JUDGMENT R.C. Kathuria, J. - Government of Haryana, in order to cover 100% eligibility for readable population of cattle and buffaloes under artificial insemination through frozen semen technology, has established Haryana Livestock Development Board (Hereinafter referred to as the Board). The Board has started purchasing portable Cryocan jars of different sizes. These containers are used to store semen, straw holding and liquid nitrogen at the hospitals, dispensaries, and also used to arrange the Liquid Nitrogen and semen straws for the field containers. The Director, Supplies and Disposals, Government of Haryana Chandigarh (respondent No. 4) floated a tender bearing No. 23/2000- 2001 due on 1.2.2001 for the purchase and supply of Cryocan of various capacities as well as Liquid Nitrogen pouring spout as per specifications detailed in the Schedule annexed with the tender form, copy of which is Annexure P-2. The qualifying criteria mentioned in Schedule-A, so far as relevant to the controversy, reads as under :- SCHEDULE A" Tender Notice No. 23/2000-2001 Sr.No. Description of Stores Qty. Place of Delivery 1. Liquid Nitrogen Container of Capacity 1.5 to 2 Ltrs. (Portable with Protection Bag). 500 Nos. Hisar 1. Capacity 1.5 litres - 2 litres 2. Empty Weight of Container 1.8 Kg. to 2.5 Kg. 3. Full weight with Liquid Nitrogen (without containers) 3 Kg. to 3.6 Kg. 4. Static Holding time (Minimum of 20 days) 5. Static Evaporatio loss rate 0.07 - 0.09 Litres per day. 6. Neck Diameter 30-35 mm. 7. Outer Diameter 168-175 mm. 8. Total Height 395-407 mm. 5 9. No. of Canisters ^ ^ 10. Canister Outer Diameter 17 mm to 25 mm. 11. Canister Height 120 mm. 12. Straw Holding Capacity - Single level, (0.25 cc Straws) Minimum of 500 straws Double walled vacuum and supper-insulated with high strength aluminium alloy for ultra low temperature preservation of biological samples of semen of cattle and Buffalo bull in Liquid Nitrogen for Artificial insemination. xx xx xx xx xx xx Note : Offer should be supported with documents of performance report issued by Govt. of India, in case of indigenously manufactured, firms should also provide the proof of supply of these containers (at least two years back) and the satisfactory performance from the institutions purchasing those containers. Firms give two years warranty from the date of supply and the production proof of such containers." 2. In response to the tender invitation M/s. IBP Co. of India, in case of indigenously manufactured, firms should also provide the proof of supply of these containers (at least two years back) and the satisfactory performance from the institutions purchasing those containers. Firms give two years warranty from the date of supply and the production proof of such containers." 2. In response to the tender invitation M/s. IBP Co. Limited, Business Group (Engineering) A/4, MIDC Industrial Area Ambad, Nasik, Maharashtra (petitioner), M/s. Inox India Limited, ABS Towers, 4th Floor, Old Padre Road. Vadodra, Gujarat (respondent No. 5) and three other firms submitted tender forms to respondent No. 4. Before the final decision could be taken by respondent No. 3, petitioner invoked the jurisdiction of this Court by filing the present writ petition seeking direction to quash to specifications stated in Annexure P-2, requirement of conditions pertaining to certificate of supply of product for past two years and further sought to restrain the official respondents from taking decision in respect of the tenders received from respondent No. 5. 3. The case of the petitioner is that it is a Government of India company which is engaged, apart from other works, in manufacturing Liquid Nitrogen Containers under brand name of "CRYOCAN". It is the largest manufacturer in the supply of Liquid Nitrogen Containers for the past two decades and had supplied more than 1,70,000 liquid Nitrogen containers to the World Bank aided projects, Animal Husbandry Departments, National Dairy Development Board, Milk Producers Union and others various government, Semi-government and private organisations. On the other hand respondent No. 5 had started supply and manufacturing of Liquid Nitrogen Containers under the brand name of "CRYOSEAL" only since 1995-96. 4. the grievance of the petitioner is that the specifications contained in the tender for supply of liquid nitrogen containers are tailor-made so as to exclusively suit respondent No. 5 and exclude the petitioner. It is also aimed at to circumvent the order passed in C.W.P. No. 8023 of 2000 titled IPB Co. Limited v. State of Haryana and others. In the abovesaid writ petition, the official respondents had accepted the tender of respondent No. 5 although the petitioner was the only eligible tenderer and for that reason award of the annual rate contract in respect of the said tender was challenged by it mainly on the ground that the petitioner alone had fulfilled the conditions laid down therein. In the abovesaid writ petition, the official respondents had accepted the tender of respondent No. 5 although the petitioner was the only eligible tenderer and for that reason award of the annual rate contract in respect of the said tender was challenged by it mainly on the ground that the petitioner alone had fulfilled the conditions laid down therein. Finding merit in the stand of the petitioner, the High Court had restrained the official respondents from enforcing the contract awarded to respondent No. 5 and had admitted the petition. 5. Pursuant to the notice of motion, respondent Nos. 1 to 4 in their reply dated 7.2.2001 have contested the claim of the petitioner. According to them, the Board for the first time in the month of February 2000 purchased portable Cryocan jars of 1.5 to 2.0 litres which are supplied in the month of April/May, 2000. Thereafter with the help of Field Officers review was conducted four times and in order to achieve maximum efficiency it was decided that the following factors need to be taken into account for determining the specifications: "(1) The loss of liquid nitrogen through evaporation should be as low as possible, especially keeping in view the fact that during the summer temperature in several parts of the State goes as high as 48 to 50 degree C. (ii) the size of the container should be as small as possible with maximum capacity and suitable for mobility. (iii) The frequency of necessity to refill liquid nitrogen should be as low as possible. On these three criteria, the specification has been worked out. The most favourable specifications arrived at for the time being is as given below : (i) The static holding time, which determines the frequency of refill, has been fixed at 20 days which is based on the practical difficulties faced in past. (ii) The limit of evaporation loss has been fixed between 0.07 to 0.09. (iii) The numbers of semen straws has been increased from 150 to 500 straws per container keeping in view the regular demand and its supply mechanism." 6. The other aspects which were taken into account for determining the specifications were the economic viability guided by the climatic and field conditions and the requisite need of the storage of the containers in hospitals and dispensaries to meet the requirement of the field functionaries and the public interest. 7. The other aspects which were taken into account for determining the specifications were the economic viability guided by the climatic and field conditions and the requisite need of the storage of the containers in hospitals and dispensaries to meet the requirement of the field functionaries and the public interest. 7. We have heard counsel for the parties and have gone through the record of the writ petition. 8. It is common case of the parties that tender notice No. 02/2000-2001 due on 1.6.2000 floated by respondent No. 4 for the purchase and supply of jars of various capacities as well as Liquid Nitrogen pouring spout as per specifications detailed in Annexure-A appended to the tender awarded to respondent No. 5 had been challenged by the petitioner in C.W.P. No. 8023 of 2000 and this Court has restrained respondent No. 5 from enforcing the contract and after admission that case is listed before the Single Bench. It was also not disputed by the learned counsel representing the petitioner that in the tender notice bearing No. 23/2000-2001 due on 1.2.2001 some of the specifications were different than what were notified in the earlier tender notice bearing No. 02/2000-2001 due on 1.6.2000. At the same time, it was vehemently urged by that these changes have been designedly made, which are cosmetic in nature, to specifically exclude the petitioner in submitting the tender and in order to favour respondent No. 5 and for that reason the Court should intervene to prevent the arbitrary and unreasonable action of the official respondents. 9. It is well settled that the action of the State which is not based on fair play and reasonableness can be challenged before the Court. It is for the reason that it was laid down in Mahabir Auto Stores and others v. Indian Oil Corporation and others, AIR 1990 S.C. 1031 as under :- "The State acts in its executive power under Article 298 of the Constitution in entering or not entering in contracts with individual parties. Article 14 of the Constitution would be applicable to those exercise of power. Therefore, the action of State organ can be checked under Article 14. Every action of the State executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article 14 of the Constitution. Therefore, the action of State organ can be checked under Article 14. Every action of the State executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article 14 of the Constitution. If a Governmental action even in the matters of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable. Rule of reason and rule against arbitrariness and discrimination, rules of fair play and natural justice are part of the rule of law applicable in situation or action by State instrumentality in dealing with citizens. Even though the rights of the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and non-discrimination. It is well settled that there can be "malice in law". Existence of such "malice in law" is part of the critical apparatus of a particular action in administrative law. Indeed "malice in law" is part of the dimension of the rule of relevance and reason as well as rule of fair play in action." 10. Various considerations which arise in case of award of contract involving commercial transactions were highlighted in Raunaq International Ltd. v. I.V.R. Construction Limited and others, AIR 1999 S.C. 393. In paras 9, 10 and 11 of the judgment, it has been observed as under :- "9. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount importance are commercial considerations. These would be : (1) the price at which the other side is willing to do the work; (2) whether the goods or services offered are of the requisite specifications; (3) whether the person tendering has the ability to deliver the goods or services as per specifications. These would be : (1) the price at which the other side is willing to do the work; (2) whether the goods or services offered are of the requisite specifications; (3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer, and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction. 10. What are these elements of public interest ? Public money would be expended for the purposes of the contract; (2) The goods or services which are being commissioned could be for a public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work - thus involving larger outlays of public money and delaying the availability of services, facilities or goods e.g. a delay in commissioning a power project, as in the present case, could lead to power shortage, retardation of industrial development. Hardship to the general public and substantial cost escalation. 11. Hardship to the general public and substantial cost escalation. 11. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the Court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the Court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by Court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the Court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless amount of public interest, or the transaction is entered into mala fide, the Court should not intervene under Article 226 in disputes between two rival tenderers." 11. The scope of the judicial review in such matter has been clarified in Tata Callular v. Union of India, 1994 AIR S.C.W. 3344, wherein it was concluded as under :- "(1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative or quasi-administrative sphere. However, the decision can be tested by the application of the "Wednesbury principle" of reasonableness and the decision should be free from arbitrariness, not affected by bias or actuated by mala fides. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative or quasi-administrative sphere. However, the decision can be tested by the application of the "Wednesbury principle" of reasonableness and the decision should be free from arbitrariness, not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure." 12. Coming to the factual position spelt out from the record, our pointed attention was drawn to Schedule-A containing the specifications in tender No. 02/2000-2001 (Annexure-P.1). In order to show the difference in specifications in the previous tender notice and the present tender notice. The relevant criteria of the tender forming part of the tender notice Annexure-P.1 is as under :- Schedule "A" Tender Notice No. 02/2000-2001 Sr. No. Description of Stores Qty. Place of Delivery 1. Cryocan Jars 1.5-2.00 Onannual Hissar Litres R/C basis Cap. (Portable Type) Containers: 1. Capacity 1.5 litres-2 litres 2. Empty Weight of Container 1.8 Kg. to 2.5 Kg. 3. Full Weight with Liquid Nitrogen (without canisters) 3.0 Kg. to 3.60 Kg. 4. Static Holding time (Minimum of 15 Days) 5. Static Evaporation loss rate 0.08-0.097 Litres/day 6. Neck Diameter 30.35 mm. 7. Outer Diameter 168-175 mm. 8. Total Height 395-407 mm. 9. No. of Canisters 5 10. Canister Outer Diameter 17-25 mm. 11. Canister Height 120 mm. 12. Straw Holding Capacity -Single level (0.25 cc Straws) Minimum of 150 Straws Double walled vacuum and super-insulated with high strength aluminium alloy for ultra low temperature preservation of biological samples of semen of cattle and Buffalo for Artificial insemination work." The comparative study of Schedule-A attached with Annexures-P.1 and P.2 shows that in respect of Liquid Nitrogen Containers of 1.5 to 2.00 litres changes in specifications mentioned at serial Nos. 4, 5 and 12 pertaining to Static Holding Time, Static Evaporation Loss Rate and Straw Holding Capacity have been made. Alterations resulting consequently are from minimum of 15 to 20 days, .08 to .097 litres per day to .07 to .09 litres per day and from 150 to 500 straws respectively. 13. The above changes according to the stand of the petitioner would not bring any functional changes so as to give better achievements in the field of artificial insemination through frozen semen technology. 13. The above changes according to the stand of the petitioner would not bring any functional changes so as to give better achievements in the field of artificial insemination through frozen semen technology. The reasons beings that full weight of the Liquid Nitrogen Container without canister with Liquid Nitrogen remains unaltered at 3.0 to 3.60 Kg. as mentioned in Annexure-P.2 in comparison to Annexure-P.1. Even working under ideal conditions artificial insemination per day does not exceed 10 cases. The operator in the field does not carry more than 60 straws in the container from the mother container which is immobile and stationed at one place. It was also submitted out that neck diameter of the container as mentioned at serial No. 6 of the specification is 30 to 35 mm and the canisters outer diameter is from 15 to 25 mm as mentioned in both the Annexures-P.1 and P.2. Furthermore the increase in the Static Holding Time from 15 to 20 days and the decrease in the Static Evaporation Loss Rate from .08 to .097 to .07 to .09 litres per day has no bearing because the minimum capacity of the Liqid Nitrogen Container remains unchanged at 1.5 litres and for that reason the Static Holding Time works out to be 16.66 days by applying the formula of capacity of container in litres divided by Static Evaporation Loss Rate in litres. Despite the above-stated features being there apparent on the face of record one cannot ignore that it is admitted case of the petitioner that it is manufacturing canister with outer dimaneter of 17 mm while respondent No. 5 is manufacturing canister having outer diameters of 25 mm. It has also been disputed by the petitioner that specifications which have been detailed in Annexure-P.2 were possessed by respondent No. 5 for the last 4 to 5 years in comparison to the petitioner who has not manufactured Liquid Nitrogen Containers of the above mentioned specifications. Mainly because it has been in the field for the last 20 years and had been manufacturing Liquid Nitrogen Containers of different capacities itself is not sufficient to term the action of the respondents as mala fide in order to favour respondent No. 5. The factors which prevailed in determining the specifications mentioned in Annexure-P.2 have already been noticed at page 5 of this judgment. The factors which prevailed in determining the specifications mentioned in Annexure-P.2 have already been noticed at page 5 of this judgment. They apply demonstrate that before bringing changes in the specifications in-depth study had not only made with regard the performance of earlier specifications by field functionaries in hospital and dispensaries in order to bring efficiency but also economic viability keeping in view the public interest has also been taken into account. Therefore, the additional tender requirement that offer should be supported with documents of performance report issued by the Government of India and the indigenously manufacturing firms should also provide the proof of supply of these containers atleast two years back and the satisfactory performance from the institutions purchasing those containers have to be evaluated from the above noted background and as such cannot be termed as unreasonable having no nexus to the essential requirement for the purposes of arriving at just decision. The anxiety of the purchaser to take into account the ability of firms applying for tender to supply Liquid Nitrogen Containers of required specifications and the instance of past experience in the filed for atleast two years to judge the capability to do the work of requisite standard and quality are germane to achieve the desired results. The changes brought in the specifications as mentioned in Annexure-P.2 were necessitated on the basis feed back from the field with regard to the performance carried out in the months of April/May, 2000. The official respondents had also with the help of field officers, conducted the review four times and thereafter in order to achieve the maximum efficiency, the changes in the specifications were introduced. It is clear that the respondents had taken the corrective measures on the touchstone of experience gained in the field, the Court would be reluctant to interfere with the administrative decision taken in this regard because the Court does not sit as a Court of appeal. It would only intervene where it is apparent on record that the decision of the authority was motivated by considerations other than the merit of the purchase procedure adopted by the official respondents. 14. Even otherwise the stand taken by the petitioner that the changes in specifications made in tender notice Annexure-P.2 were made exclusively to favour respondent No. 5 as such cannot be accepted. 14. Even otherwise the stand taken by the petitioner that the changes in specifications made in tender notice Annexure-P.2 were made exclusively to favour respondent No. 5 as such cannot be accepted. We have perused the record and find that in all five firms have responded and submitted the tender forms. During the cause of arguments, on query from the Court, learned counsel for the petitioner admitted that even foreign firms, who are having their offices in India and capacity to supply Liquid Nitrogen Containers as per specifications contained in Annexure-P.2, were free to apply. Therefore, the stand taken by the petitioner in this regard is not only misconceived but is also not supported by any material on record. 15. Even otherwise the petitioner has no locus standi to file the present petition. It is admitted case of the petitioner that it had not manufactured Liquid Nitrogen Containers of the specifications mentioned in Annexure-P.2 and for that reason it has no working experience of two years as insisted upon in the tender notice. Therefore, they do not possess the prescribed qualifications and do not fulfil the requisite criteria prescribed in the tender notice. They have no justification to challenge the action of the respondents under the circumstances of the case. For the aforesaid, reasons, we find no merit in the petition and dismiss the same. Petition dismissed.