JUDGMENT : Badar Durrez Ahmed, J. This appeal is directed against the judgment dated 12.10.2017 delivered by a learned Single Judge of this Court in OWP no.1389/2017. The said writ petition was filed by the respondent herein being aggrieved by the communication received from the appellant whereby the respondent’s bid was rejected under Clause 2.16 of the Request for Proposal Document. The ground was that the respondent’s bid security was not in the form of a demand draft/bank draft for the sum of Rs 5 lakhs. Though, the respondent had submitted a bank guarantee for the said amount. 2. The learned Single Judge agreed with the arguments raised by the learned counsel for the respondent that the requirement of furnishing a bid security/EMD in the form of a demand draft/ bank draft was a non-essential condition and that the respondent had substantially complied with the same by furnishing a bank guarantee for the same amount. The learned Single Judge concluded as under:— “12. The moot question which arises for consideration, is whether requirement contained in Clause 2.16.2(i) is mandatory condition or a collateral condition. From conjoint reading of the clauses, which have been reproduced above it is evident that clause 2.16.2(i) does not provide for any consequence of non-furnishing of bid security in the form of Demand Draft or Bank Draft. In the instant case petitioner has furnished bank guarantee. In other words, petitioner has substantially complied with the requirements contained in Clause 2.16.2. The bidders participating in tender process have right to equality and fair treatment in the matter of evaluation of competitive bids offered by them in transparent manner. It is pertinent to mention here that in response to request for proposal, only four bidders have submitted their bids including petitioner. If petitioner is excluded, only three bidders would be entitled for considered of their bids. Therefore, in the considered opinion of this Court, the decision of the Corporation to treat condition no.2.16.2(i) as mandatory is irrational and suffers from vice of arbitrariness. The decision relied upon by learned counsel for corporation in the case of Central Coalfields Limited (supra), is of no assistance to the corporation in the fact situation of the case as the ratio laid down in the case of Poddar Steel Corporation (supra) relied upon by the Supreme Court.” (Underlining added) 3. The decision relied upon by learned counsel for corporation in the case of Central Coalfields Limited (supra), is of no assistance to the corporation in the fact situation of the case as the ratio laid down in the case of Poddar Steel Corporation (supra) relied upon by the Supreme Court.” (Underlining added) 3. The learned counsel for the appellant submitted that the learned Single Judge had gone wrong because the condition which required the furnishing of the bid security in the form of a demand draft/ bank draft was an essential condition and the fact that the respondent had not submitted the bid security in that form entailed that the bid of the respondent was non-responsive and was liable to be rejected under Clause 2.21.4 read with Clause 2.16 of the Request for Proposal Document. He also submitted that the fact that the bid security was required to be submitted in a particular manner had been clearly specified in the RFP document in Clause 2.16 and any deviation there from would result in the bid being non-responsive, the consequence of which would be liability of the bid being rejected. The learned counsel for the appellant placed reliance on two decisions of the Supreme Court in support of his arguments. The first decision was in the case of Michigan Rubbeer (India) Limited v. State of Karnataka and others: (2012) 8 SCC 216 and the second decision was in the case of Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium) : (2016) 8 SCC 622 . We may, at this juncture itself, refer to the relevant portions of the said decisions. 4. In Michigan Rubber (India) Limited (supra), the Supreme Court after considering various decisions including Jagdish Mandal v. State of Orissa : (2007) 14 SCC 517 and Tejas Constructions & Infrastrucutre (P) Ltd. v. Municipal Council, Sendhwa : (2012) 6 SCC 464 , held as under:— “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 or a discernible reason and not whimsically for any ulterior purpose. These actions are amenable to the judicial review only to the extent that the State must act validly or 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 the 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 court 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 the 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 a 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 the negative, then there should be no interference under Article 226.” 5. In Central Coalfields Ltd. (supra), the Supreme Court after examining several other decisions including Poddar Steel Corpn. vs. Ganesh Engg. and (ii) Whether the public interest is affected? If the answers to the above questions are in the negative, then there should be no interference under Article 226.” 5. In Central Coalfields Ltd. (supra), the Supreme Court after examining several other decisions including Poddar Steel Corpn. vs. Ganesh Engg. Works, (1991) 3 SC 273, Rashmi Metaliks Ltd. vs. Kolkata Metropolitan Development Authority, (2013) 10 SCC 95 , Bakshi Security and Personnel Services Pvt. Ltd. vs. Devkishan Computed Pvt. Ltd., 2016 (8) SCC 446 , Jagdish Mandal (supra), Michigan Rubber (India) Limited (supra), Ramana Dayaram Shetty vs. International Airport Authority of India, (1979) 3 SCC 489 and Tata Cellular vs. Union of India, (1994) 6 SCC 651 held as under:— “46. It is true that in Poddar Steel and in Rashmi Metaliks a distinction has been drawn by this Court between essential and ancillary and subsidiary conditions in the bid documents. A similar distinction was adverted to more recently in Bakshi Security and Personnel Services Pvt. Ltd. V. Devkishan Computed Pvt. Ltd. 2016 (7) SCALE 425 through a reference made to Poddar Steel. In that case, this Court held a particular term of the NIT as essential (confirming the view of the employer) and also referred to the “admonition” given in Jagdish Mandal followed in Michigan Rubber (India) Limited v. State of Karnataka, (2012) 8 SCC 216 . Thereafter, this Court rejected the challenge to the employer’s decision holding Bakshi Security and Personnel Services ineligible to participate in the tender. 47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the pont of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty the terms of the NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision “that no responsible authority acting reasonably and in accordance with relevant law could have reached” as held in Jagdish Mandal followed in Michigan Rubber. 48. Therefore, whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot. 49. Again, looked at from the point of view of the employer if the Courts take over the decision-making function of the employer and make a distinction between essential and nonessential terms contrary to the intention of the employer and thereby re-write the arrangement, it could lead to all sorts of problems including the one that we are grappling with. For example, the GTC that we are concerned with specifically states in Clause 15.2 that “Any Bid not accompanied by an acceptable Bid Security/ EMD shall be rejected by the employer as non-responsive.” Surely, CCL ex facie intended this term to be mandatory, yet the High Court held that the bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non-essential term of the GTC. From the point of view of CCL the GTC has been impermissibly rewritten by the High Court. 50. From the point of view of CCL the GTC has been impermissibly rewritten by the High Court. 50. Yet another problem could be faced by an employer (such as CCL) if the language used in the terms of the NIT or the GTC is not adhered to and its plain meaning discarded. A problem could be faced by an employer if every bidder furnishes a bank guarantee in a different format or one that it is comfortable with. In such a situation, CCL would have to scrutinize each bank guarantee to ascertain whether it meets with its requirements and the NIT and the GTC. Apart from the text of the bank guarantee, minor changes could be made by a bidder such as enforceability in a place other than Ranchi (but in Jharkhand) etc. This would place an avoidable and undue burden on the employer particularly if there are a large number of bidders. 51. Not only this, any decision taken by the employer in accepting or rejecting a particular bank guarantee in a format not prescribed by it could lead to (avoidable) litigation requiring the employer to justify the rejection or acceptance of each bank guarantee. This is hardly conducive to a smoother and hassle-free bidding process. 52. There is a wholesome principle that the Courts have been following for a very long time and which was articulated in Nazir Ahmad v. King Emperor AIR 1936 PC 253 namely “Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.” There is no valid reason to give up this salutary principle or not to apply it mutatis mutandis to bid documents. This principle deserves to be applied in contractual disputes, particularly in commercial contracts or bids leading up to commercial contracts, where there is stiff competition. It must follow from the application of the principle laid down in Nazir Ahmed that if the employer prescribes a particular format of the bank guarantee to be furnished, then a bidder ought to submit the bank guarantee in that particular format only and not in any other format. However, as mentioned above, there is no inflexibility in this regard and an employer could deviate from the terms of the bid document but only within the parameters mentioned above.” (Underlining added) 6. However, as mentioned above, there is no inflexibility in this regard and an employer could deviate from the terms of the bid document but only within the parameters mentioned above.” (Underlining added) 6. The learned counsel for the respondent had also sought to place reliance on Central Coalfields Limited (supra) by referring to the quote from Ramana Dayaram Shetty (supra), where the Supreme Court had observed that every action of the executive Government must be informed with reason and should be free from arbitrariness and that this was the very essence of the rule of law and its bare minimal requirement. According to the learned counsel for the respondent, since, as per the learned counsel, the respondent had substantially complied by furnishing a bank guarantee, the appellant had acted arbitrarily by rejecting the bid on the ground that the same was non-responsive because it was not in the form of a demand draft/ bank draft. 7. Another point urged by the learned counsel for the respondent was with regard to the stage of consideration of responsiveness of a bid. He submitted, by referring to paragraph 5 of the counter affidavit filed by the appellant before the learned Single Judge, that the technical bid of the respondent had been evaluated and that in the process of evaluation, the same was rejected on the ground of non-responsiveness. He submitted that, therefore, the appellant should be estopped from taking the plea that the bid was non-responsive as that stage had been crossed. According to him, two stages were required to be crossed before a bidder would be eligible for having his price bid opened. The first stage was the stage of considering responsiveness and the second stage was evaluation of the technical bid. According to the learned counsel, the first stage had been crossed and it was in the course of evaluation that the bid was rejected. It is based on this premise that the learned counsel for the respondent submits that the action of the appellant was arbitrary and consequently open to judicial review and, therefore, ought to be set at naught. 8. We have considered the arguments advanced by the counsel for the parties. 9. At the outset we may point out that we do not agree with the decision of the learned Single Judge. There are several reasons for the same. 8. We have considered the arguments advanced by the counsel for the parties. 9. At the outset we may point out that we do not agree with the decision of the learned Single Judge. There are several reasons for the same. The first being that the learned Single Judge did not notice the provisions of Clause 2.21.3 and 2.21.4 in the impugned judgment. The said clauses are extremely relevant and they read as under: “2.21.3 Prior to evaluation of Proposals, the Corporation will determine whether each Proposal is responsive to the requirements of the RFP. A Proposal shall be considered responsive only if: (a) the Technical Proposal is received in the form specified at Appendix-I; (b) it is received by the PDD including any extension thereof pursuant to Clause 2.17; (c) it is signed, sealed & marked as stipulated in Clauses 2.13 and 2.16; (d) it is accompanied by the Power of Attorney as specified in Clause 2.2.4; (e) it contains all the information (complete in all respects) as requested in the RFP; (f) it does not contain any condition or qualification; and (g) it is not non-responsive in terms hereof. 2.21.4 The Corporation reserves the right to reject any Proposal which is non-responsive and no request for alteration, modification, substitution or withdrawal shall be entertained by the Corporation in respect of such Proposals.” (Underlining added) 10. It is evident that Clause 2.21.3 is part of the evaluation process. Clause 2.21.2 stipulates that the technical proposal shall be opened first. Clause 2.21.3 stipulates that prior to evaluation of proposals, the Corporation will determine whether each proposal is responsive to the requirements of the RFP. Specifically, it is provided that a proposal shall be considered responsive only if, inter alia, it contains all the information (complete in all respects) as requested in the RFP document and it is not non-responsive in terms thereof. Clause 2.21.4, as extracted above, clearly stipulates that the Corporation reserves the right to reject any proposal which is non-responsive. The learned Single Judge, as pointed out by us, missed these clauses. It is for this reason that in paragraph 12 of the impugned judgment, he has observed that Clause 2.16.2(i) does not provide for any consequence of non-furnishing of a bid security in the form of a demand draft or bank draft. The learned Single Judge, as pointed out by us, missed these clauses. It is for this reason that in paragraph 12 of the impugned judgment, he has observed that Clause 2.16.2(i) does not provide for any consequence of non-furnishing of a bid security in the form of a demand draft or bank draft. The requirement of furnishing a bid security in the form of demand draft or bank draft was spelt out in Clause 2.16.2(i). The relevant portion of Clause 2.16 which pertains to submission of proposal reads as under:— “2.16 Submission of Proposal 2.16.1 All the scanned documents as mentioned at clause no.2.14 be submitted. 2.16.2 List of documents to be scanned and submitted within the period of tender submission: i. Bid Security in favor of Managing Director Jammu & Kashmir Cable Car Corporation in form of DD/Bank draft issued by nationalized/ scheduled bank payable at Srinagar/ Jammu (these instruments issued by a cooperative bank will NOT BE ACCEPTED under any circumstances}; xxxx xxxx xxxx xxxx xxxx” (Underlining added) 11. We must also read Clause 1.4 which pertains to the sale of the RFP document. The said clause reads as under:- “1.4 Sale of RFP Document RFP document can be obtained between 1000 HRS and 1700 HRS on all working days from the office of the Corporation as mentioned in Section 1.9 below. The Bidders shall submit an amount of INR 5,00,000/- (Five Lakh only) as EMD in favor of Jammu & Kashmir Cable Car Corporation as a part of bid submission.” (Underlining added) 12. On a conjoint reading of Clauses 1.4 and 2.16.2(i), it is evident that the quantum of the earnest money deposit is specified at Rs. 5 lakhs in Clause 1.4. However, the form and manner in which the said earnest money deposit/ bid security is to be made is specified in clause 2.16.2(i). The said clause stipulates that the bid security shall be in favour of the Managing Director, Jammu & Kashmir Cable Car Corporation, in the form of a demand draft/ bank draft issued by a nationalized/ scheduled bank and the same should be payable at Srinagar/ Jammu. It also stipulates that such instruments issued by a cooperative bank would not be accepted under any circumstances. In other words, even Demand Drafts/ Bank Drafts issued by Cooperative banks would not be acceptable, what to speak of bank guarantees. It also stipulates that such instruments issued by a cooperative bank would not be accepted under any circumstances. In other words, even Demand Drafts/ Bank Drafts issued by Cooperative banks would not be acceptable, what to speak of bank guarantees. Furthermore, there is no mention of the bid security/ EMD being furnished in the form of a bank guarantee. In other words, the RFP document specifically required the bid security amount of Rs 5 lakhs to be furnished either in the form of a demand draft or a bank draft issued by a nationalized/ scheduled bank and to be payable at Srinagar/ Jammu. 13. The learned counsel submitted that along with the RFP document, the format of a bank guarantee has been annexed in Appendix III and, therefore, it is evident that the bank guarantee would also be acceptable to the appellant. We are afraid that we cannot agree with this submission made by the learned counsel for the respondent primarily for the reason that the said Appendix III does not form part of the RFP document. Clause 2.9 describes the contents of the RFP. Clause 2.9.1 is relevant and the same is reproduced herein below:— “2.9.1 This RFP comprises the Disclaimer set forth hereinabove, the contents as listed below and will additionally include any Addendum/ Amendment issued in accordance with Clause 2.11: Request for Proposal 1. Introduction 2. Instructions to Applicants 3. Criteria for Evaluation 4. Fraud and corrupt practices 5. Pre-Proposal Conference 6. Miscellaneous Schedules 1. Terms of Reference 2. Guidance Note on Conflict of Interest 3. Appendices Appendix – I : Technical Proposal Form 1 : Letter of Proposal Form 2 : Particulars of the Applicant Form 3 : Statement of Legal Capacity Form 4 : Power of Attorney Form 5 : Financial Capacity of the Applicant. Form 6 : Particulars of Key Personnel Form 7 : Abstract of Eligible Assignments of the Applicant Form 7A : Abstract of other relevant experience of the Applicant. Form 6 : Particulars of Key Personnel Form 7 : Abstract of Eligible Assignments of the Applicant Form 7A : Abstract of other relevant experience of the Applicant. Form 8 : Abstract of Eligible Assignments of Key Personnel Form 8A : Abstract of other relevant experience of Key Personnel Form 9 : Eligible Assignments of Applicant Form 9A : Other relevant assignments of Applicant Form 10 : Eligible Assignments of Key Personnel Form 10A : Other relevant assignments of Key Personnel Form 11 : CVs of Professional Personnel Form 12 : Proposal for Sub-consultants Appendix –II: Financial Proposal Form 1 : Covering Letter Form 2 : Financial Proposal Form 3 : Deleted.” (Underlining added) 14. While appendices I and II are included in the RFP document, appendix III does not find any mention. In other words, Appendix III did not form part of the RFP document in respect of the present tender. Therefore, the argument advanced by the learned counsel for the respondent that the RFP document itself provided for the bank guarantee format cannot be accepted. 15. Apart from the above, the decision of the Supreme Court in Michigan Rubber, requires us to ask two questions before we can interfere, in exercise of our power of judicial review, in a tender matter. Those two questions have already been extracted above. It is nobody’s case before us that the process adopted or the decision made by the authority was malafide or intended to favour someone. The second aspect that has to be considered is whether the process adopted or decision made is so arbitrary and irrational that the court can say that the decision is such that no responsible authority acting reasonably and in accordance with relevant law would have reached. Unfortunately, for the respondent, we cannot say so in the present case. The RFP document itself provided that the bid security has to be in the form of a demand draft/ bank draft. There was no mention of a bank guarantee. Therefore, when the appellant decided that the respondent’s bid was non-responsive as it did not contain a bid security in the form of a demand draft/ bank draft, it cannot be said that it acted in a manner in which no responsible authority acting reasonably and in accordance with the relevant law would have acted. Therefore, when the appellant decided that the respondent’s bid was non-responsive as it did not contain a bid security in the form of a demand draft/ bank draft, it cannot be said that it acted in a manner in which no responsible authority acting reasonably and in accordance with the relevant law would have acted. The aspect of public interest is also not affected because while it may be in public interest to have greater competition it is also in public interest that the tender conditions are complied with and there is no uncertainty in that area. We may also observe that we cannot say that the condition for requiring the bid security to be by way of a bank draft/ demand draft was not essential because it is for the employer to stipulate that condition. It may very well be that the employer does not want to be embroiled in litigation with regard to bank guarantees where a party could seek an injunction on one ground or the other. The employer perhaps would be better secured in the process of bid opening and bid evaluation if the amount is received in its account. That can only be done through a bank draft/ demand draft in favour of the employer. Therefore, we cannot conclude that the condition was non-essential. 16. We may also note that the decision of the Supreme Court in Central Coalfields Limited (supra) would squarely apply in the facts of the present case. The important point to note is that the issue of acceptance or rejection of a bid should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. The soundness of the decision, as pointed out by the Supreme Court, may be questioned if it is irrational or mala fide or intended to favour someone. That, we have already pointed out above, is not the case here. It is also not the case that no responsible authority acting reasonably and in accordance with relevant law could have arrived at the conclusion which the appellant has in rejecting the bid of the respondent as being non-responsive. We are also mindful of the Supreme Court finding in the said decision that whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. We are also mindful of the Supreme Court finding in the said decision that whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. In the present case, the employer/ appellant has also considered the said term requiring the furnishing of the bid security in the form of a bank draft/ demand draft as an essential term. In any event, there is nothing before us which would enable us to take a different view. 17. Finally, we deal with the submission made by the learned counsel for the respondent that the test of responsiveness had already been done and the respondent had gone through that stage and, therefore, it was not open for the appellant to turn back and say that the respondent’s bid was non-responsive at the stage of evaluation of the bid. 18. We may note that Clause 2.21 deals with the evaluation of proposals. This falls under heading-”EVALUATION PROCESS”. Clause 3 deals with “Criteria for Evaluation” and 3.1 pertains to the “Evaluation of Technical Proposals”. In the counter affidavit filed by the appellant, it is stated that the technical bid of the respondent was considered on the touchstone of conditions contained in the request for proposal. From this, the learned counsel for the respondent wants us to infer that the stage of evaluation of proposals as prescribed in Clause 2.21.3 had been crossed and that the proposals were being evaluated under Clause 3.1. We are afraid that we cannot arrive at such an inference. Because both the stages are under the larger heading “Evaluation Process” and there is no material on record to show that the first stage of considering the responsiveness of the proposals had been crossed and that the technical proposals were in the process of being evaluated. Therefore, the contention of the learned counsel for the respondent on this ground is also rejected. 19. For the foregoing reasons, the impugned judgment is set-aside. The appeal is allowed and the writ petition is dismissed.