Tarlok Singh Chauhan, J. By means of this writ petition, petitioner has questioned the award of tender in favour of respondent No.4 on various grounds, as taken in the memo of petition. 2. The facts, as pleaded in the petition, are that respondent Nos. 1 to 3 called for tenders for the transportation of milk from its Plant, Dutt Nagar, Tehsil Rampur, District Shimla to various places, within and outside the State of Himachal Pradesh. Petitioner submitted his tender alongwith requisite fee well before the stipulated time and when the same was opened on 21.3.2016, despite the petitioner’s being the lowest tender; the same was not awarded to him, but was awarded to respondent No.4. 3. Respondent Nos. 1 to 3 have filed the reply wherein it has been averred that the petitioner neither submitted the RCs of the trucks nor the tender in accordance with the terms and conditions thereof. In addition thereto, it is averred that the father of the petitioner is one of the accused in an FIR involving pilferage of milk and mother dairy being prime bulk consumers of Milk Federation would not like to procure milk from the petitioner. It is also averred that as per valuation, the transit loss per kilo meter comes to Rs. 7.93 paisa and the difference between the rates accepted comes as under: (i) “Actual rate calculation without transit loss in respect of Sh. Jarnail Singh comes to Rs. 24.45 P + 7.93 P=32.38 P. (ii) However, the work have been allotted @ of Rs. 29.80 Ps per K.M. per 12000 Kg for 0% transit loss in fat and SNF & quantity which is lower than the rate of respondent i.e. by Rs. 2.58 Ps per K.M. and the same have been approved keeping in view the interest of the Federation.” 4. Apart from contesting the petition on merits, the respondents have raised preliminary objection regarding very maintainability of the petition on the ground that the tender form contains an arbitration clause and without taking recourse to the same, the writ petition is not maintainable. 5. We have heard the learned counsel for the parties and have perused the record of the case carefully. 6. 5. We have heard the learned counsel for the parties and have perused the record of the case carefully. 6. As regards, the question of non-maintainability of the petition on the ground that there exists an arbitration clause contained in clause No. 37 of the tender form, the Hon’ble Supreme Court in the case of Union of India and others vs. Tantia Construction Private Limited (2011) 5 SCC 697 , while making observation on arbitration clause held that it is now well settled that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, writ petition would be maintainable. It is further held that injustice whenever and wherever takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. The relevant observation reads thus: “33. Apart from the above, even on the question of maintainability of the writ petition on account of the Arbitration Clause included in the agreement between the parties, it is now well-established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr. Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution.” 7. In M/s Ram Barai Singh & Co. vs. State of Bihar & ors. JT 2014 (14) SC 357 the Hon’ble Supreme Court set aside the order passed by the Division Bench of Patna High Court, which had dismissed the writ petition on the ground of maintainability in view of existence of an arbitration clause. It was held that though existence of alternative remedy can be a ground of refusal to exercise writ jurisdiction, but the same cannot ipso facto, render a writ petition not maintainable and it was held as follows:- “9. It was held that though existence of alternative remedy can be a ground of refusal to exercise writ jurisdiction, but the same cannot ipso facto, render a writ petition not maintainable and it was held as follows:- “9. We find ourselves in agreement with case of the appellant that the Division Bench failed to notice the relevant facts including the history of earlier litigation. It also failed to notice that the agreement itself had worked out long back and in the earlier round of litigation as well as in the present round the respondents never raised any objection on the basis of arbitration clause. 10. The Division Bench noticed the judgment of this Court in the case of State of U.P. & Ors. v. Bridge & Roof Company (India) Ltd. (1996) 6 SCC 22 as well as in the case of ABL International Ltd. & Anr. v. Export Credit Guarantee Corporation of India Ltd. & Ors. (2004) 3 SCC 553 for coming to the conclusion that where the contract itself provides an effective alternative remedy by way of reference to arbitration, it is good ground for declining to exercise extraordinary jurisdiction under Article 226 of the Constitution of India and that the Court will not permit recourse to other remedy without invoking the remedy by way of arbitration, “unless, of course, both the parties to the dispute agree on another mode of dispute resolution.” 11. In our considered view, the aforesaid two decisions did not warrant setting aside of the judgment of learned Single Judge without going into merits and dismissing the writ petition at appellate stage on ground of alternative remedy when no such objection was taken by the respondents either before the writ court or even in the Memorandum of Letters Patent Appeal. 12. “In our view, a constitutional remedy by way of writ petition is always available to an aggrieved party and an arbitration clause in an agreement between the parties cannot ipso facto render a writ petition “not maintainable” as wrongly held by the Division Bench”. Availability of alternative remedy is definitely a permissible ground for refusal by a writ court to exercise its jurisdiction in appropriate cases. Availability of alternative remedy is definitely a permissible ground for refusal by a writ court to exercise its jurisdiction in appropriate cases. But once the respondents had not objected to entertainment of the writ petition on ground of availability of alternative remedy, the final judgment rendered on merits cannot be faulted and set aside only on noticing by the Division Bench that an alternative remedy by way of arbitration clause could have been resorted to.” 8. Similar reiteration of law is found in a recent judgment of the Hon’ble Supreme Court in Mahanadi Coalfields Ltd. & Ors. vs. M/s Dhansar Engineering Co. Pvt. Ltd. & Anr. JT 2016 (9) SC 385, wherein after quoting the Tantia Construction (supra), it was held as under: “25. Similarly, it is not necessary for us to burden this judgment with the decisions relied on by the respondents, to contend that existence of alternative remedy is no bar to entertain a Writ Petition under Article 226 of the Constitution of India, as held in the cases of Popcorn Entertainment vs. City Development Corporation [JT 2007 (4) SC 70: 2007 (9) SCC 593 ], Harbanslal Sahnia & Anr. V. Indian Oil Corporation Ltd. & Ors. [JT 2002 (10) SC 561 : 2003(2) SCC 107 ], Union of India & Ors. vs. Tantia Construction Pvt. Ltd. [JT 2011 (5) SC 59 : 2011 (5) SCC 697 ], M.P. State Agro Industries Development Corpn. & Anr. Vs. Jahan Khan [JT 2007 (10) SC 571] and Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai [JT 1998 (7) SC 243: 1998 (8) SCC 1 ].” 9. From the conspectus of the above judgments of the Hon’ble Supreme Court, what emerges is that a constitutional remedy by way of writ petition is always available to an aggrieved party and an arbitration clause in an agreement between the parties cannot ifso facto render a writ petition “not available”. Though availability of alternative remedy is definitely a permissible ground for refusal by a writ court to exercise its jurisdiction in appropriate case, but the same is a rule of discretion and not one of the compulsion. 10. Though availability of alternative remedy is definitely a permissible ground for refusal by a writ court to exercise its jurisdiction in appropriate case, but the same is a rule of discretion and not one of the compulsion. 10. Thus, it can safely be held that an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India but where the statute provides efficacious and alternative remedy, the High Court will do well in not entertaining a petition under Article 226 of the Constitution of India because of misplaced consideration, statutory procedure cannot be allowed to be circumvented. 11. However, in the present case, as noticed above, there is no statutory bar and it is only on account of the arbitration clause that the respondents have challenged the maintainability of the writ petition. This contention in view of the aforesaid discussion cannot be upheld and accordingly the writ petition despite there being an arbitration clause in the agreement is held to be maintainable. 12. Before adverting to the merits of the case, it would be necessary to understand the scope of judicial review available in such like matters. It is more than settled that in the matter of award of contract, the Government and its agencies have to act reasonably and fairly at all points of time. In Michigan Rubber (India) Limited vs. State of Karnataka and others, (2012) 8 SCC 216 , decision on the subject was summed up after comprehensive review and principles of law applicable to the process for judicial review were identified in the following words: 23. 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. 24. Therefore, 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"; and (ii) Whether the public interest is affected. If the answers to the above questions are in negative, then there should be no interference under Article 226. 13. It is equally settled that the bidder, who has participated in tender process has no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested person in response to the notice inviting tenders in a transparent manner and free from hidden agenda. This was so held by the Hon’ble Supreme Court in Meerut Development Authority vs. Association of Management Studies and another, 2009 (6) SCC 171 wherein, the Court, in detail, has held as follows: “26. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor made to suit the convenience of any particular person with a view to eliminate all others from participating in the biding process. 27. The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the above stated ground, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the Authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations. 29. The Authority has the right not to accept the highest bid and even to prefer a tender other than the highest bidder, if there exist good and sufficient reasons, such as, the highest bid not representing the market price but there cannot be any doubt that the Authority's action in accepting or refusing the bid must be free from arbitrariness or favoritism.” 14. There is no gainsaying that in any challenge to the award of contract before the Court, what is to be examined is the illegality and irregularity of the process leading to award of contract. The Court will only examine whether the decision making process was fair, reasonable and transparent. 15. It is not in dispute that tender submitted by the petitioner was the lowest wherein he had quoted Rs.24.45 paisa per kilo meter as against the rate of Rs. 29.90 paisa per kilo meter, quoted by respondent No.4, but the same has been rejected by the committee constituted by respondent Nos. 15. It is not in dispute that tender submitted by the petitioner was the lowest wherein he had quoted Rs.24.45 paisa per kilo meter as against the rate of Rs. 29.90 paisa per kilo meter, quoted by respondent No.4, but the same has been rejected by the committee constituted by respondent Nos. 1 to 3 by recording the following reasons: “Therefore, the case of the third lowest party at Sr. No.03 i.e. Sh. Harpreet Transport Company Moga was considered which has deposited the requisite EMD of Rs. 5 Lac as well as produced the sufficient proof of ownership of vehicles and satisfies other terms and conditions, has quoted two rates i.e. Rs. 25 per km per 12000 kg with our terms and condition of permissible transit loss limit of 0.1% fat and 0.15% variation in SNF, and the second rate of Rs. 32/Km/12000 kg with zero percent transit loss of fat and SNF, the calculation of which in terms of money is as under: Rate per km per 12000 kgs Rs. 25.00 Permissible transit loss of 0.1% in fat for 12000 kgs-12000 x 0.1% 12 kg fat Permissible transit loss of 0.15% in SNF for 12000 kgs (12000 x 0.15%) 18 kg SNF Value of 12 kg fat @ Rs. 288/kg fat (current NMG rate) 3456.00 Value of 18 kg fat @ Rs. 288/kg SNF (current NMG rate) 3456.00 Permissible transit loss of 40 kg (4.2% fat and 9.2% SNF) in Qty. @ 29.76/kg (40 x 4.2% x 288 + 40 x 9.2% x 192) /40 (40 x 29.76) Rs. 1190.40 Total value of permissible transit loss (3456+3456+1190.40) 8102.40 Total to and fro km from Milk Plant Duttnagar to Mother Dairy Delhi 1022 Total value of transit loss per km (8102.40/1022) Rs. 7.93 Therefore, actual rate calculation without transit loss (Rs.25+7.93) Rs.32.93” 16. Indubitably, there is no condition in the tender document apart from condition No. 22, which touches upon the question of transit loss and the same reads as under: “22. The milk in the tanker will be tested/sealed properly in the presence of the Transporter or his Representative at the outlet point and it will be responsibility of the transporter to deliver the milk at the destination without causing any loss. Normally there should not be any transit loss of Fat and SNF in milk. The milk in the tanker will be tested/sealed properly in the presence of the Transporter or his Representative at the outlet point and it will be responsibility of the transporter to deliver the milk at the destination without causing any loss. Normally there should not be any transit loss of Fat and SNF in milk. However, a variation of 0.1% of Fat and 0.15 % of SNF respectively in the testing of milk at the receiving Dairies shall be allowed trip wise. There should not be any transit loss in quantity of milk also. However, a variation of maximum of 40 kg of milk variation in Fat, SNF and or quantity takes place beyond permissible limit then full recovery for such parameters will be made from contractor’s pending payments. The HP Milk Federation, Duttnagar, Shimla Unit shall not consider cases where the losses are in excess of the above permissible limit. However, in case seals are found broken or tempered or driver/helper are found indulging in malpractice enroute or if flunches, nut bolts of the tanker are found broken, then penalty as deemed fit by the HP Milk Federation, Duttnagar, Shimla Unit shall be imposed alongwith full recovery for the loss of quantity/Fat/SNF in Kgs. If the transporter causes transit losses of milk and its constituents regularly whether in the above specified limits or above, then the HP Milk Federation, Duttnagar, Shimla Unit, reserves the right to recover the full amount of losses incurred thereof apart from termination of the contract without assigning any notice and forfeiture of his security/EMD.” 17. It would be evident from the aforesaid clause that the same would apply only after the award of tender had been made in favour of the party and not earlier to that. 18. In addition to the aforesaid, the only other reason for rejecting the claim of the petitioner is that there was an FIR against certain persons, including the father of the petitioner, who were alleged to have been involved in pilferage of milk and also that the petitioner had failed to show sufficient numbers of possession of vehicles with him, as was required in the terms and conditions at Sr. No.2 of the tender form. This aspect of the matter is dealt with by the Committee in the following manner: “The party at Sr. No.4, the second lowest i.e. Jarnail Singh s/o Sh. No.2 of the tender form. This aspect of the matter is dealt with by the Committee in the following manner: “The party at Sr. No.4, the second lowest i.e. Jarnail Singh s/o Sh. Uttam Singh village Khanpur, Tehsil Rajpura, Distt. Patiala is also rejected as there has been complaint/FIR against the party which is attached herewith which has been published in the newspaper 16th March, 2016 Pipli (Sukram). The contents of the FIR reveals that Jarnail Singh, father Uttam Singh at Sr. No.5 is one of the accused in above referred FIR involved in pilferage of milk. The H.P. Milkfed thrives in its reputation and goodwill in the market and as such the party cannot be considered which is involved in unfair criminal act of malpractice of adulteration, brings ill-repute to the organization in the highly competitive market. The aforesaid FIR also shows that there is an allegation against the person that while transporting milk to Mother Dairy, he was nabbed mixing water in the milk. Mother Dairy is one of the prime bulk consumers of H.P. Milk Federation and engaging the services of such person as involved in the FIR would result in putting the business of H.P. Milkfed with Mother Dairy at high risk and peril of breakdown. The party has also not shown sufficient proof of the possession of vehicles with it as required in the terms and conditions at Sr. No.2, hence rejected.” 19. Having gone through the record of the case, we are at a complete loss to understand as to how and on what basis did the members of the Committee come across the newspaper dated 16th March, to conclude that an FIR has been registered against various persons, including the father of the petitioner. That apart, we really fail to appreciate as to how fault of the father could work to the disadvantage of his son. 20. That apart, before adopting such course the least that was expected from the respondents was to have complied with the principles of natural justice calling upon the petitioner to explain his position. Not only this, the official respondents further owed a duty to have meted out equal and fair treatment to all the parties by applying common yardsticks in case of each of the participants. Not only this, the official respondents further owed a duty to have meted out equal and fair treatment to all the parties by applying common yardsticks in case of each of the participants. After all, it has come on record that one of the trucks of respondent No. 4 had earlier been caught red handed by selling milk to a private person, which led to registration of an FIR No. 72 dated 12.2.2016. 21. As regards the petitioner having not submitted the details of six numbers of road milk tanker, it would be apposite to refer to condition No. 2 of the tender, which reads as under: “The transporter should have atleast fleet of 6 Nos. road Milk Tanker in his name. He has to produce the photocopy of RC of all the tanker at the time of opening of tender, which will be verified/counter checked from the office of District Transport Office of concerned area before award of contract.” 22. The aforesaid clause makes it abundantly clear that the tenderer is required to have at least a fleet of six numbers of road milk tankers, that too, in his own name, whereas the list of trucks supplied by respondent No.4 would reveal that these trucks do not belong to him and in fact belong to M/s Kathpal Transport Company, making respondent No.4 ineligible for the award of tender. 23. It is evidently clear from the aforesaid discussion that neither the petitioner nor respondent No. 4 were fully eligibly for the award of tender. Even otherwise the decision to award the tender in favour of respondent No. 4 is tainted with extraneous consideration. 24. To say the least, the members of the Committee which evaluate the tenders have not conducted themselves with high probability, candour and fairness that was expected of them. Thus, we are left with no option but to cancel the entire tender process. Ordered accordingly. 25. Respondent No. 1 is directed to issue a fresh tender notice, which shall be published in one English and two vernacular daily newspapers having wide circulation throughout India, within a period of one week from today and thereafter complete the entire codal formalities within a period of one week thereafter. Till the time, tender is not finalized, the respondents shall continue with the existing arrangements. Till the time, tender is not finalized, the respondents shall continue with the existing arrangements. However, it is made clear that none of the members of the present committee shall be associated or form part of evaluation committee and the same shall now comprise of respondent No.1 & 2 and the General Manager of the H.P. State Cooperative Milk Producers Federation. 26. Accordingly, the writ petition is disposed of in the aforesaid terms. Pending applications, if any, also stands disposed of, leaving the parties to bear their own costs.