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2015 DIGILAW 53 (JK)

G. M. Trading Co. v. State of J&K

2015-02-25

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : Ali Mohd. Magrey, J.:- 1. These two writ petitions concern the tendering process initiated by the official respondents pursuant to NIT No. 12 of 2014 dated 04.06.2014 for supply of various uniform items for use of the Police personnel in the State of Jammu and Kashmir. Writ petition, OWP No. 216/2015, has been filed by seven of the tenderers; whereas the writ petition, OWP No. 220/2015, has been filed by two other tenderers, challenging the decision dated 05.02.2015 of the Technical Evaluation Committee holding the petitioners to be non-responsive, and the Comparative Chart Report dated 06.02.2015 prepared by the State Level Purchase Committee (SLPC). In order to state the grievance of the petitioners in each of the two petitions in a crystalline manner, the backdrop facts need to be briefly stated. 2. The Director General of Police, J & K, respondent No. 2 in both these petitions, for and on behalf of the Governor of the Jammu and Kashmir, issued NIT No. 12 of 2014 dated 04.06.2014 inviting e-tenders from original manufactures or their authorised dealers having proper authorization of the manufacturer in that behalf for supply of certain uniform items indicated in the detailed SBD and BOQs. The download of NIT was scheduled to start on 05.06.2014 and it was provided that the tenders shall be submitted online on J & K State e-Procurement Portal before 1500 hours on 05.08.2014. It was further provided therein that the tenders, viz., the technical bids will be opened online on 07.08.2014 at 11.00 hours at Police Headquarters, Peerbagh, Srinagar. The detailed tender documents (SBD) with terms and conditions were made available on the State e-Procurement Portal mentioned therein. The aforesaid dates were subsequently extended. 3. In all 50 tenderers responded. The Technical and Evaluation Summary was uploaded on 21.10.2014 and the BOQ Comparative Chart Report was uploaded on 22.10.2014. Certain tenderers, feeling aggrieved of the technical evaluation summary and rejection of their technical bids filed writ petitions in the two wings of this Court. In view of the orders ultimately passed in those writ petitions, I feel it unnecessary to give the details of those writ petitions, except to say that the petitioners in the first of the present two writ petitions had been declared as responsive; whereas the petitioners in the second writ petition herein had been declared as non-responsive and, therefore, they filed OWP No. 1474/2014. Further, it is stated that the private respondents herein, too, had been declared as non-responsive in the evaluation of the technical bids. In fact, three of them, namely, M/s. R.L. Enterprises, M/s. Sahiba Enterprises and M/s. Bamba Handloom Industries, too, had filed a writ petition, OWP No. 1797/2014 wherein the official respondents filed their objections defending the rejection of their technical bids on the ground of shortcomings. 4. However, on 22.11.2014, the Court passed the following orders in one of the writ petitions, being OWP No. 1474/2014, titled M/s. Associated Business Corporation v. State of J & K, which had been filed by the petitioners in the writ petition, OWP No. 220/2015 herein; "1. Respondents, alive to genuineness of grievances set out in petition, have decided to revisit the issue. 2. It is pertinent to point out that petitioner was thrown out from competition after his technical bid was rejected and respondents proceeded to open price bid. 3. Once respondents have decided to revisit the issue as regards technical evaluation committee report and address petitioner's grievance by conducting technical evaluation afresh, the price bid(s) opened will be of no consequence. 4. In view of the decision to revisit the issue, petitioner and his other like aspirants including petitioners in OWP No. 1617/2014 titled New Alpine Traders & another versus State and others, who responded to contract and were earlier excluded from consideration, may get right to participate in tendering process and have their price bids opened and considered. 5. Copy of communication No. Legal/OWP/89/S/2014/64870-71 dated 27th December 2014, received by learned counsel for respondents, in this regard, is taken on record. 6. Needless to state that in the event petitioners in OWP No. 1474/2014 and OWPO No. 1617/2014 are not satisfied with the decision of the Committee proposed to be constituted to revisit the issue, they would be free to re-agitate the matter and disposal of petitions on hand shall not stand in their way Disposed of." Consequent upon passing of the aforesaid order, the other writ petitions both at Srinagar and at Jamrou were disposed of on the same lines. 5. Subsequent thereto, the official respondents are stated to have appointed a fresh Technical Evaluation Committee comprising Chief Accounts Officer; Dy. SP, CIV; Sub-Inspector (Provisions); and Senior Prosecuting Officer. Ultimately, the Technical Evaluation Summary was uploaded on 05.02.2015 and the BOQ Comparative Chart Report was uploaded on 06.02.2015. 5. Subsequent thereto, the official respondents are stated to have appointed a fresh Technical Evaluation Committee comprising Chief Accounts Officer; Dy. SP, CIV; Sub-Inspector (Provisions); and Senior Prosecuting Officer. Ultimately, the Technical Evaluation Summary was uploaded on 05.02.2015 and the BOQ Comparative Chart Report was uploaded on 06.02.2015. In the technical summary details, in the column "status", all the petitioners herein have been shown to have been rejected and the "Reason" column, reads "not considered by the SLPC". 6. Now, I proceed to state the case of writ petitioners in each of these two writ petitions, their specific grievance and the stand taken by the respondents in their objections. OWP No. 216/2015: 7. The grievance of the petitioners in this petition is that the aforesaid Committee has rejected their bids without any reason or justification, despite the fact that they had earlier been found to be the lowest tenderers after they had qualified the technical bids. Their case is that the official respondents because of their ulterior motives and vested interests have rejected the bids of the petitioners deliberately and willfully for showering undue benefit upon the tenderers who had quoted much higher rates than the petitioners but have been declared L1 now. This assertion is sought to be buttressed by the circumstance that in the earlier round of litigation, the official respondents filed an application dated 25.10.2014 seeking vacation of the interim order of stay dated 21.10.2014 passed by the Court in OWP No. 1474/2014. In acceptance of that application, the Court vide order dated 22.11.2014 modified its earlier order dated 21.10.2014 directing the respondents not to finalize the tendering process to the extent of items for which quotations had been submitted by the writ petitioners therein. It is averred that consequent to the aforesaid order, the official respondents were free to proceed with finalization of the tendering process in respect of rest of the items. It is further averred that none of the writ petitioners in the said writ petitions had offered their tenders with respect to the items tendered by the petitioners herein. According to the petitioners, since they had been declared responsive and they had tendered the lowest rates, the respondents were bound to place supply orders in respect to those items with them. But the respondents deliberately did not do so; instead they approached the Court and made a statement to reconsider the tenders. According to the petitioners, since they had been declared responsive and they had tendered the lowest rates, the respondents were bound to place supply orders in respect to those items with them. But the respondents deliberately did not do so; instead they approached the Court and made a statement to reconsider the tenders. This, according to the writ petitioners, was done by the official respondents for extraneous considerations and ulterior motives to confer undue benefit on the petitioners in that writ petition. The submission that the petitioners had offered the lowest rate is supported by a copy of the comparative statement of financial bid appended as annexure 'G' with the petition. It is further stated that, in any case, it was not open to the respondents to put the petitioners' tenders to fresh evaluation. 8. It may be mentioned here that the writ petition, OWP No. 216/2015, first came up for consideration before this Court during the last week on 10.02.2015. In its order passed on that date, this Court specifically observed that the disposal of the matter cannot book any delay on account of the fact that the tendered items were required for supply to the Police personnel. A short notice was, therefore, ordered to be issued only to the official respondents which was waived by Mr. R.A. Khan, learned AAG. The matter was ordered to be listed during this week for final disposal and the respondents were ordered to maintain status quo. As ordered, Mr. Khan has furnished copy of his response to the learned counsel for the petitioners. The original records have also been produced for perusal of the Court. The other writ petition, OWP No. 220/2015 first came up before this Court subsequently on 12.02.2015. Similar orders were passed therein and it was ordered to be listed alongwith OWP No. 216/2015. The matters have so been listed today. 9. The original records have also been produced for perusal of the Court. The other writ petition, OWP No. 220/2015 first came up before this Court subsequently on 12.02.2015. Similar orders were passed therein and it was ordered to be listed alongwith OWP No. 216/2015. The matters have so been listed today. 9. In their objections in response to OWP No. 216/2015, the official respondents have admitted that the order dated 22.11.2014 passed by the Court meant that the Department could go ahead with the process in respect of other items for which the petitioners had not submitted tenders, but the process came to be stalled once again on 22.11.2014 itself when some other tenderers approached the Court at Jammu and filed writ petition No. 1797/2014 wherein the Court passed an interim order dated 22.11.2014 directing the respondents not to finalize the tenders in respect of NIT of 2014. It is stated that in view of that direction, no further action in respect of finalization of tenders could be taken by the official respondents. It is further averred that the NIT in question had been issued for procurement of uniform and other items for the Jawans, but in view of the directions of the Court, the process came to a stand still. At the same time, while the respondents were hard pressed to procure the uniform for the Jawans, serious allegations were levelled by the petitioners regarding their ouster from the competition and inclusion of some firms in the financial comparative statement. Consequently, the respondents examined the matter in detail and a proposal was mooted to revisit the entire issue by conducting a fresh technical evaluation of all the bids. The submission and statement in this regard was accepted by the Court both at Srinagar and at Jammu and, consequently, the writ petitions were disposed of both at Srinagar and at Jammu wings of the Court by orders dated 30.12.2014 and 02.01.2015 respectively. It is submitted that, accordingly, a fresh technical evaluation committee was constituted which conducted an exhaustive analysis of the tenders submitted by the bidders to NIT 12 of 2014 and submitted a detailed report for consideration of the State Level Purchase Committee. It is submitted that, accordingly, a fresh technical evaluation committee was constituted which conducted an exhaustive analysis of the tenders submitted by the bidders to NIT 12 of 2014 and submitted a detailed report for consideration of the State Level Purchase Committee. It is averred that in terms of the decision of the respondents to conduct fresh technical evaluation of the tenders and the direction of the Court that the price bids opened will be of no consequence, the contention of the petitioners that their bids were approved and considered by the State Level Committee does not hold good. It is denied that the petitioners' tenders were deliberately and willfully rejected for showering undue benefit on any tendered. It is averred that during the fresh technical evaluation, the petitioners' tenders were found short of important and sensitive documents, details whereof are given in paragraph 7 at page 5 of the objections. It would be apt to mention the shortcomings found in their tenders hereunder: Petitioner No.Name of the bldderShortcoming(s) found 1M/s G.M. Trading Co.Vat clearance of native State not fumished 2M/s OCM India Ltd.Vat clearance not furnished 3M/s Lalani SubzafabVat clearance not furnished 4M/s S.S. Rubbers Pvt.Ltd.(i) Vat clearance certificate not furnished; (ii) Test report incomplete in some items 5M/s Mohini Woollen ProcessorsConditional tender regarding entry tax 6M/s Combat Boot Co.Attested copy of NTT not uploaded 7M/s Mittal Tax Fab Industries(i) Bidder not registered for item (Jacket); (ii) No SSI functional certificate provided It is further averred that the fresh technical evaluation was undertaken in strict conformity with the terms and conditions of the NIT 12/2014, based on meticulous evaluation of the documents. OWP No. 220/2015: 10. The specific case of the petitioners in this writ petition is that in terms of the tender document, they had uploaded the scanned copies of all the sensitive and non-sensitive documents, including the test reports, but the respondents have rejected their bids on the ground that they had not furnished original test reports. OWP No. 220/2015: 10. The specific case of the petitioners in this writ petition is that in terms of the tender document, they had uploaded the scanned copies of all the sensitive and non-sensitive documents, including the test reports, but the respondents have rejected their bids on the ground that they had not furnished original test reports. Their grievance is that once the respondents had made a statement before the Court in the petitioners' earlier writ petition that they were willing to revisit the technical evaluation committee report and address their grievance of the petitioners by conducting a fresh technical evaluation, and since the petitioners had duly uploaded the scanned copies of the test reports, it was not open to the respondents to reject their technical bid on the ground of non-submission of the originals of the test reports. Alternately, it is submitted that since the petitioners had substantially complied with the particular condition of the tender document, the respondents could deviate from and not insist upon strict literal compliance of the condition in question. 11. I have heard learned counsel for the parties, perused the records and considered the matter. 12. Mr. M.Y. Bhat, learned counsel for the petitioners in OWP No. 216/2015 took the Court through the factual statements made in the writ petition, the objections earlier filed by the official respondents in OWP No. 1474/2014 titled M/s. Associated Business Corporation v. State of J & K, and the objections filed by them in response to the present writ petition. The sum and substance of his submissions is this: that once the petitioners' tenders had been earlier found to be in conformity with the terms and conditions of the NIT and, therefore, responsive, there was no reason or justification for the new technical evaluation committee to have declared the same non-responsive. Referring to paragraph 7 of the objections, the learned counsel submitted that the shortcomings now stated to have been noticed in the petitioners' tenders were non-existent, inasmuch as the relevant clause of the NIT viz. clause 25, clearly said that the tenders were required to furnish authenticated copy of Sales Tax/VAT clearance certificates alongwith the tender offer or at the time of payments. clause 25, clearly said that the tenders were required to furnish authenticated copy of Sales Tax/VAT clearance certificates alongwith the tender offer or at the time of payments. Learned counsel submitted that since the relevant clause itself provided an option to furnish the VAT clearance certificates at the time of payments, non-furnishing thereof along with the tender could not be treated as a deficiency. He submitted that in fact the earlier technical evaluation committee, being conscious of the import of the relevant clause, did not treat it as a deficiency and, therefore declared the petitioners' tenders as responsive. According to the learned counsel, the respondents ousted the petitioners from the competition on extraneous considerations, with ulterior motives to confer undue benefit on the tenderers who had quoted much higher rates than the petitioners. He submitted that the decisions of the respondents are, therefore, rendered unreasonable and arbitrary. Additionally, referring to the objections filed by the official respondents in the earlier writ petition, OWP No. 1474/2014, learned counsel submitted that it was clearly stated in paragraph 6 thereof that the tenders of the three writ petitioners therein had been found short of the sensitive documents, but they have now been found to be in order and responsive. According to the learned counsel, this is a clear case of contradictory stands being taken by the respondents which substantiates the un-reasonableness and arbitrariness resorted to by the respondents. The learned counsel submitted that in two cover bid system, VAT clearance certificate is not required to be produced at the time of technical evaluation stage. 13. On the other hand, Mr. R.A. Khan, learned AAG, invited the attention of the Court to various clauses of the tender document and, in particular, clause 25 thereof, and submitted that, read as a whole, it would show that the tenderers were required to furnish authenticated copy of Sales Tax/VAT clearance certificates alongwith the tender offer. He submitted that the tender document clearly mentioned and enlisted the sensitive documents which mandatory had to be part of the technical bid. He submitted that the said list at serial No. 5 thereof clearly mentioned "VAT clearance" as one of the sensitive documents to be part of technical bid. As regards the contradictory results of technical evaluation committee and stands taken by the respondents, Mr. He submitted that the said list at serial No. 5 thereof clearly mentioned "VAT clearance" as one of the sensitive documents to be part of technical bid. As regards the contradictory results of technical evaluation committee and stands taken by the respondents, Mr. Khan submitted that the proposal to revisit the technical evaluation was made on the basis of the allegations levelled in the writ petitions, which was duly permitted by the Court. The new technical evaluation committee re-examined the tender documents of the tendered and submitted its report to the State Level Purchase Committee. He submitted that the report so made by the fresh technical evaluation committee is based on the material available on the record, therefore, it cannot be said that the respondents have resorted to any arbitrariness in the process of decision making. Mr. Khan submitted that since the Court by its order dated 30.12.2014 permitted the respondents to revisit the issue as regards technical evaluation committee report, reliance placed by the petitioners on the earlier technical evaluation report or the comparative statement based thereon is inconsequential. The learned Additional Advocate General submitted that in contract matters, the Court would not go to the merits of decision taken by the respondents; the review is limited to the process of decision making and that, in the instant case, the respondents have conducted the tendering process in a fairest manner. Therefore, the writ petition is liable to be dismissed. Mr. Khan, in this connection, has cited and relied upon certain decisions of the Supreme Court as would be referred to hereinafter. 14. A bare perusal of the Court order dated 22.11.2014 passed in OWP No. 1474/2014, titled M/s. Associated Business Corporation v. State of J & K, would make two things axiomatic: first that the official respondents were permitted to revisit the issue as regarded the technical evaluation committee report; and second, that the price bid(s) opened were ordered to be inconsequential. As a necessary corollary, the earlier report of the technical evaluation committee, too, was rendered inconsequential and the official responder is were required to have a denovo technical evaluation of technical bids and proceed in the matter, depending upon the result thereof. The aforesaid order of the Court has attained finality. It has not been challenged by any of the writ petitioners. The aforesaid order of the Court has attained finality. It has not been challenged by any of the writ petitioners. True, they were not impleaded as respondents in that writ petition, but that fact would not bar them from seeking review thereof or to challenge the same in appeal, if they were aggrieved thereof. Now that the order has attained finality, the matters settled thereby cannot be allowed to be reopened in the present writ petition. 15. It is not the case of the petitioners that they had furnished the authenticated copies of the Sales Tax/VAT clearance certificates for the year 2012-13 or a year earlier to that. Their plea is that, as per clause 25 of the tender document, the same could be produced even at the time of payments. The relevant clause of the tender reads as under: "25. The tendered is required to furnish an authenticated copy of Sales Tax/VAT clearance certificates (alongwith the tender offer or at the time of payments) for the year 2012-13 or a year earlier. The PHQ shall be at liberty to put to scrutiny, verification etc. the Sales Tax/VAT clearances furnished by the successful tendered." The aforesaid clause of the tender document is comprised of two parts. At first blush of the parenthetical clause contained in the first part thereof one is tempted to feel that a tendered had been given the discretion about the stage of furnishing of the requisite certificates, but a closer look on the provision, read as a whole, makes it abundantly clear that such certificates were required to be furnished alongwith the tender offer. If that were not so, the second part of the clause, whereby the tendering authority had reserved to itself the right to scrutinize and verify the VAT clearance certificates so furnished by a tendered, would be rendered inconsequential. The scrutiny and verification of the VAT clearance certificates would not be left by the respondents to a date when the supplies would have been made, the contract would have been executed and only payments would have to be made. After all, the Government is the guardian of the finances of the State and the respondents were expected to protect the financial interests of the State. Before entering into any business relationship, they would ensue that the person concerned was not a tax evader. After all, the Government is the guardian of the finances of the State and the respondents were expected to protect the financial interests of the State. Before entering into any business relationship, they would ensue that the person concerned was not a tax evader. This could be done only when the requisite certificates had been furnished alongwith the tender offer. Therefore, the relevant clause of the tender cannot be read in the manner as is sought to be put by the learned counsel for the petitioners. The fact that the tenderers were mandatory required to furnish these certificates alongwith the tender offer is further established by the details of the sensitive documents which the respondents had specified in the tender to form part of technical bid. The relevant part of the tender is reproduced hereunder: S.No.Sensitive documents part of technical bidNon-sensitive documents 1.Vaild registration certificate/industrial license of original manufacturer for the items quotedPerformance statement of two years 2.Vaild authorization letter of original manufacturer in case of approved dealerGovt. supply orders for same, if any. 3.Valid registration certificate of approved dealer with central/state sales tax department for the items quoted.Income tax clearance 4.Test report, if requlred 5.Vat clearance 6.SSI unit-registration certificate (local SSI unit of) J & K State only) 7.SSI unit – functional certificate (local SSI units of J & k State only) 8.Scanned copies of EMD and Tender fee 9.Scanned copy of NIT duly signed & sealed. 16. It is otherwise within the competence of the tendering authority to give effect to the terms and conditions of the tender document commensurate with the object thereof. The tendering authority is the best judge in that regard and the Court can neither alter any term or condition of the tender nor interpret the same in a manner substituting its own opinion thereon. The expertise in that regard lies with the tendering authority and the object of the terms and conditions is also best known to the tendering authority. This Court has a very limited role in this regard. It is settled law that there are inherent limitations in exercise of power of judicial review. The score of judicial review in matters relating to award of contracts by the State and its instrumentalities has been settled by a long chain of decisions of the Supreme Court. This Court has a very limited role in this regard. It is settled law that there are inherent limitations in exercise of power of judicial review. The score of judicial review in matters relating to award of contracts by the State and its instrumentalities has been settled by a long chain of decisions of the Supreme Court. These decisions clearly lay down that in regard to allotment of contracts, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. The bidders participating in the tender process cannot, therefore, insist that their tenders should be accepted simply because a given tender is the highest or lowest. All that participating tenderers are entitled to is a fair, equal and non discriminatory treatment the matter of evaluation of their tenders. It is also settled that award of a contract is essentially a commercial transaction which must be determined on the basis of considerations that are relevant to such commercial decision, and this implies that terms subject to which tenders are invited are not open to judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular tendered or class of tenderers. The Supreme Court in Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 , after a comprehensive review of its earlier decisions, summed up the legal position and the principles of law governing the subject in the following words: "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." The aforesaid principles of law evolved over the years, have been reiterated by the Supreme Court in its latest decision in MAA Binda Express Carrier v. North-East Frontier Railway, (2014) 3 SCC 760 . 17. Coming back to the case of the petitioners, since they did not furnish the VAT clearance certificates alongwith the tender offers, as required of them in terms of the tender, they cannot raise any grievance about the action of the respondents to have rejected their technical bids, being non-responsive. No unreasonableness or arbitrariness is established, nor can any such thing be read in the decision making process undertaken by the respondents. 18. Since the petitioners had not complied with the terms of the tender, it is none of their concern or business to raise a grouse against the acceptance of the bids of the private respondents on any ground, whatsoever. Nonetheless, this Court has minutely perused the original records containing the print outs of the documents those had been uploaded by these tenderers. It is seen therefrom that these private respondents had uploaded the requisite documents and the official respondents had, in fact, taken out print outs thereof which were very much placed on the relevant files. Nonetheless, this Court has minutely perused the original records containing the print outs of the documents those had been uploaded by these tenderers. It is seen therefrom that these private respondents had uploaded the requisite documents and the official respondents had, in fact, taken out print outs thereof which were very much placed on the relevant files. Not only that, it is borne out from a naked look thereon that these documents contain the original page numbers which had been given thereon by the tenderers, since there was a requirement in terms of clause 4 of the tender that scanned copy of each page of the tender document duly completed and signed was uploaded with the tender offers in a sequential manner and not haphazardly. In that view of the matter, the grievance of the petitioners against the acceptance of the technical bids of the private respondents is unfounded and, consequently, they cannot claim that the respondents had resorted to any discrimination, unfairness, unreasonableness or arbitrariness in the tendering process. 19. It may also be observed here that the petitioners have not alleged any mala fides against the respondents, nor have they furnished any particulars in that regard. Further, public interest cannot only be viewed through the prism of rates offered a tendered. There are varied factors to be taken into account by a tendering authority, which would include responsiveness of a tendered to the essentials of a tender notice pertaining to ascertainment of information and attainment of satisfaction by the tendering authority that a tendered is not a tax evader. The Government and its functionaries, in tune with the interest of public at large, may not enter into commercial transaction with a person who evades information in this regard; though he may be ready to offer rates much lower than the other tenderers whose tenders are otherwise responsive. The petitioners having failed to prove their credentials in this regard as required of them by the tender cannot clamour discrimination now. 20. Now, coming to the other writ petition, OWP No. 220/2015, in that case, the petitioners did not furnish the original test reports along with the EMD and tender fee manually. This was a condition of the tender which read as under: "vii. 20. Now, coming to the other writ petition, OWP No. 220/2015, in that case, the petitioners did not furnish the original test reports along with the EMD and tender fee manually. This was a condition of the tender which read as under: "vii. Scan copy of test report shall be uploaded (original test report shall also be furnished along with EMD and Tender fee manually) duly typed (having no overwriting, cutting alteration), signed, stamped and sealed by the authorised signatory with full name, address, phone/fax No., designation of the authorised signatory. The issue date of latest test report shall not be older than the date of issue of this tender enquiry. It should be free from any ambiguity." It is not in dispute that the petitioners in this writ petition did not manually furnish the original test reports, as required in terms of the above clause of the tender. Mr. Qayoom, learned counsel, submitted that since the petitioners had uploaded the requisite test reports, there was a substantial compliance with the condition and, the failure on the part of the petitioners to manually submit the originals thereof would, at best, constitute a minor deviation which could be waived. To buttress his argument, the learned counsel cited and relied upon the decision of the Supreme Court in M/s. Poddar Steel Corporation v. M/s. Ganesh Engineering Works, AIR 1991 SC 1579 . 21. I have minutely gone through the judgment of the Supreme Court in the aforesaid case. The law laid down therein is other way round. It speaks of the discretion of the tendering authority to waive a condition depending upon the requirement of a particular condition of the tender, not the right of a tendered to waiver. In that case, one of the tenders, whose tender had been rejected as defective, had challenged the acceptance of the offer of the successful tender on the grounds that there was no defect in its tender and that the tender of the appellant therein could not have been validly accepted as the necessary condition of payment of Rs. 50,000/- as earnest money with the tender had not been complied with. 50,000/- as earnest money with the tender had not been complied with. The writ petition was resisted on two grounds: first, that the writ petitioner having not deposited the earnest money at all was not entitled to consideration of its tender and had no locus standi in the matter; second, that the successful tendered had substantially complied with the requirement by ending with its tender a Banker's Cheque marked and certified by the Union Bank of India as good for payment. The High Court accepted the successful tendered's first ground, holding that the tender of the writ petitioner had been rightly rejected for failure to deposit the earnest money, but allowed the writ petition on the finding that the successful tendered also did not satisfy the condition No. 6 of the tender notice as the earnest money was offered by the Banker's Cheque of a bank other than the State Bank of India mentioned in the said clause Court. It was in context of the aforesaid background that the Supreme Court in paragraph 6 of its judgment laid down as under: "6. It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank Clause No. 6 of the tender notice was not obeyed literally, but the question is as to whether the said non-compliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories - those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main objection to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. This aspect was examined by this Court in G.J. Fernadez v. State of Karnataka, (1990) 2 SCC 488 : ( AIR 1990 SC 958 ), a case dealing with tenders. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. This aspect was examined by this Court in G.J. Fernadez v. State of Karnataka, (1990) 2 SCC 488 : ( AIR 1990 SC 958 ), a case dealing with tenders. Although not in an entirely identical situation as the present one, the observations in the judgment support our view. The High Court has, in the impugned decision, relied upon Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 : ( AIR 1979 SC 1628 ), but has failed to appreciate that the reported case belonged to the first category where the strict compliance of the condition could be insisted upon. The authority in that case, by not insisting upon the requirement in the tender notice which was an essential condition of eligibility, bestowed a favour on one of the bidders, which amounted to illegal discrimination. The judgment indicates that the Court closely examined the nature of the condition which had been relaxed and its impact before answering the question whether it could have validly condoned the shortcoming in the tender in question. This part of the judgment demonstrates the difference between the two categories of the conditions discussed above. However, it remains to be seen as to which of the two clauses the present case belongs." The Supreme Court, in paragraph 8 of the judgment, accordingly, held that, in this situation, it is not correct to hold that the Diesel Locomotive Works had no authority to waive the technical literal compliance of clause 6 specially when it was in its interest not to reject the said bid which was the highest. 22. The aforesaid decision of the Supreme Court, relied upon by the learned counsel, thus recognized the discretion vested in the tendering authority to waive a technical condition and, at the same time, makes it clear that even the tendering authority cannot relax an essential condition. In the instant case, the petitioners, in effect and in essence, want this Court to require the respondents to waive a condition which in their view is an essential condition. The question is whether such a direction can be issued by this Court. In the instant case, the petitioners, in effect and in essence, want this Court to require the respondents to waive a condition which in their view is an essential condition. The question is whether such a direction can be issued by this Court. The answer, in view of the limitations on the power of judicial review of this Court and the law laid down by the Supreme Court consistently, referred to hereinabove, has to be in negative. 23. The learned counsel next submitted that it was obligatory on the part of the respondents to have issued a notice to the petitioners requiring them to furnish the originals of the test reports and since they did not do so, their action in rejecting the technical bids of the petitioners suffered from violation of the principles of natural justice. Learned counsel submitted that the respondents have in the past issued such notices to tenders. Well, the principles of natural justice are founded on the concept that no one should be put to any harm unless he is given an adequate opportunity of being heard. In the instant case, the petitioners have neither been harmed, nor did tender require the respondents to issue any such notice to the petitioners. The tender specifically made it mandatory for the intending tenders to manually furnish their test reports with their EMDs. Since the petitioners had failed to do so, the respondents were under no obligation to issue any notice to them in that behalf. Clause 26 of the tender made it clear that "the authorities reserve absolute powers to reject or accept any tender or part thereof without assigning any reason and without any legal obligations. Any clause incorporated in the tender (not conforming to the NIT in any manner) shall make such an offer liable for rejection. Therefore, all the terms and conditions of the tender notice including technical specifications shall be carefully studies for the sake of complete and comprehensive tender. Failure to comply with any of the conditions stipulated in the tender or instructions or the offer with insufficient particulars/documents shall lead to out-right rejection of the tender". That being the position, the petitioners cannot claim violation of the principles of natural justice. 24. Failure to comply with any of the conditions stipulated in the tender or instructions or the offer with insufficient particulars/documents shall lead to out-right rejection of the tender". That being the position, the petitioners cannot claim violation of the principles of natural justice. 24. It may also be mentioned here that the order of the Court dated 30.12.2014 passed in the petitioners' earlier writ petition, OWP No. 1474/2014, did not, in any manner, oblige the respondent to accept the technical bid of the petitioners or to award the contract to them. The order only permitted the respondents to conduct a fresh technical evaluation of the bids of the tenderers. That order does not advance the case of the petitioners in any way. 25. In light of all what has been discussed above, no case for admission to regular hearing of these writ petitions is made out. The same are, therefore, dismissed in limine together with the connected CMPs. Interim directions passed therein shall stand vacated. 26. No orders as to costs are, however, passed. 27. The original records produced are returned to ld. AAG in the open court. 28. Registry to keep a copy of the judgment on the writ record of OWP No. 220/2015.