DALVEER BHANDARI, J. ( 1 ) THESE petitions have been filed in this court with the prayer that Notification of the award of contract dated 2nd April, 1993, given to M/s Nestor Pharmaceuticals Pvt. Ltd. , ( 2 ) BE quashed. Brief facts which are necessary to dispose of these petitions are recapitulated as under:- Union of India, respondent no. 1, has initiated a project styled as "child SURVIVAL AND SAFE MOTHERHOOD PROJECT . Keeping in view the objectives of providing the requisite medical care to the infants and young mothers, under the said project, respondent no. 1 planned to supply medicine entirely free of cost to the women during their pregnancies and after their delivery, and infants particularly in the remote and backward corners and areas of the country. ( 3 ) THE said project has been categorised in two groups styled as Kit A and Kit B. In Kit A and Kit B, some basic medicines were to be given to the women and infants. Kit A consisted of the following items:- I) Tablets Iron Folic Acid Large ii) Tablets Iron Folic Acid Small iii) Vitamin A Solution I (X) ML. Bottles iv)O. R. S. (Oral Rehydration Salt) v) Contramaxoie tablets Paediatrics Kit B consisted of the following 11 items: i)Tablets Methyl Ergometrine Maleate 0. 5 MG ii) Tablets Chlorphenramine Maleate, 4 mg. iii) Tablets Paracetamol 500 Mg. iv) Tablets Anti Spasmodic. v) Injection Methyl Ergometrine Maleate. vi ) Tablets Mebendazole 100 Mg. p73 vii)Chloramphenicol Eye Aplicap viii)Powdercetrimide ix) Ointment povidine Iodine 5%, 25 gm tube x) Cotton Bandage 4 cm x 4m. xi)Cotton Absorbent Roll of 500 Gms. ( 4 ) FOR the purchase of Kit A and Kit B, the Directorate General of Supplies and Disposal, an authority in the Department of Supply, Ministry of Commerce, Government of India, issued international invitation for bid inviting quotations inter alia, for Kit B. The said invitation consisted of certain drugs/medicines for the said project. The invitation for bids was open to all supplies from eligible source countries such as members of the World Bank, Switzerland and Taiwan, China, etc. Supplies were to have their origin in the abovementioned countries. Kits for the said project are to be suplied at four different groups of destination all over India which are classified in the said invitation to a bid into four groups, line-1, line-2, line-3 and line-4. Supplies were to have their origin in the abovementioned countries. Kits for the said project are to be suplied at four different groups of destination all over India which are classified in the said invitation to a bid into four groups, line-1, line-2, line-3 and line-4. Under the said invitation, the the bids were to be received upto 1. 30 P. M. on 2nd December, 1992 and bids were to be opened in the presence of participating bidders at 3 P. M. on that day. The instructions to bidders were given and the bidders were under an obligation to complete all the bidding documents in order to get their bids considered by respondent no. 1. The supplies pertaining to Kit A had to be made in April-May, 1993 and supplies pertaining to Kit B had to be made in October-November, 1993. ( 5 ) ACCORDING to requirements of bid documents, bank guarantee had to be furnished by the bidder or demand draft issued by the bank was to be filed along with the tenders towards the bid money: The said bid money was to be furnished separately for supply to each of the regions styled as line to Respondent no. 2 indicated in the brochure. The bid money was to be furnished for each region so each line was to be treated separately. The submissions of the petitioners in these petitions are that they submitted tenders for the supply of Kit A and Kit B of the said project. According to the petitioners in Goa Antibiotics, the tenders were completed in all respects and their bid was substantially responsive. It is submitted by the petitioners that the bid security in the shape of bank guarantee totalling for the sum of Rs. 9,72,000. 00 for both the tenders and demand drafts aggregating for the sum of Rs. 18,99,200. 00 were inoriginal, tendered by Mr. R. K. Chawla to the concerned official of respondent no. 2, namely, Mr. Amrit Lal, Section Officer at 1. 30 P. M. on2,12. 1992,when he was opening the tender box to collect the tender. According to the petitioners, Mr. Amrit Lal was requested to accept the envelope containing DDs/pay Orders which were got prepared by the petitioners from Grindlays Bank, Connaught Place at about 1. 10 p. m. The details of the pay orders have been enumerated in the writ petition. 1992,when he was opening the tender box to collect the tender. According to the petitioners, Mr. Amrit Lal was requested to accept the envelope containing DDs/pay Orders which were got prepared by the petitioners from Grindlays Bank, Connaught Place at about 1. 10 p. m. The details of the pay orders have been enumerated in the writ petition. The said bank drafts were issued to Mr. Chawla as per the information supplied by him to petitioners no. 2 at 1. 10 p. m. on 2. 12. 1992. Mr. Amrit Lal instead of accepting the envelope containing drafts and pay orders asked the representatives of the petitioners no. 1 to contact the PRO. The PRO when approached, asked to contact Shri Ramaswamy, Director (Co-ordina p73 tion) for acceptance of the tender. The Director (Co-ordination), in turn, asked the representative of petitioners no. 1 to see Mr. A. K. Srivastava, Director (World Bank ). Mr. Srivastava was approached at 1. 35 p. m. Since he was having his lunch, therefore, he directed to see Mr. Aneja/mr. Ghosh. It is submitted by the petitioners that it was assured by Mr. Srivastava that in the event of offer being found the lowest, they would accept the bid security. It is submittted that along with the bid, the petitioners also submitted all the required documents as per tender conditions, a no deviation certificate as per the tender conditions, performance details, copies of the licences, tie up arrangement licences and the financial statements, etc. According to the petitioners, his bid was substantially responsive in all respects. ( 6 ) WHEN the tenders were opened, the petitioners learnt that its tender was the lowest amongst all in almost all the lines i. e. the supplies zones for both the categories of Kit A comparative table for indicating the respective prices by all the tenderers. ( 7 ) IT is submitted by the petitioners that they were shocked and surprised to learn that despite the fact that they had quoted the lowest rates, still their tenders were rejected. It is further submitted by the petitioners that it had also offered to give benefits of the reduced customs duty, octroi, etc. to the purchaser and according to its information, no similar offer was made by respondents no. 3 and 4. According to the petitioners, respondent no. It is further submitted by the petitioners that it had also offered to give benefits of the reduced customs duty, octroi, etc. to the purchaser and according to its information, no similar offer was made by respondents no. 3 and 4. According to the petitioners, respondent no. 3 was awarded contract for making supply to the tune of 80 per cent of the total order for Kits in category B and the respondent no. 4 was awarded order for making supply for the remaining 20 per cent of the total Kits in this category. ( 8 ) AGGRIEVED by this order, the petitioners filed this writ petition before this court on 12. 7. 93. The writ petition came up for admission hearing on 16th July, 1993. This court issued a show cause notice to the respondents. In pursuance of the show cause notice, reply was submitted by the respondents. It is submitted by the respondents that respondents 1 and 2 have procured the goods for Ministry of Health and Family Welfare, Government of India under their project named as "child Survival and Safe Motherhood" under the financial aid of World Bank for distribution of goods. This contains medicines and other items to various consignees located all over India. It is submitted that respondent no. 2 invited bids through International Competitive Bidding against indent of Ministry of Health and Family Welfare for procurement of 1,23,200 nos. of Kit A and 40,800 nos. of Kit B vide ICB tender. The tenders were opened on 2. 12. 92. It is further submitted in the reply that as per the requirements and terms and conditions of the said bid document, the bidders were necessarily required to give bid security along with their bid for required amount as specified against each line item in any of the form (s) and mode prescribed in the Bid document, including by way of Demand Draft or Bank Guarantee. As per the requirement of terms and conditions of the Bid documents, the bidders were required to give the bid security for each line item quoted either individually for each line item or totally for all line items quoted but the same must be given alongwith their bid and not separately as alleged by the petitioners. The respondents have denied that the tender documents submitted by the petitioners were complete in all respects. The respondents have denied that the tender documents submitted by the petitioners were complete in all respects. It is further submitted that no document or letter of authority was given in the name of Mr. R. K. Chawla, alongwith their bids in both the tenders. ( 9 ) IN the reply, it is further submitted that the petitioners along with their tender furnished a bank guarantee for Rs. l,52,000. 00 for line item no. 1 and Rs. 4,56,000. 00 for line item no. 6 only against their tender for Kit A and Rs. 3,22,400. 00 for line item no. 2 and Rs. 41,600. 00 for line item no. 4 only against their tender for Kit B respectively. No bank draft or demand draft as stated by the petitioners was submitted by the petitioners alongwith their bids in both the tenders for Kit A and Kit B. The statements of the petitioners contrary to this are false, misconceived and hence denied. ( 10 ) THE petitioners deposited their tenders for both the Kit A and Kit Bin the tender box by the scheduled time and date i. e. 1. 30 p. m. on 2. 12. 92. ( 11 ) IT is submitted that the petitioners submitted six bank drafts valuing Rs. 18,99,200/ -on 3. 12. 92 after opening all the bids. ( 12 ) IN the reply, it is further mentioned that it was the responsibility of the petitioners to have submitted complete quotation along with the bid security as per the terms and conditions contained in the bid documents from 16. 10. 92, the date from which the bid documents were available for sale till the due date of submission upto 1. 30 p. m. of 2. 12. 92. The petitioners have admittedly not filed all the bid documents before the due date and now the petitioners cannot be permitted to take advantage of their own wrong and submit to this court that in the larger public interest, the respondents ought to have waived the requirement or accepted the documents even after the due date of submission of those documents. It is further submitted that bids in both the tenders were to be opened at 3 p. m. on 2. 12. 92 and all the interested bidders ought to have filed all the necessary documents before the due date, including the bid security before this period. It is further submitted that bids in both the tenders were to be opened at 3 p. m. on 2. 12. 92 and all the interested bidders ought to have filed all the necessary documents before the due date, including the bid security before this period. It is pointed out in the reply that bids of the petitioners were incomplete as per required terms and conditions of the bid documents. The reasons have also been indicated for ignoring the bid of the petitioners as far as the kit A is concerned. The reasons are enumerated as under: - A) the petitioners did not give proof of manufacturer (drug licences) for any item of the kit; (b) the petitioners did not give letter of authority and proof of manufac- turer (drug licences) of other manufacturer, if any. The authority that is given by the petitioners are in favour of M/s S. M. C. Health Aid Distributors to bid, negotiate and conclude the contract on their behalf, but the petitioners quoted themselves as manufacturers. The details of plant and machinery for items of Kit A, if any, to be supplied by their agents M/s S. M. C. were not given by the petitioners; (c) Bid securities for line items 1 and 6 valuing Rs. 1,52,000. 00 and Rs. 4,56,000. 00 respectively were furnished by the petitioners along with their bids. For the remaining line items, the petitioners did not give bid securities along with their bid. Even in one bank guarantee given by the petitioners for Rs. 1,52,000. 00 for line item no. 1, the validity of the bank guarantee was shown as 60 days beyond bid validity i. e. 1. 2. 93 and this date is much shorter than the required bid security validity of 2. 5. 93. (d) The petitioners did not give the name and address of their bankers, as required in the terms and conditions of the Bid Documents clause 9 (h) of Section-I of the Instructions to bidders. (e) The performance statement given by the petitioners was incomplete as it did not indicate the actual date of completion of supplies of orders received by them. (f) While giving the Break-up of Free delivery at site prices, the petitioners did not show Excise Duty and other levies elements and stated the same to be included in their Ex-factory prices. (e) The performance statement given by the petitioners was incomplete as it did not indicate the actual date of completion of supplies of orders received by them. (f) While giving the Break-up of Free delivery at site prices, the petitioners did not show Excise Duty and other levies elements and stated the same to be included in their Ex-factory prices. g) The petitioners quoted delivery period as commencing within 60 days and completion within 360 days as against the Bid Documents required delivery of 50 per cent quantity during April/may, 1993 and balance 50% quantity during October/november, 1993. A) Out of 11 items of Kit, the petitioners gave proof of manufacturer i. e. Drug Licences for only 3 items (a, c, and f) of the Kit. Rest of the items were not appearing in Drug Licence given by the petitioners. b)The petitioners did not give letter of authority and proof of manufacturer (Drug licences) of other Manufacturer, if any. The authority letter given by the petitioners are in favour of M/s S. M. C. Health Aid Distributors to bid, negotiate and conclude the contract on their behalf but the petitioners quoted themselves as manufacturers. Details of Plant and machinery for items of Kit B, if any, to be supplied by their agent M/s SMC were not given by the petitioners. c) The petitioners gave Bid securities for line item 2 and 4 only in form of Bank Guarantees for Rs. 3,22,400. 00 and Rs. 41,600. 00 respectively along with their bid. Bid securities for remaining line items were not given by the petitioners along with their bid. d) The petitioners did not give the name and address of their bankers as required in terms and conditions of Bid documents clause 9 (h) of Section-1, Instructions to Bidders. e) The performance statement given by the petitioners was incomplete as they did not indicate the actual date of completion of supplies of orders received by them earlier. f) The petitioners offered a special discount of Rs,50. 00 per Kit for allowing import of item (a) of the Kit without payment of Customs Duty being deemed export for which required certificate/ papers shall be provided by the respondent no. 1 and 2. The prices (whether Free Delivery at Site or Ex-factory prices inclusive of Excise duty and other levies or otherwise) at which this discount was applicable was not indicated by the petitioners. 1 and 2. The prices (whether Free Delivery at Site or Ex-factory prices inclusive of Excise duty and other levies or otherwise) at which this discount was applicable was not indicated by the petitioners. In the Free delivery at site prices, the petitioners did not indicate Excise duty and other levies elements separately and stated to be included in the free delivery at site prices. g) The petitioners quoted delivery period as commencing within 60 days and completion within 360 days as against the Bid documents required delivery of 50% quantity during April/may, 1993 and balance 50% quantity during October/november, 1993. ( 13 ). The bid of the petitioners in both tenders for Kit A and Kit B were totally inadequate, incomplete and substantially unresponsive in terms of requirements of the bid documents. ( 14 ) IT is further submitted that the delivery period quoted by the petitioners commencing within 60 days and completion within 360 days from the date of placement of the orders was not meeting the tender enquiry requirements. The required delivery as per the bid document was 50% quantity to be supplied during April-May, 1993 and balance 50 per cent to be supplied during October-November, 1993. ( 15 ) AFTER giving all the details, the respondents have stated that there is no question of accepting totally incomplete and substantially unresponsive bids of the petitioners and the bids of the petitioners were rightly rejected.-Respondents I and 2. have further submitted that tie-up arrangement of the petitioners with M/s Hindustan Trust Pvt. Ltd. indicated by the petitioners in their bid has not been substantiated. Neither any authority letter or other documents pertaining to M/s Hindustan Trust were given by the petitioners along with their bids. ( 16 ) RESPONDENT no. 3 Nestor Pharmaceutical Pvt. Ltd. had also filed a counter affidavit in which it is stated that respondent no. 3 was the only successful bidder to Kit B, Line 2 and 3 who had submitted the complete tenders in all respects to the tender notice and they were rightly given the tenders. ( 17 ) RESPONDENT-NOT has further mentioned that the petitioner was not eligible to bid since he could not and did not fulfil the requisite eligibility and qualification, as prescribed in para 12 and 13 of the bid documents. ( 18 ) RESPONDENT no. ( 17 ) RESPONDENT-NOT has further mentioned that the petitioner was not eligible to bid since he could not and did not fulfil the requisite eligibility and qualification, as prescribed in para 12 and 13 of the bid documents. ( 18 ) RESPONDENT no. 3 Nestor Pharmaceutical Pvt. Ltd. had also filed reply to the writ petition. A preliminary objection was taken that writ petition filed by the petitioners was not maintainable because the petitioners did not fulfil the requisite condition of eligibility and qualification as prescribed in para 14 of the bid document and the petitioners bid was found unresponsive. Therefore, the writ petition is not maintainable. In the reply, it is mentioned that the petitioners did not approach the court for necessary relief til I the contract had been executed fully for the period of May-June, 1992 and no relief can be granted at this belated stage, and filing of the petition at this belated stage is clear abuse of the process of the court. Respondent no. 3 pointed out that even on merits, the petitioners have no case because the petitioners bid was found to be totally unresponsive. ( 19 ) THE petitioners have reiterated in the rejoinder that documents submitted by the petitioners were substantially responsive and substantially complete in all respects. ( 20 ) THE petitioners have filed this petition against the actions of respondents I and 2 in selecting respondent no. 3 for award of contract for supply of Kit B, Line 2 and 3 and respondent no. 4 for award of contract for supply of Kit B in Line 4, and ignoring and by passing the bid of the petitioners. M/s Ajanta Pharma Ltd. and others. It is submitted that the petitioners bid was substantially responsive bid and lowest evaluated bid. They have the necessary experience and expertise to perform the contract satisfactorily. Further, the bid was complete in every respect and they had furnished the necessary security for. performance of the contract. In terms of the conditions contained in invitation to bid, it is mandatory on the respondent no. 1 and 2 to select the petitioners bid for award of the contract. Respondent nol and 2 invited parties from India and overseas to bid vide. invitation to bid for the Project child Survival and Safe Motherhood. performance of the contract. In terms of the conditions contained in invitation to bid, it is mandatory on the respondent no. 1 and 2 to select the petitioners bid for award of the contract. Respondent nol and 2 invited parties from India and overseas to bid vide. invitation to bid for the Project child Survival and Safe Motherhood. The Kits for the said Project were to be supplied at four different destination which were classified in the said invitation to bid into four groups designated as line-1, line-2,line-3 and line-4. On 30. 1 1. 92, the petitioners sent a letter to respondent no. 2 submitting their offer for supply of Kit B in respect of the said project for Line-2, Line-3, Line-4 enclosing therewith the entire and complete tender with documents and Annexures and also enclosing bank guarantee for a sum of Rs. 5,09,600. 00 by way of bid security. The bids were submittted well within time The bid was opened at3p. m. on 2. 12. 1992 in the presence of the participating bidder. The petitioners uniform bid of Rs. 1,050. 00 for all the three items for which they. tendered, was the lowest evaluated bid. On 2. 3. 93, the decision could not take place and the confirmation regarding extension of validity of the petitioners offer was to reach respon- dent no. 2 within 10 days thereof. The petitioners refering to the letter dated 2. 3. 1993 extended the validity of their offer upto 2. 4. 93 on the same terms and conditions as per their original bid. Until 9. 4. 93, the petitioners did not hear any thing from the respondents and on 10. 4. 93, they learnt that respondent no. 2 had accepted the offer of respondent no. 3 in respect of the supply of said Kit Bin line 2, line 3 at a higher rate than that quoted by the petitioners and offer of respondent no. 4 was accepted in respect of line 4 although the same was higher than quoted by the petitioners. Immediately, thereafter on 28. 4. 93, the petitioners filed the writ petition which came up before this court for admission hearing on 29. 4. 93. This court issued notice on 29. 4. 93. Reply to the writ petition was filed by 8 respondents 1 and 2, and respondent no. 3. It is submitted by respondents no. Immediately, thereafter on 28. 4. 93, the petitioners filed the writ petition which came up before this court for admission hearing on 29. 4. 93. This court issued notice on 29. 4. 93. Reply to the writ petition was filed by 8 respondents 1 and 2, and respondent no. 3. It is submitted by respondents no. 1 and 2 that nomenclature, contents and specifications of Kit B as given by the petitioners are incorrect as it contains a number of mistakes and errors in serial nos. 3,5 and 10. Besides, the serial nos. indicated now by the petitioners are different than that contained in bid documents. The petitioners claimed that they are manufacturers of 7 items listed in serial no. 2 to4and 6 to 9 and they intended procuring the balance 4 items listed at serial no. 1,5, 10 and 11, from local market and incorporating them in the kits for supply is without any proof. The petitioner firm is quoted as manufacturer of all the I I items of the Kit but they could furnish the drug licences for three items of the Kit, namely, No. item no. 2,3 and 6, (item nos. b, c and f ). Since it is necessary and mandatory in terms of Drug Control Act of Government of India for manufacturer to possess drug licences for the items to manufacture the item, furnishing drug licences for only three items of the Kit clearly indicated that they are capable of manufacturing only these three items. For balance 8 items of the Kit, the petitioners firm neither furnished their own drug licences nor did they furnish letter of authority and drug licences of other manufacturers which was a vital requirement of bid documents. It is further submitted in the reply that as per the terms of the bid documents, the quoting firm should either be the manufacturer themselves for all items of the Kit or if they are quoting the product of some other manufacturer, they were required to furnish letter of authority and details of drug licences as per stipulated format given in the bid documents along with their bid as mentioned in clause 3. 2 Section II of schedule of requirements of bid documents reads as follows:- "the manufacturer who quotes or on whose behalf the bid is submitted should be the manufacturer of at least two drug items of the Kit, the performance statement. Equipment and Quality Control Proforma as required for in Clause 9 (b) of Section I part I, Authority letter as required as per clause 9 (g) of section 1 part 1 must be submitted in respect of each manufacturer whose product has been quoted. " ( 21 ) IT is further submitted that the petitioners firm neither indicated the name of the other manufacturer nor furnished letter of authority and drug licences, details of other manufacturer, though they could themselves produce drug licences of their own for three items only leaving balance of 8 items for which nodetails and documents were available in the bid of the petitioners. ( 22 ) IT is also submitted in the reply that the petitioners firm did not submit their bankers report alongwith their bid as documentary evidence of their financial capability as required in terms of clause 13. 3. (b)section 1 "instructions to Bidders. " ( 23 ) THE respondent no. 1 and 2 mentioned in their reply, that there has been impartial consideration of the bid tenders submitted by the participating tenderers and the petitioners was rejected since it was not responsive. ( 24 ) THE petitioners in their rejoinder, have reiterated the submissions mentioned in the petition and incorporated that though the petitioners submitted the lowest eligible offer yet the same was rejected on ex facie mala fide grounds by respondents 1 and 2. It is submitted by the petitioners that it is necessary that two of the 11 items should be manufactured by the bidder and upto 9 items could be purchased from outside, the petitioners have not produced the drug licences with regard to 8 items. It is submitted that the petitioners are manufacturers of 5 items out of 11 items comprised in Kit B. The petitioners had already submitted the drug licences with regard to 5 items. The respondent has adopted a discriminatory attitude with regard to drug licences inasmuch as the respondent has ousted the petitioners on the ground of non-supply of drug licences without affording any opportunity to rectify the error, if any, whereas the aforesaid opportunity was given to the others. The respondent has adopted a discriminatory attitude with regard to drug licences inasmuch as the respondent has ousted the petitioners on the ground of non-supply of drug licences without affording any opportunity to rectify the error, if any, whereas the aforesaid opportunity was given to the others. The petitioners categorically stated that in a meeting of TAC held on 3. 2. 93, it is specifically mentioned with regard to M/s Toshika International, that in spite of repeated reminders, the said firm has not submitted all the drug licences. M/s Medico Labs were also asked to give an opportunity to furnish drug licences. The petitioners further submitted in the rejoinder that responsiveness of the offer is determined in accordance with para 24 of the tender documents. Para 24 mentioned that irregularities, minor informalities or non-conformities which do not affect the ranking of the bidders can be waived. One such waiver has been done in favour of other parties and they were given an opportunity to rectify the defect that is no reason why the same yardstick should not been followed as far as petitioners are concerned. ( 25 ) THE petitioners further submitted that minutes of Third TAC meeting held on 3. 2. 93 clearly show that bids of the petitioners were decided to be ignored in first and second TAC meeting prior to letter of respondent no. 2 dated 2 3. 93 which stated that the petitioners bid was under consideration and which requested the extension of the bid. The said letter was a mere charge to show that the petitioners bid was under consideration and the request to extend the bid till 2. 4. 93 and consequent bid security till 2. 6. 93 was an eye-wash. In any event, the petitioners did extend the period of bid security till 2. 6. 93 as per their bankers letter dated 17. 3. 93 but since respondent no. 2 had already decided to ignore the petitioners bid submitting the same had become irrelevant. ( 26 ) IT is further submitted that the petitioners bid has been rejected on totally extraneous and irrelevant considerations and accepted offers where the amount payable would be Rs. 49. 20 lakhs more than the petitioners offer which is net loss to the public exchequer. B V K AHLUWALIA - C. W. P. NO. ( 26 ) IT is further submitted that the petitioners bid has been rejected on totally extraneous and irrelevant considerations and accepted offers where the amount payable would be Rs. 49. 20 lakhs more than the petitioners offer which is net loss to the public exchequer. B V K AHLUWALIA - C. W. P. NO. 2617/93 ( 27 ) THE petitioner is social worker and practising lawyer who has filed this petition with the prayer that the writ of mandamus be issued directing respondent no. 2 to cancel the contract awarded to respondents no. 3 and 4 and award the contract to the lowest bidder M/s Goa Antibiotic and Pharmaceuticals Pvt. Ltd. ( 28 ) THE petitioner in his petition submitted that he came to know through newspaper reports in "national Daily Observer and Jan Satta dated 2. 4. 93 and 6. 4. 93 that respondent no. 2 which enjoys monopoly in the procurement of goods for the various projects of Government of India, invited tenders for procurement of medicines, under Child Survival and Safe Motherhood Project, sponsored by respondent no. 1. He has submitted that though M/s Goa Antibiotics was the lowest one, even then the bid was rejected by respondent no. 2 without giving any cogent reasons and awarded the contract. to private parties. Respondent no. 3 and 4 whose bids were higher in price which resulted in the loss of public exchequer to the tune of Rs. 4. 5 crores. Respondent no. 1 who filed - reply has taken the objection that the petitioners have no locus standi to file the writ petition. It is mentioned that in selection of bid, price is not the only criterion. The bid selected for the award should be lowest responsive. . The bid of Goa Antibiotic was not the lowest responsive bid. Therefore, the same was rejected. Since the detailed facts have already been mentioned in the petition filed by Goa Antibiotics, therefore, no useful purpose would be served in repeating the same averments. Here, it would be unnecessarily burdening the judgment. Therefore, we do not propose to deal with the facts of this petition. ( 29 ) SINCE the subject-matter of the three writ petitions is identical, therefore, we propose to dispose of all the three petitions by this order. ( 30 ) MR. Here, it would be unnecessarily burdening the judgment. Therefore, we do not propose to deal with the facts of this petition. ( 29 ) SINCE the subject-matter of the three writ petitions is identical, therefore, we propose to dispose of all the three petitions by this order. ( 30 ) MR. R. K. Jain, learned counsel-appearing for Goa Antibiotics submitted that the petitioners are a public sector company, wholly owned by the State of Goa. The petitioners are manufacturers of very high quality medicines. The petitioners have a reputation of supplying high quality medicines at moderate and reasonable rates because profit earning is not the primary aim of petitioners no. 1. The Petitioner company has been given various orders in the past 7 years by respondent no. l for supplying various items, and the petitioners have supplied the medicines within the prescribed time limit and to the entire satisfaction of respondent no. l. ( 31 ) MR. Jain further submitted that the bids submitted by the petitioners in respect of Kit A and Kit B were substantially responsive and admittedly lowest. The petitioners have not been awarded the contract by taking the shelter of hyper-technical defects and if those defects or the deficiencies as pointed out by respondents I and 2 are scrutinized carefully, the irresistible conclusion would be that the petitioners bid being the lowest responsive had to be accepted. The bids were opened at 3 p. m. on 2. 12. 92. Even according to the respondents, the bid security amount was submitted by the very next day i. e. 3. 12. 92. The respondents I and 2 indeed could have obtained the other information from the petitioners immediately after the bid documents were opened, particularly when the petitioners bid was the lowest and the public exchequer could have saved 20 to 25 per cent of the amount. ( 32 ) MR. Jain, learned counsel, further made the grievance that when the opportunity had been given to the other manufacturers to submit the information, the same could not have been denied to the petitioners particularly when the petitioners bid was the lowest. Mr. ( 32 ) MR. Jain, learned counsel, further made the grievance that when the opportunity had been given to the other manufacturers to submit the information, the same could not have been denied to the petitioners particularly when the petitioners bid was the lowest. Mr. Jain submitted that public interest ought to be the paramount consideration in accepting these bids by the respondents and in the instant case when the first lot of the medicines had to be supplied in April-May, 1993, i. e. Kit A and Kit B in October-November, 1993, in that event, respondents 1 and 2 ought to have reverted to the petitioners for some more information because the bid of the petitioners was the lowest and by doing so, they could have saved huge amount of public exchequer and in turn so many more women could have availed the benefit of this scheme. Mr. Jain further submitted that close scrutiny of the entire bid documents would reveal that the paramount consideration which ought to have prevailed with respondents 1 and 2 was to procure good quality medicine from a manufacturer who could supply them at the most reasonable price in time schedule fixed by respondents I and 2. The public interest in supply of these medicines ought to have been quality control, supply within a reasonable period and at the most competitive price so that larger number of people can derive benefit of this scheme of the World Bank. He further submitted that as far as petitioners are concerned, it is 100 per cent owned by the State Government and has the reputation of manufacturing good quality medicines and has been supplying since 1985-86 to the Government. Therefore, with such credentials, the ( 33 ) MR. Jain fairly submitted that as far as Kit A is concerned, the time has already lapsed and respondent no. 3 has already supplied and even the supply pertaining to Kit B has to be made in October-November, 1993. He further submitted that if the petitioners are permitted even now within the time schedule framed by the court, they would supply the medicines in Kit B. He assured the court that his client is willing to supply the medicines of Kit B within the time schedule fixed by the court. He further submitted that if the petitioners are permitted even now within the time schedule framed by the court, they would supply the medicines in Kit B. He assured the court that his client is willing to supply the medicines of Kit B within the time schedule fixed by the court. The quality of the medicines would be according to the entire satisfaction of respondents 1 and 2, and the price quoted by the petitioners is the lowest, so many more persons will be benefitted if the petitioners are given an opportunity to supply the same. ( 34 ) MR. Arun Jaitley learned counsel appearing for Ajanta Pharma submitted that the bid submitted by the petitioners in respect of Kit B was substantially responsive. The bid security was submitted well within the prescribed period. The petitioners are reputed manufacturer of quality of medicines and the bid of the petitioners was rejected on entirely untenable and extraneous considerations. ( 35 ) THE main arguments which Mr. Jaitley advanced was that even though it was necessary that five out of 11 items in the document should be manufactured by the bidders and upto 9 items could be purchased from outside, the petitioners had not produced drug licences with regard to 8 items. He further submitted that the petitioners manufactured 5 items out of 11 comprised in Kit B,namely, item no. B,c,f,h, and I. Shri Jaitley further submitted that the petitioners have already submitted to the respondents that drug licences were about 5 items. Mr. Jaitley submitted that the respondent is adopting a discriminatory attitude in regard to drug licences inasmuch as the respondents ousted the petitioners, without giving any opportunity to rectify the error to the petitioners, if any, whereas the abovesaid opportunity was given to others. He pointed out that in a meeting of TAC held on 3. 2. 93, it was specifically mentioned with regard to Toshika that in respect of drug licences. He also pointed out that M/s Medico Labs were asked to give opportunity to furnish drug licences. Mr. Jaitley further submitted that according to para 24 of the tender document, any irregularities, minor informalities or non-conformities which do not affect the ranking of the bidders can be waived. He also pointed out that M/s Medico Labs were asked to give opportunity to furnish drug licences. Mr. Jaitley further submitted that according to para 24 of the tender document, any irregularities, minor informalities or non-conformities which do not affect the ranking of the bidders can be waived. One such waiver has been done in favour of other parties and they were given an opportunity to rectify defects that there is no reason why same yardstick should not be applicable to the petitioners. ( 36 ) MR. R. K. Garg appeared for respondent no. 3 and submitted that respondents I and 2 were fully justified in accepting bid of respondent no. 3 and in rejecting the bid of others because except for respondent no. 3, other bids were found to be unre- sponsive. Shri Garg had drawn our attention to the bid documents and according to him, the bid documents had been meticulously prepared for the requirement and the need of the project. He further submitted that this project was sponsored by the World Bank and they wanted to be satisfied regarding the quality control of the medicines, the financial capability and adherence to the time schedule, and no fault can be found with regard to strict observance of these terms. These strict conditions have been incorporated in the bid document in the larger public interest and respondent 3 and 4 were the only bidders whose bids were found to be responsive. Mr. Garg submitted that they have already supplied Kit A to the entire satisfaction of respondents 1 and 2. The quality of medicines supplied by them was found to be satisfactory by the respondents. ( 37 ) MR. Garg further submitted that none of the petitioners in these petitions could find anything against respondent no. 3. They have not even alleged that the bid document submitted by respondent no. 3 was unresponsive. Therefore, it would hardly be proper to reopen the concluded contract between respondent no. 3 and respondents 1 and 2 in these proceedings under Articles 226 of the Constitution of India. Mr. Garg further submitted that any interference by this court at this stage would mean that all these bid documents which have been meticulously prepared by the World Bank for achieving the object of providing quality medicine within the time schedule would be Jeopardized. Mr. Garg. also submitted that respondent no. Mr. Garg further submitted that any interference by this court at this stage would mean that all these bid documents which have been meticulously prepared by the World Bank for achieving the object of providing quality medicine within the time schedule would be Jeopardized. Mr. Garg. also submitted that respondent no. 3 who has meticulously complied with the bid documents and other conditions, cannot be penalised in these proceedings for no fault of theirs. The concluded contract between the parties cannot be reopened in these proceedings and it would not be in the larger interest of public to jeopardize the concluded contract at this stage. ( 38 ) MR. Garg further submitted that the competence and capability of performing the contract has been demonstrated by respondent no. 3 by successfully supplying the medicines of entire Kit A to the entire satisfaction of respondents no. 1 and 2. Therefore, as far as competence of respondent no. 3 is concerned, it cannot be questioned for performing remaining part of the contract with regard to Kit B. ( 39 ) MR. Garg also submitted that the contract was awarded to respondent no. 3 in the beginning of December, 1992. He has spent huge amount of money in preparing the medicines of Kit B which according to the terms of the contract, have to be supplied in October-November, 1992. As a matter of fact, he is ready to supply these goods and the same would be available for inspection by respondent no. 1 and 2. Any interference at this stage would mean unsurmountable financial burden and prejudice to respondent no. 3. Mr. Garg further submitted that no disqualified bidder whose bid was found to be unrespon-sive has a right to challenge the bid given in favour of person whose bid was found to beresponsive. ( 40 ) IT may be partinent to note that Mr. Garg while concluding his submission made the statement on instructions that without prejudice to the rights and contentions of the parties, his client i. e. respondent no. 3 is willing to supply 800 kits in category of Kit A and Kit B free of cost to respondent no. 1 and 2 for being supplied to the needy public (total number of Kits to be supplied would be 1600 ). By a subsequent affidavit, the respondent no. 3 is willing to supply 800 kits in category of Kit A and Kit B free of cost to respondent no. 1 and 2 for being supplied to the needy public (total number of Kits to be supplied would be 1600 ). By a subsequent affidavit, the respondent no. 3 offered to supply 1600 Kits in the Category of A andb free of costs to respondents no. 1 and 2 (total no. of Kits being 3200 ). ( 41 ) MR. Manmohan Sareen who appeared on behalf of respondents 1 and 2 submitted that respondents 1 and 2 have carefully examined all the bid documents and all those bids which were not found to be responsive were rejected and only responsive bids were accepted. Mr. Sareen has shown the original files to the court to demonstrate that respondent no. 1 and 2 have not favoured respondent no. 3 and the bids of the petitioners Goa Antibiotic and Ajanta Pharma were not found responsive and therefore, they were rightly rejected. Mr. Sareen further submitted that these conditions have been carefully and meticulously prepared by respondents 1 and 2 and since there is insistence by the world Bank on adherence of the bid documents strictly, therefore, respondents 1 and 2 carefully scrutinised the bid documents and accepted the tender of the company who was found responsive in all respects. Public interest is paramount consideration tor respondent no. 1 and 2 but at the same time they have to take into consideration the quality control, the time schedule and capability and capacity of the bidders to execute the contract, all those factors have been carefully considered, and thereafter the decisions have been taken by the respondents no. l and 2. The decision taken by respondents 1 and 2 cannot be termed as arbitrary, untenable or taken on extraneous considerations. The respondents no. l and 2 have followed certain norms and guidelines in concluding this contract and no fault can be found against them tor strict adherance of these norms and guidelines. Mr. Sareen further submitted that as far as supply of medicines of Kit A is concerned, it is already over and medicines pertaining to Kit B have to be supplied by October- november of this year. Mr. Sareen further submitted that as far as supply of medicines of Kit A is concerned, it is already over and medicines pertaining to Kit B have to be supplied by October- november of this year. Any interference by the court at this stage would jeopardize the entire project which would be at the cost of the thousands of recipients and beneficiaries of this project. Therefore, this court ought not to interfere under Article 226 of the constitution at this stage. ( 42 ) MR. Arun Jaitley, learned counsel for the petitioners has cited various leading judgments of the Supreme Court to support his contentions. First in the series is M/s Star enterprises Etc. vs. The City and Industrial Development Corporation of Maharashtra Ltd. and Ors. , JT 1990 (2) S. C. 401. In this judgment, the court has laid down law for rejection of highest bid, reasons for the same must be given and communicated to the parties concerned. The court observed as under:- "in recent times, judicial review of administrative action has become expansive and is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. As the State has descended into the commercial field and giant public sector undertakings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by opening of the public gaze: these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves long stakes and availability of reasons for action on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process. The submission of Mr. Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available ordinarily the same should be communicated to the concerned parties unless there be any specific justification not to do so. The submission of Mr. Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available ordinarily the same should be communicated to the concerned parties unless there be any specific justification not to do so. " ( 43 ) THE learned counsel for the petitioners has also cited Supreme Court judgment harminder Singh Arora vs. Union of India and others, (1986) 3 S. C. C. 247. In this case, the court has laid down that the Government may enter into a contract with any person but in so doing the State or its instrumentalities cannot act arbitrarily. In absence of any specific policy of the Government it is open to the State to adopt any policy. But if the authority or the State chooses to invite tenders then it must abide by the conditions laid down in the tender notice, and the result of the tender and cannot arbitrarily and capriciously accept a much higher tender to the detriment of the State. ( 44 ) THE learned counsel also cited judgment M/s Prestress India Corporation vs. U. P. State Electricity Board and others, 1988 (Supp)S. C. C. 716. In this judgment, the court has observed that once a tender is found by High Court to have been excluded from consideration arbitrarily, unreasonably, unfairly and against public interest, in that event, the court has gone to the extent of granting partial relief by directing the Government or its instrumentality to place order on the aggrieved tenderer for the remaining supply. The court has observed as under: "the opposite party no. I, U. P. State Electricity Boards, is therefore, directed to accept the tender of the appellant and to place orders for the remaining supply of 25,000 P. C. C. Poles for which the tender was submitted by the appellant. It will not be out of place to mention in this connection that in a similar case in Harminder Singh Arora v. Union of india, this Court after coming to a finding that one of the tenders was illegally rejected directed the authorities concerned to accept the tender of the appellant. It will not be out of place to mention in this connection that in a similar case in Harminder Singh Arora v. Union of india, this Court after coming to a finding that one of the tenders was illegally rejected directed the authorities concerned to accept the tender of the appellant. " ( 45 ) HE further cited food Corporation of India vs. M/s Kamdhenu Cattle Feed industries, (1993) I S. C. C. 7i, and invited our attention to para7 of the Judgment in which it is stated that to satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review. ( 46 ) HE also invited our attention to Mahesh Chandra vs. Regional Manager, U. P. Financial Corporation and others, JT 1992 (2)S. C. 326. To demonstrate how the public functionaries should perform their duties, learned counsel cited the above judgment, and the relevant passage is quoted as under: "the public functionaries should be duty conscious rather than power charged. Its actions and decisions which touch the common man have to be tested on the touchstone of fairness and justice. That which is not fair and just is unreasonable. And what is unreasonable is arbitrary. An arbitrary action is ultra vires. It does not become bona fide and in good faith merely because no personal gain or benefit to the person exercising discretion should be established. An action is mala fide if it is contrary to the purpose for which it was authorised to be exercised. Dishonesty in discharge of duty vitiates the action without anything more. It does not become bona fide and in good faith merely because no personal gain or benefit to the person exercising discretion should be established. An action is mala fide if it is contrary to the purpose for which it was authorised to be exercised. Dishonesty in discharge of duty vitiates the action without anything more. An action is bad even without proof of motive of dishonesty, if the authority is found to have acted contrary to reason:" ( 47 ) LEARNED counsel has further referred to and relied upon Ram and Shyam company vs. State of Haryana and others, (1985) 3s. C. C. 267. In this case, the court has held that the Government or the State is not tree like an ordinary individual, in selecting recipient for its largesse. It need not deal with anyone but if it does so, it must do so fairly and without exercising absolute and unfettered discretion and without unfair procedure. ( 48 ) MR. Garg, learned counsel for respondent no. 3 submitted that the writ petitions filed by the petitioners are not maintainable because they have no legal right. Learned counsel cited Mani Subrat Jain etc. vs. State of Haryana and others, AIR 1977s. C. 276, in this case, the court has held that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something. ( 49 ) ACCORDING to Mr. Garg, the bid of none. of the petitioners was found to he responsive. Therefore, they have no legal right to ask for a mandamus not to award the contract to respondent no. 3 whose bid was admittedly responsive. ( 50 ) THE learned counsel also cited K. N. Guruswamy vs. The State of Mysore and others, AIR 1954 S. C. 592, to support his contention that the court ought not to issue meaningless writs. In the said judgment, the court has laid down as under:- "we would therefore in the ordinary course have given the appellant the writ he seeks. In the said judgment, the court has laid down as under:- "we would therefore in the ordinary course have given the appellant the writ he seeks. But, owing to the time which this matter has taken to reach us (a consequence for which the appellant is in no way to blame, tor he has done all he could to have an early hearing), there is barely a fortnight of the contract left to go. We were told that the excise year for this contract (1953-54) expires early in June. A writ would therefore be ineffective and as it is not our practice to issue meaningless writs we must dismiss this appeal and leave the appellant content with an enunciation of the law. But as he has in reality won his case and is prevented from reaping the full fruits of his victory because of circumstances for which he is not responsible, we direct that the first respondent, the State of mysore, and the fourth respondent Thimmappa pay the appellant his costs here and in the High Court. The other respondents will bear their own costs. Ordered accordingly. " ( 51 ) MR. Garg, to support the same proposition, has cited Praga Tools Corporation vs. C. V. Imanual and others, AIR 1969s. C. 1306. In this case, the court has laid down that it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. ( 52 ) THE submission in substance was that no disqualified bidder has legal right, to challenge or assail concluded contract and therefore, there is no corresponding legal duty of the other side. ( 53 ) MR. Garg submitted that as far as petition of Goa Antibiotics is concerned, it ought to be rejected only on the ground of laches alone. There is undue and unexplained delay of several months. The petition was filed on 12thjuly, 1993andit came up for admission hearing on 16th July, 1993 when the court issued notice to the respondents and immediately after the pleadings were completed, then the matter was heard with expedition because of the urgency involved in these petitions. ( 54 ) WE have heard learned counsel for the petitioners, learned counsel for respondents 1 and 2, and learned counsel for respondent no. 3. ( 54 ) WE have heard learned counsel for the petitioners, learned counsel for respondents 1 and 2, and learned counsel for respondent no. 3. We primarily issued notice of these petitions because Shri Jain, learned counsel for Goa Antibiotics, submitted that though his bid was the lowest, and substantially responsive, even then the contract was not awarded to M/s Goa Antibiotics. Acceptance of the bid of Goa Antibiotics would have meant 20 to 25 per cent saving for respondents I and 2. Admittedly, there has been lapse of not submitting the bid security within the stipulated period and not fulfil ling the other conditions of the bid documents. ( 55 ) SIMILARLY, the main ground which appealed to us in the petition of Ajanta Pharma has been that when Ajanta Pharma's bid was substantially responsive and much Sower in comparison to the bids of respondents 3 and 4, then all efforts ought to have been made by respondents no. I and 2 to accept the said offer in larger public interest. Assuming there were minor lacunas, then a!so the respondents I and 2 ought to have given opportunity to ajani Pharma to fulfil those lacunas, particularly when such opportunities were given to some other bidders, namely, M/stoshika International and M/s Medico Labs. Acceptance ot the petitioners' hid would have meant saving of enormous amount for respondents 1 and 2 as far as medicines ot Kit B were concerned. (Learned counsel appearing for the petitioners submitted that though the time for supplying the medicines as far as Kit Bis concerned, is very short, because supply has to be made by October/november, 1993, but look ing to the special circumstances of this case, they would be willing to supply medicines within the fixed time schedule. The time available at our disposal for holding fresh auction is virtually ruled out, because in case we direct that auction may take place again, in that event, not only the bid tenderers who have filed the petitions would be allowed to participate but all others have to be given an opportunity of participating according to the principles of justice, equity and fair play. According to this project of the World Bank, the supply of Kit B has to be made in October/november, 1993. According to this project of the World Bank, the supply of Kit B has to be made in October/november, 1993. At this juncture, de novo process of auction is likely to jeopardise the time schedule which would adversely affect the interest of the beneficiaries. ( 56 ) MR. Rahul Sehgal, Managing Director of respondent no. 3, Nestor Pharmaceutical pvt. Ltd. has filed an affidavit on 15. 10. 93, that respondent no. 3 had offered to supply 800 number of Kits A andevennumberofkitsb,whilehisearlieraffidavitdated20. 9. 93,it was stated that he is willing to enhance the said offer to 1600 number of Kits A and Kits B (total 3200 Kits ). We appreciate this gesture on behalf of respondent no. 3 and direct him to supply 1600 numbers of Kits A and Kits B to respondents 1 and 2, within six weeks from today. ( 57 ) WE do not deem it appropriate to vary, alter or change any of the terms and conditions of the bid documents because the same have been carefully and meticulously prepared for achieving the object of quality control and adherence to the time schedule. Respondents 1 and 2 are fully justified in insistingen a strict adherence of norms, terms and conditions of the bid documents at the behest or the sponsoring authority i. e. the World bank, particularly, when the terms and conditions are in the larger public interest. ( 58 ) ON the basis of the documents and submissions made at the bar, an irresistible conclusion is that, in the scrutiny, bid documents of only respondent no. 3 were found to be responsive. None of the petitioners have even alleged that bid documents of respondent no. 3 have been wrongly accepted. Now, even the capability and competence of respondeent no. 3 in supplying the quality medicines cannot be questioned because respondent no. 3 has supplied medicines of Kit A. to the satisfaction of respondents 1 and 2. Therefore, in the facts and circumstances of this case, we do not deem it proper to disturb the concluded contract between the parties. ( 59 ) HOWEVER, before parting with this case, we would like to impress upon respondent no. 3 has supplied medicines of Kit A. to the satisfaction of respondents 1 and 2. Therefore, in the facts and circumstances of this case, we do not deem it proper to disturb the concluded contract between the parties. ( 59 ) HOWEVER, before parting with this case, we would like to impress upon respondent no. I and 2 that in accepting the bid documents, in a case of this nature, while maintaining the quality control and time schedule, the other paramount consideration ought to he to get these medicines at the most reasonable and competitive price so that larger number of persons can derive benefit from such a project. ( 60 ) IN achieving this object, the concerned authorities must make earnest efforts by calling and recalling all the interested parties to get the most competitive and reasonable price while keeping in view the aforesaid twin-objects of quality control and time schedule. In achieving the aforesaid objects, the technicalities of all kinds must be avoided and principle of waiver of minor technicalities be exercised in achieving the larger'public interest. Even close serunity of bid documents at any time must reveal the picture that concerned officials have taken all possible steps, to protect and safeguard the public interest. . ( 61 ) WITH these directions, all the writ petitions stand disposed or and in the peculiar facts and circumstances of this case, we direct the parties to bear their own costs.