JUDGMENT S. Talapatra, J. 1. The writ petitions being W.P. (C) No. 5507 of 2011 and W.P. (C) No. 6452 of 2011 have been filed by the petitioners in regard to tender notice No. S & C/1423/Assam/11/Pt., dated 30.09.2011 as floated for and on behalf of the Food Corporation of India, General Manager(R), FCI, RO, Assam Region, Guwahati, inviting tenders in Two Bid tendering system (Technical Bid & Price Bid) from transporters with or without requisite experience with strong financial background on regular basis for a period of two years on the routes including Ex-Rly. Siding/FSD Siding Amoni to FCI FSD Dhemaji via weigh bridge (Sl. No. 4 in the said tender notice dated 30.09.2011). On consensus of the counsel appearing for the parties in both the writ petitions, these two writ petitions are collated for disposal by a common judgment. The factual matrix material for determining the dispute is encapsulated hereunder for appreciation of the submissions made by the rival parties. W.P. (C) No. 5507 of 2011 2. The grievance as canvassed in this writ petition is that the petitioner, in response to the tender notice dated 30.09.2011 (Annexure-I to the writ petition), submitted his tender in the Two Bid tendering system for undertaking transportation of food grains, sugar and allied materials for Ex-Rly. Siding Amoni to FCI FSD Dhemaji via weighbridge within the time and date as stipulated in the said tender notice. In the said tender notice, it has been categorically provided that duly filled in tenders would be received on 24.09.2011 in the office of the GM(R), FeI, RO, Guwahati upto 1:00 PM and tenders (Technical Bid) will be opened on the same day i.e. 24.09.2011 at 2:00 PM in the FCI, RO, Guwahati only. 3. There is no dispute that the petitioner submitted his tender within the stipulated time and thereafter tender box was sealed at 1:00 p.m. as per the stipulation in the tender notice. When the Technical Bids were opened at the schedule time, the petitioner discovered that the tender submitted by the respondent No. 5 was also opened as a valid tender though the said tender was received after the expiry of the schedule time and was not in the sealed tender box. When the Technical Bids were opened at the schedule time, the petitioner discovered that the tender submitted by the respondent No. 5 was also opened as a valid tender though the said tender was received after the expiry of the schedule time and was not in the sealed tender box. The petitioner raised his voice against the said action of the respondents for being absolutely arbitrary and against the terms and conditions of the tender notice as well as for being highly discriminatory. The further contention as advanced in the writ petition is that the impugned action is liable to be declared illegal and arbitrary. The petitioner strongly agitated in the writ petition that the commercial bid of the persons whose tenders were received after the schedule date and time shall not be opened. 4. By filing the affidavit-in-opposition, the respondent Nos. 1-4 disclosed that seven persons had purchased the tender documents, out of which two persons have responded to the NIT dated 30.09.2011. Out of the said two tenderers one tender i.e. the tender of the writ petitioner was received within 1:00 PM on 24.102011. The respondent Nos. 1-4 admitted that one delayed tender i.e. of the respondent No. 5 was received at 1: 10 PM and both the tenders were opened at 2:00 PM on 24.10.2011 in presence of the tenderers/their authorised representatives by the 'Tender Opening Committee' constituted for that purpose. It had been also contended that in respect of the handling contract for Jogighopa Depot, covered by the said Tender Notice dated 30.09.2010, one tender i.e. the tender of one Balram Singh was similarly received delayed at 1:11 PM on 24.10.2011. The Tender Opening Committee, therefore, placed the said two delayed tenders as received after 1:00 PM, but before the time of opening of the tender, to the competent authority for appropriate decision. The competent authority, in order to facilitate competition and keeping in view of the provisions of the guidelines, provided in clause 25.10 of the 'Storage and Contract Manual of the FCI, accepted both the delayed tenders. It had been contended by the said respondents that the delayed tender of the respondent No. 5 was submitted with a representation to the authority on 24.10.2011, assigning the reasons for the delay viz. It had been contended by the said respondents that the delayed tender of the respondent No. 5 was submitted with a representation to the authority on 24.10.2011, assigning the reasons for the delay viz. 'link failure' in Bank in processing the EMD Draft and due to traffic jam through the route to the office where the filled in tender form in sealed cover had to be deposited. To scabold such contentions, the respondent Nos. 1-4 relied on the provisions of Clause 25.10 of the said 'Storage and Contract Manual. The respondent Nos. 1-4 further contended that the 'Storage and Contract Manual of the FCI was being followed in the entire country. Moreover, when the decision had been taken in public interest and when no right of the petitioner was violated for acceptance of the tender of the respondent No. 5, the writ petitioner did not deserve any consideration by this Court. The respondent Nos. 1-4 emphatically contended that the action impugned had been taken well within their power as provided in the said 'Storage and Contract Manual and the petitioner has got no indefeasible right vis-a-vis the provisions as provided in Clause 25.10 of the 'Storage and Contract Manual as reproduced hereunder. The respondent Nos. 1-4 contended that the terms of the tender under Clause XX(b), provides for a remedy that in the event of any grievance the aggrieved person shall approach the "Dispute/Grievances Redressal Committee" at the FCI, Zonal Office, Guwahati, but the petitioner without availing that alternative remedy had straightway approached this Court and hence the writ petition be thrown out. 5. The respondent No. 5 also filed a separate affidavit-in-opposition almost on the similar line and made an enthusiastic endeavour to buttress further the contention of the respondent Nos. 1-4 by making a distinction between the 'Delayed tenders' and 'Late tenders' taking aid of the 'Storage and Contract Manual of the FCI. For appreciation, both the clauses 25.10 and 25.11 dealing with the 'Delayed tenders' and 'Late tenders' in the 'Storage and Contract Manual of the Food Corporation of India are extracted: 25.10. Delayed tenders. 1-4 by making a distinction between the 'Delayed tenders' and 'Late tenders' taking aid of the 'Storage and Contract Manual of the FCI. For appreciation, both the clauses 25.10 and 25.11 dealing with the 'Delayed tenders' and 'Late tenders' in the 'Storage and Contract Manual of the Food Corporation of India are extracted: 25.10. Delayed tenders. Delayed tenders consist of tenders received or delivered by hand after the due date and time of receipt but before the due date and time of opening, as may be clear from the post mark on the envelope, or so endorsed under the signature of the officer responsible for the receipt and custody of tenders. Delayed tenders can be considered with the specific orders of the authority competent to award the contract. 25.11. Late tenders. Late tenders i.e., tenders received after the specified time for opening of tenders, should not be considered at all. However, 'single, tender received late may be considered with the concurrence of associated Finance. 6. The writ petitioner also filed affidavit-in-rejoinder against the affidavit-in-opposition as filed by the respondent Nos. 1-4, where it has been contended that no reference had been made to the 'Storage and Contract Manual or not relied upon by the FCI in any part of the Tender Notice dated 30.09.2011 and as such action on the part of the FCI-respondents cannot stand the scrutiny of law. It has been further contended in the said affidavit-in-rejoinder that the respondent No. 5 arrived five minutes late at about 1:05 PM and thereafter he produced a typed letter for consideration of submission of tender form at around 1:10 PM as if the respondent No. 5 was apprehending the situation beforehand. The chain of events that had been unfurled and the action of the respondents not alone raised serious doubt but smacked of collusion and bias. 7. The petitioner also filed affidavit-in-rejoinder in contrast to the averments made by the respondent No. 5 in his affidavit-in-opposition. In para-9 of the said rejoinder-in-affidavit, it had been categorically contended by the petitioner that causes of delay as pushed forward by the respondent No. 5, for example, the Bank's link failure and the traffic jam were solely attributable to the fault of the respondent No. 5 for waiting till the last moment to complete the formalities even though ample time was provided to each tenderer. For his personal fault a public tendering process cannot suffer. As no reference had been made as to the 'Storage and Contract Manual of FCI in the Tender Notice dated 30.09.2011, acceptance of tender of the respondent No. 5 under the provisions laid down under the said 'Storage and Contract Manual of FCI was contrary to the established procedure of law and administrative fair-play. It has been further contended in the said rejoinder-in-affidavit that the action impugned had been taken beyond the expressed terms and conditions of the Tender Notice. As such, the impugned act is invariably liable to be interfered with. 8. It has been strongly submitted by the respondent Nos. 1-4 that they had entertained the delayed tender of the respondent No. 5 well within their authority and in public interest. There is no infirmity in the action and the writ petition had been filed on flimsy ground. Opening of the Price Bids had been restrained by this Court by the order dated 04.11.2011, as passed in W.P. (C) No. 5507/2011 in the terms as follows : Considering the nature of the grievance, it is hereby provided that the commercial bid of the respondent No. 5 may not be opened till the next returnable date without the leave of this Court. The said order was extended by the order dated 18.11.2011 in MC No. 3177/2011, in W.P. (C) No. 5507/2011. 9. The Price Bids had not been opened for determination of the tender. Considering the urgency and interest of the parties, this Court by the orders dated 28.11.2011 and 17.12.2011, observed that there would be an attempt for disposal of the case in the admission stage. Accordingly, the matter was taken up for hearing on consensus. W.P. (C) No. 6452 of 2011 10. During pendency of the writ petition being W.P.(C) No. 5507/2011, the writ petition being W.P.(C) No. 6452/2011 was filed on 20.12.2011 expressing the grievance against the respondent Nos. 1-4 for not disclosing any condition in the Tender Notice that the competent authority of the FCI has authority to accept the tender after the stipulated date and time and against acceptance of tenders of their favoured persons on extraneous considerations to the serious prejudice of the petitioner. The factual matrix sans details in this writ petition is that, in response to the tender notice No. S & C/1423/Assam/11/Pt., dated 30.09.2011 for the route Ex-Rly. The factual matrix sans details in this writ petition is that, in response to the tender notice No. S & C/1423/Assam/11/Pt., dated 30.09.2011 for the route Ex-Rly. Siding Amoni to FCI FSD Dhemaji via weighbridge, the petitioner purchased the tender document and he was preparing to submit the same but he could not reach the office of the respondent No. 3 for the reasons as stated in para-5 of the writ petition, which is extracted for elucidation hereunder: That the petitioner states that the petitioner had the intention to participate in the tender process and had it not been for the unforeseen traffic jam on 24.10.2011 for which the petitioner was restrained from submitting its tender prior to the stipulated time period of submission, the petitioner could not participated in the tender process. However as stated herein above, due to the bona fide belief that the submission of tender after the stipulated time period of submission is not acceptable, the petitioner did not submit its tender. It may be stated herein that the Tender Document did not mention that late submission of tender is acceptable and as such, petitioner cannot be penalized or subjected to prejudice for not submitting the tender after the schedule time of submission more particularly when the petitioner was under the bonafide belief that such submission would be a futile exercise. However, the respondent authorities having accepted the tender of another tenderer even after the stipulated time period for submission the petitioner is also entitled for due consideration of its tender. On such basis, the petitioner in this writ petition, prayed for a mandamus for accepting his tender or in the alternative to issue fresh tender in terms of the said tender notice dated 30.09.2011. The petitioner also sought for prohibition against the FCI-respondents from finalising the tender process initiated by the said tender notice dated 30.09.2011. Annexure-I and Annexure-II are the documents attached to the writ petition in support of the contention that the petitioner purchased the tender documents for the said route. In this writ petition, no notice was issued. Since the counsel for the parties agreed that this petition also might be disposed of on the basis of their contention in the writ petition being W.P. (C) No. 5507/2011, this writ petition has been tied up with W.P. (C) No. 5507/2011 for disposal. 11. Mr. In this writ petition, no notice was issued. Since the counsel for the parties agreed that this petition also might be disposed of on the basis of their contention in the writ petition being W.P. (C) No. 5507/2011, this writ petition has been tied up with W.P. (C) No. 5507/2011 for disposal. 11. Mr. K. Agarwal, learned counsel strongly contended that in absence of any expressed terms in the tender notice or in the tender document or reference to any Manual in the tender notice with stipulation that the provisions of that Manual would also govern the tendering process, the FCI- respondents are bound by the terms and conditions as laid down in the Tender Notice or in the tender document as posted in the web site. Referring to the tender document learned counsel for the petitioner, submitted that in the tender document (Annexure-I to the writ petition), only the following clause has been embodied:- The tender form (non-transferable) embodying the terms & conditions can be obtained from Regional Office (Contract Section), FCI Assam Region Guwahati, on application in letter Head and payment of Cost indicated above during working days between 10.00 a.m. to 2.00 p.m. upto 22.09.2011 and duly filled in tenders will be received on 24.09.2011 in the office of the GM (R) FCI, RO Guwahati upto 1:00 PM and tenders (Technical Bid) will be opened on the same day i.e. 24.09.2011 at 2:00 PM in FCI, RO, Guwahati only in presence of the Tenderers or their authorized representatives who may wish to be present. The Price Bid envelopes of only those tenderers that are found technically qualified would be opened on the date to be fixed by General Manager (Assam Region). The date/time of opening of the Price Bid will be intimated to qualified tenderers only. 12. Mr. G.N. Sahewalla, learned senior counsel contended that acceptance of tender of the respondent No. 5 in W.P.(C) No. 5507/2011 was contrary to the terms and conditions as notified by the FCI-respondents. As such the said action cannot sustain in law vis-a-vis Article 14 of the Constitution of India. To buttress this, he referred the decision in Dutta Associates Put. Mr. G.N. Sahewalla, learned senior counsel contended that acceptance of tender of the respondent No. 5 in W.P.(C) No. 5507/2011 was contrary to the terms and conditions as notified by the FCI-respondents. As such the said action cannot sustain in law vis-a-vis Article 14 of the Constitution of India. To buttress this, he referred the decision in Dutta Associates Put. Ltd. v. Indo Merchantiles Pvt. Ltd. & other, as reported in (1977) 1 SCC 53, wherein the Apex Court held: Fairness demanded that the authority should have notified in the tender notice itself the procedure which they proposed to adopt while accepting the tender. They did nothing of that sort. In that case, the Apex Court also held: It is thus clear that the entire procedure followed by the Commissioner and the Government of Assam in accepting the tender of Dutta Associates (appellant herein) is unfair and opposed to the norms which the Government should follow in such matters, viz. openness, transparency and fair dealing. 13. Mr. Sahewalla, learned senior counsel for the petitioner also relied on a decision of this Court in Sailen Konwar Dutta & another v. Satya Capital Services (P) Ltd. (M/S) & other, as reported in 2000 (1) GLT 657, wherein this Court held:- The same procedure should have been adopted for notifying the date and time of opening of their tenders in respect of all tenderers. There was no reason to choose only the petitioner-respondents for a different mode of notice, namely, by sending them individual notice and for the rest adopting the procedure of Notice Board. It is submitted that this fact assumes importance in the background that the petitioner-respondents had not impleaded the other tenderers as parries in their writ petitions. The whole thing was sought to be done in a clandestine manner in which collusion of machinery of the respondents could not be excluded. It is thus submitted that opening of the tenders of the petitioner-respondents in absence of other tenderers is also bad in law and in violation of condition of tender notice. The whole thing was sought to be done in a clandestine manner in which collusion of machinery of the respondents could not be excluded. It is thus submitted that opening of the tenders of the petitioner-respondents in absence of other tenderers is also bad in law and in violation of condition of tender notice. In the aforesaid case, this Court held: Once the authorities did not open the tenders submitted late and they preferred to adhere to the time schedule with rigidity it was not open for the Court to issue a Mandamus to deviate from the time schedule and open the tenders of those who submitted their tenders after expiry of the time, unless it was the case of the petitioner-respondents that by such a decision of the administrative authorities, they are being discriminated against or there was an element of arbitrariness in their action or inaction. Mr. G.N. Sahewalla, learned senior counsel appearing for the petitioner, relying on that ratio contended that element of arbitrariness loomed large on the face of the records and as such the impugned action be interfered with. 14. I also heard Mr. P.K. Roy, learned Standing Counsel for the FCI, who, referring to the terms and conditions of the tender notice dated 30.09.2011, submitted that in the tender notice it had been categorically mentioned that the further details can be seen in the MTF, which was also available in the FCI web-site www.fciweb.nic.in by clicking on the link 'Storage & Contract under the heading Operations of FCI. He also drew my attention to the provisions of 'Storage and Contract Manual of the FCI more particularly to clause 25.10, which dealt with the 'Delayed tenders' to drive home the point that the FCI-respondents were well within their authority to consider the delayed tender which had been submitted before the opening of the tender. It is available in clause 25.10 that the delayed tenders consists of tenders received or delivered by hand after the due date and time of receipt but before the date and time of opening, as may be clear from the post mark on the envelope, or so endorsed under the signature of the officer responsible for the receipt and custody of tenders. The delayed tenders can be considered with the specific orders of the authority competent to award the contract. The delayed tenders can be considered with the specific orders of the authority competent to award the contract. The learned Standing Counsel further stated that after receipt of the delayed tender of the respondent No. 5, the authority, which received the tender sent the same for necessary consideration. The competent authority after due consideration directed to open the said tender which was received at a belated stage in the interest of public and for more competition. Mr. Roy, learned Standing Counsel for the FCI-respondents, referred to the decision of the Apex Court in M/s G.J. Fernandez v. State of Karnataka & Ors., as reported in AIR 1990 SC 958 , to hold that there was no arbitrariness as the FCI-respondents had been consistently following the guidelines and no prejudice or injustice whatsoever had been caused to the petitioner. He relied to a part of para-16 of G.J. Fernandez (supra), wherein the Apex Court held:- The second consequence, indicated by this Court in earlier decisions, is not that the KPC cannot deviate from these guidelines at all in any situation but that any deviation, if made, should not, result in arbitrariness or discrimination. It comes in for application where the non-conformity with, or relaxation from, the prescribed standards results in some substantial prejudice or injustice to any of the parties involved or to public interest in general. For example, in this very case, the KPC made some changes in the time frame originally prescribed. These changes affected all intending applicants alike and were not objectionable. In the same way changes or relaxations in other directions would be unobjectionable unless the benefit of those changes or relaxations were extended to some but denied to others. The fact that a document was belatedly entertained from one of the applicants will cause substantial prejudice to another party who wanted, likewise, an extension of time for filing a similar certificate or document but was declined the benefit. It may perhaps be said to cause prejudice also to a party which can show that it had refrained from applying for the tender documents only because it thought it would not be able to produce the document by the time stipulated but would have applied had it known that the rule was likely to be relaxed. But neither of these situations is present here. But neither of these situations is present here. Sri Vaidhyanathan says that in this case one of the applicants was excluded at the preliminary stage. But it is not known on what grounds that application was rejected nor has that party come to Court with any such grievance. The question then is whether the course adopted by the KPC has caused any real prejudice to the appellant and other parties, who had already supplied all the documents in time and sought no extension at all? It is true that the relaxation of time schedule in the case of one party does affect even such a person in the sense that he would otherwise have had one competitor less. But we are inclined to agree with the respondent's contention that while the rule in Ramana's case AIR 1979 SC 1628 (supra) will be readily applied by Courts to a case where a person complains that a departure from the qualifications has kept him out of the race, injustice is less apparent where the attempt of the appellant before Court is only to gain immunity from competition. Assuming for purposes of argument that there has been a slight deviation from the terms of the NIT; it has not deprived the applicant of its right to be considered for the contract; on the other hand, its tender has received due and full consideration. If, save for the delay in filing one of the relevant documents, MCC is also found to be qualified to tender for the contract; no injustice can be said to have been done to the appellant by the consideration of its tender side by side with that of the MCC and in the KPC going in for a choice of the better on the merits. The appellant had no doubt also urged that the MCC had no experience in this line of work and that the appellant was much better qualified for the contract. The comparative merits of the appellant vis-a-vis MCC are, however, a matter for the KPC (counselled by the TCE) to decide and not for the Courts. 15. Mr. P.K. Roy, learned Standing Counsel for the FCI argued with adequate emphasis that the petition had been filed by the writ petitioner to gain immunity from competition and not for any substantial ends of justice and hence the petition deserved to be guillotined without any consideration whatsoever. 15. Mr. P.K. Roy, learned Standing Counsel for the FCI argued with adequate emphasis that the petition had been filed by the writ petitioner to gain immunity from competition and not for any substantial ends of justice and hence the petition deserved to be guillotined without any consideration whatsoever. To a query from the Court, learned Standing Counsel for the FCI candidly submitted that the referred 'Storage and Contract Manual was even not available in the web-site at the relevant point of time or even thereafter. He pressed a Circular No. VIG.2(3)/2010-Pt. dated 25.06.2010 to link that Manual with the Tender Notice. From that circular it is found as follows:- No. VIG.2(3)/2010-Pt. DATED:-25th June, 2010 CIRCULAR No. 85/2010 SUBJECT:- TENDERING PROCESS-NEGOTIATION WITH L-1 Reference is invited to Circular No. 84/2010 and CVC guidelines dated 3rd March/2007 (copy enclosed as Annexure-1). Certain issues relating to operationalisation of these instructions have been raised. Essentially it has been felt that a Clause in the NIT, of the nature stipulated by Circular No. 84/2010, would close the door for negotiations, even if an exceptional circumstance arises after opening of the tender. In such cases, it is felt that the only option left would be to either scrap the whole tender, or to award it without considering the said exceptional circumstance. The issue has been examined in depth and the following guidelines are laid down:- (i) The general principle that is to be adopted in all matters pertaining to tenders, including on the specific issue of whether negotiations will be permitted or not, is to finalise all the terms and conditions well in advance of the publication of the NIT. This principle requires that once the NIT is published, and the tender process has been set in motion, there should be no occasion thereafter for any modifications in the basic rules and frame work governing the tender process. This requires that all aspects of a proposed tender should be thoroughly examined and considered well in advance of the publication of the NIT. If, nevertheless, there arises any circumstance that necessitates any changes in the tender frame work, this should lead invariably to the scrapping of the tender and restarting of the process once again. (ii) Keeping the above principle in view, it is clear that the decision to permit negotiations, or not to allow negotiations, has to be taken before the NIT is published. (ii) Keeping the above principle in view, it is clear that the decision to permit negotiations, or not to allow negotiations, has to be taken before the NIT is published. This decision cannot be taken at any point of time thereafter. (iii) The normal, or default, condition should be that negotiations will not be permitted. This is in line with the letter and spirit of the CVCs guidelines which states that negotiations will be allowed only in exceptional circumstances. Consequently, all NITs, tenders and bid documents should contain a statement as follows:- No negotiations will be conducted with any of the bidders who participate in this tender. (iv) If it is felt, prior to the issue of NIT that the case is one that is covered by any of the exceptional circumstances of the kind enumerated in the CVCs guidelines, and that it would be essential and in the interests of the Corporation to keep open the option of entering into negotiations with L-1, the Authority competent to finalise the tender would have to submit a proposal with full justification in this regard to the next higher authority. Such higher authority would have to record on file the reasons why the Clause prohibiting negotiations with L-1 need not be inserted in the NIT and the bid documents in such a case. While doing so, the said authority will also lay down the frame work and conditions subject to which the negotiations would have to be carried out. Such frame work and conditions would be based on and similar to, the conditions relating to ascertaining the reasonableness of the lowest quoted rate, in the manner outlined in the draft Purchase Manual (Annexure-2). (v) Separately; instructions are being issued to amend para 25.23 of the Storage and Contract Manual to provide that tenders should be invited at least 6 months prior to the expiry of the current contract, as against 4 months as at present. All authorities are directed, therefore, to take action immediately to invite tenders at least 6 months the expiry of ongoing contracts, without waiting for the formal amendment to the Storage and Contract Manual to be issued. All are requested to ensure meticulous/strict compliance. This issues with the approval of C. & M.D. [DEV RAJ] GENERAL MANAGER(VIG.). 16. All authorities are directed, therefore, to take action immediately to invite tenders at least 6 months the expiry of ongoing contracts, without waiting for the formal amendment to the Storage and Contract Manual to be issued. All are requested to ensure meticulous/strict compliance. This issues with the approval of C. & M.D. [DEV RAJ] GENERAL MANAGER(VIG.). 16. It is really worthwhile to note that the CVC had provided guidelines regarding negotiation wherein it had been categorically stated that the principle required that once the NIT was published and the tender process had been set in motion, there should be no occasion thereafter for any modifications in the basic rules and frame work governing the tender process. This requires that all aspects of a proposed tender should be thoroughly examined and considered well in advance of the publication of the NIT. If, nevertheless, there arises any circumstance that necessitates any changes in the tender frame work, this should lead invariably to the scrapping of the tender and restarting of the process again. (Emphasis added) 17. Mr. N. Dutta, learned senior counsel appearing for the respondent No. 5 while adopting the submissions made by the FCI-respondents, endeavoured to make a distinction between the 'Delayed tenders' and 'Late tenders' by aid of the Storage and Contract Manual of the Food Corporation of India for supporting the act of the FCI-respondents. According to the learned senior counsel, the tender of the respondent No. 5 was a delayed tender as the same was filed before opening of the tender (technical bids) and as such consideration of the tender of the respondent No. 5 by the competent authority was well within their authority. He also reiterated to the ratio of G.J. Fernandez (supra) that the authorities for the purpose of competition and in public interest might deviate some time from the terms and conditions, if the same deviation did not engender discrimination amongst the tenderers or affect any of the tenderers prejudicially. To get his submission with that ratio of G.J. Fernandez (supra), he contended further that in this case, the FCI-respondents acted in conformity to the provisions made in their guidelines and as such there cannot be any grievance or allegation of arbitrariness or caprice. 18. Mr. To get his submission with that ratio of G.J. Fernandez (supra), he contended further that in this case, the FCI-respondents acted in conformity to the provisions made in their guidelines and as such there cannot be any grievance or allegation of arbitrariness or caprice. 18. Mr. K. Agarwal, learned counsel appearing for the petitioner in W.P.(C) No. 6452/2011, submitted that though he purchased and prepared the tender but for traffic jam he could not reach the notified destination in time for depositing the tender. Incidentally the petitioner did come to know from the proceeding being W.P.(C) No. 5507/2011 that there had been extension of time for acceptance of one tender even after expiry of the stipulated time as mentioned in the tender notice, the petitioner had been discriminated as there had been no information or any notice to the persons who purchased the tender documents that the 'delayed' tenders could also be considered by the competent authority. For the petitioner it had quite been stoutly argued that the entire matter had been stage-managed in a clandestine manner and to the serious prejudice to the petitioner, who purchased the tender documents for submitting the same for being in the competition. Either the tender of the petitioner be directed to be accepted by the FCI-respondents for consideration or the entire tender process be cancelled paving for fresh tender process. 19. It is admitted position that clause 25.10 as embodied in the Storage and Contract Manual of the Food Corporation of India was at no point of time circulated for public knowledge or not posted in their official web-site, as such it could be assumed that the provisions of the said Storage and Contract Manual were within the constructive knowledge of the persons interested in securing the award of transportation and construction etc. In the realm of contract, terms and conditions of the contract or about the settlement or determination of the contract occupy a position of touchstone to test the fair-play in the joints. A constructive knowledge of the terms and conditions of the process forms therefore the essential basis to measure up the administrative action. 20. It has been etched out as the general principles about the ambit of the judicial review of the administrative action: (1) The modern trend points to judicial restraint in administrative action. A constructive knowledge of the terms and conditions of the process forms therefore the essential basis to measure up the administrative action. 20. It has been etched out as the general principles about the ambit of the judicial review of the administrative action: (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 term 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 necessary concomitant for an administrative body functioning in the administrative sphere 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. (Extracted from Tata Cellulars v. Union of India, as reported in (1994) 6 SCC 651 ). By applying the same principle, it would not be open for the Court to sit over the administrative action or non-action on the part of the authorities unless that suffers from bias, discrimination or arbitrariness. 21. In G.J. Fernandez (supra), the Apex Court referring to Ramana Dayaram, Shetty v. The International Airport Authority of India, as reported in (1979)3 SCR 1014 , held:- The question, then, is whether the course adopted by the KPC has caused any real prejudice to the appellant and other parties, who had already supplied all the documents in time and sought no extension at all? It is true that the relaxation of time schedule in the case of one party does affect even such a person in the sense that he would otherwise have had one competitor less. But we are inclined to agree with the respondents contention that while the rule in Ramana's case (supra) would be readily applied by Courts to a case where a person complains that a departure from the qualifications had kept him out of the race, injustice is less apparent where the attempt of the applicant before Court is only to gain immunity from competition. 22. Therefore, the ratio that has been crystalised in G.J. Fernandez (supra) is that in any case any deviation is made, the Court could examine the matter as to whether it has resulted in discrimination or arbitrariness. The Court would not require the authority to deviate from the time schedule unless, of course, it would amount to discrimination on the part of the authority concerned in not deviating from the time schedule. The universal concept of fairness has with clarity been enunciated in the words of Mr. Justice Frankfurter in Vitardli v. Seaton, as reported in (1959) 359 US 535: 3 Law Ed (Second Series) 1012, where the learned Judge said: An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword. [Extracted from G.J. Fernandez (supra)] 23. Even after considering that universal rule, G.J. Fernandez (supra) did not interfere with the deviation as alleged therein on the ground that only to ensure immunity from the competition, the Court should not interfere with the administrative decision provided it is shown that the decision has not generated discrimination or arbitrariness. The rule of proportionality is thus pressed for balancing the administrative action adjusting Article 14 of Constitution. In India, administrative action conflicting fundamental freedoms has always been tested on the anvil of 'proportionality' even though it has not been expressly so stated. The rule of proportionality is thus pressed for balancing the administrative action adjusting Article 14 of Constitution. In India, administrative action conflicting fundamental freedoms has always been tested on the anvil of 'proportionality' even though it has not been expressly so stated. There is catena of cases where proportionality of administrative action affecting rights under Article 19(1) or Article 21 has been tested as a primary reviewing authority and not on the basis of Wednesbury principles. Administrative action when is attacked as discriminatory under Article 14, the Courts are to consider correctness of the level of discrimination applied and whether it has a nexus with the objective intended to be achieved. Here the Court deals with the merits of balancing administrative action, in essence, applying 'proportionality' as the primary reviewing principle. 24. In the case at hand, the FCI-respondents admittedly deviated from the procedure as prescribed in the Tender Notice and considered acceptance of the delayed tender parcel of the respondent No. 5 without any notice of such extension to the intending tenderer and according to them, they had done so in exercise of the authority granted by the said clause 25.10 of the Storage and Contract Manual of the FCI. This deviation has no doubt deprived the petitioner in writ petition being W.P.(C) No. 6452/2011 from taking part in the tender process inasmuch as his claim of being impeded by a traffic jam in depositing the tender form in time has got support from the averments of respondent No. 5 in para No. 5 of the affidavit-in-opposition filed in W.P.(C) No. 5507/2011. Moreover, the CVC guidelines as reproduced categorically provides that in no occasion there should be any modification in the basic rules and frame work governing the tender process, if it is required to be done under any circumstance, the process should invariably be scrapped and a fresh process should be restarted. The purpose is obvious that no malpractice or bias should grind the root of sanctity of the tender process and should not make any room for unhealthy speculation or corruption. 25. This Court is of the opinion that the writ petitioner in W.P. (C) No. 5507/2011 did not suffer any prejudice for the relaxation or for extension of time of depositing the 'delayed' tender. He has been affected in the sense that he would otherwise have no competitor or one competitor less. 25. This Court is of the opinion that the writ petitioner in W.P. (C) No. 5507/2011 did not suffer any prejudice for the relaxation or for extension of time of depositing the 'delayed' tender. He has been affected in the sense that he would otherwise have no competitor or one competitor less. In view of the ratio as expounded in G.J. Fernandez (supra), this writ petition being W.P.(C) No. 5507/2011 is hereby dismissed. 26. The said deviation has occasioned denial of an indefeasible right of the writ petitioner in W.P. (C) No. 6452/2011 inasmuch as the provisions of clause 25.10 of the Storage and Contract Manual of the FCI having not been circulated in public and not mentioned in the tender notice, the deviation from the time schedule has caused discrimination against the said writ petitioner. If the FCI-respondents were rigorously holding to the standards of the tender process, this situation would not have been created. For the deviation without any notice has definitely taken away the valuable right of the petitioner as he purchased the tender form and claimed to have approached for the office but for the traffic jam he could not deposit the filled in tender form within the prescribed time i.e. 1:00 PM. Mr. K. Agarwal, learned counsel for the writ petitioner in W.P. (C) No. 6452/2011 has rightly contended that if the extension of time had in any manner been notified to the petitioner, he could have deposited his tender-parcel within time for the 'delayed tenders'. Since no attempt was taken by the FCI-respondents to communicate any persons, who purchased the tender forms, it can be assumed that the deviation has only been made to benefit one tenderer only. Such action had generated serious discrimination against the writ petitioner in W.P.(C) No. 6452/2011 inasmuch as the said writ petitioner had no occasion to get constructive knowledge of provision for the 'delayed tenders'. All have been done surreptitiously, opposed to the fair play in the joints. As such, I find sufficient force in the submission of Mr. K. Agarwal, learned counsel for the said writ petitioner. 27. Since, the Technical Bid had already been opened at 2:00 PM on 24.10.2011, there is no question of allowing the writ petitioner of W.P. (C) No. 6452/2011 participate in the said tender process. As such, I find sufficient force in the submission of Mr. K. Agarwal, learned counsel for the said writ petitioner. 27. Since, the Technical Bid had already been opened at 2:00 PM on 24.10.2011, there is no question of allowing the writ petitioner of W.P. (C) No. 6452/2011 participate in the said tender process. Accordingly, this Court is not inclined to issue a mandamus for accepting the tender of the said writ petitioner by further extending the time to obviate the discrimination as stated. 28. The cumulative effect of such observation and finding leads to an irresistible conclusion that the entire tender process has to be scrapped and a fresh tender process shall have to be taken up by the FCI-respondents. 29. Accordingly, the entire tender process as initiated vide Tender Notice No. S&C/1423/Assam/11/Pt., dated 30.092011 is hereby quashed with a direction to the respondents to start a fresh tender process within 1(one) month from the date of receipt of the certified copy of this order and to settle the same within a period of 2 (two) months thereafter. With this observations and direction the writ petition being W.P. (C) No. 6452 of 2011 is allowed. Return the records as produced by the learned Standing Counsel for the Food Corporation of India forthwith. No order as to costs. Petition allowed.