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2016 DIGILAW 25 (GAU)

Rokolhou Angami v. State of Nagaland

2016-01-19

MANOJIT BHUYAN, T.VAIPHEI

body2016
JUDGMENT : Manojit Bhuyan, J. Heard Mr. S.Dutta, learned senior counsel representing the appellant/writ petitioner, assisted by Ms. N. Modi as well as Ms. A Aier, the learned Government Advocate for the State of Nagaland, representing respondent nos. 1 to 6. Also heard Mr. D. K. Mishra, learned senior counsel representing respondent no.7 (newly impleaded by order dated 27.8.2015 in I.A. 1196/2015), assisted by Ms. S. Jahan, Advocate. The records in original have also been produced by Ms. A.Aier. 2. The Office of the Executive Engineer, Urban Development Department, Kohima, Nagaland issued the Short Notice Inviting Tender dated 13.3.2015 for the work of Infrastructure Development Works for Medziphema Town. By the said tender, issued on behalf of the Governor of Nagaland, bids were invited from eligible Government registered Class-I contractors fulfilling the conditions as laid down therein. The estimated cost of the work was fixed at Rs.1492.70 lacs with the time of completion stipulated at 24 months. Sealed tenders were invited by way of a two-bid system consisting of the Technical Bid and Financial Bid. The detailed terms and conditions formed part of the Bidding Document. 3. As many as four tenderers, including the appellant/writ petitioner and the respondent no.7, had responded to the Short Notice Inviting Tender by submitting their respective Technical and Financial Bids. On 23.3.2015 the pre-qualification technical bid was opened and as per Statement recorded in the Technical Qualification Information, no anomaly was found in respect of the Technical Bid submitted by the appellant/writ petitioner. In so far as the respondent no.7 is concerned, it was recorded that it had not enclosed CST and the Power of Attorney had not been signed by Class-I Magistrate/Notary. The Financial Bids were opened on the same day and a Comparative Statement was duly prepared. On the rate quoted by the appellant/writ petitioner, being 7..06% below NPWD Schedule of Rates 2013, it was adjudged as “Regular” in the Remarks Column. In respect of the respondent no.7 it had quoted a rate of 5.10% below NPWD Schedule of Rates 2013 and in the Remarks Column the short-comings as recorded in the Technical Qualification Information had been reiterated. On 24.3.2015 the Executive Engineer, Urban Development submitted the Comparative Statement to the Chief Engineer, PWD (R&B), Nagaland for approval at an early date. In respect of the respondent no.7 it had quoted a rate of 5.10% below NPWD Schedule of Rates 2013 and in the Remarks Column the short-comings as recorded in the Technical Qualification Information had been reiterated. On 24.3.2015 the Executive Engineer, Urban Development submitted the Comparative Statement to the Chief Engineer, PWD (R&B), Nagaland for approval at an early date. On 25.3.2015 the Chief Engineer, PWD (R&B) returned the Comparative Statement to the Executive Engineer, Urban Development indicating that the rate quoted by the appellant/writ petitioner is found to be reasonable and regular. Instruction was given for issuing Work Order from his end with intimation to the Office of the Chief Engineer, PWD (R& B). Before any Work Order could be issued, the Chief Minister, Nagaland intervened and endorsed a Note to the Chief Engineer, PWD (R&B) on 25.3.2015 expressing that the Comparative Statement be sent for approval of the Government. Accordingly, on 27.3.2015 the Chief Engineer, PWD (R&B) addressed a letter to the Commissioner and Secretary to the Government of Nagaland, Works and Housing Department, enclosing therewith the Comparative Statement for perusal. In the said letter it was also indicated that although the approved Comparative Statement had been sent to the Executive Engineer, Urban Development, the same had been recalled as per instruction of the Chief Minister, Nagaland. On 8.4.2015 the Government of Nagaland in the Works & Housing Department (Works Branch) intimated the Chief Engineer, PWD (R&B) for re-tender of the work i.e. Infrastructure Development Works for Medziphema Town and for submission of Comparative Statement for approval of the Government. By the said letter the Comparative Statement which had been furnished to the Government on 27.3.2015 was returned. Acting on the instruction received from the Works and Housing Department, the Additional Chief Engineer, PWD (R&B), Office of the Chief Engineer, informed the Executive Engineer, Urban Development of the fact of the re-tender and for submitting the Comparative Statement to the Government for approval at the earliest. On the above backdrop, the Re-Tender Notice dated 10.4.2015 was issued from the office of the Executive Engineer, Urban Development, which was duly published in the newspaper daily. Immediately upon issuance of the Re-Tender Notice dated 10.4.2015, the appellant/writ petitioner marked a Legal Notice to the State Respondents concerned for cancelling/revoking/rescinding the said Re- 4. In the said writ petition the respondent no.7 herein was not impleaded as party respondent. Immediately upon issuance of the Re-Tender Notice dated 10.4.2015, the appellant/writ petitioner marked a Legal Notice to the State Respondents concerned for cancelling/revoking/rescinding the said Re- 4. In the said writ petition the respondent no.7 herein was not impleaded as party respondent. Be that as it may, the appellant as the writ petitioner had contended that pursuant to the Re-Tender Notice dated 10.4.2015, tenders have been opened on 18.4.2015. Statement was made that the impugned Tender Notice had been issued in great haste and there was an unholy nexus with the respondent authorities with a particular firm. The said Re-Tender Notice had been issued without cancelling the process earlier initiated by Notice Inviting Tender dated 13.3.2015 and the same was contrary to the instruction given by the Chief Minister in the Note dated 25.3.2015. The further contention of the appellant/writ petitioner was that the instruction of the Chief Minister was mis-interpreted, in that, the Note only expressed sending the Comparative Statement for approval of the Government and did not relate to re-tendering of the work in question. Also, no reason had been assigned necessitating re-tendering of the work in question. In summation, the contentions urged are that the entire process of re-tendering was arbitrary, illegal and unconstitutional and that the same had been initiated in total defiance of the instruction given by the Chief Minister on 25.3.2015. 5. The State Respondents i.e. Respondent Nos. 1 to 6 responded to the writ petition by filing affidavit-in-opposition. Amongst others, the State urged that the Chief Minister at the relevant time was holding the portfolio of Works & Housing as well as the Urban Development and in such capacity had called for the relevant file on 25.3.2015. As regards the procedure adopted by the State in contractual matters it was contended that process is initiated by publication of a Notice Inviting Tender, followed by opening and scrutiny of the Bids by the Tender Evaluation Committee, the preparation of a Comparative Statement with the recommendation of the said Tender Evaluation Committee and the same culminates in submitting the Comparative Statement and relevant documents to the Government for approval. The said affidavit also disclosed that the recommendation made by the authorities concerned in favour of the appellant/writ petitioner was not on the basis of the approval of the Government and, in fact, such recommendation did not arise from a competitive bidding process. The said affidavit also disclosed that the recommendation made by the authorities concerned in favour of the appellant/writ petitioner was not on the basis of the approval of the Government and, in fact, such recommendation did not arise from a competitive bidding process. Accordingly, a decision was made for issuing a re-tender notice in respect of the work in question. Denying the allegation of acting in haste and of any element of unholy nexus, it was also contended that the action taken for re-tendering was not contrary to the instruction of the Chief Minister. Categorical statement was also made to the effect that the decision for re-tendering the work in question ipso facto meant that the process initiated by the earlier Notice Inviting Tender stood cancelled. Further, that in pursuance of the re-tender process the Government had conveyed its approval for award of the contract to M/s Zeliezhu & Sons (respondent no.7 herein) by letter dated 20.4.2015, which has not been put to challenge. The dismissal of the writ petition was also urged for non-joinder of necessary parties. Referring to Clause-22 of the NIT, it was contended that the Government reserved the power to accept or reject any or all the tenders without assigning any reason thereof. It was also urged that in the absence of any approval of the Government for award of the contract in favour of the appellant/writ petitioner, it cannot claim that any right accrued to it and/or that any of its right had been violated. 6. The rival contentions stood for consideration before the learned Single Judge. The relevant records so produced by the counsel representing the State Respondents had also been perused. The learned Single Judge by judgment and order dated 31.7.2015 dismissed the writ petition as being without merit. While doing so, the provision under the Rules of Executive Business of the Government of Nagaland was also taken note of to arrive at the finding that it was within the competence of the Chief Minister to call for the Comparative Statement and for sending the same for approval of the Government in his capacity as the In-charge of the Department of Urban Development as well as of the Works and Housing Department. From the records produced by the counsel representing the State Respondents, the learned Single Judge recorded that a discussion was held with the Chief Minister and a decision was taken to direct the Chief Engineer, PWD (R&B) for re-tendering in order that at least three valid bidders qualified in the re-tendering process. From the records it was also recorded that on the basis of the decision taken, the State Respondents had proceeded with the re-tender process, followed by preparation of a Comparative Statement wherein two tenders appeared to have participated in the Bid and eventually M/s Zeliezhu & Sons was recommended for award of the contract. Further, on the basis of the recommendation, the Government upon consideration of the Comparative Statement had given approval by letter dated 20.4.2015. The learned Single Judge also arrived at the finding that it was necessary on the part of the appellant/writ petitioner to have at least impleaded the parties who had submitted tender document pursuant to Re-Tender Notice dated 10.4.2015 and in the absence of such impleadment, no order can be passed directly affecting the said parties. On the scope of judicial review, the learned Single Judge referred to the case of Tata Cellular –versus- Union of India, reported in (1994) 6 SCC 651 . Taking note of all attending facts and circumstances and particularly to the fact that the decision for re-tender had been taken in public interest, no interference in the action of the State Respondents was found expedient and accordingly, the writ petition was dismissed as being without any merit. 7. Mr. S. Dutta while reiterating the stand taken by the appellant/writ petitioner before the learned Single Judge now assails the judgment under appeal on grounds that the records produced by the Government was improperly appreciated. It is contended that the Note in the relevant file of the Commissioner, Works and Housing Department only indicates discussion with the Chief Minister and no reason is ascribed as to why the Commissioner had directed the Chief Engineer to put up the work for re-tender and/or if he had acted on oral instruction of the Chief Minister, he ought to have recorded such directions in the File. Further, whereas the Government failed to justify lack of competitive bidding in the earlier process where 4 (four) bidders had participated, even in respect of the de-novo process the same was not in tandem with the observation indicated in the Commissioner’s Note dated 31.3.2015. According to the Note a direction was made for re-tender so that at least three valid bidders qualify. However, in the retendering process only 2 (two) bidders had participated. 8. According to Mr. Dutta the Chief Minister never issued instruction for re-tender. Also, no order had been passed cancelling the earlier process, no reasons had been assigned. Benefit was sought to be given to Respondent No.7 by initiating a retendering process and by twisting the instructions of the Chief Minister with a view to overcome the anomalies in the bid documents of the Respondent no.7 in the earlier process. These vital aspects of the matter did not stand for consideration by the learned Single Judge. Further submission of Mr. Dutta is that on a totality of facts, the State Respondents had resorted to an unreasonable, mala fide and arbitrary action in issuing the Re-Tender Notice dated 10.4.2015. Also, the case in Tata Cellular vs. Union of India (supra), relied upon by the learned Single Judge, was not appreciated in its proper perspective while rendering the judgment under appeal. 9. Mr. Dutta, to buttress his arguments, relied upon the follow case laws: (i) (2004) 8 SCC 671 (Anil Kumar Srivastava v. State of U.P.) (ii) (2007) 14 SCC 517 (Jagadish Mandal v. State of Orissa) (iii) (2013) 15 SCC 732 (T.S.R.Subramanian v. Union of India) (iv) 1995 (2) GLT 59 (K.L.Trading Co. v. State of Meghalaya) 10. Ms. A. Aier, representing the State Respondents, has produced the records and relies upon the stand taken by it in the affidavit-in-opposition filed in WP(C)62(K)/2015. Counsel contends that the Government is the ultimate approving authority and the Chief Engineer, PWD (R&B) cannot invest itself with any power to direct issuance of Work Order, as was sought to be done in the earlier process vide letter dated 25.3.2015. From the records it is submitted that re-tendering process was initiated in a transparent manner, following the instructions of the Chief Minister, who at the relevant time was holding the portfolios of Works & Housing as well as Urban Development. Also, the conditions stipulated for re-tendering in the Note dated 31.3.2015 was ensured. From the records it is submitted that re-tendering process was initiated in a transparent manner, following the instructions of the Chief Minister, who at the relevant time was holding the portfolios of Works & Housing as well as Urban Development. Also, the conditions stipulated for re-tendering in the Note dated 31.3.2015 was ensured. Claiming that the appellant has not been able to make out a case for interference on any count, prays for dismissal of the appeal. Also, public interest is made to suffer at the behest of the appellant/writ petitioner, in as much as, expeditious implementation of the work in question assumes paramount importance. 11. Mr. D.K.Mishra, representing Respondent No.7, at the outset submits that the earlier NIT dated 13.3.2015 and process initiated thereof automatically came to an end as and when a fresh process was put into place pursuant to the direction for re-tender. Also, as on date, the process upon re-tender have culminated in the issue of award of the contract in favour of Respondent no.7 with due approval of the competent authority. In the fresh process the appellant /writ petitioner did not participate. Foremost of all, the appellant/writ petitioner did not challenge the authority of the Chief Minister asking the Chief Engineer, PWD (R&B) to send the Comparative Statement to the Government for approval. Rather, it had supported the same. Further, the decision to issue fresh tender was by the Department in consultation and approval of the Chief Minister. It is the Department alone which is vested with power and authority to accept or reject the tender and such power do not percolate to the Chief Engineer, PWD (R&B). The reason for issuing fresh tender had been ably demonstrated in the affidavit-in-opposition filed by the State where one of the grounds assigned was that the appellant/writ petitioner was the only tenderer in the fray and the recommendation made by the Chief Engineer, PWD (R & B) did not arise from a competitive bidding process. 12. Mr. Mishra submits that the records of the case do not demonstrate that the decision for issuing fresh tender had been done in defiance of the instructions of the Chief Minister. To this end, the learned Single Judge had rightly rejected the appellant’s challenge upon appreciation of the relevant records. 12. Mr. Mishra submits that the records of the case do not demonstrate that the decision for issuing fresh tender had been done in defiance of the instructions of the Chief Minister. To this end, the learned Single Judge had rightly rejected the appellant’s challenge upon appreciation of the relevant records. Further, the allegations on the action of the Government being unreasonable, mala fide and arbitrary, the same are only inferential statements in the absence of any supporting materials and categorical references. 13. Turning to the Note dated 31.3.2015 where direction was made by the Commissioner to put up the work for re-tender so that at least 3 (three) valid bidder qualify, Mr. Mishra submits that the records would indicate compliance thereof. Reference is made to the two Comparative Statements - one pursuant to NIT dated 13.3.2015 and the other pursuant ot the Retender Notice dated 10.4.2015. In the column “Sl.No.” and in both the Comparative Statements the number of participants/bidders had been duly shown. Whereas there were 4 (four) bidders in the earlier process with the appellant figuring at “2/4” and the Respondent No.7 at “4/4”, in the fresh process there were 3 (three) bidders with the Respondent No.7 at “1/3”. Admittedly, the appellant/writ petitioner did not participate in the fresh process. As regards the feasibility of the rates, where the appellant in the earlier round had offered 7.5% below the Nagaland S.O.R. 2013 and in the fresh round the work had been awarded to the Respondent No.7 at a rate at par with Nagaland S.O.R. 2013, it is submitted that the matter rests in the wisdom of the Tender Evaluation Committee and that of the State authority to decide upon a rate that is workable and that would not stand to comprise with the quality of the work. 14. Mr. Mishra submits that reliance placed by the appellant in the case of Anil Kumar Srivastava (supra) is distinguishable, in that, the facts in the reported case being different, the ratio therein cannot be made applicable to the instant case. In so far as the ambit and scope of judicial review is concerned, Mr. Mishra relies upon the case of Maa Binda Express Carrier v. North East Frontier Railway, reported in (2014) 3 SCC 760 . 15. That facts above have been noticed. The records produced by Ms. Aier have been perused. In so far as the ambit and scope of judicial review is concerned, Mr. Mishra relies upon the case of Maa Binda Express Carrier v. North East Frontier Railway, reported in (2014) 3 SCC 760 . 15. That facts above have been noticed. The records produced by Ms. Aier have been perused. We proceed with the adjudication of the case keeping in mind that the appellant while assailing the Re-Tender Notice dated 10.4.2015, did not put to challenge the resultant approval order of the Government in the Works & Housing Department in awarding the contract to Respondent no.4, so communicated vide letter dated 20.4.2015. Incidentally, WP(C) 62(K)/2015 was filed on the very same day i.e. 20.4.2015 and no steps, whatsoever, was taken by the appellant/writ petitioner to bring on record the order of approval at any given point of time, short of challenging the same. The decision making process pursuant to Re-Tender Notice dated 10.4.2015 and award thereof remains unassailed. As such, we confine our findings and decisions on the legality of the earlier process that had culminated in the issuance of the Re-Tender Notice dated 10.4.2015 and no further. 16. As alluded to above, the Short Notice Inviting Tender was issued on 13.3.2015 in respect of the work, namely, Infrastructure Development Works for Medziphema Town. Amongst the 4 (four) bidders, the bid of the appellant/writ petitioner was fond regular, who had also offered a rate which was 7.06% below the Schedule of Rates 2013. The Comparative Statement was placed before the Chief Engineer, PWD (R&B) by the Executive Engineer, Urban Development, for approval citing a letter that had been received from the Ministry of Urban Development, Government of India, towards awarding of Work Order to the contractors and for claiming the first installment by 31.3.2015, failing which the Ministry had indicated that it would proceed to take a decision to cancel the project. The Comparative Statement, as approved by the Chief Engineer, PWD (R&B), was returned with instruction to the Executive Engineer, Urban Development, that Work Order may be issued form his end with due intimation to the Office of the Chief Engineer, PWD (R&B). The Comparative Statement, as approved by the Chief Engineer, PWD (R&B), was returned with instruction to the Executive Engineer, Urban Development, that Work Order may be issued form his end with due intimation to the Office of the Chief Engineer, PWD (R&B). At this stage the Chief Minister, Nagaland, in his capacity as the portfolio head of Works & Housing Department as well as the Urban Development, put up a Note on 25.3.2015 to the effect that the Chief Engineer, PWD (R&B) may send the list of Comparative Statement for approval of the Government. This perhaps was done keeping in view that the final decision in the award of contract rested with the Government in the Works & Housing Department. What followed thereafter was the recall of the Comparative Statement from the Office of the Executive Engineer, Urban Development and sending the same to the Government in the Works & Housing Department. The said Department directed re-tender and consequently the Re-Tender Notice dated 10.4.2015 came to be issued. 17. Clause 22 of the NIT stipulates that the Department reserves the right to accept or reject any or all the Tenders without assigning any reasons thereof. The term “Department” under Rule 2(g) of the Nagaland Rules of Executive Business is defined to mean a Department of the Government of the State of Nagaland as specified in the First Schedule. Serial No.14 of the First Schedule mentions the Works and Housing Department, being the concerned Department for the purpose of this case. Clause 22 read with the related provisions under the Rules of Executive Business leave no room for doubt that it is only the Department of the State Government i.e. the Works & Housing Department that alone has the final say in the award of the contract. As such, the direction/instruction issued by the Chief Engineer PWD (R&B) for issuing Work Order in favour of the appellant/writ petitioner was without power and jurisdiction. To this end, the appellant cannot claim any right of getting benefit of the work merely at the instance of the Chief Engineer, PWD (R&B) sans any approval of the Department concerned. 18. Testing the contents of the Note of the Chief Minister dated 25.3.2015, it abundantly appears to be in line with Clause 22 of the NIT. The instruction was for sending the Comparative Statement for approval of the Government, being the final arbiter. 18. Testing the contents of the Note of the Chief Minister dated 25.3.2015, it abundantly appears to be in line with Clause 22 of the NIT. The instruction was for sending the Comparative Statement for approval of the Government, being the final arbiter. It also appears from the records so produced, particularly the Office Note dated 31.3.2015, that the Commissioner Works & Housing Department was involved in a discussion with the Chief minister on the same day wherefore a Note was put up - “ Discussed with C.M. Pl direct CE (R & B) to put up for re-tender so that atleast three valid bidder qualify” . Pursuant thereof, the Chief Engineer PWD (R&B) was apprised by the Under Secretary to the Govt. of Nagaland vide letter dated 8.4.2015 requesting for re-tender and for submission of the Comparative Statement for Government’s approval. Matter eventually travelled back to the Office of the Executive Engineer Urban Development, who issued the Re-Tender Notice dated 10.4.2015. 19. The decision for re-tendering was taken by the appropriate authority by following due procedure to the satisfaction of this Court. Infirmity in the decision-making process is not to be found. Resultantly, on this score, the decision for re-tendering do not call for interference. 20. On the scope of judicial review of administrative action, both the appellant as well as the Respondent no.7 relied upon the case of Jagadish Mandal (supra), particularly paragraph 22 thereof. For ready reference, the same is reproduced hereunder : “22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. It purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tender or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedure aberration or error in assessment or prejudice to a tenderer, is made out. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedure aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decided contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical /procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succor to thousands and millions and may increase the project cost manifold. 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”. (ii) Whether public interest is affect. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/ contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.”. What is discernible from the quoted paragraph 22 above is that the ratio stands more in favour of the State Respondents than the appellant herein. The records as produced do not disclose any element of mala fide on the part of the State Respondent or that any action was intended to favour the Respondent No.7. The fall-out of the re-tender process could have culminated in any direction. Any of the participating bidders could have emerged successful depending upon its own merits. The records as produced do not disclose any element of mala fide on the part of the State Respondent or that any action was intended to favour the Respondent No.7. The fall-out of the re-tender process could have culminated in any direction. Any of the participating bidders could have emerged successful depending upon its own merits. As such, it cannot be a case that re-tender was made only with a view to benefit the respondent no.7. Arbitrariness or irrationality in the action of the State Respondents is wholly absent, in that, the decision for re-tendering was in terms of the right reserved under Clause 22 of the NIT by the competent authority recognized under the Nagaland Rules of Executive Business. Apparently, the action of the State Respondent cannot be termed as a decision that no responsible authority acting reasonably and in accordance with relevant law could have reached. Curbing encroachment of power by the Chief Engineer, PWD (R&B), which power only vests with the concerned Department of the State Government, is indeed in public interest. 21. In the case of T.S.R. Subramanian (supra) the Apex Court was seized with the issue raised by a section of retired civil servants expressing the necessity of reforms for preservation of integrity, fearlessness and independence of civil servants at the Centre and State levels. The Apex Court noted that in the present political scenario, the role of civil servants have become very complex and onerous. Decisions are to be taken which may have far-reaching consequences in the economic and technological fields. It was in this context that the Apex Court held that to act upon verbal or oral instructions, orders etc, of superiors, there must be some records to demonstrate how the civil servant has acted, if the decision is not his and he should record such directions in the File. It was held that recording of instructions, directions is necessary for fixing responsibility and to ensure accountability in the functioning of civil servants and to uphold institutional integrity. Reverting to the case in hand, what transpires from the records is firstly the Note of the Chief Minister for sending the Comparative Statement to the Government for approval. It was held that recording of instructions, directions is necessary for fixing responsibility and to ensure accountability in the functioning of civil servants and to uphold institutional integrity. Reverting to the case in hand, what transpires from the records is firstly the Note of the Chief Minister for sending the Comparative Statement to the Government for approval. Also appearing in the relevant Note Sheet is the Note of the Commissioner & Secretary, Works & Housing Department, regarding discussion with the Chief Minister, followed by a direction to the Chief Engineer, PWD (R&B) to put up for re-tender. Implicitly, the Note demonstrates that he had acted on the instruction of the Chief Minister for re-tender. The risk of wrong or false recording of oral instruction of superior could not have escaped comprehension of the consequences involved. As such, the case in T.S.R. Subramanian (supra) cannot come to the aid of the appellant. 22. The law enunciated in the case of K.L.Trading Co. (supra) is too well settled. Having regard to the facts of this case, it cannot be said that the State Government had taken recourse to unreasonable and arbitrary standards in deciding upon re-tender of the work in question. In so far as the case in Anil Kumar Srivastava (supra) is concerned, the same was placed to controvert one of the grounds raised by the State Government in the affidavit-in-opposition to the effect that the recommendation made in favour of the appellant did not arise from a competitive bidding process. Relying upon the said decision, the appellant had submitted that participation of even one bidder was sufficient and acceptance of tender of the sole bidder cannot be thrown out on ground of absence of a competitive bidding process. A factual analysis of the said case discloses that a public spirited citizen had put to challenge a Scheme floated by NOIDA for construction of a commercial hub in Sector-18. Nine reputed developers had purchased the tender brochures but on the closing date only one tender had been received and evaluated by the Technical Committee. The sole bid was eventually accepted. The basic facts emerging are that challenge was not made on the ground that there was only one bidder. The challenge was basically to the Scheme itself which was stated to have been fixed at a low price. The sole bid was eventually accepted. The basic facts emerging are that challenge was not made on the ground that there was only one bidder. The challenge was basically to the Scheme itself which was stated to have been fixed at a low price. The facts are entirely different from the case in hand and the contentions put forth by the appellant in support of his case cannot be derived from the factual matrix of the reported case. In other words, the case of Anil Kumar Srivastava (supra) also do not come to aid of the appellant. 23. In Maa Binda Express Carrier (supra) the Apex Court was seized with a case where the appellant therein had responded to a Notice Inviting Tender and had offered the highest bid. However, the said tender process was discharged by the respondent authority and a communication in that regard was issued to the appellant therein who assailed the same before the Gauhati High Court. The writ petition was allowed by holding that every public authority was required to act fairly while granting contract and that reasons for cancellation of the tender process should have been set out in the communication sent to the appellant instead of being disclosed subsequently in the affidavit filed in opposition. On appeal by the Respondent Railways, the Division Bench held that the appellant acquired no right to claim the award of the contract merely by reason of its bid being the highest. On the scope of judicial review the Division Bench held that so long decision of a competent authority was not against public interest, irrational, mala fide or illegal, the Court has to restrain itself from interfering with the process. It was also held that merely because the order discharging the tender process was silent as to the reasons to the decision, the same did not prevent the Court from looking into the record to find out the basis on which the cancellation was ordered. The decision of the Division Bench of Gauhati High Court being carried on appeal before the Apex Court , the same was dismissed with cost assessed at Rs. 25,000/-. On the scope of judicial review, the Apex Court held as under: “8. The scope of judicial review in matters relating to award of contracts by the State and its instrumentalities is settled by a long line of decision of this Court. 25,000/-. On the scope of judicial review, the Apex Court held as under: “8. The scope of judicial review in matters relating to award of contracts by the State and its instrumentalities is settled by a long line of decision of this Court. While these decisions clearly recognize that power exercise by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, 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 depending upon whether the contract is for sale of public property or for execution of works on behalf of the Government. All that participating bides are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. It is also fairly well settled that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision. This implies that terms subject to which tenders are invited are not open to the judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular tenderer or class of tenders. So also, the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process.” On the ratio laid down above and having regard to the facts and circumstances of the instant case, there is no material justifying exercise of power of judicial review. On the count, the appellant is not entitled to any relief as sought for. 24. For all the reasons and discussions above, there is no merit in the present appeal and the same is liable to be dismissed. The judgment under appeal warrants no interference and is accordingly upheld. 25. The appeal is accordingly dismissed and the parties are left to bear their own costs. Records so produced by Ms. Aier are returned herewith.