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2008 DIGILAW 608 (GAU)

Mega Kleen v. Union of India

2008-08-14

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT Brojendra Prasad Katakey, J. 1. The petitioner, which is a registered partnership firm, favoured with a contract by the respondent Railways for washing of bedroll linens, pursuant to the notice inviting tender (NIT) dated 19.5.2006, by the present writ petition has challenged the said NIT to the extent of prescribing relaxation of eligibility criteria and splitting up of the work, as well as the order dated 8.5.2007 (Annexure-F) issued by the respondent No. 4, requesting the respondent No. 5 to develop its infrastructure for washing of bedroll linens at the place mentioned in its tender paper and to complete the work within 06-09 months so that 20% work of bedroll washing can be allotted to it in the first year which may increase up to 50% of daily offered quantity on satisfactory performance during the subsequent contractual period as per terms and conditions of the NIT and further requesting it to intimate the completion of necessary infrastructure as per its commitment given in the tender papers so that the necessary agreement can be executed after spot verification by the Railways. 2. A notice inviting tender (NIT) was issued by the NF Railway authority on 19.5.2006 inviting sealed tenders from reputed and financially sound business parties/washing firms for steam cleaning/mechanized washing, disinfecting and ironing of linens and dry cleaning of blankets for bedrolls in trains, public retiring rooms, etc., at Guwahati Railway Station with the eligibility condition that the concerned firm should be well established in the field of professional washing and cleaning; should be sound in financial capability; should submit a solvency certificate from a nationalized bank for an amount not less than 1/4th of the estimated cost of the work; and should be experienced and qualified having proven credentials of performance in reputed/major establishments for similar work (steam cleaning/mechanized washing of linen and dry cleaning), besides having the specified plant equipment and assets in Guwahati area. It has also been mentioned that the contract amount received during the last three financial years and in the current financial year should be a minimum of 50% of annualized advertised tender value and the Committee constituted for the purpose would satisfy themselves about the authenticity of the certificates produced by the tenderer(s) to this effect. It has also been mentioned that the contract amount received during the last three financial years and in the current financial year should be a minimum of 50% of annualized advertised tender value and the Committee constituted for the purpose would satisfy themselves about the authenticity of the certificates produced by the tenderer(s) to this effect. A 'Note' was appended to the eligibility conditions to the effect that any party, who does not fulfill any or all of the eligibility conditions specified above may still bid for a development/trial order for a part quantify (maximum 20% of the tender quantity in the 1st year which can increase up to 50% of daily offered quantity during the rest of the contract period) subject to the following: (i) The firm shall have a sound financial health and proven track record in any filed of business actively. This should be supported by published annual financial statement for last three years; (ii) The firm shall produce a solvency certificate from any nationalized scheduled bank for the full amount of advertised tender value; and (iii) A brief project report for setting up a mechanized laundry as per tender specifications should be given along with the tender. It was further stipulated in the said NIT that if the administration decides to award a trial order, the selected tender shall be given 6-9 months to set up the plants/requirements from the date of giving Letter of Intent (L.O.I). 3. The petitioner, who was for the previous period, i.e., up to 4.7.2007 favoured with a contract for washing of bedrolls and linens, had challenged the said NIT dated 19.5.06 in this Court in WP(C) No. 2779/06, wherein an interim order was passed on 7.6,2006 directing the Railway authority not to pass any final order pursuant to the NIT dated 19.5.2006, while allowing them to proceed with the NIT and by observing that no order is necessary as regards petitioner's participation in the tender process. Thereafter, the petitioner participated in the tender process initiated vide NIT dated 19.5.2006 by submitting his offer for awarding the contract. After that, the writ petition, being WP(C) No. 2779/06 filed by the petitioner was allowed to be withdrawn, with liberty to file afresh, vide order dated 21.2.2007 passed at the instance of the petitioner. Thereafter, the petitioner participated in the tender process initiated vide NIT dated 19.5.2006 by submitting his offer for awarding the contract. After that, the writ petition, being WP(C) No. 2779/06 filed by the petitioner was allowed to be withdrawn, with liberty to file afresh, vide order dated 21.2.2007 passed at the instance of the petitioner. A conditional order awarding the contract (hereinafter referred to as regular work) dated 28.2.2007 was thereafter issued in favour of the petitioner by the Senior Commercial Manager/G, NF Railways, on the basis of the offer made by the petitioner pursuant to the NIT dated 19.5.2006, for washing of bedrolls and linens for a period of two years from 23.2.2007 to 22.2.2009 with the condition that the petitioner will undertake all works and continue to do so for about 6/9 months till finalisation of contract and completion of other allied works by the selected tenderer under trial and development basis (20%) as per press notification and terms and conditions and further intimating that 6/9 months time from the date of LOI will be given to set up the plants/requirements for 20% works under trial and development basis by the selected tender and after satisfactory completion of the aforesaid works by the selected tenderer, 20% of the total works will be given to such tenderer for 1 year with intimation in due course and the same may increase up to 50% of the daily offered quantity during the rest of the contract period. The petitioner thereafter filed an undertaking before the Railway administration on 2.3.2007 agreeing to accept all the terms and conditions enumerated in the contract as well as in the subsequent communications unconditionally and to abide by the same. The agreement was thereafter executed by the petitioner with the NF Railways on 16.7.2007 which contains the stipulation as under: At present the contractor will undertake all works and continue to do so for about 6/9 months till finalisation of awarding contract and completion of other allied works by selected tenderer under trial and development basis (20%) as per Press Notification and terms and conditions. In this connection it may be mentioned that 6/9 months time from the date of LOI will be given to set up the plants/requirements for 20% works under trial and development basis by the selected tenderer and after satisfactory completion of the aforesaid works by the selected tenderer, 20% of total works will be given to him (selected tenderer) for first year with intimation to the contractor in due course and the same may increase up to 50% of the daily offered quantity during the rest of the contract period. Railway reserves the right to increase or decrease the contractual quantity by 50% during the currency of the contract. 4. Thereafter, vide the proceeding dated 8.5.2007 the railway administration by accepting the offer made by the respondent No. 5 for a development/trial order, pursuant to the NIT dated 19.5.2006, has awarded the contract for developing the infrastructure for washing of bedrolls and linens with the stipulation that it has to develop the infrastructure for washing the bedrolls and linens at the place mentioned in its tender paper and to complete the work within 6/9 months so that 20% work of bed roll washing can be allotted to it in the first year, which may be increased up to 50% of the daily offered quantity on satisfactory performance during subsequent contract period as per the terms and conditions of the NIT. It may also be noticed here that the respondent No. 5 also submitted the tender paper pursuant to the NIT dated 19.5.2006 who owns a mechanized washing plant at Shillong for regular work, apart from the development/trial work, which was, however, found to be non-responsive, on account of non-conformity with the conditions of the NIT relating to not having the plant in the Guwahati area. The petitioner by the present petition has challenged the NIT dated 19.5.2006 and awarding the contract for development work in favour of respondent No. 5, basically on the ground of violation of the Railway Board's circular in that regard and also on the ground that such actions suffer from colourable exercise of powers, arbitrariness and mala fide and that before issuing the order dated 8.5.2007 in favour of the respondent No. 5, the petitioner was not intimated, as required pursuant to the order awarding the contract in its favour dated 28.2.2007. 5. I have heard Mr. K.N. Choudhury, learned senior counsel for the petitioner; Mr. 5. I have heard Mr. K.N. Choudhury, learned senior counsel for the petitioner; Mr. S. Sarma, learned Standing Counsel for the respondent Railways; and also Mr. S. Kataki, learned Counsel for the respondent No. 5. 6. Challenging the decision of awarding the contract on trial/development basis, as incorporated in the NIT dated 19.5.2006, it has been submitted by Mr. Choudhury that such decision by the Zonal Railway being contrary to the commercial Circular No. 3/03 dated 24.1.2003 as well as the Notification dated 9.9.2003, cannot be sustained in law and, consequently, the decision to award the contract for trial/development vide order dated 8.5.2007 in favour of the respondent No. 5 needs to be interfered with. It has further been submitted that the Railway Board's notification dated 9.9.2003 empowers the Zonal Railways to modify/downgrade the eligibility criteria as stipulated in sub-Clause C-1(a)(i) to (v), in some cases, if it is found that it is impracticable to adhere to, on account of local conditions, but it cannot give a complete go-bye to the eligibility criteria as laid down by the Railway Board in its Commercial Circular dated 24.1.2003, in the name of modifying/downgrading, as has been done in the instant case. It has been contended that the 'Note' appended to the NIT dated 19.5.2006 has the effect of rendering the tender process a farce and such an action on the part of the Railway authority is, apart from being highly irrational, violative of Article 14 of the Constitution of India, as there is no nexus between the insertion of the 'Note' and the object sought to be achieved by such insertion. Mr. Choudhury, learned senior counsel for the petitioner has contended that the so-called policy of relaxation exercised by the Zonal Railway does not appear to be uniform as in respect of the NITs issued for Dibrugarh Town Station and Tinsukia Railway Station no such relaxation has been given, though such relaxation has been given in case of the Guwahati Station. It has further been contended that such a relaxation in respect of Guwahati Station has been given with a view to favour the respondent No. 5 who though submitted his tender for the regular work was found to be non-responsive on account of the nonconformity with the conditions of the NIT. Therefore, Mr. It has further been contended that such a relaxation in respect of Guwahati Station has been given with a view to favour the respondent No. 5 who though submitted his tender for the regular work was found to be non-responsive on account of the nonconformity with the conditions of the NIT. Therefore, Mr. Choudhury submits that the decision making process in so far it relates to the purported decision of the Zonal Railways for conceiving of a trial/development order in respect of Guwahati Railway Station and the consequent decision as contained in the proceeding dated 8.5.2007, apart from being without jurisdiction, vitiates on account of abject arbitrariness, colourable exercise of power and mala fides. 7. Referring to the decision of the Apex Court in Union of India v. Dinesh Engineering Corporation, etc. (2001) 8 SCC 491 , Mr. Choudhury has further submitted that even in the contractual matters the public authorities do not enjoy any unfettered discretion and the exercise of the discretion in the matter of accepting offers in contracts must conform to Article 14 of the Constitution of India. In the instant case, according to Mr. Choudhury, there is nothing in the Commercial Circular No. 3/03 dated 24.1.2003 and the subsequent Notification dated 9.9.2003, which enables the Zonal Railway to adopt the course as has been adopted in the instant case. Mr. Choudhury has also placed reliance on the decisions of the Apex Court in E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3 and in Ajay Haisa v. Khalid Mujib Sehravardi (1981) 1 SCC 722 in support of the contention that the impugned action taken by the Zonal Railway of awarding the trial/development order, suffers from arbitrariness and amounts to mala fide exercise of power. 8. It has been contended by Mr. Choudhury that the communication dated 2.3.2007, which has been issued by the petitioner and on which much emphasis has been laid by the respondents, cannot operate as a bar against the petitioner to file the present writ petition challenging the decision of the Zonal Railway to introduce the trial/development order, which is contrary to the Railway Board's circular laying down the guidelines issued for the purpose of the settlement. It has further been contended that the right to challenge the action of awarding the contract in favour of any one on trial/development basis by an aggrieved party cannot be taken away by communication dated 2.3.2007 whereby the petitioner has agreed to accept the terms and conditions of the contract as well as the agreement, as at that point of time no such decision was taken by the Railway authority to award the trial/development order in favour of any one and such decision was taken much thereafter, i.e., on 8.5.2007. Mr. Choudhury has also contended that in any case there cannot be any estoppel against the statute, inasmuch as the decision making process following the issuance of the award letter dated 28.2.2007 in favour of the writ petitioner having vitiated, the petitioner can maintain a writ petition. It has been submitted that the undertaking given on 2.3.2007 was in the form as stipulated in Clause (2) of the award letter dated 28.2.2007 and it cannot operate as a bar to file the present writ petition as it is evident from the award letter dated 28.2.2007 that the terms and conditions envisaged in the NIT and in the general conditions are sought to be enforced subsequently. It has further been submitted that Clause (1) of the award letter dated 28.2.2007 visualizes the modification of the terms and conditions as contained in the original terms and conditions by envisaging the role of IRCTC in the performance of the contract following the issuance of NIT dated 19.5.2006 and that is why in the award letter dated 28.2.2007 which was provided that since the IRCTC is programmed to take over the future contract, the petitioner was informed that it will have to execute a tripartite agreement with the NF Railways and the IRCTC. However, no such tripartite agreement was executed. Placing reliance on the decision of the Apex Court in New Bihar Bidi Leaves Co. v. State of Bihar (1981) 1 SCC 537 it has been submitted that a person cannot be debarred from enforcing his fundamental rights on the ground of estoppel or waiver and, in the instant case, as the fundamental right of the petitioner guaranteed under Article 14 of the Constitution of India has been violated, the petitioner cannot be non-suited because of the undertaking given on 2.3.2007. 9. Mr. 9. Mr. Choudhury further submits that as because it has participated in the tender process pursuant to the NIT dated 19.5.2006, which contains the 'Note', it cannot be debarred from challenging such a condition in the NIT on that count alone, on the ground of violation of Article 14 of the Constitution of India as if a contract or clause in a contract is found unreasonable or unfair or irrational, one must look at the relevant bargaining power of the contracting parties and the party with a lesser or no bargaining power has either to accept the unreasonable and unfair term or to forego the services for ever. In the instant case, according to Mr. Choudhury, the petitioner had no bargaining power and was bound to accept the unreasonable and unfair term in the NIT and submit its tender paper pursuant to such NIT having the 'Note' though such provisions in the NIT is most unreasonable, unfair and irrational and, therefore, it violates Article 14 of the Constitution. Hence, according to Mr. Choudhury, the petitioner cannot be debarred from challenging such an unreasonable, unfair and irrational condition in the NIT. In support of his contention, Mr. Choudhury has placed reliance on the decision of the Apex Court in LIC v. Consumer Education and Research Centre (1995) 5 SCC 482 ; Central Inland Water Transport Corporation v. Brojo Nath Ganguly (1986) 3 SCC 156 , and also in Kumari Shrileka Vidyarthi v. State of Uttar Pradesh (1991) 1 SCC 212 . It has further been contended that in order to survive a State action, it must not be susceptible to the nice of the arbitrariness and, in the instant case, as the action on the Dart of the respondent authority suffers from arbitrariness and thereby violates the provisions of Article 14of the Constitution, such action needs to be struck down Mr. Choudhury in this regard has also placed reliance on a decision of this Court in Sumit Enterprise v. Union of India (2005) 4 GLT 227. 10. Referring to the award letter dated 28.2.2007, it has been submitted by Mr. Choudhury in this regard has also placed reliance on a decision of this Court in Sumit Enterprise v. Union of India (2005) 4 GLT 227. 10. Referring to the award letter dated 28.2.2007, it has been submitted by Mr. Choudhury that it is evident from the said award letter issued in favour of the petitioner that the Railway authority has informed the petitioner that before taking a decision relating to the trial/development order, the petitioner would be intimated, but the Railway authority admittedly has issued the impugned order dated 8.5.2007 in favour of the respondent No. 5 without prior intimation to the petitioner and as such, such an order cannot stand the scrutiny of law, being violative of the award letter dated 28.2.2007. In any case, according to Mr. Choudhury, the respondent No. 5 being a bidder in the regular work and his bid for such work having been found to be non-responsive on account of non-conformity with the condition in the NIT, he cannot be awarded with the contract for trial and development and that too in the guise of breaking the monopoly of the petitioner in such work and to enter into a healthy competition. According to Mr. Choudhury, the Railway authority has taken such a decision in awarding the trial/development order in favour of the respondent No. 5 only with a view to favour him and not in any public interest. 11. Mr. Sarma, learned Standing Counsel for the respondent Railways has, on the contrary, submitted that the writ petition filed by the petitioner is not maintainable as the same is based on disputed question of facts arising out of a contract between the parties and such writ petition has been filed without exhausting the alternative remedy available to it. It has further been submitted that since the dispute arises out of an agreement executed between the petitioner and the Railway authority, which has an arbitration clause in it, the writ court may not entertain the writ petition. In this connection, Mr. Sarma has placed reliance on a decision of this Court in Principal Secretary to the Govt. of Nagaland v. Dimapur Contractors and Suppliers Union 2007 (2) GLT 260. 12. It has further been contended by Mr. In this connection, Mr. Sarma has placed reliance on a decision of this Court in Principal Secretary to the Govt. of Nagaland v. Dimapur Contractors and Suppliers Union 2007 (2) GLT 260. 12. It has further been contended by Mr. Sarma that the petitioner having withdrawn the earlier writ petition being WP(C) No. 2779/06 filed challenging the conditions in the impugned NIT dated 19.5.2006 and thereafter having accepted the conditional order awarding contract in its favour dated 28.2.2007 and entering into an agreement on 16.7.2007 and also having given an undertaking dated 2.3.2007 that he will abide by all the conditions, is estopped from challenging the conditions in the NIT dated 19.5.2006 as well as the order issued by the Railway administration in favour of the respondent' No. 5 dated 8.5.2007. According to Mr. Sarma, the Railway Board circular dated 21.4.2003 read with the subsequent circular dated 9.9.2003 empowers the Zonal Railway to modify/downgrade the eligibility criteria if it is found that it is impracticable to adhere to any eligibility condition on account of the local conditions and, accordingly, the Zonal Railway with the approval of the General Manager has relaxed the eligibility criteria, strictly in terms of the Railway Board circulars, giving emphasis on the public interest and as such, the contention of the petitioner that such a decision of the Zonal Railway is contrary to the Railway Board circulars cannot be sustained. It has further been contended by Mr. Sarma that in the NIT dated 19.5.2006, it has specifically been mentioned that any party who does not fulfill any or all of the eligibility conditions specified in the NIT may still bid for development/trial order subject to the conditions stipulated therein, including the condition that if the administration decides to award a trial order, the selected tenderer shall be given 6/9 months to set up the plant requirements. According to the learned Counsel, the petitioner having accepted such conditions in the NIT, submitted its bid for the regular work and having done so, the petitioner cannot turn around and challenge the conditions in the NIT on the ground that it is arbitrary and unreasonable being contrary to the Railway Board's circular, more so when the petitioner has failed to demonstrate any arbitrary or mala fide action in the writ petition. 13. Referring to the conditional order awarding the contract in favour of the petitioner, Mr. 13. Referring to the conditional order awarding the contract in favour of the petitioner, Mr. Sarma further contends that in the said order dated 28.2.2007 the petitioner was informed that it will undertake all works and continue to do so for about 6/9 months till the finalisation of awarding the contract and completion of other allied works by the selected tenderer on trial/development basis (20%) and about the requirement of setting up of the plant within 6/9 months time from the date of issuance of LOI to the selected tenderer and that on trial and development basis 20% of the work will be allotted to it i.e. to such selected tenderer in the first year with intimation to it in due course and which may be increased up to 50% of the daily offered quantity during the rest of the contract period. According to Mr. Sarma, the petitioner was also informed that the Railway reserves the right to increase or decrease the quantity of work by 50% during the current year of the contract. Such conditions having been accepted by the petitioner by accepting the conditional award of the contract and by giving an undertaking dated 2.3.2007 and also by executing the agreement dated 16.7.2007 which also contains such clause, according to Mr. Sarma, the petitioner cannot subsequently turn around and challenge the conditions in the NIT as well as the communication issued to the respondent No. 5 on 8.5.2007. It has further been submitted that the petitioner having not challenged the award of contract dated 28.2.2007 cannot challenge the conditions stipulated therein. 14. Mr. Sarma further submits that the intimation which is required to be given to the petitioner about the selected tenderer for issuing LOI under trial and development basis, as envisaged in the order of awarding contract in favour of the petitioner dated 28.2.2007, does not mean that the petitioner has to be informed prior to taking a decision in that regard, by the Railway administration. Such a stipulation in the said order dated 28.2.2007 requires the Railway administration to inform the petitioner after taking a decision and allowing the selected tenderer to set up the plant. Therefore, according to Mr. Sarma, the argument of the learned Counsel for the petitioner that it has to be informed prior to the issuance of the communication dated 8.5.2007 is misconceived. Mr. Therefore, according to Mr. Sarma, the argument of the learned Counsel for the petitioner that it has to be informed prior to the issuance of the communication dated 8.5.2007 is misconceived. Mr. Sarma further contends that it is apparent from the agreement dated 16.7.2007 entered into between the petitioner and the Railway administration that the nature of the contract was for 80% regular work and the petitioner having accepted the terms and conditions of the agreement by executing the same and having not challenged such agreement, cannot now question the conditions in the NIT dated 19.5.2006 as well as the communication dated 8.5.2007 issued in favour of respondent No. 5. 15. It has further been contended by Mr. Sarma that the petitioner though argued that the decision making process suffers from mala fide exercise of power, there being no factual foundation in the writ petition, such a plea cannot be accepted, as it is a settled position of law that to substantiate such a plea of mala fide the petitioner must demonstrate strong factual foundation, which is not present in the present case. That apart, according to the learned Counsel, the petitioner has not impleaded any person by name against whom such an allegation of mala fide has been urged during the course of argument. Mr. Sarma submits that the Zonal Railway has taken a decision for splitting up of the contract and for issuing the trial and development order, keeping in view the various complaints received by it against the petitioner, who is the sole firm having a mechanized plant in Guwahati area as there is no other bidder for last few years for the work in question having mechanized plant within the Guwahati area and with a view to invite competition and for extending better facilities to the commuters of the Railways and as such, in public interest. Such decision, according, to Mr. Sarma, cannot be termed as arbitrary or unreasonable. 16. Mr. Sarma further contends that such a decision for awarding the contract on trial/development basis in respect of Dibrugarh Town Railway Station and Tinsukia Railway Station was not taken as the volume of work in those Stations are very small in comparison to Guwahati Railway Station. Such decision, according, to Mr. Sarma, cannot be termed as arbitrary or unreasonable. 16. Mr. Sarma further contends that such a decision for awarding the contract on trial/development basis in respect of Dibrugarh Town Railway Station and Tinsukia Railway Station was not taken as the volume of work in those Stations are very small in comparison to Guwahati Railway Station. It has further been submitted that the contention of the petitioner that as the respondent No. 5 was a bidder in respect of the regular work under the NIT dated 19.5.2006, he is not eligible to bid for trial/development basis, whose tender for regular work was rejected to be non-responsive, cannot also be accepted, as it is apparent from the condition in the NIT dated 19.5.2006 that to be responsive to the conditions of the NIT for awarding the contract for regular work the bidder must have a mechanized plant in Guwahati and also the condition that person who is not eligible for regular work can also bid for trial/development work. Such a condition admittedly was not fulfilled by the respondent No. 5 for regular work, who has also submitted the tender in respect of trial and development work and he having been found most suitable, has been awarded with the order for trial/development basis. Mr. Sarma, therefore, submits that the action on the part of the respondent Railways is in no way arbitrary or unreasonable and such action has not violated the fundamental right of the petitioner guaranteed under Article 14 of the Constitution of India, more so when he was not a bidder in respect of the trial and development order. It has further been submitted by Mr. Sarma that in view of the aforesaid position no ulterior motive can be attributed to the Railway administration in selecting and awarding the trial and developmental work in favour of respondent No. 5, 17. Mr. It has further been submitted by Mr. Sarma that in view of the aforesaid position no ulterior motive can be attributed to the Railway administration in selecting and awarding the trial and developmental work in favour of respondent No. 5, 17. Mr. Kataki, learned Counsel for the respondent No. 5, supporting the action of the Railway administration, has contended that the petitioner having submitted the tender by accepting the conditions stipulated in the NIT dated 19.5.2006 and the conditional order awarding contract in its favour dated 28.2.2007 as well by giving an undertaking dated 2.3.2007 and also by executing the agreement dated 16.7.2007, cannot challenge the conditions in the NIT as well as the order issued in favour of the respondent No. 5 on 8.5.2007, as no one can be allowed to approbate and reprobate. Mr. Kataki, in support of his contention has placed reliance on a decision of the Apex Court in New Bihar Bidi Leaves Co. and Ors. (supra). It has further been contended by Mr. Kataki that the conduct of the petitioner disentitles it to any relief as claimed in the writ petition and it has been stopped from challenging the LOI issued in favour of respondent No. 5 as well as in challenging the Railway authority's decision in splitting up the contract, the writ petitioner having accepted the conditions in the NIT dated 19.5.2006 as well as the work order issued in its favour on 28.2.2007 with the condition and having entered into an agreement with such condition and also by giving an undertaking to accept all the terms and conditions of the contract. Mr. Kataki, in support of such contention has placed reliance on the decision of the Apex Court in Suneeta Aggarwal v. State of Haryana 2000 (2) SCC 615 . 17. The learned Counsel further submits that it is within the competence of the authority to fix its own terms and conditions of inviting tender and such terms and conditions being not absolutely arbitrary or mala fide is not open to judicial scrutiny and, in the instant case, according to Mr. 17. The learned Counsel further submits that it is within the competence of the authority to fix its own terms and conditions of inviting tender and such terms and conditions being not absolutely arbitrary or mala fide is not open to judicial scrutiny and, in the instant case, according to Mr. Kataki, the terms and conditions stipulated in the NIT dated 19.5.2006 cannot at all be termed as arbitrary or decision of splitting up the contract and for awarding the trial and development order cannot be termed as mala fide as the said decision was taken in public interest and to generate competition, keeping in view the fact that the petitioner was for the last few years the only bidder in respect of such a work having mechanized plant in Guwahati area and there was absolutely no competition. That apart, according to Mr. Kataki, the petitioner cannot challenge the LOI issued in favour of respondent No. 5 he having not the bidder in respect of the trial and development order. Mr. Kataki further submits that the scope of judicial review of the contractual matter is very limited and unless the involvement of the public law element is shown, the court may not exercise the jurisdiction under Article 226 of the Constitution in a contractual matter, more so when such a decision is taken in public interest, which is the paramount consideration in the case in hand. Mr. Kataki submits that such a decision has been taken by the Zonal Railway strictly in conformity with the Railway Board's circular dated 24.1.2003 as well as the subsequent circular dated 9.9.2003 and in public interest. Therefore, it cannot be said that the action of the Railway authority is unreasonable and arbitrary as the said decision has been taken by the authority by considering all the relevant materials available and by applying its mind to all the relevant facts. Mr. Kataki, in support of his contention has placed reliance on the decisions of the Apex Court in G.B. Mahajan v. Jalgaon Municipal Council (1991) 3 SCC 91 ; Sterling Computers Ltd. and Ors. v. M & N Publications Ltd. (1993) 1 SCC 445 ; Dinesh Engineering Corporation (supra); Directorate of Educational v. Educomp Datamatics Ltd. (2004) 4 SCC 19 ; and Puravankara Projects Ltd. v. Hotel Venus International and Ors. (2007) 10 SCC 33 . 19. Mr. v. M & N Publications Ltd. (1993) 1 SCC 445 ; Dinesh Engineering Corporation (supra); Directorate of Educational v. Educomp Datamatics Ltd. (2004) 4 SCC 19 ; and Puravankara Projects Ltd. v. Hotel Venus International and Ors. (2007) 10 SCC 33 . 19. Mr. Kataki further submits that the petitioner in the writ petition has failed to place any material on record to show that the action on the part of the authority suffers from mala fide. According to him, the person who alleges mala fide is to prove by necessary pleadings establishing mala fide and burden is very heavy on the person who alleges. It has been submitted that in the writ petition there is not a whisper about the mala fide and no factual background has been pleaded and, therefore, the contention of the petitioner that the action on the part of the Railway authority suffers from mala fide cannot be sustained. In support of his contention, Mr. Kataki has placed reliance on the decision of the Apex Court in E.P. Royappa (supra). 20. It has further been submitted that there is always a presumption in favour of the governmental action being reasonable and in public interest unless of course such presumption is rebutted by the party challenging its validity and demonstrate that such an action of the Government is unreasonable and against public interest. According to Mr. Kataki, the petitioner could not place any material to demonstrate that the action on the part of the authority is unreasonable, arbitrary and suffers from the vice of mala fide and against public interest. Therefore, according to Mr. Kataki, the writ petition deserves to be dismissed. In support of his contention, Mr. Kataki has placed reliance on a decision of the Apex Court in Kasturi Lal Lakshmi Ready v. State of Jammu and Kashmir AIR 1980 SC 1992 . 21. Mr. Therefore, according to Mr. Kataki, the writ petition deserves to be dismissed. In support of his contention, Mr. Kataki has placed reliance on a decision of the Apex Court in Kasturi Lal Lakshmi Ready v. State of Jammu and Kashmir AIR 1980 SC 1992 . 21. Mr. Kataki further submits that as the object sought to be achieved by the splitting up the work and to award part of the contract on trial and development basis by the Railway administration is to give benefit to the commuting public and in public interest, this Court may not interfere with such an action taken by the Railway administration, at the behest of a businessman who is concerned with his personal gain, in exercise of its discretionary power under Article 226 of the Constitution, which is required to be exercised only in furtherance of the public interest and not merely on the making out of a legal point. According to Mr. Kataki, the court is always required to keep the larger public interest in mind in order to decide whether the intervention is called for or not, in exercise of its power under Article 226 of the Constitution of India and only when it comes to the conclusion that overwhelming public interest requires interference, the court may interfere with the decision making process of the authority. According to Mr. Kataki, as the decision has been taken in greater public interest, this Court may not interfere with the conditions in the NIT dated 19.5.2006 as well as the decision of the Railway authority as reflected in the proceeding dated 8.5.2007. Mr. Kataki, in support" of his contention has placed reliance on the decisions of the Apex Court in Air India Ltd. v. Cochin Int. Airport Ltd. (2000) 2 SCC 617 as well as VTH MAND T Consultants, Secundrabad v. S.Y. Nawab (2003) 8 SCC 100 . It has been contended that admittedly the respondent No. 5 being not qualified under the terms and conditions of the NIT dated 19.5.2006 for awarding the contract for regular work, he having no mechanized plant in Guwahati area, his submission of tender and rejection thereof for regular work would in no way affect his bid for trial and development work. Mr. Mr. Kataki further submits that the petitioner has not challenged the selection of the respondent No. 5 in awarding the contract for trial and development basis on the ground that he is not qualified for awarding such contract, which according to the learned Counsel, in any case cannot be challenged by the petitioner he being not a bidder in respect of the said work. 22. Refuting the argument of the learned senior counsel for the petitioner, it has further been submitted by Mr. Kataki that the intimation which is required to be given to the petitioner as envisaged in the work order issued in its favour dated 28.2.2007 does not require the Railway administration to inform the petitioner before taking a decision and before issuance of LOI for trial and development work and it requires the authority to inform the petitioner only after issuance of LOI as has been done in the instant case, as awarding contract in favour of the petitioner is itself conditional. It has further been submitted by Mr. Kataki that while there is no dispute in the proposition of law enunciated by the Apex Court in various decisions cited by the learned senior counsel for the petitioner, those are not applicable in the case in hand, keeping in view the facts and circumstances involved in the present case. 23. Refuting the arguments put forth by the learned Standing Counsel for the Railways as well as the respondent No. 5 that there is no arbitrariness in the decision making process and the petitioner's conduct having been suffered from the vice of approbation and reprobation, it is not entitled to any relief, Mr. Choudhury has submitted that the clause in the NIT in the form of a 'Note' being contrary to the Railway Board's circular and having suffered from arbitrariness, the petitioner cannot be non-suited on the ground of giving an undertaking. Mr. Choudhury has submitted that the clause in the NIT in the form of a 'Note' being contrary to the Railway Board's circular and having suffered from arbitrariness, the petitioner cannot be non-suited on the ground of giving an undertaking. Mr. Choudhury has further submitted that the plea taken by the respondents that the writ petition may not be entertained because of having an alternative remedy by way of arbitration clause in the agreement executed between the petitioner and the Railway authority, cannot be accepted as availability of an alternative remedy is not always a bar to entertain a petition under Article 226 of the Constitution, which is nothing but a self-imposed limitation and a writ petition can be entertained even where there is an alternative remedy, when such a petition is filed for enforcement of any fundamental right or on the ground of violation of the principles of natural justice or where the order or the proceedings is without jurisdiction. According to Mr. Choudhury, since the decision to conceive of trial/development order is without jurisdiction as it is not within the competence of the Zonal Railways to formulate such policy which is contrary to the Railway Board's circular and such decision to award the trial/development order is violative of Article 14 of the Constitution as well as the order dated 8.5.2007 is in violation of the principles of natural justice as the petitioner was not put into notice before taking such decision, the present writ petition is maintainable even though there is an alternative remedy by way of having an arbitration clause in the agreement. In support of his contention, Mr. Choudhury has placed reliance on the decision of the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks (1998) 8 SCC 1 . 24. Referring to the notes recorded in the file placed before this Court, which contains the decision making process towards visualizing a trial order, it has been contended that the same is contrary to the clause in the NIT dated 19.5.2006 as in the NIT it has been specifically mentioned that the Railway reserves the right to divide the advertised quantity amongst more than one technically qualified bidders if it is found necessary in the administrative interest to promote competition, if a tenderer is found suitable for award of such trial order. According to the learned senior counsel, such work can be divided only when a bidder is found technically qualified and not otherwise and, therefore, the Note appears in the NIT cannot be read in isolation and has to be read in conjunction with the criteria laid down in the NIT for placing the regular as well as the trial order. According to the learned senior counsel, the respondent Railways cannot take a different stand, which is contrary to the clause in the NIT and such a stand if taken cannot be sustained. In support of his contention, Mr. Choudhury has placed reliance on a decision of the Apex Court in M.S. Gill v. Chief Election Commissioner AIR 1978 SC 851 . 25. Replying to the submission of the learned Standing Counsel for the Railways that the eligibility criteria was not downgraded in respect of the NIT issued for Tinsukia Railway Station as well as Dibrugarh Town Railway Station because of the volume of the work, which is very small, it has been submitted by Mr. Choudhury that such a plea has not been taken in the affidavit-in-opposition filed and, therefore, they cannot improve their case by filing an additional written submission. According to him, it is not conceivable that Tinsukia Railway Station and Dibrugarh Town Railway Station being relatively under-developed than the Guwahati Railway Station, they will have the mechanized plant in those place for which the eligibility criteria was not needed to be downgraded as in the case of Guwahati Station. Countering the submission of the learned Counsel for the respondents that the petitioner being not the tenderer in respect of the trial/development work, it cannot challenge the order passed in favour of respondent No. 5, it has been submitted that in the facts and circumstances of the case, such a submission is wholly misconceived. 26. Mr. Choudhury further contends that the contention of the respondents that there is no specific allegation of mala fide in the pleadings and as such, the said plea cannot be gone into by this Court, cannot be accepted as a correct proposition of law, as there is no straight cut formula for determining the mala fide and the court can interfere with the decision making process and, consequently, the decision taken thereof, if mala fide exercise of power can reasonably be inferred from the attending facts and circumstances. Referring to the statements made in para-28 of the writ petition as well as in para-7 of the affidavit-in-reply filed by the petitioner, Mr. Choudhury submits that the petitioner has specifically averred that the official respondents have shown undue favour in the matter of awarding the trial order to the respondent No. 5. According to Mr. Choudhury, the mala fide exercise of power by the respondent authorities can be inferred from the attending facts and circumstances of the case and as the authority has exercised the power not vested in it or extraneous to the purposes for which the power was vested. Mr. Choudhury, therefore, submits that it is not that in each and every case when mala fide is alleged, there has to be pleadings and the officer against whom the allegation of mala fide is made has to be made a party and all depends upon the facts and circumstances of each case. In support of his contention, Mr. Choudhury has placed reliance on the decisions of the Apex Court in S. Pratap Singh v. State of Punjab AIR 1964 SC 72 ; Barium Chemicals Ltd. v. Company Law Board AIR 1967 SC 295 ; and State of Punjab v. Ramjilal (1970) 3 SCC 602 . 27. I have considered the submissions of the learned Counsel for the parties and also perused the pleadings as well as the materials on record made available by the Railway administration. 28. The Railway Board issued the Commercial Circular No. 3/03 on 24.1.2003 laying down the terms and conditions in respect of linen washing/cleaning contract for cleaning of bedrolls, etc. By the said Circular the Railway Board has laid down the tender procedure, which contains the two bid systems, namely the technical-cum-commercial bid and the price bid. It has also laid down the eligibility conditions, which are as follows: 1. Eligibility Conditions: The following eligibility conditions should be included in the tender conditions: (a)(i) The firm should be well established in the field of professional Washing and cleaning services of linen. (ii) Only experienced and qualified firms having proven credentials of unblemished performance in reputed major establishments for similar work should apply along with supporting documents. (iii) The tenderer must have completed at least one work of similar nature, valuing not less than one-third the estimated cost of this work in any period of 12 calendar months in last 3 years. (ii) Only experienced and qualified firms having proven credentials of unblemished performance in reputed major establishments for similar work should apply along with supporting documents. (iii) The tenderer must have completed at least one work of similar nature, valuing not less than one-third the estimated cost of this work in any period of 12 calendar months in last 3 years. Alternatively the aggregate value of works of similar nature executed in a period of 12 calendar months in last 3 years should not be less than 50% the estimated cost of this work. This evaluation shall be done on the basis of payments received for the corresponding period in respect of work/works of similar nature. For this purpose the tenderers are required to furnish the necessary details duly attested by the concerned office/department. (iv) The firm should have sound financial capability. The firm shall submit a solvency certificate from a Nationalized or Scheduled Bank for an amount not less than 1/4th of the estimated cost of this work. (v) The annual Turnover: The annual turnover of the tendering firm in last 3 years shall not be less than one and a half time the estimated cost of this work as per ITCC to be submitted along with this tender. (vi) The tenderers will submit with the tender details of machinery plant and other credentials as per Annexure-2 enclosed. Railway Administration, if so feels, shall inspect the infrastructure and facilities available with the firm so as to assess the capability of the firm to execute the work successfully. (b) The tenderer must give all the required documents as per tender notice. Eligibility of the firm must be attached along with the tender documents. If the tenderer does not fulfill the eligibility conditions mentioned above, the offer would be summarily rejected. 29. The Chief Commercial Manager, NF Railways thereafter issued the NIT in the month of October 2003 for the purpose of steam cleaning-cum-mechanized washing, disinfecting and ironing of linens and dry cleaning of blankets for bedrolls etc. at Guwahati Railway Station in terms of the Railway Board circular in that respect. 29. The Chief Commercial Manager, NF Railways thereafter issued the NIT in the month of October 2003 for the purpose of steam cleaning-cum-mechanized washing, disinfecting and ironing of linens and dry cleaning of blankets for bedrolls etc. at Guwahati Railway Station in terms of the Railway Board circular in that respect. The petitioner firm having been found the lone responsive bidder fulfilling the requirements of the NIT awarded with the contract and it being the only responsive bidder continued with such contract agreement upto 4.7.2006 without there being any competition whatsoever as there was no bidder having a mechanized washing plant at a suitable location at Guwahati, which is one of the conditions in the NIT. 30. The Railway Board having thought it fit that some modification to its earlier commercial circular No. 3/03 dated 24.1.2003 are necessary in respect of the terms and conditions for linen washing/cleaning contract for cleaning of bedroll, etc., issued another circular dated 9.9.2003 modifying the Clause No. C-1(a)(iii), Clause-1 (a)(iv) and Clause-1 (a)(v), apart from deleting Sub-clause A(a)(iv) regarding requirement of income tax clearance certificate and allowing modification/downgrading of eligibility criteria as stipulated in Sub-clause C-1(a)(i) to (vi), in some individual cases, if it is found that the same is not practicable to be adhered to on account of local conditions, with further stipulation that the reasons for the same should be recorded and dilution in criteria to minimum extent required may be made with concurrence of the FA&CAO and personal approval of the GM, after testing the market. The relevant modifications made by the Railway Board by the circular dated 9.9.2003 for the sake of convenience is quoted below: Clause No. Modified as under C.1(a)(iii) The tenderer shoulder have completed in last three financial years (i.e. current year and three previous financial years) at lease one similar work for a minimum value of 35% of advertised tender value. C.1(a)(iv) The firm should have sound financial capability. The firms should submit Solvency Certificate from a Nationalised or Scheduled Bank for an amount not less than 1/4th of the advertised tender values of the work. C.1(a)(v) Total contract amount received during the last three financial years and in the current financial years should be a minimum of 150% of advertised tender value. The firms should submit Solvency Certificate from a Nationalised or Scheduled Bank for an amount not less than 1/4th of the advertised tender values of the work. C.1(a)(v) Total contract amount received during the last three financial years and in the current financial years should be a minimum of 150% of advertised tender value. Tender Committee would satisfy themselves about the authenticity of the certificates produced by the tendere (s) to this effect which may be an attested certificate from the employer/client, audited balance sheet duly certified by the Chartered Accountant etc. The details about the certificate to be accepted in regard to the turnover may, however, be notified along with the minimum eligibility criteria while advertising/issuing the tender notice by the competent authority. 31. The Railway authority thereafter issued the impugned NIT dated 19.5.2006, with a 'Note' appended to the eligibility conditions stipulated therein to the effect that any party who does not fulfill any or all of the eligibility conditions specified may still bid for development or trial order for a part quantity (maximum 20% of the tender quantity in the first year which can increase up to 50% of daily offered quantity during the rest of the contract period) subject to the three conditions, with the further stipulation that if the administration decides to award an order, the selected tenderer shall be given 6/9 months to set up the plants or requirements from the date of giving LOI, details of which have already been noticed in para-3 of this judgment. 32. It appears from the records that such a decision for splitting up of the work and for awarding part of such work on development/trial basis was taken by the Zonal Railway after considering the local conditions. It appears that a note was put up by the CCM of NF Railways on 15.5.2006 proposing relaxation of the eligibility conditions and splitting up of the work and for awarding the same on development/trial basis with a view to generate competition amongst more than one source for the purpose of making an effort to improve the quality of work as the petitioner was found to be the lone eligible firm for the job on earlier occasion which is creating monopoly and likely to continue in future. For better understanding, the said note dated 15.5,06 is reproduced below: (1) The present contract is going to expire on 4.7.2006. For better understanding, the said note dated 15.5,06 is reproduced below: (1) The present contract is going to expire on 4.7.2006. (2) The present contractor engaged in washing at Guwahati has been working since 1999. This firm was the only eligible firm found during the last 02 occasions when open tenders were floated. It appears that there is no other eligible firm in Guwahati area to undertake the work. This also means that the preset firm is likely to qualify as the only eligible firm for the job during next tender and the monopoly is likely to continue. Since bed roll is very important and sensitive passenger amenity item, we should ensure very good quality of washing. Railway Board has also emphasized from time to time quality of bedroll to be supplied to passengers. During routine inspection of bedrolls it has been observed that the quality of washing is not entirely satisfactory and leaves room for improvement. (3) It is, therefore, felt necessary that some competitions amongst more than one source are introduced in an effort to improve quality. For this, it is necessary to relax some criteria as laid down in Rly. Bd's extant circular at SN-14 and also incorporate in the tender conditions some scope for trial order to develop alternative source so that the job can be thrown open to the wider market for competition. (4) Bd's Circular at SN-13 empowers the Zones to modify/dilute the criteria as laid down in Rly. Bd's extant circular at' SN-14 with finance concurrence and GM's approval. (5) Therefore, it is proposed that para-C.L a(III) - (V) of SN-13 should be relaxed as shown in the draft tender notice (SN-26) and for trial order as stated in 'Note' portion at (SN-26). (6) May kindly vet & concur the tender papers as well as the proposed relaxation. Sd/- 15.5 CCM FA & CAO. 33. (5) Therefore, it is proposed that para-C.L a(III) - (V) of SN-13 should be relaxed as shown in the draft tender notice (SN-26) and for trial order as stated in 'Note' portion at (SN-26). (6) May kindly vet & concur the tender papers as well as the proposed relaxation. Sd/- 15.5 CCM FA & CAO. 33. The FA&CAO after having a discussion with the CCM keeping in view the Railway Board's emphasis on providing better facilities to the commuting public and also for encouraging the competition and to destroy the monopoly created by the petitioner, agreed to such proposal of CGM after making some sort of survey in the market about the non availability of the mechanized laundries in the Guwahati area, which is one of the essential eligibility criterion for awarding the contract and placed the matter before the General Manager for approval which was, accordingly, approved by the General Manager. The note submitted by the FA & CAO to the General Manager is reproduced below: The case has been discussed with CCM. It is learnt that a few small mechanized laundries have since come up on Gauhati area, but no confirmed information could be collected. It however, such parties do exist, they will not quality on undiluted financial criteria of one works of at least 35%, and three years cumulative turn over of 150%, of the tendered annual value. This is because Guwahati area does not offer such big laundry business opportunity as to provide orders of this magnitude, other than NF Railway. Accordingly, it is necessary to substantially dilute these criteria, and the proposed limit of 15% for a single works and cumulative turnover last three years of 50% of annualized tendered value is acceptable. Due to lack of sufficient business opportunities as of now, it is also considered unlikely that any established parties from other areas are likely to set up business of this nature and accordingly, we can not depend entirely on this option. In order to encourage parties from this area to invest in a mechanized laundry on assurance of adequate business opportunity, the proposal for development order is also acceptable. As Board's emphasis this year is on service with a smile, and specially on "Touch and Feel" items, it is imperative for us to explain various options and opportunities to provide improved service. As Board's emphasis this year is on service with a smile, and specially on "Touch and Feel" items, it is imperative for us to explain various options and opportunities to provide improved service. Increased competition is one of the better ways of improving quality. In view of the circumstances, the proposal to modify the eligibility criteria as proposed by CCM is concerned us. CM may kindly approve. Sd/-Illegible 17/05 Pursuant to such decision, the aforementioned NIT dated 19.5.2006 was issued. 34. The petitioner though, as noticed above, initially challenged the said NIT with such condition in WP(C) No. 2779/06, wherein an interim order was passed by this Court directing the Railway administration not to finalise the contract pursuant to such NIT and allowing the petitioner to participate in the same, the said writ petition was withdrawn by the petitioner and as such, was dismissed vide order dated 21.2.2007 on the basis of the application filed by it seeking leave of the court to withdraw the said writ petition. This Court, however, allowed the writ petitioner the liberty to file afresh, if so advised. 35. In the tender process, apart from the petitioner, the respondent No. 5 who does not have a mechanized plant in Guwahati area and which is one of the essential eligibility criterion under the NIT dated 19.5.2006, also submitted the tender for the regular work. The respondent No. 5 also filed the tender in respect of the trial/development work as stipulated in the 'Note' appended to the said NIT. 36. After withdrawal of the writ petition the contract for regular work was awarded to the petitioner for washing bedrolls and linens pursuant to the NIT dated 19.5.2006 for a period of two years i.e. from 23.3.2007 to 22.2.09 subject to renewal for maximum another one year if mutually agreed to by the Railway administration and the contractor on satisfactory performance of the work with same laid down terms and conditions. In the said order awarding the contract for regular work the petitioner was made known that he will undertake all works and continue to do so for about 6/9 months till finalisation of awarding contract and completion of other allied works by the selected tenderers under trial and development basis (20%) and after selection of such tenderer, 20% of the total works will be given to such selected tenderer for first year with intimation to the petitioner in due course and the same may be increased up to 50% of the daily offered quantity during the rest period of the contract. It was further informed that the Railway Board reserves the right to increase or decrease the contractual quantity by 50% during the currency of the contract. For better appreciation, such conditional order awarding the contract in favour of the petitioner is quoted below: No. C/No C/A-35/Bed Roll (Mechanised)/PA/2003/Pt.I. Dated 28th February, 2007. To M/s. Mega Kleen, Chilarai Nagar Path, Bhangagarh, Guwahati-5. Dear Sir, Sub: Award of Contract for washing of Bed Rolls and linens. Ref: 1. Your letter No. Nil dated 23.2:2007. 2. This Office letter of even No. dated 23.02.2007. Your offer regarding the subject noted contract against N.P. Rawilway's Tender Notice No. 1/WBM/2006 dated 19.5.2008 and tender documents has been accepted by the competent authority. Please note that at present you will undertake all works and continue to do so for about 6/9 months till finalisation of awarding contract and completion of other allied works by the selected tenderer under trial and development basis (20%) as per Press Notification and terms and conditions. In this connection it may be mentioned that 6/9 months time from the date of LOI will be given to set up the plants/requirements for 20% works under trial and development basis by the selected tender and after satisfactory completion of the aforesaid works by the selected tenderer, 20% of the total works will be given to him (selected tenderer) for 1st year with intimation to you in due course and the same may increase up to 50% of the daily offered quantity during the rest of the contract period. As such please note that the Railways reserve the right to increase or decrease the contractual quantity by 50% during the currency 'of the contract. As such please note that the Railways reserve the right to increase or decrease the contractual quantity by 50% during the currency 'of the contract. In view of the above you are requested to start providing services subject to conditions contained in Para 2 above and as per terms and conditions of the Tender Notice No. 1/WBM/2006 dated 19.5.2006 with effect from 23.2.2007. The contract is valid for 2(two) years from 23.2.2007 to 22.2.2009 subject to renewal for maximum another one year if mutually agreed to by NF Railway and the contractor on satisfactory performance of the work with same rate, terms and conditions. 1. Terms and conditions indicated in the original contract as well as in its subsequent agreements/orders will be modified as per the requirement of the Railway Administration/IRCTC and the authority shall reserve the right to terminate the contract subject to operational exigencies as well as public interest. 2. You will have to give an undertaking in the format attached with this letter which may kindly be returned to the undersigned for processing the case. As per Board's policy, since IRCTC is programmed to take over the washing contracts in future, you will have to execute a Tripartite Assignment Deed which will be signed by NF Railway, IRCTC and M/s. Mega Kleen. The Contract Agreement is being finalized and you will be intimated in due course. This has got the approval of the competent authority. Enclo: One(As above). (A.B. Das) Senior Commercial Manager/G For Chief Commercial Manager. 37. The petitioner, thereafter, having accepted such conditional order awarding the contract also filed an undertaking before the Railway administration that it accepts all the terms and conditions of the contract as well as in the Railway's subsequent communication unconditionally and shall abide by the same. Such filing of undertaking, however, has been suppressed by the petitioner in the writ petition. The undertaking filed by the petitioner in its entirety is quoted below: M/s. Mega Kleen Chilarai Nagar Path, Bhangagarh, Guwahati-5. Date: 2.3.2007. To The Chief Commercial Manager N.F. Railway, Maligaon, Guwahati-11. Sub : Undertaking. Sir, I, on behalf of the M/s. Mega Kleen do hereby accept all the terms conditions of the contract as well as in its subsequent communication unconditionally and undertake to abide by the same. Sd/-(Ramen Deka) M/s. Mega Kleen Chilarai Nagar Path, Bhangagarh, Guwahati-5. Date: 2.3.2007. To The Chief Commercial Manager N.F. Railway, Maligaon, Guwahati-11. Sub : Undertaking. Sir, I, on behalf of the M/s. Mega Kleen do hereby accept all the terms conditions of the contract as well as in its subsequent communication unconditionally and undertake to abide by the same. Sd/-(Ramen Deka) M/s. Mega Kleen Chilarai Nagar Path, Bhangagarh, Guwahati-5. The petitioner, thereafter, pursuant to the conditional order, executed an agreement with the Railway authority on 16.7.2007 in respect of the conditional work awarded in its favour, wherefrom it also appears that the agreement was in respect of 80% of the work of steam cleaning/mechanical washing and disinfecting of linen and dry cleaning of blankets and their transportation for supply of bedrolls in trains and in retiring rooms at Guwahati Railway Station. Such agreement also stipulates that: ...at present the contractor will undertake all works and continue to do so for about 6/9 months till finalisation of awarding contract and completion of other allied works by selected tenderer under trial and development basis (20%) as per Press Notification and terms and conditions. In this connection it may be mentioned that 6/9 months time from the date of LOI will be given to set up the plants/requirements for 20% works under trial and development basis by the selected tenderer and after satisfactory completion of the aforesaid works by the selected tenderer, 20% of total works will be given to him (selected tenderer) for first year with intimation to the contractor in due course and the same may increase up to 50% of the daily offered quantity during the rest of the contract period. Railway reserves the right to increase or decrease the contractual quantity by 50% during the currency of the contract. 39. In view of the aforesaid position, the question which requires consideration first is whether the petitioner should be allowed to challenge the impugned condition in the NIT dated 19.5.2006 as well as the selection of the respondent No. 5 for trial/development order, for which the petitioner has not participated and having accepted the conditional order awarding the contract in its favour dated 28.2.2007 and executing the undertaking dated 2.3.2007 and also entering into the agreement dated 16.6.2007. 39. 39. There is no iota of doubt that even in the contractual matters the public authorities do not enjoy any unfettered discretion and the exercise of discretion in the matter of acceptance of the offers in contracts must conform to Article 14 of the Constitution of India, as observed by the Apex Court in Dinesh Engineering (supra). It is also not in dispute that Articles14 and 16 of the Constitution strike at arbitrariness in State action and ensure fairness and equality of treatment and it requires that the State action must be based on valid relevant provisions applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant consideration, because, that would be denial of equality and such arbitrariness in action must necessarily involve negation of equality [E.P. Royappa] (supra) and Ajay Haisa (supra). As observed by the Apex Court in Kumari Shrileka Vidyarthi (supra) the requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which mitigates against the concept of requiring the State always to act fairly, justly and reasonably even in contractual matter. There is, however, a basic difference between the acts of the State, which must invariably be in public interest and those of a private individual, engaged in similar activities, being primarily for personal gain, which may or may not promote public interest. The requirement of Article 14 should also extend even in the sphere of contractual matter of regulating the conduct of the State activity. 40. The Apex Court in New Bihar Bidi Co. (supra) while explaining the doctrine of approbation and reprobation has observed that it is a fundamental principle of general application that if a person on his own accord accepts a contract awarding terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms and conditions of the contract which proved advantageous and to repudiate the other terms and conditions of the contract, which might be disadvantageous to him. It has also been observed that the principle-one who approbates cannot reprobate-means-a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest, i.e., to say, no party can accept and reject the same instrument or transaction. It has also been observed that the principle-one who approbates cannot reprobate-means-a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest, i.e., to say, no party can accept and reject the same instrument or transaction. The Apex Court in the said decision by applying the said principle dismissed the contention of the petitioners therein that the conditions impugned therein is violative of Article 14and Article 19(1)(g) of the Constitution, by observing that though a person cannot be debarred from enforcing his fundamental rights on the ground of estoppel or waiver, but the principle of approbation and reprobation, which prohibits a party to a transaction from approbating a part of its conditions and reprobating the rest, is different from the principle of estoppel and waiver. 41. In Sunita Agarwal (supra), the Apex Court having noticed that the appellant on the ground of violation of Article 14 of the Constitution of India, having accepted such conditional order of contract issued in its favour. It is no doubt that there cannot be any estoppel or waiver against the enforcement of the fundamental right of a citizen, but the principle of approbation and reprobation is different from the doctrine of estoppel and waiver, therefore, the petitioner is debarred from challenging such decision of the Railway administration. The principles of approbation and reprobation prohibits a party to a transaction from approbating a part of its condition and reprobating the rest. 42. The contention of the petitioner that as the action on the part of the respondent Railway in introducing the 'Note' in the NIT dated 19.5.2006 and splitting up of the work and the decision to award part of the contract on trial/development basis is unreasonable, unfair and irrational and the petitioner being a weaker party cannot bargain, having no equal bargaining power and was either bound to accept the unreasonable or unfair term incorporated in the NIT and submit its tender papers or forego the contract for ever and hence its submission of tender pursuant to the said NIT dated 19.5.2007 by itself would not disentitle it to challenge the action on the part of the respondent Railway on the ground of violation of Article 14 of the Constitution, cannot also be accepted. It is true that, as observed by the Apex Court in LICI (supra), that if a contract or clause is found to be unreasonable or unfair or irrational, one must look to the relative bargaining power of the contracting parties. The Supreme Court keeping in view the facts involved in the said case has further observed that in dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power and he has either to accept or to leave the services or goods in terms of the dotted line contract and his option would be either to accept unreasonable or unfair terms or forego the service for ever and there would be no option left to him but to sign the said contract. But, in the instant case, as discussed above, the petitioner not only participated in the tender process initiated vide NIT dated 19.5.2007 well aware of the 'Note' contained therein but also has accepted the conditional offer of the work made by the Railway on 28.2.2007 and also given an undertaking that he will abide by all the conditions and also executed an agreement on 16.7.2007 as noticed above. The petitioner, therefore, cannot turn around and challenge the decision of the Railway authority of splitting up of the work and awarding part of the work on trial/development basis, having accepted the conditional contract awarded in its favour and executed the agreement as well as the undertaking, on the ground that such action on the part of the Railway administration is violative of Article 14 of the Constitution. The petitioner being a prudent businessman and performing the work in question for a quite number of years is not expected to accept the conditional award if it is not agreeable to the same. 43. That apart, it appears from the 'Note' put up to the General Manager of the respondent Railway, which has already been reproduced above, that the decision to split up the work and to award part of such work on trial and development basis was taken keeping in view the interest of the commuting public in general, i.e., in public interest and also with a view to encourage the competition and to discourage the monopoly. The Apex Court in Air India (supra) has observed that even when some defect is found in the decision making process, the court must exercise its discretionary power under Article 226of the Constitution 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 has further been observed that the court should also keep the larger public interest in mind in deciding whether its intervention is called for or not and when it comes to the conclusion that the overwhelming public interest requires interference, the court should interfere. When there is conflict between the public interest and the interest of the individual, the public interest must prevail. In the instant case, the decision has been taken by the Railway authority, as discussed above, keeping in view the greater interest of the commuting public at large. On the other hand, the petitioner having accepted the terms and conditions of the NIT and having once challenged the same by filing a writ petition which was subsequently withdrawn and accepting the conditional order awarding the contract in its favour and giving an undertaking and also by executing the agreement, in the present writ petition wants to challenge the conditions in the NIT as well as the Railway authority's decision of splitting up of the work and awarding the contract to the respondent No. 5 on trial and development basis, in furtherance of his personal interest, which cannot be allowed in view of the facts and circumstances of this case and the public interest involved. 44. The further contention of the petitioner that the order dated 8.5.2007 of the Railway authority issuing the LOI in favour of the respondent No. 5 is also bad being contract to the order awarding the work in its favour dated 28.2.2007, inasmuch as the petitioner has not been intimated prior to taking such decision though the order dated 28.2.2007 requires prior intimation to the petitioner, cannot also be accepted on the face of the 'Note' appended to the NIT dated 19.5.2006 as well as the conditions given in the order dated 28.2.2007. It is evident from the order dated 28.2.2007 that the petitioner was informed that he will be intimated in due course about awarding the contract to a selected tenderer on trial and development basis. It is evident from the order dated 28.2.2007 that the petitioner was informed that he will be intimated in due course about awarding the contract to a selected tenderer on trial and development basis. By the said order the petitioner was never informed by the Railway administration that before taking any decision in that regard he will be intimated. Even assuming that such was the requirement as contended by the petitioner, it having submitted a written undertaking dated 2.3.2007 and executed the agreement on 16.7.2007, cannot subsequently raise the said plea. 45. It has further been contended by the writ petitioner that the respondent No. 5 being a tenderer in respect of the regular work and his tender having been rejected being not responsive of the terms and conditions of the NIT, he cannot be awarded with the contract for trial and development basis. Such contention also cannot be accepted in view of the fact that in the NIT it was made known to all concerned that the party who has not fulfilled any or all of the eligibility conditions may still bid for a development/trial order. It is an admitted position of fact that respondent No. 5 has no mechanized plant in Guwahati area, which is a condition stipulated in the NIT dated 9.5.2006 for awarding regular work and, therefore, rejection of his tender for regular work on the ground of being not responsive to the conditions stipulated in the NIT, cannot be a ground for debarring him from participating in the process for awarding the contract on trial and development work. Moreover, the petitioner being not a tenderer for trial and development basis and it having not challenged the decision of the authority in awarding the LOI in favour of the respondent No. 5 on the ground that he does not fulfill the requirement of the NIT for trial and development work, cannot pray for setting aside the LOI issued in favour of the respondent No. 5. 46. In view of the findings recorded above, I am of the view that the other points which have been raised by the contesting parties need not be gone into. The various decisions of the Apex Court as well as of this Court relating to those questions raised, have, therefore, not been discussed in this judgment. 47. 46. In view of the findings recorded above, I am of the view that the other points which have been raised by the contesting parties need not be gone into. The various decisions of the Apex Court as well as of this Court relating to those questions raised, have, therefore, not been discussed in this judgment. 47. I am, therefore, of the considered opinion that the petitioner is not entitled to any relief in the present petition and, hence, the same is dismissed. However, keeping in view the facts and circumstances of the case, I make no order as to costs. Petition dismissed.