JUDGMENT : Nani Tagia, J. 1. Heard Mr. R. Iralu, learned Sr. counsel assisted by Mr. L. Iralu, learned counsel for the petitioner and Mr. Kekhriengulie, learned Addl. Advocate General for the State as well as Mr. A. Zhimomi, learned counsel representing respondent No. 2. 2. This writ petition under Article 226 of the Constitution of India is directed against the following:- (i) Minutes of Meeting dated 06.07.2020 (Annexure-5 to the writ petition), in so far it recommends the bid of the respondent No. 2 for opening of the Financial Bid for the work "Strengthening of NH-61 (new NH2) from km 0.00 to Km 6.00 during 2019-20 under NH Division No. 1 Kohima on EPC Mode in the State of Nagaland; (ii) Bid opening summary (Financial Bid) of the Minutes of Bid Evaluation dated 22.07.2020, whereby the respondent No. 2 has been shown as L-1 bidder; (iii) letter dated 17.07.2020 written by the Chief Engineer, PWD (National Highways) Kohima, Nagaland, to the Power of Attorney Holder of the petitioner vide No. CE/NH/NH(O)/2019-20/102, whereby it has been informed that non submission of the processing fee is not part of the qualification criteria of the bidder as per the Request for Proposal (for short, 'RFP') document; and (iv) letter dated 22.07.2020 written by the Executive Engineer (D) for Chief Engineer, PWD (NH) Nagaland, Kohima, vide No. CE/NH/NH(O)/2019-20/102 to the Power of Attorney Holder of the petitioner whereby, while reiterating that processing fee is not a part of the qualification criteria of the bidder as per RFP document as informed vide letter dated 17.07.2020, it has been further informed that processing fee shall be physically submitted by the bidder. 3. The facts leading to filing of the present writ petition may, briefly, be stated as follows:- The respondent No. 1 had issued National competitive Bidding through e-Tendering mode dated 04.03.2020 vide No. CE/NH/NG/2019-20/NIT-1, whereby bids were invited from the eligible contractors for 4 (four) projects. The project with which the present writ petition is concerned is in respect of "Strengthening of NH-61 (new NH 2) from 0.00 km to 6.00 during 2019-20 under NH Division No. 1 Kohima on EPC Mode in the State of Nagaland". Apart from various details like, Length in Km, Bid Security, Estimated cost, Tender Fee, period of completion; cost of processing fee was also indicated to be Rs. 10,000/-. Apart from various details like, Length in Km, Bid Security, Estimated cost, Tender Fee, period of completion; cost of processing fee was also indicated to be Rs. 10,000/-. In the said NIT, cost of processing fee is indicated as non-refundable to be deposited by a Demand Draft (DD) from any Nationalized/Scheduled Bank in favour of Chief Engineer, PWD (NH), Kohima, Nagaland payable at Kohima. Though the last date for submission of the online bid was fixed on 06.04.2020 at 12.00 hours in the said NIT, yet, the last date for submission came to be extended by various corrigendums issued by the Chief Engineer, PWD, (NH), from time to time, annexed as Annexure-3 (colly), and the last corrigendum dated 14.05.2020 vide No. CE/NH/HG/2019-20/NIT-1 was issued extending the last date of request for bid documents as well as bid submission on 21.05.2020 at 12.00 hours. Accordingly, in pursuance, thereof, the petitioner and the respondent No. 2 along with other bidders submitted their respective bids whose technical bid was eventually evaluated on 06.07.2020. In the bid evaluation made on 06.07.2020, the technical bid of the petitioner as well as respondent No. 2 along with another bid of M/s. Vilelie Khamo & Sons were found to be technically responsive and was forwarded and recommended for evaluation of financial bids of the respective bidders. Consequent upon the recommendation made by the Technical Bid Evaluation Committee on 06.07.2020, the financial bid was opened and evaluated on 22.07.2020, wherein, it has been found that the respondent No. 2 is the L-1 bidder, the petitioner as L-2 bidder and one M/s. Vilelie Khamo & Sons as the L-3 bidder. 4. The petitioner is aggrieved by the impugned recommendation dated 06.07.2020 made by the Technical Evaluation Committee to the bid of the respondent No. 2 on the ground that the respondent No. 2 did not submit the processing fee of Rs. 10,000/- by means of a Demand Draft drawn in a Nationalized/Scheduled Bank along with its bid and therefore, the bid of the respondent No. 2 could not have been processed by the Technical Bid Evaluation Committee on 06.07.2020; and, consequently, the financial bid of the respondent No. 2 also could not have been evaluated by the Financial Bid Evaluation Committee held on 22.07.2020. The petitioner, therefore, contends that since the respondent No. 2 did not fulfill the terms and conditions of the said NIT, namely, the submission of processing fee of Rs. 10,000/- as indicated in the NIT, the bid of the respondent No. 2 is liable to be rejected and consequent upon rejection of the bid of the petitioner for failure to submit the processing fee as provided in the NIT, the petitioner who is L-2 bidder in terms of the NIT dated 04.03.2020 is required to be awarded the work, in question. 5. The State respondents and the private respondent No. 2 have filed their respective counter affidavits contesting each of the contentions raised by the writ petitioner in the writ petition. However, as the hearing of the case proceeded, M r. Kekhriengulie, learned Addl. Advocate General for the State of Nagaland has fairly submitted that the bid of the respondent No. 2 was not accompanied by a processing fee of Rs. 10,000/- in the form of Demand Draft drawn from any Nationalized/Scheduled bank at the time of submission of his bids. In view of the categorical statement made by the learned Addl. Advocate General, the details of the contentions raised in the counter affidavit filed either by the State or by the private respondent need not be referred to herein. In that view of the matter, limited question that would require determination by this Court in this writ petition is whether non submission of processing fee of Rs. 10,000/- in the form of Demand Draft drawn from any Nationalized/Scheduled bank as indicated in the NIT dated 04.03.2020 would entail rejection of the bid submitted by the respondent No. 2. 6. Mr. Iralu, learned Senior counsel for the petitioner has argued that since the processing fee of Rs. 10,000/- has been indicated in the NIT dated 04.03.2020 to be submitted by each of the bidders in the form of Demand Draft drawn from any Nationalized/Scheduled bank in favour of Chief Engineer, PWD (NH), failure to adhere to the terms of the NIT by the bidder would be liable to be rejected. In the absence of processing fee, as indicated in the NIT, accompanying the bid, the Bid Evaluation Committee would be unjustified in evaluating the bid of the respondent No. 2. In the absence of processing fee, as indicated in the NIT, accompanying the bid, the Bid Evaluation Committee would be unjustified in evaluating the bid of the respondent No. 2. M r. Iralu, learned S r. counsel for the petitioner by referring to RFP, more particularly, the 'DISCLAIMER' has further argued that since the RFP is not an agreement and not exhaustive, even if nothing has been referred to in the RFP as regards the processing fee, the same can still be insisted upon as incorporated in the NIT dated 04.03.2020. Mr. Iralu has further argued that even if the payment of processing fee is assumed to be not mandatory, no work can be awarded to a bidder who had not paid the processing fee. 7. In support of his submission, the learned Sr. counsel has referred to and relied on the following decisions rendered by the Hon'ble Supreme Court as well as by this Court. The relevant paragraphs of the judgments relied on are reproduced hereinbelow:- (I). Ramana Dayaram Shetty vs. International Airport Authority of India and Others, (1979) 3 SCC 489 ; (Paragraphs, 7, 10 and 12) "7. Now it is clear from paragraph (1) of the notice that tenders were invited only from "registered IInd Class hoteliers having at least 5 years' experience". It is only if a person was a registered IInd Class hotelier having at least 5 years' experience that he could, on the terms of paragraph (1) of the notice, submit a tender. Paragraph (1) of the notice prescribed a condition of eligibility which had to be satisfied by every person submitting a tender and if, in a given case, a person submitting a tender did not satisfy this condition, his tender was not eligible to be considered. Now it is true that the terms and conditions of the tender form did not prescribe that the tenderer must be a registered IInd Class hotelier having at least 5 years' experience nor was any such stipulation to be found in the form of the agreement annexed to the tender but the notice inviting tenders published in the newspapers clearly stipulated that tenders may be submitted only by registered IInd Class hoteliers having at least 5 years' experience and this tender notice was also included amongst the documents handed over to prospective tenderers when they applied for tender forms. Now the question is, what is the meaning of the expression "registered IInd Class hotelier", what category of persons fall within the meaning of this description? This is a necessary enquiry in order to determine whether Respondents 4 were eligible to submit a tender. It is clear from the affidavits and indeed there was no dispute about it that different grades are given by the Bombay City Municipal Corporation to hotels and restaurants and, therefore, there may be a registered IInd Class hotel but no such grades are given to persons running hotels and restaurants and hence it would be inappropriate to speak of a person as a registered IInd Class hotelier. But on that account would it be right to reject the expression "registered IInd Class hotelier" as meaningless and deprive paragraph (1) of the notice of any meaning and effect. We do not think such a view would be justified by any canon of construction. It is a well-settled rule of interpretation applicable alike to documents as to statutes that, save for compelling necessity, the Court should not be prompt to ascribe superfluity to the language of a document "and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use". To reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on common sense that no author of a formal document intended to be acted upon by the others should be presumed to use words without a meaning. The court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable. Now, here the expression used in paragraph (1) of the notice was "registered IInd Class hotelier" and there can be no doubt that by using this expression Respondent 1 intended to delineate a certain category of persons who alone should be eligible to submit a tender. Respondent 1 was not acting aimlessly or insensibly in insisting upon this requirement nor was it indulging in a meaningless and futile exercise. It had a definite purpose in view when it laid down this condition of eligibility in paragraph (1) of the notice. Respondent 1 was not acting aimlessly or insensibly in insisting upon this requirement nor was it indulging in a meaningless and futile exercise. It had a definite purpose in view when it laid down this condition of eligibility in paragraph (1) of the notice. It is true that the phraseology used by Respondent 1 to express its intention was rather inapt but it is obvious from the context that the expression "registered IInd Class hotelier" was loosely used to denote a person conducting or running a IInd Class hotel or restaurant. It may be ungrammatical but it does not offend common sense to describe a person running a registered IInd grade hotel as a registered IInd grade hotelier. This meaning is quite reasonable and does not do any violence to the language and makes sense of the provision contained in paragraph (1) of the notice. We must, in the circumstances, hold that, on a proper construction, what Paragraph (1) of the notice required was that only a person running a registered IInd Class hotel or restaurant and having at least 5 years' experience as such should be eligible to submit a tender. This was a condition of eligibility and it is difficult to see how this condition could be said to be satisfied by any person who did not have five years' experience of running a IInd Class hotel or restaurant. The test of eligibility laid down was an objective test and not a subjective one. What the condition of eligibility required was that the person submitting a tender must have 5 years' experience of running a IInd Class hotel as this would ensure by an objective test that he was capable of running a IInd class restaurant and it should not be left to Respondent 1 to decide in its subjective discretion that the person tendering was capable of running such a restaurant. If, therefore, a person submitting a tender did not have at least 5 years' experience of running a IInd Class hotel, he was not eligible to submit the tender and it would not avail him to say that though he did not satisfy this condition, he was otherwise capable of running a IInd Class restaurant and should, therefore, be considered. This was in fact how Respondent 1 itself understood this condition of eligibility. This was in fact how Respondent 1 itself understood this condition of eligibility. When Respondents 4 submitted their tender along with their letter dated January 24, 1977 and it appeared from the documents submitted by Respondents 4 that they did not have 5 years' experience of running a IInd Class restaurant, Respondent 1 by its letter dated February 15, 1977 required the Respondents 4 to produce documentary evidence to show that they were "registered IInd Class hotelier having at least 5 years' experience". Respondent 1 did not regard this requirement of eligibility as meaningless or unnecessary and wanted to be satisfied that Respondents 4 did fulfill this requirement. Now, unfortunately for Respondents 4, they had over 10 years' experience of running canteens but at the date when they submitted their tender, they were not running a IInd grade hotel or restaurant nor did they have 5 years' experience of running such a hotel or restaurant. Even if the experience of Respondents 4 in the catering line were taken into account from 1962 onwards, it would not cover a total period of more than 4 years 2 months so far as catering experience in IInd grade hotels and restaurants is concerned. Respondents 4 thus did not satisfy the condition of eligibility laid down in paragraph (1) of the notice and in fact this was impliedly conceded by Respondents 4 in their letter dated February 26, 1977 where they stated that they had "experience equivalent to that of a IInd Class or even 1st Class hotelier". Respondents 4 were, accordingly, not eligible for submitting a tender and the action of Respondent 1 in accepting their tender was in contravention of paragraph (1) of the notice". 10. Now, there can be no doubt that what paragraph (1) of the notice prescribed was a condition of eligibility which was required to be satisfied by every person submitting a tender. The condition of eligibility was that the person submitting a tender must be conducting or running a registered IInd Class hotel or restaurant and he must have at least 5 years' experience as such and if he did not satisfy this condition of eligibility, his tender would not be eligible for consideration. The condition of eligibility was that the person submitting a tender must be conducting or running a registered IInd Class hotel or restaurant and he must have at least 5 years' experience as such and if he did not satisfy this condition of eligibility, his tender would not be eligible for consideration. This was the standard or norm of eligibility laid down by Respondent 1 and since the Respondents 4 did not satisfy this standard or norm, it was not competent to Respondent 1 to entertain the tender of Respondents 4. It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr. Justice Frankfurter in Viteralli v. S. where the learned Judge said: "An executive agency must be rigorously held to the standards by which it professes its action to be judged.... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed....This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword." This Court accepted the rule as valid and applicable in India in A.S. Ahluwalia v. Punjab and in subsequent decision given in Sukhdev v. Bhagatram, Mathew, J., quoted the above-referred observations of Mr. Justice Frankfurter with approval. It may be noted that this rule, though supportable also as an emanation from Article 14, does not rest merely on that article. It has an independent existence apart from Article 14. It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority. If we turn to the judgment of Mr. Justice Frankfurter and examine it, we find that he has not sought to draw support for the rule from the equality clause of the United States Constitution, but evolved it purely as a rule of administrative law. Even in England, the recent trend in administrative law is in that direction as is evident from what is stated at pp. 540-41 in Prof Wade's "Administrative Law", 4th Edn. Even in England, the recent trend in administrative law is in that direction as is evident from what is stated at pp. 540-41 in Prof Wade's "Administrative Law", 4th Edn. There is no reason why we should hesitate to adopt this rule as a part of our continually expanding administrative law. Today with tremendous expansion of welfare and social service functions, increasing control of material and economic resources and large scale assumption of industrial and commercial activities by the State, the power of the executive Government to affect the lives of the people is steadily growing. The attainment of socio-economic justice being a conscious end of State policy, there is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with State power-holders. This renders it necessary to structure and restrict the power of the executive Government so as to prevent its arbitrary application or exercise. Whatever be the concept of the Rule of Law, whether it be the meaning given by Dicey in his "The Law of the Constitution" or the definition given by Hayek in his "Road to Serfdom" and "Constitution of Liberty" or the exposition set forth by Harry Jones in his "The Rule of Law and the Welfare State", there is as pointed out by Mathew, J., in his article on "The Welfare State, Rule of Law and Natural Justice" in "Democracy, Equality and Freedom" "substantial agreement in juristic thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power, wherever it is found". It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege". 12. We agree with the observations of Mathew, J., in V. Punnan Thomas v. State of Kerala that: "The Government, is not and should not be as free as an individual in selecting the recipients for its largesse. 12. We agree with the observations of Mathew, J., in V. Punnan Thomas v. State of Kerala that: "The Government, is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal." The same point was made by this Court in Erusian Equipment and Chemicals Ltd. v. State of West Bengal where the question was whether blacklisting of a person without giving him an opportunity to be heard was bad? Ray, C.J., speaking on behalf of himself and his colleagues on the Bench pointed out that blacklisting of a person not only affects his reputation which is, in Poundian terms, an interest both of personality and substance, but also denies him equality in the matter of entering into contract with the Government and it cannot, therefore, be supported without fair hearing. It was argued for the Government that no person has a right to enter into contractual relationship with the Government and the Government, like any other private individual, has the absolute right to enter into contract with anyone it pleases. But the Court, speaking through the learned Chief, Justice, responded that the Government is not like a private individual who can pick and choose the person with whom it will deal, but the Government is still a Government when it enters into contract or when it is administering largesse and it cannot, without adequate reason, exclude any person from dealing with it or take away largesse arbitrarily. The learned Chief Justice said that when the government is trading with the public, "the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions...The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure". This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure". This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory". (II). Bakshi Security and Personnel vs. Devkishan Computed Pvt. Ltd. & Ors., (2016) 8 SCC 446 ; (Paragraphs-14 and 15) "14. The law is settled that an essential condition of a tender has to be strictly complied with. In Poddar Steel Corpn. v. Ganesh Engineering Works, this Court held as under: (SCC p. 276, para-6) "6...The requirements in a tender notice can be classified into two categories--those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases". 15. Similarly in B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., this Court held as under: (SCC pp. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases". 15. Similarly in B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., this Court held as under: (SCC pp. 571-72, para-66) (i) if there are essential conditions, the same must be adhered to; (ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully; (iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing; (iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when the was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction; (v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with". (III). Starline Agency vs. Nabajit Das & Ors., 2011 (1) GLT 710; (paragraph-25) "25. It is also well settled that essential conditions of a notice inviting tender must be adhered to by all the tenderers and if there is no power of general relaxation, no relaxation shall be granted. It can also not be in dispute that the principle of strict compliance would be insisted, where it is possible for all the parties to a tender process to comply, fully and completely, with a given condition, particularly, when the condition is mandatory in nature. It can also not be in dispute that the principle of strict compliance would be insisted, where it is possible for all the parties to a tender process to comply, fully and completely, with a given condition, particularly, when the condition is mandatory in nature. Whether any condition, or part thereof, embodied in a notice inviting tender, is an essential condition or not, shall have to be examined bearing in mind the object, which is sought to be achieved by the condition so imposed. There can also be no doubt that an authority would, ordinarily, be fully justified in rejecting a tender if the tenderer does not fulfill the conditions required for submission of a valid tender. Insistence upon fulfillment of the conditions, embodied in a tender notice, ensures quality in the tenderers and the deletion of any condition (s) or relexation of any condition (s), in favour of any tenderer, would, ordinarily, result in discrimination not merely amongst the tenderers, but also amongst the persons, who would have applied and/or participated in the tender process, had they known that such a relaxation would be permitted [see TATA Cellular Vs. Union of India, reported in (1994) 6 SCC 651 , and Asia Foundation and Construction Limited Vs. Trafalgar House Construction (I) Ltd., reported in (1997) 1 SCC 738 ]." 8. Mr. Kekhriengulie, learned Addl. Advocate General for State of Nagaland appearing for respondent No. 1 contended that bidders are required to submit their respective bids in pursuance of the NIT dated 04.03.2020 as per the Request for Proposal (RFP). Request for Proposal (RFP) is the one where manner and method of submission of Bids have been prescribed and the submission of cost of processing fee having been not prescribed in the RFP, the same is not a mandatory condition which can, therefore, be deviated in an appropriate case. He further submitted that though cost of processing fee has been indicated at Rs. 10,000/-, the manner and method as well as timing of submission of processing fee has not been prescribed in the NIT which is suggestive of the fact that the same is not mandatorily required to be submitted along with the bid documents and the same may be submitted at later point of time before issuance of LOA. He, further submits that nonpayment of processing fee along with the Bid is a curable defect. He, further submits that nonpayment of processing fee along with the Bid is a curable defect. In support of his contention, he has relied on the following decisions of this Court. The relevant paragraphs relied on by the learned counsel are reproduced hereinbelow:- (I). Jalal Uddin (MD) vs. State of Assam & Ors., reported in (2019) 3 GLT 829; (paragraphs-13 and 14) "13. The decision in Tajender Singh Gambhir and another (supra), cited on behalf of the respondent No. 6, is with regard to deficiency in court-fee in respect of a plaint in a civil suit and consequence thereof, in terms of the provisions of the Act. The Supreme Court has held that if a question of deficiency in court-fee in respect of any claim is raised and the Court finds that the court-fee paid is insufficient, it shall ask the plaintiff to make good the deficiency within the time which may be granted and in case of default, the plaint shall be rejected. It has also observed that what is to be done by the trial Court in the proceeding of the suit, can always be done by the appellate court in the interest of justice. In the decision of May George (supra), it is held that whether the provision is mandatory or directory, depends upon the intent of the legislature and not upon the language for which the intent is clothed. The issue is to be examined having regard to the context subject matter and object of the statutory provision in question". 14. The provision of Section 28, more particularly, the proviso to Section 28, along with section 6 of the Act pertains to the specific documents specified as chargeable in the First or Second Schedule of the Act, as amended by the Court-fees (Assam Amendment) Act, 1972, the bids submitted by the bidders in response to the Tender Notice dated 2.6.2018 in the instant case, are documents chargeable with fixed court-fee falling under the purview of Section 6 of the Act. In view of the language employed in Section 28, more particularly, the proviso to Section 28, and in view of the interpretation given to Section 6 in Tajender Singh Gambhir and another (supra), we are of the opinion that the defect of deficit court-fee in the bid of the respondent No. 6 was curable in nature and an opportunity should have been provided to the respondent No. 6 at the first instance. His bid, otherwise, valid and higher than the bid of the appellant, could have been rejected by the tendering authority only in the event he had failed to deposit the court-fee within the stipulated time period, after being put to notice to make good the deficit within such stipulated time period. In such view of the matter, the rejection of the bid of the respondent No. 6 was arbitrary and unjust". (II). Ramen Deka vs. Union of India & Ors., reported in: 2013(4) GLT 786; (paragraph-18) "18. As to what is the projection of the case of the petitioner in the writ petition has been noted above. By enclosing the SBD's along with the impugned tender notices, the projection is sought to be made that the same is independent of the Catering Policy although the fact of the matter is that the SBD's enclosed to the impugned tender notices are in fact the SBD circulated by the Railway Board vide its letter dated 02.01.2013. As has been held by the Apex Court in Meerut Development Authority Vs. Association of Management Studies, reported in (2009) 6 SCC 171 , by way of judicial review, the Court cannot examine the details of the terms of the contracts which have been entered into by the public bodies or the States. The Courts have inherent limitations on the scope of any such enquiry. The Courts can only examine whether the decision making process was reasonable, rational, not arbitrary and violative of Article 14. The Courts have inherent limitations on the scope of any such enquiry. The Courts can only examine whether the decision making process was reasonable, rational, not arbitrary and violative of Article 14. In Sterling Computers Limited vs. M and N. Publications Limited, reported in (1993) 1 SCC 445 , the Apex Court observed that:- "18...While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the court is concerned primarily as to whether there has been any infirmity in the "decision making process." By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Court have inherent limitations on the scope of any such enquiry. But at the same time... the Courts can certainly examine whether "decision making process" was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution." The principles which have to be applied in judicial review of administrative decisions, especially those relating to acceptance of tender and award of contract, have been considered in great detail by a three Judge Bench in Tata Cellular Vs. Union of India reported in (1994) 6 SCC 651 . It was observed that the principles of judicial review would apply to the exercise of contractual powers by government bodies in order to prevent arbitrariness or favouritism. However, there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose, the exercise of that power will be struck down". 9. Mr. A. Zhimomi, learned counsel for respondent No. 2 while adopting the submission of Mr. Kekhriengulie, learned Addl. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose, the exercise of that power will be struck down". 9. Mr. A. Zhimomi, learned counsel for respondent No. 2 while adopting the submission of Mr. Kekhriengulie, learned Addl. Advocate General for State of Nagaland has contended that it is evident from the RFP that the NIT in question, has been issued by the Ministry of Road Transport and Highways (MORTH), Govt. of India, and, in the RFP there is no mention of processing fee to be paid by the bidders at the time of submission of the Bid. Rather, it is the executing agency, namely, Public Works Department, National Highways, Govt. of Nagaland, who, on its own has put the processing fee of Rs. 10,000/- while issuing the NIT on behalf of the MoRTH. Accordingly, the learned counsel for respondent No. 2 submits that the processing fee of Rs. 10,000/- as prescribed in the NIT by the Chief Engineer, PWD (NH) is not relatable to any eligibility criteria for execution of the work, in question; and, the respondent No. 2 having been found to be eligible and competent to execute the work, in question, the Technical Evaluation Committee has recommended the bid of the respondent No. 2 along with others for further evaluation of the financial bids submitted, notwithstanding the cost of processing fee of Rs. 10,000/- not accompanying the bid of the respondent No. 2 in the form of Demand Draft. He further submits that such a condition which is not relatable to the eligibility criteria for the work, in question, are not a mandatory condition but rather a directory which are merely ancillary and such a defect is curable by subsequent compliance thereof. He, further submits that in the NIT itself where the cost of processing fee has been indicated there is no further indication of the time for submission of the processing fee by the bidders or the consequences of non compliance thereof, and therefore, not a mandatory condition. 10. In support of his submission, Mr. Zhimomi, learned counsel for respondent No. 2 has relied on the following decisions, the relevant paragraphs of which are quoted hereinbelow for ready reference:- (I). (1991) 3 SCC 273 Poddar Steel Corporation vs. Ganesh Engineering Works and Others; (paragraphs-6, 7 and 8) "6. 10. In support of his submission, Mr. Zhimomi, learned counsel for respondent No. 2 has relied on the following decisions, the relevant paragraphs of which are quoted hereinbelow for ready reference:- (I). (1991) 3 SCC 273 Poddar Steel Corporation vs. Ganesh Engineering Works and Others; (paragraphs-6, 7 and 8) "6. It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank clause 6 of the tender notice was not obeyed literally, but the question is as to whether the said non-compliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories -- those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. This aspect was examined by this Court in C.J. Fernandez v. State of Karnataka a case dealing with tenders. Although not in an entirely identical situation as the present one, the observations in the judgment support our view. The High Court has, in the impugned decision, relied upon Ramana Dayaram Shetty v. International Airport Authority of India but has failed to appreciate that the reported case belonged to the first category where the strict compliance of the condition could be insisted upon. The authority in that case, by not insisting upon the requirement in the tender notice which was an essential condition of eligibility, bestowed a favour on one of the bidders, which amounted to illegal discrimination. The judgment indicates that the court closely examined the nature of the condition which had been relaxed and its impact before answering the question whether it could have validly condoned the shortcoming in the tender in question. The judgment indicates that the court closely examined the nature of the condition which had been relaxed and its impact before answering the question whether it could have validly condoned the shortcoming in the tender in question. This part of the judgment demonstrates the difference between the two categories of the conditions discussed above. However it remains to be seen as to which of the two clauses, the present case belongs". 7. The nature of payment by a certified cheque was considered by this Court in Sita Ram Jhunjhunwala v. Bombay Bullion Association Ltd. Several objections were taken there in support of the plea that the necessary condition in regard to payment was not satisfied and in that context this Court quoted the observations from the judgment in an English decision (vide Spargo case) that it is a general rule of law that in every case where a transaction resolves itself into paying money by A to B and then handing it back again by B to A, if the parties meet together and agree to set one demand against the other, they need not go through the form and ceremony of handing the money backwards and forwards. This Court applied the observations to a transaction requiring payment by one to another. The High Court's decisions in B.D. Yadav case and T.V. Subhadra Amma case are also illustrations where literal compliance of every term of the tender notice was not insisted upon". 8. In the present case the certified cheque of the Union Bank of India drawn on its own branch must be treated as sufficient for the purpose of achieving the object of the condition and the Tender Committee took the abundant caution by a further verification from the bank. In this situation it is not correct to hold that the Diesel Locomotive Works had no authority to waive the technical literal compliance of clause 6, specially when it was in its interest not to reject the said bid which was the highest. We, therefore, set aside the impugned judgment and dismiss the writ petition of respondent 1 filed before the High Court. The appeal is accordingly allowed with costs throughout". (II). We, therefore, set aside the impugned judgment and dismiss the writ petition of respondent 1 filed before the High Court. The appeal is accordingly allowed with costs throughout". (II). (2007) 14 SCC 517 , Jagdish Mandal vs. State of Orissa and Other; (paragraphs-21.1 to 21.6 and 22) "21.1 In Sterling Computers Ltd., vs. M & N Publications Ltd., this Court observed : (SCC p. 458, para 18) "18...While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the court is concerned primarily as to whether there has been any infirmity in the 'decision-making process'....the courts can certainly examine whether 'decision-making process' was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution." 21.2. In Tata Cellular vs. Union of India this Court referred to the limitations relating to the scope of judicial review of administrative decisions and exercise of powers in awarding contracts, thus:(SCC pp. 687-88, para 94) (1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have expertise to correct the administrative action. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract... More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure". This Court also noted that there are inherent limitations in the exercise of power of judicial review of contractual powers. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure". This Court also noted that there are inherent limitations in the exercise of power of judicial review of contractual powers. This Court also observed that the duty to act fairly will vary in extent, depending upon the nature of cases, to which the said principle is sought to be applied. This Court held that the State has the right to refuse the lowest or any other tender, provided it tries to get the best person or the best quotation, and the power to choose is not exercised for any collateral purpose or in infringement of Article 14. 21.3. In Raunaq International Ltd., vs. I.V.R. Construction Ltd., this Court dealt with the matter in some detail. This Court held: (SCC pp. 500-01, paras-9-11) "9...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 of paramount importance are commercial considerations. These would be: (1) The price at which the other side is willing to do the work; (2) Whether the goods or services offered are of the requisite specifications; (3) Whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfill the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer, and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction. 10...What are these elements of public interest? (1) Public money would be expended for the purposes of the contract; (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfillment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in re-doing the entire work - thus involving larger outlays or public money and delaying the availability of services, facilities or goods, e.g. A delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation". 11...When a writ petition is filed in the High court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers". 21.4. In Air India Ltd. vs. Cochin International Airport Ltd. this Court summarised the scope of interference as enunciated in several earlier decisions thus: (SCC pp. 623-24, para-7) "7...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, 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. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene." 21.5. In Assn. of Registration Plates vs. Union of India this Court held: (SCC p. 700, para-43) "43...Article 14 of the Constitution prohibits government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contracts. At the same time, no person can claim a fundamental right to carry in business with the government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated, to the detriment of public interest". 21.6. In B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. this Court observed: (SCC p. 568, para-56): "56...It may be true that a contract need not be given to the lowest tenderer but it is equally true that the employer is the best judge therefor; the same ordinarily being within its domain, court's interference in such matter should be minimal. The High Court's jurisdiction in such matters being limited in a case of this nature, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record". 22. 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 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 succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the Court can say 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"; (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action". (III). (2013) 10 SCC 95 , Rashmi Metaliks Limited and Another vs. Kolkata Metropolitan Development Authority and Other; (paragraphs 9, 10.4, 18 and 19) "9. Tata Cellular states thus: (SCC pp. 677-78, para 77) "77...The duty of the court is to confine itself to the question of legality. Its concern should be: 1. whether a decision-making authority exceeded its powers? 2. committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable Tribunals would have reached or, 5. abused its powers. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. abused its powers. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. ii) Irrationality, namely, Wednesbury unreasonableness. iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R.V. Secretary of State for the Home Department, ex. p. Brind, Lord Diplock refers specifically to one development namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the Court should, 'consider whether something has gone wrong of a, nature and degree which requires its intervention." 10.4. Kanhaiya Lal, relied upon by Shri Vishwanathan, talks in the same timbre in that it distinguishes between essential and collateral terms of a tender and in the latter case allows elbow room for exercise of discretion. Although it may be seen as a facet of Wednesbury reasonableness, this decision can be seen as adding another factor to Tata Cellular viz. the Court is empowered to separagraphte the wheat from the chaff. In this exercise the Court can segregate the essential terms forming the bulwark of the compact, and whilst ensuring their strict adherence, can allow leniency towards the compliance with collateral clauses. 18. We think that the income tax return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In many cases this is a salutary stipulation, since it is indicative of the commercial standing and reliability of the tendering entity. 18. We think that the income tax return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In many cases this is a salutary stipulation, since it is indicative of the commercial standing and reliability of the tendering entity. This feature being absent, we think that the filing of the latest income tax return was a collateral term, and accordingly the Tendering Authority ought to have brought this discrepancy to the notice of the appellant Company and if even thereafter no rectification had been carried out, the position may have been appreciably different. It has been asserted on behalf of the appellant Company, and not denied by the learned counsel for the respondent Authority, that the financial bid of the appellant Company is substantially lower than that of the others, and, therefore, pecuniarily preferable. 19. In this analysis, we find that the appeal is well founded and is allowed. The impugned judgment is accordingly set aside. The disqualification of the appellant Company on the ground of it having failed to submit its latest income tax return along with its bid is not sufficient reason for disregarding its offer/bid. The respondents are directed, therefore, to proceed further in the matter on this predication. The parties shall bear their respective costs". (IV). (2016) 8 SCC 446 , Bakshi Security and Personnel vs. Devkishan Computed Pvt. Ltd. and Ors., (paragraph-20) "20. We have seen that the present tender has not gotten off the ground since May 2015, and one year's precious time has been wasted due to litigation between the parties. We must hasten to add that the Government of Gujarat is partly to blame for this inasmuch as it arrived at a minimum wage figure and did not disclose the same to the tendering parties twice. Even in the second round of litigation, the Government did not disclose the newly arrived at minimum wage figure of Rs. 2,91,00,000/- to the two persons in the fray before us. Ordinarily, therefore, we would have asked the Government to disclose the second figure of minimum wage and restart the tendering process. However, we do not think that the justice of the case requires us to do so, for two reasons. 2,91,00,000/- to the two persons in the fray before us. Ordinarily, therefore, we would have asked the Government to disclose the second figure of minimum wage and restart the tendering process. However, we do not think that the justice of the case requires us to do so, for two reasons. First and foremost, Respondent No. 1 before us has clearly violated the strict terms of the tender condition on every occasion and hence cannot be given relief. And, secondly, we already find that due to litigation the present tender has not taken off for over one year. In the absence of mala fides, and indeed the High Court judgment has found that mala fides did not vitiate the calculation of minimum wage by the Labour Department, we cannot accept Shri Divan's submission that the figure of Rs. 2,91,00,000/- was tailor made to suit the bid offered by the Appellant herein. We, therefore, set aside the decision of the Gujarat High Court and allow the Government to proceed further in finalizing the tender in favour of the Appellant herein". 11. Rival submissions advanced at the Bar have received due consideration of this Court. 12. The respondent No. 1 vide National Competitive Bidding (NCB) dated 04.03.2020 had invited bids from eligible contractors for the project "Strengthening of NH-61 (new NH2) from Km 0.00 to Km 6.00 during 2019-20 under NH Division No. 1 Kohima on EPC mode in the State of Nagaland", wherein, apart from various details like length in Km, Bid security, estimated cost, tender fee, period of completion, it was indicated in column No. 7 of the NCB Rs. 10,000/- as cost of processing fee. Cost of processing fee has further been indicated to be a non-refundable and payable in the form of Demand Draft (DD) from any nationalized/scheduled bank in favour of Chief Engineer, PWD, (NH), Kohima, Nagaland, payable at Kohima. The NIT/NCB further provided that the complete bid document can be viewed/downloaded from official portal of CPPP website https://eprocure.gov.in/eprocure/app from 04.03.2020 to 06.04.2020 upto 12.00 Hrs. Financial Bid and Technical Bid by the bidder was provided to be submitted at https://eprocure.gov.in/eprocure/app on or before 06.04.2020 upto 1200 hours. It has been further provided in the NCB/NIT that Bid through any other mode shall not be entertained. However, Bid Security, document fee, Power of Attorney and Joint Bidding Agreement etc. Financial Bid and Technical Bid by the bidder was provided to be submitted at https://eprocure.gov.in/eprocure/app on or before 06.04.2020 upto 1200 hours. It has been further provided in the NCB/NIT that Bid through any other mode shall not be entertained. However, Bid Security, document fee, Power of Attorney and Joint Bidding Agreement etc. was provided to be submitted physically by the bidder on or before 07.04.2020. Though, the last date for submission of the Bid was fixed on 06.04.2020 in view of the Lockdown in the country because of the COVID-19 Pandemic, the last date for submission of the Bid came to be extended by various corrigendums' issued by the respondent No. 1 on 01.04.2020, 20.04.2020. 07.05.2020 and finally by a corrigendum dated 14.05.2020 whereby the last date for request of Bid document was fixed on 21.05.2020 at 12.00 Hrs, Bid due date on 21.05.2020 at 1200 hours and opening of Technical Bid on 22.05.2020 at 1300 hours. In the said corrigendum, it was further provided that in accordance with Ministry guidelines, the bidders shall submit the scanned copy of the original documents along with the Bid on or before the Bid due date of submission online. The evaluation of Bid will be carried out with the available scanned copy of the documents. However, the successful bidders are to submit the original documents physically with the concerned authority before issue of LOA. 13. The petitioner and the respondent No. 2 along with others submitted their respective Bids in pursuance of the NCB dated 04.03.2020. The opening of Technical Bid though fixed on 22.05.2020, the evaluation of the same was done on 06.07.2020 at 1200 hours through video conference, wherein, the Bid of the petitioner and the respondent No. 2 along with one M/s. Vilelie Khamo & Sons were found to be responsive and technically qualified. According to the petitioner, the Minutes of the Technical Evaluation done by the Committee on 06.07.2020 was uploaded in the e-procure website on 15.07.2020 from where the petitioner could come to know that the respondent No. 2 had not submitted a processing fee of Rs. 10,000/- in the form of Demand Draft (DD) from any Nationalized/Scheduled bank in favour of respondent No. 1 which is non-refundable along with its bid. 10,000/- in the form of Demand Draft (DD) from any Nationalized/Scheduled bank in favour of respondent No. 1 which is non-refundable along with its bid. That prompted the petitioner to write a letter to the Chief Engineer, PWD, (NH)/respondent No. 1 on 16.07.2020 (Annexure A-6 to the writ petition) seeking a clarification as to how the Bid of the respondent No. 2 was evaluated in the absence of processing fee of Rs. 10,000/- submitted by the respondent No. 2 in the form of Demand Draft (DD) along with its Bids. The respondent No. 1 by his letter dated 17.07.2020 (Annexure A-7 to the writ petition) replied to the petitioner that non submission of processing fee is not a part of the qualification criterion of the bidder as per the Request for Proposal (RFP) document. On the same date i.e. on 17.07.2020, the petitioner wrote back to the respondent No. 1/the Chief Engineer, PWD (NH), Nagaland, Kohima, that if submission of processing fee is not mandatory then it is unfair for the bidders who have submitted processing fee in accordance with the NIT/NCB dated 04.03.2020 and therefore, it was requested to define processing fee and the purpose of it, for which, it was mentioned in the NIT/NCB dated 04.03.2020. As the letter dated 17.07.2020 written to the respondent No. 1 by the petitioner did not evoke any response, the petitioner again wrote another letter dated 21.07.2020 (Annexure A-9 to the writ petition) to the respondent No. 1 reiterating its request for clarification of the processing fee and until such clarification is given, to postpone the opening of the Financial Bid, which was fixed on 22.07.2020 at 1.00 PM. In response to the petitioner's letter dated 17.07.2020 and 21.07.2020, the respondent No. 1 wrote back to the petitioner vide letter dated 22.07.2020 (Annexure A-10 to the writ petition), wherein, it was reiterated that non submission of processing fee is not a part of the qualification criteria for a bidder as per the Request for Proposal (RFP). As such, it is not required by any contractor, bidding for the work to submit scanned copy of the processing fee online. It was further informed in the letter that as per the NIT for the instant tender, processing fee/documents fee shall be submitted physically by the Bidder. As such, it is not required by any contractor, bidding for the work to submit scanned copy of the processing fee online. It was further informed in the letter that as per the NIT for the instant tender, processing fee/documents fee shall be submitted physically by the Bidder. However in view of Lockdown imposed due to COVID-19 Pandemic, corrigendum was issued where only successful bidder has been asked to submit the original documents physically to the concerned authority before issue of LOA. 14. In reply to the aforesaid letter of the respondent No. 1, the petitioner by referring to corrigendum-05 dated 14.05.2020; vide letter dated 22.07.2020 (Annexure A-11 to the writ petition) wrote back to the respondent No. 1 that submission of original documents may not be mandatory but scanned copy of the original documents are mandatory for the evaluation process; and, that non submission of scanned copy is a clear violation of the NIT and the corrigendum-05 dated 14.05.2020 and requested the respondent No. 1 for rejection of the Bid where scanned copy of processing fee is not submitted along with the Bid. 15. Notwithstanding the aforesaid objections, raised by the petitioner against the evaluation of the Bid of respondent No. 2, the Financial Bid was opened on 22.07.2020, wherein, respondent No. 2 has been found to be L-1 and the petitioner as L-2. It is in the light of the above that the petitioner has filed this writ petition contending that in the absence of processing fee of Rs. 10,000/- in the form of Demand Draft (DD) from any Nationalized/Scheduled bank in favour of Chief Engineer, PWD (NH), Kohima, accompanying the Bid of the respondent No. 2, the Bid of the respondent No. 2 could not have been processed and evaluated and hence the Technical evaluation as well as the opening of the Financial Bid in respect of respondent No. 2 is liable to be set aside and quashed and the work, in question, be awarded to the petitioner as the petitioner is found to be L-1 if the Bid of the respondent No. 2 is rejected. 16. Though, learned Addl. 16. Though, learned Addl. Advocate General has fairly admitted that the bid of the respondent No. 2 was not accompanied by a cost of processing fee in the form of Demand Draft (DD), to the set the records right, counter affidavits filed by the respondents may also be noticed, at this stage. The respondent No. 1 in his counter affidavit has denied that the respondent No. 2 did not submit the Demand Draft (DD) along with its Bid as contended by the petitioner and has further stated in Paragraph-3 of the counter affidavit that the respondent No. 2 submitted a DD to the Department as processing fee payable to the Chief Engineer, PWD (NH), Nagaland, Kohima through Bank of Baroda, Dimapur dated 14.05.2020 bearing DD No. 064727' for an amount of Rs. 10,000/-. The petitioner has also filed a reply affidavit refuting the statement made in Paragraph-3 of the counter affidavit, by annexing a letter dated 15.09.2020 (Annexure P-1 to the reply affidavit filed by the petitioner) written by the Chief Manager, Bank of Baroda, Dimapur Branch to the Chief Engineer, PWD (NH), Nagaland, whereby, it has been informed to the Chief Engineer, PWD (NH), Nagaland that the date of issue of Demand Draft (DD) bearing No. 64727' from the said Branch is 14.08.2020 and not 14.05.2020; and, on the basis thereof, the petitioner contends that if the issue of the DD No. 64727' by the Bank of Baroda, Dimapur Branch was on 14.08.2020 instead of 14.05.2020, the said DD of Rs. 10,000/- as processing fee could not have accompanied the Bid of the respondent No. 2 at the time of submission of its bids, the last of which was 22.05.2020. 17. The respondent No. 2 in the counter affidavit filed has not specifically taken any stand as to whether the DD referred to by the respondent No. 1 was submitted along with the Bid of the respondent No. 2 except to say that payment of processing fee is not an essential criterion/condition in relation to the tender process in question. 18. Be that as it may, in view of the categorical submissions made by the learned Addl. Advocate General as recorded heretobefore that the Bid of the respondent No. 2 was not accompanied by a processing fee of Rs. 18. Be that as it may, in view of the categorical submissions made by the learned Addl. Advocate General as recorded heretobefore that the Bid of the respondent No. 2 was not accompanied by a processing fee of Rs. 10,000/- in the form of DD from any Nationalized/Scheduled bank in favour of Chief Engineer, PWD (NH), Nagaland, Kohima, the issue of whether the respondent No. 2 submitted a DD of Rs. 10,000/- as processing fee would taken to have not been submitted by the respondent No. 2 along with its bid as admitted by the learned Addl. Advocate General representing the respondent No. 1, notwithstanding the statements made in the counter affidavit of the respondent No. 1 that DD of Rs. 10,000/- was submitted by the respondent No. 2 along with its Bid documents. 19. In that view of the matter, the adjudication of the present writ petition would proceed on the premise that the Bid of the respondent No. 2 was not accompanied by a cost of processing fee of Rs. 10,000/- in the form of DD from any Nationalized/Scheduled bank in favour of Chief Engineer, PWD (NH), Nagaland, Kohima. The question, therefore, which would require determination by this Court in the instant case is whether evaluation of the Bid of the respondent No. 2 despite the Bid of the respondent No. 2 not accompanied by the processing fee of Rs. 10,000/- in the form of DD as provided in the NIT/NCB was a justified act on the part of the respondent authorities. 20. From the arguments advanced on behalf of the contesting parties, it is noticed that there are 2 types of conditions of tender; (1) a condition which is mandatory, the non compliance of which would entail rejection of the Bid and (2) a condition which is directory in nature, a non compliance of which would not entail automatic rejection of the Bid but such a condition is curable in nature by making a compliance of it at a later point of time also. 21. In the case of Ramana Dayaram Shetty (Supra); in a tender invited for running a IInd class Restaurant and two Snack Bars at the International Airport at Bombay, one of the condition prescribed for the bidder was that a bidder should be a registered IInd class hoteliers having at least 5 years experience. 22. 21. In the case of Ramana Dayaram Shetty (Supra); in a tender invited for running a IInd class Restaurant and two Snack Bars at the International Airport at Bombay, one of the condition prescribed for the bidder was that a bidder should be a registered IInd class hoteliers having at least 5 years experience. 22. In the case of Starline Agency (Supra); in a tender invited for supply of woolen blankets/materials for warden's uniform for the jails in Assam from the intending suppliers/recognized manufacturers/dealers or their agents, one of the condition for such intending suppliers/recognized manufacturers/dealers or their agents was that sales tax clearance certificate and the earnest money was required to be submitted along with the Bid. 23. In the case of Poddar Steel Corporation (Supra); in a notice inviting tender for disposal of one lot of Ferrous Scrap, one of the condition was that Bid should be accompanied by a banker's cheque from the State Bank of India. The issue for determination therein was whether the earnest money deposited through a banker's cheque marked and certified by the Union Bank of India and not from State Bank of India as provided in condition No. 6 of the tender notice would entail rejection of the bid. 24. In the case of Rashmi Metaliks Limited and Another (Supra); one of the condition of the invitation to bid was submission of latest income tax return. 25. In the case of Jagdish Mandal (Supra) on invitation of tender for "construction of right extension main canal from RD 8.01 km to 9.03 km including structures", one of the condition was that Earnest Money Deposit (EMD) be made by pledging NSC/postal time deposit/postal saving passbook/deposit receipts issued by any nationalized bank, whereas, instead of making Earnest Money Deposit in the manner and form prescribed as above, the Earnest Money was deposited by pledging postal TD account passbook. 26. In the case of Bakshi Security and Personnel (Supra); in an NIT for providing certain services, one of the conditions was that salary paid to man power should not be less than the minimum wages; and, whereas the salary paid to man power quoted by the bidder was less than the minimum wage. 27. 26. In the case of Bakshi Security and Personnel (Supra); in an NIT for providing certain services, one of the conditions was that salary paid to man power should not be less than the minimum wages; and, whereas the salary paid to man power quoted by the bidder was less than the minimum wage. 27. In the case of Ramen Deka (Supra); the petitioner had challenged the validity of the tender Notices issued by the respondent authorities whereby the action taken by the respondent authorities in fixing the Reserve Price/license Fee and formulating 'base Kitchen' norms as clear violation to the Catering Policy 2010 and the Circular No. 82/2012 dated 31.12. 2012 as purely arbitrary and unreasonable. The petitioner had also challenged the eligibility and the technical evaluation criterion as envisaged in Chapter-3 of Section A of the tender document as ambiguous, discriminatory and opposed to the healthy competition since the tedious and complicated technical evaluation may disqualify a smaller layer/bidder with lower HTS even though the bidder fulfill the minimum eligibility criterion. 28. In the case of Jalal Uddin (MD) (Supra); tender notice was issued as per the provisions of the Assam Panchayat Act, 1994 for settlement of Baralimari Bi-weekly market which required affixation of the requisite Court-fee stamp of Rs. 8.25 on the envelope as per the Assam Panchayat Act, 1994. The Bid of respondent No. 6 therein was rejected on account of affixation of court-fee stamp of Rs. 8.00/-, thereby, resulting in a deficit of Rs. 0.25/-. The Govt. of Assam had made amendments to the First Schedule and the Second Schedule to the Court Fees Act by the Court-fees (Assam Amendment) Act, 1972 which provided as per Article 1 (f) of the Second Schedule that a fee of Rs. 8.25/- has been fixed for an application or petition when the same is presented to any officer containing prayer for settlement of fishery, ferry, forest produce, forest mahals, elephant mahals, or an officer giving terms for acceptance of Government for any construction or an application for a permit or license to deal in controlled commodities. It was in view of the aforesaid prescription of fixed fee to be paid in the form of court-fees under the Court-fees (Assam Amendment) Act, 1972, the tender notice had specified that the sealed bid was to be affixed with court-fee stamps of Rs. 8.25/-. It was in view of the aforesaid prescription of fixed fee to be paid in the form of court-fees under the Court-fees (Assam Amendment) Act, 1972, the tender notice had specified that the sealed bid was to be affixed with court-fee stamps of Rs. 8.25/-. The Proviso to section 28, however, provided that if any document is through mistake or inadvertence received, filed or used in any office without being properly stamped, the Head of the office may, if he thinks fit, order that such instrument be stamped as he may direct; and, on such document being stamped accordingly, the same and every proceeding related thereto shall be as valid as if it had been properly stamped in the first instance. It was in the light of the above, provisions of Assam Panchayat Act and Assam Court fees Act as amended with condition of requiring affixing of Court-fee stamp of Rs. 8.25/- prescribed in the tender notice was held to be a curable defect, after being put to notice to make good the deficit within a stipulated time period. 29. Thus, on perusal of the decisions of the Hon'ble Court, relied on by the learned counsels for the contesting parties, as referred to hereinabove, it is evident that the Hon'ble Court while holding a term and condition of the tender, either to be a directory or to be a mandatory condition, was examining the terms and conditions of the tender specified in the tender notice which had its nexus with the nature of work to be executed by the tenderer/bidder. In the instant case, what we are concerned is the cost of processing fee as set out in the NIT/NCB dated 04.03.2020. In the instant case, what we are concerned is the cost of processing fee as set out in the NIT/NCB dated 04.03.2020. Before it is examined whether cost of processing fee as set out in the NIT/NCB dated 04.03.2020 is a mandatory condition to be fulfilled by the bidder at the time of submission of bid or a condition directory in nature which is capable of being cured at a later stage by a subsequent compliance thereof as contended by the learned counsel for the contesting parties in the light of the decisions rendered by the Hon'ble Supreme Court as well as by this Court, what remains to be first determined is whether the cost of processing fee as prescribed in the NIT/NCB dated 04.03.2020 is a condition and term of the tender having nexus with the nature of work to be executed by the bidder at all or otherwise. For better appreciation of what is the nature of work for which a bid has been invited from the eligible contractors and what actually is the cost of processing fee as indicated in the NIT/NCB dated 04.03.2020, the NIT/NCB itself is set out hereinbelow for ready reference:- GOVERNMENT OF NAGALAND OFFICE OF THE CHIEF ENGINEER PWD (NATIONAL HIGHWAYS) NAGALAND; KOHIMA NATIONAL COMPETITIVE BIDDING NIT No. CE/NH/NG/2019-20/NIT-1 Dated Kohima the 4th March, 2020 (National competitive Bidding through e-tendering mode only) The ministry of Road Transport and Highways through Public Works Department (PWD), Government of Nagaland is engaged in the development of National Highways and as per of this endeavor, it has been decided to undertake Strengthening and Widening of various stretches as listed below in the State of Nagaland through and Engineering, Procurement and Construction (EPC) Contract. Chief Engineer, PWD (NH), Government of Nagaland now invites bids from eligible contractors for the following project:- Sr. Name of Work Length in KM Bid security Rs. In Lakhs Estimated Cost Rs. Chief Engineer, PWD (NH), Government of Nagaland now invites bids from eligible contractors for the following project:- Sr. Name of Work Length in KM Bid security Rs. In Lakhs Estimated Cost Rs. Crore (Exel GST) Cost of processing fee (Rs.) Tender fee (payable) to RPAO Ghy (Rs.) Period of completion 1 2 3 4 5 6 7 8 1 Strengthening of NH-61 (new NH2 from 0.000 km km 6.00 during 2019-20 under NH Division No. 1 kohima on EPC mode in the State of Nagaland 6 9.85 9.85 10,000 10,000 12 Months 2 Strengthening of NH-155 (new NH 202) from 190.00 to km 220.00 during 2019-20 under NH Division kiphire on EPS mode in the State of Nagaland 30 15.42 15.42 15,000 10,000 18 Months 3 Strengthening of NH-702A From km 0.00 to km 5.46  and km 35.00 to km 40.00 under NH Division Mokokochung on EPC mode in the state on Nagaland 10.46 7.89 7.89 10,000 10,000 12 Month 4 Widening of existing single, intermediate lane road to 2 lane road from km 72.40 to km 83.00 on NH-61 in the state of Nagaland 10.60 80.35 80.35 25,000 10,000 24 Month Const of processing fee is Non-refundable in DD from any Nationalized/Scheduled bank in the favour of Chief Engineer, PWD (NH), khima, Nagaland payable at kohima The complete BID document can be viewed/downloaded from official portal of CPPP websitehttps://eprocure.gov.in/eprocure/app for Sl. No. 1, 2 & 3 from 04.03.2020 to 06.04.2020 (upto 12.00 Hrs IST) & for Sl. No. 4 from 04.03.2020 to 20.04.2020 (upto 12.00 Hrs IST). Bidder must submit its Financial Bid and Technical Bid at https://eprocure.gov.in/eprocure/app for Sl. No. 1, 2 & 3 on or before 06.04.2020 (upto 12.00 Hrs IST) & for Sl. No. 4 on or before 20.04.2020 (upto 12.00 Hrs IST). Bids received online shall be opened for Sl. No. 1, 2 & 3 on 07.04.2020 (at 1300 hours IST) & for Sl. No. 4 on 21.04.2020 (at 1300 hours IST). Bid through any other mode shall not be entertained. However, Bid security, document fee, Power of Attorney and Joint Bidding agreement etc. shall be submitted physically by the Bidder for Sl. No. 1, 2 & 3 on or before 07.04.2020 (at 1200 hours IST) & for Sl. No. 4 on 21.04.2020 (at 1300 hours IST). Bid through any other mode shall not be entertained. However, Bid security, document fee, Power of Attorney and Joint Bidding agreement etc. shall be submitted physically by the Bidder for Sl. No. 1, 2 & 3 on or before 07.04.2020 (at 1200 hours IST) & for Sl. No. 4 on or before 21.04.2020 (at 1200 hours IST), please note that the Chief Engineer PWD (NH), Kohima, Nagaland reserved the right to accept or reject all or any of the BIDs without assigning any reason whatsoever. Sd/- Chief Engineer, PWD (NH) NPWD Building, Kohima-797001, Kohima, Nagaland. 30. From the NIT/NCB quoted hereinabove, it is noticed that the work in question, for which bids have been invited from the eligible contractors pertains to 'Strengthening of NH-61 (new NH2) from km 0.00 to Km 6.00 during 2019-20 under NH Division No. 1 Kohima on EPC Mode in the State of Nagaland'. In the NIT/NCB, apart from describing the length in km, Bid security, estimated cost, tender fee payable to RPAO, Ghy and period of completion; a cost of processing fee of Rs. 10,000/- have also been prescribed. Cost of processing fee is further indicated to be non-refundable, payable in the form of DD from any nationalized/scheduled bank in favour of Chief Engineer, PWD (NH), Nagland, Kohima. The NIT/NCB further provides that complete bid payment can be viewed/downloaded from official portal of CPPP website https://eprocure.gov.in/eprocure/app. It also provides that bid through any other mode shall not be entertained. However, bid security, document fee, Power of Attorney and Joint Bidding document etc., shall be submitted physically by the bidder. The NIT/NCB is also accompanied by a Request for Proposal (RFP) which contains the terms and conditions of the tender, in question. Section 2 of the RFP contains the Instructions to Bidders which comprises of part A & B. Part-A is titled General, wherein, Clause 2.1 of the RFP contains General terms of Bidding. Clause 2.2 of the RFP contains the Eligibility and qualification requirements of the bidder. Clause 2.2.2 of the RFP contains the Qualification requirements of the bidders and Clause 2.2.2.2 of the RFP contains the technical capacity. Part-B is titled as documents where Clause 2.7 highlights the contents of the RFP. Clause 2.2 of the RFP contains the Eligibility and qualification requirements of the bidder. Clause 2.2.2 of the RFP contains the Qualification requirements of the bidders and Clause 2.2.2.2 of the RFP contains the technical capacity. Part-B is titled as documents where Clause 2.7 highlights the contents of the RFP. Part-C is titled preparation and submission of bids and prescribes format and signing of Bid documents comprising technical and financial bid, Bid due date, late Bids, procedure for e-tendering, online opening of Bids, Rejection of Bids, Validity of Bids, confidentiality and correspondence with the Bidder. Part-D is titled Bid Security which prescribes for bid security and performance security. Section 3 of the RFP provides for evaluation of technical bids and opening and evaluation of financial bids. Section 4 is titled as Fraud and Corrupt Practices. Section 5 is titled as pre-bid conference. And finally Section 6 of the RFP is titled as Miscellaneous. 31. On perusal of the RFP accompanying the NIT/NCB, it is noticed that somewhat exhaustive and elaborate terms and conditions to be fulfilled by the bidders have been provided for and prescribed. However, it is no where defined in the RFP as to what does cost of processing fee as indicated in the NIT/NCB dated 04.03.2020 means nor it has been defined in the NIT/NCB dated 04.03.2020 itself which had indicated the cost of processing fee of Rs. 10,000/- to be deposited in the form of DD from any nationalized/scheduled bank in favour of Chief Engineer, PWD (NH), Kohima. 32. In the absence of any definition in the RFP or in the NIT/NCB that what actually is the cost of processing fee, the question, therefore, is whether cost of processing fee as indicated in the NIT/NCB dated 04.03.2020 can be termed as a part of the terms and conditions of the tender relatable to eligibility of the work for which the NIT/NCB have been invited for. In the absence of any specific inclusion of the cost of processing fee as one of the term and condition of the tender in the RFP, it would be difficult to accept that the cost of processing fee as indicated in the NIT/NCB dated 04.03.2020 as one of the term and condition of the tender, relatable to the eligibility/competence/capability of the bidder for execution of the work, in question, for which NIT/NCB have been invited for; calling for further determination by this Court as to whether the cost of processing fee is an essential condition of eligibility or merely ancillary or subsidiary with the main object to be achieved by the condition. 33. The respondent No. 1 in the counter affidavit filed has also not defined what does the cost of processing fee mentioned in the NIT/NCB dated 04.03.2020 means except to say that the cost of processing fee as indicated in the NIT/NCB dated 04.03.2020 is not a mandatory condition to be fulfilled by the bidders participating in the tender. 34. The work for which NIT/NCB have been invited being "Strengthening of NH-61 (new NH2) from km 0.00 to Km 6.00 during 2019-20 under NH Division No. 1 Kohima on EPC Mode in the State of Nagaland" and the required eligibility condition, competence, capability-financial or technical etc relatable to the work, in question, having been provided in the RFP; in the considered view of this Court, the cost of processing fee as indicated in the NIT/NCB dated 04.03.2020 cannot be equated with any terms and conditions relatable to the eligibility, competence and capability to execute the work, in question, by the intending bidders. In the absence of any definition provided either in the NIT or in the RFP or in the counter affidavit filed by the respondents, a literal and common sense understanding of the expression "cost of processing fee" indicated in the NIT/NCB dated 04.03.2020 can only be understood to mean a fee payable by the bidder for the purpose of processing the bid for its further comparative evaluation vis--vis with other bids submitted. In other words, payment of a processing fee of Rs. 10,000/- in the form of Demand Draft (DD) from any nationalized/scheduled bank in favour of Chief Engineer, PWD (NH), Nagaland, kohima, is a condition precedent for evaluation of the bid submitted. In other words, payment of a processing fee of Rs. 10,000/- in the form of Demand Draft (DD) from any nationalized/scheduled bank in favour of Chief Engineer, PWD (NH), Nagaland, kohima, is a condition precedent for evaluation of the bid submitted. Though, cost of processing fee indicated in the NIT/NCB dated 04.03.2020 is not and cannot be a term or condition of the tender relatable to the eligibility, capability, competence etc for the work, in question and therefore, not a part of the terms and conditions for the work, in question, for which the tender have been invited for, it is still a condition precedent for evaluation of bid submitted and the failure to submit the cost of processing fee in the form of Demand Draft (DD) along with the bid would result in non processing/evaluation of the bid which has not been accompanied with by a cost of processing fee in the manner indicated above. 35. In that light, what needs to be determined in the instant case is not whether the non submission of a cost of processing fee along with the bid is a mandatory condition/essential condition requiring rigid enforcement thereof or merely ancillary or subsidiary with the main object to be achieved by the condition and therefore, open to the authority to deviate from and not to insist upon strict literal compliance in an appropriate cases; but the question which requires consideration of this Court in the instant case is whether the respondent No. 1 by evaluating the bid of the respondent No. 2, whose bid was not accompanied by a processing fee as indicated in the NIT/NCB, have acted arbitrarily, un-reasonably or irrationally leading to an infirmity in the "decision making process" requiring interference by this Court in exercise of the power under Article 226 of the Constitution of India. 36. To answer the question posed above what is of relevance is the NIT/NCB dated 04.03.2020 itself as well as the corrigendum-05 dated 14.05.2020 issued by the Chief Engineer, PWD (NH), Nagaland, Kohima, vide No. CE/NH/NG/2019-20/NIT-1. In the NIT/NCB dated 04.03.2020, it has been provided that a cost of processing fee for an amount of Rs. 10,000/- is required to be deposited by means of a Demand Draft (DD) from any nationalized/scheduled bank in favor of Chief Engineer, PWD (NH), Nagaland, Kohima. In the NIT/NCB dated 04.03.2020, it has been provided that a cost of processing fee for an amount of Rs. 10,000/- is required to be deposited by means of a Demand Draft (DD) from any nationalized/scheduled bank in favor of Chief Engineer, PWD (NH), Nagaland, Kohima. The Corrigendum-05 dated 14.05.2020 referred to hereinabove provides that bidder shall submit the scanned copy of the original document along with the bid on or before the bid due date of submission online. It further provides that the evaluation of bids will be carried out with the available scanned copy of the documents. However, successful bidder is to submit the original documents physically with the concerned authority before issue of LOA. 37. Thus, from the conjoint reading of the NIT/NCB dated 04.03.2020 as well as corrigendum-05 dated 14.05.2020, it is evident that since the bid has to be submitted online, the bidder is required to submit the scanned copy of all the original documents along with the bid including the Demand Draft (DD) of Rs. 10,000/- from a nationalized/scheduled bank in favour of Chief Engineer, PWD (NH), Nagaland, Kohima, on or before the bid due date online. It is further evident from the corrigendum-05 dated 14.05.2020 that the evaluation of bids will be carried out with the available scanned copy of the documents. To facilitate evaluation of the bid, it was, therefore, imperative that scanned copy of the original documents along with the bid including the scanned copy of the Demand Draft (DD) for further processing/evaluation of the bid be made available with the Bid Evaluation Committee or the tender issuing authority. In the instant case, it is an admitted fact that no any scanned copy of the Demand Draft (DD) submitted by the respondent No. 2 was available along with its bids either before the Bid Evaluation Committee or the tender issuing authority at the time of the technical evaluation held on 06.07.2020. Despite the scanned copy of the Demand Draft (DD) of Rs. 10,000/- as a cost of processing fee not accompanying the bid of the respondent No. 2, the Bid Evaluation Committee proceeded to evaluate the bid of the respondent No. 2 along with the bid of the petitioner and 2 others in the Minutes of meeting of Bid Evaluation Committee held on 06.07.2020 at 12.00 hours through video conference. 10,000/- as a cost of processing fee not accompanying the bid of the respondent No. 2, the Bid Evaluation Committee proceeded to evaluate the bid of the respondent No. 2 along with the bid of the petitioner and 2 others in the Minutes of meeting of Bid Evaluation Committee held on 06.07.2020 at 12.00 hours through video conference. To ascertain as to what transpired in the meeting of Bid Evaluation Committee held on 06.07.2020 (Annexure-A-5 to the writ petition), the Minutes of meeting held on 06.07.2020 may be reproduced hereinbelow for ready reference:- By Circulation "Minutes of the Meeting of Bid Evaluation committee held on 6th July, 2020 at 1200 Hrs through Video Conference for the work "Strengthening of NH-2 (Old 61) from 0.000 km to 6.000 km during 2019-20 under NH Division No. 1 Kohima on EPC Mode in the State of Nagaland". Job No: 002/ng/2019-20/102 The work under consideration was sanctioned by the Ministry amounting to Rs. 1214.88 Lakh vide sanction letter No. NH-12014/33/2019/NG/Zone-V dated 11th December, 2019. The estimated civil construction cost of work is Rs. 985.30 Lakhs. The work is proposed under EPC mode by the State PWD, Nagaland as per Ministry's laid down procedures. 2. As per Ministry's Circular No. RW/NH-24035/4/2008-P & M/PIC Vol. II dated 23.02.2018 for works with sanction cost more than Rs. 5.00 crore to Rs. 100 crore tender may be invited by the State PWD/BRO using requisite bidding document and procedure as per ministry's extant guidelines.The composition of the Technical Evaluation Committee is as under:- Sr. Composition of the committee Role 1 Chief Engineer (NH), Nagaland PWD, Nagaland Kohima Chairman 2 Senior Accounts officer, office of the Chief Engineer, Representative if State T @ A, Nagaland, Kohima Member 3 Regional officer, Ministry of Road Transport and Highways, Guwahati Member 4 Superintending Engineer (NH), Nagaland PWD, Nagaland, Kohima Member 5 Exceuting Engineer PWD (NH) Kohima, Nagaland Member Secretary 3. The tender for the above mentioned work amounting to Rs. 9.85 crores (amount put to tender) was invited by the Chief Engineer PWD(NH), Nagaland on 04th March, 2020 and opened on 22nd May 2020. A total of 4 (four) bids were received online from the following bidders: Sr. No. Name of Bidders 1. M/s K.C. Angami and Sons Consortium 2. M/s Vilelie Khamo and Sons 3. M/s TTC India Infra 4. M/s Tanor Engineering 4. A total of 4 (four) bids were received online from the following bidders: Sr. No. Name of Bidders 1. M/s K.C. Angami and Sons Consortium 2. M/s Vilelie Khamo and Sons 3. M/s TTC India Infra 4. M/s Tanor Engineering 4. The Chief Engineer PWD (NH) informed that the evaluation has been carried out with the scanned documents uploaded online due to lockdown imposed for COVID-19 pandemic and the requisite original document will be submitted physically by the successful bidder before issuance of LOA. 5. The bid evaluation committee found that all the bidders have submitted a Bid securing Declaration as per Ministry's Guideline vide No. RW/NH-37010/4/2010-EAP (Printing) Vol-IV; dated 07.10.2019 and corrigendum issued for the instant tender. 6. Based on the documents placed before the Evaluation Committee, the Committee examined the technical bid of the 4(four) bidders(the detailed evaluation sheet is enclosed herewith) and following observation has been brought out by the committee. 6.1 In the case of bidder M/s. Tanor Engineering, the documents as work experience by the Bidder were found to be fake/fabricated by the Committee. As such, the bid of M/s. Tanor Engineering is rejected as per Cl. 4.1, Section-4 "Fraud AND CORRUPT PRACTICES" of the RFP. 7. In view of the above evaluation and detailed deliberation of the Committee, the Committee recommends the opening of Financial Bids for the work "Strengthening of NH-2 (Old 61) from 0.000 km to 6.000 km during 2019-20 under NH Division No. 1, Kohima on EPC Mode in the State of Nagaland" for the following technically qualified bidders: 1. M/s. K.C. Angami & Sons Consortium; 2. M/s. Vileie Khamo & Sons; and 3. M/s. TTC India Infra. Executive Engineer, pwd (NH), Member Secretary, Bid Evaluation Committee Sr. Accounts officer, office of chief Engineer, PWD (NH) Rep. of state T and A Member, Bid Evaluation Committee Superintending Engineer, PWD (NH) Member, Bid Evaluation Committee Regional officer, MORTH, Guwahati Member, Bid Evaluation Committeee Chief Engineer, PWD (NH) Chairman Bid Evaluation Committee 38. From the Minutes of Meeting of Bid Evaluation Committee as reproduced hereinabove, it is evident that Bid Evaluation Committee have not discussed at all as to whether bid of the respondent No. 2 was accompanied by a Demand Draft (DD) of Rs. 10,000/- as a cost of processing its bid for further evaluation. From the Minutes of Meeting of Bid Evaluation Committee as reproduced hereinabove, it is evident that Bid Evaluation Committee have not discussed at all as to whether bid of the respondent No. 2 was accompanied by a Demand Draft (DD) of Rs. 10,000/- as a cost of processing its bid for further evaluation. Nor the Bid Evaluation Committee have given any reason for not insisting upon fulfilling the requirement of submission of Demand Draft of Rs. 10,000/- as a cost of processing fee as provided in the NIT/NCB dated 04.03.2020 and the corrigendum-05 dated 14.05.2020. The Bid Evaluation Committee, therefore, without taking into account a relevant factor as prescribed in the NIT/NCB dated 04.03.2020 as well as corrigendum-05 dated 14.05.2020 as regards the submission of Demand Draft of Rs. 10,000/- as a cost of processing fee have arbitrarily and without indicating any adequate reason(s) for not insisting upon the requirement of submission of cost of processing fee in the form of Demand Draft proceeded at its whims to evaluate the bid of the respondent No. 2 as well, which admittedly did not submit the cost of processing fee in the form of Demand Draft (DD); whereas, the petitioner and the other bidders had submitted cost of processing fee of Rs. 10,000/- in the form of Demand Draft (DD) as prescribed in the NIT/NCB dated 04.03.2020 and the corrigendum-05 dated 14.05.2020. The Hon'ble Supreme Court in the case of Ramana Dayaram Shetty(Supra), in paragraph-10 thereof has held as follows:- "...It is well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them". 39. Thus, it has been established with certainty and beyond any doubt that the Bid Evaluation Committee in proceeding to evaluate the bid of the respondent No. 2 in its meeting held on 06.07.2020 have, for reason(s) unknown, choosen to ignore the fact that the bid of the respondent No. 2 is not accompanied by a cost of processing fee in the form of Demand Draft (DD) as indicated in the NIT/NCB dated 04.03.2020 and the corrigendum-05 dated 14.05.2020. The Bid Evaluation Committee, therefore, while evaluating the bid of the respondent No. 2 has failed to take into account a relevant factor which it ought to have taken into account in the Bid Evaluation Committee meeting held on 06.07.2020. The decision making process of the Bid Evaluation Committee in deciding to evaluate the bid of the respondent No. 2 in the absence of cost of processing fee in the form of Demand Draft (DD) have, therefore, acted arbitrarily, un-reasonably and irrationally leading to an infirmity in the decision making process. Be it stated, at this stage, that this Court has not scrutinized the merit/correctness/soundness of the Technical Bid Evaluation made by the Bid Evaluation Committee in its meeting dated 06.07.2020. Nor has this Court scrutinized the terms and conditions of the invitation to tender as it is in the realm of the contract. What, however, has been scrutinized in the instant case is the "decision making process" of the Bid Evaluation Committee in evaluating the bid of the respondent No. 2 despite absence of cost of processing fee in the form of Demand Draft (DD) along with the bid of the respondent No. 2 as prescribed in the NIT/NCB dated 04.03.2020 and Corrigendum-05 dated 14.05.2020. 40. In the case of Sterling Computers Limited vs. M and N. Publications Limited, reported in (1993) 1 SCC 445 , the Hon'ble Supreme Court in Paragraph-18 held as follows:- "18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the court is concerned primarily as to whether there has been any infirmity in the "decision making process." By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Court have inherent limitations on the scope of any such enquiry. But at the same time... the Courts can certainly examine whether "decision making process" was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution." 41. Court have inherent limitations on the scope of any such enquiry. But at the same time... the Courts can certainly examine whether "decision making process" was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution." 41. Though, in contractual matters, particularly, when the contract is of commercial in nature, a High Court in exercise of its power does not interfere with the decision taken by the State or its instrumentalities as regards allotment of Contracts; but the judicial review of the decision making process cannot be out of purview of High Courts power under Article 226 of the Constitution of India. 42. The power of judicial review of an administrative decision is not directed against the decision of the administrator, but against the decision making process. If an administrative authority, while reaching a decision, does not take into account all factors, which are relevant, or take into account a factor, which is wholly irrelevant, such a decision making process cannot be up-held and, consequently, a decision, reached by taking a recourse to such a decision making process cannot be validated in a proceeding under Article 226 of the Constitution of India. A fair decision making process is one where all relevant factors are taken into account. The decision making process adopted by the Bid Evaluation Committee in the present case, by application of the aforesaid standards, would fail and, therefore, the decision of the Bid Evaluation Committee to evaluate the bid of the respondent No. 2, despite cost of processing fee in the form of Demand Draft having not accompanied the bid of the respondent No. 2 as prescribed in the NIT/NCB dated 04.03.2020 and the corrigendum-05 dated 14.05.2020 has to be considered legally fragile requiring interference by this Court in exercise of power of judicial review under Article 226 of the Constitution of India. 43. 43. That apart, if the arguments advanced by the respondents are to be tested, the argument being that the cost of processing fee, though, prescribed in the NIT/NCB dated 04.03.2020 is not mandatory to be fulfilled at the time of submission of the bid and that the same can be complied with at a later stage also before the LOA is issued; one may legitimately like to ask: If it was not mandatory to submit the cost of processing fee along with the bid, why was this fact not indicated in the NIT/NCB itself? Why, then, the timing of submission of cost of processing fee was not indicated in the NIT/NCB itself and the consequence of non submission thereof? If it was not mandatory to submit the cost of processing fee along with the bid documents, what was the necessity and object for prescribing it in the NIT/NCB? And, why was it prescribed in the NIT/NCB in such an ambiguous manner, if the respondent authority wanted to maintain a fair and transparent bidding process? These are the questions, the answer(s) of which were not readily available in the public domain or made known to the intending bidder(s) or bidder(s) before they had submitted their bids. The respondent No. 1, the tender issuing authority, by prescribing such ambiguous term in the NIT/NCB dated 04.03.2020 have reserved to itself a discretion, which is unguided and unregulated, capable of being abused by the authority at its whims and caprice. That is what appears to have transpired in the instant case when the Bid Evaluation Committee in its meeting held on 06.07.2020 adopted an arbitrary and discriminatory approach as regards the cost of processing fee in respect of respondent No. 2 vis--vis the petitioner and the other bidders thereby vitiating the entire decision making process. In the case of Jalal Uddin (MD.) (Supra), relied on by the learned Addl. Advocate General, the requirement of affixation of requisite Court fee stamp of Rs. 8.25 on the envelope was provided in tender notice as per the Assam Panchayat Act, 1994 and Court fees (Assam Amendment) Act, 1972, wherein power to relax the improperly stamped was available to the authority under proviso to Section 28 of the Court fees (Assam Amendment) Act, 1972. 8.25 on the envelope was provided in tender notice as per the Assam Panchayat Act, 1994 and Court fees (Assam Amendment) Act, 1972, wherein power to relax the improperly stamped was available to the authority under proviso to Section 28 of the Court fees (Assam Amendment) Act, 1972. It was in the light of the above provisions of Assam Panchayat Act, 1994 and the Court fees (Assam Amendment) Act, 1972 that the condition of affixation of Court fees stamp of Rs. 8.25/- prescribed in the tender notice was held to be curable. In the instant case, unlike in the case of Jalal Uddin (MD.) (Supra), the prescription of Rs. 10,000/- as a cost of processing fee to be submitted in the form of Demand Draft (DD) from any nationalized/scheduled bank in favour of Chief Engineer, PWD (NH), Nagaland, Kohima as a condition precedent for further processing and evaluation of the bid in the NIT/NCB dated 04.03.2020 had neither any statutory basis nor any power of relaxation is available to the tender issuing authority/respondent No. 1. The ratio laid down in the case of Jalal Uddin (MD.) (Supra) pressed into served by the learned Addl. Advocate General in support of his contention, therefore, would have no application in the facts and circumstances of the present case. 44. Resultantly, for the reasons and discussions made hereinabove, this writ petition succeeds and accordingly, the Minutes of meeting of the Bid Evaluation Committee dated 06.07.2020 (Annexure A-5 to the writ petition) in so far as it recommended the bid of the respondent No. 2 stands set aside and quashed. Consequent upon setting aside of the evaluation of Technical bid of the respondent No. 2, the financial bid of the respondent No. 2 also stands set aside and quashed with a further direction to the respondent No. 1 to consider the bid submitted by the petitioner for the work: "Strengthening of NH-61 (new NH2) from km 0.00 to Km 6.00 during 2019-20 under NH Division No. 1 Kohima on EPC Mode in the State of Nagaland" in terms of NIT/NCB dated 04.03.2020 issued by the Chief Engineer, PWD (NH), Nagaland, Kohima. Writ petition stands allowed and disposed of in terms above with no order as to cost.