JUDGMENT Sujit Narayan Prasad, J. - The writ petition is under Article 226 of the Constitution of India wherein the following prayers have been made:- (i) for quashing the decision of the tendering authority of the respondent Central Coalfields Limited (in short C.C.L.) contained in e-mail dated 03.12.2018 (Annexure4), whereby and whereunder the bid of the petitioner has been rejected for the tender invited vide NIT No.CCL/GM(CMC)/Dhori/2018/27 dated 18.06.2018 in respect of the work "Loading and transportation of coal from AAD-OCM Surface Stock yard heap No.7 to feeder breaker of Dhori Siding for a period of 2 years in Dhori area", only with a reason that "Being Technically Not Eligible Bidder", without assigning any reason. (ii) direct the respondents to treat the bid of the petitioner as technically qualified and to issue Letter of Acceptance, Work Order and to give work order pertaining to the aforesaid tender. (iii) to stay the operation of the Letter of Acceptance being reference No. CCL / GM (CMC) / Dhori / 2018 / NIT27 / 1581 dated 03.12.2018. 2. The brief facts of the case of the petitioner as per the pleadings made in the writ petition is that the respondent No.1-C.C.L., by publishing an e-tender notification being NIT No.CCL/GM(CMC)/Dhori/2018/27 in respect of the work "Loading and transportation of Coal from AAD-OCM Surface Stock yard heap No.7 to feeder breaker of Dhori Siding for a period of two years in Dhori Area", mentioning therein the reason only as "Being Technically Not eligible Bidder", along with the detail bidding document and uploading on the website of the respondent No.1 containing therein necessary eligibility criteria for participating in the bid. 3. The petitioner having qualified in all respects has participated in the bid by submitting the relevant documents through e-tender process but to utmost surprise to him, his bid has been cancelled without assigning any reason and as such the instant writ petition has been filed on the following grounds. (i) the impugned decision of the e-tender committee is without assigning any reason and as such the order aforesaid is nonspeaking. (ii) the petitioner submitted all relevant documents as required in terms of the tender condition but has not rightly been appreciated by the authorities and as such there is no application of mind and with ulterior motive, it has been rejected by the tendering committee at the stage of the technical scrutiny of the document. (ii) the petitioner submitted all relevant documents as required in terms of the tender condition but has not rightly been appreciated by the authorities and as such there is no application of mind and with ulterior motive, it has been rejected by the tendering committee at the stage of the technical scrutiny of the document. (iii) although in the counter affidavit several grounds have been taken justifying the reason of rejection of the bid but that is not to be taken into consideration by this Court on the principle of settled position of law with the reason which has not been assigned in the impugned decision, cannot be allowed to be improved by way of affidavit. 4. Per contra Mr. Anoop Kumar Mehta, learned counsel appearing for the Central Coalfields Limited in reference to order dated 07th January, 2019 has filed counter affidavit inter alia therein the grounds have been taken that the petitioner has not fulfilled the terms and conditions of the tender to the effect :- (a) the petitioner company has no experience as submitted by it on the basis of the certificate dated 11.06.2013. (b) name of the partner was shown as Sunita Singh although the same was executed by Suchitra Singh. (c) correct power of attorney dated 07.07.2018 was submitted much after the last date of bid submission. He, by elaborating the aforesaid reason has submitted that as per the condition of bid the requirement of submission of the document was of 05.07.2018 up to 17:00 hrs. but the petitioner has not furnished the appropriate power of attorney since the petitioner admittedly is a partnership firm and he without having any power of attorney on his behalf by the other partner namely, Suchitra Singh has furnished a power of attorney. 5. The power of attorney which has been submitted along with the bid document was dated 07.07.2018 but the power of attorney which has been submitted is dated 27.07.2018, that too, in the name of Sunita Singh (partner of M/s RN Singh and Company) while executed by one Suchitra Singh, as such, power of attorney was dated 07.07.2018, hence the same cannot be taken into consideration in view of the fact that the last date of submission of bid document was by 05.07.2018. Corrected copy of the power of attorney has again been prepared on 16.08.2018 created in the name of Mrs. Corrected copy of the power of attorney has again been prepared on 16.08.2018 created in the name of Mrs. Suchitra Singh executed by Suchitra Singh but that too after the due date of submission of the bid document i.e. dated 16.08.2018 and therefore, the requirement as stipulated in condition No.8 (f) under the caption heading "LEGAL STATUS OF BIDDER", the power of attorney to the lead partner has not been furnished. 6. The requirement as stipulated in condition No.8 (a) pertaining to work experience, the experience certificate furnished by the petitioner has been found to be not proper and therefore, he has been technically disqualified. 7. Reply to the rejoinder has been filed by the petitioner wherein it has been pleaded that the ground for rejection of the technical bid is managed since the power of attorney has been furnished before the extended date as per Annexure-3 whereby and whereunder the document submission end date and time has been extended to 24th August, 2018 and as such the first document pertaining to power of attorney is dated 27.07.2018 which is prior to the document submission end date and time (extended) i.e. prior to 24th August, 2018 and as such the ground which has been taken for nonfurnishing the appropriate power of attorney is absolutely improper. 8. Although the power of attorney dated 27.07.2018 is having with some discrepancy, same has been rectified by power of attorney dated 16.08.2018 and furnished before the authority before the extended time of 24th August, 2018. 9. So far as the experience part is concerned, it has been pleaded in the rejoinder affidavit that there is appropriate experience since the petitioner has entered into the agreement with the Hindustan Steel Works Construction Ltd. (in short H.S.C.L.) and participated in the said NIT and had awarded with the aforesaid work vide order dated 13.12.2011. The said work has been allotted in favour of the petitioner by the H.S.C.L. in terms of an agreement entered into by the H.S.C.L. with the C.C.L. vide order dated 15.09.2011 and the petitioner has performed the said work, a certificate duly been issued by the H.S.C.L. in favour of the petitioner has been brought before the technical scrutiny committee but the same has been discarded and as such the said reason is also improper for rejecting the bid document of the petitioner. 10. 10. Respondent - Central Coalfields Ltd. has filed reply to the rejoinder affidavit wherein the stand taken by the petitioner in the rejoinder affidavit has been refuted by submitted that there might be an agreement in between the H.S.C.L. and the petitioner but the same has been corroborated by the H.S.C.L. that no such agreement has been entered in between the HSCL and the petitioner rather even on raising the bill by the H.S.C.L., there is no reference of the petitioner unit, the H.S.C.L. has preferred a writ petition for disbursement of his bill amount by filing a writ petition before this Court but even in that writ petition, there is no disclosure of the name of the petitioner unit and therefore the arguments which has been advanced by the petitioner that he is having with the work experience got no substance. In response, learned counsel for the petitioner submits that there is no requirement in the terms and conditions of the bid that if any work has been done by any of the bidder directly with the C.C.L. that will only amount to experience and therefore, this reasoning is absolutely baseless. 11. This Court has heard the learned counsel for the parties at length and perused the affidavits and the documents appended to the writ petition. Before appreciating the arguments advanced by the learned counsel for the parties and answering the issues, it would be relevant to have a discussion regarding the scope of the High Court sitting under Article 226 of the Constitution of India in the tender pertaining to a contract. 12. It has been settled by the Hon''ble Apex Court that the award of a contract, whether it is by a private party of by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point, reference in this regard may be made to the paragraph 7 of the judgment rendered by the Hon''ble Apex Court in the case of Air India Ltd. vs. Cochin International Airport Ltd., (2000) 2 SCC 617 . The reference needs to be made of the judgment rendered by the Hon''ble Apex Court in the case of Tata Cellular vs. Union of India, wherein the larger bench of the Hon''ble Apex Court while dealing with the scope of judicial review in the matter of Government contract or tenders has laid down that the principle of judicial review would apply to the exercise of contractual powers of Government bodies in order to prevent arbitrariness or favoritism. However, there is inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down (paragraph 70). There can be no question of infringement of Article 14 if the Government tries to get the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down (paragraph 70). While in paragraph 71, it has been laid down that judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy, thus they are not essentially justifiable and the need to remedy any unfairness. In paragraphs 74, 75, 82, 152 and 154 of the aforesaid judgment, it has been laid down that judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision making process itself. It is thus different from an appeal. When hearing an appeal the Court is concerned with the merits of the decision under appeal since the power of judicial review is not an appeal from the decision. The Court cannot substitute its own decision. Apart from the fact that the Court is hardly equipped to do so, it would not be desirable either. Where the selection or rejection is arbitrary, certainly this Court would interfere. It is not the function of a judge to act as a superboard, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator. 13. Similar view has been taken by the Hon''ble Apex Court in the case of Raunaq International Ltd. vs. I.V.R. Construction Ltd., (1999) 1 SCC 492 wherein it has been laid down that in exercise of power of judicial review in the matter of adjudicating a commercial transaction, government to look into when there is any illegality in the decision making process. 14. In the judgment rendered in the case of Jagdish Mandal vs. State of Orissa and Ors., (2007) 14 SCC 517 it has been laid down that 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 affected. If the answers are in the negative, there should be no interference under Article 226 of the Constitution of India. 15. Equally it is necessary to make reference of the judgment rendered by the Hon''ble Apex Court in the case of Ramana Dayaram Shetty vs. The International Airport Authority of India, (1979) 3 SCC 489 wherein it has been laid down that the condition stipulated in the bid, strictly to be adhered. 16. In the backdrop of this decision of law the factual aspect involved in this case is now being scrutinized by making elaborate discussion. Admittedly an e-tender notice has been issued on 18.06.2018 for loading of coal by contractor''s pay loader into contractor''s tipping truck and transportation of coal by suitably covered contractor tipping truck to feeder breaker of Dhori siding. The bid submission end date was fixed as on 05.07.2018 by 17:00 hrs. 17. The tender notice contains the eligibility criteria as stipulated under Column No.7 wherein at condition No.7.2 it has been stipulated as :- "7.2 Joint Venture / Consortium: Two or three companies/ contractors may jointly undertake contract/contracts. Each entity will be jointly and severally responsible for completing the task as per the contract. Joint Venture/ Consortium must comply with the requirements of JV/Consortium mentioned in detail in "Instruction to bidders" and submit JV/Consortium agreement as per the format enclosed in bid document." 18. Under condition No.8 eligibility criteria of bidder has been shown. Under condition No.8(a), "Work Experience" has been provided which speaks as follows :- a) Work Experience : The bidder must have in its name or proportionate share as a member of JV/Consortium, experience of having successfully executed (includes completed / ongoing) works of similar nature valuing 65% of the annualized estimated cost of the work put to tender (for period of completion over 1 year) / 65% of the estimated cost of the work (for completion period up to one year) put to Tender in any year (consecutive 365 days) during last 7 (seven) years ending last day of month previous to the one in which bid applications are invited. Similar nature of works shall mean: Loading / Transportation / Removal of Coal / mineral / Overburden / Shale / Extraneous materials / Sand. OR Extraction of coal by mechanized means including or excluding transportation. "Annualised value" of the work shall be calculated as the "Estimated Cost/Period of completion in Days x 365". The cost of executed works shall be given a simple weightage to bring them at current price level by adding 5% for each completed year (total number of days/365) after the end date of experience till the last day of month previous to one in which e-tender has been invited. In case the bidder is a Joint Venture (JV), the work experience of any or all of the individual partners of JV may be furnished to evaluate the work experience of the bidder. In case of JV, if work experience of all the partners are not submitted the system will not disqualify the JV and instead shall consider assuming a value of zero for partner/partners who has/have not submitted the experience value and certificate. 19. The technical evaluation by the system has been formulated which speaks as follows:- Technical evaluation by the System:- i. The system shall calculate the end date by adding 365 days to the start date of experience (provided by bidder). End date shall not be later than the last date (last date of month previous to the month in which NIT has been published on e-procurement portal). ii. The system shall check the Start & End date of each experience and accept it as a qualifying experience if it falls within the year selected by the bidder (as calculated by adding 365 days to the start date restricted to the ''last date''). iii. The system shall calculate the value of each qualifying experience by multiplying the value with the % share of experience and adding 5% for each completed year (total No. of days/365) after the end date of experience of work till the last date of month previous to one in which the NIT has been published on e-Procurement portal. iv. The system shall calculate the value of all qualifying experiences taken together for each bidder and grade him as ''Eligible'' if it meets the minimum requirements (65% of Annualized Value or estimated value whichever is less) or else as ''Ineligible''. iv. The system shall calculate the value of all qualifying experiences taken together for each bidder and grade him as ''Eligible'' if it meets the minimum requirements (65% of Annualized Value or estimated value whichever is less) or else as ''Ineligible''. v. In case any of the experiences does not fall in the selected period of 365 days (continuous), such experiences will be excluded from evaluation. Hence the bidder shall have to furnish the value of work executed only during the selected period of 365 days (continuous). vi. The weightage of 5% every year will be on simple rate and will not be compounded on yearly basis for the purpose of calculating the value of each qualifying experience. vii. The work experience of the bidder may be an ongoing work and the executed value of work shall be considered for evaluation. viii.In case the experience has been earned by the bidder as an individual or proprietor of a proprietorship firm or partner of a partnership firm, then 100% value of the experience will be considered against eligibility. But if the experience has been earned by the bidder as a partner in a Joint Venture firm then the proportionate value of experience in proportion to the actual share of bidder in that Joint Venture will be considered against eligibility. 20. Under the condition No.10, the bidders have to get themselves registered online on the e-Procurement portal with valid Digital Signature Certificate (DSC) issued from any agency authorized by Controller of Certifying Authority (CCA), Govt. of India. Under the condition No.10, the requirement for the bidders to upload at the time of submission of bid with the following documents, one of which is under the heading "Legal status of bidder" under which it has been required to be submitted Joint Venture agreement containing name of partners and lead partner, Power of Attorney to the lead partner and share of each partner (as per format prescribed in bid document). 21. 21. Thus, it is evident that the bidder is required to submit the experience certificate, the Joint Venture agreement containing the name of partners and lead partner, Power of Attorney to the lead partner and share of each partner apart from the other conditions but since on these two grounds the petitioner has technically been disqualified so these two grounds are discussed in order to assess whether the petitioner has submitted these documents or not ? 22. From the counter affidavit it is evident that the power of attorney has been annexed at page No.40 which is dated 27.07.2018 which is in the name of Sunita Singh but executed by one Suchitra Singh. 23. The other power of attorney is dated 16.08.2018 created in the name of Suchitra Singh (partner of M/s RN Singh), executed by Suchitra Singh. That admitted fact herein is that the petitioner has participated in the name of M/s Suryamangalam-RN Singh (Joint Venture) as a joint venture firm and as such the power of attorney is required to be issued in favour of the M/s Suryamangalam by the M/s RN Singh and Company. 24. It is not in dispute that M/s RN Singh and Company is not a proprietorship firm rather it is a partnership firm and one of the partner is Suchitra Singh apart from Mr. RN Singh, therefore, the requirement of giving power of attorney in the name of M/s Suryamangalam business as also will be to give power of attorney by Suchitra Singh first in the name of RN Singh and thereafter the RN Singh either jointly or individually can execute power of attorney in favour of the M/s Suryamangalam but what has been gathered by this Court by the power of attorney dated 27.07.2018 is that the same has been executed in the name of Sunita Singh by Suchitra Singh in the capacity of partner of M/s RN Singh but admittedly Suchitra Singh is the partner of RN Singh and said very document was part of the technical document, subsequent to the said power of attorney dated 27.07.2018 another power of attorney has been created in the name of Suchitra Singh (partner of M/s RN Singh and Company) executed by Suchitra Singh taking into consideration the inadvertent error as the petitioner claims. The question herein is that when M/s RN Singh and Company is a partnership firm, the power of attorney is to be executed in favour of the M/s Suryamangalam by both the partners and not by one of the partner. 25. Moreover, the said power of attorney has been created on 27.07.2018 i.e. prior to the bid submission end date i.e. 05.07.2018 and hence the same has not been taken into consideration, however, the arguments has been advanced by the learned counsel for the petitioner by referring to Annexure-3 at this juncture that the date has been extended to 24th August, 2018 and prior to that date the power of attorney dated 27.07.2018 has been furnished but on scrutiny of Annexure-3 the same cannot be treated to be extension of the date of submission of bid document since it is the extension of date for confirmatory document submission confirmation and as such the same cannot be considered to be the extension of the date of submission of bid document as stipulated in the notice inviting tender. Therefore, even on the face of the power of attorney dated 27.07.2018 or 16.08.2018, the same has been executed by Suchitra Singh initially in the name of Sunita Singh but subsequently in the name of Suchitra Singh but there is no power of attorney executed by both the partners of RN Singh in favour of M/s Suryamangalam, hence, the said document cannot be said to be a power of attorney as per the terms and conditions stipulated in the notice inviting tender, moreover, the same since has been prepared after the end date of submission of the bid document, has rightly not been taken into consideration. 26. The other ground which pertains to the work experience, the petitioner claims that he has entered into the work experience with the Hindustan Steel Construction Ltd. (H.S.C.L.) and to that effect, he has annexed document pertaining to entering into an agreement with the H.S.C.L. for executing the work which has been refuted by the C.C.L. on the ground that the petitioner claims to have worked with the H.S.C.L. by entering into an agreement but on its verification from Hazaribagh area it has been informed that M/s RN Singh and Company has not executed work at Tapin South Outsourcing/Colliery of Hazaribagh area during the period from 24.02.2012 to 05.06.2013 as per the available official records. It has been sought to be justified by the petitioner that they have not directly entered into agreement with the Central Coalfields Ltd., and therefore, it cannot be said to be non-execution of the work but the question herein is that the condition stipulated under the heading ''Work Experience'' suggests that the bidder himself have in its name or proportionate share as a member of JV/Consortium having successfully executed works of similar nature valuing 65% of the annualized estimated cost of the work put to tender (for a period of one year) / 65% of the estimated cost of the work put to tender in any year but it is evident from the document annexed by the petitioner, the certificate to that effect is not there and as such merely on account of a certificate issued by the H.S.C.L. it cannot be considered to be work experience unless the certificate in terms of the stipulation made under the heading of ''Work Experience'' will be furnished. 27. The third ground has been taken that the impugned order is without any reason and therefore, the reason which has been assigned in the counter affidavit cannot be said to be a reason since the same is not reflected in the impugned decision. On the position of law that the reason is different reflected from the face of the order and thus cannot be allowed to be improved by way of affidavit. Reliance in this regard has been made by the learned counsel for the petitioner in the judgment rendered in the case of Rashmi Metaliks Limited and Anr. vs. Kolkata Metropolitan Development Authority and Ors., (2013) 10 SCC 95 . It is not in dispute that the reason is different reflected in the face of the order and it cannot be allowed to be improved by way of affidavit as has been held on the judgment rendered in the case of Commissioner of Police, Bombay vs. Gordhandas Bhanji, (1952) AIR SC 16 and Mohinder Singh Gill and Anr. vs. The Chief Election Commissioner, New Delhi and Ors., (1978) 1 SCC 405 . vs. The Chief Election Commissioner, New Delhi and Ors., (1978) 1 SCC 405 . But the fact is to be seen that even if the reason has not been reflected and if it would be remitted before the authority for passing an appropriate order assigning the reason, what would be the result, whether there is any chance of change in the decision, if the answer will be affirmative, certainly the reasons needs to be reflected before the authority for passing fresh order but when the answer will be negative, remitting the matter without any purpose will be said to be empty formality and futile exercise and it is settled that if there is no any chance in the change of the decision merely on account of passing a fresh order the matter needs to be remitted before the authority. Reference in this regard be made to the judgment rendered in the case of Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, U.P. & others, (2004) 4 SCC 281 wherein Hon''ble the Apex Court has held at paragraph-64 which is being quoted herein below: "64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India." 28. In view of the legal position explained by us above, we therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India." 28. In view of the position of law, the factual aspect as has been narrated by this Court hereinabove is very much clear that admittedly the petitioner has not submitted the appropriate power of attorney as also the experience certificate, and hence, if the matter would be remitted before the authority, there is no chance of change in the impugned decision taking into consideration the aforesaid document and hence, the same would be an empty formality and futile exercise. 29. So far as the reliance placed upon the judgment rendered in the case of Rashmi Metaliks Ltd. (supra) is whether the factual aspect involved in the aforesaid case is that on the ground of the income tax return the bidder has been technically disqualified but Hon''ble Apex Court after considering the condition stipulated in the e-tender notice when found that the submission of the income tax return was not an essential element or ingredient or consortium of the said NIT, therefore, quashed the decision, but here in the instant case that is not the fact rather the fact herein is that the condition stipulated in the bid so far as it relates to power of attorney and the experience certificate had not found to be satisfactory, and therefore, the judgment rendered by the Hon''ble Apex Court in the case of Rashmi Metaliks Ltd. (supra) is not applicable in the facts and circumstances involved in this case. Moreover, Letter of Acceptance has already been issued in favour of the respondent No.3 on 03.12.2018 and agreement has also been entered into on 26.12.2018, on this ground also, interference by this Court under Article 226 of the Constitution of India, when there is no error in the decision making process, will not be proper as per the proposition laid down by the Hon''ble Apex Court in the judgment rendered hereinabove. 30. In view thereof and in the entirety of the facts and circumstances of the case, there is no merit in this writ petition, accordingly, the writ petition fails and is dismissed.