JUDGMENT Justice Mansoor Ahmad Mir, A.C.J. By way of the present writ petition, the petitioner has questioned the rejection letter, dated 22nd January, 2014, (Annexure P­6), issued by respondent No.2, whereby the technical bid of the petitioner was rejected, and has also sought writ of mandamus commanding respondents No.1 and 2 to open the financial bid of the petitioner, with further prayer that any other relief, which the Court deems fit and proper, in the facts and circumstances of the case, may also be granted. 2. Facts of the case, in brief, are that a tender notice, dated 5.11.2013, (Annexure P-1), was issued by the Himachal Pradesh Public Works Department for the construction of a new OPD Block and Car Parking at Indira Gandhi Medical College (IGMC), Shimla. The persons/tenderers, eligible and interested to participate in the said tender process, were required to submit their tenders online. T7he petitioner, respondent No.3 and one Sai Engineering Foundation submitted their technical bids. On examination, the documents of the petitioner and Sai Engineering Foundation were not found in terms of the conditions stipulated in the tender notice, Annexure P-1. The petitioner was asked to submit certain documents, vide letter, dated 10th January, 2014, (Annexure P-2), issued by respondent No.2, to which the petitioner responded, vide letter dated 13th January, 2014, Annexure P-3. Respondent No.1, vide letter dated 10th January, 2014, Annexure P-4, also sought some clarifications from Maharishi Markandeshwar University, Solan qua the work done by the petitioner and response thereto is Annexure P-5. The petitioner submitted that without taking all these facts into account, the technical bid of the petitioner was rejected. It was further submitted that respondents No.1 and 2, while rejecting the technical bid of the petitioner, acted illegally and arbitrarily in order to shower favours upon respondent No.3. 3.The precise case of the petitioner is that respondent No.2, with malafide intentions, in breach of the procedure and principles of natural justice, rejected his technical bid, which act of respondent No.2 is colourable exercise of power. 4.All the respondents have filed replies. Respondents No.1 and 2 have specifically pleaded that the online tender process was made public to everybody and the terms and conditions required to be fulfilled were contained in the tender notice (Annexure P-1). 4.All the respondents have filed replies. Respondents No.1 and 2 have specifically pleaded that the online tender process was made public to everybody and the terms and conditions required to be fulfilled were contained in the tender notice (Annexure P-1). The documents submitted by the petitioner and by one Sai Engineering Foundation with their technical bids were not in accordance with the terms and conditions of the tender notice and as per the said tender notice, respondents No.1 and 2 were within their powers to reject such technical bids, but, instead of doing so, they afforded opportunity to the said tenderers to fulfil the requirements and make their stand clear, which they failed to do. 5.Respondents No.1 and 2 have specifically averred that the technical bid submitted by the petitioner was in breach of Condition Nos.19 and 28.2.b and also other conditions contained in the tender notice. It is also pleaded that the technical bid was submitted in the name and style of Namit Gupta (petitioner), while the documents enclosed with the technical bid were in the name of Vidya Infrastructure and Developers, 4-8, M.C. Complex, Near Mohan Park, Solan, H.P. Thus, it was pleaded that it is the petitioner who had participated in the tender process and not the Firm, namely, Vidya Infrastructure and Developers. 6.It is beaten law of the land that rejection of a technical bid or a financial bid is the prerogative of the competent Authority, who calls for the tenders and cannot be questioned by the Writ Court unless it is shown that the said Authority has exercised power arbitrarily, unreasonably and with malafide intention. No doubt, the person whose tender is rejected may question the decision making process, but he cannot question the decision so taken. 7.The Apex Court in series of judgments has held that calling for tenders/rejecting tenders is an administrative decision, which cannot be challenged in a writ petition, unless it falls within exceptions and Court should not interfere with the Government dealings. The Apex Court in M/s BECIL vs. Arraycom India Ltd. & Ors., 2009 AIR SCW 6532, has laid down some principles in this regard. It is apt to reproduce paragraph 15 of the said decision, which reads as under: “15. The Apex Court in M/s BECIL vs. Arraycom India Ltd. & Ors., 2009 AIR SCW 6532, has laid down some principles in this regard. It is apt to reproduce paragraph 15 of the said decision, which reads as under: “15. In administrative matters, the scope of judicial review is limited and the judiciary must exercise judicial restrain in such matters, as held by this Court in Tata Cellular vs. Union of India AIR 1996 SC 11 : (1994) 6 SCC 651 . Moreover, the view of Prasar Bharti also appears reasonable because Prasar Bharti has to pay the amount inclusive of sales tax, since there is no concessional forms. If Prasar Bharti has taken up one possible interpretation, the High Court should not have intervened. The scope of judicial review in administrative matters is limited.” 8. The Apex Court in another case reported in M/s Michigan Rubber (India) Ltd. Vs. State of Karnataka & Ors., 2012 AIR SCW 4727, held that State action can be put to judicial review only on the ground of reasonableness. It was also held that grant of contract and fixation of value of tender and formulation of tender conditions is not amenable to judicial review, except on the ground of arbitrariness and unreasonableness. It is apt to reproduce paragraph 19 of the said judgment, which reads as under: “19. From the above decisions, the following principles emerge: (a) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government.” 9.Again, in a recent decision of the Apex Court reported in M/s. Siemens Aktiengeselischaft & S. Ltd. Vs. DMRC Ltd. & Ors., 2014 AIR SCW 1249, it was held that what is to be examined by the Court in the matter of awarding of tender is the legality and regularity of the process leading to award of contract. It is apt to reproduce paragraphs No.17 and 18 of the said decision as under: “17. Principles governing judicial review of administrative decisions are now fairly well-settled by a long line of decisions rendered by this Court, since the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India and Ors. (1979) 3 SCC 489 : ( AIR 1979 SC 1628 ) which is one of the earliest cases in which this Court judicially reviewed the process of allotment of contracts by an instrumentality of the State and declared that such process was amenable to judicial review. Several subsequent decisions followed and applied the law to varied situations but among the latter decisions one that reviewed the law on the subject comprehensively was delivered by this Court in Tata Cellular’s case ( AIR 1996 SC 11 ) (supra) where this Court once again reiterated that judicial review would apply even to exercise of contractual powers by the Government and Government instrumentalities in order to prevent arbitrariness or favouritism. Having said that this Court noted the inherent limitations in the exercise of that power and declared that the State was free to protect its interest as the guardian of its finances. This Court held that there could be no infringement of Article 14 if the Government tried to get the best person or the best quotation for the right to choose cannot be considered to be an arbitrary power unless the power is exercised for any collateral purpose. The scope of judicial review, observed this Court, was confined to the following three distinct aspects: (i) Whether there was any illegality in the decision which would imply whether the decision making authority has understood correctly the decision making authority has understood correctly the law that regulates his decision making power and whether it has given effect to it; (ii) Whether there was any irrationality in the decision taken by the authority implying thereby whether the decision is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at the same; and (iii) whether there was any procedural impropriety committed by the decision making authority while arriving at the decision. 18. The principles governing judicial review were then formulated in the following words: (i) The modern trend points to judicial restraint in administrative action. (ii) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (iii) 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. (iv) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (v) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere. More often than not, such decisions are made qualitatively by experts. (v) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere. 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. (vi) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” 10.Now, coming to the facts of the present case, it is apt to reproduce Condition Nos.19 and 28.2.b contained in the tender notice (Annexure P-1) hereunder: “19. The Contractor shall submit list of works which are in hand (progress) in the following form:- Work Done Detail: In last five years Work Done Detail: In last five years with base year indicated in performs of schedule “F” Sr.6.10 Sr. No. Name of Work Name of office where work was completed Cost of completion Remarks (Indicate in %of completion of awarded components) Awarded amount CompletionAmount Work in hand detail Name ofWork Name andparticulars Amount of work completed Position of works in progress (indicate in % of completion of awarded components) Stipulated date of completion Remarks of Divn. Where work is being executed. Awarded amount Amount ofwork up to last running bill These statements should be countersigned by the Engineer in charge, not below the rank of an Executive Engineer or equivalent.” “28.2.b : Minimum Work done condition:- Minimum one similar work done of amount not less than 40% (forty percent) of the estimated cost (without Liquidated Damage or compensation) in last five years.” 11.The petitioner, in the first instance, did not supply the requisite documents, but tried to clarify his stand only after receiving the notice from the respondents. He was not required to do so. Notwithstanding the fact that the technical bid of the petitioner was liable to be rejected at the threshold as the same was not fulfilling the stipulations contained in the Conditions mentioned supra, respondent No.2 provided an opportunity to the petitioner to clarify his stand, which opportunity the petitioner failed to avail and despite that, he alleged that respondent No.2 has acted arbitrarily, unreasonably and with malafide intention, is not tenable. 12.The petitioner has alleged malafide against respondents No.1 and 2, but has not arrayed them as party in person. Therefore, the question of malafide cannot be determined. Even otherwise, it appears that respondent No.2, while passing the impugned order, has applied his mind with due care and it cannot be said that he has acted arbitrarily or unreasonably and with malafide intention. 13.Moreover, the documents, which were on the file, prima facie, appear to be relating to a Firm, namely, Vidya Infrastructure and Developers and not to Namit Gupta (petitioner herein). In this case, Namit Gupta participated in the tender process in his own name and not on behalf of the Firm. In case, he had participated in the process in the name of the Firm, then the technical bid should have been in the name of the Firm through Namit Gupta being its Proprietor or partner, as the case may be, which is not the case of the petitioner. Even otherwise, the documents on the file, which belong to the Firm, have been considered by the respondents/competent Authority and after consideration, the competent Authority came to the conclusion that the petitioner did not fulfil the criteria stipulated in the Conditions supra. The petitioner has not been able to show that the decision process, in any way, was wrong and thus also, cannot question the decision so taken. 14.The Apex Court in M/s. Siemens Aktiengeselischaft & S. Ltd. (supra) has also observed that the Court, in matters relating to award of contract, can examine the decision making process and not the decision. It is apt to reproduce paragraph 22 of the said decision as under: “22. There is no gainsaying that in any challenge to the award of contract before the High Court and so also before this court what is to be examined is the legality and regularity of the process leading to award of contract. What the Court has to constantly keep in mind is that it does not sit in appeal over the soundness of the decision. The Court can only examine whether the decision making process was fair, reasonable and transparent. What the Court has to constantly keep in mind is that it does not sit in appeal over the soundness of the decision. The Court can only examine whether the decision making process was fair, reasonable and transparent. In cases involving award of contracts, the Court ought to exercise judicial restraint where the decision is bona fide with no perceptible injury to public interest.” 15.In the facts of the case and as rightly pleaded by the respondents in their reply, since the technical bid submitted by the petitioner was rejected, the question of opening the financial bid does not arise. It does not lie in the mouth of the petitioner to pray for a writ commanding the respondents to open the financial bid of the petitioner. 16.Having said so, the writ petition merits dismissal and the same is dismissed, alongwith all the pending CMPs, if any. Interim directions, if any, also stand vacated.