JUDGMENT Sabyasachi Bhattacharyya, J. - Respondent no. 4 floated a two-tier (technical and financial) re-tender for supply of cooked diet to indoor patients of Durgapur ESI Hospital vide ESI/DGP/NIT-04/DIET/20/Re 1/847 on June 25, 2020. The petitioner participated in the re-tender along with sixteen other bidders and succeeded in the technical bid. Tender Summary Reports were uploaded on September 10, 2020, indicating that financial bid was to be accepted in respect of the petitioner and four other bidders, while the other bidders had been rejected in the technical bid. However, vide Memo no. ESIH/DGP/1607 dated November 10, 2020, all sixteen bidders apart from the petitioner were requested to upload certain shortfall documents to validate their technical bids. On November 27, 2020, Memo no. ESIH/DGP/1682 was issued, requesting the petitioner and four other bidders to attend a selection process where the successful bidder was to be chosen by draw of lots. 2. Learned senior counsel for the petitioner submits that Rule 47C of the West Bengal Finance Rules provides for a "two-bid" system for high value purchase exceeding Rs. 10 lakh or for purchasing plant, machinery, equipment etc. of complex and technical nature which indicates that bids shall be invited in two parts, first the technical bid and then, only in respect of technically acceptable offers, the financial bid. Taking a cue from such Rule, counsel argues that unless the technical bid of a bidder is accepted on being eligible, the stage of financial bid does not arise. 3. Learned senior counsel next places reliance on a Memorandum dated February 14, 2017, which sets out the revised norms for acceptance of L1/H1 bid/Single bid when the number of qualified bidders during second call is less than three. Clause II thereof stipulates the situations on the basis of which the Tender Inviting Authority shall take a decision if the number of qualified bidders during tender/retender/re-auction is less than three. 4. Sub-Clause 'A' of Clause II governs tenders where the estimate is less than Rs. 5 lakh. Sub-clause 'B' provides for tenders where the estimate is equal to or more than Rs. 5 lakh but not more than 1 crore. 4. Sub-Clause 'A' of Clause II governs tenders where the estimate is less than Rs. 5 lakh. Sub-clause 'B' provides for tenders where the estimate is equal to or more than Rs. 5 lakh but not more than 1 crore. The "Case I" in both sub-clauses provide, inter alia, that if the number of qualified bidder is one during re-tender, the Departmental Head Secretary may accept the tender in consultation with the financial advisor of the department (in case of 'B' , further on recommendation of the Departmental Tender Committee). 5. It is argued that, in the present case, the request dated November 10, 2020 to all the sixteen bidders other than the petitioner, to upload 'shortfall documents' to validate their technical bids, is sufficient proof of the deficiency of all such other bidders in their technical bids. Thus, the petitioner was the only successful bidder at the technical bid stage. Drawing analogy from the principle laid down in Rule 47C of the West Bengal Finance Rules, unless a bidder succeeded at the technical stage, the bidder would not be eligible for the next stage, that is, the financial bid. As the petitioner was the only successful bidder at the technical stage, the revised norms for re-tenders dated February 14, 2017 apply and the Departmental Head Secretary was to accept the petitioner's tender and issue work order to the petitioner. Instead, the other sixteen technically ineligible bidders were permitted afresh to validate their deficient technical bids and four other bidders were selected from the said pool of bidders, thereby undertaking a de novo bid invitation process contrary to the revised norms for retender, which vitiates the process, for which this court ought to set it aside, according to the petitioner. 6. Learned senior counsel for the petitioner cites Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation and Others, (2000) 5 SCC 287 where the Supreme Court endorsed the view of the Bombay High Court that if a term of a tender was deleted after the players entered into the arena it was like changing the rules of the game after it had begun and therefore, if the Government or the Municipal Corporation was free to alter the conditions, fresh process of tender was the only alternative permissible. 7. 7. The petitioner next relies on a Division Bench judgment of this court, reported at [The Berhampore Construction Syndicate Private Limited and Another v. The State of West Bengal and Others,2018 SCCOnLineCal 5612] where the court, while passing an interim order, dealt with Rule 216 (3) of the PWD Code, which stipulated that even if, after taking appropriate steps the response to a Re-Tender is less than three, the tender may be accepted without reference to the Finance Department. It was observed by the Division Bench that the relevant provision only requires a reference of the rate to the Finance Department for concurrence and not the cancellation of the tender process. 8. The process of inviting further documents to cover up the technical deficiencies of the other sixteen bids and subsequent approval of four out of those for selection with the petitioner by draw of lots is challenged by the petitioner on the above grounds. 9. Learned senior counsel appearing for the respondents submits at the outset that the petitioner did not participate in the draw of lots pursuant to the invitation to do so and work order has already been issued in respect of the re-tender to the successful bidder, thus rendering the challenge academic. 10. The impugned notice to furnish shortfall documents, dated November 10, 2020, only called for uploading of documents and cannot be the subject-matter of challenge in a writ petition. Thus, the dispute raised in the writ petition is premature and stands infructuous upon subsequent selection of a successful bidder upon drawing lots and issuance of work order to the successful bidder. 11. Counsel submits that essential conditions of a notice inviting tender and norms thereof are to be rigidly construed, but ancillary/subsidiary conditions can be deviated from, without vitiating the tender process sufficient for it to be cancelled. The norms dated February 14, 2017, governing re-tenders, provides merely that, in case there is a single qualified bidder during re-tender, the Departmental Head Secretary may accept the tender in consultation with the financial advisor of the department (in case of 'B', further on recommendation of the Departmental Tender Committee). The expression "may" is directory and the tendering authority is not bound to accept the tender of the single qualified bidder. The said norm is only a guideline and is the authority is not bound to follow it meticulously. 12. The expression "may" is directory and the tendering authority is not bound to accept the tender of the single qualified bidder. The said norm is only a guideline and is the authority is not bound to follow it meticulously. 12. Learned senior counsel for the respondents relies on Poddar Steel Corporation v. Ganesh Engineering Works and Others, (1991) AIR SC 1579 , also reported at (1991) 3 SCC 273 where the Supreme Court, in paragraph no. 6 held that 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, it was held, the authority issuing the tender may be required to enforce them rigidly. In 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. 13. Thus, the respondents submit, the further invitation to the other sixteen bidders, the choice of four successful bidders out of them and subsequent request to participate in the draw of lots for selection were part of a perfectly valid process, requiring no interference by court; more so, since the petitioner chose not to participate in the draw of lots despite being invited to do so. 14. The case hinges on the question as to how far the revised norms regarding re-tender, dated February 14, 2017, are binding on the respondent-authorities insofar as the procedure is concerned, in cases of re-tender where there is only a single qualified bidder. 15. The principle to be followed was laid down by the Supreme Court in Poddar Steel Corporation (supra), where essential and ancillary/subsidiary conditions of eligibility were distinguished. The first category, it was held, has to be enforced rigidly, while in case of the second, it is open for the authority to deviate from and not to insist upon the strict literal compliance in appropriate cases. 16. The first category, it was held, has to be enforced rigidly, while in case of the second, it is open for the authority to deviate from and not to insist upon the strict literal compliance in appropriate cases. 16. Even in the second case, the scope of deviation was circumscribed by the rider "in appropriate cases". In the present instance, no exception to justify deviation has been made out by the respondent-authorities; rather, the fresh opportunity to the technically ineligible bidders to fill in the lacunae in their technical bids would novate the process and consume more time, which might be detrimental keeping in view the urgent nature of the work to be awarded, being supply of cooked diet to indoor patients of Durgapur ESI Hospital. 17. In order to derive the nature of the condition-in-question, whether essential or ancillary, a comprehensive reading of the revised norms dated February 14, 2017 is necessary. The expression "norms", in its general sense, connotes rules or expectations. The first paragraph of the revised norms (Annexure P3 at page 29 of the writ petition) mentions that, prior to invitation of tender/auction, the eligibility criteria and other terms and conditions are required to be prepared carefully by the tender inviting authority. It was mentioned in the next paragraph, after the sub-clauses of the first paragraph, that in many cases the provisions and procedures of reviewing the eligibility criteria and wide publication of the NIT for tender/second call are not being properly observed by the tender inviting authority and the departments; also, in some cases, extending the time for submission of bids after the expiry of normal time is regarded as equivalent to retender or fresh tender. Under such circumstances, in partial modification of an earlier department memorandum dated December 2, 2012 and related orders, the following provisions regarding extension of last date of submission of bids and acceptance of bids when the numbers of qualified bidders during re-tender is less than three are to be followed, as per the revised norms. 18. Clause II of the norms, as mentioned thereafter, is captioned : "If the number of qualified bidders during tender/re-tender/re-Auction is less than 3". In such event, the Tender Inviting Authority shall take a decision based on the situations given thereunder. 19. Clause A thereunder provides for estimates less than Rs. 5 lakh. 18. Clause II of the norms, as mentioned thereafter, is captioned : "If the number of qualified bidders during tender/re-tender/re-Auction is less than 3". In such event, the Tender Inviting Authority shall take a decision based on the situations given thereunder. 19. Clause A thereunder provides for estimates less than Rs. 5 lakh. Case I, falling within such clause, stipulates that if the number of qualified bidder is one during re-tender, the Departmental Head Secretary may accept the tender in consultation with the FA of the Department. 20. Case I under Clause B, pertaining to estimates equal to or more than Rs. 5 lakh but not more than Rs. 1 crore, is similar as Case I under Clause B, adding that the acceptance would additionally be on recommendation of the Departmental Tender Committee. 21. The expression "may" in the aforementioned two clauses is highlighted by the respondents to argue that the condition is ancillary/subsidiary and not essential. 22. The first report relied on by the petitioner, that is, Monarch Infrastructure (P) Ltd. (supra), the Supreme Court endorsed the view of the Bombay High Court that if a term of the tender having been deleted after the players entered into the arena it is like changing the rules of the game after it had begun, and, therefore, if the Government or the Municipal Corporation was free to alter the conditions fresh process of tender was the only alternative permissible. 23. The said ratio, however, is not relevant for the present case. Here, the rules of the games have not been changed but sought to be interpreted to be directory, affording scope for the tendering authority to deviate therefrom. 24. The Berhampore Construction Syndicate (supra), the second report cited by the petitioner, does not deal with or lay down any proposition of law with regard to the mandatory/directory nature of provisions similar to the provisions of the 2017 norms applicable in the present case. 24. The Berhampore Construction Syndicate (supra), the second report cited by the petitioner, does not deal with or lay down any proposition of law with regard to the mandatory/directory nature of provisions similar to the provisions of the 2017 norms applicable in the present case. The Division Bench, in the cited report, considered the third paragraph of Rule 216 (3) of the PWD Code, which provides for cases where the response to the re-tender is less than three that such tender may be accepted without reference to the Finance Department, provided that the rates do not exceed the estimated or the schedule rates beyond 3% in case of works estimate and reasonable prevailing market price for goods and service in other cases; otherwise, such cases should be referred to the Finance Department for decision. It was held that the last paragraph of the Rule provides a 3% limit or cap, but it does not provide for the cancellation of the tender process in the event the rate exceeds 3%, but only requires a reference of the rate to the Finance Department for concurrence. 25. Thus, in Rule 216 (3) of the PWD Code tenders may be accepted without reference to the Finance Department if the response to a retender is less than three. In the event the rates exceed the estimated or scheduled rates beyond 3%, the cases "should be" referred to the Finance Department for decision. The above language, in no uncertain terms, indicates that the existing tenders shall be referred only if the rate exceeds 3%, implying necessarily that the tenders have to be accepted if the rates are within 3%. 26. The language of the clauses under consideration in the instant tender, however, differ in language from Rule 216(3) of the PWD Code. The 2017 norms provide that if the number of qualified bidder is one during re-tender for estimates under Rs. 5 lakh, the Departmental Head "may" accept the tender in consultation with other authority/authorities as stipulated. For estimates equal to/more than Rs. 5 lakh but not more than Rs. 1 crore, an additional rider is provided that if the bid is within 2% of the estimate the Departmental Head/Secretary "may" accept the tender in consultation with the FA of the Department on recommendation of the Departmental Tender Committee; if it is beyond 2% of the estimate, there will be a reference to the Finance Department. 1 crore, an additional rider is provided that if the bid is within 2% of the estimate the Departmental Head/Secretary "may" accept the tender in consultation with the FA of the Department on recommendation of the Departmental Tender Committee; if it is beyond 2% of the estimate, there will be a reference to the Finance Department. 27. A subsequent paragraph of the 2017 norms add that certain procedures are to be observed in all cases, covering Clauses A, B and C. As per the said paragraph, in cases where the tender is to be accepted by the Head of the Administrative Department/Secretary, the process ultimately culminates in the said Head, after necessary consultation and recommendation, taking the decision and according approval at his level. Thus, both Clauses A and B, pertaining to estimates from less than Rs. 5 lakh up to Rs. 1 crore, are covered by such culmination of the decision-making process. The parties in the present case have indicated that the estimate, although not specifically reflected in the notice inviting tender, is less than Rs. 1 crore, thus falling under either Clause A or Clause B. Hence, despite the expression "may" used in Clauses A and B, relating to acceptance by the Departmental Head/Secretary on reference/recommendation, the process of acceptance ultimately ends with the stipulation in the last few provisions of the 2017 norms that the Head of the Administrative Department, upon consultation/recommendation, "will take the decision and accord approval at his level". A composite reading of the 2017 norms, thus, reveals that the process of acceptance of the single bid is mandatory, on the necessary conditions stipulated therein being satisfied, without further invitation of bids. The initial expression, "may" has to be read in the context of the last few paragraphs of the revised norms, 2017, to give a mandatory meaning to it. 28. The initial paragraphs of the 2017 norms are categorical as to the necessity of review of the "eligibility criteria". The provisions "are to be followed", stipulates the third paragraph of the norms. The predominant purpose of the publication of revised norms on February 14, 2017 was to avoid maladies afflicting the system as regards retender and extensions of time for submission of bids. A holistic reading of the norms leaves no scope of relegating the stipulations therein to mere administrative advice, which might be directory in nature. The predominant purpose of the publication of revised norms on February 14, 2017 was to avoid maladies afflicting the system as regards retender and extensions of time for submission of bids. A holistic reading of the norms leaves no scope of relegating the stipulations therein to mere administrative advice, which might be directory in nature. Rather, the object of the revised norms, as mentioned therein, was to address defects in re-tender processes and to streamline the same. If the stipulations in the norm are attributed a directory interpretation, their very efficacy would be lost and there would be no compulsion on the tender inviting authorities to review the first tender conditions or streamline the process. Only a mandatory interpretation can lend teeth to the 2017 norms to address the systemic drawbacks pertaining to re-tenders, sought to be remedied by the norms. If the norms were to be optional/directory, a de novo tender process would entail, wasting much time and resources and rendering the first tender process entirely futile. On the contrary, a mandatory enforcement of the revised norms would streamline the process, reduce expenses of time and resources and would lend more transparency to re-tender processes. 29. In the present case, the act of the respondents in inviting the ineligible technical bidders to validate their lacunae, thereby initiating a fresh tender process, despite the availability of the petitioner as a single successful bidder, without any reference as envisaged under categories A and B under Clause II of the norms, was patently arbitrary and baseless. No person of ordinary prudence can justify such action on the part of the authorities. Thus, even in the absence of express proof of mala fides, the arbitrariness implicit in the impugned action itself vitiates such action. 30. Although the bidder(s) in whose favour work order(s) has/have been issued, if any, pursuant to the impugned memoranda have not been impleaded in the present writ petition, since such persons are the beneficiaries of the illegal action of the respondents and in view of the respondents having proceeded with the tender process despite having notice of the writ petition, the said persons are not parties to the writ and their non-impleadment does not hinder the disposal of the writ petition in their absence. Such beneficiaries of the illegal acts of the respondents will be bound by the consequences thereof. 31. Such beneficiaries of the illegal acts of the respondents will be bound by the consequences thereof. 31. In the circumstances, W.P.A. No.10800 of 2020 is allowed. The impugned Memo No. ESIC/DGP/1607 dated November 10, 2020 and Memo No. ESIH/DGP/1682 dated November 27, 2020 are cancelled. Work order(s) and/or other consequence, if any, issued in pursuance of such Memoranda stand hereby revoked. 32. There will be no order as to costs. 33. Urgent certified website copies of the order, if applied for, be supplied to the parties upon compliance of all requisite formalities.