Judgment : PINAKI CHANDRA GHOSE, J This appeal is directed against an order and/or judgment passed by the Trial Court dated 23rd June, 2010 when His Lordship was pleased to hold as follows :- “By the said notification, the Government has proceeded to extend concession in favour of the firms/agencies mentioned therein which, inter alia, includes the respondent No.3. Such concession is ordinarily not granted and it may, in an appropriate case, even give ground to a charge of discrimination. However, it is noted that it has not been challenged before the Court. Therefore, no question of pronouncing on its legality, propriety and/or validity does arise. As it stands the terms and conditions of the said notification have to be construed in its widest amplitude and given full effect so that the object for which the concession that is sought to be extended thereby may be derived by the firms/agencies for whose benefit the same has been issued. A restrictive construction of the terms and conditions of the said notification would, therefore, frustrate the object thereof. In other words, the construction that advances the object has to be preferred. I do not suggest that the calculation worked out by the petitioners is wrong or erroneous. But it admits of no doubt that it is based on a narrow restrictive construction of the said notification and if I accept Mr. Sen’s manner of calculation of rate as mentioned above, that would defeat the object of the said notification. Calculation as per terms and conditions of the said notification, as has been demonstrated by the parties, can be worked out differently providing different results and the manner of application thereof, as adopted by the official respondents, in my opinion cannot be viewed to be absurd or unreasonable. It is settled law that if a clause can be read differently and the manner of reading thereof by the official respondents on being challenged before a Court of law is not found to be absurd or reasonable, and is a plausible one, the Court of Writ would not substitute its views for the view taken by the official respondents. In my considered view, the terms of the said notification in the manner the official respondents have construed it gives maximum leverage so as to achieve the object for which the same has been issued. In my considered view, the terms of the said notification in the manner the official respondents have construed it gives maximum leverage so as to achieve the object for which the same has been issued. I do not find the impugned action of the official respondents in selecting the respondent No.3 to be either absurd or unreasonable. In the result, the writ petition stands dismissed. Undertakings stands discharged.” Being aggrieved, this appeal has been preferred by the appellant. The facts of the case briefly are as follows :- A Notice Inviting Tender was issued on behalf of the Government of West Bengal through its Superintending Engineer, State Highway, Circle-IV, Public Works (Roads), Directorate for construction of a bridge over river Kaljani (near Balarampur) including approach link at 22 km. of Dinhata-Balarampur-Chilakhana Road under Coochbehar Highway Division in the district of Coochbehar (hereinafter referred to as the said project). The estimated cost of the project upon issuance of a subsequent corrigenda was reduced from Rs. 33,32,13,000/- as originally fixed to Rs.32,05,19,109/-. Consequently, the earnest money was reduced from Rs.66,64,302/- to Rs.64,10,400/-. The case of the writ petitioners/appellants herein is that the writ petitioner along with M/s. Makintosh Burn Ltd., the respondent No.3 herein and Rajpat Contractors & Engineers Ltd., the respondent No.4 herein duly responded to the tender notice and duly filed their bids. They were called upon to be present on the occasion of opening of the financial bids. It was found that while the company quoted a rate of 7% above the estimated cost, respondent Nos. 3 and 4 quoted 12.88% and 27% respectively above the estimated cost. The respondent authorities considered the said rates quoted by them are very high and by a letter dated 16th March, 2010, the respondent No.2 duly invited the three interested parties to submit further bids on the lower side. It is a fact that respondent No.4 did not submit any revised bid. The writ petitioner expressed its unwillingness to execute the project at 5.5% above the estimated cost whereas the respondent No.3 scaled down its rates from 12.88% above to 12% above the estimated cost. Our attention was drawn to Clause 49 of the Notice Inviting Tender which reads as follows:- “Clause 49. No price preference will be admissible but during evaluation of Tender rates, concession as laid down in the Finance Department Audit Branch notification No.11 F dt. Our attention was drawn to Clause 49 of the Notice Inviting Tender which reads as follows:- “Clause 49. No price preference will be admissible but during evaluation of Tender rates, concession as laid down in the Finance Department Audit Branch notification No.11 F dt. 10.02.2006 will be observed.” The said Notification No.11F dated 10.02.2006 is also set out hereunder for our ready reference :- “NOTIFICATION In exercise of the power conferred by clause (3) of Article 166 of the Constitution of India, the Governor is pleased hereby to make the following amendment in the West Bengal Financial Rules, Volume-I, as subsequently amended (hereinafter referred to as the said Rules), namely:- AMENDMENT In the said Rules, For Note-1- The following concessions are allowed to M/s. Mackintosh Burn Ltd., M/s. Westinghouse Saxby Farmer Ltd. and M/s. Britannia Engineering Ltd.:- (i) M/s. Mackintosh Burn Ltd., M/s. Westinghouse Saxby Farmer Ltd. and M/s. Britannia Engineering Ltd. shall be eligible to be allowed 10% preference in rate visà- vis other organizations engaged in similar activities. Such preference shall, however, be given only for the purpose of selection, but once selected on the basis of such preference, the companies shall have to execute the work at the lowest valid price bid received in the process of selection, failing which orders will be placed with the organization/firm offering the lowest valid rate; (ii) The Companies shall be exempted from submitting earnest money for all tenders from the Govt. of West Bengal, State Govt. Undertakings and Statutory Bodies, directly controlled by the State Government; (iii) Security Deposit for all works controlled directly or indirectly by the State Government and executed by the Companies shall be limited to Rs.1 lakh. By order of the Governor, Sd/-P.K. Guha Roy Special Secretary to the Government of West Bengal, Finance Department” It is a fact that the writ petitioner/appellant herein without raising any objection in respect of such concessions to be made available to the firms/agencies mentioned in the said notification and filed its revised tender. The said respondent authorities, in terms of the said notification, allowed 10% preference in rate vis-à-vis the rate quoted by the petitioners to the respondent No.3. The said respondent authorities, in terms of the said notification, allowed 10% preference in rate vis-à-vis the rate quoted by the petitioners to the respondent No.3. The said authorities found as follows:- “The estimated cost = 32,05,19,109/-; Company’s rate (5.5% above the estimated cost) = 33.18 crores; Respondent No.3’s rate (12% above the estimated cost) = 35.89 crores, less 10% = 32.30 crores.” The respondent authorities, thereafter, enquired from the respondent No.3 whether it was willing to execute the project at 5.5% above the estimated cost or not, being the lowest rate received in the inter process and the respondent No.3 signified its willingness. Being aggrieved, this writ petition has been filed challenging such action on the part of the respondent authorities. Mr. Bhaskar Sen, learned Sr. Advocate appearing on behalf of the appellants contended that the said Notification had not been Gazetted and, therefore, the said Notification could not have been made a part of the conditions since the same was not made available. He further contended that the said Notification affects the rights of the tenderers who intended to or participated in the tender and creates a right in favour of the respondent No.3 and two other entities. Therefore, the said notification should have been published in the Gazette. It is further submitted that it was also not possible for the appellant/writ petitioner No.1 to lay hands to such a Notification which has not been Gazetted. It is submitted that it is necessary that before giving effect which affects the rights of the tenderers and creates right in favour of the respondent No.3, therefore, it requires publication in the official Gazette. It is further contended that the Notification which was issued by the Government of West Bengal, Finance Department, has been notified in the Gazette. But, in the instant case, no such publication was made in respect of the Notification involved in this matter. It is further submitted that the wrong method has been followed by the respondent authorities and there is some wrong calculation has been done by the said authorities. However, he submits that the respondent No.1 has reduced its rates 10% from the revised rate quoted by the respondent No.3, Mackintosh Burn i.e., by deducting 10% of Rs.35,89,81,402/- from such sum of Rs.35,89,81,402/-which comes to Rs.32.30 crores roughly i.e., less than the offer given by the appellant/writ petitioner No.1. Mr. Sen, learned Sr. However, he submits that the respondent No.1 has reduced its rates 10% from the revised rate quoted by the respondent No.3, Mackintosh Burn i.e., by deducting 10% of Rs.35,89,81,402/- from such sum of Rs.35,89,81,402/-which comes to Rs.32.30 crores roughly i.e., less than the offer given by the appellant/writ petitioner No.1. Mr. Sen, learned Sr. Counsel further contended that the Notification is that 10% preference has to be computed on Rs.1,76,28,551/-being the amount quoted by the appellant/writ petitioner No.1 over and above the estimated cost. This comes to Rs.17,62,855/-. If this sum of Rs.17,62,855/-is deducted from the revised offer of Rs.35,89,81,402/- given by the respondent No.3, Mackintosh Burn, then on applying the provisions of the Notification the offer of the respondent No.3, Mackintosh Burn will be to Rs.35,72,18,547/- which is more than the rate quoted by the appellant/writ petitioner No.1. Hence, he submitted that it should not have been awarded in favour of the Mackintosh, the respondent No. 3 herein. It is further submitted that the Honble First Court would not appreciate the facts and the methodology applied by the respondent No.1 and further the construction of the notification has not been applied properly. Hence, he submitted that his client should have been declared as the lowest bidder. He further contended that by granting 10% preference the respondent No.1 has worked out the offer of the respondent No.3 at Rs.32.80 crores. It would cause loss to the public exchequer. The said act of the respondent authorities in conducting the tender process is arbitrary, discriminatory and in violation of principles of natural justice. Hence, he submitted that the said order should be set aside. In support of such contention, he relied on a decision of Sri Harminder Singh Arora vs. Union of India & Ors., reported in AIR 1986 SC 1527 . On the contrary, Mr. Supriyo Bose, learned counsel appearing on behalf of the State respondent, submitted that the case made out by the appellant/writ petitioners before the Honble Writ Court was two fold, namely, that the respondent No.2 carried out post tender negotiation with the respondent Nos.3 and 4 and that though they being the lowest tenderer was denied the contract. He further submitted that the appellants cannot now be heard to urge other points, which they had not urged and/or abandoned before the Honble Court below. He further submitted that the appellants cannot now be heard to urge other points, which they had not urged and/or abandoned before the Honble Court below. He also contended that the answer to the allegation regarding post tender negotiation is as stated hereinafter : (a) In terms of West Bengal works Departmental manual, Chapter VII, subsidiary Rules and Orders relating to Contracts when rates quoted are considered high and fresh tender cannot be taken recourse to it may be necessary to carry out negotiation with all the participating tenderers and not with the lowest tenderer alone. (b) As the rates quoted appeared to be in the higher side the respondent No. 2 by letter dated 16th March, 2010 addressed to all the three participating contractors called for sealed revised bids to lower down the rate. This was in terms of Note 1 of subsidiary Rules and Orders relating to contracts referred to hereinbefore. (c) In response the appellant lowered the rate from the earlier rate of 7% to 5.5 % and the respondent No. 3 Mackintosh Burn Ltd. lowered its rate from 12.88% to 12.0%, while the respondent No. 4 did not respond. (d) No further negotiation was carried out thereafter. He further submitted that the answer to the allegation that though the appellant/writ petitioner was the lowest tenderer, it was denied the contract, is as stated hereinafter: (a) The Notice inviting tender at clause 49 specifically stated “No price preference will be admissible but during evaluation of tender rates concession as laid down in the Finance Department Audit Branch Notification No.1110-F dated 10th February, 2006 will be followed.” (b) The terms at clause 49 of the NIT did not escape the notice of the appellant/writ petitioners as shall be evident from their letter dated 9th March, 2010 addressed to the respondent No. 2. (c) The term contained in the NIT is therefore binding upon the parties herein. (d) The Finance Department Audit Branch Notification No. 1110-F dated 10th February, 2006 has manifold effect, though for the purpose of meeting the allegation made in the present litigation only clause (i) need be considered. (c) The term contained in the NIT is therefore binding upon the parties herein. (d) The Finance Department Audit Branch Notification No. 1110-F dated 10th February, 2006 has manifold effect, though for the purpose of meeting the allegation made in the present litigation only clause (i) need be considered. He further contended that the appellant for the first time is contending before the Honble Appeal Court that the Notification dated 10th February, 2006 is discriminatory, not published the Official Gazette and cannot be given effect to, the answer to which, as stated hereinbefore is that the notification is part and parcel of the Notice Inviting Tender clause 49 and is binding upon the participating tenderers. He submitted that the Honble Writ Court had observed that the writ petitioner had responded to the Notice Inviting Tender without raising any objection to an express term of the tender and the Honble Court below has recorded that the writ petitioner has not advanced any argument on any of the grounds urged in the writ petition, apart from the contention that even upon application of the notification, Mackintosh Burn Ltd. was not entitled to preference. Mr. Durga Prasad Dutta, learned counsel appearing on behalf of the Rajpat Contractors & Engineers Ltd. i.e., respondent No.4, submitted though Rajpat Contractors & Engineers Ltd. Is not directly affected in respect of this tender but Rajpat Contractors and Engineers Ltd. Always raised its voice against the purported preferential treatment given to Makintosh burn Ltd. In that view Rajpat Contractors and Engineers Ltd. submits before the Honble Court against such purported preference given to Makintosh Burn Ltd. for consideration of the Honble Appeal Court. Initially preference was given to M/s Makintosh Burn Ltd. in attaining viability of the said company. Thereafter the Government of West Bengal, Finance Department amended Sub-rule 3 of Rule 47 A of West Bengal Financial Rules and the said Government withdrew the word ‘assistance’ / ‘viability’ and straightway a 10% preference was given to Makintosh Burn Ltd. For the purpose of selection. Such purported amendment notification is an instance of colourable exercise of power of the said Government. Such purported amendment notification is an instance of colourable exercise of power of the said Government. In this connection it is pertinent to place on record that Makintosh Burn Ltd. is not a Government Company and also not a sick company, though the initial preference was given to Makintosh Burn Ltd. for viability in consideration of their financial hardships and for viability of this company. Since 2006 there has been no question of financial hardship and/or viability. In that view the said preference ought not to have been given to Makintosh Burn Ltd. In this connection it is obvious that there is no transparency equity or fair treatment to the competitors for issuance of the said Notification and the statutory body ought not to have given such a differential treatment. It is a well settled principle of law that by imposing a condition like 10% preference for selection, no option is left and a monopoly is being created. In that view the said Notification should be set aside by this Honble Court because there is no rational basis for issuance of the said purported notification. Mr. Sumit Kumar Panja, learned advocate appearing on behalf of the M/s. Makintosh Burn Ltd., the respondent No. 3 herein submitted that the submission of the nonenforcement of the notification advancement by the appellant made for the first time before this Honble Appeal Court. No grounds, no statements and even no prayer for setting aside the notification for such non-enforcement of the same have been made in the writ petition. Even no such allegation was made in the Stay Application. However, the respondent No.3 is not aware whether the appellants have taken any such grounds in the Memo of Appeal as no copy of the same served upon the respondent No.3 in spite of request made in writing. He further submitted that the appellant before the Honble Trial Judge did not advance any submission regarding cancellation of the selection of the respondent No.3 on any of the grounds urged in the writ petition. The appellant even did not object to the applicability of the Clause of the said notification. In the writ petition there is no grounds taken, no statements made even there is no prayer for setting aside the decision of the official respondent giving 10% in rate which would be applied “only for the purpose of the selection”. The appellant even did not object to the applicability of the Clause of the said notification. In the writ petition there is no grounds taken, no statements made even there is no prayer for setting aside the decision of the official respondent giving 10% in rate which would be applied “only for the purpose of the selection”. In fact the appellant did not take any ground challenging the validity and applicability of the notification. Mr. Panja further contended that the appellant proceeded with the matter before the Honble Trial Court accepting the said notification. Only objection was the mathematical calculation on 10% preference to the rate quoted by the respondent No.3 i.e. adoption of procedure regarding mathematical calculation applying 10% preference in rate. The appellant has not raised any objection with regard to the Clause Nos. (ii) and (iii) of the notification dated 10.02.2006 and as such he is precluded from raising objection against clause No. (i). He submitted that the appellant being aware about the Notification No. 111OF dated 10.02.2006 stated in Clause 49 of the Tender Document, participated in the Tender process without any objection and or protest. Even when the respondent authority invited the participating tenders to lower down the rates vide letter dated 16.03.2010 the appellant again without any objection and or protest with regard to the Clause 49 of the Tender document or with regard to post tender negotiation submitted sealed bid with lower rate being 5.5% above the schedule price than that submitted earlier being 7% above the schedule price. So it is clear that the Appellant at no stage raised his voice against the applicability or legality of such 10% preference in rate for the purpose of selection and has also been acted upon by the official respondent, but the appellant did not object the applicability of the same. We have considered the facts of this case and we have also found that the learned Trial Court has correctly come to the conclusion that it is a settled law that if a clause can be read differently and the manner of reading thereof by the official respondent on being challenged before a Court of law is not found to be absurd or responsible, and is a plausible one, the Court of Writ would not substitute its views for the view taken by the official respondents. Accordingly, we found that the views taken by the respondents cannot be said to be incorrectly reached by them. We further able to find out that the notification which was issued by the Government was included in the clause of the tender notice and the including parties participated in the said tender knowing fully well that the said clause is prevailing and participated in the said tender process. Therefore, at this stage after become unsuccessful in the tender in question the appellant cannot turn around and challenge the same. We have also considered the decision cited before us by the parties in the case of Sri Harminder Singh Arora (supra) on behalf of the appellants and we found that the appellants did not press the said point before the learned Trial Court. In these circumstances, we do not find that there is any arbitrariness or unreasonableness on the part of the respondent authorities. We do not find that there is any discrimination has been done in the matter and accordingly we find that there is no merit in this appeal since no case has been made out by the appellant. Further, we found that there is no illegality and/or irregularity in the order so passed by the Honble First Court. Hence, the appeal is dismissed. Since the appeal is dismissed, the connected application for stay being CAN No. 6669 of 2010 has become infructuous and the same is dismissed. Photostat certified copy of this order, if applied for, be supplied to the parties. (PINAKI CHANDRA GHOSE, J.) I agree.