JUDGMENT : (PER : HONOURABLE MR.JUSTICE K.M.THAKER) 1. In present petition under Articles 226, 14 and 19(1)(g) of the Constitution, the petitioner has challenged one of the conditions in the tender and prayed that: “12(B)Be pleased to issue a Writ of Mandamus and/or a Writ in the nature of Mandamus or any other appropriate Writ, Direction or Order directing the Respondents, its agents or servant to allow the petitioner, a trader, to participate in the tender process being Tender No.GMSCL/D623/RC/201718 by quashing and setting aside the condition being B(l) which only permits manufacturer and importers to participate in the tender process holding it violative of Article 14 and 19(1)(g) of the Constitution of India. (C) Be pleased to issue a Writ of Mandamus and/or a Writ in the nature of Mandamus or any other appropriate Writ, Direction or Order directing the Respondents, its agents or servant to initiate appropriate proceeding; against the manufacturers who have submitted false Higher/Lower price certificate in the previous tender being Tender Notice No.GMSCL/D/04/201617. (D) Be pleased to issue a Writ of Mandamus and/or a Writ in the nature of Mandamus or any other appropriate Writ, Direction or Order directing the Respondent no.1, its agents or servants to inquire about the genuineness, correctness, impartialness, of the Respondent no.2 in tender process being Tender No.GMSCL/D623/RC/201718. (E) Pending admission till the final disposal of this Petition, be pleased to grant ad interim relief in terms of directing the Respondent no.2 to allow the petitioner to submit its bid in connection with Tender No. GMSCL/D623/RC/201718 and/or be pleased to stay the tender proceedings.” 2. Somewhere between August 2017 to November 2017, the respondent No.2 corporation issued Notice Inviting Tender (NIT for short) [No.GMSCL/D/623/RC/201718] whereunder the respondent No.1 corporation invited bids for liquid medical gases [for four zones viz. Vadodara, Surat, Rajkot and Bhavnagar]. 3. At the outset, it is relevant to mention that the said product i.e. medical gas is required by several civil hospitals, other government hospitals and hospitals run by local authorities. Any delay or disruption or irregularity in continuous supply could result into a calamity and may create life threatening situation for many patients. 4. By means of present petition, which appears to have been filed on or around 17.11.2017, the petitioner has challenged One Tender Condition (eligibility criteria) and prayed for abovequoted relief. 5. Any delay or disruption or irregularity in continuous supply could result into a calamity and may create life threatening situation for many patients. 4. By means of present petition, which appears to have been filed on or around 17.11.2017, the petitioner has challenged One Tender Condition (eligibility criteria) and prayed for abovequoted relief. 5. Before proceeding further, it is relevant to note that somewhere in 201617, present respondent No.2 corporation had issued one NIT ie NIT No.GMSCL/D/595/RC/20162017 whereunder also, bids for same product were invited. 5.1 The said previous NIT was issued for six zones [viz. Gandhinagar, Ahmedabad, Vadodara, Surat, Rajkot and Bhavnagar]. Under the said previous NIT, almost identical eligibility criteria was prescribed by way of clause No.9(a) and (b). 5.2 What is relevant and pertinent is the fact that the said previous NIT and tender process were challenged by present petitioner in SCA No.4712 of 2017. However, though, in said previous NIT, similar condition/eligibility criteria [i.e. clause No.9(a) and 9(b)] were prescribed, this very petitioner, in its said previous SCA No.4712 of 2017 did not challenge the said conditions/eligibility criteria. In the said SCA No.4712 of 2017, present petitioner prayed, inter alia, that: “17b. Your Lordships may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction directing the Respondent No.1 to reject the tender of Respondent No.2 i.e. Tender Enquiry No.GMSCL/D595/RC/201617 having Tehder Notice No.GMSCL/D04/201617 for supply of various medicai gases to various Zones and quas and set aside the rate contract awarded to Respondent No.3 for supply of Medical Oxygen Cylinder, D Type (Bulk). c. Your Lordships will be pleased to direct the Respondent No.1 to reinvite the tenders in question for supply of various medical gases to various Zones.” 5.3 The said petition, ultimately, came to be disposed of as withdrawn (since the respondent No.1 corporation decided to cancel said previous NIT). c. Your Lordships will be pleased to direct the Respondent No.1 to reinvite the tenders in question for supply of various medical gases to various Zones.” 5.3 The said petition, ultimately, came to be disposed of as withdrawn (since the respondent No.1 corporation decided to cancel said previous NIT). The order dated 5.9.2017 whereby said SCA No.4712 of 2017 came to be disposed of reads thus: “[1.0] By way of this petition under Article 226 of the Constitution of India the petitioner has prayed for the following reliefs; (A) Your Lordships may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction directing the respondent no.1 to reject the tender of respondent no.2 i.e. Tender Enquiry No.GMSCL/D595/RC/201617 having Tender Notice No.GMSCL/D04/201617 for supply of various medical gases to various zones and quash and set aside the rate contract awarded to respondent no.3 for supply of Medical Oxygen Cylinder, D Type (Bulk). (B) Your Lordships will be pleased to direct the respondent no.1 to reinvite the tenders in question for supply of various medical gases to various zones. (C) Pending the admission and final hearing, your Lordships will be pleased to restrain the respondent no.1 from entering into the Agreement with respondent no.2 for supply of various medical gases to various zones pursuant to Tender Enquiry No.GMSCL/D595/RC/201617 having Tender Notice No.GMSCL/D04/ 201617. [2.0] Present petition was heard time and again. Learned advocates appearing on behalf of the respective parties were heard at length. Today when the present petition is taken up for further hearing, Shri Utkarsh Sharma, learned advocate appearing on behalf of respondent no.1 has stated at the Bar, under instructions from the Managing Director with the approval of Additional Chief Secretary, that the entire earlier Tender process /proceedings are withdrawn and respondent no.1 shall go for the fresh Tender. He has stated at the Bar that therefore the entire Tender process with respect to Tender Enquiry No.GMSCL/D595/RC/201617 having Tender Notice No.GMSCL/D04/201617 shall stand cancelled, including the acceptance of the bid of respondent no.3. [3.0] Shri Anip Gandhi, learned advocate appearing on behalf of respondent no.3 has stated at the Bar that respondent no.3 also has no objection if the entire Tender process with respect to the above Tender enquiry and acceptance of the bid of respondent no.3 are cancelled and fresh Tenders are invited for the aforesaid. [3.0] Shri Anip Gandhi, learned advocate appearing on behalf of respondent no.3 has stated at the Bar that respondent no.3 also has no objection if the entire Tender process with respect to the above Tender enquiry and acceptance of the bid of respondent no.3 are cancelled and fresh Tenders are invited for the aforesaid. [4.0] In view of the above, the entire Tender process with respect to Tender Enquiry No.GMSCL/D595/RC/201617 having Tender Notice No.GMSCL/D04/201617 including the acceptance of the bid of respondent no.3 for the aforesaid Tender Enquiry stands cancelled/quashed and set aside. Respondent no.1 to invite fresh Tenders for which the process shall be commenced within a period of one week from today and the same shall be concluded within a period of two months from today. With this, present petition stands disposed of.” 5.4 After the said previous NIT came to be cancelled and the petition came to be withdrawn, fresh NIT (i.e. present NIT No.GMSCL/D/623/RC/201718) came to be issued somewhere during August 2017 to November 2017. 5.5 Upon issuance of said fresh NIT, the same petitioner (who had filed SCA No.4712 of 2017) preferred present petition. 6. In present petition, the same petitioner has preferred to challenge the eligibility criteria [i.e. clause (B)(1) which is similar to clause 9(a) of the previous NIT]. Differently put, what was not challenged in previous petition is placed under challenge in subsequent/present petition. 6.1 In this backdrop, it would be appropriate to take into account the narration of facts by the petitioner. As regards the factual backdrop, the petitioner has averred and stated that: “(2) The petitioner is an authorized dealer and supplier of Medical Oxyzen (Cylinder) D Type (bulk) at Rs.140/as well as liquid oxyzen at Rs.15.50 per litre i.e. Rs.17.61 per cubic meter to New Civil Hospital, Majura Gate, Surat. It is submitted that the petitioner was given the orders of supply pursuant to the tenders that were floated by the New Civil Hospital, Majura Gate, Surat. It is submitted that the procurement by all the Civil Hospitals of the various Zones was done at the local level by issuing online tenders. It is submitted that the petitioner was given the orders of supply pursuant to the tenders that were floated by the New Civil Hospital, Majura Gate, Surat. It is submitted that the procurement by all the Civil Hospitals of the various Zones was done at the local level by issuing online tenders. The copies of the order placed by New Civil Hospital, Majura Gate, Suarat are annexed hereto and marked as Annexure A. (3) It is submitted that, however, consolidated tender for six zones i.e. Gandhinagar, Ahmedabad, Vadodara, Surat, Rajkot and Bhavnagar being Tender Notice No.GMSCL/D/04/201617 came to be issued by the Respondent no.2 for purchase of various quantity of products for various zones. (4) It is submitted that in the aforesaid tender process, the Respondent no.2 had favored M/s. AIMS Industries Ltd. and M/s. Linde Limited by ignoring scrutiny report dated 26/10/2016 as well as higher price/lower price Certificate produced by the aforesaid manufacturers. Therefore, the petitioner had approached this Honourable High Court by way of Special Civil Application No.4712/2017 for the various reliefs. It is submitted that after completion of pleadings and having heard the matter time and again and in length, statement on behalf of the present Respondent No.2 came to be made that the entire tender process has been withdrawn and further cancelled the acceptance of tender of M/s. Linde Limited. In view of the aforesaid statement being made, the Honourable High Court vide its order dated 05/09/2017 disposed of the petition with a direction to invite fresh tender within a one week and further directed to conclude the same within a two months. The copy of the entire paper book of Special Civil Application No.471 of 2017 as well as the order dated 05/09/2017 are annexed hereto and marked as Annexure B Colly. (5) In view of the aforesaid facts and circumstances, the Respondent no.2 has floated Tender No.GMSCL/D/623/RC/201718 for liquid medical gases for four zones i.e. Vadodara, Surat, Rajkot and Bhavnagar. It is submitted that due date and time of submission of Technical Bid and Commercial Bid (online) was fixed at 02/11/2017 upto 4.00 pm. and due date and time of physical submission of Technical supporting documents inclusive of document fees and EMD was Fixed on 03/11/2017 upto 4.00 pm. It is submitted that, however, by way of corrigendum, time limit for submitting Bid and documents came to be extended upto 17.11.2017. and due date and time of physical submission of Technical supporting documents inclusive of document fees and EMD was Fixed on 03/11/2017 upto 4.00 pm. It is submitted that, however, by way of corrigendum, time limit for submitting Bid and documents came to be extended upto 17.11.2017. The copy of the Tender document is annexed hereto and marked as Annexure C. (6) It is submitted that as per the information available, in the entire State of Gujarat there only two manufacturers are available i.e. M/s. AIMS Industries Limited and M/s. Linde Limited and admittedly both of them are found to have submitted false Certificate ie Higher Price/Lower Price Certificate and thereby in principle liable to be blacklisted. It is submitted that both these manufacturers are supplying the very product at a much lower price than what was offered by them in the earlier tender process. It is further submitted that despite the aforesaid fact came up on record, the Respondent has, for the obvious reason, not taken the said serious illegality into consideration and merely because to windup the aforesaid illegal show, the earlier tender came to be withdrawn, which is nothing but an eyewash more particularly an attempt to save the skin from the Honourable High Court of Gujarat. (7) It is submitted that knowing fully well about the misrepresentation being made by the two manufacturers with regard to Higher/Lower Price Certificate and instead of taking steps against the said manufacturers, the Respondent No.2 again issued a fresh Tender with a eligibility criteria by which again the petitioner has been excluded and red carpet welcome arranged for the only two manufacturers at the cost of public exchequer. (8) It is submitted that the petitioner has approached the Respondent No.1 by way of Representation dated 24/10/2017 requesting interalia to direct the Respondent No.2 to modify the Tender Terms and Conditions and further to initiate appropriate proceedings including the black listing against the manufacturers who have submitted false Higher / Lower Price Certificate. However, till today nothing has been done by the Respondent No.1. The copy of the Representation dated 24/10/2017 is annexed hereto and marked as Annexure D.” 6.2 From paragraph No.1 of the petition, it also emerges that the petitioner is a proprietary concern and is engaged, inter alia, in business of supplying medical gases. However, till today nothing has been done by the Respondent No.1. The copy of the Representation dated 24/10/2017 is annexed hereto and marked as Annexure D.” 6.2 From paragraph No.1 of the petition, it also emerges that the petitioner is a proprietary concern and is engaged, inter alia, in business of supplying medical gases. 6.3 The petitioner claims that it is “a dealer and supplier of medical oxygen (cylinder) D type” “bulk”. 6.4 According to the statement in the petition, at the time when previous NIT came to be issued, the petitioner was already supplying medical gas in capacity as dealer/trader. 6.5 After hearing the petitioner, at initial hearing (i.e. before the respondent No.2 appeared before the Court), the Court passed below quoted exparte adinterim order on 23.11.2017: “1. Learned counsel appearing for the petitioner invited Court’s attention to the order passed by this Court on 05/09/2017 in Special Civil Application No.4712 of 2017. That petition was filed by the petitioner with identical prayers. At that time, the Court recorded that the tender process with respect to Tender Inquiry No.GMSCL/D595/RC/201617 having Tender Notice No.GMSCL/D04/201617 shall stand cancelled and that would amount to cancel the bid of the then respondent also. 2. Learned counsel for the petitioner also submitted that the tender document condition confirming invitation only from other manufacturer or direct importer, does not answer the reasonableness or priority as there cannot be any distinction between the trader who is willing to supply and the importer because both of them would surely not answer the qualification on the call of manufacturer. Let there be notice returnable on 30/11/2017. Direct service today is permitted. It goes without saying that tender process in question of this petition would be subject to result of this petition.” 6.6 After the said order and service of Court’s notice, the respondent No.2 filed reply affidavit somewhere in January 2018. Thereafter, vide order dated 3.10.2018 and after taking into account the submission by respondent No.2 corporation, the earlier order dated 23.11.2017 came to be modified vide order dated 3.10.2018 which reads thus: “Heard learned advocates for the parties. Thereafter, vide order dated 3.10.2018 and after taking into account the submission by respondent No.2 corporation, the earlier order dated 23.11.2017 came to be modified vide order dated 3.10.2018 which reads thus: “Heard learned advocates for the parties. In the context of submissions made by learned advocate for the petitioner and so recorded in oral order dated 23.11.2017 whereby tender process in question of this petition was ordered to be subject to the result of the petition is modified considering eligibility conditions 9(a) of earlier tender process page 35 of this petition which came to be scrapped and (B) eligibility criteria of the subject tender of the petition visavis Government resolution dated 17.4.2002 on 25.10.2005 issued by Department of Health and Family Welfare whereby policy decision was taken for the year 2000 and 2005 excluding dealers/agents/supplier exclusively but no manufacturer either domestic or otherwise was restricted from participating in the bid. RespondentMedical Corporation is accordingly permitted to finalize tender process but before issuance of work order permission of this Court be sought for. Adjourned to 23.10.2018.” 6.7 In its reply affidavit, the respondent No.2 corporation has dealt with and clarified the factual aspects and it has also asserted that the challenge against the eligibility criteria is misconceived and unsustainable and that the petition is instituted with ulterior intentions. In paragraph No.4(i) to 4(vii), the respondent corporation averred and stated that: “4. Without prejudice to the above objections, I most respectfully state that the relevant facts are as under: I state that liquid medical oxygen is required in Civil Hospitals within the State. I state that at present the work contract is issued in respect of 2 zones and the tender in question is in respect of supply of liquid oxygen in the Civil Hospitals in 4 zones in the State of Gujarat. ii. I state that in absence of the requisition of the product by the impugned process, the same is being procured locally. I state that with an intent to ensure the availability of the best product and at the best rate, the tender process has been initiated by the Answering Respondent. iii. I state that Tender Enquiry No. GMSCL/D/04/201617 was challenged by the Petitioner by way of SCA 4712 of 2017. I state that with an intent to ensure the availability of the best product and at the best rate, the tender process has been initiated by the Answering Respondent. iii. I state that Tender Enquiry No. GMSCL/D/04/201617 was challenged by the Petitioner by way of SCA 4712 of 2017. In the said petition issue of Higher Price / Lower Price Certificate submitted by M/s. Linde Limited, the L1 bidder was at fore in addition to the issue raised in the present writ petition. During the pendency of the said petition, Answering Respondent had issued notice to the Company for submitting false Higher Price/Lower Price Certificate. The reply/clariftcation made by the company was acceptable to the Answering Respondent and all these facts were brought to the notice of Hon’ble High Court during the proceedings. The Court had considered the actions and process undertaken by the Answering Respondent and said petition was disposed on 05.09.2017. iv. I state that in deference thereto, the present tender inquiry was floated on GMSCL/D623/RC/201718, of which due date of submission of tender was 17.11.2017. The last date of submission of tender was extended till 29.11.2017. I state that in response to the tender notice the Answering Respondent has received 3 bids and at present the bids are being scrutinized. v. I state that the Petitioner has sought to assail the following tender condition appearing in the tender notice:] “9(a) the tender must be submitted only by manufacturer. However, delivery of stores shall be allowed by their authorized dealer. The tender submitted by authorized distributor or dealer will not be considered. 9(b) If manufacturer is not available for imported Drugs/SurgicaIs/Diagnostic Kit, then authorized repnesentative or dealer shall be allowed to quote the tender. But such authorized representative or dealer should be regular supplier of quoted product for that manufacturer for preceding two years form the date of opening of technical bid and authority letter (As per format Annexure VIII) & valid import license (where ever applicable) should be submitted along with tender.” vi. I state that in reference to the above, it is submitted that condition seeks to ensulre that the best available product in the field is available and for the said purpose has permitted importers to participate in the bidding process. I state that in reference to the above, it is submitted that condition seeks to ensulre that the best available product in the field is available and for the said purpose has permitted importers to participate in the bidding process. In the case of foreign manufacturers, in absence of an importer, it is the Government which would have to seek an import license for importing the goods. This would be onerous, time consuming and consequentially affect the availability of competitive and quality products in the field. It is for this reason that for products manufactured by foreion companies impoorters are permitted to participate. It is submitted that the Government of Gujarat has issued Government Resolution No. MSP1020001638Z, dated 17.04.2004 and Government Resolution No. MSP1099CM2Z, dated 25.10.2005. I state that the condition in reference is in accordance with the mandate of the resolutions and is in accordance with law. A copy of the Government Resolution’tixio. MSP1020001638Z, dated 17.04.2004 issued by Heath and Family Welfare Departments annexed herewith and marked Annexure R2/1. A copy of the Government Resolution No. MSP1099CM2Z, dated 25.10.2005 issued by Health and Family Welfare Department is annexed herewith and marked Annexure R2/2. vii. I state that the condition does not violate any fundamental and or legal right of the Petitioner. Products manufactured in India and abroad are being equally considered for the purpose of award of contract. The Petitioner an agent of the manufacturer has no right independent of the manufacturer in reference to consideration of a product in a tender notice. The present writ petition is misconceived in fact and in law and is required to be rejected as such.” 6.8 While dealing with the allegations by the petitioner, the respondent No.2 corporation averred and stated that : “6. With reference to contents in paragaoh 1, I state that allegations and assertions made by the petitioner in said paragraph are not true and are accordingly denied by the Answering Respondent. I state that the Petitioner has no locus to challenge the present tender enquiry in question. It is competent for the Answering Respondent to lay down the eligibility for the purpose of participation. The condition does not in any manner occasion any discrimination in consideration of the products for the purpose of award of contract. I state that the Petitioner has no locus to challenge the present tender enquiry in question. It is competent for the Answering Respondent to lay down the eligibility for the purpose of participation. The condition does not in any manner occasion any discrimination in consideration of the products for the purpose of award of contract. As far as issue of submission of producing false certificate witht rggard to Higher/Lower Price Certificates in previous tender, the Aswering Respondent had served a notice to M/s. Linde Limited, who had allgedly submitted false Higher/Lower Price Certificate and after considering the reply submitted by M/s. Linde Limited and finding the same to be satisfactory, the answering respondent had accepted the clarification of the company. Both notice served by the answering Respondent and clarification made by the company were brought to the notice of the Hon’ble Court during the proceedings of SCA 4712 of 2017. Hence, issue of Higher Price/Lower Price Certificate had already been adjudicated by the Hon’ble Court in previous matter; It is unfortunate that the despite being aware of the said fact an attempt is bning made to reagitate the said issue in the present proceedings and to prejudice this Honourable Court. 7. With reference to paragraph 2, I state that the same describes the activities and business of the Answering Respondent, and therefore no comment is offered thereon. The details mentioned by the Petitioner about their supply at Surat Civil Hospital has no relevance with present tender process. It is material to note that the Petitioner has not disclosed on whose behalf it is holding the agency/dealership. In fact on account of the vague pleadings itself the present petition is required to be rejected. 9. With reference to contents in paragraph 4, I state that allegations and contentions raised by the Petitioner in this paragraph are not true and are disputed by the answering Respondent. I state that the said aspect has already been dealt with hereinabove; and is not repeated to avoid prolixity. I state that in response to notice, M/s. Linde Limited had submitted their clarification and the said clarification of the company was also brought to the notice of Expert Committee. After availing the opinion of Expert Committee and due consideration Answering Respondent had accepted the clarification of the Company and same was brought to the notice of Hon’ble High Court during the proceedings. After availing the opinion of Expert Committee and due consideration Answering Respondent had accepted the clarification of the Company and same was brought to the notice of Hon’ble High Court during the proceedings. However, due to delay occurred in tender process and complexity of issue, answering Respondent had decided to issue a fresh tender notice, and all the parties had expressed their agreement for the same before the Hon’ble Court. I state that the very same arguments for taking actions against M/s. Linde for submitting false certificate were made by the Petitioner before the Hon’ble Court, but no such relief was granted by this Honourable Court. 11. With reference to the contents in paragraph 6 and 7, it is submitted that allegations and contentions raised by the Petitioner in this paragraph are not true and are denied by the answering respondent. I state that issues raised by the Petitioner in present petition have already been adjudicated by the Hon’ble Court and therefore, present petition does not survive on the ground of res judicata. I state that this is the third attempt by an authorized dealer to create hurdle in public procurement by way of invoking extra ordinary jurisdiction of Hon’ble High Court. This is clear attempt of abuse of law. The issue of High Price/Lower Price Certificate have already been discussed in previous Petition and Petition was disposed of after considering the actions taken by the Answering Respondent in said issue. Hence, present petition may not be entertained. Furthermore, Petitioner has no locus to challenge the tender, as he has neither taken part in tender process and nor he is eligible to participate. Present petition is filed with a view to gain undue benefit that would accrue to local suppliers such as the Petitioner on account of delay in finalization of the tender process. 14. With reference to paragraph 9(a), It is submitted that the action of the Answering Respondent. is in accordance with law. It is submitted that the present petition is filed with a view to gain undue benefit by creating hurdles in public procurement, hence present petition deserves to be dismissed in public interest. 15. With reference to paragraph 9(b) and 9(c), the Answering Respondent states that the same are denied by the Answering Respondent. It is submitted that the Petitioner has no right to determine the terms and condition of the tender document. 15. With reference to paragraph 9(b) and 9(c), the Answering Respondent states that the same are denied by the Answering Respondent. It is submitted that the Petitioner has no right to determine the terms and condition of the tender document. The condition which Petitioner is challenging is as per policy of the Government and is in accordance with law. There is no violation of Article 14 of the Constitution of India as alleged or for the reasons alleged by the Petitioner herein. 16. With reference to paragraph 9(d), Answering Respondent states that this tender process is in the interest of the public at large. The mode of supply is different. At present supply is been made through cylinders having the capacity of 196 liters, while in terms of the subject indent, a whole new facility will be established. The successful tendered will install a Liquid Medical Oxygen Tank at the premises of Hospital having the capacity of 10000 liters. This will ensure, uninterrupted supply and efficient distribution of Liquid Medical Oxygen at hospitals. There are oyhrt benefits also which I crave leave to discuss at the time of hearing. 17. With reference to contents of paragraph 9 (e), I state that issue of submission of false Higher Price/Lower Price Certificate has already been discussed herein above paragraphs hence need not to be repeated. Petitioner is not eligible for participating in tender process hence has no locus to challenge the tender process in question. 18. With reference to paragraph 9 (f) to 9 (i), I deny that any action of the Answering Respondent is bad in law, is an act of favoritism and nepotism as alleged. It is the right of tender inviting authority to fix the eligibility criteria and terms and condition of the tender. The eligibility criteria which Petitioner is challenging are as per the Government Policy. The said condition was also in previous tender and is in all the other tenders floated by the Answering Respondent. Being a policy matter, the same is not subject matter of judicial review under Article 226 of the constitution of India. Hence present Petition deserves to be dismissed.” 6.9 The respondent No.2 corporation also opposed the petition on certain preliminary objections viz. (a) the petitioner, being an agent, has no locusstandi. Being a policy matter, the same is not subject matter of judicial review under Article 226 of the constitution of India. Hence present Petition deserves to be dismissed.” 6.9 The respondent No.2 corporation also opposed the petition on certain preliminary objections viz. (a) the petitioner, being an agent, has no locusstandi. Since the petitioner, on its own admission, is an agent of a ‘manufacturer’ of the product in question, it does not have any right independent of the manufacturer (its principal); (b) the eligibility criteria is in consonance with the government policy and that the said eligibility criteria is mere reflection of the policy framed by government to ensure that best available product are made available to the hospitals and for that purpose, importers have been permitted to participate in the process. The reason for such policy by government is to eliminate the hardships and delay which government/hospitals may have to face and undergo to seek import license and for completing other formalities in absence of an importer of foreign manufacture; (c) since in respect of domestic products, the manufacturer are eligible to participate, the dealers/agent of the manufacturer(s) of domestic products cannot claim any right independent of the manufacturer/principal and that since the manufacturer can participate question of discrimination does not arise; (d) the petitioner has no fundamental right to insist that the goods should be purchased through it, more particularly when the manufacturer of the product in question is entitled to participate in the tender process; (e) the petitioner has not disclosed the information regarding its dealership, the name / identity of its principal and on whose behalf the petition is filed. On such preliminary objections, the petition and its maintainability are opposed. 6.10Subsequently, the petitioner filed rejoinder affidavit and denied the contentions raised by the respondent corporation. The petitioner asserted its right to pursue present petition. With reference to its previous petition (SCA No.4712 of 2017) and the order passed therein, the petitioner claims that the respondent corporation should take action against the bidders who had, allegedly, submitted incorrect certificates (high price/low price certificate). 7. In this background, learned counsel for the petitioner and respondent urged their submissions. Since the Court has allowed both sides to submit written submissions, the petitioner and respondent have filed their written submissions. The submissions urged during the course of hearing are not mentioned in present decision, so as to avoid repetition. 7. In this background, learned counsel for the petitioner and respondent urged their submissions. Since the Court has allowed both sides to submit written submissions, the petitioner and respondent have filed their written submissions. The submissions urged during the course of hearing are not mentioned in present decision, so as to avoid repetition. So far as the contentions in support of and to justify the relief prayed for, the petitioner has urged below mentioned contentions (in the written submission): “(a) Condition No.B(1) i.e. eligibility criteria is nothing but gross discrimination extended to the trader like the petitioner who is till today supplying very product to the Civil Hospital, Surat at much competitive price as that of quoted by the Respondent No.3 in the earlier tender process. (b) Condition No.B(1) is nothing but a tailor made condition inserted only with a view to see that Respondent No.3 herein shall get the award of tender. By way of this condition as well as the conduct as can be seen from the record of the earlier Writ Petition, the Respondent Authorities and M/s.Linde Limited have exfacie been working in collusion of each other. (c) It is submitted that in the earlier Writ Petition, statement with regard to withdrawal of entire tender process was made only with a view to save the skin from the Honourable High Court as admittedly there was no answer about false higher/lower price certificate produced by the M/s.Linde Limited. It is pertinent to state that it was the understanding between the Respondent Authority and M/s.Linde Limited that, even in case of issuance of fresh tender, by virtue of condition No.B(1) no other bidder could compete the test of eligibility. Thereby, purposefully statement was made in the earlier round of litigation and conveniently matter got disposed of. Thus, in my respectful submission, this Honourable High Court may issue appropriate writ, direction or order exercising its extraordinary jurisdiction conferred under Article 226 of the Constitution of India. (d) By virtue of tender condition No.B(1), the Respondent authorities have narrowed down the scope of healthy competition and fair play and further created monopoly in the matter of awarding tender and public works. (e) The Respondent authorities are discharging their duties malafidely in as much as not taking any action against the erring manufacturer i.e. Respondent No.3 herein and more so protecting them for the obvious reasons at the cost of public exchequer. (e) The Respondent authorities are discharging their duties malafidely in as much as not taking any action against the erring manufacturer i.e. Respondent No.3 herein and more so protecting them for the obvious reasons at the cost of public exchequer. Otherwise, there is no logic behind not permitting traders, who already supplying very product since long without any complaint, to participate in tender process. (f) It is submitted that, for the reasons best known, till today medical oxygen (Cylinder) is being purchased by the Local Civil Hospitals through the traders as well. Thereby, it is not logical to assume that the same trader would not be competent to supply Liquid Medical Oxygen, thus, insertion of condition No.B(1) is illogical, whimsical and suffers from vices of favouritism ancl nepotism. (g) It is submitted that, condition No.B(1) is creating less competition. Further it is submitted, had the condition No.B(1) been not existing, then traders like the petitioner could have participated in the tender process, which even otherwise not prejudicial to anyone because ultimately all ofthem had to satisfy the technical bid stage else could have been eliminated. But, the Respondent authorities instead of having more options, chosen only manufacturer to participate knowing fully well that only two manufacturers are available, which is contrary to the settled law with regard to tenders and awarding contracts. (h) The Respondent authorities have permitted importers to participate while not permitting traders on presumption that importers can get quality and competitive product. In my submission, even the trader can supply quality and competitive product as ultimately be it a manufacturer, be it an importer or be it a trader all have to pass the stage of technical bid. Therefore, not permitting the traders to participate in tender process is highly arbitrary and discriminatory in nature. (i) It is submitted that as can be seen from the conduct, the Respondent appears to have made up its mind to award the contract to M/s.Linde Limited, Respondent No.3, therefore, earlier tender process was very casually withdrawn to which M/s.Linde Limited had not objected since M/s.Linde Limited was pretty sure about to get the work order upon issuance of fresh tender by virtue of condition No.B(1). Under the circumstances, the impugned tender process is nothing but eyewash in as much as from the beginning it appears that Respondent authorities are keen in granting the tender to the M/s.Linde Limited at any cost. (j) It is submitted that principle of resjudlcata would not come in the way of the present petitioner because in the earlier round of litigation the petition was disposed of upon statement being made and thereby the merits of the case was not considered at all. (k) It is submitted that, Resolutions dated 17/04/2002 and 25/10/2005 of State Government came to be relied upon by the Respondent Authority. However, it is pertinent to state that both the Resolutions were very much in existence when the present petitioner was being awarded contract by the Civil HOSpital, Surat. Further, it is submitted that even for the purchase of Medical Oxygen (Cylinder), traders are being treated as eligible. Thereby, reliance placed on Government Resolutions, in my respectful submission, is nothing but the “Rule of Convenience”. (l) It is submitted that as evident from the record, the Respondent No.3 i.e. M/s.Linde Limited was not at all the necessary and proper party as at the time when the petition was med there was no order with regard to granting of tender in favour of M/s.Linde Limited. However, in my respectful submission, said M/s.Linde Limited made an application for joining party which was allowed by this Honourable High Court. It is submitted that, application for joining party filed by the M/s.Linde Limited speaks volume about the connivance between the Respondent No.2 and Respondent No.3. It is submitted that looking to the enthusiasm on the part of the Respondent No.3 to see that the petition gets disposed of as soon as possible, it seems that it is almost final that Respondent No.2 will award the contract to the Respondent No.3. Thus, Respondent No.2, who is a state authority, not following the principles of fair way and transparency with regard to allotment of public work/tender.” 7.1 Per contra, the respondent corporation has in its written submission mentioned undisputed facts/past history and urged that : “Past History:The Petitioner had challenged the procedure pertaining to the self same procurement under tender enquiry No.GMSCL/D/04/201617 [at Page 29 of the Petition] in SCA 4712 of 2017 [page 16, prayer @ 27]. The Tender Condition was similar to the one impugned [page 35, Clause 9A and 9B] and was not challenged. This enquiry was withdraw by the Corporation and in view thereof the same was quashed [Order dated 05.09.2017 @ 249]. This order was clarified in terms of order dated 04.10.2017 and fresh tender process was restricted for Vadodara, Surat, Rajiot and Bhavnagar zones only.” [order handed over in court]. The Petitioner did not object to award of contract on the basis of the same tender condition. In terms thereof the contract was awardedto M/s. INOX for the zones of Gandhinagar and Ahmedabad.” The respondent No.1 has also alleged that the petition is hit by vice of nondisclosure of material fact. In this context, the respondent corporation has urged that : “Non Disclosure of Material Facts The tender challenged in the present petition was isued for the balance four zones viz; Baroda, Rajkot, Surat and Bhavnagar. The tender condition is challenged on in relation to those zones. The Petitioner did not disclose the material fact that it was the Agent of M/s. INOX. This was a material fact and if stated would have non suited the Petitioner at the threshold.” So as to oppose the petition and to claim that the petition ought to be dismissed, it is urged by the respondent corporation that: “5(A) Petition is an abuse of the process of Court and should be dismissed with Costs. Petitioner is the Agent of INOX, which has been awarded the self same contract on similar tender condition. The challenge is only to deny the award of contract in other zones where INOX is not found to be L1. This is clearly an abuse of the process of the Court. (B) Petition suffers from suppression of Material Facts and should be dismissed with Costs. Petitioner did not disclose until called upon, that it was the agent of INOX. This fact was material as similar contract awarded on the similar condition in favour of INOX was not challenged by the Petitioner also INOX had participated in the tender process and hence there was no occasion of any loss of opportunity to the Petitioner. See, 2007 (8) SCC 449 , Paras. 33 to 38 (C) No locus standi to challenge the tender condition. See, 2007 (8) SCC 449 , Paras. 33 to 38 (C) No locus standi to challenge the tender condition. Petitioner has no locus standi to challenge the Tender Condition when the Principal on whose behalf it is desirous of supplying Goods has participated and has not raised any objections and Petitioner who is an Agent of INOX has no independent right than that of the Principal INOX. See Section 182 and Section 230 of the Contract Act Re: Merits (D) Answering Respondent has. only implemented the Government Policy. Government Policy is not challenged. Para 6 @ Page 309 GR @ Page 318 at Page 320 and 321 (E) The challenge on the ground of the tender condition being tailor made is misconceived and unfounded. The tender condition is reference has been in place in all Government tenders issued in terms of the Government Purchase Policy. When the tender condition is in accordance with the said government policy, the question of it being tailormade for a particular tender in question cannot arise. (F) Tender Condition Government Policy is rational and reasonable. Para 4(vi) and (vii) @ Page 309310. It is the policy of the State of Gujarat in terms, of the above resolution to permit importers only in respect of goods where manufacturers are not within ‘the Country. This policy ensures that the best quality products are available. (G) The tender condition seeks to protect the interest of the consumer by ensuring that best quality of products are provided. It does not exclude domestic manufacturers nor creates any monopoly. Such a condition does not warrant interference under Article 226 of the Constitution of India. See: (1) 2000 (5) SCC 287 Para 14, (2) SCA. 1994 of 2017, Para. 6.1 to 6.3, para 8.6, para 10.11 and 10.12, (3) SCA 2097 of 2018, Para 2.0, Para 7.0,8.0, Para 9.8and para 12.0, (4) SCA 8095 of 2018 with SCA 8826 of 2018, Para 2.2, para 6 and 16, (5) 2016 (16) SCC 818, Para 15, (6) 2005 (1) SCC 679 , Para 38 to 40 and Para 43 to 44, and (7) 2012 (8) SCC 216 , Para 19, 24 and 35.” 8. Before proceeding further, it is relevant and necessary to mention that in view of the facts of present case, more particularly the fact that the petitioner is a trader and not a manufacturer (according to its own claim, petitioner is “an authorized dealer”) and having regard to the fact that neither in the petition nor in its rejoinder affidavit, the petitioner (despite specific allegation by the respondent corporation that the petition is filed at the behest of some manufacturer) disclosed name/identity of its principal, the Court, during the course of proceedings, had, vide order dated 3.12.2018, directed the petitioner to disclose the details. The said order dated 3.12.2018 reads thus:” At the request of the learned advocate for the petitioner, so as to file affidavit to place on record details about the manufacturers whose product the petitioner supplies or whose dealer the petitioner is and also to declare as to whether the petitioner is the sole selling agent of one manufacturer or dealer in product of only one manufacturer, time till 11/12/2018 is granted. Stand over to 11/12/2018.” 8.1 After the said order, the petitioner sought further time to file affidavit which was granted vide order dated 18.12.2018. Subsequently, the petitioner filed the affidavit and clarified/disclosed that it is a sole selling agent of a manufacturer M/s. Inox Limited. In its said affidavit dated 15.12.2018, the petitioner has averred and stated that: “That the petitioner is the Authorized by the M/s. INOX AIR PRODUCTS LTD for marketing Medical Oxygen Gas (IP Grade) in cylinders and liquid medical oxygen (IP Grade) in the State of Gujarat. It is submitted that by virtue of this authorization the petitioner is marketing and supplying the said products in various Government and Semi Government institutions viz. (1) Civil Hospital, Surat, (2) Smimer Hospital, Surat. The copy of the authorization letter is annexed hereto and marked as Annexure I. It is submitted that recently vide authorization letter dated 27/03/2018 thevery manufacturer has authorized the petitioner to supply liquid medical oxygen in new Civil Hospital, Surat. The copy of the authorization letter dated 27/03/2018 is annexed hereto and marked as Annexure II. It is submitted that the petitioner is the sole selling agent of M/s. INOX AIR PRODUCTS LTD for liquid medical oxygen for Govt. Semi Govt. and Trust hospitals. The copy of the authorization letter dated 27/03/2018 is annexed hereto and marked as Annexure II. It is submitted that the petitioner is the sole selling agent of M/s. INOX AIR PRODUCTS LTD for liquid medical oxygen for Govt. Semi Govt. and Trust hospitals. Further, it is submitted that over and above the petitioner is dealing in Nitrous Oxide (N2O) of M/s. Santramdas Gases of New Mumbai, Liquid Nitrogen and Carbon Dioxide of M/s. INOX AIR PRODUCTS LTD.” 8.2 It has also emerged from the record and from the submissions that the said manufacturer (i.e. present petitioner’s principal) is one of the bidders in present process and it was a bidder in previous process as well. 8.3 It is also relevant to mention that during pendency of present petition, one of the bidders namely, M/s. Linde India Limited preferred civil application (for joining party) No.1 of 2018 in present petition and prayed that it may be permitted to join the proceedings of present petition as respondent No.3. After considering the request, submissions and the response of present petitioner, below quoted order dated 10.9.2018 came to be passed in the said application. “Heard learned advocates for the parties. Considering the averments made in the application and annexures along with the application, it appears that prayer for joining party in the main petition deserves to be granted. Accordingly, application is allowed in terms of para 4(B).” 9. We have considered rival submissions and the material available on record. It would be appropriate, at the outset, to take into account and to keep in focus observations by Apex Court which lay down precedents and guidelines for judicial review in matters related to tender awarding contract and terms of tender. The observations are beacon and provide light to appreciate the terms of tender and rival contentions. For considering the petitioner’s request and submissions with regard to eligibility criteria i.e. tender conditions, it is appropriate to keep in focus the scope and limitations of judicial review with regard to tender conditions which prescribe eligibility criteria for bidders. It is permissible for the principal (i.e. the agency which invites bids) to prescribe eligibility and qualification criteria for the bidders in light of its own requirements which emerge from the work or project for which bids are invited. It is permissible for the principal (i.e. the agency which invites bids) to prescribe eligibility and qualification criteria for the bidders in light of its own requirements which emerge from the work or project for which bids are invited. The employer – principal has right to select a bidder which meets with and fulfills its requirements and which, in view of the principal, would be most suitable to execute the work according to its (principal’s) requirements, standards and parameters. So long as the criteria determined by the principal are not arbitrary or so as to use technical jargon, are not tailormade to suit a particular bidder or to oust certain bidders or to eliminate/restrict the competition and so long as such criteria is not such which, exfacie, has no nexus with the object, the Court would be loathe to interfere with technical criteria determined by the principal. The scope of judicial review in matter of awarding contract and in the matter of eligibility criteria prescribed by means of tender condition, in a tender document, is explained by Hon’ble Apex Court by pronouncements in various decisions. [a] In the decision in case of Directorate of Education & Ors. v. Educomp Datamatics Ltd. & Ors. [ (2004) 4 SCC 19 ], Hon’ble Apex Court observed, inter alia, that: “10.In Air India Limited v. Cochin International Airport Limited [ 2000 (2) SCC 617 ], this Court observed : “The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are 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 can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decisionmaking process and interfere if it is bound vitiated by mala fides, unreasonableness and arbitrariness.” [Emphasis supplied] 11.This principle was again restated by this Court in Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation and others [ 2000 (5) SCC 287 ]. It was held that the terms and conditions in the tender are prescribed by the Government bearing in mind the nature of contract and in such matters the authority calling for the tender is the best judge to prescribe the terms and conditions of the tender. It is not for the Courts to say whether the conditions prescribed in the tender under considerations were better than the one prescribed in the earlier tender invitations. 12. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The Courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The Courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The Courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide.”(emphasis supplied) [b] In the decision in case of Central Coalfields Limited & Ors. v. SLLSML (Joint Venture Consortium) & Ors. [ (2016) 8 SCC 622 ], Hon’ble Apex Court observed, inter alia, that: “43. The Courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide.”(emphasis supplied) [b] In the decision in case of Central Coalfields Limited & Ors. v. SLLSML (Joint Venture Consortium) & Ors. [ (2016) 8 SCC 622 ], Hon’ble Apex Court observed, inter alia, that: “43. Continuing in the vein of accepting the inherent authority of an employer to deviate from the terms and conditions of an NIT, and reintroducing the privilege of participation principle and the level playing field concept, this Court laid emphasis on the decision making process, particularly in respect of a commercial contract. One of the more significant cases on the subject is the three judge decision in Tata Cellular v. Union of India, 1994 6 SCC 651 which gave importance to the lawfulness of a decision and not its soundness. If an administrative decision, such as a deviation in the terms of the NIT is not arbitrary, irrational, unreasonable, mala fide or biased, the Courts will not judicially review the decision taken. Similarly, the Courts will not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation. This was quite clearly stated by this Court (following Tata Cellular) in Jagdish Mandal v. State of Orissa, 2007 14 SCC 517 in the following words: “Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its 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 tenders 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 procedural 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 decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide 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.” This Court then laid down the questions that ought to be asked in such a situation. It was said : “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 affected. If the answers are in the negative, there should be no interference under Article 226.” 44. On asking these questions in the present appeals, it is more than apparent that the decision taken by CCL to adhere to the terms and conditions of the NIT and the GTC was certainly not irrational in any manner whatsoever or intended to favour anyone. The decision was lawful and not unsound. 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 point 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. 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. 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.” (emphasis supplied) From above quoted observations, it emerges that the decision making process of employer or principal in accepting or rejecting a bid should not be interfered with unless it is tainted with malafides or is intended to arbitrarily favour someone or it is wholly irrational which any prudent authority would not take. The Court would interfere only if the decision is found to be perverse. Hon’ble Apex Court has also explained that which tender condition or criteria is essential, is to be considered and decided by the principal and its soundness should not be questioned or doubted by the Court. [c] In the decision in case of Maa Binda Express Carrier & Anr. v. North Eastern Frontier Railway & Ors. [ (2014) 3 SCC 760 ], Hon’ble Apex Court observed and explained that: “8. [c] In the decision in case of Maa Binda Express Carrier & Anr. v. North Eastern Frontier Railway & Ors. [ (2014) 3 SCC 760 ], Hon’ble Apex Court observed and explained that: “8. The scope of judicial review in matters relating to award of contract by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognize that power exercised 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 bidders are entitled to is a fair, equal and nondiscriminatory treatment in the matter of evaluation of their tenders. It is also fairly wellsettled 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 tenderers. 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.” (emphasis supplied) [d] In para No.10 of the decision in case of Global Energy Ltd. & Anr. v. Adani Exports Ltd. & Ors. [ (2005) 4 SCC 435 ], Hon’ble Apex Court observed, inter alia, that: “10. The principle is, therefore, well settled that the terms of the invitation to tender are not open to judicial scrutiny and the Courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice. The principle is, therefore, well settled that the terms of the invitation to tender are not open to judicial scrutiny and the Courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice. This being the position of law, settled by a catena of decisions of this Court, it is rather surprising that the learned Single Judge passed an interim direction on the very first day of admission hearing of the writ petition and allowed the appellants to deposit the earnest money by furnishing a bank guarantee or a bankers’ cheque till three days after the actual date of opening of the tender. The order of the learned Single Judge being wholly illegal, was, therefore, rightly set aside by the Division Bench.” (emphasis supplied) [e] In the decision in case of Association of Registration Plates v. Union of India & Ors. [ (2005) 1 SCC 679 ], Hon’ble Apex Court observed, inter alia, that: “35. Taking up first the challenge to the impugned conditions in the Notices Inviting Tenders issued by various State authorities, we find sufficient force in submissions advanced on behalf of the Union and the State authorities and the contesting manufacturers. The State as the implementing authority has to ensure that scheme of high security plates is effectively implemented. Keeping in view the enormous work involved in switching over to new plates within two years for existing vehicles of such large numbers in each State, resort to ‘trial and error’ method would prove hazardous. Its concern to get the right and most competent person cannot be questioned. It has to eliminate manufacturers who have developed recently just to enter into the new field. The insistence of the State of search for an experienced manufacturer with sound financial and technical capacity cannot be misunderstood. The relevant terms and conditions quoted above are so formulated to enable the State to adjudge the capability of a particular tenderer who can provide a failsafe and sustainable delivery capacity. Only such tenderer has to be selected who can take responsibility for marketing, servicing and providing continuously the specified plates for vehicles in large number firstly in initial two years and annually in the next 13 years. Only such tenderer has to be selected who can take responsibility for marketing, servicing and providing continuously the specified plates for vehicles in large number firstly in initial two years and annually in the next 13 years. The manufacturer chosen would, in fact, be a sort of an agent or medium of the RTOs concerned for fulfillment of the statutory obligations on them of providing high security plates to vehicles in accordance with rule 50. Capacity and capability are two most relevant criteria for framing suitable conditions of any Notices Inviting Tenders. The impugned clauses by which it is stipulated that the tenderer individually or as a member of jointventure must have an experience in the field of registration plates in at least three countries, a common minimum net worth of Rs.40 crores and either jointventure partner having a minimum annual turnover of at least Rs.50 crores and a minimum of 15% turnover of registration plates business have been, as stated, incorporated as essential conditions to ensure that the manufacturer selected would be technically and financially competent to fulfil the contractual obligations which looking to the magnitude of the job requires huge investment qualitatively and quantitatively. 38. In the matter of formulating conditions of a tender document and awarding a contract of the nature of ensuring supply of high security registration plates, greater latitude is required to be conceded to the State authorities. Unless the action of tendering Authority is found to be malicious and misuse of its statutory powers, tender conditions are unassailable. On intensive examination of tender conditions, we do not find that they violate the equality clause under Article 14 or encroach on fundamental rights of a class of intending tenderer under Article 19 of the Constitution. On the basis of the submissions made on behalf of the Union and State authorities and the justification shown for the terms of the impugned tender conditions, we do not find that the clauses requiring experience in the field of supplying registration plates in foreign countries and the quantum of business turnover are intended only to keep out of field indigenous manufacturers. It is explained that on the date of formulation of scheme in rule 50 and issuance of guidelines thereunder by Central Government, there were not many indigenous manufacturers in India with technical and financial capability to undertake the job of supply of such high dimension, on a long term basis and in a manner to ensure safety and security which is the prime object to be achieved by the introduction of new sophisticated registration plates.” (emphasis supplied) [f] In paragraph Nos.10 and 11 of the decision in case of Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation & Ors. [ (2000) 5 SCC 287 ], Hon’ble Apex Court observed, inter alia, that: “10. There have been several decisions rendered by this Court on the question of tender process, the award of contract and evolved several principles in regard to the same. Ultimately what prevails with the courts in these matters is that while public interest is paramount there should be no arbitrariness in the matter of award of contract and all participants in the tender process should be treated alike. We may sum up the legal position thus: (i) The Government is free to enter into any contract with citizens but the court may interfere where it acts arbitrarily or country to public interest; (ii) The Government cannot arbitrarily choose any person it likes for entering into such a relationship or to discriminate between persons similarly situate; (iii) It is open to the Government to reject even the highest bid at a tender where such rejection is not arbitrary or unreasonable or such rejection is in public interest for valid and good reasons. 11. Broadly stated, the courts would not interfere with the matter of administrative action or changes made therein unless the Government’s action is arbitrary or discriminatory or the policy adopted has no nexus with the object it seeks to achieve or is mala fide.” (emphasis supplied) [g] In the decision in case of JSW Infrastructure Ltd. v. Kakinada Seaports Ltd. [ (2017) 4 SCC 170 ], Hon’ble Apex Court clarified and explained that “the employer must have play in the joints i.e. necessary freedom to take administrative decisions within certain boundaries”. In paragraph No.9 of the said decision, Hon’ble Apex Court observed, inter alia, that: “9. In paragraph No.9 of the said decision, Hon’ble Apex Court observed, inter alia, that: “9. We may also add that the law is well settled that superior courts while exercising their power of judicial review must act with restraint while dealing with contractual matters. A Three Judge Bench of this Court in Tata Cellular vs. Union of India v. Unikon of India (1994) 6 SCC 651 held that (i) there should be judicial restraint in review of administrative action; (ii) the court should not act like court of appeal; it cannot review the decision but can only review the decision making process (iii) the court does not usually have the necessary expertise to correct such technical decisions.; (iv) the employer must have play in the joints i.e., necessary freedom to take administrative decisions within certain boundaries.” (emphasis supplied) 10. Since one of the conditions (viz. Eligibility criteria for bidders) of the tender is challenged by the petitioner, it is necessary to take into account the said tender condition i.e. clause B1, which reads thus: “B. ELIGIBILITY CRITERIA 1. Bidder shall be a manu acturer having valid manu acturing license or direct importer holding valid import license. Distributors/Suppliers/Agents are not eligible to participate in the Bids.” 10.1At the same time, in view of fact that though almost identical condition was prescribed under previous NIT (201617), present petitioner, in its earlier petition (SCA No.4712 of 2017), did not challenge said similar condition [viz. clause 9(a) and (b) of said previous tender], it is relevant and appropriate to also keep clause 9(a) and (b) in the same frame. The said clause read thus: “9(a) The tender must be submitted only by manufacturer. However, delivery of stores shall be allowed by their authorized dealer. The tender submitted by authorized distributor or dealer will not be considered. (b) If manufacturer is not available for imported Druges/Surgicals/Diagnostic Kit, then authorized representative or dealer shall be allowed to quote the tender. But such authorized representative or dealer should be regular supplier of quoted product of that manufacturer for preceding two years from the date of opening of technical bid and authority letter (As per format Annexure VIII) & valid import license (where ever applicable) should be submitted along with tender.” 11. But such authorized representative or dealer should be regular supplier of quoted product of that manufacturer for preceding two years from the date of opening of technical bid and authority letter (As per format Annexure VIII) & valid import license (where ever applicable) should be submitted along with tender.” 11. The respondent corporation has claimed that the said condition – criteria came to be prescribed in light of and in terms of government policy, it would be appropriate to also take into consideration the policy decision of the respondent No.1 State which, according to respondent No.3 corporation, is declared vide GR dated 17.4.2002. The said GR provides, inter alia, that:(Free Translation from Vernacular) “New Purchase Policy2000 for medicines, machines, equipments etc., in the Health Centres, Dispensaries, Hospitals of the State. Government of Gujarat Health and Family Welfare Department, Resolution No. MSP1020001638Z Sachivalaya, Gandhinagar Date: 17042002 Read:- (1) to (5) xxx xxx Resolution The Purchase Policy for purchasing the medicines and equipments for Health Centres, Dispensaries, Hospitals etc., of the State, has been determined vide the Resolution dated: 01/04/2002 cited in Reference(1). It has been decided in serial No.7 of the said Resolution that the purchase of the medicinesequipments shall be made directly from the manufacturing company or the Authorized Distributor, but the Authorized Distributor has not been defined. Therefore, in some cases, the middlemen are made the Authorized Distributor. As a result, the questions arise. This matter was also continuously discussed with the Vigilance Cell, Gandhinagar. The discussions were made about removing the defects found in the method of purchasepreservation etc., of the medicines and medical equipments adopted by the Central Medical Store Organization. As per their suggestion, the tenders of purchase should be directly invited from the manufacturer instead of traders. After careful consideration in this matter, it was decided to repeal the words ‘Authorized Distributor’, from serial No.7 of the Resolution of the Department regarding Purchase Policy dated: 01/04/2000. It is hereby resolved to repeal the words ‘Authorized Distributor’ from serial No.7 of the Resolution dated:01/04/2000 and the revised serial No.7 is resolved as follow. 7. “The purchase of medicinesequipments shall be made directly from the manufacturing companies, but the companies, whose tenders are passed, can deliver their goods through their Approved Distributor”. Moreover, the manufacturers of Diagnostic Kits are foreigners and some traders order their goods under Import Licence. 7. “The purchase of medicinesequipments shall be made directly from the manufacturing companies, but the companies, whose tenders are passed, can deliver their goods through their Approved Distributor”. Moreover, the manufacturers of Diagnostic Kits are foreigners and some traders order their goods under Import Licence. In such cases, it is also resolved that, the Importer, having Authorized Import Qualification, can apply for the tender. By order and in the name of Governor of Gujarat. (J.B.Desai) Under Secretary, Health and Family Welfare Department” 12. On comparative reading of clause 9(a) and (b) from previous NIT in juxtaposition with clause B1 and 2 of present NIT, it emerges that the conditions/eligibility criteria in both the NITs are almost identical, with one minor variation namely under clause B1 (in present NIT) “direct importer holding valid import license” is added (which was not mentioned in clause 9(a) and 9(b) of previous tender). 12.1 As mentioned earlier, (a) the petitioner is a trader/dealer (and not a manufacturer); (b) the petitioner did not disclose name of its principal/manufacturer; (c) the petitioner is “sole selling agent” and “authorized dealer” of the manufacturer; and (d) the principal of the petitioner is one of the bidders in present tender process; and (e) it was in compliance of the order dated 3.12.2018, that the petitioner subsequently filed affidavit dated 15.12.2018. From the said affidavit, it has emerged that the petitioner is authorized agent of M/s.Inox Air Products Ltd. for marketing medical oxygen gas (I.P.Grade) in cylinders and liquid medical oxygen (I.P.Grade), for the State of Gujarat and that by virtue of the authorization by said manufacturer, the petitioner is marketing and supplying the said products in various government and semigovernment hospitals like Civil Hospital, Surat, Smimor Hospital, Surat etc. 12.2 It is pertinent that the petitioner, vide said affidavit also declared that the petitioner is sole selling agent of M/s.Inox Air Products for liquid medical oxygen for government, semigovernment and trust run hospitals and that the petitioner is also dealing in Nitrous Oxide (N2O) of M/s. Santrandus Gases, New Mumbai and liquid Nitrogen and Carbon Dioxide of M/s.Inox Air Products. The petitioner also declared that under further authorization in March, 2018 the said manufacturer has authorized the petitioner to also supply liquid medical oxygen in New Civil Hospital, Surat. 12.3 Thus, the petitioner is an authorized dealer/sole agent of a manufacturer (M/s. Inox Air Products Ltd.). 13. The petitioner also declared that under further authorization in March, 2018 the said manufacturer has authorized the petitioner to also supply liquid medical oxygen in New Civil Hospital, Surat. 12.3 Thus, the petitioner is an authorized dealer/sole agent of a manufacturer (M/s. Inox Air Products Ltd.). 13. At this stage, it is relevant and necessary to also take into account the fact that the said manufacturer i.e. the Principal of the present petitioner (M/s.Inox Air Products Ltd.) participated in previous tender process and has also participated in present tender process as well. 13.1It is also pertinent that the said manufacturer (i.e. Principal of the present petitioner) had not challenged the eligibility criteria mentioned in previous tender and has also not challenged the eligibility criteria prescribed by the respondent no.3 in present tender. 14. It is also relevant to note that under previous tender process, the said manufacturer has been awarded contract for certain zones where the said manufacturer emerged as L1 bidder. 14.1So far as previous tender is concerned, the said manufacturer is awarded contract for Gandhinagar Zone and Ahmedabad Zone where the said manufacturer (present petitioner’s principal) emerged as L1 bidder. 15. So as to consider and decide the dispute on hand, it is necessary to take into account the fact that : [i] The dispute voiced in present petition has arisen with regard to eligibility criteria (for bidders) mentioned in the NIT No. T.E.No.GMSCL/D623/ RC/201718 issued by present respondent no.2 Corporation for liquid medical gases for four zones (Vadodara, Surat, Rajkot and Bhavnagar). [ii] The said eligibility criteria is prescribed by State Government in its purchase policy. [iii] The corporation has mentioned the said eligibility criteria in light of Government’s policy decision (i.e. to implement said policy decision). [iv] The said purchase policy and the policy decision are not challenged in present petition (was not challenged even in previous petition). [v] Prior to present Nit, the respondent no.2 had issued Nit No.GMSCL/D04/ 201617 for medical gases for all six zones i.e. Gandhinagar, Ahmedabad, Vadodara, Surat, Rajkot and Bhavnagar. [vi] In said previous Nit, the respondent had mentioned almost similar eligibility criteria in as much as under previous NIT also, the eligibility criteria did not include dealer / trader. [v] Prior to present Nit, the respondent no.2 had issued Nit No.GMSCL/D04/ 201617 for medical gases for all six zones i.e. Gandhinagar, Ahmedabad, Vadodara, Surat, Rajkot and Bhavnagar. [vi] In said previous Nit, the respondent had mentioned almost similar eligibility criteria in as much as under previous NIT also, the eligibility criteria did not include dealer / trader. [vii] With reference to said previous NIT, the petitioner had filed petition (SCA No.4712 of 2017) however in the said petition, the petitioner did not challenge the eligibility criteria mentioned in previous NIT. [viii] Whereas, in present NIT, the petitioner has challenged the eligibility criteria which is almost similar to the eligibility criteria mentioned in the previous NIT. [ix] The petitioner is a trader/dealer and not a manufacturer. [x] The petitioner is “sole selling agent for liquid medical oxygen” and it is authorized dealer of said manufacturer. [xi] The said manufacturer i.e. the principal of present petitioner is a bidder in present tender process. [xii] The petitioner’s principal was bidder in previous tender process. [xiii] Neither in respect of present NIT/present tender process the said manufacturer i.e. present petitioner’s principal (or any other manufacturer or even any other dealer/trader) has challenged the tender condition/eligibility criteria. 16. So far as the eligibility criteria prescribed under present NIT (so also the criteria under previous NIT) is concerned, it is necessary to note that the respondent no.2 has emphatically and repeatedly clarified that the said eligibility criteria is prescribed and mentioned in the NIT in view of and on account of the policy decision of the State Government which is part of purchase policy of State Government i.e. present respondent No.1. 16.1 It is clear that by means of G.R. No.MSP1020001638Z, dated 17th April, 2004 and G.R.No.MSP1099CM2Z, dated 25th October, 2005, the State Government has declared that the products in question should be procured directly from the manufacturers and if the product is not available from domestic manufacturers / domestic market, then the same may be procured from importer. It is also clarified that in later case, the importers are included within eligibility criteria (so that the State Government / Corporation may not have to undertake and pass through licensing procedure for importing the product). 16.2 The fact that respondent no.1 State Government has laid down such policy and issued G.R. to that effect is not disputed even by the petitioner. 16.2 The fact that respondent no.1 State Government has laid down such policy and issued G.R. to that effect is not disputed even by the petitioner. 16.3 Moreover, the respondent No.3 corporation has clarified and respondent No.1 State has supported and confirmed the submission that the said policy decision is applicable in respect of the NITs issued by or and on behalf of the Government and also in respect of the NITs issued by the establishments which are obliged to follow government policy. 17. On this count, it is pertinent that neither the purchase policy nor the provision in the purchase policy (i.e. the provision – which is in nature of policy decision and the reason for inclusion of eligibility criteria in the NIT – are challenged by the petitioner. The purchase policy and/or relevant clause (i.e. the policy decision) are not under challenge. 18. The allegations by the petitioner, including the allegation about the condition / eligibility criteria viz. the condition is tailor made to favour some bidder/s and/or to eliminate competition or that it is arbitrary etc. have to be examined in light of above mentioned facts. 18.1 In light of the fact that the eligibility criteria is prescribed and mentioned in the NIT in view of State Government’s policy decision (purchase policy framed and introduced by the State government), it is clear that: (a) the said condition (as policy decision) is introduced by the State government; and (b) the purchase policy is framed by the State and the policy decision is of the State Government and the said criteria is not solely framed by and applied by the Corporation much less only for present NIT/tender process. (c) it is applicable in respect of the purchases and procurements by the State government, corporations, local authorities etc.; and (d) The respondent No.2 Corporation, being a State Government’s limb, is obliged to follow and to act (or special purpose vehicle) in consonance and conformity with State’s policy decision. (e) the said condition is equally applicable in respect of various procurements of medicines, health care equipments, etc. for health centres, dispensaries, hospitals, etc. and to all manufacturers and dealers/traders (and not merely to the procurement under present tender and/or merely to the bidders who participate in present tender process). 19. (e) the said condition is equally applicable in respect of various procurements of medicines, health care equipments, etc. for health centres, dispensaries, hospitals, etc. and to all manufacturers and dealers/traders (and not merely to the procurement under present tender and/or merely to the bidders who participate in present tender process). 19. Under the circumstances, the petitioner’s claim and allegation that the tender condition for the eligibility criteria is tailor made cannot be sustained. 20. At this stage, it is relevant to recall and note that present petitioner’s principal (whose products the petitioner is authorized to market) has been awarded contract under previous NIT which prescribed similar tender condition and for execution of the said contract, it is the petitioner who is supplying the product (in the zones where its principal is awarded contract). 20.1 The said factual aspect coupled with the fact that the petitioner did not challenge insertion of similar condition/eligibility criteria under said previous NIT but chose to challenge said criteria in present tender process leads to safe conclusion or atleast safe and justified inference that present challenge is raised to frustrate or to delay contract awarding process. 21. Besides this, it cannot be overlooked that the domestic manufacturers are considered eligible and they can participate in the tender process. 22. Further, in view of the terms of tender the mode of supplying the product through dealer/agent/trader is permissible and that therefore successful bidder – manufacturer can (as it is permissible) supply the product through its dealer (such as the petitioner in present petition) and that therefore, the claim by the petitioner that the eligibility criteria is designed to eliminate competition or to exclude dealers is misconceived and without basis. 23. Under the circumstances, when the respondent no.2 – Corporation has merely incorporated, in form of eligibility criteria, State Government’s policy decision, the allegation or the contention that the Corporation has acted in arbitrary and discriminatory manner, cannot be sustained. 24. The respondent No.2 is also justified in its submission and contention that the petitioner does not have any right independent of its principal and that therefore, the petitioner also does not enjoy locusstandi to challenge the eligibility criteria in the NIT when its principal (the manufacturer whose products the petitioner supplies) has participated in the tender and has not raised any objection in respect of the eligibility criteria. 25. 25. In view of the fact that the source or fountainhead of said tender condition is State government’s purchase policy and that the said tender condition has found place in present NIT in view of Government’s policy decision coupled with the fact that in all Government tenders (for procurement of medicines, health care equipments, etc.) issued in terms of purchase policy similar condition has to be inserted, the allegation about discrimination and/or the allegation that the condition is tailor made to favour some manufacturer(s) and/or to eliminate competition and/or that the condition is arbitrary or discriminatory, are not tenable and cannot be sustained. The allegations are without basis and the petitioner has failed to make good the allegations. 26. It is pertinent that the purchase policy (which introduced the policy decision about eligibility criteria) is not challenged. In light of the clarification by the respondents (viz. that the policy decision is applicable in respect of the procurement (by government/local authorities etc.) for medicines and equipments, etc., it becomes clear that when the respondent Corporation incorporated (in form of Tender condition/eligibility criteria) the said policy decision in its NIT, there is no scope or justification to quash and setaside the said condition or criteria, more so when the purchase policy and said policy decision are not even challenged. 27. In view of the fact that all manufacturers including the domestic manufacturers, are eligible to participate in the tender process and the successful bidder/manufacturer can in turn supply the product through their respective sole selling agents or authorized agents/dealers, there is no substance in the allegation that the dealers/agents are discriminated and/or that they are ousted and/or that their fundamental rights are violated. 27.1 The insistence that though its principal, in his capacity as manufacturer, is entitled to participate in the tender process, the product manufactured by the principal should be purchased or procured only through it i.e. a particular dealer/agent or that the product should be supplied only through a dealer/agent and transfer and not directly by the manufacturer is not tenable and cannot be treated as or placed on pedestal of fundamental right. An authorized dealer or sole selling agent cannot claim any right, independent of its principal. 28. An authorized dealer or sole selling agent cannot claim any right, independent of its principal. 28. So far as the petitioner’s attempt to bring in picture the issue which was raised and agitated in its previous petition including the dispute with regard to allegedly fake or false higher price / lower price certificate are concerned, it is necessary to mention that the said issue and grievance were addressed and considered by the Court while disposing previous petition and thereupon, the petition came to be disposed as withdrawn. 28.1 In this context, it is relevant to take into account the details mentioned by the respondent Corporation in para Nos.6, 9 and 12 of the reply affidavit. 28.2 From the said details, it comes out that upon disposal of previous petition (which was filed by present petitioner) as withdrawn (that too by present petitioner) the said issue not only stands disposed off (decided/concluded) by the Court but it also stands disposed of in light of the fact (which comes out from the affidavit) that the allegations were considered by an Expert Committee (where the concerned respondent had submitted replyexplanation) and on consideration of the explanation, the said Committee accepted the corporation’s reply/explanation by concerned other bidder and the committee found – considered said replies – explanations, satisfactory. Thereupon, the said proceedings came to be closed. Under the circumstances, there is no justification to reopen the said dispute. 29. Actually, the petitioner’s attempt to reagitate the said issue, after having withdrawn previous petition (wherein the said grievance was central issue) leads to the conclusion that the petitioner’s attempt and/or intention is to obstruct the tender process so as to gain undue benefit by creating such hurdles. The petitioner seems to be interested in delaying finalization of the tender process. 29.1 Overall assessment of the facts bring out that present petition is a sponsored petition and it is in nature of shadow boxing against the competitors. 30. The respondent No.2 Corporation has also placed on record that in present case, the mode of supply is substantially changed and there is material difference in the mode of supply which was followed on earlier occasions. It is brought on record that until now the supply is being made through cylinders having capacity of about 196 ltrs. however under modified process the successful bidder will have to install liquid medical oxygen tank having capacity of 10,000 ltrs. It is brought on record that until now the supply is being made through cylinders having capacity of about 196 ltrs. however under modified process the successful bidder will have to install liquid medical oxygen tank having capacity of 10,000 ltrs. at the premises of the hospital. 31. From above mentioned details and in light of foregoing discussion, it comes out that the allegations and contentions by the petitioner viz. the condition No. B(1) of the tender document is arbitrary and/or gross discrimination and/or that the said condition is tailormade and/or arbitrary or that said condition is inserted without application of mind and for benefit of the respondent No.3 and/or that by means of the said tender condition, the Corporation has restricted the scope of healthy competition are not sustainable and the petitioner has failed to substantiate or to make good its allegations and submissions. When rival contentions and the terms of tender are examined in light of above quoted observations by Apex Court, it becomes clear that the objections are without merits and there is no justification to interfere with and disturb the tender condition. Above quoted observations fortify this Court’s decision in respect of the challenge raised in present petition and the relief prayed for by the petitioner. So far as the decision in the case of Michigan Rubber (India) Company Ltd. (supra) is concerned, it may be mentioned that even on the touch stone of the observations in the said decision, the impugned tender condition does not warrant interference and does not deserve to be quashed. The petitioner has failed to make out prejudice or procedural aberration or error in assessment. Actually, the object and purpose behind present petition is to promote and protect self interest (i.e. protecting self / private interest) at the cost of public interest. For reasons mentioned above, petition fails and does not deserve to be entertained. In light of foregoing discussion, it has emerged that the relief prayed for does not deserve to be and cannot be granted. We, therefore, do not accept the petition. The petition stands disposed of as disallowed. Orders accordingly.