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2004 DIGILAW 1391 (AP)

N. Dolendra Prasad v. Government Of A. P.

2004-11-18

C.V.RAMULU, DEVENDER GUPTA

body2004
DEVINDER GUPTA, C. J. ( 1 ) PETITIONER, an Editor of Telugu News weekly "zamin Ryot" has filed this petition in public Interest, alleging infirmities, irregularities and illegalities alleged to have been committed by respondents 1 and 2 in adopting a new procedure for short-listing pre-qualified Contractors for entrusting the work of completing the on-going Water resource for Irrigation Development projects and such other like projects to be undertaken by the State Government. Challenge is also to the short-listing of nine contractors (respondents 3 to 11), as arbitrary. ( 2 ) PETITIONER claims that the News Weekly "zamin Ryot" was established in 1930 and is the oldest Telugu News Weekly having wide circulation throughout the State of Andhra pradesh and it has always focussed on various issues relating to the problems of farmers in the State and has been striving for various agrarian reforms. It has been at the forefront of seeking implementation of land reforms and had also fought against the zamindari System. The News Weekly has also sought to present various other problems and issues concerning the farmer community and others and has been striving to bring various issues to the notice of the concerned Governments. In this connection, the petitioner thought it fit to invoke the extraordinary jurisdiction of the Court in highlighting the alleged irregular mode adopted in resorting to short-list the prequalified contractors for completing irrigation projects, which, according to the petitioner, is detrimental to the interests of the State and the farmers in the long run. ( 3 ) THE facts-in-brief as highlighted by the parties are that soon after the present government took over, a decision was taken for giving top priority to the Irrigation projects, keeping in view the chronic drought conditions prevailing in the State resulting in large-scale suicides by farmers and for optimum utilization of available water resources. In order to achieve that objective, the Government decided to complete the ongoing irrigation Projects within a period of two years and to complete the remaining major Projects in the next five years. The primary aim being to,solve the water problem in the State and to improve irrigation potential. Thus, it was decided to empanel agencies to execute the projects possessing the pre-qualified criterion. Accordingly, on 27-6-2004, a Tender Notice was published in the newspapers inviting offers for selection as pre-qualified tenderers for entrustment of water Resource Development Projects. The primary aim being to,solve the water problem in the State and to improve irrigation potential. Thus, it was decided to empanel agencies to execute the projects possessing the pre-qualified criterion. Accordingly, on 27-6-2004, a Tender Notice was published in the newspapers inviting offers for selection as pre-qualified tenderers for entrustment of water Resource Development Projects. The said notice specified that the Government of andhra Pradesh had proposed to complete all the important Projects in progress and also to take a number of new projects and to complete the same within a period of five years to augment the irrigation potential. The main component of the Projects were identified as the Earth Dams, Spillway structures, Concrete/masonary, Nonoverflow dams, Lift Irrigation Dams and canal system. The tender notice specified that the works would be divided into suitably large convenient packages and bids would be invited for Engineering Procurement constructions (EPE) on turn-key system (including investigation, design, preparation of construction drawings, cost estimates, construction, maintenance and operation of the same etc.) only from pre-qualified bidders. ( 4 ) THE Pre-qualification Documents issued by the Government includes general instructions to be followed by the applicants. The same laid down the conditions to be fulfilled by the applicants, which, inter alia, provide that only applicants registered with the Government of Andhra Pradesh with valid registration under Special Class in civil, in terms of various G. Os. are only eligible for participation. The same laid down the conditions to be fulfilled by the applicants, which, inter alia, provide that only applicants registered with the Government of Andhra Pradesh with valid registration under Special Class in civil, in terms of various G. Os. are only eligible for participation. Clause 1 of General instructions to applicants laying down the essential conditions reads: the notice is issued to apply for consideration to be included in the panel of agencies to be short-listed and prescribe the following qualification criteria: (a) The bidder/firm/company registered with Government of Andhra pradesh with valid registrations under special class, Civilian terms of the following G. Os are only eligible for participation i. e. ( 21 ) IN the above factual matrix, the points for consideration are the maintainability of the writ petition as PIL at the behest of the persons like the petitioner: whether interference is called for in a matter like this where Government has taken a policy decision for entrusting major packages for eight on going projects and 18 projects which are to be undertaken by resorting to epc turn-key system and not on usual tender basis; and whether interference is called for in the matter of empanelling/short listing nine firms identified as eligible for 59 major packages of 26 major projects. ( 22 ) WE heard learned counsel for the parties, who made elaborate submissions and have also gone through the material placed on record. ( 23 ) WRIT Petition, as noticed above, has not been filed by a person directly interested but by an editor of a news weekly having wide circulation and it is shown that in the past also the petitioner as well as the news weekly had brought to the notice of the Court various issues concerning the farmer community. Challenge in the writ petition is on the change in policy now adopted by the state Government to EPC generally known as Engineering Procurement Construction on turn-key system which would include investigation, design, preparation of construction drawings, cost estimates, construction maintenance and operation of the project for not less than one irrigation season. Complete go-by has been given to the traditional system, which was in vogue in the past. Complete go-by has been given to the traditional system, which was in vogue in the past. Deviation from the traditional system of tender processing, as per the petitioner, has been resorted to for the first time whereas the State Government says that this practice was already in vogue in the past also and now this system is prevalent elsewhere also in major projects. The reason for deviating from the traditional practice of inviting tenders after designs etc. are prepared by the officials of the State government, is that the State Government decided to complete the construction of the on-going projects in a time bound frame to solve the acute water problem being faced in the State and to improve irrigation potential. There have been chronic drought conditions prevailing in the State resulting in large-scale suicides by the farmers. The projects in hand and to be undertaken need to be completed in a short span with a view to have optimum utilization of available water resources. It is also stated that such procedure was in vogue in the State and was followed in devadula Scheme (Godavari Lift Irrigation scheme), National Highway Project and nhpc etc. It is stated that with a view to carry out the projects in a time bound manner, the Government took into consideration the existing policies in major projects elsewhere including irrigation projects, both within and outside the country. It was noticed that by breaking up the works in convenient packages and entrusting them to major irrigation companies on EPC turnkey system, the irrigation projects will be completed in scheduled time. The highlight of EPC turn-key system is that it does not permit any cost variations or time escalations. The tenderers have to complete the assigned task within the specified time and within the quoted rate. The system eliminates litigations arising out of deficiencies in designs, delays due to reasons attributable to insufficient investigations by the department etc. Because of these reasons, the prices quoted will be fixed and no escalations are possible. ( 24 ) WE have already noticed that the petitioner only ventilated some doubts that most of the contractors in India do not have the technical wherewithal or ability for conducting the designs, preparation of construction, drawings etc. , therefore, the state ought to have adhered to the old policy of normal tender process and not resorted to a new system. , therefore, the state ought to have adhered to the old policy of normal tender process and not resorted to a new system. ( 25 ) WITH this limited challenge to the new tender policy adopted by the State, without any other material placed on record to substantiate as to how the switch over to the policy of EPC turn-key system is illegal, arbitrary, irrational or contrary to public interest, it is not permissible for the Court in exercise of its power of judicial review to interfere with the new policy of the government. ( 26 ) IT is well settled proposition of law that unless the policy decision of the State is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the constitution, the policy decision cannot be struck down. The Court is not empowered to determine whether a particular public policy is fair. The administrative action is subject to judicial review only in regard to illegality or irrationality, namely, unreasonableness and procedural impropriety. It is also now settled that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionally, the Courts are not expected to embark upon uncharted ocean of public policy. Courts are not expected to presume any irregularities or illegalities or unconstitutionality in the State action unless these are clearly demonstrated. The Courts also cannot substitute their opinion for the bona fide opinion of the State executive. The courts are only concerned with the fairness of the decision making process. It is also equally true that the Courts cannot strike down a policy decision taken by the State executive merely because the Court is persuaded that another decision might have been fairer or wiser or more scientific or logic. The Supreme Court in State of M. P. v. Nandlal Jaiswal held that a policy decision can be interfered with by the Courts only if such decision is shown to be patently arbitrary, discriminatory or mala fide. In the matter of different modes under the rule of general application made under M. P. Excise act, the Court found that the four different modes, namely, tender, auction, fixed licence fee or such other manner were alternative to one another and any one of them could be resorted to. In the matter of different modes under the rule of general application made under M. P. Excise act, the Court found that the four different modes, namely, tender, auction, fixed licence fee or such other manner were alternative to one another and any one of them could be resorted to. ( 27 ) IN G. B. Mahajan v. L. Jalgaon municipal Council the argument that a project envisaging a self-financing scheme was beyond the powers of the local authority was turned down. It was held that a project otherwise legal would not become impermissible when local authority instead of executing the project itself had entered into an agreement with the developer for its financing and execution. The criticism for the project was that it was an unconventional method adopted by the standard of the extant practices hitherto being followed. The apex Court held that there must be something on record to show that the decision taken on policy adopted by the government was impermissible. While holding so, the Court observed that with the expansion of the State s presence in the field of trade and commerce and of the range of economic and commercial enterprises of government and its instrumentalities, there is an increasing dimension to governmental concern for stimulating efficiency, keeping costs down, improved management method, prevention of time and cost over-runs in projects, balancing of costs against timescales, quality-control, cost-benefit ratios etc. In search of these values, it might become necessary to adopt appropriate techniques of management of projects with concomitant economic expediencies, these are essentially matters of economic policy which lack adjudicative disposition, unless they violate constitutional or legal limits on power or have demonstrable pejorative environmental implications or amount to clear abuse of power. This again is the judicial recognition of adminstrator s right to trial and error, as long as both trial and error are bona tide and within the limits of authority. ( 28 ) IN Krishnan Kakkanth v. Government of Kerala it was held that unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution the policy decision cannot be struck down. ( 28 ) IN Krishnan Kakkanth v. Government of Kerala it was held that unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, court should avoid "embarking on uncharted ocean of public policy. " ( 29 ) IN the famous Balco case Balco emploeeys Union (Regd.) v. Union of India, while approving the ratio in G. B. Mahajan s case (2 supra), the Supreme Court held that the process of disinvestments is a policy decision involving complex economic factors. The Courts have consistently refrained from interfering with economic decisions as it has been recognized that economic expediencies lack adjudicative disposition and unless the economic decision, based on expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, the Courts would decline to interfere. It was further held that in matters relating to economic issues, the government has, while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within limits of authority. The Court held that no case was made out by the petitioner that the decision to disinvest in BALCO is in any way capricious, arbitrary, illegal or uninformed. The workers had challenged the disinvestments policy on number of grounds. The challenge was turned down holding that even the workers may have interest in the manner in which the Company is conducting its business, inasmuch as its policy decision may have an impact on the worker s rights, nevertheless it is an incidence of service for an employee to accept a decision of the employer which has been honestly taken and which is not contrary to law. Even a government servant, having the protection of not only Articles 14 and 16 of the constitution but also of Article 311, has no absolute right to remain in service. For example, apart from cases of disciplinary action, the services of government servant can be terminated if posts are abolished. Even a government servant, having the protection of not only Articles 14 and 16 of the constitution but also of Article 311, has no absolute right to remain in service. For example, apart from cases of disciplinary action, the services of government servant can be terminated if posts are abolished. If such employee cannot make a grievance based on Part-Ill of the Constitution or article 311, then it cannot stand to reason that like the petitioners, non-government employees working in a company which by reason of judicial pronouncement may be regarded as a State for the purpose of part III of the Constitution, can claim a superior or a better right than a Government servant and impugn its change of status. In taking of a policy decision in economic matters at length, the principles of natural justice have no role to play. While it is expected of a responsible employer to take. all aspects into consideration including welfare of the labour before taking any policy decision that, by itself, will not entitle the employees to demand a right of hearing or consultation prior to the taking of the decision. ( 30 ) WE need not multiply decisions on this point, but, would add that the decision of the Government to resort to Engineering procurement Construction on turn-key system, while short-listing the contractors on the basis of pre-qualification criteria is a result of the policy of the State Government which policy has not been demonstrated before us to be in any manner capricious, arbitrary, illegal or uniformed or against larger public interest. Only on reference to the format of the application and the qualification criteria, some doubts were raised by the petitioner without any lawful foundation. It is not shown to us that the state is prohibited from resorting to such a policy, which the State Government has adopted with the avowed object of speedy completion of the irrigation projects in the state. Therefore, for that reason, it will not be permissible for us, in exercise of power of judicial review, to interfere with the decision of the State Government in resorting to the policy of EPC on turn-key system. We do not find any illegality or irrationality in the policy decision of the Government warranting interference of the Court. Therefore, for that reason, it will not be permissible for us, in exercise of power of judicial review, to interfere with the decision of the State Government in resorting to the policy of EPC on turn-key system. We do not find any illegality or irrationality in the policy decision of the Government warranting interference of the Court. ( 31 ) THE other two questions are whether the petition as PIL is maintainable at the behest of the petitioner, and, whether any interference is called for in the matter of empanelling/short listing nine firms identified as being eligible for 51 major packages of 26 projects, more particularly, when neither the petitioner was a tenderer nor he is a person aggrieved. ( 32 ) BEFORE we deal with the aforesaid questions, it would be apt to notice the observations of the Supreme Court in ramana Dayaram Shetty v. International airport Authority of India that it is imperative in a democracy governed by the rule of law that governmental action must be kept within the limits of law and if there is any transgression, the Court must be ready to condemn it. It is a matter of historical experience that there is a tendency in every government to assume more and more powers and since it is not an uncommon phenomenon in some countries that the legislative check is getting diluted, it is left to the Court, the only other reviewing authority under the Constitution, to be increasingly vigilant to ensure observance with the rule of law and in this task, the Court must not flinch or falter. ( 33 ) THE petitioner herein has tried to lay emphasis on an important and vital aspect that while floating tender and inviting applications from reputed/leading construction agencies to quote their bids on engineering Procurement Construction on turn-key system, certain conditions were prescribed that only those reputed/leading construction agencies can participate in the pre-qualification bid "who are registered with government of Andhra Pradesh" and who satisfy the eligibility criteria as specified in pre-qualification bids/offers. Emphasis was laid on one aspect that even as per the stand of respondents 1 and 2 pursuant to the notification 24 firms/contractors submitted their pre-qualification bids within the stipulated period which were technically evaluated at the departmental level. Respondent No. 2 identified only two bidders satisfying all the pre-qualification conditions. Others did not fulfill the essential conditions. Emphasis was laid on one aspect that even as per the stand of respondents 1 and 2 pursuant to the notification 24 firms/contractors submitted their pre-qualification bids within the stipulated period which were technically evaluated at the departmental level. Respondent No. 2 identified only two bidders satisfying all the pre-qualification conditions. Others did not fulfill the essential conditions. Accordingly, a note was sent on 20-7-2004 by 2nd respondent to the State Government that only respondents 3 and 4 are fully qualified. The note pointed out that though registration of respondents 5 to 8 with the andhra Pradesh Government was not in force, they had applied for the renewal of registration to the Engineer-in-Chief, which was under process. Note further says that description of 9th respondent was wrongly given. As on the date the bid was submitted, M/s. Jayaprakash Gayathri, joint venture did not possess registration with A. P. Government or ISO certification. One of the partners of joint venture i. e. M/s Jayaprakash was having registration with A. P. Government but did not have the iso certification and the other was having iso certification but not registration with A. P. Government. As such, one had applied for registration with the State Government and the other for ISO certification, which requests were under process. As regards 10th respondent, it possessed the other qualifications but was neither having any valid registration with the State of A. P. nor a valid ISO certification. The 11th respondent though possessed ISO certification, but was not having registration with the State of andhra Pradesh and had applied for registration, which was under process. This note submitted by the 2nd respondent is stated to have been examined by the State government and considering the report of the 2nd respondent, the Government decided to empanel respondents 3 to 9 (sic. 11) by notification dated 13-8-2004. ( 34 ) IT was thus urged that relaxation in the essential criteria in the matter of qualifications prescribed for enlisting as a pre-qualified tenderer was granted, which could not have been done, more particularly, after the notification had been issued and bids had been submitted. There is no transparency in the matter of taking decision to relax the pre-qualification criteria. It was alleged that such action of the respondents in selectively granting relaxation to some of the selected agencies is not bona fide and is motivated by extraneous considerations. There is no transparency in the matter of taking decision to relax the pre-qualification criteria. It was alleged that such action of the respondents in selectively granting relaxation to some of the selected agencies is not bona fide and is motivated by extraneous considerations. In any case, the petitioner s case is that the procedure adopted by the State does not satisfy the tests of transparency, reasonableness, and fairness. It was contended that the resultant effect of the impugned action of respondents 1 and 2 in selecting only nine tenderers would vitally affect public interest and would continue to impair public rights and finances. It was urged that had it been publicly known or made known by the official respondents prior to the date of submission of bids that registration with the State of Andhra Pradesh is not a condition precedent for bidding in the pre-qualified bids, there is every possibility that in addition to the present nine firms who have been short-listed, there would have been more such like firms coming forward to bid for such major projects of considerable magnitude. ( 35 ) IT was also urged that the tender notice specifically pointed out that bids were being called to complete all important projects in progress and also number of new projects are to come up in the near future to be completed within a period of five years to augment the irrigation potential, which is also the stand taken in the counter-affidavit by the respondents 1 and 2. Therefore, the primary concern of the petitioner is as regards the transparency and fairness in the decision making process of the Government in giving a go-by to the essential pre-qualifications of the tenderers, namely, registration with the government of Andhra Pradesh and valid iso certification. Only two unofficial respondents had registration with the government of Andhra Pradesh and ISO certification. Other unofficial respondents did not possess the said qualifications as on the date of submitting their bids. The 2nd respondent in his affidavit categorically stated that only two bids satisfied all the conditions of pre-qualifications. The remaining did not qualify during technical evaluation. Out of the seven contractors, most of their registration with State of andhra Pradesh had expired. Requests for renewal were under process. In respect of few they had applied for registration as well as ISO certification. The remaining did not qualify during technical evaluation. Out of the seven contractors, most of their registration with State of andhra Pradesh had expired. Requests for renewal were under process. In respect of few they had applied for registration as well as ISO certification. We are not informed that whether renewal was applied for after the issuance of the notification inviting bids or prior to that. ( 36 ) THERE is no dispute that in the matter of execution of irrigation projects of such a magnitude, it is essential to maintain sanctity and integrity of process of evaluating the bids. Once conditions had been stipulated and condition precedent being that the bidders must possess pre-qualifications, it was but natural that only those bidders who fulfil pre-qualifications are permitted to bid and participate in the tender process. Adherence to instructions cannot be given a go-by. Otherwise, it would amount to encouraging and providing scope for discrimination, arbitrariness and favouritism, which are totally opposed to rule of law and our constitutional values. The very purpose of prescribing the pre-qualifications in the tender notice is to ensure its enforcement lest the rule of law should be a casualty. ( 37 ) IT is an admitted fact that neither in the notice inviting to offer bids nor in the prequalification documents, power was reserved with the Department or the State government to relax any of the conditions. There being no such power reserved with the Government to relax or waive a rule or condition or any pre-qualification, the action of respondents 1 and 2 in relaxing or waiving essential qualification is nothing but arbitrary exercise of power thereby impairing the rule of transparency and fairness providing room for manipulation to suit the whims of the state agencies in picking and choosing a bidder for awarding contracts. The Apex court has held that such an approach has always to be avoided. Even in such cases where power to relax or waive a rule or a condition exists; the law expects that such power existing in the rules has to be strictly complied with. ( 38 ) IN Tata Cellular v. Union of India, the scope of judicial review was examined by the Supreme Court. In that case a tender was awarded by a public authority for carrying out certain work. ( 38 ) IN Tata Cellular v. Union of India, the scope of judicial review was examined by the Supreme Court. In that case a tender was awarded by a public authority for carrying out certain work. The Court acknowledged that the principles of judicial review can apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, there are inherent limitations in the exercise of that power of judicial review. The court also observed that the right to choose cannot be considered as an arbitrary power. Of course, if this power is exercised for any collateral purpose, the exercise of that power will be struck down. Judicial quest administrative matters has been to find the right balance between the in administrative discretion to decide matters and the need to remedy any unfairness. Such an unfairness is set right by judicial review. ( 39 ) IN Raunaq International Ltd. v. I. V. R. Construction Ltd. , the precise question was about the relaxation of some of the conditions of tender, which the Authority had granted in favour of M/s Raunaq international Ltd. Relaxation of the terms of tender was permissible under the terms of the tender, which was questioned by m/s. I. V. R. Constructions Ltd. Challenge was turned down by the Supreme Court on the ground that the very challenge to the grant of relaxation in favour of the successful bidder was misplaced since the party challenging the relaxation itself did not fulfill the requisite criteria. There was power to grant relaxation under the terms of the tender, which was held to have rightly been granted. ( 40 ) IN West Bengal Electricity Board v. Patel Engineering Co. Ltd. four bidders were not permitted by the High Court of calcutta to correct a small error, which had crept in the tender documents. The West bengal Electricity Board was directed to evaluate all the bid documents. In that context, the Supreme Court held that in an international competitive bidding, which postulates keen competition and high efficiency where bidders who fulfill the prequalifications are entitled to bid, adherence to the instructions cannot be given a go-by. Otherwise, it will encourage and provide scope for discrimination, arbitrariness and favouritism, which are totally opposed to rule of law. In that context, the Supreme Court held that in an international competitive bidding, which postulates keen competition and high efficiency where bidders who fulfill the prequalifications are entitled to bid, adherence to the instructions cannot be given a go-by. Otherwise, it will encourage and provide scope for discrimination, arbitrariness and favouritism, which are totally opposed to rule of law. It was held that the very purpose of issuing rules/instructions is to ensure their enforcement lest rule of law should be a casualty. Relaxation or waiver of a rule or a condition, unless so provided in the tender documents by the State or its agencies, in favour of one bidder would create justifiable doubt in the minds of the other bidders and would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts. The Court also ruled that where power to relax or waive a rule or condition exists under the rules, it should be done strictly in compliance with the rules. ( 41 ) WHEN the notification inviting bids or the guidelines appended to the tender document nowhere reserved any right with the State Government to relax any of the terms or conditions of tender, granting relaxation in favour of those tenderers who did not fulfil the prequalification criteria, is nothing but arbitrary exercise of power. We are not to be misunderstood that the State government has no power at all to relax or waive a rule or a condition where circumstances would justify in doing so. But what was expected as a matter of fair play before taking any decision to relax in favour of only chosen ones, is to have made known to ail those who would otherwise been interested to participate in the bidding process A question would arise for consideration what considerations prevailed with the State Government in granting relaxation in favour of only a few and not considering a vital aspect that, had this condition or essential pre-qualification of having registration with the State of Andhra pradesh and ISO certification not been there in the tender notification, were there other contractors or major construction companies of national or international level, doing similar type of works and expertise, who might have offered their bids? Whether the authority which waived the aforesaid conditions, before proceeding to waive or relax such a condition in favour of only seven contractors, has applied its mind to the above aspect or not, is not demonstrated before us. Had it been made known to all in the tender notification or pre-qualification documents that the State Government will consider relaxing the pre-qualification conditions of having registration with the state of Andhra Pradesh or ISO certification, possibility cannot be ruled out that there would have been equal number of bidders coming forward to offer their bids and participate in the selection process of prequalified tenderers, may be having more expertise in such projects possibility also cannot be ruled out that several firms not having registration with the State of Andhra pradesh, because of the pre-conditions imposed in the tender notice, would not have even bothered to offer their bids even though they would have otherwise fulfilled the other pre-qualifications criteria. They must have thought of not applying for the pre- qualification tender process, as they did not completely satisfy the eligibility criteria. Because of the conditions imposed in the notification that bids with pre-qualifications only are invited from reputed/leading construction companies, which are registered with the Government of Andhra pradesh and having ISO certification, such construction companies are deprived of an opportunity of participating in the prequalified tender process. In such a situation, the principle of fair play and reasonableness assumes importance. ( 42 ) WE may also notice that even the general instructions to applicants also made it clear that bidder/firm/company should have iso certification and in case the applicant is from a joint venture it should satisfy the minimum criteria which inter alia provide that partners of the joint venture shall not be more than three and all the partners of joint venture should possess ISO certificate. All joint venture partners should have registration with the Government of Andhra pradesh with valid registration under special class. The General Instructions further pointed out that eligibility for the prequalified bid will be decided only on the strength of information/documents submitted by them along with pre-qualification bids and the information given in the pre-qualification bid will be valid as per the norms/criterion given in the pre-qualification documents. The General Instructions further pointed out that eligibility for the prequalified bid will be decided only on the strength of information/documents submitted by them along with pre-qualification bids and the information given in the pre-qualification bid will be valid as per the norms/criterion given in the pre-qualification documents. This being the position, post-notification relaxation of the essential criteria or in other words relaxing or waiving of essential pre- qualifications or conditions in favour of only chosen ones, after the bids were invited and submitted is nothing but an arbitrary exercise of power amenable to judicial review. As noticed above, it was not urged before us nor proved that there was any application of mind by the authority exercising the powers that had the relaxed conditions been there in the general instructions supplied to the applicants or had it been known to all in the notification/pre-qualification documents that the bidders not having registration with the government of Andhra Pradesh and ISO certification can also offer their bids and participate in selection process and that they may also simultaneously apply for registration with the State of Andhra Pradesh and for ISO certification, there would have been other bidders coming forward to offer their bids. Possibility cannot also be ruled out that number of other contractors not having registration with the State of Andhra pradesh or with ISO certification might have validly submitted their bids. For this reason also, we are of the view that the action of the respondents in waiving an essential prequalification condition in favour the seven bidders qualifying them as pre-qualified tenderers is patently arbitrary, irrational, discriminatory suffering from malice in law and for that reason the selection of the seven bidders to be placed on the select list of short-listed pre-qualified tenderers is bad in law. ( 43 ) THE law relating to judicial review in the matter of award of a contract by the state and its Corporations and bodies acting as instrumentalities and agencies of the Government is almost settled by the decisions of the Supreme Court in r. D. Shetty v. International Airport authority, Fertiliser Corporation Makgar union v. Union of India, Assistant Collector, central Excise v. DUNLOP India Ltd. ", Tata cellular v. Union of India (6 supra), ramniklal N. Butta v. State of Maharashtra, and Raunaq International Ltd. v. I. V. R. Construction Ltd. (7 supra ). One principle, which has always been emphasized, is that the State, its Corporations and agencies have the public duty to be fair to all concerned. When some defects are found in decision making process, the Court must exercise its discretionary power under article 226 but with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. It is also true that the Court in exercise of the power under Article 226 will not interfere in matters involving technical expertise, but, at the same time, it cannot be said that the Court has no competence to interfere where such matters are not dealt with in a transparent and fair manner or dealt with in an arbitrary and discriminatory fashion. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene. ( 44 ) NOW the question that arises for our consideration is, whether in such like situation, the petition filed by a public-spirited person, who had on earlier occasion also challenged the action of the authorities or brought to the notice of the Court certain matters of public importance, would or would not be maintainable. ( 45 ) IN Balco Employees Union (4 supra), the Court held that public interest litigation was an innovation essentially to safeguard and protect the human rights of those people who were unable to protect themselves. But with passage of time, the PIL jurisdiction was expanded so as to encompass within its ambit subjects as probity in public life, granting of largesse in the form of licences, protecting environment and the like. The judgment also noticed the fact that Prof. S. B. Sathe had summarized the extent of the jurisdiction, which is now being exercised by various Courts in other spheres. According to Prof. The judgment also noticed the fact that Prof. S. B. Sathe had summarized the extent of the jurisdiction, which is now being exercised by various Courts in other spheres. According to Prof. Sathe, a PIL has to satisfy one or more of the following parameters, which are not exclusive but merely descriptive: where the concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded labour, under-trial prisoners, prison inmates); where the affected persons belong to the disadvantaged sections of society (Women, children, bonded labour unorganized labour etc.); Where judicial law making is necessary to avoid exploitation (inter-country adoption, the education of the children of the prostitutes); Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievances redressal forums); Where administrative decisions related to development are harmful to the resources such as air or water. ( 46 ) AS noticed above, the petitioner himself has no private interest in the matter. He has just projected the arbitrariness in the exercise of power by the State and in its action in short-listing nine contractors identifying them as being eligible for award of contracts in respect of 51 major packages relating to 26 major irrigation projects in the state, the implications of which are farreaching and also having direct impact on public finance. It was stated in the notification inviting bids that the Government is proposing to complete all the important projects in progress and would also take up number of new projects. When the Court specifically called upon respondents 1 and 2 to state whether short-listing of nine contractors was only for the purpose of the on-going projects which are eight in number or would cover the other major projects as well, which are 18 in number, dr. C. V. S. K. Sarma, Principal Secretary to government, I and CAD Department, filed additional affidavit stating that the projects that are identified are: 8 on-going projects which are stipulated to be completed within two years and 18 other projects which are to be completed in five years and that the State government is very particular about the completion of the irrigation projects within the time frame and government has identified 51 major packages which cost about Rs. 100. 100. 00 crores each and 62 medium and minor packages which cost around 50 crores each for all these 26 projects. Nine firms short-listed are eligible to quote for 29 major packages for which tenders were invited and for the remaining 22 major packages tenders willalso be offered in due course. Thus, these nine firms who have already been short-listed alone are entitled to bid for 51 major packages relatable to 26 major projects in the State, thereby excluding all others, who might be equally or better qualified having better expertise. ( 47 ) SUCH a decision taken in haste without ensuring modification of the notification ensuring others also to participate, having no registration with the state of Andhra Pradesh or no ISO certification, as on the date of submitting their bids, had it been challenged by those would be liable to be quashed. Therefore, the persons like the petitioner herein cannot be said to be an unconcerned person. The petition has to be termed as having been filed in larger public interest. It is not a dispute between two tenderers. May be that there would have been more experienced and renowned construction companies having more expertise in such like projects coming forward and offering their bids for lesser amount. Therefore, the action of the state Government in selecting only nine firms becomes a matter of larger public importance and interest and, as such, the objection of the respondents that the writ petition at the behest of the petitioner is not maintainable cannot be sustained and accordingly we overrule the said objection. ( 48 ) IN view of the above discussion, we are of the view that the writ petition, to the extent to which challenge is made to the action of respondents 1 and 2 identifying and short-listing the seven bidders by granting relaxation in their favour as regards registration with the State of Andhra pradesh/iso certification, must succeed. ( 49 ) NOW, the question that remains for consideration is, whether we should set aside the entire order of short-listing the nine firms whose bids have already been evaluated by the Technical Evaluation committee, or should we pass any other appropriate order in the facts and circumstances of the case. ( 49 ) NOW, the question that remains for consideration is, whether we should set aside the entire order of short-listing the nine firms whose bids have already been evaluated by the Technical Evaluation committee, or should we pass any other appropriate order in the facts and circumstances of the case. Having regard to the facts and circumstances of the case, particularly, the desire of the Government to have all the irrigation projects in the State completed with expedition and within a time frame to augment the irrigation potential in the State, which is in the best interest and welfare of the State, we are of the considered view that it would not be appropriate to set aside the entire selection process of pre-tender qualification; but, it would be just and fair in case direction is issued to the State Government to issue a fresh notification inviting other agencies/ bidders, if any, not having registration with the State of Andhra Pradesh or ISO certification, who otherwise are interested to participate in the pre-qualification tender process, to apply for the same, making it clear that they can also simultaneously apply for having registration with the State of andhra Pradesh or apply for ISO certification. In case such agencies would offer their bids, such bids be also got evaluated by the same Technical Evaluation committee which had evaluated the earlier bids and, in case, they are also found to be fulfilling the requisite pre-qualification criteria, they shall also be considered for being shortlisted as eligible pre-qualified tenderers along with others and such short-listed agencies/tenderers will also be entitled to participate in the bids for award or entrustment of the irrigation packages. Till this process is completed, we restrain the respondents 1 and 2 from going ahead in awarding any of the 51 packages aforementioned or any part thereof to any of the nine short-listed tenderers-respondents. ( 50 ) THE Writ Petition is disposed of with the above directions. Having regard to the facts and circumstances of the case, there shall be no order as to costs. ( 51 ) AFTER the judgment is announced, learned counsel for the petitioner pointed out that during the pendency of the writ petition, respondents 1, and 2 have gone ahead in awarding some of the 51 packages aforementioned to some of the nine shortlisted tenderers. ( 51 ) AFTER the judgment is announced, learned counsel for the petitioner pointed out that during the pendency of the writ petition, respondents 1, and 2 have gone ahead in awarding some of the 51 packages aforementioned to some of the nine shortlisted tenderers. Since it was made clear that any action done during the pendency of the writ petition will be subject to the result of the writ petition, we hereby quash and set aside anything done pursuant to calling for tenders for awarding any of the 51 packages aforementioned or any part thereof.