JUDGMENT 1. - Pursuant to the order dated 14th February, 2002 passed by this Court, these three common writ petitions are heard together finally. 2. The writ petition No. 270/2002 is preferred by the petitioner Vijay Electricals Ltd. with regard to contract of lots No. 1, 3 and 4 of Package No. PSR/TR 080 for supply of 25 KVA distribution transformers and Writ Petition No. 261/2002 is with regard to lot No. 3 of Package No. PSR/TR 079 for supply of 25 KVA distribution transformers and Writ Petition No. 250/2002 is with regard to lot No. 4 and 5 of Package No. PSR/TR 079 for supply of 25 KVA distribution transformers. 3. Since facts of all these cases are of similar in nature, the facts of the case No. 270/2002 are taken as a leading case. 4. The petitioner company is the manufacturer of distribution transformers and it is also the first company to get ISO-9001 recognition in 1994. The petitioner company is supplying transformers to several countries and to almost ail the State Electricity Board and power utility of the country. 5. The petitioner company has the capacity to manufacture 159 no. of 25 KVA distribution transformers in a day and also registered with Jaipur Vidyut Vitran Nigam Ltd. as a A-Class registered supplier of transformers. 6. The Rajasthan Vidyut Vitran Nigam Ltd. has invited tenders in the matter of various Packages No. RJ-WB-PSR/TR 057. TR 058, TR078, TR 079, TR080 and TR037 for supply of distribution and power transformers. 7. The petitioner has applied for bidding for various packages and he has submitted tender documents after fully and strictly complying with the terms of the bidding document on 27.3.2001. The various packages of the petitioners were opened on 19.6.2001, 22.3.2001, 24.3.2001 and 27.3.2001 and the petitioner tenders were found to be lowest for Package No. TR 079 and TR 080.With regard to lot No. 1, 3 and 4 of Package No. TR 080, the bidders were to supply 3450, 3450 and 4020 No. of 25, KVA distribution transformers respectively. 8. The petitioner also submitted a bank guarantee of Rs. 13,97,100/- dated 24.3.2001 for lot No. 1. For lot No. 3 bank guarantee of Rs. 13,97, 100/- was submitted and for lot No. 4 bank guarantee of Rs. 16,27,900/- was submitted. 9. 8. The petitioner also submitted a bank guarantee of Rs. 13,97,100/- dated 24.3.2001 for lot No. 1. For lot No. 3 bank guarantee of Rs. 13,97, 100/- was submitted and for lot No. 4 bank guarantee of Rs. 16,27,900/- was submitted. 9. The petitioner was further asked to submit the capacity certificate and same was submitted to show that the petitioner has capacity to manufacture 159 no. of transformer of 25 KVA on 2.5.2001. 10. According to the terms of the contract the petitioner being the lowest bidder is entitled to get the contract of lot No. 1, 3 and 4 of Package No. TR 080 for supply of 25 KVA. 11. The petitioner submits that he has now learnt through reliable sources that contract for supply of transformers of lot No. 1, 3 and 4 of Package No. TR 080 are not being granted to the petitioner company. The petitioner has also come to know that the respondents are proceeding to cancel all the bids and lots of Package TR 080 because the Board of Director of the respondent No. 1 in its meeting decided that since the petitioner company had already been given a contract for Lot Nos. 3 and 4 of Package No. TR-058, they should not be given any other contract and have [illegiable] advertisement for re-tendering the package by ignoring the claim of the petitioner, therefore, these writ petitions are filed by the petitioner seeking writ order or direction by this court to award the contract of Lot Nos. 1, 3 and 4 of Package No. TR-080, Lot No. 4 and 5 of Package No. TR-079 and Lot No. 3 of Package No. 079 on the ground that the petitioner has capacity and capability of manufacture 159 transformers per day. 12. Since the petitioner fulfils all the requisite conditions and requirements for each lot and without assigning any cogent and good reason the petitioners should not be denied for awarding contract. 13. Learned counsel for the petitioner has referred clause 29 & 30 of the Instructions to Bidders which is reproduced hereunder: 29.1 In the absence of pre qualification, the purchaser will determine to its satisfaction whether the Bidder that is selected as having submitted the lowest evaluated responsive bid is qualified to perform to contract satisfactorily in accordance with the criteria list in it Clause 13.3. 29.2 The determination will take into account the Bidder's financial technical, and production capabilities. It will be based upon an examination of the documentary evidence of the Bidder's qualifications submitted by the Bidder, pursuant to ITB Clause 13.3, as well as such other information as the purchaser deems necessary and appropriate. 29.3 An affirmative determination will be a prerequisite for award of the contract to the Bidder. A negative determination will result in rejection of the Bidder's bid, in which event the Purchaser will proceed to the next lowest evaluated bid to make a similar determination of that Bidder's capabilities to perform satisfactorily, for supply of 25 KVA distribution transformers to the petitioner. 30.1 Subject to ITB clause 32, the Purchaser will award the contract to the successful Bidder whose bid has been determined to be substantially responsive and has been determined to be the lowest evaluated bid, provided further that the Bidder is determined to be qualified to perform the contract satisfactorily. Learned counsel for the petitioner also referred Clause 13.3 to which reference has been made in clause 29 read as under: 13.3 The documentary evidence of the Bidder's qualifications to perform the contract if its bid is accepted shall establish to the purchaser's satisfaction. (a) That in the case of a Bidder offering to supply goods under the contract which the Bidders did not manufacture or otherwise produce, the bidder has been duly authorised by the good's manufacturer or producer to supply the goods in the purchaser's country; (b) that the Bidder has the financial, technical, and production capability necessary to perform the contract; (c) That in the case of Bidder not doing business within the Purchaser's country, the Bidder is or will be (if awarded the contract) represented by an Agent in the country equipped and able to carry out the Supplier's maintenance, repair, and spare parts-stocking obligations prescribed in the conditions of Contract and/or Technical Specification; and (d) that the Bidder meets the qualification criteria listed in the Bid Data Sheet. 14. It is further submitted hat the petitioner fulfils all the conditions of Clause 13(3) as the petitioners themselves are manufacturing the required transformers and has financial, technical and production capability necessary to perform the contract and meets qualification criteria laid down in the Bid Date Sheet. 14. It is further submitted hat the petitioner fulfils all the conditions of Clause 13(3) as the petitioners themselves are manufacturing the required transformers and has financial, technical and production capability necessary to perform the contract and meets qualification criteria laid down in the Bid Date Sheet. In such circumstances, the respondents cannot reject the bid of the petitioner and also should not proceed with re-tendering these lots. 15. Not only this, the petitioner fulfilled the requisite requirement as stipulated in the tender document but the respondents also violate the principle of natural justice as no notice or opportunity was given to the petitioner before rejecting their lowest bid and such action is arbitrary, discriminatory add violative to the provisions of Article 14 of the Constitution of India. 16. It is further submitted that as per norms of World Bank the respondents are bound to award the contract to the lowest bidders. The petitioner fulfils all the norms of the World Bank tender and the respondent cannot be allowed to deviate from the norms fixed by the World Bank by not granting the tender in question to the petitioner. 17. On behalf of the respondents Mr. R.K. Agarwal raised preliminary objection regarding maintainability of the writ petition on the ground that the petitioner has no right to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. It is a settled law that the lowest bidder has no enforceable right to get the contract particularly when it does not satisfy essential eligibility criteria. The public authorities need to be given liberty to assess the over all situation for the purpose of taking a decision as to whom the contract is to be awarded. 18. He also submitted that the petitioner has not come with clean hands before the Court by concealing material facts. The petitioner initially did not submit eligibility criteria of the tender document and in Schedule-A to the writ petition purposefully reproduced clause 1 and 2 of Section VII(A) avoiding reproduction of other important clauses of Section VII. The petitioner further concealed the material fact that it made representation to the World Bank and that the World Bank having reviewed the matter approved the evaluation made by the respondent Company. The petitioner further concealed the material fact that it made representation to the World Bank and that the World Bank having reviewed the matter approved the evaluation made by the respondent Company. The petitioner intentionally withheld the important document i.e. Chartered Accountant's certificate and the document with regard to qualification requirement and its capability has been withheld by the petitioner purposefully to mislead the court. 19. Mr. R.K. Agarwal also pointed out the relevant facts as regard to tender in question. The international Bank for Reconstruction & development (IBRD) i.e. World Bank sanctioned loan for Rajasthan Power Sector Restructuring project, procurement, supply of Distribution Transformers are invited subject to detailed procedure for that purpose provided by the World Bank so as to ensure the guidelines of the IBRD. The tenders are finalised and works are awarded subject to review/approval of the World Bank, an agency of IBRD. 20. The Rajasthan Rajya Vidyut Prasaran Nigam Limited (for short respondent Company) has invited tenders for supply of distribution transformers. The qualification requirements i.e. eligibility criteria are envisaged in Section VII(A) of the tender document. 21. The capability and capacity to perform the contract is an essential consideration for awarding the contract and for that the tenderer is required to furnish the details of supply of distribution transformers made by it in any one year (i.e. in continuous period of twelve months) during the last five years. 22. The petitioner along with tender document submitted details of the supply made by it in last five years duly certified by the Chartered Accountant. As per Chartered Accountant's certificate the petitioner company supplied maximum quantity of 6484 Nos. 25 KVA distribution transformer in the year 1996-97. In the subsequent years the total number of supply was decreased and it was 3333 Nos. in the year 1997-98. 3215 Nos. in he year 1998-99 and thereafter in the year 1999-2000 the total supply was of 4392 Nos. and in the year 2000-2001 it was of 5660. Thus the highest supply of distribution transformers by the petitioner was in the year 1996-97 and the petitioner company under the terms of tender document could qualify for award of maximum number of 8105 transformers (6484 being 80% thereof). The supply against the above quoted tenders were to be made in the spread over of 12 months simultaneously. 23. Thus the highest supply of distribution transformers by the petitioner was in the year 1996-97 and the petitioner company under the terms of tender document could qualify for award of maximum number of 8105 transformers (6484 being 80% thereof). The supply against the above quoted tenders were to be made in the spread over of 12 months simultaneously. 23. The capability of the petitioner company and other tenderers was to be judged as per the tender condition from the maximum supply made in any one year in preceding five years as the Section 7 provides for assessment of the capability and capacity to perform the contract in the overall interest of the purchaser. The petitioner made a representation to the World Bank for ensuring fair evaluation on their tenders against the packages alleging that the petitioner being a lowest tenderer the contract against package No. 079 and 080 were not awarded in favour of the petitioner. The detailed reply was also submitted on behalf of the respondent company to the World Bank and World Bank finally approved the evaluation and recommendation made by the respondent Company. 24. The learned counsel for the respondent has placed reliance on the judgment reported in 1997 SCC (1) 738, Asia Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd. , wherein the Supreme Court has observed that in the matter of award of contract and acceptance of tender has taken this view that in case of high cost govt. projects based on loan from international financial institutions such as Asian Development Bank or World Bank, acceptance of tender by Govt. in accordance with the specifications or opinion of such institution would not be arbitrary or illegal and as such award of contract to person immediately to than that of lowest, or rebid there being no ulterior motive, favouritism, malice or malafides no interference has been called for. Therefore, in view of the ratio decided by the Apex Court it is clear that merely petitioner being the lowest bidder would not automatically. confer him right for award of contract in favour of him. 25. In rejoinder, learned counsel for the petitioner has emphatically denied the submissions made on behalf of the respondents and referred clause 13 which deals with the eligibility and qualifications. 26. confer him right for award of contract in favour of him. 25. In rejoinder, learned counsel for the petitioner has emphatically denied the submissions made on behalf of the respondents and referred clause 13 which deals with the eligibility and qualifications. 26. Learned counsel for the petitioner also submitted that the qualification for requirement is contained in Sec. VII(A) which are only pre qualification criteria which is meant only for judging the eligibility and qualification of the bidder to remain in the field. Thus, the respondent has misapplied the formula of pre qualification eligibility for judging the capacity and capability of the lowest tenderer. It is also denied that the petitioner is not having the capability to supply total number of 8105 transformers and also referred a Clause 2.11. 27. Referring these provisions the learned counsel for the petitioner submits that in the present case the borrower has not laid down any criteria as applied by them in the present case in the bidding documents. The respondents have applied a secret formula after the parties have submitted their tenders and have virtually changed the rules of the game after the game has started. 28. Learned counsel for the petitioner further submits that the approval' of World Bank cannot wash out the arbitrariness, unreasonableness and illegal action committed by the respondents No. 1 to 3. The petitioner is in position to supply requirement of all the ready transformers in all the lots for which he has been found to be lowest. 29. Learned counsel for the petitioner in support of his contentions placed reliance on the case reported in 1986 (3) SCC 247 wherein the Apex Court has held that "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 arbitrary and capriciously accept a much higher tender to the detriment of the State. 30. The Apex Court further observed that All the same the price of the appellant quoted in the tender was lower than that of respondent 4 and there was absolutely no justification whatsoever for not accepting the tender of the appellant. 30. The Apex Court further observed that All the same the price of the appellant quoted in the tender was lower than that of respondent 4 and there was absolutely no justification whatsoever for not accepting the tender of the appellant. Thus, the action of the respondent is completely arbitrary and discriminatory inasmuch as respondent 4 merely being the Government organisation had been given preference over the appellant while respondent 4 had no better quality or standard for effecting the supplies asked for under the contract and even for the pasteurized. Even in the matter of contract, the Government has to act fairly and justly and the failure of the Government to do so gives a right to the citizen to approach the court for justice. 31. Learned counsel for the petitioner also placed reliance on the case reported in 1975 (1) SCC 70 , M/s. Erusian Equipment & Chemicals Ltd. v. State of West Bengal & Another , wherein the Apex Court has held that 'The Government is a Government of laws and not of men. It is true that neither the petitioner nor the respondent has any right to enter into a contract but they are entitled to equal treatment with others who offer tender or quotations for the purchase of the goods. The privilege arises because it is the Government which is trading with the public and the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. The activities of the Government have a public element and, therefore, there should be fairness and equality. The state need not enter into any contract with any one but if it does so, it must do so fairly without discrimination and without unfair procedure. Reputation is a part of a person's character and personality. Blacklisting tarnishes ones reputation". 32. Learned counsel for the petitioner also placed reliance on the judgment reported in 2001 (8) SCC 491 , Union of India & Others v. Dinesh Engineering. Corporation & Another the Apex Court has observed as under: "Any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary, decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution". 33. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution". 33. It was further observed as under: "But then as has been held by this Court in the very same judgment that a public authority even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities, they are bound to follow the norms recognised by courts while dealing with public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review". 34. Learned counsel for the petitioner also placed reliance on the judgment reported in 1985 (3) SCC 267 , Ram And Shyam Company v. State of Haryana & Others wherein the Apex Court has held as under: "The Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of he Government in the matter of grant of largesse including award of jobs, contracts, quota, 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. At another place it was observed that the Government must act in public interest, it cannot act arbitrarily or without reason and if it does so, its action would be liable to be invalidated. It was further observed that the object of holding the auction is generally to raise the highest revenue. The Government is entitled to reject the highest bid if it thought that the price offered was inadequate. But after rejecting the offer, it is obligatory upon the Government to act fairly and at any rate it cannot act arbitrarily". 35. Learned counsel for the respondents Mr. The Government is entitled to reject the highest bid if it thought that the price offered was inadequate. But after rejecting the offer, it is obligatory upon the Government to act fairly and at any rate it cannot act arbitrarily". 35. Learned counsel for the respondents Mr. R.K. Agarwal cited a judgment in support of his contentions reported in 1999 (1) SCC 492 , Raunaq International Ltd. v. I.V.R. Construction Ltd. & Others wherein the Apex Court has held as under: "Court can examine whether tender conditions have been considered and if any relaxation granted bona fide and decision taken in a fair manner after considering all the offers". 36. The court further observed as under: "Where the decision-making process has been structured and the tender conditions set out the requirements, the court is entitled to examine whether these requirements have been considered. However, if any relaxation is granted for bona fide reasons, the tender conditions permit such relaxation and the decision is arrived at for legitimate reasons after a fair consideration of all offers, the court should hesitate to intervene" 37. The Court further observed as under: "A somewhat different approach may be required in the cases of award of a contract by the Government for the purchase of items for its use. Judicial review would be permissible only on the established grounds for such review including mala fides, arbitrariness of unreasonableness of the Wednesbury variety. Balance of convenience would play a major role in moulding interim relief". 38. Mr. Agarwal further relied upon the judgment reported in AIR 1999 SC 393 , Raunaq International Ltd. v. IVR Construction Ltd. & Others the Apex Court has held as under: "it is also necessary to remember that price may not always be the sole criterion for awarding a contract. Often when an evaluation committee of experts is appointed to evaluate offers, the expert committee's special knowledge plays a decisive role in deciding which is the best offer. Price offered is only one of the criteria. The past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the past performance of the tenderer, its market reputation and so on, all play an important role in deciding to whom the contract should be awarded". 39. Price offered is only one of the criteria. The past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the past performance of the tenderer, its market reputation and so on, all play an important role in deciding to whom the contract should be awarded". 39. Shri Agarwal further relied 'upon the judgment reported in 2000 (2) SCC 617 , Air India Ltd. v. Cochin International Airport Ltd. the Apex Court has held as under: "When Court's interference is called for, the State can choose its own method. But it should comply with the norms, standard and procedure-Price need not always be the decisive factor-Decision has to be on the basis of overall view of the transaction after weighing various relevant factors and having regard to commercial viability-court cannot interfere with the decision but it can interfere with the decision-making process on ground of mala fides, unreasonableness or arbitrariness-Court should exercise its discretionary power with great caution and only in furtherance of overwhelming public interest. 40. Mr. Agarwal also relied upon the judgment reported in 1994 (6) SCC 651 , Tats Cellular v. Union of India , wherein the Apex Court has held as under: "Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review. is made, but the decision making process itself. It is thus different from an appeal. When hearing an appeal, the Court is concerned with the merits of the decision under appeal. Since the power of judicial review is not an appeal from the decision, the Court cannot substitute its own decision. Apart from the fact that the Court is hardly equipped to do so, it would not be desirable either. Where the selection or rejection is arbitrary, certainly the Court would interfere, it is not the function of a judge to act as superboard. or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator". 41. Heard rival submissions of the learned counsel for the parties and gone through the material available on the record as also the eligibility criteria laid down in the tender document and the criteria laid down by the IBRD and also carefully examined the judgments referred by the learned counsel for the respective parties. 42. 41. Heard rival submissions of the learned counsel for the parties and gone through the material available on the record as also the eligibility criteria laid down in the tender document and the criteria laid down by the IBRD and also carefully examined the judgments referred by the learned counsel for the respective parties. 42. As evident by the rival submissions made on behalf of the respective parties that in view of the tender the petitioner as well as respondent No. 4 applied for the tender for supply of lots No. 1, 3 and 4 of package No. 080, 079, 057, 058, 078 and the tenders were opened on 19.3.01, 22.3.01, 24.3.01 and 27.3.01. It is no doubt that the offer of the petitioner was found to be lowest for Package No. TR 079 and TR 080. The petitioner as well as respondent were required to submit capacity certificate whether they are capable to manufacture the required number of transformers. It is also not disputed that the offer made by the respondent No. 4 is that highest as comparison to the petitioner. But the capacity to manufacture transformer which was certified by the petitioner Chartered Accountant at the maximum number of transformers are 6484 whereas the petitioner was required to supply 8105 number of transformers. On the contrary, the respondent No. 4 had produced the certificate of Chartered Accountant according to which he could supply more than 8000 number of transformers. 43. It is also not disputed that the loan is provided by the IBRD and it is with the satisfaction of the World Bank to whom the tender is to be awarded and the petitioner has made representation to the World Bank for ensuring the evaluation on their tenders against the packages as his tender offer was lowest for package No. 079 and 080 and the petitioner requested to award the contract in his favour. The representation so filed by the petitioner was forwarded to the respondent company by the World Bank inviting parawise comments on the issue raised in the complaint. The detailed reply was submitted by the respondent company to the World Bank. The representation so filed by the petitioner was forwarded to the respondent company by the World Bank inviting parawise comments on the issue raised in the complaint. The detailed reply was submitted by the respondent company to the World Bank. The World Bank finally approved the evaluation and recommendation made by the respondent company, therefore, contract was awarded in favour of the respondent company as the respondent company was found to be eligible to supply and having the capacity to manufacture the required number of transformers. 44. In view of the.ratio decided by the Apex Court in the cases Harvinder Singh Arora, Ram & Shyam Company, Dinesh Engineering Corporation and Erusian Equipment & Chemicals Ltd. (supra) cited by the petitioner, it is no doubt that this court can examine and interfere in the contractual matters in case it is found that the contract awarded arbitrarily, discriminatory and unreasonably. 45. In the instant case although the offer made by the petitioner is lowest but so far as the capacity and capability to manufacture the required number of transformers is concerned, the petitioner was not able to show that he is having such capability and capacity. On the contrary certificate submitted by the Chartered Accountant also discloses that the maximum number of transformers manufactured by the petitioner is 6486 whereas the required number of transformer is 8105. 46. I have also gone through the judgment referred by the learned counsel for the respondents in the case of Cochin International Airport Ltd. (supra) wherein the Apex Court has held that the court cannot interfere with the decision but it can interfere with the decision making process on grounds of mala fides, unreasonableness or arbitrariness-Court should exercise its discretionary power with great caution and only in furtherance of overwhelming public interest. As observed herein above, the petitioner is not able to prove this fact that any malafides, unreasonableness and arbitrariness has been committed while awarding the contract in favour of the respondent. 47. The case of Tata Cellular (supra) has been relied upon by both the parties. Wherein the Apex Court also re-iterated the same view that "Judicial review is only be required where the selection or rejection is arbitrary'. 48. 47. The case of Tata Cellular (supra) has been relied upon by both the parties. Wherein the Apex Court also re-iterated the same view that "Judicial review is only be required where the selection or rejection is arbitrary'. 48. As such, the learned counsel for the petitioner has utterly failed to prove as to how the decision taken by the respondent Vidyut Nigam Ltd. is arbitrary, unreasonable, unconstitutional and discriminatory and only filed this petition on the pretext that the petitioner offer is found to be lowest as comparison to the respondent No. 4. Therefore, the ratio decided by the Apex Court in the judgments cited by the respondents is fully applicable to the instant case. 49. Accordingly, no interference whatsoe is required from this Court, the petitions are misconceived and dev ' of merit and same are hereby dismissed with no order as to costs.Writ Petitions Dismissed. *******