A. K. GANGULY, J. ( 1 ) ALL these three writ petitions were heard together. The first two writ petitions are concerned with identical issues and insofar as the third writ petition is concerned the questions raised are a little different. Since in the first two writ petitions same questions are involved, they are taken up first. ( 2 ) IN Re : Din Mohammad - The case of the writ petitioner is that pursuant to a tender notice dated 9-6-2000 the petitioner submitted a tender for supply of dietary articles for the Indoor patients of the Hospital with 1890 beds for the period from 1st July, 2000 to 31st March, 2001 or any further period extended by the appropriate authority. Along with the said tender a schedule of rates for different articles have also been appended. ( 3 ) FROM the perusal of the schedule it will appear that the tender is invited in respect of various food items. The writ petitioner also asserts that he is an existing supplier. The main grievance of the writ petitioner is that even though the petitioner has submitted his tender complying with all the formalities under the tender notice but his tender has not been considered in view of a resolution which was taken by the respondent No. 1 on or about 23-6-2000 to the effect that tender filed below 10% of the scheduled rates will not be considered. Similarly, it was decided that tenders filed above 10% of the scheduled rates will not be considered. ( 4 ) IT is further asserted by the petitioner that the said decision was taken secretly in the office of the respondent No. 1 and without any notice to the petitioner. ( 5 ) IT is submitted that the said condition for non-consideration of the tender was not indicated in the tender notice. It is also submitted that the said decision was taken by the authorities before even considering the tender of the petitioner. ( 6 ) IN Re : Golam Mohammad - The same grievances have been raised in the writ petition filed by Golam Mohammad. ( 7 ) THE complaint to the above fact has been made in paragraph 6 of the writ petition filed by Golam Mohammad. The said paragraph 6 is set out hereinbelow:-"that in between 2. 00 p. m. to 3. ( 7 ) THE complaint to the above fact has been made in paragraph 6 of the writ petition filed by Golam Mohammad. The said paragraph 6 is set out hereinbelow:-"that in between 2. 00 p. m. to 3. 00 p. m. after closing of the submission of the tender at 2. 00 p. m. the respondent No. 1 with the other authorities of Nil Ratan Sarkar Medical College and Hospital took a resolution that the tenders filed up to below 10% of the scheduled rate will be considered. " ( 8 ) THE grievance is that as a result of passing of the said resolution the petitioner's tender has not been at all considered on merit. ( 9 ) LEARNED counsel in both the writ petitions urged the following grounds: (I) The petitioners are entitled to have their tender considered in accordance with the conditions of eligibility mentioned in the tender notice. (II) The petitioners filed their tenders after complying with the conditions in the tender notice, so non-consideration of their tenders amount to discrimination. (III) The impugned condition of eligibility for non-consideration of tenders has been evolved by the respondents in secrecy of their office and without any notice to the petitioners so the same is arbitrary. (IV) In the above premises, the petitioners contend that the total exclusion of their tenders from consideration amounts to a hostile discrimination which is prohibited under Article 14 of the Constitution. Such manner of non-consideration of the petitioners tender is inherently unjust and unfair. It is true that there is a degree of overlapping before those points. But those are broadly the points urged by the petitioners. ( 10 ) THE learned counsel appearing for the petitioners further pointed out that the respondents do not factually dispute that after the tenders were submitted and the time for such submission was over, the respondent evolved the aforesaid conditionsof eligibility. In fact, in this case the respondents have not filed any affidavit and have not disputed any factual assertion made by the petitioners. ( 11 ) THE learned counsel for the respondents without filing any affidavit contended that the tender in question is for the purpose of supplying certain dietary articles to Hospitals. Articles essentially are food items. In supply of food items maintaining the standard and quality of such items is of vital importance. ( 11 ) THE learned counsel for the respondents without filing any affidavit contended that the tender in question is for the purpose of supplying certain dietary articles to Hospitals. Articles essentially are food items. In supply of food items maintaining the standard and quality of such items is of vital importance. There is a great deal of public interest involved in matters of supplying standard and quality food items. Keeping the said public interest in mind, the respondents have decided that tenderers who have been submitted tenders below 10% of the scheduled rates and above 10% of the scheduled rates should not be considered at all. It has been contended that from their experience in these matters, they know that by way of supply at such low rates i. e. below more than 10% of the scheduled rates, standard of supply cannot be maintained. Similarly, tenderers who have quoted rates 10% above the scheduled rates are asking for an exorbitant price and acceptance of their tender will be against the interest of public exchequer. ( 12 ) ACTING on such principles the respondents have shortlisted the tenders without opening them and in the process if the tenders submitted by the petitioners have been left out of the consideration, the same has been done bona fide and in public interest. Therefore, the petitioners cannot allege any discrimination or any mala fide in the matter. ( 13 ) IT may be mentioned here that in the instant case no mala fide has been specifically alleged by the petitioners against the respondents. No particular of such mala fide has been either pleaded or urged before this Court. ( 14 ) THE learned counsel appearing for the successful tenderers virtually supported the stand of the State and in the instant case, the learned counsel for the successful tenderers also submitted that the State acted within its right by dealing with the tenders in public interest by shortlisting them on the basis of a very reasonable criteria namely, not to consider any tender which have quoted rates below 10% of the scheduled rate. The State in view of its past experience has bona fide reasons to conclude that as anybody submitting tender below 10% of the scheduled rate cannot supply quality product to the Hospitals and the items are to be given to the patients. The State in view of its past experience has bona fide reasons to conclude that as anybody submitting tender below 10% of the scheduled rate cannot supply quality product to the Hospitals and the items are to be given to the patients. Therefore, in such a situation, the quality of the food items must be maintained. The learned counsel for the added respondents further contended that since the said decision has been taken before the tenders have been at all opened, the said decision has not been taken to show any favour to anyone. So there can be no charge of nepotism or favouritism. This shows that the decision was taken bona fide and in public interest and this Court may not interfere with the same. ( 15 ) THE learned counsel for the successful tenderer has also contended that by the impugned decision taken by the respondent on 23-6-2000 there has been no change of eligibility condition nor has there been any change of schedule of rates. It was also contended that the terms and conditions of the tender are merely in nature of guidelines and those guidelines have been broadly followed by the respondent. ( 16 ) MR. Banerjee appearing for the private respondents submitted that the petitioners cannot complain of non-consideration of the tender and the learned counsel submitted that the respondents have taken a pragmatic decision in rejecting tenders which have quoted rates below 10% of the scheduled rates. It was also contended that the respondents from their experience have come to know that such rate is unworkable. Learned counsel further submitted that the petitioners have no locus standi to complain about rejection of their tender inasmuch as the petitioner cannot contend that his tender would have been accepted. In other words, the learned counsel for the respondent submitted that unless the petitioner can establish that but for the impugned order, their tenders would have been accepted, they do not have any locus standi to challenge the tendering process and that the writ petititions should be dismissed. ( 17 ) MR. Bhattacharjee, learned counsel who also appeared for the successful tenderers submitted that there has been no variation of essential clauses in the tender notice. The impugned decision dated 23-6-2000, if at all, has varied non-essential clauses of the tender and such a variation of non-essential clauses does not at all vitiate the tendering process. ( 17 ) MR. Bhattacharjee, learned counsel who also appeared for the successful tenderers submitted that there has been no variation of essential clauses in the tender notice. The impugned decision dated 23-6-2000, if at all, has varied non-essential clauses of the tender and such a variation of non-essential clauses does not at all vitiate the tendering process. ( 18 ) THE learned counsel for the petitioner in reply urged that the petitioners are not complaining of any case of rejection of tender. They are complaining of total non-consideration of tender inasmuch as their tender has been totally excluded from consideration in view of the altered condition purportedly introduced by the impugned resolution dated 23-6-2000. In support of the said contention learned counsel referred to paragraphs 6, 16 and 17 and also relied on grounds 2 and 8 taken in the writ petition. Learned counsel very much relied on paragraph 16 of the writ petition to contend that the tender quoted below 20% of the scheduled rate has been accepted in respect of tender submitted in the case of Presidency General Hospital, T. B. Hospital and other hospitals. All those tenders were called in the year 2000 under the same schedule of rates. Learned counsel further submitted that these facts have not been disputed by the respondents by filing any affidavit so those facts must be accepted by way of non-traverse. The learned counsel urged that in view of these undisputed facts the respondent cannot put forward any plea of justification for not considering the tenders submitted by the petitioner just because they have quoted rate which are below 10% of the scheduled rates. ( 19 ) IN Re : Debasis Ghosh - The case in this writ petition is that the petitioner could not submit the tender in view of the conditions of the tender notice. The learned counsel for the petitioner submitted that the petitioner purchased the tender paper but the petitioner did not submit the tender paper in view of the vagueness and uncertainty of the terms. The learned counsel further submitted that in the schedule of rates mentioned, the quantum has not been indicated. The learned counsel also submitted that it was not the usual practice. According to the learned counsel, the usual practice is to indicate the quantum. The learned counsel further submitted that in the schedule of rates mentioned, the quantum has not been indicated. The learned counsel also submitted that it was not the usual practice. According to the learned counsel, the usual practice is to indicate the quantum. The learned counsel submitted that unless the quantum is indicated, it is difficult for any tenderer to participate in the tender and quote the rates. The learned counsel therefore submitted that it is for these reasons the petitioner has not been able to submit his tender in view of the vagueness of the terms of the tender notice, and the authority should be directed to issue a fresh tender notice with sufficient particulars enabling the petitioners to participate. ( 20 ) THE learned counsel for the State in answer to their aforesaid stand submitted that the tender notice does not suffer from any vagueness at all. The tender notice sufficiently indicates in their schedule of rates the particulars and it is impossible for the authorities to indicate the quantum in the tender notice. Since such quantum varies from time to time and on the exigencies of the situation. The learned counsel further submitted if the condition mentioned in the tender notice is not acceptable to the petitioner it is open to him not to participate but the petitioner cannot dictate the term of such tender notice. The learned counsel for the State further submitted that in the instant case, the petitioner cannot complain of any discrimination or exclusion inasmuch as he has not filed any tender and as such he has no locus standi to file this writ petition. In other words, the learned counsel for the State submitted that a person who has not submitted any tender cannot question the tender process or selection of any successful tenderer in such process. ( 21 ) CERTAIN decisions have been cited by the learned counsel for the parties and the Court now considers them in the facts of this case. ( 22 ) MR. Ghosh appearing for Din Mohammad relied on the decision of the Supreme Court in the case of Shri Harmindar Singh v. Union of India, reported in AIR 1986 SC 1527 . The said decision was also in respect of a tender for supply of fresh buffalow and cow milk. Learned counsel relied on paragraph 19 of the said judgment in Harmindar Singh (supra ). The said decision was also in respect of a tender for supply of fresh buffalow and cow milk. Learned counsel relied on paragraph 19 of the said judgment in Harmindar Singh (supra ). In the said paragraph the three Judges Bench of the Supreme Court held that the authorities concerned acted arbitrarily by giving 10% price preference to the Government Undertaking when the same is not incorporated in the terms and conditions of the tender notice. Therefore, the learned Judges found fault with the authorities in giving 10% price preference to the Government Undertaking by the authorities as the same resulted in the rejection of the tender submitted by the appellant. Ultimately, the Hon'ble Judges of the Supreme Court quashed the said decision of the authorities with the direction to the respondent to accept the tender of the appellant. The learned counsel submitted that the principle should be followed there, as in this case the petitioners tender is pushed out of the zone of consideration in view of the aforesaid undisclosed eligibility condition evolved by the resolution on 23-6-2000 when admittedly the same was not a part of the terms and conditions in the tender notice. ( 23 ) MR. Mitra, learned counsel appearing for Golam Mohammad relied on the decision of the Supreme Court in the case of Dutt Associates Private Ltd. v. Indo Merchantiles Private Ltd. reported in (1997) 1 SCC 53 . In the aforesaid case also the tendering process came up for judicial scrutiny. In that case, the learned Judge of the Supreme Court observed that the decision making process should be transparent, fair and open. The learned counsel specially relied on paragraph 4 where the learned Judges have given the reasons why the tendering process in that case was vitiated. The first vitiating factor being non-specification of the viability range in the tender notice. The learned Judges took strong exception to the fact that the tender notice did not mention the viability range nor did it indicate that only tender coming within the viability range will be considered. ( 24 ) RELYING on the said observation, the learned counsel stated that in the instant case also there is no indication in the tender notice that tenders which do not come within a particular zone of rates will not be at all considered. ( 24 ) RELYING on the said observation, the learned counsel stated that in the instant case also there is no indication in the tender notice that tenders which do not come within a particular zone of rates will not be at all considered. According to the learned counsel on the basis of the ratio in the case of Dutt Associates (supra) in the instant case also the tendering process must be held to be vitiated and be set aside. ( 25 ) LEARNED counsel appearing for the State relied on the decision of the Supreme Court in the case of Bareilly Development Authority v. Ajay Pal Singh reported in AIR 1989 SC 1076 and urged that in the matters of non-statutory contract like the present one the rights of the parties are governed under the terms of the contract and not under any statutory provision and no writ or order an be issued under Article 226 of the Constitution to compel the authority to remedy a breach of contract pure and simple. Learned counsel also cited the decision in the case of Bhargav Bhusan Press v. Bihar State Text Book Publication Corporation reported in (1998) 8 JT SC 410. In the peculiar facts of that it was held that Bihar Purchase Preference Rules 1975 has no application as the transaction does not involve any element or sale or purchase between the parties. ( 26 ) LEARNED counsel for the private respondents in support of their contentions relied on the judgment and decision in the case of M/s. Poddar Steel Corporation v. M/s. Ganesh Engineering Works reported in AIR 1991 SC 1579 and urged that violation of a non-essential condition of the tender will not vitiate the tendering process. ( 27 ) IN the said decision of Poddar Steel Corporation (supra) the learned Judges of the Supreme Court held that requirements in that tender notice can be classified into two categories. Those which lay down the essential conditions and those who are ancilliary or subsidiary to the main conditions. In that case what was varied was the terms of payment of earnest money. Under the tender notice, the earnest money could be deposited either by cash or by Demand Draft drawn in favour of the State Bank of India. Those which lay down the essential conditions and those who are ancilliary or subsidiary to the main conditions. In that case what was varied was the terms of payment of earnest money. Under the tender notice, the earnest money could be deposited either by cash or by Demand Draft drawn in favour of the State Bank of India. But the successful tenderer deposited the earnest money by certified Cheque of the Union Bank of India drawn on its own Branch. In those circumstances, the learned Judges of the Supreme Court held that the said deposit was a valid deposit of the earnest money and accepted the tender of the respondent No. 1 and held cannot be cancelled on that ground. ( 28 ) LEARNED counsel for the successful tenderer also placed reliance on the decision of the Supreme Court in the case of Monarch Infrastructure (P) Ltd. v. Commissioner, Ullashngar Municipal Corporation reported in (2000) 5 SCC 287 : ( AIR 2000 SC 2272 ) particularly on the principles mentioned. ( 29 ) APPEARING for the successful tenderer the learned counsel, Mr. Bhattacharjee, placed reliance on the decision of the Supreme Court in the case Air India v. Cochin International Airport Ltd. reported in (2000) 2 SCC 617 . Particularly reliance was placed on paragraph 7 in order to contened that the law relating to award of contract by the State or its instrumentalities is essentially a commercial transaction and in arriving at such a decision what is most important are commercial considerations. The learned counsel placed particular reliance on the observation made in paragraph 7 by the Hon'ble Judges of the Supreme Court to the effect that the State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and they are not open to judicial scrutnity. It can enter into negotiation before officially deciding on one of the offers made to it and price need not be the sole criteria for awarding a contract and the State is free to grant any relaxation for bona fide reason if the tender conditions permit such a relexation. It is also stated in the said judgment that the State is not bound to accept the tender which is either the highest or the lowest. It is also stated in the said judgment that the State is not bound to accept the tender which is either the highest or the lowest. Relying on this observation of the Supreme Court the learned counsel urged that in the instant case the respondents have acted correctly and followed the aforesaid principles by choosing its own method to arrive at a decision and there is no illegality in the matter. ( 30 ) CONSIDERING these rival contentions, this Court finds that in matters of floating public tender the State has to act keeping in view its obligation under Part III of the Constitution. It is well settled that when the State floats a tender inviting the citizens or corporations or organizations to participate in it, the provisions of Article 14 of the Constitution cast an unwritten obligation on the State to act in a manner which is consistent with the concept of a welfare State is governed by Rule of Law. In such a situation the State must scrupulously observe fairness at all stages specially at the threshold stage as has been described by the Hon'ble Supreme Court in Radha Krishna Agarwal's case reported in AIR 1977 SC 1496 . ( 31 ) IN the case of Radha Krishna Agarwal v. State of Bihar reported in AIR 1977 SC 1496 the Supreme Court has made it clear that at the stage of entering into contractual relationship with citizens, namely at the stage of considering various tenders submitted by the various parties, the State must adopt an attitude of non-discrimination and fairness. In other words, at this stage the State cannot afford to act on the basis of some undisclosed criteria or eligibility condition not mentioned in the tender notice. In the admitted facts of this case, such a condition was evolved in the resolution dated 23-6-2000. It is common ground that said resolution was evolved in the office of the respondents and not on the basis of negotiation and admittedly without any notice to those who submitted tenders. ( 32 ) OF course it is a different thing for the State to negotiate with the tenderers after the tenders have been opened and in the presence of the tenders. This may be necessary in some cases and espcially in some cases involving complicated commercial transactions or transactions involving very high level technical matters calling for specialised know-how. ( 32 ) OF course it is a different thing for the State to negotiate with the tenderers after the tenders have been opened and in the presence of the tenders. This may be necessary in some cases and espcially in some cases involving complicated commercial transactions or transactions involving very high level technical matters calling for specialised know-how. But one thing is clear that at no stage the State can rely on an undisclosed condition of eligibility for rejecting a batch of tenders. Such an action being wholly unreasonable and unfair is opposed to the basic tenets of Article 14. ( 33 ) EVEN it is assumed that the adoption of such a condition of eligibility is dictated by pragmatism and in public interest, the requirement of adhering to the principles of Article 14 is also very much in greater public interest. The requirement of a State to act fairly and reasonably in view of the Constitutional compulsion is paramount and will outweigh all other requirements of acting with pragmatism. When there are competing claims of public interest - one of which is to act pragamatically and the other is to act fairly and in accordance with the concept of a welfare State which is wedded to the principles of Rule of Law, the later requirement of public interest will certainly have prudence over considerations of pragmatism. Pragmatism is certainly a good thing, but following the mandate of the Constitution is obviously a better one. So, going by these principles this Court cannot uphold the stand of the State in the instant cases. ( 34 ) THIS Court finds that the condition of eligibility which was evolved by the resolution dated 23-6-2000 is a vital condition and so much so that in view of those conditions, the petitioners tenders were left out of consideration. This cannot be said to be a non-essential condition of contract as was in the case of Poddar Steel Corporation ( AIR 1991 SC 1579 ). In the present case, this Court finds that the ratio laid down in the case of Harmindar Singh ( AIR 1986 SC 1527 ) (supra) and in the case of Dutt Associates (1997 (1) SCC 23) (supra) are directly attracted. In the present case, this Court finds that the ratio laid down in the case of Harmindar Singh ( AIR 1986 SC 1527 ) (supra) and in the case of Dutt Associates (1997 (1) SCC 23) (supra) are directly attracted. Therefore, following the ratio of the aforesaid judgments this Court cannot but hold that the action of the respondent in the instant case amounts to total exclusion from consideration the case of Din Mohammad and Golam Mohammad. ( 35 ) THE basic features of State function in matters of entering into contract have been most authoritatively stated in the case of Ramana v. International Airport Authority of India, reported in AIR 1979 SC 1628 . ( 36 ) IN that celebrated decision the Hon'ble Judges of the Supreme Court made a distinction between the Government's dealing with the public by way of giving jobs or entering into contract and the dealing of a private individual. ( 37 ) HAVING made the aforesaid distinction, the Hon'ble Judges of the Supreme Court made the following observation in paragraph 12 of report:-"the power or discretion of the Government in the matter of grant of largess including award of jobs, contracts quotas, licences etc. , must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. " ( 38 ) IN the instant case, there can be no justification for non-considering the petitioners tender on the basis of any known criteria. In fact, tenders below 10% the scheduled rates have been accepted in respect of other hospitals. This case of the petitioner has not been disputed on facts. " ( 38 ) IN the instant case, there can be no justification for non-considering the petitioners tender on the basis of any known criteria. In fact, tenders below 10% the scheduled rates have been accepted in respect of other hospitals. This case of the petitioner has not been disputed on facts. ( 39 ) THE aforesaid principles laid down in Ramana's case ( AIR 1979 SC 1628 ) (supra) are still holding the field and has been followed by the Supreme Court in various cases including in the latest one in the case of Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation, reported in (2000) 5 SCC 287 ( AIR 2000 SC 2272 ) In paragraph 10 of the aforesaid judgment the legal position which has been summed up in matters of Government's entering into contract is as follows:-" (I) The Government is free to enter into any contract with citizens but the Court may interfere where it acts arbitrarily or contrary to public interest. (II) The Government cannot arbitrarily choose any person it likes for entering into such a relationship or to discriminate between persons similarly situate. (III) It is open to the Government or reject even the highest bid at a tender where such rejection is not arbitrary or unreasonable or such rejection is in public interest for valid and good reasons. " ( 40 ) FOLLOWING the aforesaid principles, this Court holds that in the instant case, the Government has discriminated between persons similarly situated by excluding from consideration the tender of the petitioners on the basis of an undisclosed criteria. Thus, judging from all possible angles, this Court finds the total non-consideration of the tender filed by Din Mohammad and Golam Mohammad is wholly unreasonable, arbitrary and violative of Article 14 and this has vitiated tendering process. Therefore, no right in law has flown to the successful tenderer whose tenders have been accepted on the basis of a tendering process which is unconstitutional and opposed to Article 14. ( 41 ) THE Court, therefore, sets aside the impugned decision dated 23-6-2000 by which the purported decision was taken not to consider any tender which is below 10% and above 10% of the scheduled rates. ( 42 ) THIS Court directs that there should be re-tendering by the respondents in accordance with law. ( 41 ) THE Court, therefore, sets aside the impugned decision dated 23-6-2000 by which the purported decision was taken not to consider any tender which is below 10% and above 10% of the scheduled rates. ( 42 ) THIS Court directs that there should be re-tendering by the respondents in accordance with law. The respondent authorities must disclose in the tender notice the conditions of eligibility and must abide by the same. Such tendering process may be initiated as early as possible preferably within a period of fortnight from today. In the meantime status-quo as on date may continue. ( 43 ) THE writ petitions filed by Din Mohammad and Golam Mohammad are therefore allowed to the extent indicated above. ( 44 ) INSOFAR as the case of the writ petitioner Debasis Ghosh is concerned, the Court does not find any case in his favour. This Court is of the view that a tenderer cannot dictate the terms and conditions of tender. Apart from that terms and condiditions as mentioned in the tender notice are quite fair and do contain sufficient particulars. It may not be possible for the State to indicate the quantum of food items required in the tender notice and for absence of particulars if the petitioner cannot submit his tender in the case, the petitioner has to blame himself. This Court agreed with the learned counsel for the State in Debasis Ghosh's case that since the petitioner has not submitted any tender it has no locus standi to come and complain about the tendering process or the selection of successful tenderers in the said process. This Court does not find any merit in the case of Debasis Ghosh. This writ petition is dismissed. ( 45 ) THERE will be no order as to costs. ( 46 ) PRAYER for stay of the operation of the judgment and order is rejected. Status-quo as of today to continue until tendering process is complete. ( 47 ) LET a xerox copy of this judgment duly counter-signed by the Assistant Registrar of this Court be given to the parties upon their undertaking to apply for and obtain certified copy of the same upon usual undertaking. Order accordingly.