ORDER : Sanjay K. Agrawal, J. 1. The petitioner has filed this writ petition calling in question the impugned orders Annexures P-3 & P-4 by which the petitioner’s technical bid was not opened holding that he is not having the requisite technical experience of work for tender Nos.70662 Saja & 70660 Kurud. The petitioner has further questioned the order Annexure P-16 by which the NIT dated 18-1-2021 has been cancelled by the respondent University. 2. It is the case of the petitioner that though the petitioner made representation for opening of its technical bid for the work in question, but it was not considered and the technical bid was not opened nor informed and the tender in question has been arbitrarily cancelled by order dated 27-7-2021. It is the further case of the petitioner that experience of one another firm M/s. Kaushik Enterprises in which Dharmendra Kumar Kaushik & Rajiv Lochan Tiwari, both, are also partners, has also to be taken into account and therefore the petitioner has claimed that while counting technical experience, the experience of firm M/s. Kaushik Enterprises be also reckoned which has not been done and the issue is covered by the decision of the Supreme Court in the matter of New Horizons Limited and another v. Union of India and others, (1995) 1 SCC 478 in which their Lordships of the Supreme Court have held that the experience of partners of earlier firm will be treated as valid experience for the petitioner firm for obtaining any tender work. It is also the case of the petitioner that if the experience of the other firm in which partners are same is taken into consideration, the petitioner will have the requisite experience and will be entitled for tender work of Mahasamund. Prayer has been made for quashing Annexures P-3 & P-4 and Annexure P-16 by granting the writ petition. 3. Return has been filed mainly by respondent No.3 that the petitioner’s subject tender was not opened on the ground that it has submitted the experience certificate of M/s. Kaushik Enterprises instead of the petitioner herein / tenderer M/s. Kaushik Buildcon, which is not as per the terms of the NIT and therefore the tender of the petitioner firm was not accepted. It was further pleaded that as per clause 5 of the tender documents, the University will have full rights to reject or accept any tender and clause 4.5 also provides that the competent authority to accept the tender, reserves right to accept the tender for the whole work or reject the tender as a whole without assigning any reason and such decision shall not be open to challenge in any forum or court of law. Furthermore, the tender in question has already been cancelled in public interest and as such, the writ petition deserves to be dismissed. 4. Mr. Prateek Sharma, learned counsel appearing for the petitioner, relying upon the decision rendered by the Supreme Court in New Horizons Limited (supra), would submit that experience of M/s. Kaushik Enterprises in which Dharmendra Kumar Kaushik & Rajiv Lochan Tiwari, both, are partners, has to be taken into account for the purpose of experience and if their experience is considered, then the petitioner's firm would be eligible to participate in the tender and its technical bid has to be opened and, therefore, the writ petition deserves to be allowed by setting aside the impugned rejection and cancellation of tender as well. 5. Mr. D.N. Prajapati, learned counsel appearing for respondent No.3 – University, would submit that the petitioner has submitted tender in the name of M/s. Kaushik Buildcon and it has not been submitted in the name of joint venture company, in the name of partnership firm or it has not been stated that the petitioner firm is having any partner, consortium or joint venture, therefore, it cannot rely upon the technical qualifications of any third firm for its technical qualification. Furthermore, in public interest, the tender in question has already been cancelled, therefore, in light of the decision of the Supreme Court in the matters of Rishi Kiran Logistics Private Limited v. Board of Trustees of Kandla Port Trust and others, (2015) 13 SCC 233 and Municipal Corporation, Ujjain and another v. BVG India Limited and others, (2018) 5 SCC 462 , the writ petition deserves to be dismissed. 6. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 7. 6. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 7. Respondent No.3 floated tender for the work in question in which the requirement of experience certificate states as under: - “Experience certificate : The intending tenderer must have in its name as a prime contractor experience of having successfully completed similar works during immediate past seven years ending last day of month previous to the one in which bid applications are invited (eligibility period) should be either of the following : Three similar completed works each costing not less than the amount equal to 40% of the estimated cost. OR Two similar completed works each costing not less than the amount equal to 50% of the estimated cost. OR One similar completed work costing not less than the amount equal to 80% of the estimated cost. (Work experience in any Government/Semi-Government/Public Sector Undertakings (Central/ State) will be considered for eligibility. (Work Experience in a Private firm shall be considered for eligibility only if the Private Firm is a Company registered under Indian companies Act’ 1956). (In case the bidder is not a prime contractor but a sub-contractor, the bidder’s experience as subcontractor will be taken into account if the contract in support of qualification is a sub-contract in compliance with the provision of such sub-contract in the original contract awarded to prime contractor.) While considering the value of completed works, the full value of completed works will be considered whether or not the date of commencement is within the said 7 (seven) years period. The cost of executed works shall be given a weightage to bring them at current price level by adding 5% for each completed year (total number of days/365) after the end date of experience till one year before the last date of month previous to one in which e-Tender has been invited. Note: The definition of Similar Work to be given in the NIT should be broader, unambiguous, and explicit and it should contain the predominant nature of tendered work. There should not be any scope for different interpretation by bidder and the department w. r. to “similar nature of work” defined in the NIT. Note: The definition of Similar Work to be given in the NIT should be broader, unambiguous, and explicit and it should contain the predominant nature of tendered work. There should not be any scope for different interpretation by bidder and the department w. r. to “similar nature of work” defined in the NIT. Note : Any bidder will be eligible only as and when he/ she has submitted the hard copies of the documents separately in Envelope “A” and “B” along with the same copies should also be uploaded online. There should not be any difference of document submitted online and offline.” 8. Qualification Criteria has also been prescribed in page 64 of the writ petition (Annexure – “M”) which states as under: - “Qualification Criteria : 1. To qualify for award of the contract, each Prime contractor in the same name and style (tenderer), in its name must have in the last five years (a) Achieved in “any one financial year” a financial turnover (in all classes of civil engineering construction works of at least 60% (Sixty percent) of the probable amount of contract for which bid has been invited. (b)(i) Satisfactorily completed at least one similar work equal in value 50% (Fifty percent) of the Probable amount of contract as on date of submission of financial offer. OR (ii) Satisfactorily complete at least two similar works each costing minimum 40% (Forty percent) of the probable amount of contract for which the tender is invited as on date of submission of financial offer. OR (iii) Satisfactorily executing at least one similar work having received payment of value not less than 60% (Sixty percent) of the value of probable amount of contract as on date of submission of financial offer. Note :- (i) The turn over shall be indexed at the compound rate of 10% (Ten percent) for each earlier years. (ii) The value of completed work shall be updated to the value of current financial year @ compounded rate of 10% (Ten percent) per year from completion year shall be taken as base year. (iii) Similar work mean road/Bridge/Building as the case many 2. (a) Each tenderer must enclose. (i) Copy of certificate issued by competent authority of the department in respect of income Tax return, Balance Sheet, Profit & Loss Account including audit report of chartered accountant for the last 5 years. (iii) Similar work mean road/Bridge/Building as the case many 2. (a) Each tenderer must enclose. (i) Copy of certificate issued by competent authority of the department in respect of income Tax return, Balance Sheet, Profit & Loss Account including audit report of chartered accountant for the last 5 years. (ii) Other certificates as required by department. (iii) An affidavit that all the information furnished with the pre Qualification document is correct in all respects; and (b) Each tenderer MUST submit detail information regarding:- (i) Availability for construction plants and machineries, Key equipment required for establishing laboratories to perform mandatory tests at the prescribed frequency owned/lease/on hire, as stated in the enclosed list. (ii) Availability of consultancy firm/technical perosnals for construction supervision and quality control of the work as stated in the enclose list.” 9. However, the petitioner’s technical bid was not opened vide Annexures P-3 & P-4 holding that requisite experience certificate of M/s. Kaushik Buildcon was not submitted which was the mandatory condition. It is quite vivid that the tender in question was submitted by M/s. Kaushik Buildcon and requisite experience certificate of the same firm was not submitted and therefore the technical bid of the petitioner has not been opened vide Annexures P-3 & P-4, as experience of the same firm was not submitted. 10. It is the case of the petitioner that partners in M/s. Kaushik Buildcon, who is the tenderer / petitioner herein, and those of M/s. Kaushik Enterprises, both, are same, i.e. partners of both the firms are one and same, therefore, experience of M/s. Kaushik Enterprises may also be taken into consideration for the tender in question which was not accepted and rejected by respondent No.3 – University. The Supreme Court in New Horizons Limited (supra) held that in case of a joint venture company, experience of various constituents had to be taken into consideration, and it has been observed in paragraph 23 as under: - “23. … It is possible to visualise a situation where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name. That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. Similarly, a company incorporated under the Companies Act having past experience may undergo reorganisation as a result of merger or amalgamation with another company which may have no such past experience and the tender is submitted in the name of the reorganised company. It could not be the purport of the requirement about experience that the experience of the company which has merged into the reorganised company cannot be taken into consideration because the tender has not been submitted in its name and has been submitted in the name of the reorganised company which does not have experience in its name. Conversely there may be a split in a company and persons looking after a particular field of the business of the company form a new company after leaving it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field. ...” 11. Similarly, the Supreme Court in Municipal Corporation, Ujjain (supra) has clearly held that a bidder who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture, cannot rely upon the technical qualifications of any third party for its qualification (see para 64.2). 12. ...” 11. Similarly, the Supreme Court in Municipal Corporation, Ujjain (supra) has clearly held that a bidder who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture, cannot rely upon the technical qualifications of any third party for its qualification (see para 64.2). 12. Reverting to the facts of the case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in New Horizons Limited (supra), it is quite vivid that the petitioner has submitted its tender independently in the name of M/s. Kaushik Buildcon which is clear from Annexures P-3 & P-4 and it has never been declared by him that he has submitted the bid in consortium or in joint venture with M/s. Kaushik Enterprises and thus, in absence of such declaration in the tender documents, experience of other firm i.e. M/s. Kaushik Enterprises cannot be considered for its technical qualification. It was open to the petitioner to submit tender with M/s. Kaushik Enterprises in joint venture/with M/s. Kaushik Enterprises, which it did not either choose or opt and then after consideration when he is not found eligible for want of technical qualification, he cannot turn around and claim that the experience of M/s. Kaushik Enterprises of which Dharmendra Kumar Kaushik & Rajiv Lochan Tiwari, both, are also partners, be taken into account while counting experience, because, the partners of the two firms – M/s. Kaushik Buildcon i.e. the petitioner herein, who is the tenderer, and M/s. Kaushik Enterprises, are same. In absence of joint venture and declaration while submitting tender, and once the petitioner has independently submitted tender in the name of M/s. Kaushik Buildcon, he cannot rely upon the technical qualifications of M/s. Kaushik Enterprises for the purpose of its technical qualification. It is not the case of the petitioner that its partners have technical experience which has to be considered. It is the specific case of the petitioner that other firm’s namely, M/s. Kaushik Enterprises’ technical experience has to be counted. This argument fails and is hereby rejected. 13. Secondly, immediately thereafter, the University, in public interest, has cancelled the said tender which has also been challenged by the petitioner by way of amendment. It is the specific case of the petitioner that other firm’s namely, M/s. Kaushik Enterprises’ technical experience has to be counted. This argument fails and is hereby rejected. 13. Secondly, immediately thereafter, the University, in public interest, has cancelled the said tender which has also been challenged by the petitioner by way of amendment. It is well settled law that the scope of judicial scrutiny on cancellation of tender process is quite limited, as the Government is guardian of State finances and is expected to protect it, and judicial review is available to prevent arbitrariness or favoritism, however, there are inherent limitations on power of judicial review. It is also well settled law that right to choose cannot be considered as arbitrary as long as it is complying with the principles of Article 14 of the Constitution of India. After consideration of the case in hand, since the petitioner is not technically qualified for the work in question as held vide Annexure P-3, which we have already upheld and further, cancellation of the tender in question thereafter cannot be said to be arbitrary, as in all fairness, the University has decided to cancel the tender in question in pubic interest. 14. As a fallout and consequence of the aforesaid discussion, we hold that the petitioner has rightly been technically disqualified for the tender in question and subsequent cancellation of the contract does not smack arbitrariness or suffers from irrationality warranting interference in exercise of jurisdiction under Article 226 of the Constitution of India. The writ petition deserves to be and is accordingly dismissed. No order as to cost(s).