MOHIT S. SHAH, J. ( 1 ) LEAVE to amend. In this petition under Article 226 of the Constitution, the petitioner, a pharmaceutical firm, has challenged the decision dated 24th july, 2008 of the State Government in the Health and Family Welfare department for debarring the petitioner from having any commercial transactions with the State Government and the Government Hospitals and Dispensaries in the matter of supply of Amoxycillin Capsule I. P. 500 mg (Item No. 1016 ). The petitioner has also challenged the order dated 14th October, 2008 passed by the concerned authority rejecting the petitioner's representation dated 10th October, 2008 which was made pursuant to the liberty granted by this Court on 07th October, 2008. ( 2 ) THE broad facts leading to filing of this petition are not in dispute. The Central Medical Stores Organisation (hereinafter referred to as the 'cmso') of the State Government issued Tender Inquiry no. CMSO/d-394/rc/2006-07 inviting tenders for various tablets/capsules comprising 131 items. In the said Tender Inquiry, the petitioner participated for 60 items one of which was Capsule Amoxycillin I. P. 500 mg. When the tenders were opened, the rates quoted by different parties were as under:-L-1 M/s. Super Pharma Rs. 76. 79+4% CST=rs. 79. 86 l-2 Petitioner Rs. 135+4% VAT=rs. l35 l-3 M/s. Jaywin Rs. 138. 71+4% VAT=rs. l38. 71 l-4 M/s. Medipol Rs. 135+4% CST=rs. l40. 40 pharmaceuticals subsequent to opening of the commercial bids, the petitioner sent a letter dated Olst May, 2007 to the Director, CMSO which reads as under:- "sub: Typographical Mistake dear Sir, with reference to above subject and in Continuation of PART IV, commercial Bid in under mention items due to typographical mistake we have quoted the rates detail as under along with actual rate. Sr. Code Item Name Quoted rate no. No. 4 1016 Amoxycillin Capsules Rs. l35=00 ip 500 mg instead of Rs. 149=00 7 1019 Ampicillin Capsules Rs. 129=60 ip 500 mg instead of Rs. 139=60 14 1033 Cefadroxil Capsules Rs. 209=70 IP 500 mg instead of rs,229=70 considering the cost of Raw Material, you will realize this typographical mistake, if you require any supporting Documents, we will produce immediately. So we request you to please do the needful in this matter. 149=00 7 1019 Ampicillin Capsules Rs. 129=60 ip 500 mg instead of Rs. 139=60 14 1033 Cefadroxil Capsules Rs. 209=70 IP 500 mg instead of rs,229=70 considering the cost of Raw Material, you will realize this typographical mistake, if you require any supporting Documents, we will produce immediately. So we request you to please do the needful in this matter. " ( 3 ) M/s. Super Pharma also represented by their letter dated 17th april, 2007 that by mistake, the rate of Amoxycillin Capsule I. P. 500 mg was quoted for Amoxycillin Capsule I. P. 250 mg and the rate of amoxycillin Capsule I. P. 250 mg was quoted for Amoxycillin Capsule i. P. 500 mg. The rates were, thus, to be reversed. ( 4 ) AT the meeting held on 06th July, 2007 of the Departmental purchase Committee headed by Principal Secretary, Health and Family welfare Department, it was decided to forfeit the E. M. D. of M/s. Super pharma and the petitioner on account of lapses on their part 'and the departmental Purchase Committee decided to purchase Amoxycillin capsule I. P. 500 mg from M/s. Jaywin and M/s. Medipol Pharmaceuticals at the rate of Rs. 138. 71 + 4% VAT in the ratio of 70:30 quantity. ( 5 ) ACCORDINGLY, it was decided to award the contract to M/s. Jaywin and M/s. Medipol at their quoted rates. Both the said parties were given acceptance letters to enter into agreement with the CMSO. However, these firms did not submit the required bank guarantee and agreement, upon their failure to enter into the agreement, they were treated as having violated tender conditions no. 23 (b), 27 and 49. At the meeting of the Departmental Purchase committee held on 02nd January, 2008, the committee decided that the error of M/s. Super Pharma was genuine and that the actual L-1 firm was the petitioner. However, the petitioner had deliberately and willfully modified its bid by revising the rates after due date was over. So also, there was failure on the part of M/s. Jaywin and M/s. Medipol to enter into the agreement after issuance of acceptance letters. Hence, action was required to be taken against all the three defaulting companies i. e. the petitioner, M/s. Jaywin and M/s. Medipol. The Committee accordingly took a decision of debarring all the three firms in respect of Amoxycillin Capsule I. P. 500 mg. Hence, action was required to be taken against all the three defaulting companies i. e. the petitioner, M/s. Jaywin and M/s. Medipol. The Committee accordingly took a decision of debarring all the three firms in respect of Amoxycillin Capsule I. P. 500 mg. ( 6 ) AS per the above decision, show-cause notices were issued to the parties. The petitioner was issued show-cause notice dated 24th march, 2008 indicating that the petitioner had violated the tender conditions no. 22 (b) and -19. The petitioner submitted reply dated 15th april, 2008. After considering the same, the CMSO sent a detailed proposal to the Health Department of the State Government to debar the petitioner from business with the State Government. The State government sent letter dated 24th July, 2008 to the CMSO approving the proposal for debarring the petitioner for three years. The said decision has been challenged in the present petition. ( 7 ) WHEN the petition reached hearing on 07th October, 2008, the learned advocate for the petitioner had invited our attention to the letter dated 01st May, 2007 (Annexure 'b') from the petitioner to CMSO to the effect that the petitioner was not backing out from the tender, but the petitioner had only made a request that the rate of Rs. 135/- be read as rs. 149/- and that similar request for two other medicines was accepted by the same authority. The learned advocate for the petitioner had also submitted that to show its bona fides the petitioner was prepared to supply Amoxycillin Capsule I. P. 500 mg at the rate of Rs. 149/- as against the rate of Rs. 162 + taxes quoted by the other parties in response to tender Inquiry No. 407 due on 09th May, 2008. It was submitted that the petitioner was being debarred from consideration for the said tender inquiry also; that other parties had quoted rates at Rs. 162 + taxes but the petitioner was prepared to supply the said item at Rs. 149 and thus, ensure substantial savings to the public exchequer. By our order dated 07th October, 2008, we had directed that if the petitioner makes such representation, the concerned authorities including the Secretaries' purchase Committee shall consider the same. Accordingly, the petitioner made representation dated 10th October, 2008 which came to be considered by Secretaries' Purchase Committee on 14th October, 2008. By our order dated 07th October, 2008, we had directed that if the petitioner makes such representation, the concerned authorities including the Secretaries' purchase Committee shall consider the same. Accordingly, the petitioner made representation dated 10th October, 2008 which came to be considered by Secretaries' Purchase Committee on 14th October, 2008. The representation came to be rejected on the ground that the petitioner was already debarred by the State Government for this particular item and that by offering to supply the same item at Rs. 149/-, the petitioner was attempting to circumvent the debarring process by the back door. ( 8 ) THE petitioner accordingly challenged the said decision dated 14th October, 2008 also. ( 9 ) BEFORE enumerating the contentions raised by the learned counsel for the petitioner, it would be necessary to quote the relevant clauses of the tender document from the important instructions/terms/ conditions to tenderers forming part and parcel of Inquiry document. Conditions No. 22, 23, 27 and 49 of the tender document read as under:-22. (a) In the first instance only the "technical Bid" envelope containing Parts I/ii/iii of the documents will be opened on the date of opening of the tender and taken into consideration for finalization. Subsequently, the "commercial Bid" envelope containing Part IV will be opened only of those tenderers whose Technical Bid satisfy the technical requirements of the tender and are otherwise acceptable. (b) Back out from tender at any interim level during tender processing:-Once the tender is submitted it will be the responsibility of the tenderer not to escape half way directly or indirectly by way of raising any problems: 23. The E. M. D. /security Deposit shall liable to be forfeited in the following circumstances when the: (a) Tender is rejected due to failure to furnish the requisite documents in the proper format or giving any misleading statement or submission of false affidavit or fabricated documents. (b) Party fails to sign the agreement for entering into contract in case the offer is accepted, due to any reason whatsoever. (c) Party fails to supply the goods / items as per the orders placed by either this organisation or by direct demanding officers within the delivery period so stipulated. (b) Party fails to sign the agreement for entering into contract in case the offer is accepted, due to any reason whatsoever. (c) Party fails to supply the goods / items as per the orders placed by either this organisation or by direct demanding officers within the delivery period so stipulated. (d) Party fails to replace the goods declared to be not of standard quality or not conforming to acceptable standards or found to be decayed/ infected/spoiled before the date of expiry have to refund the cost of such goods. 27. Successful tenderers have to pay security deposit as specified by the organization in the agreement letter in the form of Treasury challan Deposit under revenue deposit / Demand Draft in the name of director, Central Medical Stores Organization, Gandhinagar drawn on any bank in Gandhinagar / Irrevocable bank guarantee stamped with adhesive of Rs. 100/- valid for a period not less than 24 months at the time of entering into agreement for the performance of the contract. Failure to pay security deposit and to execute the agreement within stipulated period shall invite disqualification of the tenderer for future quotations apart from forfeiture of E. M. D. and being liable for penalty as deemed fit by Director in relation to the tender under process. Security deposit is payable by all the parties except by the undertakings and corporations of the Government of Gujarat which exempted by Govt. The security deposits submitted in connection with the earlier contract and which are locked with those contract and which have not been released till date will not be considered and fresh security deposit separately for each item, must be submitted in such cases. The security deposit shall be refunded only after satisfactory execution of the contract and recovery of dues, if any. 49. The claim of price revision of finished goods under any pretext or reason, including the revision of duty / excise / cost will not be allowed at any stage after the last date of submission of the tenders. ( 10 ) MR. Vipul Pancholi, learned counsel for the petitioner has submitted that the petitioner's offer of Rs. 135/- was an offer which was not unilaterally changed as such at Rs. 135/- but the petitioner has only made a request that there was a typing mistake just as there were typing mistakes in respect of two other items also. ( 10 ) MR. Vipul Pancholi, learned counsel for the petitioner has submitted that the petitioner's offer of Rs. 135/- was an offer which was not unilaterally changed as such at Rs. 135/- but the petitioner has only made a request that there was a typing mistake just as there were typing mistakes in respect of two other items also. It was open to the Department not to accept the said request and issue an acceptance letter to the petitioner to supply the concerned item at the rate of Rs. 135/ -. When no such acceptance letter was issued to the petitioner, the petitioner cannot be visited with the consequences provided by Condition No. 27 which can be invoked only when after issuance of acceptance letter, the concerned tenderer fails to pay security deposit and to execute the agreement within stipulated period. It is submitted that such acceptance letters were issued to M/s. Jaywin and M/s. Medipol and the said parties had thereafter failed to pay security deposit and to execute the agreement within the stipulated period. However, those conditions were not satisfied in the petitioner's case. Therefore, the respondent authorities completely erred in invoking Condition No. 27 in the petitioner's case. ( 11 ) IT is further submitted that subsequently the respondents purchased the item in question i. e. Amoxycillin Capsules I. P. 500 mg at the rate of Rs. 161 + taxes even though the petitioner was prepared to supply the same at the rate of Rs. 149/- and, therefore, the authorities themselves have taken a decision to the detriment of the public exchequer. ( 12 ) ON the other hand, Ms. Maithili Mehta, learned AGP has supported the impugned decisions and submitted that the petitioner having once quoted the rate of Rs. 135/- had clearly attempted to back out from the tender at an interim level during tender processing and, thus, the petitioner had committed clear breach of Condition No. 22 (b)which clearly provided that once the tender is submitted, it will be the responsibility of the tenderer not to escape half way directly or indirectly by way of raising any problems. The learned AGP further submitted that Clause 23 providing for forfeiture of E. M. D. was also applicable. 12. The learned AGP further submitted that Clause 23 providing for forfeiture of E. M. D. was also applicable. 12. 1 Learned AGP further submitted that the petitioner had given an undertaking which was Annexure-1 to [drug] [part II] as a part of the tender documents and that it was also stated in the undertaking that failure to furnish misleading information or failure to comply with any contractual requirement will be considered as a disqualification and other penal action as may be deemed fit by the Government/cmso. The undertaking was signed on 06th April, 2007. 12. 2 The learned AGP also relied on the decisions of the Apex court in yeast ALCO ENZYMES LTD. VS. UNION OF INDIA AND others [1995 SUPP. (4) SCC 565] AND (2)SHIV KANT YADAV VS. INDIAN OIL CORPN. AND OTHERS [ (2007) 4 SCC 410 ] ( 13 ) HAVING heard the learned advocates for the parties, we are of the view that Condition No. 27 would come into operation only after the Department issues acceptance letter to a party. The question of failure to pay security deposit and to execute the agreement within stipulated period can arise only after a party is issued the acceptance letter. Admittedly, no such acceptance letter was issued to the petitioner, unlike acceptance letters issued to M/s. Jaywin and M/s. Medipol. The respondents were, therefore, not justified in debarring the petitioner. May be, the change in the rates, as indicated in the petitioner's letter dated Olst may, 2007, may have been a justification for the Department not issuing a letter of acceptance to the petitioner because the petitioner had sought to revise the rates from Rs. 135/- to Rs. 149/- and the Department, therefore, turned to the parties at L-3 and L-4 whose rates were 138. 71 and 140. 40. However, the fact remains that the petitioner was not issued any acceptance letter for Amoxycillin Capsules I. P. 500 mg and, therefore, condition No. 27 could not have been invoked in the petitioner's case, ( 14 ) RELIANCE placed by the learned AGP on the undertaking dated 06th April, 2007, however, does not carry the Department's case any further because the said undertaking refers to failure to comply with any contractual requirements. Obviously, there was no contract or agreement between the parties and, therefore, there was no question of disqualifying the petitioner on failure to perform any contractual requirements. Obviously, there was no contract or agreement between the parties and, therefore, there was no question of disqualifying the petitioner on failure to perform any contractual requirements. As regards the decision cited on behalf of the respondents, we do not find either of them having any application to the facts of the instant case. On the other hand, in JAGDISH MANDAL VS. STATE OF orissa AND OTHERS [ (2007) 14 SCC 517], the Hon'ble Supreme Court has held that even though the scope of judicial review of administrative action in matters relating to tenders or award of contracts is very limited, because these are commercial transactions and parties cannot be permitted to make mountains out of molehills of some technicavprocedure violation, but cases involving blacklisting or imposing of sentence on a tenderer stand on a different footing as they may require a higher degree of fairness in action. ( 15 ) IN the facts of the instant case also, when the power of disqualification would be exercised in the circumstances specified in condition No. 27 which was not in existence in the facts of the present case, this Court is bound to interfere with the impugned decision debarring the petitioner from business transactions with the Government and government Hospitals and Dispensaries for a period of three years. ( 16 ) AT this stage, Mr. Pancholi would submit that the petitioner has already lost contract in the meantime and the contract for supply of amoxycillin Capsules I. P. 500 mg was awarded to other parties in response to Tender Inquiry No. 407 due on 09th May, 2008. It is, therefore, submitted that the respondent authorities be directed to take into consideration the present judgment for giving the petitioner all the consequential benefits for the said tender inquiry also. ( 17 ) WE are afraid this court would not set the clock back merely because the petition is allowed on the ground of the respondents having exercised the power of debarring the petitioner under Condition No. 27 in spite of non-existence of the pre-requisite conditions for exercise of the said powers. Nonetheless, the fact remains that the entire controversy arose because the petitioner himself had sought to change the rates from rs. 135/- to Rs. 149/- by his letter dated Olst May, 2007 for which no sufficient justification has been given so far. ( 18 ) THE petition is accordingly allowed. Nonetheless, the fact remains that the entire controversy arose because the petitioner himself had sought to change the rates from rs. 135/- to Rs. 149/- by his letter dated Olst May, 2007 for which no sufficient justification has been given so far. ( 18 ) THE petition is accordingly allowed. The impugned decision dated 24th July, 2008 at Annexure R-7 to the affidavit-m-reply is quashed and set aside. Rule is made absolute to the above extent only.