JUDGMENT : 1. The petitioner has called in question Technical Evaluation Summary Sheet/Report dated 14.02.2024 issued by a Committee headed by the Chief Engineer, respondent No. 2 herein, whereby respondent No. 4-firm has been declared as technically qualified/responsive in respect of bid relating to allotment of contract work “construction of road from Dharmala Saleri to Danti Killa”. Challenge has also been thrown to Financial Bid Opening Summary Sheet dated 14.02.2024 issued by respondent No. 2, whereby respondent No. 4-firm has been declared as lowest bidder. 2. Briefly stated, the facts, which emerge out of the pleadings of the parties are that respondent No. 2 issued e-NIT 1 of 2023-24 dated 24.11.2023, whereby tenders were invited for allotment of civil works including the work relating to construction of road from Dharmala Saleri to Danti Killa in District Rajouri. The estimated cost of the work was to the tune of Rs. 810.00 lacs. Bids submission start date was 25.11.2023 and bids submission end date was 15.12.2023, which was later on extended to 21.12.2023. The technical bids were to be opened on 05.02.2024. The petitioner as well as respondent No. 4 and five more entities responded to the e-NIT. Upon opening of technical bid on 05.02.2024, the petitioner as well as respondent No. 4 along with two more entities, namely, M/s. DRF Infra Builders Pvt. Ltd and Vijay Suri were declared as responsive, whereas M/s New Emerging SHG Construction, M/s S.S. Construction Corporation and Randhir Singh and Company were declared as non responsive. 3. It seems that the petitioner filed objections to the result of technical evaluation of the bids undertaken by the official respondents, wherein it was highlighted that respondent No. 4 had concealed the information with regard to the litigation history as the same was to be mandatorily to be disclosed by the bidders in terms of Clause 4.4(l) of the Standard Bidding Documents(SBD). The petitioner also filed objections in respect of result of technical evaluation regarding M/s Vijay Suri, as according to the petitioner, the said contractor had not provided or uploaded any methodology and programme of construction and quality assurance programme along with its bid documents, which was to be mandatorily to be provided in terms of clause 2.2.1.16 of Section 2 of the SBD. 4. 4. Upon receipt of objections from the petitioner, it seems that the Chief Engineer-respondent No. 2 vide his communication dated 07.02.2024 directed Superintendent Engineer, respondent No. 3 herein to clarify whether respondent No. 4 has filed any litigation against the indenting department. Respondent No. 3 vide his letter dated 13.02.2024 provided the requisite information to the Chief Engineer clearly stating therein that respondent No. 4 has filed a litigation against the indenting department,. The details of the litigation were also indicated in the said communication. 5. It is being alleged by the petitioner that respondent No. 2 even after receiving the report from respondent No. 3, did not act upon the same and without deciding the objections raised by the petitioner, the said respondent proceeded to issue the impugned Revised Technical Evaluation Summary Sheet on 14.02.2024, whereby respondent No. 4 was declared as responsive, but so far as the firm M/s Vijay Suri is concerned, it was declared as non responsive. Thereafter, the official respondents opened the financial bid on the same day i.e. 14.02.2024 and declared respondent No. 4 as the lowest bidder(L1). 6. It is the case of the official respondents that upon receipt of objections from the petitioner, the same were considered and a meeting was held on 13.02.2024 wherein it was decided by the Technical Evaluation Committee headed by the Chief Engineer that the litigation of the respondent does not deviate any serious condition of the SBD and that the same was waived off, whereafter, on 14.02.2024, the impugned Revised Technical Evaluation Summary Sheet was uploaded, declaring the petitioner as responsive, whereas objection regarding M/s Vijay Suri was found to be sustainable and accordingly, the said contractor was declared as non responsive. It seems that upon opening of the financial bid, respondent No. 4 was found to be the lowest bidder. 7. The petitioner has challenged the impugned actions of the official respondents primarily on the ground that the clause of the SBD, whereby bidders were required to disclose the litigation history is mandatory in nature as such, it was not open to the official respondents to deviate from the same. 7. The petitioner has challenged the impugned actions of the official respondents primarily on the ground that the clause of the SBD, whereby bidders were required to disclose the litigation history is mandatory in nature as such, it was not open to the official respondents to deviate from the same. The petitioner has also laid challenge to the action of the official respondents on the ground of mala fides by alleging that on the date when objections of the petitioner were considered by the Technical Evaluation Committee, the Chief Engineer, who has signed the said note, was on leave and he was also on leave on the date when the impugned Revised Technical Evaluation Summary Sheet was issued. On this ground, it is being contended by the petitioner that whole exercise appears to be shrouded in mystery which exhibits mala fides on the part of the official respondents. 8. I have heard learned counsel for the parties and I have also perused the pleadings filed by the parties and the record produced by the official respondents. 9. As already stated, the main ground of challenge to the impugned action of the official respondents, as has been projected by the learned Senior Counsel appearing for the petitioner during the course of arguments, is that the condition of the SBD relating to disclosure of litigation history by the bidders is mandatory in nature, as such, the official respondents could not have waived the said condition. On the other hand, the stand of the official respondents as well as the private respondent is that the said condition is not mandatory in nature and it was open to the official respondents to waive off the said condition of the SBD. 10. In order to determine the merits of the rival conditions on this aspect of the matter, it would be apt to refer to the relevant covenants of the tender notice and the SBD. Before doing that it is pertinent to note here that there is no dispute to the fact that a litigation was pending between the official respondents and the private respondent at the time of the submission of the bid and it is also an admitted fact that respondent No. 4 had not disclosed the details of this litigation in his affidavit submitted along with the bid. 11. 11. Clause (12) of the NIT dated 24.11.2023 provides that qualification criteria for the work and other terms and conditions are contained in the bidding document meaning thereby that the terms and conditions laid down in the SBD are applicable to the bidders. 12. Clause 4.3 of Section-1 of the SBD provides that all the bidders shall include certain information and documents with their bids. This information as per sub clause (l) of Clause 4.3 includes the information regarding any litigation, current or during the last five years in which the bidder is involved, the parties concerned and the disputed amount. Clause 4.8 of Section-1 of the SBD is also relevant to the context and the same is reproduced as under: “4.8 Even though the Applicants meet the above qualifying criteria, they are subject to be disqualified if they have: i. Made misleading or false representations in the forms, statements and attachments submitted; and/or ii. Record of poor performance such as abandoning the works not properly completed the contract inordinate delays in completion, litigation history or financial failure etc and/or iii. Participated in the previously bidding for the same works and had quoted unreasonably high bid prices and could not furnish rational justification to employer” 13. Clause 2.2 of Section 2 of the SBD provides for qualification criteria, whereas Clause 2.2.1 of Section 2 of the SBD lays down mandatory information for the bidders. The aforesaid Clauses are quoted here-in-below: “.2. Qualification Criteria:- 2.2. Qualification will be based on applicants meeting all the following minimum pass/fail criteria regarding the applicants general and particular experience, personal and equipment capabilities, and financial position, as demonstrated by the applicants responses in the forms attached to the letter of applications (specified requirements for joint ventures are given below). Subcontractors experience and resources shall not be taken into account in determining the applicant’s compliance with the qualifying criteria. To qualify for more than one contract, the applicant must demonstrate having experience and resources sufficient to meet the aggregate of the qualification criteria for each contract given in paragraphs 2.5, 2.6, 2.7 & 2.8 below.” 2.2.1 MANDATORY NFORMATION FOR THE BIDDERS: . “Each bidder must upload scanned copies of the following documents on website jktenders,gov. in at appropriate place failing which the bid shall be rejected outrightly: 1. Contractor Registration Card with latest renewal. 2. “Each bidder must upload scanned copies of the following documents on website jktenders,gov. in at appropriate place failing which the bid shall be rejected outrightly: 1. Contractor Registration Card with latest renewal. 2. The bidder must submit/upload financial turnover certificate specified for Civil Engineering Works only of the last five financial years (2018-19 to 2022-231)duly certified by Chartered Accountant bearing UDIN properly in compliance with clause 44.6 A (i) of the SBD. 3. Completion Certificate of having executed and completed successfully single work of similar nature in any Govt. or Semi. Govt. Department during the last five years i.e from 2018-19 to the day just before the date of start of bid submission of this tender duly issued by an officer not below the rank of Executive Engineer or equivalent of atleast 25% of the value of proposed contract during the last five years. "The bidder must have executed Design Mix Concrete in order to qualify the bid" 4. Copy of PAN card issued by the Income TAX Authority. 5. The statements showing the value of existing commitments and ongoing works as well as the stipulated period of completion remaining for each of the works should be countersigned by the contractor. The verification of the ongoing works (submitted/uploaded by the contractor/bidder in his bid online) shall be done post declaration of L1 and if any forgery is found in ongoing work after verification, action warranted under rules shall be initiated against the bidder/contractor. 6. Scanned copy of cost of Tender document of Rs 6000/- in shape of challan through Treasury indicating the name of work and e-NIT No. favouring Chief Accounts Officer PWD (R&B) Jammu by crediting to 0059-PWD. The date on the challan should be between date of start of bid submission and bid submission end date. 7. Scanned copy of EMD in the form of CDR/FDR/BG which the bidder have to submit in original after declaration of L1 and shall be after declaration of L1 EMD in the form of BG shall be entertained strictly as per the format enclosed in the SBD, failing to comply leads to rejection of bid. The validity of EMD in the form of CDR/FDR/BG should be 45 days beyond Bid Validity Period from the scheduled date of opening of technical bid. 8. ITRs for the last five years i.e. from 2018-19 to 2022-23. Acknowledgement of ITR shall be accepted. The validity of EMD in the form of CDR/FDR/BG should be 45 days beyond Bid Validity Period from the scheduled date of opening of technical bid. 8. ITRs for the last five years i.e. from 2018-19 to 2022-23. Acknowledgement of ITR shall be accepted. In case any objection is filed against any acknowledgement of ITR, the said bidder has to submit the pdf copy of the complete Income Tax Returns downloaded from the portal of Income Tax Department before the Tender inviting Authority. 9. Credit Facility Certificate/Solvency Certificate duly specifying the name of tendered work amounting to rupees 10% of the advertised cost from the recognized bank. The date on the certificate should be between date of start of bid submission and bid submission end date. In case of retender, the old solvency certificate shall also be entertained. 10. Bidder shall furnish latest pr6of of returns in GST-3/GSTR-3B for the month of August 2023. 11. Bidder should have latest/valid registration with Employees Provident Fund Organization under "EPF and Miscellaneous Provisions Act" 1952. 12. Undertaking that, the bid shall remain valid for period of 90 days after the deadline of date of opening of Technical Bids mentioned in the e-NIT. 13 The forma/performa of Bank Guarantee for Bid Security and Performance Security is enclosed within the SBD as Annexure I and Annexure A respectively. Bidders are requested to upload/submit the BG in the prescribed format only otherwise the bid shall be rejected outrightly. 14. The e-stamp paper bearing a particular certificate number on it must be mentioned on the affidavit attached with the e-stamp paper to ensure its genuineness. In addition to it, the name of first party should be the name of contractor and the second party should be Chief Engineer PWD(R&B) Jammu failing to comply with this condition, the bid shall be rejected outrightly. 15. Major items of construction equipment proposed to carry out with the evidence of ownership or evidence of arrangement of possessing them on hire/lease. 16. The proposed methodology & programme of construction, backed with equipment, planning & deployment, duly supported with broad calculation & quality control procedures proposed to be adopted, justifying their capability of execution & completion of the work as per technical specification within the stipulated period of completion as per the milestone and the bidder shall prepare the QAP (Quality Assurance Plan) accordingly. 17. 17. Affidavit must be attested 1st Class Magistrate/Executive Magistrate duly specifying the name of work for which the tender is invited with the following points: (Affidavit attested by Notary shall be straightly rejected. The date on the certificate should be between date of start of bid submission and bid submission and date) a) The bidder have not abandoned any work in the past. b) The bidder have no litigation against the indenting department during the entire tendering process. c) The bidder have not been blacklisted by any department. d) The bidder shall invest a minimum cash up to 25% of contract value of work, during implementation of work. e) All the information and documents submitted by me are true and correct to the best of my knowledge and if found wrong the bidder shall be liable to face legal proceedings. NOTE 2.2.1(a) 1. Bidders once rejected on the basis of clause 2.2.1 shall be treated as finally rejected. No document shall be asked from the bidder in offline mode except S.No. 09 of clause 2.2.1 of SBD. 2. The participant bidders in the tender can raise objections/queries against bid document of each other only during technical evaluation of the bids i.e between the time of opening of technical bid and financial bid of the tender. The Department reserves the right to cancel the objection raised after opening of financial bid without assigning ay reason whatsoever.” 14. From a perusal of the afore-quoted clauses, it is clear that a bidder was required to disclose information inter alia relating to litigation history at the time of submission of his bid and for this purpose, the bidder was required to submit an affidavit attested by 1st Class Magistrate/Executive Magistrate declaring therein inter alia that the bidder has no litigation against the indenting department during the entire tendering process. 15. In the instant matter, it is an admitted case of the parties that the respondent No. 4 was having litigation with the respondent-department on the date he submitted his bid with the respondents in pursuance to the e-NIT, which is subject matter of the instant petition and he has sworn the affidavit dated 08.11.2023 along with his bid document clearly declaring therein that it has not been blacklisted and debarred in any State or Central Government Department nor it has any history of litigation. 16. 16. Learned counsel for the private respondent has explained the non furnishing of the details of the litigation in affidavit dated 08.12.2023 by contending that the affidavit was sworn on 08.12.2023 when there was no litigation pending between the official respondents and respondent No. 4. It has been submitted by respondent No. 4 that writ petition bearing WP(C) No. 3103/2023 was filed against the respondent-department only on 12.12.2023, whereas the affidavit was sworn in on 08.11.2023. 17. Per contra, learned Senior Counsel appearing for the petitioner has submitted that even if the contention of respondent No. 4 is assumed to be correct, still then in the instant case, the said respondent has submitted his bid after 12.12.2023, therefore, it was open to the said respondent to furnish a fresh affidavit indicting therein the litigation history at the time of submission of his bid, which he has mischievously avoided to do thereby making it guilty of suppression of material information. 18. The question whether or not the stand of respondent No. 4 that the affidavit sworn in by him was prior in point of time to filing of the litigation would make any difference is not of much significance because fact of the matter remains that respondent No. 4 has not disclosed the litigation history before the official respondents at the time of submitting its bid and even thereafter until the official respondents sought information from him when the petitioner filed his objections to the first report of the Technical Evaluation Committee. 19. The main issue that is required to be determined is as to whether the condition regarding disclosure of the litigation history was mandatory in nature and whether the decision of the official respondents to treat the said condition as non mandatory is amenable to judicial review. 20. Learned Senior Counsel appearing for the petitioner has vehemently argued that the condition regarding disclosure of litigation history is a mandatory condition. He has laid much stress of Clause 4.8 of Section 1 of the SBD and Clause 2.2.1 of Section 2 of the SBD. 20. Learned Senior Counsel appearing for the petitioner has vehemently argued that the condition regarding disclosure of litigation history is a mandatory condition. He has laid much stress of Clause 4.8 of Section 1 of the SBD and Clause 2.2.1 of Section 2 of the SBD. According to the learned Senior Counsel, as per Clause 4.8, a bid is subject to disqualification, if the bidder has any litigation history and as per Clause 2.2.1 of the SBD, if a bidder fails to upload an affidavit declaring therein that the bidder has no litigation history against the Indenting department during the entire tendering process, the bid is liable to be rejected outrightly. It has been contended that because the conditions of the SBD provide for the consequences for default, as such, the said condition is mandatory in nature. Learned Senior Counsel has relied upon the judgments of this Court in the cases of Naik Infrastructure Pvt. Ltd. vs State of J&K, 2013 (2) JKJ 580 , Farooq Hussain vs Union Territory of J&K and others, WP(C) No. 2307/2023, decided on 22.09.2023 and Mohd Yousuf Shan vs Union Territory of J&K and others, WP(C) No. 1875/2023, decided on 03.08.2023, to support his contention that the disclosure of litigation history at the time of submission of bid is a mandatory condition. It has been contended that in all these cases a similar condition in the bid document, has been held to be mandatory in nature. Therefore, it was not open to the official respondents to waive off the said condition. 21. The main issue to be determined in this case is as to whether this Court in exercise of its writ jurisdiction can review the decision of the Technical Evaluation Committee, whereby they have waived off the condition regarding non disclosure of litigation history by treating the said condition as non-mandatory. The scope of judicial review in the commercial matters has been an issue of discussion and debate before the Supreme Court and this Court in a number of cases. It would be apt to refer to some of these cases so as to understand the legal position on this aspect of the matter. 22. In Tata Cellular vs Union of India (1994) 6 SCC 651 . The Supreme Court, while dealing with the aforesaid aspect of the matter, culled out the following principles: “94. It would be apt to refer to some of these cases so as to understand the legal position on this aspect of the matter. 22. In Tata Cellular vs Union of India (1994) 6 SCC 651 . The Supreme Court, while dealing with the aforesaid aspect of the matter, culled out the following principles: “94. The principles deducible from the above are: (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 the expertise to correct the administrative decision. 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. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. 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 un-budgeted expenditure. Based on these principles we will examine the facts of this case since they commend to us as the correct principles.” 23. Again in Central Coal Fields Ltd. and anr. v SLL-SML(Joint Venture Consortium) and others, (2016) 8 SCC 622 , it was held that when a particular format for a bank guarantee is prescribed, then the bidder is required to stick to that particular format alone, subject to the condition that the State has a right to deviate from the terms of the bid documents within the acceptable parameters. The Supreme Court had held as under: “32. The Supreme Court had held as under: “32. The core issue in these appeals is not of judicial review of the administrative action of CCL in adhering to the terms of the NIT and the GTC prescribed by it while dealing with bids furnished by participants in the bidding process. The core issue is whether CCL acted perversely enough in rejecting the bank guarantee of JVC on the ground that it was not in the prescribed format, thereby calling for judicial review by a constitutional court and interfering with CCL’s decision. xxxxxxx 37. For JVC to say that its bank guarantee was in terms stricter than the prescribed format is neither here nor there. It is not for the employer or this Court to scrutinize every bank guarantee to determine whether it is stricter than the prescribed format or less rigorous. The fact is that a format was prescribed and there was no reason not to adhere to it. The goalposts cannot be re-arranged or asked to be re-arranged during the bidding process to affect the right of some or deny a privilege to some. xxxxxx 47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty v International Airport Authority of India, (1979) 3 SCC 489 the terms of the NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision “that no responsible authority acting reasonably and in accordance with relevant law could have reached” as held in Jagdish Mandal followed in Michigan Rubber (India)Ltd v. State of Karnataka, (2012) 8 SCC 216 . xxxxx 49. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision “that no responsible authority acting reasonably and in accordance with relevant law could have reached” as held in Jagdish Mandal followed in Michigan Rubber (India)Ltd v. State of Karnataka, (2012) 8 SCC 216 . xxxxx 49. Again, looked at from the point of view of the employer if the Courts take over the decision-making function of the employer and make a distinction between essential and non-essential terms contrary to the intention of the employer and thereby re-write the arrangement, it could lead to all sorts of problems including the one that we are grappling with. For example, the GTC that we are concerned with specifically states in Clause 15.2 that “Any Bid not accompanied by an acceptable Bid Security/EMD shall be rejected by the employer as non-responsive.” Surely, CCL ex facie intended this term to be mandatory, yet the High Court held that the bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non-essential term of the GTC. From the point of view of CCL the GTC has been impermissibly re-written by the High Court.” 24. In Afcons Infrastructure Ltd. v Nagpur Metro Rail Corporation Ltd. and another, (2016)16 SCC 818 , the Supreme Court held that employer of a project is the best person to understand and appreciate its requirements and to interpret its documents. The Supreme Court observed as under: “13. In other words, a mere disagreement with the decision making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision making process or the decision. xxxxxx 15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given.” 25. In Uflux Ltd v Government of Tamil Nadu, (2022) 1 SCC 165 , the Supreme Court, while discussing the scope of judicial review in tender matters observed as under: “2. The judicial review of such contractual matters has its own limitations. It is in this context of judicial review of administrative actions that this Court has opined that it is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fide. The purpose is to check whether the choice of decision is made lawfully and not to check whether the choice of decision is sound. In evaluating tenders and awarding contracts, the parties are to be governed by principles of commercial prudence. To that extent, principles of equity and natural justice have to stay at a distance.[Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] 3. We cannot lose sight of the fact that a tenderer or contractor with a grievance can always seek damages in a civil court and thus, “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. xxxx 42. We must begin by noticing that we are examining the case, as already stated above, on the parameters discussed at the inception. In commercial tender matters there is obviously an aspect of commercial competitiveness. For every succeeding party who gets a tender there may be a couple or more parties who are not awarded the tender as there can be only one L-1. The question is should the judicial process be resorted to for downplaying the freedom which a tendering party has, merely because it is a State or a public authority, making the said process even more cumbersome. The question is should the judicial process be resorted to for downplaying the freedom which a tendering party has, merely because it is a State or a public authority, making the said process even more cumbersome. We have already noted that element of transparency is always required in such tenders because of the nature of economic activity carried on by the State, but the contours under which they are to be examined are restricted as set out in Tata Cellular26 and other cases. The objective is not to make the Court an appellate authority for scrutinizing as to whom the tender should be awarded. Economics must be permitted to play its role for which the tendering authority knows best as to what is suited in terms of technology and price for them.” 26. Again in the case of Galaxy Transport Agency v New JK Roadways, 2020 SCC online SC 1035, the Supreme Court reiterated that the employer is the best person to understand and appreciate its requirements. 27. In a recent case, titled, M/s NG Projects Ltd vs Vinod Kumar Jain and others (2022) 6 SCC 127 , the Supreme Court after noticing its previous judgments on the issue observed as under: “22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was malafide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona-fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder. 23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. 23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present- day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after com- plying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.” 28. From the foregoing analysis of law on the subject, it is clear that it is only when a decision making process is so arbitrary or irrational that no responsible authority proceeding reasonably or lawfully could arrive at such decision that the power of judicial review can be exercised. It is also clear that if the decision has been taken in a bona fide manner and in public interest, it will not be open to court to interfere in exercise of power of judicial review, even if there is a procedural shortcoming. It is also clear that if the decision has been taken in a bona fide manner and in public interest, it will not be open to court to interfere in exercise of power of judicial review, even if there is a procedural shortcoming. Having regard to the fact that transaction between a bidder and the employer, even though the employer is a State or an instrumentality of the State, is essentially commercial in nature, therefore, whenever a decision is taken by the employer in public interest, the court has to exercise its judicial restraint and if it is found by the employer that successful bidder has substantially complied with the purpose and object for which the essential conditions were laid, the same cannot be interfered by the court, while exercising the power of judicial review. 29. Adverting to the facts of the case, respondent No. 4 admittedly did not disclose the litigation history in his bid document and it is only after objections to the first technical evaluation report were submitted by the petitioner that it came to the notice of the official respondents that respondent No. 4 had filed a case against the respondent-department. It appears that the Technical Evaluation Committee waived off the said deviation committed by respondent No. 4 and accepted its technical bid. While the case of the petitioner is that the respondent-department could not have waived off the said deviation as it was a mandatory condition to the tender, whereas the case of the official respondents is that they were well within their powers to waive off of the said condition. 30. As has been clearly laid down by the Supreme Court in a large number of judgments, some of which have been referred to hereinabove, the High Court, while exercising the power of judicial review, is not expected to act as a court of appeal in examining the administrative decisions. This Court, while exercising its power of judicial review, cannot analyse the case so as to find out whether a different decision could have been taken by the official respondents. 31. This Court, while exercising its power of judicial review, cannot analyse the case so as to find out whether a different decision could have been taken by the official respondents. 31. The issue whether the term of SBD regarding disclosure of litigation history is essential or otherwise is a decision to be taken by the employer and even if the said term of the SBD is found to be essential, the same can be deviated by the employer provided that such deviation is made applicable to all bidders. It has to be borne in mind that goal posts cannot be re-arranged during the bidding process to effect the right of the some or deny a privilege to others. The power of judicial review is to be exercised to go into the lawfulness of the decision not its soundness. The issue relating to acceptance or rejection of a bid has to be analysed from the point of view of the employer and not from the point of view of the unsuccessful bidder. As has been discussed by the Supreme Court in a number of judgments that have been referred hereinabove, it is a settled position of law that the tender inviting authority is the best judge to decide whether a term is essential or not and unsuccessful bidder cannot have any grouse in this regard so long as equal treatment is given to all the bidders. Thus, the Court has to give weightage to the decision of the Tender Evaluation Committee unless the same is afflicted with the arbitrariness, unreasonableness or mala fides. 32. Even in the judgment of the Supreme Court, titled, Mr. B.S.N. Joshi and sons Ltd v Nair Coal Services Ltd and others, (2006) 11 SCC 548 , which has been heavily relied upon by the petitioner, it has been held that if a deviation is made in relation to all the parties in regard to any condition ordinarily a power of relaxation has to be held to be existing. In the said judgment, it has been further held that if it is ultimately found by the appropriate authority that successful bidder had in fact substantially complied with the purpose and object for which the essential conditions were laid down, the same may not ordinarily be interfered with. 33. In the said judgment, it has been further held that if it is ultimately found by the appropriate authority that successful bidder had in fact substantially complied with the purpose and object for which the essential conditions were laid down, the same may not ordinarily be interfered with. 33. Adverting to the facts of the instant case, the condition regarding disclosure of litigation history has been waived off by the official respondents. It is not the case of the petitioner that the tender of any other bidder has been rejected or declared as non responsive for a similar deviation. Therefore, it is not a case where the official respondents have discriminated against the petitioner and favoured the private respondent by waiving off the condition regarding disclosure of litigation history, but it is case where no bidder has been disqualified on account of non-disclosure of litigation history. This Court in exercise of its writ jurisdiction cannot minutely examine the decision of waiving off condition regarding disclosure of litigation history that has made by the respondent-department with a magnifying glass because of limited scope for judicial review in such matters. 34. Even otherwise no fault can be found with the decision of the respondent-department in this regard because the deviation, which is subject matter of the discussion, does not affect in any substantial way, the scope, quality or performance of the work nor does it limit in substantial way, the employer’s right or bidders obligations under the contract. It also does not affect unfairly the competitive position of other bidders. The decision of the Technical Evaluation Committee declaring the bid of respondent No. 4 as substantially responsive in the light of Clause 25.2 of Section-1 of the SBD, cannot be termed as irrational or arbitrary. 35. In the cases of Naik Infrastructure (supra), Farooq Hussain (supra) and Mohd. Yousuf (supra) decided by this Court, which have been referred to and relied upon by the petitioner, the employers had taken the decision not to waive off the condition regarding non-compliance of certain clauses of the bid document and it was in those circumstances that this Court held that the said decision of the employer cannot be interfered with by the Court in view of the limited scope of judicial review. As per the ratio laid down in those cases, it is not open to the High Court to exercise its power of judicial review in the matters relating to decision taken by an employer regarding refusal to deviate from a particular clause of the bid document. So the ratio laid down in these cases, in fact, comes to the aid of the respondents. 36. There is yet another aspect of the matter which is required to be noticed. In the instant case, upon opening of the financial bids, it has been found that respondent No. 4 had quoted rate of Rs. 5,52,29,900/- for the tendered work, whereas the petitioner had quoted rate of Rs. 7,34,50,768/- for the same work. Thus, there is a difference of more than Rs. 1. 80 crores in the rate quoted by the petitioner and that quoted by respondent No. 4. Therefore, on this count also, the decision of the official respondents appears to be financially prudent. It is true that merely because a bid is lowest, the requirement of compliance of rules and conditions cannot be ignored, but in the instant case, respondent No. 4 has been found to have substantially complied with all the requirements and the respondent-department has taken a decision to waive off the condition regarding disclosure of litigation history, therefore, the fact that there is a huge difference of the prices quoted by the other technically qualified bidders including the petitioner and the price quoted by respondent No. 4 goes on to show that the decision has ultimately resulted in benefit to the public exchequer, thereby serving the public interest. 37. Learned Senior Counsel appearing for the petitioner has made a feeble attempt to contend that mala fide are writ large in the functioning of the official respondents in the instant case, inasmuch as the head of the Technical Evaluation Committee, i.e., the Chief Engineer was on leave on 13th and 14th of February, 2024 and as such, he could not have participated in the meeting(s). In this regard, respondents have filed the reply in which they have specifically stated that the Chief Engineer had attended the meeting(s) through virtual mode from his home. The reply filed by the respondents is supported with an affidavit of the Chief Engineer. In this regard, respondents have filed the reply in which they have specifically stated that the Chief Engineer had attended the meeting(s) through virtual mode from his home. The reply filed by the respondents is supported with an affidavit of the Chief Engineer. Therefore, this Court has no reason to doubt that the Chief Engineer had attended the meeting(s) of the Tender Evaluation Committee on virtual mode. The contention of the learned Senior Counsel for the petitioner in this regard is, therefore, without any merit. 38. For the foregoing reasons, I do not find any merit in this writ petition. The same is dismissed. 39. Record as produced by the respondents, be returned to the learned AAG.