JUDGMENT 1. The parties to both these petitions are the same and they are also arrayed in the same rank. The issue in both these petitions pertains to the bids invited through tender for the purpose of renovation of the first and second floor of the Assembly Hall of the Vidhana Soudha at Bangalore. In the first round of the litigation the parties were before the Appellate Authority and the order dated 22.01.2013 (stated as 24.01.2013 in prayer) passed by the Appellate Authority is assailed in W.P.No.9423/2013. The petitioner has also sought for mandamus to direct the respondents No.1 to 4 to open the financial bid of the petitioner. The re-tender notification as at Annexure-G is also assailed therein. During the pendency of the petition, the petitioner and the fifth respondent had responded to the re-tender notification and the technical bid of the petitioner was rejected once again. Accordingly, the order dated 13.03.2013 rejecting the technical bid of the petitioner is assailed in W.P.No.12868/2013. The petitioner is also seeking a direction therein to respondents No.1 to 4 to open the financial bid of the petitioner. 2. The sequence of the events leading to these petitions would disclose that at the first instance, the Technical Scrutiny Committee ('TSC' for short) by its proceedings dated 17.10.2012 had recommended the bid submitted by the fifth respondent as being technically qualified for further consideration. Since the same indicated that the bid of the petitioner after technical evaluation would not arise for further consideration, the petitioner had filed an appeal before the Appellate Authority under Section 16 of the Karnataka Transparency in Public Procurements Act, 1999 ('the KTPP Act' for short). The Appellate Authority by its order dated 22.11.2012 directed that the technical bid of the petitioner be accepted and take a decision based on the financial bid of the parties. The fifth respondent herein claiming to be aggrieved by the said order was before this Court in W.P.No.47742/2012 (GM-TEN). The said petition was disposed of on 11.12.2012 whereby the order dated 22.11.2012 passed by the Appellate Authority was set aside and a fresh consideration was directed by providing opportunity to amend the appeal memo. The parties were directed to maintain status-quo till the appeal was considered. 3. The said petition was disposed of on 11.12.2012 whereby the order dated 22.11.2012 passed by the Appellate Authority was set aside and a fresh consideration was directed by providing opportunity to amend the appeal memo. The parties were directed to maintain status-quo till the appeal was considered. 3. Pursuant thereto, the Appellate Authority had reconsidered the matter and by the order dated 22.01.2013 though had observed that the appeal is not maintainable had proceeded to consider the merits of the rival contentions and had opined that it would be in public interest to go for fresh tender in order to ensure receipt of proper competitive bids particularly when all the conditions of tender are not fulfilled by both the parties. In that view, the re-tender notification was issued. It is the said order of the Appellate Authority and the re-tender notification which is assailed in W.P.No.9423/2013. In the said petition, this Court while directing notice to the respondents on 25.02.2013 had granted the liberty to the petitioner to submit his bid without prejudice to the contentions raised in the petition. The petitioner had submitted his bid which was assessed by the TSC along with the bid of the fifth respondent and one other bidder and had accepted the technical bid of the fifth respondent alone, which has resulted in filing W.P.No.12868/2013. Though the petitioner had submitted his bid to the re-tender notification, it is in view of the leave granted by this Court without prejudice to his contentions, the contentions raised in both these petitions would have to be taken note for disposal and as such they are heard, considered together and disposed of by this common order. 4. Heard Sri Jayakumar S.Patil, learned senior counsel along with Sri Ajay kumar M, learned counsel for the petitioner, Sri D.N.Nanjunda Reddy, learned senior counsel along with Zulfikir Kumar Shafi, learned counsel for the respondent No.5 and Sri Jagadish Mundargi, learned Government Advocate for respondents No.1 to 4 and perused the petition papers. 5. 4. Heard Sri Jayakumar S.Patil, learned senior counsel along with Sri Ajay kumar M, learned counsel for the petitioner, Sri D.N.Nanjunda Reddy, learned senior counsel along with Zulfikir Kumar Shafi, learned counsel for the respondent No.5 and Sri Jagadish Mundargi, learned Government Advocate for respondents No.1 to 4 and perused the petition papers. 5. The contention on behalf of the petitioner with detailed reference to the proceedings of the tender evaluation made by the TSC on 17.10.2012 wherein the comparative analysis of the bids submitted by the petitioner and the fifth respondent was made is that the work of the fifth respondent that has been taken into consideration by the TSC to conclude that the fifth respondent has satisfied the conditions is not sustainable inasmuch as the said work was not carried out and concluded during the year 2011-12. If the work of the fifth respondent in Suvarna Soudha Building at Belgaum is excluded for the said reason, the fifth respondent would not satisfy the requirement of the tender conditions. Even otherwise, despite taking that work into consideration, the fifth respondent had not satisfied the requirement relating to spray painting but the Superintending Engineer has thereafter interpreted the work relating to spray painting and has thereafter held the said condition to be satisfied. But, the same benefit has not been extended to the petitioner. Therefore, the very nature of the assessment made is arbitrary and discriminatory. The fact that the petitioner and the fifth respondent were of the same status had been accepted by the Appellate Authority but instead of directing reconsideration, re-tender was ordered in public interest. The manner in which certain requirements have been altered in the re-tender notification would clearly disclose the malafide intention of the Tender Inviting Authority ('TIA' for short) since it has been tailor-made to suit the convenience of the fifth respondent by deleting such of the work which had not been satisfactorily undertaken by the fifth respondent as had been noticed by the TSC in the first round of scrutiny. It is for the specific reason that the word 'reupholstered' has been altered only to 'upholstered' and the words 'spray painting' is given up to indicate only 'painting'. It is for the specific reason that the word 'reupholstered' has been altered only to 'upholstered' and the words 'spray painting' is given up to indicate only 'painting'. It is therefore contended that the fifth respondent has been favoured at every stage and the work performed in Suvarna Soudha has been made as the basis so as to avoid competition in the award of tender and to keep out new entrants to carry out the work of respondents No.1 to 4. It is pointed out that though it is the domain of the TIA to fix the pre-requisite conditions, the Courts would certainly interfere when it is found to be unreasonable, arbitrary and discriminatory. The decision in the case of M/s.Sanjay Marketing and Publicity Services VS. State of Karnataka and Others (WA Nos. 286-287/2012 disposed of on 17.04.2012) is relied on. 6. The learned senior counsel for the fifth respondent would however seek to justify the action of the respondents both with regard to the proceedings dated 17.10.2012 and also the acceptance of the technical bid of the fifth respondent after the re-tender was made. It is contended that the contract period of the work in Suvarna Soudha was for 2011-12 as well and the work done certificate dated 06.09.2012 is referred to indicate the volume of upholstery work that was performed. It is contended that the Superintending Engineer has rightly taken into consideration that spray painting is only a method of painting and therefore the total volume of painting work undertaken was taken into consideration. In that view, the TSC was justified in accepting that the fifth respondent had satisfied the conditions. It is pointed out that even the re-upholstery work which had been undertaken by the petitioner is not by use of leather and it therefore did not satisfy the requirement. While re-tendering, the respondents had kept in view the nature of the painting work that was to be carried out as a pre-requirement and also the upholstery work, which was appropriately indicated and not with any other intention. While re-tendering, the respondents had kept in view the nature of the painting work that was to be carried out as a pre-requirement and also the upholstery work, which was appropriately indicated and not with any other intention. The learned senior counsel has relied on the decision in the case of Michigan Rubber (India) Ltd vs. State of Karnataka and Others [ (2012) 8 SCC 216 ] to contend that it is for the TIA to formulate the conditions of a tender document and awarding a contract and greater latitude is required to be conceded to the State authorities. Unless it is found to be malicious and a misuse of statutory powers, the interference of the Court is not warranted. The decision in the case of Directorate of Education and Others -vs- Educomp Datamatics Limited and Others [ (2004) 4 SCC 19 ] is relied upon to point out that the judicial review is permissible only when the eligibility criteria is arbitrary, discriminative or there is bias and not because the Court feels that some other terms would have been more preferable. It is therefore contended that the fifth respondent having satisfied the requirement and being the successful bidder is entitled to carryout the work. 7. In the light of the rival contentions, as already noticed, though the petitioner has participated in the re- tender process, the assessment made by the TSC on 17.10.2012 will also arise for consideration since the right of assailing the same had been reserved. Since the second of the above petitions noticed above has been filed before this Court and even though at the first instance the parties were before the Appellate Authority, it is to be noticed that the Appellate Authority has held the appeal as not maintainable since the cause of action for the appeal had not arisen in the circumstance where only the technical evaluation was made. Further, the contentions urged in the second petition is also to be kept in view and a conclusion on all aspects would have to be arrived at. 8. Further, the contentions urged in the second petition is also to be kept in view and a conclusion on all aspects would have to be arrived at. 8. In that view, what is necessarily to be noticed is as to whether in the instant facts, the prequalification requirement of the fifth respondent relating to the work performed in Suvarna Soudha at Belgaum could be considered as within the period 2007-08 to 201112 and whether the consideration of that work for the purpose of technical evaluation has given unfair advantage to the fifth respondent and thereby affected the right of the petitioner to be considered and in that circumstance, whether it has become discriminatory. Further, the question is also as to whether the change in the requirement criteria made while re-tendering would indicate bias of the authorities in favour of the fifth respondent. 9. From the evaluation which has been made vide the proceedings dated 17.10.2012 on which reliance has been placed by the learned senior counsel appearing for both the parties, it is seen that the petitioner is a Class-I PWD Interiors Contractor while the fifth respondent is a Class-I PWD Contractor and both of them have satisfied the condition relating to the financial turnover for the last two financial years prior to consideration and have satisfactorily completed work to the value of not less than Rs.403.20 lakhs. The further assessment has been with regard to the work executed in any one year as against the minimum quantity of work which has been considered therein. It is in that regard, the petitioner is held to have 'not satisfied' the criteria relating to fixing of Carpet, supply of the required number of leather upholstered sofa set, the providing of reupholster of leather to the number of seats of sofa and chairs, providing spray painting for the area indicated as also the melamine polishing of the area indicated. One other condition which is stated to have not been satisfied by the petitioner is of not owning 50% of the scaffolding materials. One other condition which is stated to have not been satisfied by the petitioner is of not owning 50% of the scaffolding materials. As against the said pre-requirement criteria which is stated to be 'not satisfied' by the petitioner, the work performed by the fifth respondent which has been indicated therein which has enabled the TSC to come to the conclusion that the fifth respondent had 'satisfied' the condition is due to the execution of work during the period 2011-12 relating to Suvarna Soudha in all other respects except the spray painting which has been undertaken in the year 2010-11 relating to TTMC at Bannerghatta. In that regard, the reference to texture painting therein is lesser than the area that was provided as qualifying criteria but what has been taken into consideration is the other painting works and it has been stated that spray painting is only a method for painting. Therefore, the Superintending Engineer has said that the work undertaken would satisfy the requirement though the Executive Engineer had recorded otherwise. But similar consideration has not been made in respect of the petitioner. Further, with regard to the scaffolding material being owned, though the fifth respondent is held to have satisfied the said condition, what is also to be kept in view is the advantage of the earlier large volume of work which was undertaken in Suvarna Soudha which would enable such ownership. 10. If the above aspects are kept in view, it would clearly indicate that among the criteria which is said to have not been satisfied by the petitioner, the satisfaction thereof by the fifth respondent is only due to the work undertaken in Suvarna Soudha at Belgaum and the assessment does not refer to any of the other work which may have been performed by the fifth respondent during the earlier years or during the year 2011-12 for any other customer/procuring authority. In that view, if it is examined, though the fifth respondent has relied on the Work Done Certificate dated 06.09.2012, it would indicate that the work order in fact was dated 16.12.2011 and the quantity of work completed as on 31.03.2012 which would be relevant for the period 2011-12 would indicate that the work of the sofa chair double seater is 188 and single seater is 40 which does not constitute the leather upholster 416 seats taken into consideration by the TSC though together it would be more than 208 seats but the consideration does not appear to be in that regard. The same number of seats have been considered for reupholster seats also. As already noticed, with regard to the spray painting similar considerations has not been made. Due to the comments of the Superintending Engineer, the benefit is given to the fifth respondent. The respondents were required to make a similar consideration with regard to the petitioner also. Notwithstanding the same, what is also to be kept in view is whether the benefit of an ongoing contract could have been given to the fifth respondent. 11. Having noticed the said discrepancies and the manner of consideration as made, the consideration of these aspects by the Appellate Authority at the first instance has also to be kept in view though this Court had set-aside the order of the Appellate Authority dated 22.11.2012 on the ground that the fifth respondent herein had not been added as a party to the said appeal and had therefore directed re-consideration. The Appellate Authority had in fact taken into consideration the nature of work that had been carried out by the petitioner in different Government Offices, while the fifth respondent had undertaken the work only in Suvarna Soudha. Hence, keeping in view the financial implication and the capacity of the petitioner to perform such work in view of having satisfied the pre-qualification conditions at Rule No.27 and 28 of KTTP Rules and finding that both the petitioner and the fifth respondent were almost similarly placed had directed that the technical bid of the petitioner also be accepted and the financial bid be placed before the Tender Accepting Authority ('TAA' for short). The said consideration in my opinion would have to be kept in perspective since the said order has been set aside only for the reason of non-joinder of parties. The said consideration in my opinion would have to be kept in perspective since the said order has been set aside only for the reason of non-joinder of parties. If this is taken into consideration and the subsequent order of the Appellate Authority dated 22.01.2013 is perused, the Appellate Authority has once again found the unfair advantage gained by the fifth respondent due to one recent work which had been performed in Suvarna Soudha and still some conditions were not satisfied by the fifth respondent. Further, taking note of the fact that the fifth respondent had quoted the amount which was around 23.6% higher than the original estimates had directed re-tendering in public interest. 12. Though the re-tendering has taken place, the alteration of conditions relating to upholster and painting certainly appears to be a change made to clarify the earlier effort that had been made by the respondents to explain the same and see that the condition had been satisfied by the fifth respondent. If the said modifications made in the eligibility criteria is taken note of, the same would benefit the fifth respondent with regard to the work undertaken by them in Suvarna Soudha as it was a fresh work and not renovation and the pre-qualification intended at the first instance was in that regard. Apart from the said work in Suvarna Soudha, the assessment of the work done by the fifth respondent in respect of any other establishment or organization or procuring authority if any, has not been a matter of consideration for assessing the satisfactory work having been undertaken by the fifth respondent. To take note of this aspect, if the impugned communication at Annexure-D in W.P.No.12868/2013 is taken into consideration, though a comparative analysis as at the first instance is not available, the indication therein that the petitioner has undertaken only two principle items out of five items and that the petitioner has not undertaken the three items referred therein and the further indication that the fifth respondent has undertaken the work of all principle items in view of the work having been done in Suvarna Soudha would disclose that it has been the same consideration once over again. 13. 13. If that be the position, the contention of the learned senior counsel for the fifth respondent that the grievance of the petitioner cannot be considered when admittedly, he has not satisfied the requirement cannot be accepted right away since the issue also is as to whether the fifth respondent has been given any undue advantage. If that is so, it would be discriminatory and this Court would be in a position to intervene even as per the view expressed in the decisions cited supra. In that light, what is necessary to be taken into consideration is that the e-procurement tender No.12067 was published on 05.09.2012. The certificate relied on by the fifth respondent is dated 06.09.2012 and that too, it is not a work completion certificate, but a work done certificate as on that date in respect of an ongoing project, the contract period of the same being 2011-12 and 2012-13 and the work order was issued on 16.12.2011 and the said work is also for the benefit of respondents No. 1 to 3 themselves but through its Belgaum Division. Though the nature of change with regard to upholstered being mentioned instead of reupholstered in the re-tender may not materially alter the situation inasmuch as the assessment ultimately is with regard to the capacity to carryout the interior work but the fact is also that re-upholster will relate to renovation and upholster to new work. Though the change appears to be innocuous, the manner in which the respondents have been adjusting to the suitability of the fifth respondent would show that there has been bias in their favour and they have been given some unfair advantage. The manner in which the advantage of an ongoing contract is given by fixing the pre-qualification in commensurate to the same will prevent competition to enable any other qualified contractor to take up such work. When competition is avoided on the technical front by such method, certainly the interest of the public funds will suffer as there would be no competition in the financial front before the L-1 Contractor is chosen. In the instant case, though having noticed the discrepancies, even if re-tender of the process is ordered, it would not serve the purpose, but an appropriate procedure is to be adopted as both are evenly poised. 14. In the instant case, though having noticed the discrepancies, even if re-tender of the process is ordered, it would not serve the purpose, but an appropriate procedure is to be adopted as both are evenly poised. 14. Therefore, taking all the above aspects into consideration, what is to be noticed is that, at the first instance, it was only the petitioner and the fifth respondent who had responded to the tender notification. On being re-tendered, though there was one more Contractor who has responded in addition to the petitioner and fifth respondent, the said Contractor has no grievance at this stage relating to rejection of their technical bid. That would leave only the petitioner and the fifth respondent in the field and both of them do not appear to be novices in the filed inasmuch as the petitioner is Class I PWD Interior Contractor, while the fifth respondent is a Class I PWD Contractor. Both their financial turnover and the completion of one work to the value of the required extent will show that they have the capability to undertake the work of the present nature though the work carried out in Suvarna Soudha is not renovation and the petitioner also has some requirements to be completed but since the work is not of any technical nature, both could be considered as qualified. If that be the position, the financial benefit that is derived to the State Exchequer without compromising on the quality of work is what matters in public interest when tax payers money is being spent and when it is not a private contract. Since both the petitions are considered together and the aspect relating to the technical qualification would be relatable to both the petitions and further, since both the parties have responded to the re-tender notification, it would be appropriate to consider the financial bid of both the petitioner and the fifth respondent received in response to the re-tender notification on treating both of them as technically qualified and thereafter complete the process. 15. For all the above said reasons, in the peculiar facts and circumstance of the case, I pass the following: ORDER i) The writ petitions in W.P.No.9423/2013 and W.P.No.12868/2013 are allowed in part. ii) The Tender Accepting Authority is directed to accept both the bids of the petitioner and the fifth respondent as technically qualified in the peculiar facts of these petitions. ii) The Tender Accepting Authority is directed to accept both the bids of the petitioner and the fifth respondent as technically qualified in the peculiar facts of these petitions. iii) The Tender Accepting Authority shall therefore evaluate the financial bid submitted by the petitioner and fifth respondent in response to the re-tender notification and finalise the same in accordance with law. iv) Parties to bear their own costs.