ready to invest $500 million in India, and (4) since the bid of the petitioner had received the higher overall rating for Delhi andbombay after thorough evaluation by Dot as compared to other bids, an opportunity wassought to meet the Chairman. A letter dated 16/10/1992 was also addressed bythe petitioner to the Prime Minister of India stating that it could only be a typographicalerror otherwise in the tender documents submitted by the petitioner complete details hadbeen given. A letter of the same date was also addressed by the foreign collaboratorhutchison Telecommunications Limited, Hong Kong, to the Prime Minister of India. Then on 17/10/1992 the petitioner wrote another letter to the Prime Minister of Indiastaling that it had indeed been a great shock for it to learn that its tender bid had beenrejected by the Government. A letter of the same date was also addressed by the foreign collaboratorhutchison Telecommunications Limited, Hong Kong, to the Prime Minister of India. Then on 17/10/1992 the petitioner wrote another letter to the Prime Minister of Indiastaling that it had indeed been a great shock for it to learn that its tender bid had beenrejected by the Government. Then there is a letter dated 21/10/1992 to the Primeminister for Communications by the petitioner again telling him that if the petitioner didnot intend to fully comply with the terms of the tender, they would not have given detailsas required. By letter dated 2/11/1992 the petitioner thanked the Minister forcommunications for granting it opportunity to place its case before him and at the sametime wanted another opportunity for the purpose. The petitioner also sought appointmentwith the Chairman, Telecommunication Board, by letter dated 16/12/1992. Mr. Thakur submitted that the petitioner in the present case had not invoked thejurisdiction of this Court in a matter of policy, and by writing letters to the respondentsfor correcting the typographical error in the compliance statement the petitioner was notmaking any modification of substantial terms of the tender, nor it amounted even to anycounter offer or alteration or even amendment of any clause of the tender documents. Hesaid the petitioner came to know of the error when he was informed telephonically by itsforeign collaborator. Compliance statement, Mr. Thakur said, was akin to verificationof pleadings (Order 6, Rule 15 of the Code of Civil Procedure) and in this connection hereferred to various decisions of the courts to the effect that object of verifying a pleadingwas to fix, on the party verifying, responsibility for the statement that it contained. Hesaid omission to verify was not fatal. It was at best an irregularity not affecting the meritsof the case and could be rectified by permitting the party concerned to make good forthe deficiency and could not be aground for rejecting the plaint. Mr. Thakur also saidthat in the case of defective verification instead of rejecting the plaint the court normallycalls upon the party to remove the lacuna by adding a supplementary verification or byseeking amending under Order 6 Rule 17 of the Code of Civil Procedure. He said sameprinciple could have been applied in the present case when defect was noticed in thecompliance statement. Referring to the notes on the file of the Government Mr. He said sameprinciple could have been applied in the present case when defect was noticed in thecompliance statement. Referring to the notes on the file of the Government Mr. Thakur said it was forthe first time on 8/09/1992 when the three Members and the Chairman, Telecommunications Board, noted as under respecting the case of the petitioner:- " (I) M/s. Hutchison Max India Ltd. in their bid document (Annexureiv) have not given proper and full compliance. The TEC has observed"compliance to Chapter III (Operative Conditions) and Chapter IV (Financial Conditions) has not been indicated by the bidder". Thus,it clearly shows that they have not complied with these importantconditions which forms the very basis of the financial bid. It is evidentthat the bidder has serious reservations about financial conditions andoperative conditions and if granted a licence, there is a possibility oflitigation. "further note though suggested that the whole matter was to be referred to the highpowr committee nominated by the Minister of State for Communications for its consideration and for making final recommendations to the Government regarding the selectionof the licencees, it was not done and the matter was again examined in the Telecommunication Department itself. Again on 9/10/1992 the Chairman, Telecom Commission,recorded the following note regarding the petitioner :-" (a) Hutchison MAX Non-compliannce of Operative and Financialconditions laid down in Chapter III at the time of opening of Financialbids. They have recently accepted these conditions, throught a letter,explaining their earlier non-compliance as typographical error. "this ultimately was approved by the Minister and the tender of the petitionerstood rejected:continuing Mr. Thakur said that the conditions contained in Chapter III andchapter IV of the tender documents stood otherwise complied in view of the data given inthe tender documents. Chapter III related to operating conditions and Chapter IVfinancial conditions. The omission of Chapter III and Chapter IV in the Compliancestatement did not amount to repudiation of the terms of the tender when all the particularswere there. Mr. Thakur also said that in the first bid a bank guarantee in the sum of Rs. 2crores had been furnished and there was no reason to furnish the performance guarantee ifthe petitioner was not to comply with the whole of the terms of the tender. Referringto each of the Clauses of Chapters III and IV Mr. Thakur said that the respondents couldnot have even remotely suspected of any repudiation of the terms of the tender,. 2crores had been furnished and there was no reason to furnish the performance guarantee ifthe petitioner was not to comply with the whole of the terms of the tender. Referringto each of the Clauses of Chapters III and IV Mr. Thakur said that the respondents couldnot have even remotely suspected of any repudiation of the terms of the tender,. He saidbefore even the tenders could be provisionally selected he had already written to therespondents 1 and 2 about the omission being a typographical error and there appearsto be no justification for the respondents not to consider the tender of the petitioner. Healso said that there were three stages: (1) submission of the tender, (2) shortlisting, and (3) licensing agreement. This licensing agreement which was to be executed per forcewould contain all the terms and conditions of the tender including Chapters III and IVthereof. He said when on selection the petitioner was to sign the licence agreementcontaining all the terms there was no reason why in the compliance statement referenceto Chapters III and IV would have been omitted by the petitioner unless it was an error byinavertence. Mr. Thakur also referred to equitable principles and said the omission shouldhave been ignored by the respondents and in this connection he referred to some moredecisions but the view which we are taking of the matter it is not necessary to refer to them. Then Mr. Thakur pointed out that it is not that the respondents had strictly went by theterms of the tender documents and pointed out flaws in the tender documents of someother tenderers whose tenders had yet been accepted. He said in the case of Indiantelecom Pvt. Ltd. which was successful for Delhi it had said that it would like to act asa single operator which was deliberate statement and at variance with the compliancestatement. Yet on Minister of State for Communication's intervention the tender documentwas nevertheless okayed. Mr. Thakur also pointed out that the Technical Evaluationcommittee had Okayed 12 tenders for being shortlisted but then advised that four moreparties may also be considered though there were deviations in their tender documents toan extent and these four partics were also included in the short-listing. Mr. Gupta, learned Solicitor General, said that importance of Compliancestatement could not be given a go by and it could not be said that the action of thedepartment was unreasonable or arbitrary. Mr. Gupta, learned Solicitor General, said that importance of Compliancestatement could not be given a go by and it could not be said that the action of thedepartment was unreasonable or arbitrary. He said the question was between the strictand lenient view and reasonable and possible view. Mr. Gupta said whether the omissionwas genuine or not it amounted to amendment of the bid document and the respondentswere extremely apprehensive and were concerned as to what others would say ifcompliance Statement was got corrected. We think the question is, what should be rightthat should weigh in the mind of the department and not what others would say. Continuing Mr. Gupta said it was possible that the error was typographical buthe said it was for the authority to judge whether it was type error or not and it could notbe said that the view was irrational, arbitrary and whimsical. He said it was not a casewhere it could be said positively that it was a type error. He said the petitioner hadfiled four different documents for four cities separately and each one of which containeda Compliance Statement having the same error which pointed out that it could bedeliberate. He also said that the petitioner was barred by laches. This argument of lachesdoes not appear to have any basis when all this period the petitioner has been knocking atthe doors of the authorities and they would not even acknowledge his letters. Mr. Gupta also referred to the case of G. J. Fernandez case [ (1990) 2s. C. C. 488]and said if relaxation was of same situation and same clause, the department could not sayone case and yes in another. He said principle could be applied to all the parties equallyand only if relexation did not cause prejudice to any one. Mr. Gupta also said that there could be two set of clauses (1) essential and (2)ancillary. As far as ancillary clauses are concerned it was upto the authority to relaxor not to relax. Mr. Gupta said filing of Compliance Statement being in the form ofdeclaration was a clause of substance and could not be ignored. He said it was a vitalclause and the tenderer must give that statement that he agreed to all clauses withoutreservation. That he said was the idea and it was specifically provided as to who was tosign the Compliance Statement. Mr. He said it was a vitalclause and the tenderer must give that statement that he agreed to all clauses withoutreservation. That he said was the idea and it was specifically provided as to who was tosign the Compliance Statement. Mr. Gupta said apex body had also recommended thatdeclaration from every tenderer should be insisted in the form prescribed. He said it wasimmaterial if another Compliance Statement was enclosed along with letter dated 11/09/1992 by the petitioner. He said post tender modification could never beallowed, compliance statement being a substantive clause. Alternatively he said even ifconsidered to be subsidiary, then respondents had absolute right and it was open to themto waive this or not. He said relaxation was not a matter of right and if the departmentsaid no it could not be termed as arbitrary. We may also note that Mr. Thakur asserted that Compliance Statement was notof material substance and no prejudice could have been caused to any one of thecompetitors if the amendment had been allowed. He also referred to section 4 oftelegraph Act, 1885. which he said otherwise bars any one doing any other businesswithout permission under that Act. Concluding Mr. Thakur said: (1) Compliance Statement was non-essential, (2)a right existed in equity in favour of thepetitioner which right he said emanated fromarticle 366 (10) of the Constitution. He said law of equity was common law right andwas applicable. In this connection he relied on a decision of the Supreme Court in (1961)IS. C. R. 158 (173 ). (3) Pointing to other companies Mr. Thakur said they were givenfavourable consideration which was denied to the petitioner for no reason when there wasonly a type error. (4) Referring to the note in the file of Dot, he said it was wrong to assumethat there was serious apprehension of litigation if correction was allowed to be made. This consideration he said was also irrelevant. We need not analyse or comment upon on each of the arguments as it appearsto us that the department has been rather hyper-technical in its approach. Compliancestatement is akin to verification in a pleading and it cannot be placed at a higher pedestalthan verification. This consideration he said was also irrelevant. We need not analyse or comment upon on each of the arguments as it appearsto us that the department has been rather hyper-technical in its approach. Compliancestatement is akin to verification in a pleading and it cannot be placed at a higher pedestalthan verification. The basic idea was to get the best operator for the job and when thisdefect came to the notice of the department well before the selection was made, it couldhave even asked the petitioner to correct the error and not to reject the tender altogetheron a ground which appears to us to be rather flimsy. No public interest would have sufferedby that process. As a matter of fact in the letters written by the petitioner to the departmentthe petitioner did file proper and correct Compliance Statement. That should have beentaken notice of by the department. Public interest rather lie that way when in the markingsystem evolved by the Technical Evaluation Committee the petitioner was much higherthan other parties who were ultimately selected. From the record it appears to us it waspurely a mistake unintentionally made. Compared to other tenderers whose tenderdocuments also suffered from various flaws the petitioner has not been given a fair andequitable treatment and has been made out a class by itself. The action of the departmentwould appear to be rather arbitrary and irrational, and even whimsical. We may also note that in the case of Indian Telecom Pvt. Ltd. reference wasto be made to it if it was prepared to accept the licence on non-exclusive basis and its offerwas not outright rejected on the ground that it desired an exclusive licence. Similarly, inthe case of Tata Cellular its case was not rejected for Calcutta and Madras on that very ground and it was considered though this company was granted licence for the city ofdelhi. If these and other deficiencies of several bidders could be ignored or waived thereappears to be no reason why similar treatment could have been granted to M/s. Hutchisonmax Telecom Pvt. Ltd. The writ petition of M/s. Hutchison Max Telecom Pvt. Ltd. (CWP No. 163/93)has, therefore, to be allowed. It was contended that if both India Telecomp Limited and M/s. Hutchison Maxtelecom Pvt. Ltd. come in ranking then two of the eight companies so far selected mighthave to be struck out from the select list. It was contended that if both India Telecomp Limited and M/s. Hutchison Maxtelecom Pvt. Ltd. come in ranking then two of the eight companies so far selected mighthave to be struck out from the select list. If both these companies or either of the twocome (s) in the select list on merit, then they or either of the two companies have (has) to begiven their (its) due place. Civil Writ Petitions Nos. 4031/92 and 4302/92 are dismissed. Mandamus is,however, issued in C. W. P. No. 4030/92 to consider afresh grant of licence to the petitioner (India Telecomp Limited) after evaluating marks for rental on the basis that figures ofdeposits from subscribers given for Delhi and Bombay were cumulative other things, however, remaining the same. Mandamus is also issued in C. W. P. No. 163/93 to reconsider the case of M/s. Hutchison Max Telecom Pvt. Ltd. on the basis that Compliancestatement filed by it was in order. To that extent the order granting licence to eightparties, two parties each for the cities of Bombay, Delhi, Calcutta and Madras, is set aside. We leave the parties to bear their own costs.