JUDGMENT P.R. Ramachandra Menon, C.J. - Non-Consideration of the price bid of the Petitioner, despite being qualified in all respects in respect of the technical bid, which unfortunately came to the rejected for non-uploading of the partnership deed in the etender, made the Petitioner to approach this Court seeking for the following prayers : "10.1 This Hon'ble Court may please be kind enough in calling the entire records of the Subject Tender & a detailed report from the respondent No.1 in respect of the subject Tender (Annexure P-1). 10.2 This Hon'ble Court may please be kind enough in directing the respondents to open the petitioner's Price bid and to award the subject work to the lowest bidder. 10.3 This Hon'ble Court may please be kind enough in granting any other relief & the Cost of the petition." 2. Heard Shri Rajkamal Singh, the learned counsel appearing for the Petitioner, Shri Vikram Sharma, the learned Deputy Government Advocate representing the State and Shri Rohit Sharma, the learned counsel appearing for the 4th Respondent. 3. The sequence of events reveals that Annexure P/1 'NIT' (notification inviting tender) was issued by the 3rd Respondent for construction of a canal with the specifications as given therein. The Petitioner is a registered Class 'A' Contractor; who participated in the bid, submitting the technical bid and the price bid separately. It is stated that copy of all the relevant documents were also uploaded/ furnished as required by the 3rd Respondent, despite which his price bid was not considered. Later, on enquiry, the Petitioner came to understand that the technical bid submitted by the Petitioner was rejected for non- uploading a copy of the partnership deed; whereas despite the non-satisfaction of many of the mandatory requirements in uploading/furnishing copies of the relevant documents including the Pre Bid Qualification Certificate (complete) and as to the 'Litigation details', the price bid given by the 4th Respondent (which according to the Petitioner is 22% above the quote given by the Petitioner) came to be accepted by the 3rd Respondent and the work was awarded to the 4th Respondent. The instance of 'double standard' pursued by the 3rd Respondent in awarding the contract to the 4th Respondent displaying total arbitrariness and discrimination is put to challenge in this writ petition. 4. The instance of 'double standard' pursued by the 3rd Respondent in awarding the contract to the 4th Respondent displaying total arbitrariness and discrimination is put to challenge in this writ petition. 4. The Respondents No.1 to 3/State and the 4th Respondent have filed separate replies, in response to which, separate rejoinders have been filed by the Petitioner as well. 5. Shri Rajkamal Singh, the learned counsel for the Petitioner submits that there is absolutely no basis for rejection of the technical bid submitted by the Petitioner with reference to non-uploading of copy of the partnership deed, as it was already submitted by the Petitioner before the 2nd Respondent for getting registration as an 'A' Class Contractor. That apart, it was also produced for issuance of the 'Pre Bid Qualification Certificate' in connection with Annexure P/1 NIT itself. It was after considering the credentials and the nature of the entity, that the Pre Bid Qualification Certificate was issued, a copy of which was also uploaded by the Petitioner along with the tender documents as insisted in the NIT. This being the position, non-uploading of copy of the registered deed is not at all fatal, as it is not an essential document, but an ancillary document. Even otherwise, if at all, there was any shortcoming in this regard, it was quite open for the Respondents to have instructed the Petitioner to produce a copy of the registration deed and the Petitioner was ever willing to produce it at any point time, as there was nothing to hide in connection with the tender in any manner. 6. With reference to the returns filed by the Respondents, it is pointed out by the learned counsel for the Petitioner that non-submission of the complete set of documents by the 4th Respondent stands virtually conceded. Specific reference is made to Annexure P/4, which is the Pre Bid Qualification Certificate of the 4th Respondent. It contains only the first page, where the details in respect of the year 2013-14 alone are available, whereas the details in respect of subsequent years i.e. 2014- 15, 2015-16, 2016-17 and 2017-18 which are to be contained in the second page are actually missing. It contains only the first page, where the details in respect of the year 2013-14 alone are available, whereas the details in respect of subsequent years i.e. 2014- 15, 2015-16, 2016-17 and 2017-18 which are to be contained in the second page are actually missing. Similarly, the terms of the tender clearly stipulate that it was necessary to upload the litigation details, which has not been satisfied by the 4th Respondent, but for simply uploading the 'format' given by the 3rd Respondent in the tender notification. 7. The explanation of the 4th Respondent is that non-mentioning of the litigation details was only a bonafide mistake and that unloading of the 'blank format' was virtually to the effect that no litigation was pending. The Petitioner has filed rejoinder pointing out that, non-submission of the details as above is fatal, insofar as the 4th Respondent is concerned. It is also pointed out that Writ Petition (C) No.805 of 2019 was pending at the time of submission of the tender, where the 4th Respondent and the State are parties to the litigation. The learned counsel for the Petitioner makes a reference to 'Clause 6.0' of Part-II of the Prequalification Document (Envelope-"B") dealing with the 'Disqualification'. The 4th Respondent has not satisfied the specific requirement under Clause 3.8 of Part II instructions [Prequalification Document- Envelop B] producing the litigation details in Annuxure V, form. It is also pointed out that subclauses (i) to (vii) of Clause 6.0 therein dealing with 'Disqualification' do not mention anything as to the non-production of the partnership deed will lead to disqualification; which hence is only an ancillary condition and a curable defect. This is more so since the Petitioner has already produced the registration deed and was never asked to produce it again, if it was necessary in any manner. This being the position, there was no occasion for the Awarding Authority to assess the 4th Respondent, despite 'pending litigation' and still, the price bid of the 4th Respondent was accepted and the work has been awarded to him, which is clearly contrary to the norms/tender conditions and an instance of 'double standard' pursued by the 3rd Respondent, actuated by malafides. 8. 8. Shri Vikram Sharma, the learned counsel representing the State submits that the main prayer raised by the Petitioner at 'paragraph-10.2' is to direct the Respondents to open the price bid of the Petitioner and to award the subject work to the lowest bidder. It is contended that the Petitioner admittedly did not satisfy the requirements under Clause 2.5 of Part-II of the Prequalification Document (Envelope-"B") by uploading copy of the registration deed and hence it was rightly rejected. This being the position, after rejection of the technical bid of the Petitioner, it was not possible for the Respondents No.1 to 3/State to have the price bid of the Petitioner to be considered and therefore, the prayer is not liable to the entertained. 9. The learned counsel for the State further submits that copy of the registration deed may have to be submitted at different stages. Envelope-"B" under Clause 4.0 dealing with 'Submission of Tender' clearly insists production of copy the registration deed and this is with a specific intent to see that there is no 'cartel formation' at any stage, as provided in the guidelines issued by the State Government, copy of which has been produced as Annexure R/2. This being the position, it is an essential document and not an ancillary document, submits the learned counsel. Insofar as the Pre Bid Qualification Certificate submitted by the 4th Respondent is concerned, the page itself shows that the 4th Respondent is qualified and as such, the non-submission of the 'second page' may not have much relevance. However, it is conceded that the litigation details were never uploaded by the 4th Respondent. 10. Shri Rohit Sharma, the learned counsel appearing for the 4th Respondent submits that non-submission of the 'litigation details' or non-submission of the 'second page' of Pre Bid Qualification Certificate (Annexure P/4) cannot be fatal as these are only in respect of ancillary information and it is not a deciding factor in assessing the technical competence. The learned counsel also makes a reference to Clause 2 of Part-II of the Prequalification Document (Envelope-"B") and in particular, 2.1. The non-uploading of the litigation details was only an inadvertent mistake and the credentials of the 4th Respondent were ascertained by the 3rd Respondent before awarding the contract. The learned counsel also makes a reference to Clause 2 of Part-II of the Prequalification Document (Envelope-"B") and in particular, 2.1. The non-uploading of the litigation details was only an inadvertent mistake and the credentials of the 4th Respondent were ascertained by the 3rd Respondent before awarding the contract. The learned counsel also submits that a return has been filed to the effect that no litigations are pending as far as the 4th Respondent is concerned. 11. Clause 2.1 of Part-II of the Prequalification Document (Envelope-"B") reads as under : "2.1 Bid for a particular tender may be submitted only using the digital certificate, which was used to purchase the tender document online. In online tendering, the digital certificate issued to the authorized user of a firm and used for electronic tendering will be considered equivalent to a no-objection certificate/power of attorney to that user. The firm has to authorize a specific individual via an authorization certificate signed by all partners to use the digital certificate as per Indian IT Act 2000. Unless the certificate is revoked, it will be assumed to represent adequate authority of the user to bid on behalf of the firm for WRD tenders as per Information Technology Act 2000. The digital signature of this authorized user will be binding on the firm. It shall be the responsibility of management/ partners of the registered firm to inform the Certifying Authority or Sub Certifying Authority, if the authorized user changes, and apply for a fresh digital certificate and issue a fresh 'authorization certificate' for the new user." 12. The learned counsel for the Petitioner points out that the version given in the reply itself is wrong and misleading. The details of the litigation in which the 4th Respondent is involved, have been given in paragraph-3 of the rejoinder filed by the Petitioner in response to the return filed by the 4th Respondent, which reads as under : "3. The learned counsel for the Petitioner points out that the version given in the reply itself is wrong and misleading. The details of the litigation in which the 4th Respondent is involved, have been given in paragraph-3 of the rejoinder filed by the Petitioner in response to the return filed by the 4th Respondent, which reads as under : "3. That, the respondent No.4 has filed the Return in the matter and in fact have admitted all the issues raised by the petitioner none the less they have not opposed the issues raised by the petitioner and their entire defence in the case is, that the petitioner has not uploaded the partnership therefore the respondent authority has not considered the petitioner's bid and in respect of the discrepancies in the respondent No.4's documents they have come up with a plea at paragraph 5 of their Return that, "the respondent bonafidely believed that it is the attachment of the Annexure as such and so the said attachment is attached as Blank, meaning thereby that no litigation is pending which is an admitted stand of the Answering Respondent No.4 as on date". However, the fact remains that on the date the documents were uploaded at least one matter that is WPC No. 805 of 2019 was pending before this honourable Court. Worth mentioning here that the respondent No.4 further gives no explanation in respect of submission of incomplete Bid Eligibility Certificate and absence of the properly Self attested documents in their uploaded documents." The specific instance as to the pending litigation where the 4th Respondent and the State are parties as mentioned above has not been denied and hence, the 'decision making process' itself is stated bad. 13. The scope of interference by this Court in exercise of discretionary jurisdiction under Article 226 of the Constitution of India in tender proceedings is very limited, by virtue of the settled position of law. The scrutiny to be made is not with reference to the decision taken, but as to the 'decision making process'. The first question to be considered is whether the 3rd Respondent was wrong in not considering the price bid of the Petitioner as sought for in the writ petition. Admittedly, copy of the partnership deed was never uploaded along with the tender. The first question to be considered is whether the 3rd Respondent was wrong in not considering the price bid of the Petitioner as sought for in the writ petition. Admittedly, copy of the partnership deed was never uploaded along with the tender. Clause 2.5 of Part-II of the Prequalification Document (Envelope-"B") reads as under : "2.5 If the tender is made by a firm in partnership, it shall be digitally-signed by assigning the tenderer in which case a certified scanned copy of the power of attorney shall accompany the tender. A certified scanned copy of the Partnership Deed; Current Address of the Firm and the full names and the current address of all the partners of the firm and address and land line phone nos. of certificates issuing authority shall also accompany the tender." 14. It will also be worthwhile to have a look at Clause 4.0 dealing with the 'submission of tender' in relation to Envelope-"B", which is extracted below for ready reference : "Envelope "B" should contain scanned copies of the following : 1. To be eligible for award of contract, the tenderer shall provide evidence satisfactory to the department of their eligibility and of their capability and adequacy of the resources to carry out the contract effectively. 2. 'Pre Bid Qualification Certificate' issued from the office of the Engineer-in-Chief, Water Resources Department, Sihava Bhavan, Civil Lines, Raipur (CG). 3. Annexure I to VI should be filled in all respect completely; no any column or row should be left blank. 4. Documents regarding formation of tendering firm with reference to Engineer-in-Chief, WRD Letter No. , 4211220@fufoZnk@ldqZ@Hkkx&41242 5 Dated 06.09.2016 and clause 2.5 of Prequalification Document." 15. A conjoint reading of the above Clauses clearly reveals that it was obligatory for the participant to upload copy of the 'registration deed' along with the tender documents, to make him eligible to participate in the bid. It may be true that the Petitioner had submitted copy the registration deed at the time of obtaining the registration as 'A' Class Contractor. It may also be true that the Petitioner had submitted the same for obtaining 'Pre Bid Eligibility Certificate' and it was after ascertaining the nature of the registration, that such certificate was issued to him. It may be true that the Petitioner had submitted copy the registration deed at the time of obtaining the registration as 'A' Class Contractor. It may also be true that the Petitioner had submitted the same for obtaining 'Pre Bid Eligibility Certificate' and it was after ascertaining the nature of the registration, that such certificate was issued to him. But whether it will be a substitute for uploading the partnership deed as insisted under Clause 2.5 and Clause 4.0 of Part-II of the Prequalification Document (Envelope-"B") is the question. 16. The purpose of the above Clause can be discernible from the stipulations as given under Annexure R/2 produced along with the return filed on behalf of the Respondents No.1 to 3/State, which reads as under : 17. The above Annexure is a general instruction issued by the Government on 06.09.2016 to all concerned, to the effect that the object is attained. The said document clearly reveals that copy of the deed of partnership has to be submitted and it shall be ensured that nobody participates in the very same bid under different names. Whether such a course is being pursued by the party can be ascertained by the Competent Authority/3rd Respondent/ Tender Evaluation Committee, only if a copy of the partnership deed is made readily available. Copy of such deed produced earlier (at the time of registration or issuance of the Pre Bid Eligibility Certificate) will not be enough as the said document may be forming part of another file or pending before some other Authority. When the notification clearly stipulates that partnership deed has to be uploaded, non-satisfaction of the same being admitted, the Petitioner cannot contend that he has satisfied all the requirements. In the said circumstances, we find considerable force in the submission made by the learned counsel for the Respondents No.1 to 3/State that the price bid submitted by the Petitioner cannot be considered. 18. The learned counsel for the Petitioner points out that the Petitioner has challenged the awarding of contract to the 4th Respondent in the rejoinder, though it was not so specifically sought for in the writ petition. 18. The learned counsel for the Petitioner points out that the Petitioner has challenged the awarding of contract to the 4th Respondent in the rejoinder, though it was not so specifically sought for in the writ petition. The Petitioner only wanted to have his price bid considered along with that of the 4th Respondent, as the main attack as raised in the Ground (as pleaded in the writ petition) was against the 'double standard' pursued by the Respondents while rejecting the technical bid of the Petitioner for non-submission of copy of the partnership registration deed and at the same time, accommodating the 4th Respondent despite the non-submission of the 'litigation details' and also the compete text of the 'Pre Bid Qualification Certificate', despite the specific stipulations in the very same tender. It was accordingly, that the prayer was moulded to have the price bid of the Petitioner also to be considered and to award the tender to the lowest bidder. We find force in the said submission to the extent of considering whether the 'decision making process' pursued by the 3rd Respondent is correct or proper and whether any instance of 'double standard' has been pursued to extend undue favour to the 4th Respondent; compromising with the lapses, if at all any, on his part, while rejecting the technical bid of the Petitioner based on the very same Annexure P/1 NIT conditions/instructions. This is in view of the settled law that there cannot be any deviation from the terms notified, and if at all any, it shall be uniformly made applicable to all. 19. As mentioned already, it is an admitted fact that the 4th Respondent has uploaded only the 'first page' of the Pre Bid Qualification Certificate; which contains the details only in respect of the year 2013-14 and not the subsequent years, as the 'second page' is missing, as admittedly not uploaded. Similarly, Clause 3.8 of part-II of the Prequalification Document (Envelope-"B") clearly stipulates that the information regarding current litigation of the tenderer shall be given in format as per Annexure-V. Annexure-V is extracted below for ready reference : "ANNEXURE-V (Refer para 3.8 of the Information & Instruction for Tender) INFORAMTION REGARDING CURRENT LITIGATION S.No. Name of Contract Year or Organisation Contract Details of Litigations 1 2 3 4 Date : Signature of Tenderer (Seal)" 20. The above format clearly shows that the 'litigation details' are sought for in connection with the tenders participated and awarded, which may have a bearing with regard to the credibility/credentials of the participant. Admittedly, the said particulars have not been uploaded by the 4th Respondent; but for simply uploading the 'format' given by the 3rd Respondent in the notification, which is of no use. The 4th Respondent concedes in 'paragraph-5' of the return that the said Respondent bondafide believed that, uploading of the 'blank format' would mean that 'no litigation was pending'. This is sought to be controverted by the Petitioner by filing a rejoinder and clearly stating in paragraph-3 (extracted already) that Writ Petition (C) No.805 of 2019 was pending before this Court where the State and the 4th Respondent are in the party array. This being the position, there is a clear instance of 'non-mentioning' of the correct factual position as to the pending litigation, if not it is an instance of concealment and this aspect has not been properly considered by the 3rd Respondent. In other words, despite non-production of the complete details in connection with the 'Pre Bid Qualification Certificate' and also despite non-submission of the 'Litigation details', instead of rejecting the tender for the 4th Respondent as not technically qualified, the 3rd Respondent proceeded further to hold the 4th Respondent as qualified and to open the price bid, in turn, leading to awarding of the contract, which does not appear to be correct and transparent, making the 'decision making process' bad in all respects. 21. Another aspect to be noted is that, it is the case of the Petitioner that there is sizable margin to an extent of 22% between the rate quoted by the Petitioner and the rate quoted by the 4th Respondent. Though this may not have any bearing, if the Petitioner is not qualified otherwise, it will definitely have a bearing if the 4th Respondent is also equally not qualified for non-submission of the complete documents with reference to the 'Pre Bid Qualification Certificate' and also non-submission of the 'Litigation details'. Though this may not have any bearing, if the Petitioner is not qualified otherwise, it will definitely have a bearing if the 4th Respondent is also equally not qualified for non-submission of the complete documents with reference to the 'Pre Bid Qualification Certificate' and also non-submission of the 'Litigation details'. When the terms in Annexure P/1 NIT were sought to be strictly applied in the case of the Petitioner, the 3rd Respondent has given a differential treatment in the case of the 4th Respondent, with reference to the clauses as contained in Annexure P/1 NIT itself, so as to have the 4th Respondent qualified and to accept the price bid. This clearly demonstrates an instance of discrimination, arbitrariness and violation of Article 14 of the Constitution of India, in turn making it a fit case for interference. 22. In the above circumstance, we do not require any second thought to hold that the course and proceedings pursued by the 3rd Respondent in finalizing the bid in favour of the 4th Respondent after disqualifying the Petitioner using different yardsticks have adversely affected the 'decision making process'. We declare that the matter requires to be reconsidered. Since the 'decision making process was bad', it has affected the decision taken in awarding the contract to the 4th Respondent, which cannot have any valid/independent existence. It shall be for the 3rd Respondent to adopt uniform standard to consider the traits of both the Petitioner and the 4th Respondent, either treating both of them as 'duly qualified' and to have the better rate accepted, based on negotiation to be made with each of the parties, in separate 'sealed cover'. It will also be open for the 3rd Respondent to issue a fresh tender on similar terms as contained in Annexure P/1 NIT, with liberty to the Petitioner and also the 4th Respondent to participate in the process along with other interested participants, if any. The writ petition stands allowed to the said limited extent. No costs.