B.P. Katakey, J.;- The petitioners, who have constituted amongst themselves consortium forbidding in the tender process initiated by Assam Power Distribution Company Ltd., the re­spondent No. 1, by the present petition has challenged the decision making process in arriving at the decision as reflected in the com­munication dated 17.12.2010 issued by the respondent No. 1 intimating the petitioner No. 1 that their bid have been found to be techni­cally non-responsive and hence the price bid would not be opened. The petitioners have also prayed for a direction to the respondent No. 1 to consider the price bid along with other eligible bidders. 2. The facts relevant for the puropose of disposal of the writ petition may be noticed as under: (I) The Government of India, Ministry of Power (MoP) issued the office memo­randum dated 22.12.2008 approving the continuance of Accelerated Power Devel­opment & Reforms Programme (APDRP) as Central Sector Scheme during the 11th Five Year Plan with revised terms and conditions focusing on actual and demon­strable performance in terms of sustained loss reduction, establishment of reliable and automated systems for sustained col­lection of accurate baseline data and adop­tion of Information Technology in the ar­eas of energy, covering the urban areas i.e. towns and cities with a population of more than 30,000. Such population limit, however was relaxed to 10,000 in case of special category cities like in the north­eastern States. For implementation of the said scheme the Government of India has issued various guidelines from lime to time. As per the initial guideline dated 22.12.2008, the projects under the Scheme are required to be taken up in two parts, namely, Part-A and Part-B. The guideline in Part-A includes the project for establishment of baseline data and IT ap­plications for energy accounting/auditing and IT based consumer service centres and Part-B includes regular distribution strengthening projects. The activities of Part-A covers preparation of baseline data for the project area covering Consumer Indexing, G1S Mapping, Metering of Dis­tribution Transformers and Feeders and Automatic Data Logging for all distribu­tion transformers and feeders and SCADA/DMS system etc. It also includes adoption of IT applications for meter read­ing, billing and collection, energy account­ing and auditing, MIS, redrcssal of con­sumer grievances, establishment of IT en­abled consumer service centres etc. Since the present case relates to the Part-A ac­tivities of the programme, the Part-B ac­tivities have not been discussed. It also includes adoption of IT applications for meter read­ing, billing and collection, energy account­ing and auditing, MIS, redrcssal of con­sumer grievances, establishment of IT en­abled consumer service centres etc. Since the present case relates to the Part-A ac­tivities of the programme, the Part-B ac­tivities have not been discussed. (II) Under the said guideline the Power Finance Corporation (PFC) has been made the Nodal Agency for operationalisation and implementation of APDRP programme, under the overall guidance of the Ministry of Power (MoP), Government of India. The modalities of formulating/' implementing projects under the program­me have also been stipulated in the said guideline. For the purpose of project for­mulation., the Utilities, namely, States where such projects are to be implemented, are required to prepare the Detailed Project Reports (DPR) for each of the project areas, which are required to be forwarded to the Nodal Agency. The Utilities have also been authorized to appoint IT con­sultants through bidding by an open bid­ding process, from the IT consultants empanelled by the Nodal Agency/MoP after observing codal formalities, for preparation of DPR for Part-A projects. It also requires the State Electricity Boards/State Utilities to implement the projects sanctioned on a turnkey basis by appointing IT Implementing Agency (ITIA) through a bidding process, only from the panel o f ITIA notified by the Nodal Agency to ensure quality and expeditious imple­mentation. Those ITIA, who are eligible for participating in the bidding process to be initiated by the State Utilities are empanelled by the Nodal Agency/MoP after observing codal formalities. The said guidelines also provide for the issuance of further guidelines for implementation of the projects by the MoP from time to time. (III) The initial guidelines issued by the Government of India for technical bid evealuation in apppointing ITIA by the Utilities, was, however, modified by the additional guideline issued on 09.12.2009, providing amongst others that while evaluating the technical bid of ITIAs, the tech­nical score assigned to the System Inte­grator across the utilities should not vary substantially and that the bids are not dis­qualified technical by on flimsy grounds, for which the Utilities, if required are to seek clarification wherever possible from the bidders before rejecting the bids. It also requires issuance of Request for Proposal (RFP) by the Utilities in terms of the guide­line and the model documents approved by the appropriate authority/PFC/MoP. It also requires issuance of Request for Proposal (RFP) by the Utilities in terms of the guide­line and the model documents approved by the appropriate authority/PFC/MoP. In the said modified guideline, it is specifi­cally been mentioned that the Utilities shall comply with the bid evaluation guideline issued. The minimum qualification mark for technical score, for the purpose of techni­cal evaluation of a bidder, has been fixed as 35 out of total marks of 50, which as distributed in different heads, as follows:- (a) Technical solution as per SRS : 21 marks (b) Approach & Metho­dology : Nil. (c) Project Experience : 15 marks (d) Team Details (CV) : 6 marks (e) Firm Details : 8 marks TOTAL 50 marks. (IV) A further guideline was, thereaf­ter, issued by the Government of India on 26.05.2010 requiring the Utility to submit to the MoP/PFC, the list of non-respon­sive bidders, if any, in technical bid evalu­ation along with reasons for disqualifica­tion, views of the IT consultants as per their technical evaluation report and also the justification of the Utility for approval. It requires the Utility to evaluate the price bids of the bidders only after approval of the rejection of the bids of the bidders in technical evaluation. (V) A decision was taken at the ap­propriate level to issue the joint RFP for implementation of the projects by all the Northeastern States, namely, Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh, and au­thorizing the respondent No. 1 to issue the RFP and accordingly on 20.05.2010 RFP was issued by the respondent No.1 for selection of ITIA to assist the Utilities of the northeastern region of implementation for the projects, fixing 21.06.2010 as the last date for submission of the bids, fol­lowing the two bids system, i.e. the tech­nical bid and the price bid, which was sub­sequently extended to 16.07.2010. One of the stipulations in the said RFP is that the price of those bidders, who are found to be responsive in technical evaluation, as per terms and conditions in the RFP as well as the guidelines issued by the Gov­ernment of India from time to time would be opened. (VI) Clause D. 1 of the RFP provides the general guidelines to the bidders. (VI) Clause D. 1 of the RFP provides the general guidelines to the bidders. It provides that the purchaser, namely, the Utility will select a supplier i.e. bidder in accordance with the eligibility criteria in­dicated in Section IV, which reads as fol­lows: For all bidders (except power sector utilities) (i) The SI must have implemented at least one system integrator project covering IT applications, Servers and PCs, WAN with connectivity between at least 10 locations, during the last three financial years. In case of a con­sortium, this requirement needs to be met by the Si-Lead. (Proof: Necessary Purchase order/LOI/Contract/Certification on client letterhead/Performance certificate as proof of services provided for the last 3 financial years needs to be submit­ted) (ii) The SI should have cumulative turnover of at least Rs. 300 crore for the last three audited financial years. In case of a consortium, the consortium as a whole (Si-Lead and Sl-2nd com­bined) should have cumulative turnover of at least Rs. 300 crore for the last three audited financial years. The Si-Lead should have a turnover of at least Rs. 270 crore for the last three audited financial years. (Proof: Annual Audited Financial Statement for last three financial years) (iii) The SI should have a positive net worth not less than paid-up equity, in each of the last three audited finan­cial years, hi case of a consortium, both the Si-Lead and SI-2nd should have positive net worth not less than paid-up equity in each of the last three au­dited financial years. (Proof: Annual Accounts for last three financial years) (iv) The SI should have been in the IT/Software services for the last 3years. In case of a consortium, this require­ment needs to be met by the Si-Lead. (Proof for which to be submitted in the form of Incorporation Certificate along with Memorandum & Articles of Association) (v) The SI should have implemented a turnkey Systems Integration project in the last three financial years involv­ing at least 5 of the following modules: CIS, MIS, Web Self Service, Asset Management, Maintenance Manage­ment, Billing, Metering, Energy Audit­ing/Accounting, Customer Care, Net­work, Hardware in any Utility (Power/Gas/Water/Telecom sectors) or infra­structure sector (rail/road/port/airport). The total consumer base covered by the SI for such project in the any Util­ity should not be less than 50,000. This requirement is not applicable for infra­structure sector (rail/road/port/airport) projects as these cater to mass con­sumers. The total consumer base covered by the SI for such project in the any Util­ity should not be less than 50,000. This requirement is not applicable for infra­structure sector (rail/road/port/airport) projects as these cater to mass con­sumers. In case of a consortium, the requirement of at least 5 modules is distributed as follows: SI- Lead needs to meet the above requirement for at least 4 modules, an the SI-2nd for at least 1 module. (Proof: Necessary Purchase order/LOI/Contract/Certification on client let­terhead/Performance certification as proof of services provided for the last 3 financial years needs to be submit­ted) (vi) The SI should have worked with at least one utility (Power/Gas/Water/Telecom sector) or infrastructure sector (rail/road/port/airport) in imple­menting turnkey Systems Integration projects. The total worth of projects executed in this domain for the last three financial years should be at least INR 50 crore (USD 10 million). In case of consortium, this requirement needs to be met by the Si-Lead. (Proof; Necessary Purchase order/LOI/Contract/Certification on client letter head/Performance certificate as proof of services provided for the last 3 financial years needs to be submitted) (vii) The SI should be ISO 9001:2000 or have atleast CMM/CMMI level 4 certification. In case of a consortium, this requirement needs to be met by Si-Lead. (Proof: Copy of certification from authorized certification body) (viii) The SI should have at least 20 personnel on its rolls with a minimum experience of 5 years (either in his/her own or other organization). The roles & responsibilities of the personnel should include system integration of IT applications or software or hardware or network. In case of a consortium, the requirment of at least 20 personnel is distributed as follows: Si-Lead needs to meet the above requirement for at least 15 CVs, and SI-2nd for at least 5CVs. (Proof: Signed resume of employ­ees need to be submitted. Scanned sig­natures shall be accepted.) (VH) Clause D.2 of the RFP deals with the technical proposal. Clause D.2.5 stipu­lates that the bidders have to provide de­tails of projects, with application modules and other requirements, as mentioned in eligibility criteria laid down in Section IV of the RFP, which have been successfully completed during the last 3 (three) finan­cial years. Hence the ongoing projects or the projects offered by the bidders, which have not been completed between the fi­nancial year 2007-2008 and 2009-2010 would not be considered for technical evaluation. Hence the ongoing projects or the projects offered by the bidders, which have not been completed between the fi­nancial year 2007-2008 and 2009-2010 would not be considered for technical evaluation. (VIII) The RFP further provides that the technical bid has a weightage of 50% and the technical evaluation will be done in two stages i.e. Stage 1-preliminary evaluation and Stage 2-distribution of weights on a score of 50. (IX) Score 15 allotted for project ex­perience, for the purpose of objective evaluation, is again distributed in 4(four) different sub-heads, namely- (1) Power Sector Experience (6.5 marks) (2) Usage of project (2 marks) (3) Size of GSP, NSP and MDASP (1.5 marks) (4) IT Experience: Application Modules implementated (5 marks) (X) The petitioners' consortium, apart from other bidders, which includes the re­spondent Nos. 5 to 8 and who were empanelled by the Nodal Agency, partici­pated on the said process by submitting their respective technical and price bids. The technical bids of all the bidders were opened by the Joint Evaluation Commit­tee on 16.07.2010. As all the bidders com­plied with the preliminary requirements i.e. Stage 1, like the availability of the bank guarantee, bid security etc., the respec­tive solution presentation were viewed and thereafter the technical evaluation process started with the assistance of the respon­dent No.4, the IT consultant, who was one of the consultants empanelled by the Gov­ernment of India selected for that purpose. (XI) The Joint Evaluation Committee in its proceeding dated 19.08.2010, for the purpose of proper evaluation of tech­nical bids of various bidders, had decided to lay down the following criteria: - (a) Only projects of SI would be considered for scoring. (b) Total number of projects to be considered for evaluation would be 8(eight). The other options that were discussed and discarded were 3 (three) and 5 (five) since these were consid­ered to be less for a projects covering 7 States. (c) The projects would be consid­ered for evaluation only if the IT com­ponent of the project is at least be 25% of the total project value. This was done since this is preliminary an IT project and hence only IT relevant project should be considered. (d) Though we have asked the bid­der to specify which projects to pick up for evaluation, if this not done we would pick up the best projects from the list submitted by them. This was done since this is preliminary an IT project and hence only IT relevant project should be considered. (d) Though we have asked the bid­der to specify which projects to pick up for evaluation, if this not done we would pick up the best projects from the list submitted by them. (e) Only projects with necessary supporting documents would be con­sidered for evaluation and scoring. (f) In case of a consortium, project (s) from both the partners would be eli­gible for evaluation and the best projects would be picked up for evalu­ation. (XII) The Joint Evaluation Committee in its subsequent proceeding dated 26.08.2010 found the petitioner's techni­cal bid as non-responsive, on the ground that the Servers mentioned in the solution write-up/technical proposal does not com­ply with the SRS G3 specification of NE RFP. The technical bid of the respondent No. 7 was also found to be non-respon­sive on different grounds. As required un­der the guideline issued by the Govern­ment of India, the said decision was for­warded to the Nodal Agency, namely, the PFC for approval, by the respondent No. 1 vide communication dated 27.08.2010 intimating that out of the 7 bidders, 2 bid­ders, namely, the petitioners and the respondent No.5 were found to be techni­cally not responsive. In the said commu­nication the criteria fixed by the Joint Evaluation Committee, in its proceeding dated 19.08.2010 for technical evaluation, have also been indicated. (XIII) The PFC, however, vide com­munication dated 07.09.2010 informed the respondent No. 1 about ils refusal to approve the rejection of the petitioner's as well as the respondent No.7's tech­nical bid and send back the matter to review the technical evaluation. In the said communication, the PFC had ob­served that since there was typographi­cal error in the bid submitted by the pe­titioners relating to the Server details, the bidder may be given a chance to resubmit the certificate with reference to any common RFP. The respondent No.1 was also informed about the requirement of the adherence to the guidelines issued by the Government of India from time to time for bid evaluation including the additional guidelines dated 09.12.2009 and 26.05.2010. The respondent No.1 was also informed about the requirement of the adherence to the guidelines issued by the Government of India from time to time for bid evaluation including the additional guidelines dated 09.12.2009 and 26.05.2010. (XIV) The Joint Evaluation Commit­tee in its proceedings dated 14.09.2010 and 24.09.2010 deliberated upon the ad­vice of the PFC and decided to deem all the bidders as responsive and proceeded to evaluate their technical bids on the ba­sis of the bench mark fixed by it, on the total score of 50.The Joint Evaluation Committee upon due deliberation has found the petitioners' bid as non-respon­sive in technical bid evaluation having not scored minimum 35. The marks secured by each of the bidders on technical evalu­ation are reproduced below, in tabular form:- @ Table @ (XV) Accordingly, the Joint Evalua­tion Committee vide communication dated 25.09.2010 informed the Nodal Agency, namely, the PFC about its deci­sion intimating that the Joint Evaluation Committee taking note of the Nodal Agency's advice contained in the com­munication dated 07.09.201 Devaluated the technical bids of all the bidders in­cluding the petitioners and awarded marks on different heads, based on the evaluation criteria and the jurisdication for keeping those criteria as communicated to the PFC vide communication dated 27.08.2010. The relevant portion of the said communication dated 25.09.2010 is reproduced below:- "3. Bids not meeting the minimum technical score of 35 (a) PFC recommendation: 'The Additional Guideline for Technical Bid Evaluation dated 09.12.2009 states that Technical score assigned to the System In­tegrator across the utilities should not vary substantially. Record of Technical score assigned by each stated utitlity is available on RAPDRP website. APDCL should review the technical score assigned to each bidder and should ensure that the same is not in substantial variation to those of other utili­ties. It is also proposed that the marks allo­cated against turnover requirement may be reviewed in case of consortium bidding and aggregate turnover of all the consortium members need to be considered." (b) Whilst taking the note of PFC's advice, the Joint Evaluation Committee noted that while the evaluation crieteria and methodology for the country as a whole is the same as per the guidelines of the RAPDRP project, under the very same guidelines, certain decisions on evaluation criterion have been left to the States. The evaluation criterion and the jurisdication for keeping these criterion for NE R-APDRP Part A bid have been communicated to PFC by APDCL vide letter No. MD/ADPGCL/PS/Misc/2009/42 dated 27.08.10. It is submitted that the evaluation and consequent marks awarded to the bidders are based on these evaluation crietria and there is nothing which the committee can do to modify the marks received by the bidders based on the evaluation criterion, even if the marks awarded, based on the evaluation crite­ria are in variation to the marks awarded in other States. (c) With respect to the evaluation of turn­over details of the bidders, in case of the con­sortium bidders, the Joint Evaluation Commit­tee felt that there is nothing in the guidelines requiring the bidders financial turnover in case of consortium bids to be specifically aggregated. The Joint Evaluation Committee also stated that in a number of States where the bids have been awarded, in case of consortium bids, either the turnover of the SI Lead has only been taken or 90-10 weightage has been given as has been done on the instant case. Hence PFC recom­mendation to specifically mandate this particu­lar modality of the financial evaluation was not agreed to." (XVI) The Nodal Agency, namely, the PFC, thereafter, vide communication dated 27.09.2010 informed the respon­dent No.1 to go ahead and to open the financial bids and to expedite the said pro­cess as per guidelines so that the contract can be awarded at the earliest. The price bids of the bidders, who were found to be responsive to the technical bids, were thereafter opened and at this stage the present writ petition was filed challenging the action of the Joint Evaluation Com­mittee in rejecting the technical bid of the petitioners. No final order awarding con­tract could be passed by the respondent authority because of the interim order passed on 19.01.2011. 3. I have heard Mr, P.K. Goswami, learned Sr. counsel for the petitioners, Mr. B.D. Das, learned Sr. counsel for the respon­dent No. 1, Mr. Talukdar, learned Addl. Sr. Government Advocate, Assam, for the re­spondent No. 2, Mr. R. Sarma, learned Asstt. S.G.I. for the respondent No.3, Mr. D. Baruah, learned counsel for the respondent No.4 and Mr. N. Zaman, learned counsel for the respondent No. 5. The other respondents have not entered appearance despite service of notice. 4. Mr. Talukdar, learned Addl. Sr. Government Advocate, Assam, for the re­spondent No. 2, Mr. R. Sarma, learned Asstt. S.G.I. for the respondent No.3, Mr. D. Baruah, learned counsel for the respondent No.4 and Mr. N. Zaman, learned counsel for the respondent No. 5. The other respondents have not entered appearance despite service of notice. 4. Mr. Goswami, learned counsel for the petitioners referring to the initial guideline dated 22.12.2008 as well as the additional guidelines dated 09.12.2009 and 26.05.2010 issued by the Government of India, which are required to be followed by the Utility in issuing the RFP as well as in evaluation of the technical and price bids of various bidders, has submitted that though the Utility i.e. re­spondent No. 1 issued the RFP on 20.05.2010 detailing the criteria fixed for evaluation of the technical bids of various bidders in confirmity with the said guidelines, the same, however, was changed by the Joint Evaluation Com­mittee on 19.08.2010 by introducing another eligibility criteria for evaluation of the techni­cal bids of the bidders to the effect that the projects which have the IT components of at least 25% of the total project value would be considered, which was done after opening of the technical bids of the bidders on 16.07.2010. According to the learned Sr. counsel, such new eligibility criteria cannot be introduced without first obtaining he approval from the PFC, the Nodal Agency, as per the guidelines issued by the Government of India and in any case after opening of the technical bids, as has been done in the instant case. It has been submitted that no approval was sought for and granted by the PFC for intro­duction of sueh additional eligibility criteria. It has farther been submitted that introduction of such a criteria though was mentioned in the communication dated 27,08.2010 issued by the Joint Evaluation Committee to the PFC intimating rejection of the technical bid of the petitioners, on the ground of non-compatibil­ity of the Server, it is evident from the said communication that no approval was sought for on such eligibility criteria subsequently in­troduced and the same was also not taken note of by the PFC in its communication dated 07.09.2010 issued pursuant to the commu­nication dated 27.08.2010 of the Joint Evalu­ation Committee. 5. The learned Sr. 5. The learned Sr. counsel further submits that even assuming that such additional eligi­bility criteria can be introduced by the Joint Evaluation Committee, since score of 15 fixed for project experience was distributed in 4 (four) different heads, namely, power sector experience, usage of project, size of GSP, NSP and MDASP and the IT experience: application modules implemented by allotting 6.5,2,1.5 and 5 marks, respectively, the Joint Evaluation Committee at the most may not award any marks in IT experience of the pe­titioners, for which 5 marks is allotted, but it has to evaluate the projects offered by the petitioners against other 3(three) sub-heads for the purpose of technical evaluation, and award marks under those sub-heads, which has not been done. 6. The learned Sr. counsel further submits that the Joint Evaluation Committee in its pro­ceeding dated 19.08.2010 had also decided to consider 8(eight) projects while evaluating the technical bids, which was done with a view to give benefit to the respondent No.5, which according to the petitioners was the only bid­der who has offered 8(eight) projects or more for the purpose of technical evaluation. 7. Referring to the guidelines issued by the Government of India and the subsequent com­munication dated 07.09.2010 issued by the PFC refusing to accord approval to the ac­tion of the Joint Evaluation Committee in re­jecting the technical bid of the petitioners, on the ground of variation in specification of Server, it has been submitted by the learned Sr. Counsel that in the said communication, as well as in the guidelines issued from time to time by the Government of India, though the Nodal Agency has made it clear to the Joint Evaluation Committee that the Utility while technically evaluating the bid of a bid­der and assigning the technical score to each of the bidders, must ensure that the same is not in substantial variation to those of other Utilities, the Joint Evaluation Committee did not take into consideration the technical score assigned to the petitioners by two Utilities, namely, Goa Electricity Department and the Punjab State Electricity Board who assigned 42.08 and 39.01 marks respectively in the technical bids of the petitioners. According to the learned Sr. According to the learned Sr. counsel since the guidelines issued by the Government of India from time to time, are required to be scrupulously fol­lowed by the Utilities while evaluating the tech-nical and price bids of various bidders, by not following such guidelines the decision making process has been vitiated. The learned Sr. Counsel referring to various guidelines and also the communication dated 07.09.2010 issued by the PFC further submits that it is evident therefrom that those guidelines were issued to ensure that the competition is not throttled and also with a view to get better price by the Utilities without affecting the qual­ity, quantity and the price of the offered prod­ucts, which objective is defeated by the ac­tion of the respondent No. 1 by introducing a new eligibility criteria, though not permitted under the guidelines issued, and making the petitioners non-responsive in techical evalu­ation, on the ground that the projects offered for evaluation have no IT component of 25% of the total project value, when the entire project as sanctioned by the Government of India, for which the petitioners were short listed, relates to the the IT implementation. 8. The learned Sr. counsel, therefore, sub­mits that the entire action on the part of the respondent No. 1 is arbitrary, irrational and vitiated by the non-transparency in action and hence the writ Court would definitely inter­fere with such decision making process in exercise of its power of judicial review under Article 226 of the Constitution of India. The learned Sr. counsel in support of his conten­tion has placed reliance on the decision of the Apex Court in Dutta Associates Pvt. Ltd. Vs. Indo Mercantile Pvt. Ltd. & Ors.: (1997) 1 SCC53, Reliance Airport Devel­opers (P) Ltd. Vs. Airports Authority of India & Ors. : (2006) 10 SCC 1 , Reliance Energy Ltd &Anr. Vs. Maharashtra State Road Development Corpn. Ltd. & Ors.: (2007) 8 SCC 1 , K. Manjusree Vs. State of Andhra Pradesh & Anr. : (2008) 3 SCC 512 , Hemani Malhotra Vs. High Court of Delhi: (2008) 7 SCC 11, Tamil Nadu Com­puter Science B. Ed. Graduate Teachers Welfare Society (1) Vs. Higher Secondary School Computer Teachers Association & Ors. : (2009) 14 SCC 517 and Monarch Infrastructure (P) Ltd, Vs. State of Andhra Pradesh & Anr. : (2008) 3 SCC 512 , Hemani Malhotra Vs. High Court of Delhi: (2008) 7 SCC 11, Tamil Nadu Com­puter Science B. Ed. Graduate Teachers Welfare Society (1) Vs. Higher Secondary School Computer Teachers Association & Ors. : (2009) 14 SCC 517 and Monarch Infrastructure (P) Ltd, Vs. Commissioner, Ulhasnagar Municipal Corporation & Ors.: (2000) 5 SCC 287 , as well as a Divison Bench judgment of the Court in WA No. 256/2010 : Muslim Ali Vs. State of Assam & Ors. 9. Mr. Das, learned Sr. counsel appearing for the respondent No. 1, per contra, has submitted that though the Joint Evaluation Committee in its proceeding dated 19.08.2010 had decided to evaluate the projects offered by various bidders, which have IT component of at least 25% of the total project value, the said criteria had not been applied to any of the bidders while evaluating the technical bids and as such the challenge made by the petitioners in making them as technically non-responsive does not hold any water. According to the learned Sr. counsel, the writ petitioners nowhere in the writ petition have pleaded about the applica­tion of such a criteria by the respondent No. 1 while evaluating the technical bids of different bidders. 10. The learned Sr. counsel referring to the 7 (seven) projects offered by the peti­tioners for technical evaluation, has submit­ted that 3(three) projects were not consid­ered on the ground of non-furnishing the completion certificates, as in terms of the RFP issued only the completed projects are to be considered for technical evaluation. 2(two) other projects offered by the petitioners be­ing ongoing projects were also not consid­ered for technical evaluation. The 7"' project offered by the petitioners having not been completed in last 3(three) financial years be­tween 01.04.2007 to 31.03.2010 was also not considered for technical evaluation. Only the 6th project, which was offered by the pe­titioners, having fulfilled all the crieteria, was considered for technical evaluation and ac­cordingly the petitioners secured 3.75 score out of the total score of 15 allotted for project experience and the average, taking into ac­count the number of projects to be taken for consideration i.e. 8(eight), was worked out as 0.47. 11. It has also been submitted by Mr. 11. It has also been submitted by Mr. Das that keeping in view the number of projects required to be implemented in the Northeast­ern Stales, the Joint Evaluation Committee had decided to consider 8(eight) projects for technical evaluation, which decision was also accepted by the Nodal Agency, namely, the PFC. The learned Sr. counsel further submits that except the petitioners, all other bidder offered more than 8 (eight) projects and therefore it is not that such a decision was taken by the Joint Evaluation Committee only with a view to favour the respondent No.5, as pleaded by the writ petitioners in the writ petition. The learned counsel further submits that the scope of judicial review in exercise of the power under Article 226 of the Con­stitution of India by the High Court in con­tractual matters is very limited and the High Court can interefere with the decision mak­ing process only if it is, on the face of it, arbi­trary, which is not the case in hand. The learned Sr. counsel further submits that the High Court should not exercise the power under Article 226 of the Constitution of India on making out merely a legal point and such jurisdication can be exercised only in public interest and with great caution. No other ar­gument is advanced by the learned Sr. coun­sel. 12. The learned Sr. counsel in support of his contention has placed reliance on the de­cision of the Apex Court in Air India Ltd. Vs. Cochin International Airport Ltd. re­ported in (2000) 2 SCC 617 , Master Ma­rine Services (P) Ltd. Vs. Metcalfe & liodgkinson (P) Ltd. & Am: reported in (2005) 6 SCC 138 and Siemens Public Communication Network Pvt. Ltd. & Anr. Vs. Union of India & Ors. reported in (2008) 16 SCC 215. 13. Mr. Baruah, learned counsel appear­ing for the respondent No.4, the IT consult­ant appointed by the respondent No.1 for technical evaluation of the bids of various bid­ders, supporting the arguments advanced by Mr. Das, learned Sr. counsel appearing for the respondent No. 1 has submitted that the technical evaluation was made without apply­ing the crieteria for consideration of the projects having IT' components of at least 25% of the total value of the project. Das, learned Sr. counsel appearing for the respondent No. 1 has submitted that the technical evaluation was made without apply­ing the crieteria for consideration of the projects having IT' components of at least 25% of the total value of the project. It has also been submitted that the same yardstick was applied to all the bidders while technically evaluating their bids and the petitioners hav­ing not secured the minimum 3 5 marks out of the score of 50, were found to be technically non-responsive, which decision was also ap­proved by the Nodai Agency, namely, the PFC. It has also been submitted by Mr. Baruah that such technical evaluation was made on the basis of 8 (eight) projects, as decided by the Joint Evaluation Committee and in case of petitioners, one project was considered which was found to be in confirmity with the RFP and also the guide­lines issued by the Government of India from time to time. Mr. Baruah, therefore, submits that there is no illegality in the decision mak­ing process, requiring interference in exercise of the jurisdiction under Article 226 of the Constitution of India. 14. The learned Asstt. Solicitor General of India appearing for the respondent No.3 also submits mat the Joint Evaluation Com­mittee has evaluated the technical bids of dif­ferent bidders, including the petitioners, in terms of the guidelines issued by the Government of India from time to time and not in violation of such guidelines. It has also been submitted that it was for the Utility to decide the number of projects to be considered for technical evaluation and in the case in hand, it was decided, keeping in view the number of projects to be implemented, that 8 (eight) projects should be considered for technical evaluation, 15. Mr. Zaman, learned counsel appear­ing for the respondent No.5 submits that they have contested the present proceeding in view of the allegations made by the writ petitioners in the writ petition against them, which are baseless and unfounded and have rightly not been pressed by the learned Sr. counsel for the petitioners. It has also been submitted that the authority has applied the same yardstick in evaluating the technical bids of all the bid­ders and as such the petitioners cannot have any grievance as the action of the respondent authorities is not arbitrary and discriminatory. 16. Mr. Goswami, learned Sr. counsel for the petitioners. It has also been submitted that the authority has applied the same yardstick in evaluating the technical bids of all the bid­ders and as such the petitioners cannot have any grievance as the action of the respondent authorities is not arbitrary and discriminatory. 16. Mr. Goswami, learned Sr. counsel for the petitioners, in reply to the submissions made by the learned counsel for the respon­dents, has submitted that it is evident from the pleadings in the affidavit-in-opposition filed by the respondent No. 1 more particuarly in paragraph 6 thereof that the additional eligi­bility crietria introduced by the Joint Evalua­tion Committee in its meeting dated 19.08.2010 relating to the evaluation of only those projects having IT components of at least 25% of the total project value, was ap­plied and the technical bids of all the bidders were evaluated on that yardstick also. Refer­ring to the proceedings of the Joint Evalua­tion Committee dated 14.09.2010, 24.09.2010 and the communication dated 25.09.2010 issued by the respondent No.1 to the Nodal Agency, whereby the PFC was informed about the rejection of the technical bid of the petitioners, the learned Sr. counsel submits that it is also evident therefrom that the decision of the Joint Evaluation Commit­tee taken on 19.08.2010 relating to the afore­said additional eligibility crietria was applied while evaluating the technical bids and there­fore it is not correct to say that the same was not applied, as contended by the learned counsel appearing for the respondent No. 1 and supported by the learned counsel appear­ing for other respondents. 17. Relating to the submission that there is no pleadings in the writ petition regarding re­jection of the technical bid of the petititoners applying the aforesaid eligibility criteria, it has been submitted Mr. Goswami that the peti­tioners were informed by the impugned com­munication dated 17.12.2010 issued by the respondent No.1 about making them non-responsive in technical evaluation without as­signing any reason therefor and though the petitioners on a number of occasions re­quested the respondent No.1 to furnish the reason for such rejection, the same was never furnished. The learned Sr. Goswami that the peti­tioners were informed by the impugned com­munication dated 17.12.2010 issued by the respondent No.1 about making them non-responsive in technical evaluation without as­signing any reason therefor and though the petitioners on a number of occasions re­quested the respondent No.1 to furnish the reason for such rejection, the same was never furnished. The learned Sr. counsel referring to the pleadings in the rejoinder affidavit filed by the petitioners, has submitted that such plea has been taken in such affidavit, immediately on coming to know about the grounds of re­jection as disclosed for the first time in the affidavit-in-opposition filed by the respondent No. 1 and therefore, the Writ Court can scru­tinize the legality and validity of the decision making process because of introduction of such an additional eligibility criteria as the re­spondents are not taken by surprise. The learned Sr. counsel in support of his conten­tion has placed reliance on the decision of the Apex Court in Srila Sri Subramania Desika Gnanasambanda Pandarasannidi Vs. State of Madras & Anr. reported in AIR1965 SC 1578. 18. Mr. Goswami further submits that one of the grounds on which the first 3 (three) projects offered by the petitioners were re­fused to be teclmically evaluated, i.e. having no IT components is non- existent, when it is evident from the RFP issued by the respon­dent No. 1 as well as the guidelines issued by the Government of India to time to time that the IT components includes metering, hard­ware, networks. It has also been submitted that since the Government of India vide guide­line dated 09.12.209 and the subsequent -H guideline dated 26.05.0210 and also the com­munication dated 07.09.2010 informed the Utilities that the bidders should not be made non-responsive to the technical bids on flimsy grounds and they should be given opportu­nity to make clan 11 cation, wherever neces­sary, without however compromising the qual­ity or specification, the Joint Evaluation Com­mittee ought not to have refused to consider the first 3(three) projects of the petitioners, on the ground of non-furnishing the project -? completion certificates, without giving the pe­titioners a further opportunity to supply the completion certificates, more so, when the dates of completion of such projects were mentioned in the tender document submitted by the petitioners. Relating to the reason for non-consideration of the 7th project offered by the petitioners, it has been submitted by the learned Sr. completion certificates, without giving the pe­titioners a further opportunity to supply the completion certificates, more so, when the dates of completion of such projects were mentioned in the tender document submitted by the petitioners. Relating to the reason for non-consideration of the 7th project offered by the petitioners, it has been submitted by the learned Sr. counsel that it is evident from the record that the entire project i.e. imple­mentation of MPLS turnkey project in Delhi and Mumbai was completed on 27.10.2007 i.e during the period from 01.04.2007 to 31.03.2010, which document issued by the Mahanagar Telephone Nigam Limited (MTNL) was also furnished along with the tender papers submitted by the petitioners. It has also been submitted by the learned on counsel that the documents, as referred to by the learned counsel for the respondent No. 1, which were also submitted by the petitioners along with tender papers, being related to the part completion of the entire project awarded by the MTNL, the Joint Evaluation Commit­tee ought not to have refused to consider the said project for the purpose of evaluation of the technical bid of the petitioners, which has affected the ultimate decision of the respon­dent No. 1. The learned Sr. counsel however has fairly submitted that the project Nos. 4 and 5, as offered by the petitioners, being ongoing projects were rightly not taken into consideration by the Joint Evaluation Com­mittee while evaluating the technical bids of the petitioners. 19. I have considered the submissions of the learned counsel for the parties, perused the pleadings including the documents annexed to such pleadings and also the materials pro­duced before this Court by the learned Sr. counsel for the respondent No. 1. 20. The dispute in the present writ peti­tion relates to making the petitioners non-re­sponsive in the technical bids, for which 50 marks out of total 100 was alloted. To be reseponsive, a bidder has to secure minimum of 35 i.e. 70%, which has been stuipulated in the additional guideline dated 09.12.2009 is­sued by the Government of India and also in the RFP dated 20.05.2010 issued by the re­spondent No. 1. The allotted 50 marks, for technical evaluation, was distributed in 5 (five) different heads, namely, (i) Technical solution as per SRS(G2), (ii) Approach & Method­ology, (iii) Project experience till date, (iv) Team details (CV) and (v) Firm details, for which 21,0,15,6 and 8 marks, respectively were allotted. The allotted 50 marks, for technical evaluation, was distributed in 5 (five) different heads, namely, (i) Technical solution as per SRS(G2), (ii) Approach & Method­ology, (iii) Project experience till date, (iv) Team details (CV) and (v) Firm details, for which 21,0,15,6 and 8 marks, respectively were allotted. The petitioners in the present petition raised a dispute relating to the marks awarded against project experience, for which 15 marks were allotted, without raising any dispute relating to the marks secured by them on other 4 (four) heads and hence the dis­cussion in the present judgment relates to awarding of marks against the project expe­rience only. The petitioners, out of the said 15 marks, was awarded 0.47. marks. 21. The petitioners and the respondents Nos. 5 to 8, who were empanelled by the Government of India as ITl As for implemen­tation of Restructured Accelerated Power Development and Reforms Programme (R-APDRP), pursuant to the RFP dated 20.05.2010 issued by the respondent No. 1 participated in the tender process for selec­tion of agency for implementation of various projects in the Northeastern States. The said process being in the 2 (two) bid system, the petitioners and other bidders submitted their technical bids and the price bids seperately. In additional to the guideline issued by MoP, Government of India vide office memoran­dum dated 22.12.2008, an addition guide­line was issued on 09.12.2009 and 26.05.2010 for proper implementation of the projects and laying down the method of evalu­ation of technical and price bids ofvarious bidders. It also provides that the RFP required to be issued by the Utilities must be on confomity with such guidelines issued. Ac­cordingly the RFP was issued by the respon­dent No. 1 on 20.05.2010 wherein the eligi­bility criteria has been laid down in Section 4 thereof, which are already quoted above in this judgment. 22. As per the guidelines dated 09.12.2009 issued by the Government of In­dia, as noticed above, the technical bid is to be evaluated on the basis of the score of 50, which was sub-divided in 5 (five) heads in­cluding the 'project experience' for which 15 marks has been allotted. The 'project expe­rience' of abidder, therefore, is to be judged against the 15 marks allotted for that purpose. The 'project expe­rience' of abidder, therefore, is to be judged against the 15 marks allotted for that purpose. The said guideline dated 09.12.2009 further requires the bidders to provide details of the projects with application mudules and other requirements as mentioned in the eligibility crieteria is Section 4, which have been suc­cessfully completed during the last 3(three) financial years, prior to issuance of the RFP by the Utility. In the case in hand, the RFP having been issued on 20.05.2010, those projects offered by the bidders for evalua­tion, which have successfully been completed between 01.04.2007 and 31.03.2010, are to be considered for technical evaluation. The aforesaid 15 marks allotted for the 'project experience' was again distributed in 4 (four) different heads, namely, power sector expe­rience, usage of project, size of GSP, NSP and MDASP and IT experience: application modules implemented, allotting 6.5,2,1.5 and 5 marks respectively, which was also notified in the RFP issued by the respondent No. 1 on 20.05.2010. 23. The technical bids of all the bidders including the petitioners were opened on 16.07.2010, whereafter the Joint Evaluation Committee in the proceeding dated 19.08.2010 decided to evaluate the projects offered by different bidders for the purpose of technical evaluation, provided the projects at least have IT components of 25% of the total project value, though such stipulation was neither in the guidelines issued by the Gov­ernment of India from time to time nor in the RFP dated 20.05.2010 issued by the respon­dent No. 1. One of the dispute in the present writ petition relating to introduction of such an additional eligibility criteria by the Joint Evaluation Committee for evaluation of the » technical bids of the bidders that too after opening of the technical bids and without tak­ing approval from the Nodal Agency, namely, the PFC, which according to the petitioners are required to be obtained prior to any change in the condition of the RFP. 24. It is not in dispute that such a criteria, relating to the consideration of those projects which have IT components of at least 25% of the total project value, was not in the afore­said guidelines issued by the Government of India for selection of IT1A and for implemen­tation of the projects. Such condition was also not put in the RFP issued by the respondent No. 1. Such condition was also not put in the RFP issued by the respondent No. 1. The contention of the respondents, as noticed above, however, is that though the Joint Evaluation Committee in the proceed­ing dated 19.08.2010 laid down such an ad­ditional eligibility criteria, none of the techni­cal bids submitted by the bidders including the petitioners were evaluated on the basis of such a crieteria. Such contention, however, cannot be accpeted for the reasons recorded hereinafter in this judgment. 25. In the affidavit-in-opposition filed by the respondent No.1, more particularly in paragraph 6 thereof, it has been pleaded as follows: "....The Joint Evaluation Committee in its meeting dated 19.08.10 decided that the projects submitted by the bidders would be considered for evaluation only if the IT composition of the project is at least 25 % of the total project value and the same has been decided keeping in mind that the project in question undertaken by the respondent No. 1 is primarily an IT project. The deponent States that as per the petitioners' bid document, the petitioner Joint venture has sub­mitted altogether 7 projects and all were con­sidered for evaluation as per the PFC evaluation crietria as reflected at Appendix E of RFP document and the Joint Evaluation Committee minutes at Annexure-5 and the petitioner got only 0.47 out of 15 marks as stated above." 26. The Annexure-5, as referred to by the respondent No. 1 in the aforesaid pleadings, is the proceeding dated 19.08.2010 wherein the decision to introduce the said additional eligibility criteria for evaluation of those projects offered by the parties for the pur­pose of technical evaluation which have the IT components of at least 25% of the total project value, was taken. The respondent No. 1 paragraph 6 of the affidavit-in-oppostion filed has stated that the petitioners' technical bid as well as the bids submitted by the other bidders were evaluated on the basis of the criteria laid down in the RFP and the addi­tional eligibility criteria as introduced in the proceeding of the Joint Evaluation Commit­tee dated 19.08.2010. The respondent No. 1 paragraph 6 of the affidavit-in-oppostion filed has stated that the petitioners' technical bid as well as the bids submitted by the other bidders were evaluated on the basis of the criteria laid down in the RFP and the addi­tional eligibility criteria as introduced in the proceeding of the Joint Evaluation Commit­tee dated 19.08.2010. Application of such criteria is also apparent from the communi­cation dated 25.09.2010 issued by the re­spondent No. 1 to the Nodal Agency, namely, the PFC intimating rejection of the petition­ers' technical bid after reconsideration, reit­erating that there is no scope for modification of the marks already allotted to the petition­ers on the basis of the evaluation criteria fixed and as communicated vide communication dated 27.08.2010. By the said communica­tion dated 27.08.2010 the respondent No. 1 informed the PFC about evaluation of the technical bids of the various bidders on the basis of the additional eligibility criteria intro­duced by the Joint Evaluation Committee in its proceeding dated 19.08.2010 i.e. consid­eration of those projects, offered by the bid­ders for evaluation, having IT components of at least 25% of the total project value. It is, therefore, evident that the projects offered by the petitioners and others were evaluated by applying the said additional eligibility criteria subsequently introduced by the Joint Evalua­tion Committee in its proceeding dated 19.08.2010 i.e. after opening of the technical bids on 16.07.2010. The respondent No.1 has also not produced before this Court the views of the IT consultant, respondentNo.4, in the matter of technical evaluation, so as to record a finding different from the above, though as per the guidelines dated 26.05.2010, issued by the Government of India, the same is required to be maintained and sent to the Nodal Agency i.e. PFC for consideration of approval or otherwise of the action of the Utility in rejecting the technical bids of any bidders. 27. The question, therefore, requires con­sideration is whether such an additional crite­ria can be introduced by the Joint Evaluation Committee for the purpose of evaluation of the technical bids of the bidders and whether it has affected the decision making process. It may be noticed that no argument is ad­vanced by the learned Sr. 27. The question, therefore, requires con­sideration is whether such an additional crite­ria can be introduced by the Joint Evaluation Committee for the purpose of evaluation of the technical bids of the bidders and whether it has affected the decision making process. It may be noticed that no argument is ad­vanced by the learned Sr. counsel for the re­spondent "No. 1 or other respondents in this regard, as the stand taken by the respondents is that such additional criteria introduced in the proceeding of the Joint Evaluation Com­mittee dated 19.08.2010 was not applied. 28. In the matter of distribution of State largesse the Government must inform the in­tending bidders the procedures proposed to be followed in accepting the tender, which must be transparent, fair and open, as the Government is required to follow the open­ness, transparency and fair dealing in such matters. If any process initiated by the Gov­ernment is not transparent, fair and open and any decision is vitiated by arbitrariness in ac­tion or unreasonableness or malafide, such decision making process can no doubt be interfered with by the High Court in exercise of the jurisdiction under Article 226 of the Con­stitution of India. The State or its instrumen­talities or agencies are bound to adhere to the norms, standards and procedures laid down by them in the matter of distribution of State largesse and cannot be allowed to de­part thereform arbitrarily. It is a settled posi­tion of law that though the decision is not amendable to judicial review, the Court can examine the decision making process and in­terfere with it if it is found vitiated by malatide or unreasonableness or arbitrariness. The State and its instrumentalities and agencies have the public duty to be fair to all concerned. However the Court shoud be slow in inter­fering with the decision making process in exercise of its discretionary power under Ar­ticle 226 of the Constitution of India unless it is required in furtherance of public interest. 29. The State and its instrumentalities and agencies have the public duty to be fair to all concerned. However the Court shoud be slow in inter­fering with the decision making process in exercise of its discretionary power under Ar­ticle 226 of the Constitution of India unless it is required in furtherance of public interest. 29. The Apex Court in Air India Ltd. (su­pra), Master Marine Services (P) Ltd. (su­pra) and in Siemens Public Communication Networks Pvt. Ltd. (supra), has held that as in arriving at a commercial decision, consid­erations which are paramount are commer­cial considerations and the States can choose its own method to arrive at a decision and fix it to the tender, the writ Court should be cau­tious in interfering with such a decision of the Government and normally should not intcrefere with the same only because a legal point has been made out. It has also been held that even if some deficiency in decision making process is found, the Court should not exercise such discretionary power under Article 226 of the Constitution of India, un­less it affects the public interest. The Apex Court has further held that if the decision is bonafide and is in the interest of justice, the power of judicial review cannot be exercised by the Writ Court even if there is a procedural lacuna 30. The Apex Court in Dutta Associates Pvt. Ltd. (supra), while dealing with the mat­ter of rejection of a tender on the ground of being not in the 'viability range', without speci­fying the same in the tender notice, has held that rejection of tender on that count is con­trary to the requirement of transparency, fair­ness and openness. It has been held mat fair­ness demands the authority to notify, in the tender notice itself, the procedure which are proposed to be adopted while accepting the tender and therefore, rejection of a tender, On the ground of not coming within the 'vi­ability range' without stipulating the same in the tender notice, is illegal. 31. In Monarch Infrastructure (P) Ltd. (supra) the Apex Court summed up the legal position in the matter of scope of the judicial review of a contractual matter, as under:- (i) The Government is free to enter into any contract with citizens but the Court may interfere where it acts arbitrarily or contrary to public interest. 31. In Monarch Infrastructure (P) Ltd. (supra) the Apex Court summed up the legal position in the matter of scope of the judicial review of a contractual matter, as under:- (i) The Government is free to enter into any contract with citizens but the Court may interfere where it acts arbitrarily or contrary to public interest. (ii) The Government cannot arbitrarily choose any person it likes for entering into such a relationship or to discriminate be­tween persons similarly situate. (iii) It is open to the Government to reject even the highest bid at a tender where such rejection is not arbitrary or unreasonable or such rejection is in public interest and for valid and good reasons. 32. Reiterating the same view, the Apex Court in Reliance Airport Developer (P) Ltd. (supra) has opined that the Court however must carefully weigh the conflicting public in­terests and only if it comes to a conclusion that there is an overwhelming public interest in entertaining the petition, the Court should intervene. 33. The Apex Court in Reliance Energy Ltd. (supra) has opined that when tenders are invited, the terms and conditions must indi­cate, with legal certainty, the norms and bench marks, as legal certainty is an important as­pect of the rule of law. It has further been observed that if there is vagueness or subjec­tivity in the norms, it may result in unequal and discriminatory treatment and violate the doctrine of "level playing field". 34. A Division Bench of this Court in Writ Appeal No. 256/2010: Muslim AH Vs. State of Assam &Ors. relying on the decision of the Apex Court in Dutta Associates Pvt. Ltd. (supra) has also opined the whatever proce­dure the Government proposes to follow in accepting a tender must clearly be mentioned in the tender notice and the considerations of the tender received and procedure to be fol­lowed in the matter of acceptance of tender must be transparent, fair and open. In the said case the tender submitted by the appellant was not accepted on the ground that he had no experience of working at Guwahati, though such criteria was not disclosed in the tender notice. A Division Bench of this Court has held that since the bidding process must be trans­parent, fair and open, the eligibility criteria have to be notified in the tender notice. 35. A Division Bench of this Court has held that since the bidding process must be trans­parent, fair and open, the eligibility criteria have to be notified in the tender notice. 35. In the case in hand, was noticed above, the additional eligibility criteria, introduced by the Joint Evaluation Committee in the pro­ceeding dated 19.08.2010, was neither in the guidelines issued by the the Government of India for that purpose, which are required to be followed scrupulously, nor in the RFP is­sued by the respondent No. 1. Moreover, such additional eligibility criteria was fixed after opening of the technical bids of different bid­ders including the petitioners. Therefore, the evaluation of the technical bids of the peti­tioners on the touchstone of such additional eligibility criteria introduced subsequent to the opening of the technical bid is contrary to the requirement of transparency, fairness and openness in the matter of distribution of State largesse. Accordingly the approval, if any, by the Nodal Agency, namely the PFC, would in any case have no bearing in the case in hand, as, such additional eligibility criteria was introduced after opening of the technical bids of the bidders. 36. The contention of the learned Sr. coun­sel for the petitioners that there should not be substantial variation of the technical score awarded to the bidders, to those of other Utilities and since the petitioners' technical score in respect of two other Utilities were 42.08 and 39.01, their technical score ought to be in the same range, cannot be accepted, as technical evaluation is to be made on the basis of the requirement of the Utilities and the guidelines issued by the Government of India from time to time. 37. Having held so, 1 would now proceed to scrutinize as to whether the same has af­fected the decision making process in the case in hand. As noticed above, the petitioners of­fered 7(seven) projects for the purpose of technical evaluation. In respect of project Nos. 1,2 and 3, apart from the ground of IT components, those were not considered be-cause of the non-submision of the comple­tion certificates, though one of the condition in the RFP was that the projects which were completed between 01.04.2007 and 31.03,2010 would be considered for techni­cal evaluation. There is no dispute relating to the non-submission of completion certificates in respect of those 3(three) projects. The contention o f the learned Sr. There is no dispute relating to the non-submission of completion certificates in respect of those 3(three) projects. The contention o f the learned Sr. Counsel for the petitioners that since from various guidelines issued by the Government of India as well as the communication dated 07.09.210 it is ap­parent that the technical bids of the bidders should not be rejected on flimsy ground and opportunity should be given to fill up the la­cuna, if any, the petitioners ought to have been called upon by the respondent No. 1 to sup­ply the completion certificates, more so when the dates of completion of the projects were mentioned in the tender documents, cannot be accepted, as the submission of comple­tion certificates is an essential requirement, which the petitioners have failed to fulfill. In the communication dated 07.09.2010 issued by the PFC to the respondent No. 1 it has no doubt been mentioned that the additional guidelines dated 09.12.2009 and 26.05.2010 were issued by the Government of India to ensure that the completion is not throttled and Utilities get better price, without, however, affecting the quality, quantity and price of the offered products and hence the clarification wherever necessary may be obtained. In the guise of such clarification, the parties, how­ever, cannot be allowed to till up the lacuna relating to the requirement of fulfillment of essential conditions like requirement of fur­nishing completion certificate. 38. Project Nos. 4 and 5 offered by the petitioners for technical evaluation being ad­mittedly ongoing projects were righlty not considered by the Joint Evaluation Commit­tee in evaluating the technical bids of the pe­titioners. Project No.6, however, was con­sidered. The projectNo.7 i.e. implementa­tion of MPLS turnkey project in Delhi and Mumbai awarded by the MTNL was also not considered on the ground that the same was completed prior to 01.04.2007. The docu­ments on which reliance has been placed by the learned counsel for the respondent No. 1 do not indicate total completion of the project, which were the basis for non-consideration of the said project. On the other hand, the completion certificate dated 01.06.2009 is­sued by the MTNL authority reveals that the said project was completed on 27.10.2007 i.e. during the period from 01.04.2007 to 31.03.2010. The non-consideration of the said project as offered by the petitioners for technical evaluation has, therefore, vitiated the decision making process. 39. On the other hand, the completion certificate dated 01.06.2009 is­sued by the MTNL authority reveals that the said project was completed on 27.10.2007 i.e. during the period from 01.04.2007 to 31.03.2010. The non-consideration of the said project as offered by the petitioners for technical evaluation has, therefore, vitiated the decision making process. 39. The petitioners have also challenged the decision making process on the ground that 8 (eight) projects were taken into con­sideration while evaluating the technical bids of the bidders, which, according to the peti­tioners, was done only with a view to favour the respondent No, 5, who, according to the petitioners, was the only bidder offered 8 (eight) or more projects. Such contention of the petitioners is not supported by the mate­rial s available on record as it appears that except the petitioners the other bidders have offered more than 8 (eight) projects. The de­cision making process cannot also be faulted with on that count as, such decision was taken by the Joint Evaluation Committee keeping in view the total number of projects required to be implemented in the Northeastern States. There was no embargo put on the Utility in fixing the number of projects to be consid­ered. It being within the knowledge of the petitioners that out of 7 (seven) projects of­fered by them, at least 2 (two) projects were ongoing and therefore cannot be considered or technical evaluation in terms of the RPP issued, they could have offered more com­pleted projects for technical evaluation, had they been any. Non-offering of more com­pleted projects for technical evaluation, in view of the above, indicates that the petition­ers had no other projects to offer than the projects which they offered for technical evaluation. 40. Coming to the question of involvement of public interest, it is not the dispute that af­ter opening of the price bids of different bid­ders, it is found that the petitioners' price bid was significantly lower than that of other bid­ders. Since the projects are going to be imple­mented by spending public money, it cannot be said that public interest is not involved in the case in hand. 41. Since the projects are going to be imple­mented by spending public money, it cannot be said that public interest is not involved in the case in hand. 41. The contention of the respondent No. 1 that the plea of making the petitioners' offer non-responsive to the technical bid on the ground that the projects offered by them have no IT components of at least 25% of the project value, having not been taken in the writ petition, cannot be considered, is not acceptable, in view of the facts that the peti­tioners were informed vide impugned communication dated 07.12.2010 only about the rejection of the technical bid without assign­ing any reason therefor. The petitioners were also informed about the reasons despite the various communications issued, the petition­ers, on receipt of the affidavit-in-opposition of the respondent No.1, for the first time came to know about the rejection of the tech­nical bid on such ground and has taken up the said plea in the rejoinder affidavit filed and therefore the respondent No. I was not caught by surprise by raising such plea during hear­ing. The Apex Court in Sri-la Sri Subramania Desika Gnanasambanda Pandarasannidi (su­pra) has also rejected such contention since such plea was taken in the rejoinder affidavit filed. 42. That being the position, the respon­dent No.1 is directed to re-evaluate the project Nos. 6and 7 offered by the petition­ers, namely, implementation of broadband turnkey project in Delhi and Mumbai and implementation of MPLS turnkey project in Delhi and Mumbai, awarded by the MTNL, for the purpose of evaluation of the technical bid of the petitioners and to award marks out of the 15 score allotted for that purpose and thereafter proceed to evaluate the price bids of different bidders including the petitioners, subject to securing minimum 35 marks out of the score of 50 and after obtaining the ap­proval from the Nodal Agency, namely, the PFC, as required under the guidelines issued. 43. The writ petition is accordingly allowed to the extent indicated above. No costs.