JUDGMENT (Hon’ble B.S. Verma, J.) Supplementary affidavit filed by petitioners and the supplementary counter affidavit filed by respondent No.5 are taken on record. 2. Learned counsel for the parties have agreed that this writ petition may be disposed of finally at the admission stage, since the pleadings have been exchanged. 3. By means of this petition the petitioners have sought the following relief:- 1- to issue a writ in the nature of certiorari quashing the office memorandum dated 11.11.2011 issued by respondent No.2 disqualifying the petitioner in bidding proceedings (Annexure No.13 to the writ petition). 2- to issue an appropriate writ order or direction quashing the approval granted by respondent No.2 in favour of respondent No.5 (L-2) on the basis of impugned order dated 11.11.2011. 3- to issue a writ in the nature of mandamus commanding the respondent Nos. 1 to 4 to award the contract for Integrated Solid Waste Management in Build, Operate and Transfer Mode (BOT) at Haridwar to petitioner as it was declared to be the lowest bidder (L-1). 4- issue any other writ, order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case. 5- Award the cost of the writ petition. 4. Briefly stated the facts, giving rise to this writ petition, according to the petitioners are that petitioner No.1 is the lead member of a consortium comprising of vasundhara Paryavaranvadi Bahuuddeshiya Sevabhavi Sanstha and Ajinkya Biofert and is engaged in the field of integrated solid waste management and is successfully executing projects of integrated solid waste management in the different parts of the country either singularly or jointly in form of consortium. 5. Nagar Palika Parishad, Haridwar had issued a request for qualification (hereinafter referred to as ‘RFQ’) due on 16-3-2011 for integrated solid waste management in Build, Operate and Transfer mode (hereinafter referred to as ‘BOT’). The relevant extracts of the RFQ documents has been annexed as Annexure No.1 to the writ petition. The petitioner No.1 purchased the RFQ documents on payment of requisite cost. As per clause 4.1(b) of RFQ the bidders were required to submit a certificate showing inter-alia the size of the project in terms of quantity of waste collected as criteria for past experience. The petitioner No.1 purchased the RFQ documents on payment of requisite cost. As per clause 4.1(b) of RFQ the bidders were required to submit a certificate showing inter-alia the size of the project in terms of quantity of waste collected as criteria for past experience. Further clause 1.24.3 of the RFQ document provided that the technical capability of all the members of consortium having equity participation of at least 26% or more than 26% would be taken in to consideration. 6. Keeping in view the aforesaid clause, the consortium headed by petitioner No.1 submitted experience certificate of one of its members viz. Vasundhara Paryavaranvadi Bahuuddeshiya Sevabhavi Sanstha, which has experience of collection of solid waste to the tune of 240 MT per day within Latur Municipal Council, Latur, Maharashtra, copy of which has been annexed as Annexure No.2 to the writ petition. 7. It is further alleged that in all seven bidders participated at the RFQ stage and out of them six companies were pre-qualified which are as under:- (i) KRL infratech (India) Ltd. lead consortium (petitioner). (ii) AZZ infrastructure Ltd (respondent No.5). (iii) SPML-ISI Consortium (iv) Hanjer Biotech Energies Pvt. Ltd. (v) M/s Ramky Enviro Engineers Pvt. Ltd. (vi) Anthony Waste Management. 8. Thus, it was evident that the respondents had found all the documents including the experience certificate of the petitioner to be in order and in consonance with the RFQ requirement, therefore, they had pre-qualified the consortium. The second stage, i.e. Request for Proposal (financial bid) (hereinafter referred as RFP) was due for submission and opening on 20-6-2011. The petitioner No.1 also purchased the RFP, being already qualified. The RFP document was submitted and opened on 20-6-2011 at 2 p.m. and tender committee present found that the petitioner No.1 Led Consortium’s bid to be the lowest and as such it was declared to be L-1 on the same day. Out of six pre-qualified companies, four bidders had altogether participated in the RFP stage and respondent No.5 AZZ Infrastructure Ltd. was found to be L-2. The above facts are not disputed in the writ petition. 9. According to the petitioner the controversy arose when the Nagar Nigam Haridwar had approved the tender process and the L-1 bidder had sent the file to the Principal Secretary, Urban Development Department for his consent. The above facts are not disputed in the writ petition. 9. According to the petitioner the controversy arose when the Nagar Nigam Haridwar had approved the tender process and the L-1 bidder had sent the file to the Principal Secretary, Urban Development Department for his consent. The respondent No.2 Principal Secretary appears to have caste some doubt on the experience certificate submitted on behalf of the petitioner though the same considered by the tender committee and found in order. The petitioner received letter No. 948/IV(2)-Sa.Vi-11-27(JNNURM)/08 dated 27-7-2011 by which it was informed the petitioner that a meeting has been convened by Principal Secretary on 2-8-2011 and participate in the said meeting along with relevant documents regarding technical and financial bid. In the aforesaid meeting documents/credentials of the petitioner No.1 were shown along with respondent No.5 and by the impugned order dated 11.11.2011 doubting the experience certificate of the petitioner, the R.F.P. of respondent No.5, L-2 was approved after canceling the RFP of the petitioner. However, the petitioner had filed the experience certificate. Therefore this writ petition has been filed mainly on the ground that the Stage Government has no role to play in the tender at any stage either RFQ or RFP, and thus the impugned order is without jurisdiction. 10. Counter affidavits have been filed on behalf of the respondent Nos. 1 and 2, 3 and 5. The stand taken in the counter affidavit is that in the experience certificate dated 19-10-2010 submitted by petitioner company in RFQ process it has been stated that partner of consortium is doing the work of 240 MT/per day solid waste collection in Latur. The said certificate inspired doubts during the course of meeting held on 2-8-2011, therefore, the petitioner was directed to submit the original certificate but the petitioner company did not submit the original certificate on the contrary a new certificate dated 26-6-2011 was produced in which it was mentioned that M/s Vasundhara Paryavaranvadi Bahuuddeshiya Sevabhavi Sanstha, Madhu Mangal Nivas, Narayan Nagar Latur has been awarded work or door to door collection of transportation of solid waste to dumping ground and processing plant area arising in the city of Latur to the tune of 240 MT/daily, and this certificate no where stated that the partner of the consortium viz. M/S Vasundhara has experience of conducting the work of 240 MT per day solid waste collection only it has been given an award. It is further stated in the counter affidavit that after obtaining the datas from Latur it revealed that the population of Latur City at present is 3,82,754 and as per prescribed standard @ .45 kg per person the total solid waste in Latur comes to 172 MT/ per day, which goes to prove that earlier experience certificate submitted by petitioner during RFQ process was forged one and that is why the petitioner was required to submit the original experience certificate, which he failed to comply. 11. Heard learned counsel for the parties and perused the record. 12. Learned Senior Advocate appearing on behalf of the petitioner has contended that the State Government has no jurisdiction to pass the said order and drew attention of the court towards the document Annexure No.4, to the writ petition- Nagar Nigam Haridwar Disclaimer as well as document of Request For Proposal and has submitted that the Government Representatives may in their absolute discretion, but without being under and obligation to do so, update, amend or supplement the information in this RPF Document and in view of clause 1.27.3 of RPF document the Nagar Nigam Haridwar reserves the right to invite revised Financial Proposals from bidders with or without amendment of the RPF Document at any stage, without liability or any obligation for such invitation and without assigning any reason. Further as per clause 1.27.1 of RFP document the Nagar Nigam Haridwar reserves the right to accept or reject any or all of the proposals without assigning any reason and to take any measure as it may deem fit, including annulment of the bidding process, at any time prior to award of project, without liability or any obligation for such acceptance, rejection or annulment. 13. Secondly it was contended that the contract has been executed on the date of passing of the order by this Court and the interim order puts the clock back to the original position. 14. Learned Senior Advocate also contended that fresh experience certificate has been submitted by the petitioner and consequently the defect in the earlier certificate stand cured, but the State did not consider this aspect of the matter and passed the impugned order. 15. 14. Learned Senior Advocate also contended that fresh experience certificate has been submitted by the petitioner and consequently the defect in the earlier certificate stand cured, but the State did not consider this aspect of the matter and passed the impugned order. 15. It was further contended that the requirement of 240 MT was not mentioned in RFQ/RFP documents consequently the respondents cannot reject the petitioner’s documents on that ground. 16. It was further submitted that the impugned order and the procedure adopted by the respondents is illegal and arbitrary and even otherwise the State Government has invited other participants in the negotiation process, it is without jurisdiction since the sub rule(1) of rule-3 of Procurement Rules prohibits the private negotiations except with L-1. Learned counsel has relied on the judgment of Ram and Shyam company vs. State of Haryana and others, reported in AIR 1985 Supreme Court 1147 and the judgment of Mohinder Singh Gill vs. Chief Election Commissioner, New Delhi, reported in [1978] 1 SCC 405. 17. In the Mohinder Singh Gills’s case (supra) it has been held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. The Apex Court has drawn attention to the observations made in Gordhandas Bhanji case ( AIR 1952 SC 16 ) at p. 18)- that ‘public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are address and must be construed objectively with reference to the language used in the order itself. 18. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are address and must be construed objectively with reference to the language used in the order itself. 18. In the another cited case of Ram and Shyam Company (supra) it has been observed- ‘It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licenses or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences etc., must be confined and structured by rational, relevant and non-discriminatory standard or nor and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. 19. The learned Addl. C.S.C. appearing on behalf of the State has submitted that the minutes of the Committee regarding the solid waste management programme in district Dehradun ad Haridwar clearly mandates that the project has to be approved by the Urban Development Department and the project includes in its various stages and steps, starting from the issuance of Notice Inviting Tender till the conclusion of the work as evidence from the RFQ/RFP documents ,i.e. a Built, Operate and Transfer and all these three stages are components of project and consequently the State government has got every jurisdiction and authority to pass the order. The disclaimer made by Nagar Nigam in RFQ/RFP documents is for own safeguard where it empowers the state representatives even to amend, alter or rescind the said documents. 20. In reply to second contention of learned counsel for the petitioner, learned Addl. The disclaimer made by Nagar Nigam in RFQ/RFP documents is for own safeguard where it empowers the state representatives even to amend, alter or rescind the said documents. 20. In reply to second contention of learned counsel for the petitioner, learned Addl. C.S.C. has submitted that the execution of contract was to be performed by the Nagar Nigam Haridwar and as per the information prior to the passing of interim order on 1.12.2012 the contract was executed. 21. In reply to second contention of learned counsel for the petitioner, the learned Addl. C.S.C. has submitted that even otherwise the certificate prepared after filing the RFQ document, and not filed with RFQ document cannot be taken into consideration, consequently the fresh certificate produced by the petitioner is of no consequence. The petitioner has misrepresented before the authorities and it is well settled that the person making misrepresentation is not entitled for any relief. 22. In reply to third submission of learned counsel for the petitioner, the learned Addl. C.S.C. has submitted that no doubt that 240 MT was not a requirement but one the petitioner claimed itself to have the said capacity as per the certificate submitted by the petitioner, the petitioner ought to have proved the said statement by filing its own certificate which increased the test responsiveness of the petitioner, but the petitioner having applied in its individual capacity as an individual company, not as consortium, cannot take benefit of the certificate of M/s Vasundhara Society, which is a member of a consortium of which the petitioner No.1 is also a member and even the said certificate of M/s Vasundhara Society in its individual capacity and not as a capacity of a consortium, consequently the said certificate is of no help to the petitioner and this vital aspect which goes to the route of the matter. 23. 23. In reply to last submission of learned Senior Advocate that the impugned order and the procedure is illegal and arbitrary, has submitted that there has been no procedural illegality nor there has been any arbitrariness in passed the impugned order, the certificate of the petitioner raised suspicion and the petitioner was directed to clarify the same for which the only course open for the petitioner was to get the same certificate approved or to get a covering letter from the concerned authority establishing the proof of issuance of the said certificate, but the petitioner did not do so rather submitted a fresh certificate issued much after the date of submission of documents, submitted by the petitioner in pursuance of RFQ documents. In the Ram and Shyam Case private negotiations were made secretly with the private respondent after making false statement in the letter written by him while in the present case there is even no whisper, nor the same can be that the order dated 11-11-2011 has been passed on a secret negotiations and the judgment of Mohinder Singh Gill relates to election and is of no help to petitioner. 24. Having heard learned counsel for the parties considering above submissions, it is to be seen whether the State Government has the powers to pass the impugned office memorandum dated 11.11.2011 issued disqualifying the petitioner in bidding proceedings. Clause 1.24.2 of Bidding Procedure provides that before opening and evaluation of the technical proposals, bidders are expected to meet the pre-qualification given therein and bidders failing to meet these criteria or not submitting requisite proof for supporting pre-qualification criteria are liable to be rejected before the technical proposal level. At serial No.4 of the pre-qualification of the bidder was required to have at least three years experience in operating and managing Integrated Solid Waste Management or individual activities of solid waste management system such as collection, transportation, treatment, land filling etc. In the column of Reference Details the certificate has to be of Municipal Corporations or any other Urban Local Bodies. The certificate submitted by the petitioner was issued by Nagar Parishad Latur in the name of M/s vasundhara Paryavaranwadi Bahuuddheshiya Sevabhavi sanstha. In the column of Reference Details the certificate has to be of Municipal Corporations or any other Urban Local Bodies. The certificate submitted by the petitioner was issued by Nagar Parishad Latur in the name of M/s vasundhara Paryavaranwadi Bahuuddheshiya Sevabhavi sanstha. The petitioner’s case is that petitioner No.1 is the lead member of consortium comprising of M/s Vasundhara Paryavaranvadi Bahuuddeshiya Sevabhavi Sanstha, in whose favour the experience certificate has been issued and the criteria column consortium with 26% equity or more than 26% equity would be aggregated. Thus the argument of leavened Addl. C.S.C. that the certificate was not in individual capacity is not tenable. 25. So far as the experience certificate was not filed in original at the stage of RFQ, it was the satisfaction of Nagar Nigam Haridwar to have relied upon the said document and the Nagar Nigam Haridwar after being satisfied, had declared the petitioner to be L-1. In the said certificate the quantity of waste generated by M/s Vasundhara is given 240 tons per day. This court vide order dated 13.7.2012 has directed the Nagar igam to file the affidavit to the fact that how much quantity of solid waste has to be lifted on the basis of census of year 2001. The Nagar Nigam Haridwar filed certificate and mentioned therein that the project as per population for the year 2001 as per census is 175010 ad the waste generation is 442 gm/capita/day and the projected waste is 213 MT. 26. Learned counsel appearing on behalf of respondent No.5 Sri Ramji Srivastava has submitted that since a contractual relationship has been created between the respondent No.5 and the Nagar Nigam, therefore, the writ petition is not maintainable. Reliance has been placed on the Apex Court judgment- Jagdish Mandal Vs. State of Orissa and others reported in (2007) 14 S.C.C. 517. 27. In the cited judgment of Jagdish Mandal (supra) the Apex Court has held that a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:- i) whether the process adopted or decision made by the authority is mala fide or intended to favour someone. 27. In the cited judgment of Jagdish Mandal (supra) the Apex Court has held that a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:- i) whether the process adopted or decision made by the authority is mala fide or intended to favour someone. OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: ‘the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.’ ii) whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving black-listing or imposition of penal consequences on a tenderer/contractor or distribution of state largesse (allotment of sites/shops, grant of licenses, dealership and franchises) stand on a different footing as they may require a higher degree of fairness in action. The above submission of learned counsel for respondent No.5 is not tenable. As has been mentioned earlier it is admitted fact that the documents submitted by petitioner at the RFQ stage were found in order by Nagar Nigam, Haridwar and at the stage of financial bid the petitioner was declared as L-1 and the respondent No.5 was L-2. The Stage Government had no role to play in tender process and the Nagar Nigam had sent the matter to the State Governement for approval and the impugned order passed by the State Government is without jurisdiction. Further this court had passed interim order dated 1.12.2011 in the presence of counsel for nagar Nigam and notice of the writ petition was accepted by the counsel on behalf of Nagar Nigam therefore it was a duty of the counsel to inform the Nagar Nigam Haridwar and the concession agreement has been purposely executed on the date of passing of interim order in favour of respondent No.5 in order to defect the sole purpose of the interim order passed by this Court. Therefore the process adopted by the Nagar Nigam in awarding contract in favour of respondent No.5 is mala fide and it was done intentionally to favour the respondent No.5. Further the State Government has invited other participants in the negotiation process, it is without jurisdiction since the sub rule(1) of rule-3 of Procurement Rules prohibits the private negotiations except with L-1. Further the State Government has invited other participants in the negotiation process, it is without jurisdiction since the sub rule(1) of rule-3 of Procurement Rules prohibits the private negotiations except with L-1. Thus, the writ petition is maintainable under Article 226 of the Constituion of India and submission of learned counsel for respondent No.5 is not tenable. 28. So far as the power of State Government to approve the tender process is concerned, in Bidding Procedure nowhere the State Government has been empowered to play any role. Rather in clause 1.21.3 of the Bidding Procedure Nagar Palika Parishad Haridwar has been given exclusive power to reject any proposal, which reads as under:- ‘1.21.3 Nagar Palika Parishad Haridwar reserves the right to reject any proposal which in its opinion is non-responsive and no request for modification or withdrawal shall be entertain by Nagar Palika Parishad Haridwar in respect of such proposals.’ In clause 1.1.1 of the Bidding Procedure the Nagar Palika Parishad Haridwar has been empowered to invites detailed proposal from bidders who fulfils pre qualification criteria for build, operate and transfer of integrated solid waste management system at Haridwar. Clause 1.16.3 also provides that the bidder shall prepare one original of the documents comprising the proposal as described in clause 1.17, clearly marked ‘original’. In addition, the bidder shall made one copy of the proposal, clearly marked ‘copy’. In the event of any discrepancy between the original ad the copy, the original shall prevail. Further clause 1.26.2 empowers the Nagar Palika Parishad Haridwar reserves the right to invite revised technical proposals from bidders with or without amendment of the RFQ document at any stage, without liability or any obligation for such invitation and without assigning any reason. In the minutes of expenditure Finance Committee Meeting held under the Chairmanship of Principal secretary (Finance) on 26th March 2010 for approval of solid waste management projects in PPP mode, annexed with Annexure no.2 of the counter affidavit filed by Nagar Nigam, in clause(g) the Department of Urban Development was to ensure approval of the project from the appropriate competent authority in Government, but in the said minutes the State has not been mentioned as an authority to approve the bidding process. 29. 29. So far as the Government Representatives have been empowered in Disclaimer of Nagar Nagar Haridwar to exercise the discretion, to update, amend or supplement the information in RFP document, is concerned, no such amendment, supplement was made in the RFP Document and this clause does not mean that the Government Representatives has the power to approve or disapprove the tender process. 30. Therefore, the impugned order disqualifying the petitioner (L-1) from bidding process and awarding the work in favour of respondent No.5 (L-2), is without jurisdiction and is illegal, since the State Government has not power to play any role in the bidding process. 31. Since the State Government has no role to play in the tender process, the act of arbitrariness, irrationality and unreasonableness while passing the impugned order is not to be seen in the present case and the submissions of counsel for the parties and the case law cited on this point is not required to be discussed. 32. In view of discussion made above, the impugned order passed by the respondent No.2 is without jurisdiction and is liable to be set aside. The writ petition is allowed and the impugned order dated 11.11.2011 passed by respondent No.2 is hereby quashed. 33. However, the Nagar Nigam Haridwar is directed to take decision in the matter at its own level and award the work in favour of petitioner (L-1), within a period of two weeks from the date of production of certified copy of this order, after completing the necessary formalities.