Judgment 1. Heard Mr. Chittaranjan Sinha for the petitioner, Mr. K.K. Mandal, learned Government Pleader No. IV for respondent nos. 1 to 7, and Mr. Shashi Shekhar Dwivedi for respondent no. 8 (National Project Construction Corporation Limited). This writ petition has been preferred with the prayer to quash the communication bearing letter No. 4517, Patna dated 13.9.2005 (Annexure-4), issued by the Building Construction Department, Government of Bihar, Patna, to respondent no. 8, whereby the entire civil construction work of Lok Nayak Jai Prakash Industrial Institute, Chapra, has been allotted to it for construction on the terms and conditions stated therein. 2. According to the writ petition, the Government of Bihar decided to set up a technical institute at Chapra in the name of Lok Nayak Jai Prakash Industrial Institute which necessitated construction of a massive complex comprising of different buildings for its use. The Building Construction Department issued advertisement which appeared in the Hindustan, a popular Hindi Daily, on 7.5.2005 (Annexure-1), whereby the entire project was divided into thirteen items. The petitioner submitted its tender for one item. The tender papers had to be submitted in two envelopes. The first one was known as the technical bid which was with respect to the eligibility criteria stipulated in the advertisement, and the second envelope related to the price bid. The advertisement further stated that the second envelope only of those of the tenderers were to be opened who would survive the qualifying round of technical bid. The technical bid was opened on 24.5.2005, and only two persons including the petitioner crossed the first stage and the rest were disqualified. In the meantime, the respondent authorities had issued a second advertisement which appeared in the Hindustan on 16.5.2005 whereby the Public Sector Undertakings of the State Government and the Central Government were called upon to submit their tenders for construction of the buildings of the State Government, technical institutes, jails, sub-jails, hostel buildings of Welfare Department etc. 2.1) The writ petition further states that even though the petitioner had crossed the stage of technical bid, it did not receive any communication for the price bid. Therefore, the petitioner had served a lawyers notice dated 9.7.2005 (Annexure-2) on the respondent authorities requesting them not to allot work to a central agency and to take steps for the second round, namely, the price bid. Therefore, the petitioner had served a lawyers notice dated 9.7.2005 (Annexure-2) on the respondent authorities requesting them not to allot work to a central agency and to take steps for the second round, namely, the price bid. The two contractors including the petitioner received communication dated 28.9.2005 (Annexure-5) calling them for the price did on the specified date. the price bid was opened on 1.10.2005. It is further stated on behalf of the petitioner that after the envelopes containing price bid were opened, the petitioner sent its communication dated 1.10.2005 (Annexure-6), stating therein that the petitioners offer was 38% higher than the floor price, whereas the other contractor had quoted 49% per cent higher than the floor price. The petitioner, therefore, requested that he may be invited for negotiation to finalise the terms and conditions of the agreement. 2.2) The petitioner complains before this Court that while the first advertisement dated 7.5.2005 (Annexure-1) was forging ahead and the petitioner had turned out to be the lowest bidder, of course for one item only, the respondent authorities had issued the second advertisement dated 16.5.2005 confining the invitation for tender to the Public Sector Undertakings and including many other jobs leading to the impugned order. Hence this writ petition. 3. While assailing the validity of the impugned action, learned counsel for the petitioner submits that respondent no. 8 had not responded to the first advertisement. The second advertisement is not covered by the first one. The second one is not a notice inviting tenders in view of the law laid down by the Supreme Court in A.I.R. 1996 S.C. page 11, paragraph 84 (Tata Cellular V/s. Union of India) which lays down the essential conditions for a valid tender. He also submitted that the impugned action is in violation of the P.W.D. Code and Bihar Finance Code. The P.W.D. Code states, as has been stated in paragraph no. 84 of the said judgment, that in order to allot work a tender by the intending contractor is essential. The tenderers alone can be invited for negotiation. He submitted that the rules must be followed. He relied on the following reported judgments: (i) A.I.R. 1984 S.C. 362 (British India Corporation Ltd. V/s. Industrial Tribunal, Punjab and Ors.) paragraphs 22 and 23. (ii)1992(1)B.L.J.172 [:1991(2)PLJR 725] (Mrs. Vineeta Prasad and Ors. V/s. Vice-Chancellor, Patna University and Ors.). The tenderers alone can be invited for negotiation. He submitted that the rules must be followed. He relied on the following reported judgments: (i) A.I.R. 1984 S.C. 362 (British India Corporation Ltd. V/s. Industrial Tribunal, Punjab and Ors.) paragraphs 22 and 23. (ii)1992(1)B.L.J.172 [:1991(2)PLJR 725] (Mrs. Vineeta Prasad and Ors. V/s. Vice-Chancellor, Patna University and Ors.). 3.1) He has also placed before me certain notings in the file, particularly of 17.2.2004, in an effort to establish that the officials objected to allotment of work in the manner it has been done. He has also submitted that the impugned action is mala fide. The first advertisement was being persued which went on up to October 2005, and the entire work was allotted to respondent no. 8 by the impugned order under the second advertisement. Public property has to be dealt with in the manner of public trust. He relies on the judgment of the Supreme Court reported in (1996)5 S.C.C. 510 (New India Public School and Ors. V/s. Huda and Ors.), paragraph 4. He lastly submitted that unless the advertisement stated that preference will be given to Public Sector Undertakings, it cannot be done. He relies on the following reported judgments: (i) A.I.R. 1986 S.C. 1527 (Shri Harminder Singh Arora V/s. Union of India & Ors.), paragraph 19. (ii) 1990 Madhya Pradesh 365 (Bhaiyalal Shukla V/s. Chairman, Special Area Development Authority Singrauli District-Sidhi, M.P. and Ors.), paragraphs 8 and 9. 3.2) He has lastly submitted that the entire project comprised of thirteen items of work, and the petitioner is interested only in one of them which may be allotted to him on the same terms and conditions as to respondent no. 8. 4. The two sets of respondents have submitted their separate sets of counter affidavits and have made separate sets of submissions. The learned Government Pleader No. IV has produced before me two files maintained by the department concerned in this connection. One seems to have dealt with the first advertisement, and the other file seems to have dealt with the second advertisement. Learned counsel for the petitioner as well as respondent no. 8 have been allowed full inspection and perusal of both the files. 5. I have perused the materials on record and considered the submissions of learned counsel for the parties. Learned counsel for the petitioner as well as respondent no. 8 have been allowed full inspection and perusal of both the files. 5. I have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to me that a large number of projects of the Government of Bihar, for construction of jails, sub-jails, hostels, technical insti- tutes, the present one etc. were pending for quite some time and work was not commencing for diverse reasons including law and order problems. Insofar as the present project is concerned, Annexure-1 is the third advertisement. Response to the earlier two advertisements were unsatisfactory and, therefore, no tender could be accepted leading to the aforesaid notice/ advertisement dated 7.5.2005 (Annexure-1). After the technical bids were considered, only two persons including the petitioner were left in the field and a few for the remaining items of the project. It further appears that the rate quoted by the petitioner was 38% higher than the prescribed rate. Therefore, the Government was impelled to give a fresh thought to the matter leading to the second notice/advertisement dated 16.5.2005. It is correct to state that the same does not lay down the terms and conditions and other relevant details of the different works mentioned therein. The same in its entirety is reproduced hereinbelow: LOCAL LANGUAGE It is, therefore, correct to state that this was a notice in general terms, inviting all the Public Sector Undertakings to submit their tenders with respect to all the pending civil construction works of the State Government. This automatically includes the work covered by the first advertisement marked Annexure-1. Absence of details and the terms and conditions with respect to the other projects is not the subject matter of the present adjudication. Therefore, insofar as the project in question is concerned, the said notice dated 16.5.2005 has to be read with the earlier advertisement dated 7.5.2005 (Annexure-1). The tenders of three Public Sector Undertakings including respondent no. 8 were considered for this project whereas the rate quoted by the petitioner for one item of the project was higher by 38%, the rate quoted by respondent no. 8 for all the 13 items of the project was higher by 9.50%. This by itself negatives all claims of the petitioner for allotment of the work. Therefore, there was obviously no need to invite the petitioner for negotiation. 6. 8 for all the 13 items of the project was higher by 9.50%. This by itself negatives all claims of the petitioner for allotment of the work. Therefore, there was obviously no need to invite the petitioner for negotiation. 6. No discrimination also seems to have taken place and the petitioner was not subjected either to hostile discrimination or unfair treatment. It would be far more easy for respondent nos. 1 to 7 to deal with one contractor, rather than 13 separate contractors for each item of work. 7. Learned counsel for the petitioner has strongly contended that the State Government has violated various provisions of the P.W.D. Code and the Bihar Finance Code in allotting work to respondent no. 8. It appears to me on a perusal of the concerned file that this matter was considered at various levels and, on a thoughtful consideration of the matter, the rules were relaxed to allot the work to a Public Sector Undertaking. The final stages are to be found in the following note dated 25.6.2005 of the Chief Secretary and the approval accorded by Mr. Buta Singh, the then Governor of Bihar. The same are reproduced herein below for the facility of quick reference: LOCAL LANGUAGE It is thus manifest that the Governor had relaxed the rules and accorded sanction for allotment of work to Central Government Public Sector Undertakings on the basis of selection during the period the State of Bihar was under the Presidents Rule. The contention is, therefore, rejected. 8. Learned counsel for the respondents are right in their submission that there was no concluded contract in favour of the petitioner, the work had not finally been allotted to the petitioner and, therefore, the petitioner has no enforceable right. 9. Distribution of Government work or largesse cannot be arbitrary and all eligible persons must be considered. It is equally true that individual interest can be sacrificed for larger public interest and public good. First of all the private contractors were considered and very few were left in the field after scrutiny of such technical bid whose rates appeared to the authorities to be on the higher side. Insofar as the petitioners item is concerned, his rate was clearly higher than that of respondent no. 8. In fact, the petitioner quoted at a higher rate for one item, whereas respondent no. Insofar as the petitioners item is concerned, his rate was clearly higher than that of respondent no. 8. In fact, the petitioner quoted at a higher rate for one item, whereas respondent no. 8 quoted for thirteen items at a lower rate. The resultant financial implication is apparent on the face of it. Thirdly, respondent no. 8 is a Public Sector Undertaking of the Ceniral Government. In view of the past experience and the difficulty it was facing in allotting work to private contractors, the State Government had taken a policy decision to select a Public Sector Undertaking. Therefore, general notice dated 16.5.2005 was issued which related to a large number of other works of the project of the Bihar Government. There is obviously no case of discrimination or favouritism. The following observations of the Supreme Court in Ramana Dayaram Shetty V/s. International Airport Authority of India, [ (1979)3 SCR 1014 : AIR 1979 SC 1628 ]: "Where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, 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 the Government in the matter of grant of largess must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norms 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." I am of the view that the impugned action of the State Government in issuing the second advertisement is not arbitrary, is in the background of the difficulties being faced in allotting the work to the private Sector. To give only one illustration, as stated hereinabove, Annexure-1 is the third advertisement for allotment of work insofar as the present project is concerned. To give only one illustration, as stated hereinabove, Annexure-1 is the third advertisement for allotment of work insofar as the present project is concerned. The willingness on the part of the Public Sector Undertakings to take the entire work is by itself a very important circumstance to allot it to a Public Sector Undertaking to the exclusion of a private contractor. The misgivings of the petitioner would not have arisen had he read the said notice dated 16.5.2005, insofar as the present project is concerned, with the terms and conditions stipulated in the advertisement dated 7.5.2005. (Annexure-1). 10. In view of its unhappy experience and the difficulties the State Government was facing in allotting different projects in the State of Bihar including the one in question to private contractors by open advertisement, it took a decision to allot the work to Public Sector Undertakings. In my opinion, this is a policy decision with which this Court would be reluctant to interfere. Granting relief to the petitioner may amount to interference with the policy decision of the respondent authorities which, subject to the recognised exceptions, is impermissible in law. The judgment of the Supreme Court in the case of State of Orissa and Ors. V/s. Gopinath Dash and Ors., reported in Judgments Today 2005 (10) S.C. 484, is relevant in the present context. The State of Orissa had framed a policy for allotment of Government accommodation on rotation basis in view of shortage of accommodation. The Orissa High Court set aside the policy decision holding that it was contrary to and inconsistent with justness and fair play and hence illegal. The Supreme Court did not agree with the judgment of the High Court, allowed the appeal, and restored the policy. Paragraphs 6 and 9 of the judgment are relevant in the present context and are set out hereinbelow for the facility of quick reference: "6. While exercising the power of judicial review of administrative action, the court is not the appellate authority and the Constitution does not permit the court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Ashif Hamid V/s. State of J&K JT 1989(2) SC 548 : 1989 SC 1899, Shri Sitaram Sugar Co. (See Ashif Hamid V/s. State of J&K JT 1989(2) SC 548 : 1989 SC 1899, Shri Sitaram Sugar Co. V/s. Union of India, JT 1990(2) SC 225 : AIR 1990 SC 1277 ). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere." "9. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theatre Company V/s. City of Chicago [(1912)57 L Ed 730]. "The problems of Government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. What is the best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review." 10.1) The judgment of the Supreme Court in U.P. Katha Factories Association V/s. State of U.P., [ (1996)2 S.C.C. 97 , paras 4 and 5 = A.I.R. 1996 S.C. 1997], may also be noted. The State Government had decided to ban completely the registration of small-scale units based on forest produce due to its non-availability from a particular date while entitling those registered prior to that date to be considered for allotment of the said produce, being a policy decision of the State. The Supreme Court declined to interfere with the policy decision. 10.2) The Supreme Court in its judgment in the case of State of Punjab V/s. Ram Lubhaya Bagga [ (1998)4 S.C.C. 117 (paras 23 and 25) = A.I.R. 1998 S.C. 1703] held that the right of the State to change its policy from time to time under the changing circumstances cannot be questioned, though the changed policy deviated from the judicial pronouncements of the Supreme Court. 10.3) The Supreme Court has held in its judgment reported in Krishna Kakkanth V/s. Government of Kerala, [ (1997)9 S.C.C. 495 (paras 35 to 38) : A.I.R. 1998 S.C. 1703], that the Government policy is not subject to judicial review unless it is demonstrably arbitrary, capricious, irrational, discriminatory or violative of constitutional or statutory provisions. No such case has been made out by the petitioner calling for interference by this Court in exercise of writ jurisdiction. 11 Learned Government Pleader is right in his submission that the powers of judicial review are very narrow in such matters. The Courts are primarily concerned whether there has been any infirmity in the decision making process and to ensure that there has been no favouritism or the like, or the authorities were not moved by extraneous consideration, or the constitutional norms have not been violated. I am convinced that the authorities have acted in public interest and no arbitrary action or mala fide approach is discernible from the materials placed before me. The learned Government Pleader is also right in placing reliance on paragraphs 10 and 12 of the judgment of the Supreme Court reported in 2005(3) P.L.J.R. (S.C.)97 (M/s Master Marine Services Pvt. Ltd. V/s. Metcalfe & Hodgkinson Pvt. Ltd. and Anr.) which are set out hereinbelow for the facility of quick reference: "10. In Sterling Computers Ltd. V/s. M/s M.N. Publications Ltd., AIR 1996 SC 51 it was held as under: "While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process". By way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Court have inherent limitations on the scope of any such enquiry. But at the same time the Courts can certainly examine whether "decision making process" was reasonable rational, not arbitrary and violative of Article 14 of the Constitution. Court have inherent limitations on the scope of any such enquiry. But at the same time the Courts can certainly examine whether "decision making process" was reasonable rational, not arbitrary and violative of Article 14 of the Constitution. If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective conside ration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting is opinion in respect of selection made for entering into such contract...." "12. The law relating to award of contract by State and public sector corporations was reviewed in Air India Ltd. V/s. Cochin International Airport Ltd., 2000(2) SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. 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 interfere." 12. Before I part with the records, I must record my extreme sense of displeasure against the conduct of the petitioner in misleading this Court and obtaining stay order far wider in its sweep than it was concerned with. This matter was for the first time taken by this Court on 6.10.2005, and it had passed the following order: "6.10.2005 As prayed by the learned State counsel, the matter is adjourned for listing one week after Puja holidays i.e. on 18th October, 2005 at the top of the list. This matter was for the first time taken by this Court on 6.10.2005, and it had passed the following order: "6.10.2005 As prayed by the learned State counsel, the matter is adjourned for listing one week after Puja holidays i.e. on 18th October, 2005 at the top of the list. Meanwhile, the respondents are restrained from proceeding further pursuant to the impugned order, contained in Annexure-4." The petitioner ought to have informed the Court that there was no need to stay operation of the entire impugned order dated 13.9.2005 (Annexure-4), and operation of the said order should be confined to the work in which the petitioner was interested. This has resulted in the stoppage of work of the remaining twelve items of the project also. 13. Respondent Nos. 1 to 7 are also to be blamed for the delay in disposal of the matter. As is manifest from the aforesaid order dated 6.10.2005, the matter was directed to be placed on 18.10.2005 for further hearing at the top of the list with a view to its final disposal, on which date the State Government had the opportunity of informing the Court that the petitioner had been able to obtain a needlessly wide stay order. However, the following order was passed on 18.10.2005: "18.10.2005.Learned counsel for the parties are present. As prayed for by Mr. D.K. Singh, learned junior counsel to Government Pleader No. 4, two months further time is granted to file the counter affidavit. Put up after three months at the top of this list. The time in the meanwhile may be utilised by the petitioner to file rejoinder, if so advised. 2. The interim order passed on 6.10.2005 shall continue to operate until further orders." So much for the alertness on the part of the respondent authorities. They must, therefore, share the balme. 14 The writ petition is accordingly dismissed.