Judgment :- 1. Heard Mrs.Radha Gopalan, learned counsel appearing for the petitioner and Mr.V.Ramachandran, learned Senior Counsel appearing for Mr.K.Shanmugakani, learned counsel for the respondent. 2. The petitioner has come up with the present writ petition seeking a writ of mandamus forbearing the respondent from accepting any tender and enter into contract with any other tenderer without considering his tender also along with others pursuant to the Tender No.V16AC10009 for hiring Light Vehicle (Car Taxis and Jeep Taxis) in so far as Group 'A' and 'C' are concerned. 3. Facts of the case as put forth by the petitioner in his affidavit would run thus : (i) The respondent invited tender for hiring of Light Vehicles vide Tender No.V16AC10009 with the last date of submission of tenders as 26.05.2010 at 14.00 hours for following categories : Group 'A' - Car Taxi - 10 hours duty - 46 Nos. Group 'B' - Car Taxi - 24 hours duty - 6 Nos. Group 'C' - Jeep Taxi - 10 hours duty - 13 Nos. Group 'D' - Jeep Taxi - 24 hours duty - 16 Nos. The sale of the tender document started from 05.04.2010 and the closing date being 24.06.2010. (ii) Pursuant to the said tender, after paying necessary EMD of Rs.3,20,000/-, the petitioner submitted his tender on 26.04.2010 for Group 'A' - Car Taxi 10 Nos. and Jeep Taxi 3 Nos. Along with the tender document, the petitioner enclosed a forwarding letter listing out the documents that have been enclosed. (iii) According to the petitioner, he is the existing contractor with the respondent for the past 20 years, viz. from 1991 itself and he has been awarded with a contract in respect of Ambulance, Tempo Traveller and Cars from 1991 to 2010. On 09.02.2010, the petitioner was issued with the Letter of Award (LOA) for hiring 3 Nos. Ambulances against his offer to the Tender No.V16AC09021 by the respondent and again on 31.03.2010, the respondent issued LOA against Tender No.V16AB10005 for hiring car taxi (09 Nos. for four months). It is his further submission that the same tender form has been issued even for the earlier periods, for which he has been granted with Letter of Award and there is no change in the tender conditions. The respondent, being satisfied that the petitioner is a qualified tenderer, awarded LOA to the petitioner in February and March 2010. It is his further submission that the same tender form has been issued even for the earlier periods, for which he has been granted with Letter of Award and there is no change in the tender conditions. The respondent, being satisfied that the petitioner is a qualified tenderer, awarded LOA to the petitioner in February and March 2010. (iv) Subsequently, the petitioner received a letter dated 04.06.2010 from the respondent in response to his present tender seeking certain clarification and documents, for which the petitioner gave a reply on 09.06.2010 stating that the Auditor Annual Reports for 2007-2008, 2008-2009 duly audited and certified by Chartered Accountant with Membership Number is enclosed in original and stated that their average turnover for these years is more than 30% of their Annualized bid value. Further, the petitioner has also given an undertaking to establish a local office at Karaikal with telephone facility within 30 days from the placement of Letter of Intent (LOI) by the respondent. He has also enclosed the Auditor's certificate of proprietor concern in original. In fact, he is already having a local office at Karaikal for which the petitioner produced the lease agreement, etc. Since the respondent wanted an undertaking, the petitioner also produced the undertaking. Therefore, he has complied with all the formalities. (v) As this is two bid system viz. techno commercial bid and price bid, the techno commercial bid was opened on 26.05.2010. Only after opening of the commercial bid, the respondent thought that some clarification and certain documents are necessary and therefore, they have written the above letter dated 04.06.2010, for which the petitioner has clarified and complied with by producing all the documents by his letter dated 09.06.2010. Therefore, he is eligible for the price bid. (vi) The petitioner would further submit that he has not been asked to participate in the opening of the price bid, which is to be held on 05.07.2010. He came to know of this from one of the participants who has received a letter from the respondent on 02.07.2010 only asking him to participate in the opening of the price bid to be held on 05.07.2010. He came to know of this from one of the participants who has received a letter from the respondent on 02.07.2010 only asking him to participate in the opening of the price bid to be held on 05.07.2010. As already submitted, when the techno commercial bid was opened on 26.05.2010 and the respondent, by its letter dated 04.06.2010 asked for certain clarifications from the petitioner and the same has been complied with, it goes to show that he is eligible for price bid itself as otherwise after the opening of the techno commercial bid they would not have sent a letter seeking clarification. 4. Respondent has filed counter affidavit along with Vacate Interim Injunction Petition, wherein, it is stated that the allegations set out by the petitioner are denied except those that are specifically admitted. According to the respondent, the tender conditions for tenders valuing upto Rs.500 lakhs (Rs.5 crores) are different from tender conditions for tenders valuing Rs.500 lakhs or more. The main difference is that in case of tenders valuing less than Rs.500 lakhs, there will not be any "Financial Criteria" clause in the Bid Evaluation Criteria (BEC) of the tender. However, in case of tenders valuing Rs.500 lakhs or more, there will be a financial criteria clause in the BEC of the tender and which will be incorporated as a part of Commercial rejection criteria. If any of the bidders is not meeting the financial criteria of the BEC of the tender, then their bid will be commercially rejected and their price bid will not be opened. The tender No.V16AC09021 invited for hiring of Ambulances and tender No.V16AB10005 invited for hiring of car taxies are the tenders valuing less than Rs.500 lakhs. Hence, no Financial Criteria was kept in the BEC of these tenders. The petitioner has participated in the above tenders valuing less than Rs.500 lakhs and complied with the Bid Evaluation Criteria and accordingly, his bids were considered as Techno-Commercially acceptable. Since his bids were considered as techno-commercially acceptable, their offers were short-listed for price bid opening. Subsequent to opening of their price bids in the respective tenders, Letter of Awards (LOA) were issued to them as their bid was L1 in both the tenders. 4a. However, the present tender No.V16AC10009 invited for hiring of light vehicles is of value more than Rs.500 lakhs (Rs.5 crores). Subsequent to opening of their price bids in the respective tenders, Letter of Awards (LOA) were issued to them as their bid was L1 in both the tenders. 4a. However, the present tender No.V16AC10009 invited for hiring of light vehicles is of value more than Rs.500 lakhs (Rs.5 crores). Accordingly, the following Financial Criteria clause was incorporated as one of the commercial rejection criterion in the BEC of the tender. Financial Criteria : 1. Turnover of Bidders : 30% of annualized bid value or more 2. Net-worth of Bidder : Positive (as per latest audited annual report) (i) The basis of bid value shall be the price quoted by the bidder including duty and taxes, if any, which is taken into consideration for evaluation. However, in case Customs duty in respect of foreign bidders is not a part of their quotation, it shall not form basis for determining the bid valud. (ii) For the purpose of ascertaining parameter of Turnover of the bidder, average turnover of the bidder for the previous two financial years shall be considered. The bidder will provide a copy each of audited annual report of previous two financial years for ascertaining their turnover. The date of the immediate previous year's annual accounts should not be older than eighteen (18) months from the bid closing/un-priced bid opening date. In case of two Bid System, in the un-priced bid, the bidder will submit a 'certificate of compliance' to the effect that the Turnover of the bidder is equal to or more than the required value as applicable. 4b. The respondent would further submit that it is evident from the above that the tender conditions for the present tender No.V16AC10009 are not same as earlier tenders, i.e. Tender No.V16AC09021 and Tender No.V16AB10005, participated by the petitioner. Hence, the contentions of the petitioner that the same tender form has been issued even for earlier periods, for which they have been granted with LOA and that there is no change in the tender conditions of the present tender are not correct and misleading. 4c. According to the respondent, the original offer submitted against the present tender that the Annual Reports for the years 2007-2008, 2008-2009 were kept in the price bid cover. 4c. According to the respondent, the original offer submitted against the present tender that the Annual Reports for the years 2007-2008, 2008-2009 were kept in the price bid cover. As the annual reports were required to be submitted along with Techno-commercial bid as per the requirement of the tender, ONGC asked the petitioner to submit notary attested copies of annual reports for the financial years 2007-08 & 2008-09 duly audited and signed by registered Chartered Accountant having membership number mentioned on the annual reports along with other clarifications/confirmations/deficient documents within the cut-off date i.e. 10.06.2010. The petitioner has submitted their replies vide letter dated 09.06.2010, which was received in ONGC office, Karaikal on 10.06.2010. On going through the clarifications/confirmations/deficient documents submitted by the petitioner, it was noticed that the petitioner has complied with all requirement except "Net worth" as per Financial Criteria of BEC of the tender. On going through the latest audited Balance Sheet for the financial year 2008-09, it was noticed that the Net-worth of the petitioner is Negative i.e. (Rs.70,203.78). As the petitioner's net-worth was negative for the financial year 2008-09, the petitioner was not meeting the financial criteria of tender. Hence, their offer was considered as commercially not acceptable and thereby, their offer was commercially rejected as per BEC criteria, though Technically acceptable. In view of the above, their offer was not short-listed for price bid opening. 4d. In the counter, it is further stated that the petitioner was not asked to participate in the opening of the price bid which was to be held on 05.07.2010 is not correct. The contention of the petitioner that he was eligible for price bid opening itself as otherwise ONGC would not have sent a letter seeking clarification after opening of techno-commercial bid is not correct and misleading. ONGC has asked the petitioner to submit clarifications/confirmations/deficient documents, wherever required, as their offer was incomplete and deficient with respect to tender requirement. Acceptability of the offer of petitioner could be ascertained only after the receipt of clarifications/confirmations/deficient documents from the petitioner. However, on evaluation of their original offer and clarifications/confirmations/deficient documents submitted by the petitioner subsequently, their offer was found commercially not acceptable due to their negative net-worth as per latest audited Balance sheet for the financial year 2008-09. 4e. Acceptability of the offer of petitioner could be ascertained only after the receipt of clarifications/confirmations/deficient documents from the petitioner. However, on evaluation of their original offer and clarifications/confirmations/deficient documents submitted by the petitioner subsequently, their offer was found commercially not acceptable due to their negative net-worth as per latest audited Balance sheet for the financial year 2008-09. 4e. It is the further submission of the respondent that the petitioner is providing the services since several years and the respondent has respect for the petitioner and that the petitioner has participated in several tenders of ONGC and ONGC has not rejected the bids of the petitioner earlier, as the same were complied with the terms and conditions of those tenders and it is also a fact that the tender is to be finalized as per the terms and conditions of the tender and there is no second thought in this matter. 4f. In order to qualify in the tender for price bid opening, the bidder must comply the Bid evaluation criteria (BEC) of the tender. The petitioner is well aware of this as he has participated in several tenders earlier. As per the BEC, the Net-worth of the bidder as per the latest audited annual report should be positive, which the petitioner has not satisfied as per the Balance Sheet for 2008-09. As the other bids have been finalized and order could not be placed due to the injunction order obtained by the petitioner in Group A & C which will lead to irreparable loss to the ONGC, the respondent prays for dismissal of the writ petition. 5. To the above counter affidavit, a reply has been filed by the petitioner, wherein, it is stated as follows : (i) As soon as the petitioner received the letter of the respondent dated 04.06.2010, he sent a reply along with the documents, which included the balance sheet for the year 2008-09 and the petitioner was also having balance sheet for the year 2009-10. Since the petitioner is too old, i.e. Aged 76 years, though he was having the balance sheet for the year 2009-10, he forgot to send the same. Since the petitioner is too old, i.e. Aged 76 years, though he was having the balance sheet for the year 2009-10, he forgot to send the same. Thereafter, on 20.06.2010, by a letter addressed to the Director (On Shore), Jeevan Bharathi Tower, New Delhi, he sent the balance sheet for the year 2009-10, wherein, he has specifically stated that by mistake, he failed to submit the balance sheet for the year 2009-10, though it was available with him and as per the report, the net worth is positive. A copy of the said letter is also marked to the Executive Director & Asset Manager of the respondent herein. Therefore, even before the price bid was opened the annual report for the year 2009-10 was very much available on record of the respondent. Therefore, the respondent ought to have taken that into consideration and if that is taken into account, then the network of the petitioner is only positive, because, as per the criteria in the column net worth, it is stated as positive. Therefore, the petitioner has satisfied the financial criteria and the respondent ought to have called him for the price bid. A letter addressed to the Director has been enclosed and copy of the same is marked to the Executive Director of the respondent along with the balance sheet for the financial year 2009-10. Had the petitioner been given an opportunity, he would have explained that the net worth is positive for the above said reasons. (ii) Even otherwise, when the respondent has taken into consideration the balance sheet, they should have seen that as per the income and expenditure account submitted there is an excess of expenditure over income to the extent of Rs.4,00,443.36. This minus figure is due to claiming of depreciation to the tune of Rs.14,67,666/- and actually the depreciation is only a notional charge and it is not cash expenditure. Hence, cash profit derived by the petitioner for the financial year ending 31.03.2009 is Rs.10,67,222.64 and if the cash profit is credited in the capital account of the petitioner, then his account will show a credit balance of Rs.28,17,803.22 as on 31.03.2009. Hence, by debiting in the income and expenditure account, the notional charge of Rs.14,67,666/- (depreciation), the petitioner's capital account has been depleted and resulted in a minus figure of Rs.70,203.78. Hence, by debiting in the income and expenditure account, the notional charge of Rs.14,67,666/- (depreciation), the petitioner's capital account has been depleted and resulted in a minus figure of Rs.70,203.78. If cash basis is adopted and cash profit is considered his capital account will show a surplus of Rs.28,17,803.22 for the year ended 31.03.2009 and assets minus liabilities will be of the same figure. The above content is the report given by the auditor along with the tender documents, which has not been considered in the proper perspective and if this is taken into account, then there is no question of minus figure. Merely because minus figure is shown then it does not mean that the net worth is negative. The respondent without considering the auditors report has come to the conclusion that the net worth is "negative". If this is taken into account with regard to net worth, then the net worth will be positive. Merely because it is shown as (-) Rs.70,203.78, the net worth cannot be stated as negative. As stated above, there is only a surplus of Rs.28,17,803.22 for the year ending 31.03.2009 and assets and liabilities are of the same figure and liabilities are not more than assets. In fact, in the column net worth, it is stated as 'Positive'. Therefore, the entire report should have been taken into consideration without that merely saying that there is minus report and therefore, it is negative one is highly and arbitrary. Even a perusal of the balance sheet at Page No.181 would show that net loss is Rs.4,00,443.36, whereas the credit is Rs.5,00,000/- and fixed assets are Rs.34,24,561.00 and for hiring vehicles by ONGC he has got towards hire charges Rs.65,91,605.00. Therefore, at no stretch of imagination it can be said that the net worth is negative. 6. Mrs.Radhagopalan, learned counsel appearing for the petitioner would submit that the petitioner has satisfied the terms and conditions of the contract and as per the latest audited annual report, he has satisfied the "Net Worth" condition as positive which the respondent has not taken into account, even though it was addressed to the Director, (On Shore), Jeevan Bharathi Tower, New Delhi, on 20.06.2010 with a copy marked to the Executive Director and Asset Manager of the respondent herein. It is her contention that if the petitioner had been given an opportunity, he would have explained that the 'Net Worth' is positive. Therefore, there is violation of the principles of natural justice. From the statement of the respondent, she pointed out that the petitioner has provided service since several years and he has participated in several tenders and awarded with the said tenders and his tenders were not rejected earlier and that the respondent has respect for the petitioner. 7. Per contra, Mr.V.Ramachandran, learned Senior Counsel appearing for the respondent would strenuously contend that the petitioner has not satisfied the bid criteria, particularly his "Net Worth", which is negative and therefore, he was not called for the price bid. When the criterion is prescribed, it is the discretion of the respondent to go according to the terms and conditions of the tender and it cannot be deviated. As the petitioner has not satisfied the financial criteria, he was not called for the price bid. It is his further contention that though the petitioner has been called for a clarification to comply with certain defects and deficiencies, they were not complied with and satisfied by him. Therefore, the respondent cannot be restrained from proceeding with the public tender which involves larger public interest. When the petitioner has not enclosed the audited annual report to satisfy the condition, the action of the respondent cannot be faulted with. He pointed out that certain documents which are enclosed by the petitioner are materially corrected and therefore, the petitioner has approached this Court with unclean hands. 7a. To substantiate his case, learned counsel for the respondent has relied on the following decisions of the Supreme Court: (i) (2005) 1 SCC 679 (Association of Registration Plates v. Union of India) "37. It is not controverted that the technical ‘know-how’ for the manufacture of high security registration plates presently is available outside India. Technically and financially, competent indigenous manufacturers are mostly those who are in collaborations with foreign companies engaged in such manufacturing activities. The scheme contemplated under Rule 50 for registration plates is a new experiment for India. In the initial stages of its implementation, tender conditions encouraging such manufacturers who are in foreign collaborations cannot be held to be discriminatory to indigenous manufacturers. The scheme contemplated under Rule 50 for registration plates is a new experiment for India. In the initial stages of its implementation, tender conditions encouraging such manufacturers who are in foreign collaborations cannot be held to be discriminatory to indigenous manufacturers. Keeping in view the nature of the contract and job involved, particularly its magnitude and the huge investment for infrastructure required, attempt to select such manufacturer - maybe having collaboration with foreign companies and experience in foreign countries - cannot be held to be a deliberate attempt on the part of the State authorities to eliminate indigenous manufacturers. 38. In the matter of formulating conditions of a tender document and awarding a contract of the nature of ensuring supply of high security registration plates, greater latitude is required to be conceded to the State authorities. Unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, tender conditions are unassailable. On intensive examination of tender conditions, we do not find that they violate the equality clause under Article 14 or encroach on fundamental rights of the class of intending tenderers under Article 19 of the Constitution. On the basis of the submissions made on behalf of the Union and State authorities and the justification shown for the terms of the impugned tender conditions, we do not find that the clauses requiring experience in the field of supplying registration plates in foreign countries and the quantum of business turnover are intended only to keep indigenous manufacturers out of the field. It is explained that on the date of formulation of scheme in Rule 50 and issuance of guidelines thereunder by the Central Government, there were not many indigenous manufacturers in India with technical and financial capability to undertake the job of supply of such high dimension, on a long-term basis and in a manner to ensure safety and security which is the prime object to be achieved by the introduction of new sophisticated registration plates. 40. Selecting one manufacturer through a process of open competition is not creation of any monopoly, as contended, in violation of Article 19(1)(g) of the Constitution read with clause (6) of the said article. As is sought to be pointed out, the implementation involves large network of operations of highly sophisticated materials. The manufacturer has to have embossing stations within the premises of the RTO. As is sought to be pointed out, the implementation involves large network of operations of highly sophisticated materials. The manufacturer has to have embossing stations within the premises of the RTO. He has to maintain the data of each plate which he would be getting from his main unit. It has to be cross-checked by the RTO data. There has to be a server in the RTO’s office which is linked with all RTOs in each State and thereon linked to the whole nation. Maintenance of the record by one and supervision over its activity would be simpler for the State if there is one manufacturer instead of multi-manufacturers as suppliers. The actual operation of the scheme through the RTOs in their premises would get complicated and confused if multi-manufacturers are involved. That would also seriously impair the high security concept in affixation of new plates on the vehicles. If there is a single manufacturer he can be forced to go and serve rural areas with thin vehicular population and less volume of business. Multi-manufacturers might concentrate only on urban areas with higher vehicular population. 42. There is no material on record to infer any mala fide design on the part of the tendering authority to favour parties having foreign collaborations and to keep out of the fray indigenous manufacturers. The high security plate is a sophisticated article - new for a manufacturer in India. It is being introduced for the first time under the scheme contained in Rule 50 of the Rules and the Act. At the time of issuance of notices of tender, technical know-how for manufacture of plates and its further development was undoubtedly outside the country. Only a few concerns in India having collaboration with foreign parties possessed the expertise and were available in the market. The terms of the notice inviting tenders were formulated after joint deliberations of Central and State authorities and the available manufacturers in the field. The terms of the tender prescribing quantum of turnover of its business and business in plates with fixation of long-term period of the contract are said to have been incorporated to ensure uninterrupted supply of plates to a large number of existing vehicles within a period of two years and new vehicles for a long period in the coming years. The terms of the tender prescribing quantum of turnover of its business and business in plates with fixation of long-term period of the contract are said to have been incorporated to ensure uninterrupted supply of plates to a large number of existing vehicles within a period of two years and new vehicles for a long period in the coming years. It is easy to allege but difficult to accept that terms of the notices inviting tenders which were fixed after joint deliberations between State authorities and intending tenderers were so tailored as to benefit only a certain identified manufacturers having foreign collaboration. Merely because a few manufacturers like the petitioners do not qualify to submit the tender, being not in a position to satisfy the terms and conditions laid down, the tender conditions cannot be held to be discriminatory. 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." (ii) (2007) 14 SCC 517 (Jagdish Mandal v. State of Orissa) "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made ‘lawfully’ and not to check whether choice or decision is ‘sound’. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”; (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action." (iii) (2008) 16 SCC 215 (Siemens Public Communication Networks (P) Ltd. v. Union of India. "33. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action." (iii) (2008) 16 SCC 215 (Siemens Public Communication Networks (P) Ltd. v. Union of India. "33. The plea of Petitioner 1 that the software at Item 11 had no connection or relationship with vehicular mobile stations as specified in Items 4.1 and 7 is also not acceptable inasmuch as for the vehicular mobile stations to be operational and functional, they have to be attached to PC with software to enable a sending/receiving party to send/receive any speech/image, to/from another vehicular mobile. Thus all the three items mentioned at Items 4, 7 and 11 were interconnected and interrelated and only upon being integrated they (sic could) be used for DRTS. In any case, nothing material would turn on this for the reason that originally, prices were quoted by all the three bidders for Item 11 on a unit rate basis. The figure of 1200 cropped up much later. It is the common case of all the parties that commercial offers were to be made by all the bidders for quantities of 80 systems as per the bill of materials enclosed with RFA. As no quantity was disclosed for Item 11 in the bill of materials, none of the bidders quoted rates for any specific quantity, but did so only for a single unit. Thus the unit rate quoted remained the deciding factor for the Committee, while finally analysing the bids. 34. The contention of the appellants that they had a licence for the software under which one software unit would serve 100 units of vehicular mobile terminals and as a result, the total requirement of software units was only 12(12 x 100 = 1200) and not 1200(1 x 1200 = 1200), is misconceived and without any basis for the reason that a perusal of Item 11 of the bill of materials submitted by the appellants does not show that any such remarks were made therefor. In fact, the remarks column in the said bill of materials was left blank. Had such been the intention of Appellant 1, nothing prevented it from indicating so in the remarks column. In fact, the remarks column in the said bill of materials was left blank. Had such been the intention of Appellant 1, nothing prevented it from indicating so in the remarks column. This conclusion is further fortified by the fact that remarks were specifically given by Appellant 1 in the remarks column of the bill of materials in respect of other items, wherein it made observations to indicate wherever the price of a particular item was included in another item or where the price quoted in respect of an item was exclusive of certain other items. Thus, if Appellant 1 wanted to offer the price of one unit which as per its contention, was good to serve 100 users, then the same should have been so indicated in the bill of materials. There being no such indication in the original bid documents, Respondent 2 could not have been expected to assume on its own that Appellant 1 possessed a licence which permitted it to use the software mentioned at Item 11 for serving 100 units. Nor can Respondent 2 be blamed for using the multiplying factor of 1200 to arrive at the total price of units required under Item 11." (iv) (2010) 6 SCC 303 (Shimnit Utsch India (P) Ltd. v. W.B. Transport Infrastructure Development Corpn. Ltd.) "40. In Tata Cellular v. Union of India a three-Judge Bench of this Court extensively considered the English decisions as well as the previous decisions of this Court in the matter of judicial review and scope relating to government contracts and tenders and deduced the legal principles in para 94 of the Report thus: (SCC pp.687-88) “(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. (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 an 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.” (emphasis in original) 41. That the award of a contract, whether it is by private party or by a public body or the State is essentially a commercial transaction, was highlighted by this Court in Raunaq International Ltd. v. I.V.R. Construction Ltd. In that case, this Court spelt out the following considerations that weigh in making a commercial decision: (SCC p.500, para 9) “(1) the price at which the other side is willing to do the work; (2) whether the goods or services offered are of the requisite specifications; (3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow-up action, rectify defects or to give post-contract services.” 64. It is true that the State or its tendering authority is bound to give effect to essential conditions of eligibility stated in a tender document and is not entitled to waive such conditions but that does not take away its administrative discretion to cancel the entire tender process in public interest provided such action is not actuated with ulterior motive or is otherwise not vitiated by any vice of arbitrariness or irrationality or in violation of some statutory provisions. It is always open to the State to give effect to new policy which it wished to pursue keeping in view ‘overriding public interest’ and subject to principles of Wednesbury reasonableness." (v) an unreported decision of a Division Bench of Madurai Bench of this Court, dated 27.08.2010 made in W.A.(MD) Nos.180 to 184 of 2010. "14. It is a settled principle of law that a writ is not a remedy for enforcing contractual obligation. A writ under Article 226 of the Constitution of India is not a proper proceeding for adjudicating such dispute under the law. It is open to the parties to approach the Court of competent jurisdiction for proper relief and for breach of contract. When an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of this Court. The dispute relating to the contracts cannot be agitated under Article 226 of the Constitution of India. Therefore, the dispute with regard to interpretation of the terms of the agreement could not be agitated in a writ petition under Article 226 of the Constitution of India." 8. On the above background pleadings, I have heard the learned counsel for the parties and perused the relevant material documents on record. 9. A circumspection of the facts would reveal that the petitioner is the existing contractor for several years and he has been awarded with a contract even during the months of February and March 2010 for ambulance services and hiring car taxis. It is not in dispute that the petitioner has applied for tender on 26.04.2010 for Group "A" - Car Taxi 10 numbers and Group "C" Jeep Taxi 3 numbers. Pursuant to the tender invited by the respondent for hiring of light vehicles vide Tender No.V16AC10009 with the last date of submission on 26.05.2010, he has paid the Earnest Money Deposit of Rs.3,20,000/-. Pursuant to the tender invited by the respondent for hiring of light vehicles vide Tender No.V16AC10009 with the last date of submission on 26.05.2010, he has paid the Earnest Money Deposit of Rs.3,20,000/-. It is seen that immediately after his application for tender, the respondent sent a letter of clarification to the petitioner on 04.06.2010 asking certain clarifications and documents from the petitioner, for which he sent a reply on 09.06.2010 stating that the Auditor's Annual Reports for the years 2007-08 and 2008-09 were duly audited and certified by the Chartered Accountant with Membership Number enclosed in original. He further stated that their average turnover for the aforesaid years is more than 30% of the Annualised bid value and he gave an undertaking to establish a local office at Karaikkal with challan facility within thirty days from the placement of LOI by the respondent. 10. Admittedly, the tender is of two bid system, viz., Techno Commercial Bid and Price Bid and the value of the tender is more than 500 lakhs (5 crores). The financial criteria clause was incorporated as one of the commercial rejection criterion in the Bid Evaluation Criteria (BEC) of the tender. Sub-clause 1 of clause 11 contemplates that the Turnover of Bidders should be 30% of the annualised bid value or more and sub-clause 2 of clause 11 contemplates that the net-worth of Bidder should be positive as per the latest audited annual report. 11. The claim of the petitioner is that he has participated in the earlier tenders and that no financial criteria was kept in the BEC of those tenders. A clear statement has been made by the respondent in the counter that the conditions for valuing tender up to Rs.500 lakhs are different from those for valuing tender Rs.500 lakhs or more. The ground raised by the petitioner is that in case of tenders valuing less than Rs.500 lakhs, there will not be any financial criteria clause in the BEC of tender. Whereas, in case of tenders valuing more than Rs.500 lakhs, there will be a financial criterion clause, which will be incorporated as a part of commercial rejection criteria. It is evident from the tender conditions that in the earlier tenders and the present one, the petitioner has claimed that he has participated earlier and tender was awarded to him since his bids were considered as Techno Commercial. It is evident from the tender conditions that in the earlier tenders and the present one, the petitioner has claimed that he has participated earlier and tender was awarded to him since his bids were considered as Techno Commercial. His offers were shortlisted for price bid opening and subsequent to opening of his price bid in the respective tenders, Letter of Awards (LOA) were issued to the petitioner, as his bid was L-1 in both the tenders. In the instant case, the petitioner claims that similar things should be taken into consideration and therefore, his bid has to be evaluated. To examine the above claim, it has to be seen that the tender itself is of two parts, namely, the Techno Commercial Bid and Price Bid. The petitioner has to satisfy the first part to move to the second part of the tender. 12. A perusal of the pleadings and records would reveal that the petitioner has mentioned in the original offer submitted against the present tender that the annual reports for the years 2007-08 and 2008-09 were kept in the price bid cover as they were required to be submitted along with Techno Commercial Bid. As per the requirement of the terms and conditions of the tender, the petitioner was asked to submit copies of the annual reports attested by a Notary for the financial years 2007-08 and 2008-09 duly audited and signed by a registered Chartered Accountant with his membership number mentioned on the annual reports along with other clarifications/confirmations/deficient documents, within the cut-off date, viz. 10.06.2010. The petitioner submitted his reply on 09.06.2010, which was received in the respondent office on 10.06.2010. The same was verified and it was noticed that the petitioner has complied with all the requirements except "Net Worth" as per the financial criteria of BEC of the tender. On a perusal of the latest audited balance sheet for the financial year 2008-09, it was noticed that the "Net Worth" of the petitioner was negative (-Rs.70203.78). As the petitioner's "Net Worth" was negative for the said financial year 2008-09, he would not meet the financial criteria of the tender as per sub clause 2 of clause 11. Therefore, his offer was not considered as commercially acceptable and therefore, it was not shortlisted for price bid opening. 13. As the petitioner's "Net Worth" was negative for the said financial year 2008-09, he would not meet the financial criteria of the tender as per sub clause 2 of clause 11. Therefore, his offer was not considered as commercially acceptable and therefore, it was not shortlisted for price bid opening. 13. Though the petitioner claims that as soon as he received the letter of clarification on 04.06.2010, he sent a reply to the respondent along with the document which included the balance sheet for the year 2008-09, he forgot to send the balance sheet for the year 2009-10 due to his old age, though he had the same with him. Thereafter, on 20.06.2010, the petitioner addressed a letter to the Director (On Shore), Jeevan Bharathi Tower, New Delhi, enclosing the balance sheet for the year 2009-10, specifically stating that by mistake he failed to submit the same. He also marked a copy of the said letter to the Executive Director and Asset Manager of the respondent. Even before the price bid was opened, the annual report for the year 2009-10 was very much available on record of the respondent. Therefore, the respondent ought to have taken into consideration that the "Net Worth" of the petitioner is only positive. 14. On going through the records, it is further revealed that the petitioner has not submitted the required documents for satisfaction of the financial criteria with the latest audited annual report for the years 2007-08 and 2008-09 and also not satisfied the "Net Worth" of the bidder as stipulated by the terms and conditions of the tender. In the absence of such satisfaction of the terms and conditions of the tender, the respondent has rightly not shortlisted the petitioner's name for price bid opening and therefore, he was not called to participate in the price bid. All the documents which the petitioner claims to have submitted to the respondent are after the cut-off date, namely 10.06.2010 at 4.00pm and even from the letter of clarification, it is seen that the petitioner has not received the required "Net Worth" condition as positive. 15. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. When the power of judicial review is invoked in matters relating to tenders or award of contracts, it has to be checked whether choice or decision is made lawfully and the decision is sound. 15. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. When the power of judicial review is invoked in matters relating to tenders or award of contracts, it has to be checked whether choice or decision is made lawfully and the decision is sound. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration of error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest or to decide contractual disputes. Therefore, restraint under judicial review is always limited to this Court and it has to be invoked rarely and hesitantly under Article 226 of the Constitution of India. 16. The power of Judicial Review has been examined by a Three Judge Bench of the Supreme Court in Tata Cellular v. Union of India, 1994 (6) SCC 651 , wherein it has been authoritatively held that the principle of Judicial Review in matters of contract would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism, however, by the application of permissible parameters to set right the decision making process, and that there are inherent limitations in exercise of that power of judicial review. Since Judicial Review is not an appeal from the decision of the authorities, the Court cannot substitute the said decision, as it does not have the necessary expertise to review. In other words, the power of Judicial Review is available to this Court to examine whether the decision making process is properly done by the authorities or not and, if not, the Court can set right such decision making process. 17. The terms of the contract are not open to judicial scrutiny, the same being in the realm of contract. The Courts are always hesitant to interfere with the administrative policy decision and in rarest of rare occasions, if it is arbitrary, discriminatory, mala fide or actuated by bias, the Courts can interfere or otherwise the Courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State and the power to refuse the lowest or any other tender is always available to the Government. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose, the exercise of that power will be struck down. In a commercial transaction, the State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, provided the tender conditions permit such a relaxation. Even when some defect is found in the decision making process, the Court has to necessarily exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion and is satisfied that overwhelming public interest requires interference, the Court should interfere. Otherwise, the larger public interest will prevail upon the individual's interest. 18. In the instant case, while scrutinising the tender applications, the authorities have rightly concluded that the petitioner has not satisfied the net worth as 'positive' for qualifying himself for the next stage of bid, namely, price bid. Also, on examination of the manner of processing of the tender and the procedures followed therein, it is vivid that the respondent has acted fairly and with application of mind. Therefore, in the absence of any arbitrariness, irrationality, unreasonableness or mala fides, it is not for this Court to interfere in matters of contractual transaction and the relief of mandamus to forbear the public authority from proceeding further from making the tender for public interest cannot be stalled by the petitioner for any reasons, even though he performed his earlier contract to the respondent well. But, in the instant case, as the petitioner has failed to satisfy the financial criteria, there cannot be any restraint by this Court. 19. But, in the instant case, as the petitioner has failed to satisfy the financial criteria, there cannot be any restraint by this Court. 19. For the foregoing reasons and discussion made above and after analyzing all the decisions referred to by the learned counsel for the respondent and upon perusal of the entire records, this Court is of the considered view that the mandamus sought for by the petitioner cannot be granted. Accordingly, the writ petition deserves no merit consideration and the same is dismissed. No costs.