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Madhya Pradesh High Court · body

2010 DIGILAW 123 (MP)

Gyan Singh Sisodia v. State of M. P.

2010-01-28

PIYUSH MATHUR, S.K.GANGELE

body2010
JUDGMENT Mathur, J. -- 1. The writ petitioners Gyan Singh Sisodiya and M/s. Rajawat and Company have challenged in these two writ petitions the incorporation of condition No.12 in a Notice Inviting Tender (NIT) published by the Deputy Director (Archeology and Museum), Gwalior, due to which the petitioners have been prevented from participating in the' second short term NIT dated 27.10.2009 (Annexure P-I), merely on account of non-submission of tenders in the previous NIT published for the similar work on date 3.10.2009 (Annexure P-7). Since, the controversy involved in both the petitions is identical therefore, with the consent of the parties these petitions were heard analogously and are being disposed of by this common order. 2. The facts of the matter revolve around three notice inviting tender dated 3.10.2009 and 27.10.2009 which demonstrate that the Deputy Director (Archeology and Museum), Gwalior, has initially invited two tenders dated 3.10.2009 for a total of eight independent maintenance works of the Archaeological Sites vide Annexures P-6 and P-7. The NIT No.721/ 3.10.2009 (Annexure P-6) was isued for the maintenance and restoration work of four Sites and NIT No. 719 dated 3.1.2009 was published for another four maintenance works of another Archaeological sites. The NIT No.721/ 3.10.2009 (Annexure P-6) was isued for the maintenance and restoration work of four Sites and NIT No. 719 dated 3.1.2009 was published for another four maintenance works of another Archaeological sites. For ready reference, the description of these works are being give herein below : Þdk;kZy; milapkyd] iqukrRo vfHkys[kxkj ,oa laxzgky; mÙkjh {ks=] xwtjh egy laxzgky;] fdyk xsV Xokfy;j e-iz- Øekad 719@vuq@12os-fo-vk-@fu-@2009&10 Xokfy;j] fnukad 3-10-2009 fufonk vkea=.k lwpuk v/kksgLrk{kjdrkZ }kjk fuEufyf[kr dk;ksZ ds fy, jkT; rFkk dsanz ‘kklu ds fuekZ.k foHkkx ,oa ‘kkldh; miØe es okafNr Js.kh esa iathd`r Bsdsnkjksa@laLFkkvksa ls izi= Þcß ij vk;Ve nj ds vuqlkj nks fyQkQk i)fr esa eqgjcan fufonk,a vkeaf=r dh tkrh gSaA eqgjcan fufonk,a fnuakd 24-10-2009 dks vijkg~u 2%30 cts rd bl dk;kZy; esa j[kh fufonk isVh esa izLrqr dh tk ldsxh tks mlh fnukad dks vijkg~u 3%00 cts mifLFkr bPNqd fufonkdrkZ@izfrfuf/k;ksa rFkk fu.kkZ;d lfefr ds le{k v/kksgLrk{kjdrkZ }kjk [ksyh tk,xhA ;fn fdlkh dkj.ko’k mDr fnukad dks vodk’k ?kksf”kr gks tkrk gS rk fufonk izLrqr djus ,oa [kksyus dh dk;Zokgh vkxkeh dk;Z fnol esa ij izdkf’kr dh xbZ gSA Ø- dk;Z dk uke vuqekfur c;kus dh fufonk Bsdsnkjksa dh dk;Zof/k jkf’k :i;s jkf’k izi= dk Js.kh :i;s ewY; :i;s 1- x<+dq.Mkj dk fdyk ftyk 73]54]200@& 55]160@& 3]000@& v&3@led{k 8 ekg Vhdex<+ dk vuqj{k.k dk; ,oa mPp Js.kh 2- ujoj fdyk ujoj ftyk 50]00]000@& 37]500@& 3]000@& v&2@led{k 6 ekg f’koiqjh dk vuqj{k.k dk;Z ,oa mPp Js.kh 3- xwtjh egy] Xokfy;j dk 32]89]550@& 24]670@& 3]000@& v&2@led{k 5 ekg vuqj{k.k dk;Z ,oa mPp Js.kh 4- lkukS/kk dk fdyk lkukS/kk 20]00]000@& 15]000@& 1]500@& v&1@led{k 5 ekg ftyk lkxj dk vuqj{k.k dk;Z ,oa mPp Js.kh dk;kZy; milapkyd] iqukrRo vfHkys[kxkj ,oa laxzgky; mÙkjh {ks=] xwtjh egy laxzgky;] fdyk xsV Xokfy;j e-iz- Øekad 978@vuq@12os-fo-vk-@fu-@2009&10 Xokfy;j] fnukad 27-10-2009 f}rh; vYidkyhu fufonk vkea=.k lwpuk v/kksgLrk{kjdrkZ }kjk fuEufyf[kr dk;kZsa ds fy, jkT; rFkk dsanz ‘kklu ds fuekZ.k foHkkx ,oa ‘kkldh; miØe esa okfNr Js.kh esa iathd`r Bsdsnkjksa@laLFkkvksa ls izi= Þcß ij vk;Ve nj ds vuqlkj nks fyQkQk i)fr esa eqgjcan fufonk,a vkeaf=r dh tkrh gSA eqgjcan fufonk,a fnukad 10-11-2009 dks vijkg~u 2%30 cts rd bl dk;kZy; esa j[kh fufonk isVh esa izLrqr dh tk ldsxh] tks mlh fnukad dsk vijkg~u 3%00 cts mifLFkr bPNqd fufonkdrkZvksa izfrfuf/k;ksa rFkk fu.kkZ;d lfefr ds le{k v/kksgLrk{kj }kjk [ksyh tk,xhA ;fn fdlh dkj.ko’k mDr fnukad dks vodk’k ?kksf”kr gks tkrk gS rks fufonk izLrr djus ,oa [kksyus dh dk;Zokgh vkxkeh dk;Z fnol esa dh tk,xhA ;g fufonk lwpuk ,u-vkbZ-lh- dh csolkbZV ij iznf’kZr dh xbZ gSA Ø- dk;Z dk uke vuqekfur c;kus dh fufonk Bsdsnkjksa dh dk;Zof/k jkf’k :i;s jkf’k izi= dk Js.kh :i;s ewY; :i;s 1- x<+dq.Mkj dk fdyk ftyk 73]54]200@& 55]160@& 3]000@& v&3@led{k 8 ekg Vhdex<+ dk vuqj{k.k dk; ,oa mPp Js.kh 2- xwtjh egy] Xokfy;j dk 32]89]550@& 24]670@& 3]000@& v&2@led{k 6 ekg vuqj{k.k dk;Z ,oa mPp Js.kh 3- lkukS/kk dk fdyk lkukS/kk 20]00]000@& 15]000@& 1]500@& v&2@led{k 5 ekg ftyk lkxj dk vuqj{k.k dk;Z ,oa mPp Js.kh a 3. The record demonstrates that the petitioner Gyan Singh Sisodiya and M/s. Rajawat and Company had submitted their respective applications for the issuance of the blank tenders forms on date 24.10.2009 in terms of clause 2 of NIT 310.2009 and after examination and screening of their documents, the blank tender forms were issued to them on date 26.10.2009, for their submission back into the office on dates 27.10.2009 and 28.10.2009. 4. Shri Brijesh Sharma, learned counsel appearing for the petitioner Gyan Singh Sisodiya submits that the petitioner had applied for obtaining blank forms in relation to NIT 719/3.10.2009 and the blank tender forms were issued in the late evening hours on date 26.10.2009 and since the filled up forms along with bids were required to be submitted within 24 hours on date 27.10.2009, as per the tender's condition, it was possible for the petitioners to have submitted only one form in relation to work mentioned at Item No.2 Narvar Fort, due to paucity of time and rest of the forms for Garhkundhar Fort, Gujri Mahal and Sanuadha Fort could therefore be not submitted. Shri Sharma submits that no condition was prescribed in NIT No.719/3.10.2009 (Annexure P-7) that if the forms are procured and are not submitted back, then tenderer would be debarred in future, therefore, there was no occasion for the Department to have restricted the entry or the participation of the petitioners at the time, when second short term NIT No.978 was published on date 27.10.2009, wherein a restriction was imposed in relation to those applicants/tenderers who had obtained blank tender forms in relation to the previous NIT and failed to submit the filled up tender forms. 5. A perusal of the impugned NIT (Annexure P-1) bearing No.978/ 27.10.2009 demonstrate that at serial No.12 of the conditions of NIT, the Department has specifically restricted the supply of the blank tender forms to those intending tenderers, who had obtained blank forms, pursuant to the NIT dated 27.10.2009 (it should have been date 3.10.2009) and as such a condition in the shape of a restriction or a bar incorporated in the second NIT dated 27.10.2009, without providing for such a condition in the first NIT dated 3.10.2009. Since both the cases are based upon clause 12 of the conditions of NIT, the same is being quoted: 6. Since both the cases are based upon clause 12 of the conditions of NIT, the same is being quoted: 6. Shri Brijesh Sharma submits that when the second NIT was published on date 27.11.2009, the petitioner had submitted three applications on date 5.11.2009 (vide Annexures P-2, P-3 and P-4) for obtaining blank tender forms for Garhkundhar Fort, Gujri Mahal and Sanaudha Fort but the Deputy Director subsequently informed the writ petitioner on date 9.11.2009 that the prayer for issuance of blank forms has been rejected in terms of clause 12 of the tender conditions, at the tender committee has made an endorsement on the three applications regarding disability of the writ petitioner in procuring tender forms. In this facts situation, the petitioner has questioned the legality and propriety of incorporation of clause 12 as a restriction of his fundamental right to carryon his business freely, in violation of Article 19(1)(g) of the Contitution of India and has sought quashment of this condition/restriction with the prayer to issue direction for calling fresh NIT for the same works. 7. Shri P.N. Gupta, learned Government Advocate has argued that since the petitioner has not submitted the tender form inspite of receiving the blank tender forms from the Department, he had violated the tender conditions and by creating a "pool" with other tenderers, he has deliberately not submitted the tenders, just to facilitate the other particiants as also with a view to delay execution of the project. Shri Gupta submits that the Central Government has granted specific funds for the maintenance of the Archaeological sites, for restoration of monuments and since the entire work is required to be completed up to date 31.3.2010, the Department was left with no choice except to debar/restrict those tenderers who had obtained blank forms pursuant to the first NIT. Shri Gupta has relied upon minutes of the tender committee for demonstrating that work prescribed at Item No.1 in relation to Garhkundhar Fort was given to one contractor M/s. Mudgal Construction Company, Morena, and necessary recommendations have been made for awarding contract to this company and since this Court has passed interim orders for not finalizing the tender, therefore, the work order has not been issued. 8. 8. Shri M.P.S. Raghuwanshi appearing on behalf of the Intervener (who subsequently has bean arrayed as the respondent No.4) M/s. Mudgal Construction Company has initially submitted an intervention application along-with an application for vacation of the interim order and upon being arryed as a party respondent, a detailed reply has been filed by demonstrating that the respondent No.4 has submitted its tender and after evaluating the bids/documents the Department has found him to be eligible contractor for being awarded contract and since the tender forms were obtained by the petitioners of the two writ petitions and the same were not submitted maliciously and deliberately at the stage of first NIT, therefore, the Department has rightly imposed a condition in the NIT for not supplying the blank forms to the writ petitioners. 9. We have heard Shri Brijesh Sharma, learned counsel for the petitioner and Shri S.P.S. Jadon, learned counsel for the other petitioner and we have also heard Shri P.N. Gupta, learned Government Advocate and Shri M.P.S. Raghuwanshi, learned counsel appearing for the respondent No.4 in Writ Petition No.5371109 and have also perused the record of the case and have also perused the documents annexed by the petitioners and the respondents along-with their pleadings and have also given our thoughtful consideration of the matter 10. A perusal of the first two NITs dated 3.10.2009 demonstrate that the Deputy Director (Archeology and Museum) had published the NIT for a total of 8 Archaeological sites and as per clause 2 of the NIT, very inadequate time was fixed for applying and supplying the tender forms, in as much as date 24.10.2009 was fixed for submitting the applications for obtaining blank tender forms and date 26.10.2009 was fixed for supplying of the blank tender forms to the applicants and date 27.10.2009 was fixed (in NIT No.719) and date 28.10.2009 was fixed (in NIT No.721) for the submission of the filled up tender forms along-with the bids of the tenderers which means that after supplying of the blank tender forms on date 26.10.2009, the tenderers were having only 24 hours duration for making preparation for the filling up of the tender forms of the bids as the filled up forms were required to be submitted at 3:'00 hours in the afternoon on date 27.10.2009 and in this view of the matter, the arguments of Shri Brijesh Sharma, learned counsel for the petitioner appears to be quite convincing that due to paucity of time, the petitioner could submit only one tender form out of 3 tender forms, purchased by him, in relation to the 4 sites mentioned in NIT No.719 dated 3.10.2009. 11. The incorporation of a restriction in the shape of a condition at serial No.12 in NIT 978 date 27.10.2008, certainly requires a reference to the incorporation of a similar condition in the previous NIT, because unless the intending tenderers are warned/alarmed about the future events; on account of their non-participation or non-submission of the tender forms, it appears to be quite an unreasonable restriction/condition on such tenderers who had no idea about the disability being subsequently attached or found in their previous conduct. Even if condition No.12 is independently analyzed for its objective analysis, it requires reference to some previous declaration, without which it would not justify the incorporation of the condition straighway at the time when the impugned second NIT came to be published on date 27.10.2009. 12. Even if condition No.12 is independently analyzed for its objective analysis, it requires reference to some previous declaration, without which it would not justify the incorporation of the condition straighway at the time when the impugned second NIT came to be published on date 27.10.2009. 12. During the course of the arguments much stres was given by the counsel appearing for the writ petitioners that clause 12 is not properly drafted because it contemplate for an exigency of non-supply of the tender forms, which relates to the tender published on date 27.10.2009, whereas the two tenders were published on date 3.10.2009 and as such clause 12 could have not been invoked for the purposes of denying the entry into the tender process, as the first tender was not published on date 27.10.2009, but was published on date 3.10.2009. 13. The contention of the learned Government Advocate Shri P.N. Gupta appears to be satisfactory in this regard, when he makes a reference to the date of the submission of the filled up tenders on date 27.10.2009, which was the date prescribed in the first NIT issued on date 3.10.2009 an, therefore, we hold that the mention of date 27.10.2009 in clause 12 would be attributable to the date of the submission of the filled up tender forms of the first NIT. 14. The main argument of Shri Brijesh Sharma regarding incorporation of the restrictive condition in clause 12, on the basis of the publication of the second NIT on date 27.10.2009 itself, appears to be quite attractive when he demonstrate that when the last date for submission of the duly filled up tenders in the first NIT was at 3:00 hours in the afternoon on date 27.10.2009, how the Department could have published the second NIT on the very same date 27.10.2009, without waiting for finalization or opening of the tenders. This certainly creates a doubt against the Department as to how without opening the sealed tenders, a decision to re-tender 3 Archaeological sites out of a total of 4 Archaeological sites, could be taken on date 27.10.2009 and how in such a short span, the NIT could be ordered to be published. 15. This certainly creates a doubt against the Department as to how without opening the sealed tenders, a decision to re-tender 3 Archaeological sites out of a total of 4 Archaeological sites, could be taken on date 27.10.2009 and how in such a short span, the NIT could be ordered to be published. 15. The learned Government Advocate could not advance any argument to negative the contention of Shri Brijesh Sharma on this count, except to make a reference to the times of the submission of the forms and publication of the second NIT. This shows that the Department has acted in a very hasty and negligent manner in relation to the entertainment of the application forms, supply of the blank tender forms and the proceeding of the filled up forms and publication of the second NIT, which has created a chaotic situation. 16. Shri M.P.S. Raghuwanshi, learned counsel appearing for the respondent No.4 submits that the two tender forms were submitted on behalf of M/s. Mudgal Construction Company in relation to Garhkundhar Fort and Gujri Mahal and no tender form was obtained or submitted by him for the third Archaeological site, i.e., Sanaudha Fort, which stood readvertised by the third NIT date 3.12.2009. He submits that when the writ petitioners had deliberately avoided submission of their bids, the Department was left with no choice, but to re-advertise, by placing a restriction on such erring tenderers, however, this Court is required to examine as to whether in the peculiar facts and circumstances of the case, such a condition could have been incorporated in the second NIT, without making any mention of the same in the first NIT. 17. The record reveals that when petitioner Gyan Singh Sisodiya submitted three applications for 3 Archaeological sites on date 5.11.2009, the tender committee made an endorsement on the application itself that the tender forms cannot be supplied to him. 18. 17. The record reveals that when petitioner Gyan Singh Sisodiya submitted three applications for 3 Archaeological sites on date 5.11.2009, the tender committee made an endorsement on the application itself that the tender forms cannot be supplied to him. 18. Shri Brijesh Sharma has vehementy argued that when the petitioner had submitted the application on date 5.11.2009 and the tender committee sat over the matter uptill the date 9.11.2009, there was every occasion for the Department and the tender committee to have either invited the writ petitioner for personal hearing or could have sought clarification about the non-submission of the tender forms, before straightway ordering for the non-supply of the tender form to the petitioner by making a reference to clause 12 of the tender condition. 19. This argument appears to be quite convincing, on being tested at the touchstone to the principles of natural justice, which provide for a hearing before passing of an adverse order, but in the facts of the case, it appears that when a condition was already in existence in the second NIT, the tender committee was having no opportunity to have either invited the petitioner for a hearing or to have sought clarification regarding non-submission of the tender pursuant to the first NIT, therefore, the argument based upon the principle of natural justice, seems to be not available, much less tenable in the eyes of law, upon having no occasion of providing a hearing by the Department. 20. Shri Brijesh Sharma, learned counsel for the petitioner has drawn our attention to the judgment of the Supreme Court reported as (1994)6 SCC 651 Tata Cellular v. Union of India, wherein the Supreme Court has categorically provided for certain exigencies, in which the judicial review could be made in contractual matters and para 94 of the judgment contains the broad principles, upon which the issues relating to grant of contracts and the conditions of the tender could be tested. For ready reference, para 94 is quoted herein below: "94. The principles deducible from the above are. -- (1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. The principles deducible from the above are. -- (1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for any administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure." 21. Shri Brijesh Sharma while advancing the arguments about the ulterior motives, favouritism, malice and mala fide has relied upon a judgment of the Supreme Court reported as (1997) 1 SCC 738 , Asia Foundation and Construction Ltd. v. Trafalgar House Construction (l) Ltd. and others, wherein para 10 of the judgment, the Supreme Court has permitted the judicial review in relation to the contractual matters in the following terms: "10. Therefore, though the principle of judicial review cannot be denied so far as exercise of contractual powers of Government bodies are concerned, but it is intended to prevent arbitrariness or favouritism and it is exercised in the larger public interest or if it is brought to the notice of the Court that in the matter of award of a contract power has I been exercised for any collateral purpose." 22. The scope of judicial review has been further clarified in a recent judgment of the Supreme Court reported as (2009)6 SCC 171 , Meerut Development Authority v. Association of Management Studies and another, where in the paragraphs 26 and 28, the Supreme Court has observed that in the limited sphere of judicial review, the validity of the terms and conditions of the tender could be validly examined. The relevant extract of paragraphs 26 and 28 are quoted herein below: "26 .... The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor-made to suit the convenience of any particular person with a view to eliminate all others from participating in the bidding process. 28. It is so well settled in law and needs no restatement at our hands that disposal of the public property by the State or its instrumentalities partakes the character of trust. The methods to be adopted for disposal of public property must be fair and transparent providing an opportunity to all the interested persons to participate in the process." 23. Shri Brijesh Sharma, Advocate submits that clause No.12 has been purposefully incorporated in the terms of NIT with a view to exclude participation of the present writ petitioners and for substantiating this submission, he refers to a judgment of the Supreme Court reported as (2004)11 SCC485, Jespar I. Slong v. State of Meghalaya and others, which was a case based upon the exclusion of competition, where in para 19 of the judgment, the Supreme Court has observed in the following terms: "19. It goes without saying that the Government while entering into contracts is expected not to act like a private individual but should act in conformity with certain healthy standards and norms. Such actions should not be arbitrary, irrational or irrelevant. The awarding of contracts by inviting tenders is considered to be one of the fair methods. If there are any reservations or restrictions then they should not be arbitrary and must be justifiable on the basis of some policy or valid principles which by themselves should be reasonable and not discriminatory" 24. The awarding of contracts by inviting tenders is considered to be one of the fair methods. If there are any reservations or restrictions then they should not be arbitrary and must be justifiable on the basis of some policy or valid principles which by themselves should be reasonable and not discriminatory" 24. Shri Brijesh Sharma has also placed reliance on another judgment of the Supreme Court reported as (2005) 1 SCC 679 , Association of Registration Plates v. Union of India and others, for advancing the analogy of discrimination, based upon Article 14 of the Constitution of India to demonstrate that the impugned condition was so tailor-made that it has calculatedly ousted the present petitioners. He relies upon paragraphs 43 and 44 of this judgment to substantiate his submissions. The two paragraphs are quoted herein below: "43. .... Article 14 of the Constitution prohibits the Government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim a fundamental right to carry on business with the Government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated, to the detriment of public interest. 44. The grievance that the terms of notice inviting tenders in the present case virtually create a monopoly in favour of parties having foreign collaborations is without substance. Selection of a competent contractor for assigning job of supply of a sophisticated article through an open-tender procedure, is not an act of creating monopoly, as is sought to be suggested on behalf of the petitioners. What has .been argued is that the terms of the notices inviting tenders deliberately exclude domestic manufacturers and new entrepreneurs in the field In the absence of any indication from the record that the terms and conditions were tailor-made to promote parties with foreign collaborations and to exclude indigenous manufacturers, judicial interference is uncalled for." 25. To counter the arguments of the counsel for the petitioners, Shri P.N. Gupta, learned Government Advocate has relied upon a Division Bench judgment of this Court reported as ILR (2009) MP 2576, Rakesh Kumar Naik v. State of M.P., to demonstrate that when the terms of the NIT are not arbitrary, discriminatory or actuated by malice, the Court should not interfere. He has also relied upon a judgment of the Supreme Court reported as (2008) 10 SCC 404 , United India Insurance Co. Ltd. v. Manubhai Dharmasinhbhai Gajera, to broadly demonstrate the fairness and reasonableness in the action of the public law authorities and has prayed for non-interference in the contractual matter. Shri Gupta, learned Government Advocate has also drawn our attention to a judgment of the Division Bench of this Court reported in 2008 RN 379= 2009(1) MPHT 78 (DB), Ballav Singh Yadav v. Kalyan Singh, to demonstrate that the scope of the judicial review is limited in its application to the laying of the new conditions. 26. Shri M.P.S. Raghuwanshi, learned counsel for the private respondent has also relied upon the same judgment of the Supreme Court reported as (1997) 1 SCC 738 , Asia Foundation and Construction Ltd. v. Trafalgar House Construction (I) Ltd. and others, with a view to impress upon the Court that on account of interference in the contractual matter, the cost of the project escalates and from this point of view, he prayed for making no interference in the conditions of the Notice Inviting Tender. He also relied upon another judgment of the Supreme Court reported as (2009)2 SCC 198 , B.P. Moideen Sevamandir v. A.M. Kutty Hassan, to impress upon us that the Court should not sit as an appellate authority over the decision of the Administrator or Subordinate authorities. 27. Now the question for consideration regarding legality and correctness of the incorporation of the condition about placing restriction on the tenders would attract its attention to the principles applicable in the field of inviting tenders and grant of contracts, where the employer alone decide the rules of game and when the employer happens to be a Government or its agencies, it has to satisfy all the tests in relation to the conditions it incorporate/impose on the tenders. This Court has no hesitation in observing that the framing of the conditions certainly vest exclusively with the Central Government, State Government and the other authorities, inviting tenders for their respective works, but it certainly obliges the Government to justify as to whether the condition incorporated in the NIT passes the test of legality and reasonableness. 28. This Court has no hesitation in observing that the framing of the conditions certainly vest exclusively with the Central Government, State Government and the other authorities, inviting tenders for their respective works, but it certainly obliges the Government to justify as to whether the condition incorporated in the NIT passes the test of legality and reasonableness. 28. The Supreme Court of India had categorically stated in a series of judgments that the Courts should not make any interference in the contractual matters and should refrain itself from substituting the conditions imposed in the Tenders as the same lie in the exclusive domain of the employer, who intend to get its work done, but in the limited sphere of the jurisdiction available to the Court, the Supreme Court has also permitted interference, when an entirely illegal condition is being imposed, with an intention to either include or exclude some individuals with ulterior motives, inferable from the record of the case. The Supreme Court has also permitted entertainment of such matters where the tender condition seems to have been incorporated by way of punishment or a penalty, without complying with the principles of natural justice and we find that since the writ petitioners of the two writ petition had failed to submit the tender forms pursuant to the first NIT, the incorporation of the condition (clause 12) in the second NIT would virtually constitute as a "Penal clause" without there being an initial adjudication or extension of the right of hearing to the affected persons. Therefore, this seems to be a case where the petitioners, on account of purchasing the blank tender forms, have been actually penalized from not participating at a subsequent stage, when the second NIT was published for the same work and from this view of the matter, this Court feels inclined to make interference in this matter, where clause 12 is incorporated virtually as a Penal cause. 29. 29. The entire judgments, cited at the bar, on behalf of the litigating parties also demonstrate that there exist a narrow scope of interference by the Court of Law, while making judicial review of the matter, but these judgments also empower the High Courts to analyse and examine the validity, legality, objectivity and justification of any such condition in the terms of the NIT, upon finding the same to be incorporated with a malicious intention or as 'a result of arbitrary exercise of administrative authority or actuated with a view to punish the alleged wrong doer, without applying the principles of natural justice. The present two cases clearly highlight the highhandedness of the State-respondents in abusing their administrative power of laying down a condition, in the shape of a restriction, with a view to take action against the wrong doers (based upon their previous conduct) without issuing any show cause notice to them, before incorporating a restrictive condition regarding their participation in the tendering process. This Court has no sound material available on the record to observe that the same was actuated with a view to promote individual interest of the successful bidder, but there exists sufficient material to demonstrate that the Department has incorporated the condition, with a view to simply punish the tenderers, who had not submitted the tender forms pursuant to the previously published NIT, which easily connect the two terminal event, relatable to the conduct of the petitioners, for which a prior adjudication of the wrong was required to be adjudicated upon. 30. 30. Had it been a case where soon after the discovery of the factum at the failure of the tenderers, (who did not submit the tender forms, pursuant to the initial NIT) an explanation would have been sought and an order would have been passed by finding them guilty of non-submission of the tender forms, the Department would have been absolutely justified in putting the restriction in the shape of a condition in the subsequently published NIT, but in absence of a clear condition about the consequence of non-submission of the tender in the first NIT the instant restriction at the stage of the second NIT, would be nothing short of introducing a Penal clause in the terms of the NIT, as the same puts fetters/restrictions on the fundamental right of a citizen, in violation to the constitutional guarantee, enshrined in Article 19(1) (g) of the Constitution of India, and as such this Court has no hesitation to quash the condition No.12 of the NIT, being violative of the Constitutional mandate enshrined in Articles 14 and 19 of the Constitution of India. 31. The contention about expiration of the time limit or lapses of the budget allocation after 31st March appears to be peculiar explanation applied on behalf of the State Government to justify or to cover up their hasty actions, in as much as the arguments about the inadequacy of time lie good in the mouth of the writ petitioners, because insufficient time was given to them for obtaining and submitting the tender form, but it does not lie good in the mouth of the State authorities to have projected a hallow argument to foreclose the right of the intending tenderer by fixing shortest possible time for procuring and submitting. the filled up tender form, as a perusal of three NITs (Annexures P-l, P-6 and P-7) demonstrate that even when the tenders were published on date 3.10.2009 and date 27.10.2009, the Department has opted to issue blank tender forms only before 24 hours of the last date, prescribed for submitting the filled up tender form. the filled up tender form, as a perusal of three NITs (Annexures P-l, P-6 and P-7) demonstrate that even when the tenders were published on date 3.10.2009 and date 27.10.2009, the Department has opted to issue blank tender forms only before 24 hours of the last date, prescribed for submitting the filled up tender form. Therefore, the arguments advanced on behaf of the State Government in relation to the conduct of the tenderer, for not submitting the tender in previous NIT could not be treated to be a convincing argument and would not work as a fatal circumstance against the tenderer for drawing any inference based upon such conduct, which could disable them from grant of the desired relief from this Court and as such no adverse inference could be drawn on the basis of the conduct of the tenderers in relation to the previous NIT, for justifying the incorporation of condition No.12. It would not be out of place to mention that when third NIT was published on date 7.12.2009, the restriction clause (12) was omitted from the terms of NIT. . 32. Therefore, in view of the aforesaid discussion, we find that the Department has incorporated condition No.12 as a penal clause in the terms of NIT with a view to exclude the participation of the writ petitioners in the first NIT without adjudicating their alleged wrong, before incorporating the impugned condition/restriction in the subsequently issued NITs and as such, we hereby quash the condition N 0.12 of the impugned NIT dated 27.10.2009 (Annexure P-1) as also the entire tender proceeding initiated on the strength of the impugned NIT. 33. Consequently, both the writ petitions are allowed and the State-respondents are directed to invite fresh tender in relation to the same work for which the impugned NIT dated 27.10.2009 was published, by permitting all the intending tenderers to participate in the tender process right from the stage of the grant of blank tender form to the stage of their actual participation in the tendering process without incorporating any such condition which would exclude the participation of the writ petitioners. Needless to observe that any step taken pursuant to the impugned NIT dated 27.10.2009 which will include processing of the proposal of the respondent No.4 would be treated to be meaningless and ineffective, in view of the quashment of the condition No.12 as also entire tendering process initiated through NIT dated 27.10.2009. 34. Therefore, both the writ petitions are allowed however, there shall be no order as to costs.