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2024 DIGILAW 811 (JHR)

Manjeet Plastic Industries v. State of Jharkhand

2024-09-12

ARUN KUMAR RAI, SUJIT NARAYAN PRASAD

body2024
JUDGMENT : SUJIT NARAYAN PRASAD, A.C.J. I.A. No. 6839 of 2024 1. The instant interlocutory application has been filed for seeking amendment/addition in the Para (1) and prayer clause of the writ petition, which reads as under: “(a) For issuance of appropriate writ/order/direction quashing the Letter dated 04.07.2024 to the extent that Petitioner has been declared ineligible in view of Section VI (a) of the Impugned Tender conditions which has already been challenged in the instant writ petition being arbitrary and illegal and staying the tender process till the issues involved in the writ petition get resolved. (b) Stay the operation of letter dated 04.07.2024 till the issues involved in the writ petition get resolved.” 2. Learned counsel for the petitioner has submitted that the instant interlocutory application has been filed for seeking leave of this Court to amend the Para (1) and prayer clause by challenging the decision taken by the Technical Committee, by which, the respondent no. 3 vide letter dated 04.07.2024 has opened the Technical Bid, in which, the petitioner’s bid has been rejected. 3. Learned counsel for the respondents, are having no objection in allowing the instant interlocutory application. 4. This Court, considering the aforesaid fact, is of the view that the said interlocutory application needs to be allowed and accordingly, allowed. 5. Accordingly, the prayer, as allowed is treated to be the part of the present petition. 6. In view thereof, I.A. No. 6839 of 2024 stands allowed. Prayer 7. Initially, this writ petition has been filed under Article 226 of the Constitution of India for the following reliefs: “(a) For issuance of appropriate writ/order/direction for quashing the tender/bid no. (Annexure-2) MRE/33/252/2024-25/1509 issued by Respondent No. 3 to the extent of the eligibility criteria (Section VI(a)) on the grounds that the same are arbitrary, irrational and violative of Articles 14 and 19 of the Constitution of India; and pass direction for modifying the eligibility criteria [Section VI(a)] to include proprietorships. (b) Direction in the nature of writ of mandamus or any other appropriate writ, orders or directions in the nature thereof, inter alia directing Respondent No 3 to consider the representation dated 14.05.2024 submitted by the Petitioner and to consider the bid submitted by the Petitioner, a sole proprietor, on 05.06.2024 being bid no. 597386 and consider the same for evaluation as per the terms of the tender MRE/33/252/2024-25/1509. 597386 and consider the same for evaluation as per the terms of the tender MRE/33/252/2024-25/1509. (c) For issuance of appropriate writ/order/direction directing not carry on with the technical procedure until the issue involved in the present writ is resolved. (d) Disqualifying Respondent No 4 from participating in the tender process for not being eligible as per the eligibility criteria laid down in the Tender documents. (e) Stay the implementation/execution of tender/bid no. MRE/33/252/2024-25/1509 pending the outcome of the present writ petition.” Factual Matrix 8. The brief facts of the case, as per the pleading made in the writ petition, needs to be referred, which read as under. 9. It is the case of the writ petitioner that the petitioner is a sole proprietorship firm having its registered office at Plot No. 336, Sector 17, HSIIDC, Bahadurgarh, Haryana. The petitioner is a reputed manufacturer with extensive experience in school supplies including school bags, uniforms, and shoes of different sizes and specifications since 1980 and is a duly registered sole proprietorship under the Micro, Small and Medium Enterprises Development Act, 2006. 10. The petitioner has been supplying school bags and footwear to various states such as Tamil Nadu, Punjab, Uttar Pradesh, West Bengal and Andhra Pradesh. There has never been any objection raised in any tendering authority, before or after grant of tender, to the petitioner's corporeal form. 11. On 08.05.2024, respondent No. 3 floated Tender bearing Bid No. MRE/33/252/2024-25/1509 (hereinafter, the “impugned tender”) on 08.05.2024, inviting bids for the tender for distribution of school bags to children studying in government schools in classes I-VIII for the year 2024-25 under the school kit scheme within the state budget through the Jharkhand Education Project Council (JEPC). Pertinently, the eligibility criteria lay down that only (i) companies incorporated in India, (ii) registered Indian partnership firms (including limited liability partnerships), (iii) limited liability partnerships/companies, are eligible to apply for the tender. 12. In this regard, on 14.05.2024, the petitioner, being aggrieved by the arbitrary eligibility criteria, sent a query to respondent No. 3 requesting, inter alia, for modification of Section VI (a) to include proprietorship firms, stating its reasons for the same. 13. Thereafter, respondent no. 12. In this regard, on 14.05.2024, the petitioner, being aggrieved by the arbitrary eligibility criteria, sent a query to respondent No. 3 requesting, inter alia, for modification of Section VI (a) to include proprietorship firms, stating its reasons for the same. 13. Thereafter, respondent no. 3 issued Corrigendum with regard to the replacing the condition of demand draft/bank guarantee towards tender with amount of tender fee and EMD/Bid Security and clarified that rest of the clauses of the bid document would remain same which clearly shows that the respondent no. 3 did not consider the representation letter submitted by the Petitioner. 14. Subsequently, Mr. Nitin Kapoor personally visited the office of respondent no. 3 on 13.06.2024 and 20.06.2024 trying to make his case but despite multiple requests, was not provided any rationale for the exclusion of proprietorship from the eligibility criteria for the impugned tender. 15. Being aggrieved with the same, the petitioner has approached this Court by filing the instant writ petition. 16. It is evident from the pleading made in the writ petition as referred hereinabove that the petitioner has participated in the bid in terms of condition of bid. The aforesaid bid document contains condition under Section VI(a) which provides that any company incorporated in India, registered Indian partnership firm (including limited liability partnership), limited liability partnership and/or companies may participate in the bid. 17. The petitioner has participated but his candidature has been rejected due to non-fulfillment of the condition stipulated under Section VI(a) of the bid document. However, the writ petition was filed prior to decision of the technical committee. The ground for filing the writ petition was the section no. VI(a) be declared to be arbitrary and without any reason as to why the proprietorship firm has been deprived from participating in the bid and accordingly candidature of the writ petitioner has been rejected. The writ petition has been filed on that pretext. Arguments advanced on behalf of the writ petitioner 18. Mr. Indrajit Sinha, learned counsel for the petitioner assisted by Mr. Ashutosh Jain, Advocate and Mr. Sahil, Advocate has submitted that the aforesaid condition depriving the proprietorship firm is arbitrary and without any rational. 19. The writ petition has been filed on that pretext. Arguments advanced on behalf of the writ petitioner 18. Mr. Indrajit Sinha, learned counsel for the petitioner assisted by Mr. Ashutosh Jain, Advocate and Mr. Sahil, Advocate has submitted that the aforesaid condition depriving the proprietorship firm is arbitrary and without any rational. 19. It has been submitted that since, the aforesaid condition is arbitrary and without any reason said to be irrational and as such, the same is fit to be quashed and set aside and in consequence upon the same, the rejection of the candidature of the writ petitioner is to be accepted. 20. Learned counsel for the petitioner has relied upon the judgments, i.e. Jai Bholenath Construction vs. The Chief Executive Officer, Zilla Parishad, Nanded & Others in Civil Appeal No. 4140 of 2022 and Special Leave Petition (C) No. 7150 of 2022, New Horizons Limited & Anr. vs. Union of India & Ors. (1995) 1 SCC 478 and Reliance Energy Ltd. & Anr. vs. Maharashtra State Road Development Corporation Ltd. & Ors. (2007) 8 SCC 1 in order to buttress his argument that in case, the condition is arbitrary and irrational in the bid document, the same can well be interfered with by the High Court in exercise of power conferred under Article 226 of the Constitution of India. Arguments advanced on behalf of the Respondent-JEPC 21. Mr. Krishna Murari, learned counsel for the respondent-JEPC has submitted that the writ petition is fit to be dismissed, reason being that, the petitioner, after knowing the terms and conditions, as provided in the bid document, has participated, even though, he was not fulfilling the condition stipulated under Section VI(a). 22. It has been submitted that the petitioner, rather, has misrepresented in giving declaration in the affidavit, which was required to be given along with the bid document, wherein, it has been stated by him that all the conditions of the bid document have been fulfilled. 23. The authority believing the same, has accepted the bid document but on scrutiny at the time of technical bid, it was found that the petitioner is not fulfilling the condition stipulated under Section VI(a) of the bid document and hence, his candidature has been rejected. 24. 23. The authority believing the same, has accepted the bid document but on scrutiny at the time of technical bid, it was found that the petitioner is not fulfilling the condition stipulated under Section VI(a) of the bid document and hence, his candidature has been rejected. 24. Learned counsel for the respondent-JEPC, has submitted that putting condition in the bid document is the exclusive domain of the authority and there cannot be any interference by the bidder. 25. It has further been stated that once the bidder has participated in the bid and when it has been rejected, it is not available for the bidder to turn around and question the condition stipulated in the bid document. 26. Learned counsel for the respondent-JEPC has relied upon the judgments, i.e. N.G. Projects Limited vs. Vinod Kumar Jain & Ors. (2022) 6 SCC 127 and Tata Motors Limited vs. Brihan Mumbai Electric Supply & Transport Undertaking (Best) & Ors. 2023 SCC Online SC 671. Response of the learned counsel for the petitioner 27. Mr. Indrajit Sinha, learned counsel for the petitioner, in response thereof, has submitted that the argument which has been advanced that the condition as contained under Section VI(a) was known to the petitioner and once accepted the terms and conditions and participated in the bid, the bidder is having no reason to challenge the same but the same is not fit to be accepted in the facts and circumstances of the case, since, the petitioner has already made protest with respect to the availability of condition under Section VI(a) with a request to change the said condition. 28. To buttress his argument, learned counsel for the petitioner has further relied upon the Dr. Major Meeta Sahai vs. State of Bihar & Ors. (2019) 20 SCC 17 . 29. We have heard the learned counsel for the parties and gone across the pleading made in the writ petition. 30. The undisputed facts in this case are that the bid document contains a condition under Section VI(a) which stipulates that any company incorporated in India, registered Indian partnership firm (including limited liability partnership), limited liability partnership and/or companies may participate in the bid. 30. The undisputed facts in this case are that the bid document contains a condition under Section VI(a) which stipulates that any company incorporated in India, registered Indian partnership firm (including limited liability partnership), limited liability partnership and/or companies may participate in the bid. The bidder should be a manufacturer of school bags, for the ready reference, the same is being referred as under: “(a) any company incorporated in India, registered Indian partnership firm (including limited liability partnership), limited liability partnership and/or companies may participate in the bid. The bidder should be a manufacturer of school bags.” 31. The aforesaid condition requires the consideration of candidature of such bidder if any company incorporated in India, registered Indian partnership firm (including limited liability partnership), limited liability partnership and/or companies. 32. The petitioner has made representation on 14.05.2024 for consideration of his bid in the capacity of sole proprietor. 33. The authority, while considering the bid document at the time of technical scrutiny, has rejected the bid document on the ground that the condition stipulated under Section VI(a) has not been fulfilled. 34. The petitioner is aggrieved with the rejection of his candidature on the ground that the condition stipulated under Section VI(a) is arbitrary and irrational. 35. While, on the other hand, the respondent has taken the plea that putting condition is the sole prerogative of the authority and consciously, the partnership firm has been inserted by taking into consideration the issue of liability of proprietorship firm and the partnership firm. 36. The ground has been taken that after accepting the terms and conditions, the petitioner has participated, even though, he was not eligible to participate, since, the petitioner is not the partnership firm, rather, the sole proprietor and as such, it is not available for the petitioner to challenge the said condition once candidature of the petitioner has been rejected. 37. This Court, in order to appreciate the rival submissions, needs to refer herein the law laid down by the Hon’ble Apex Court regarding the jurisdiction of the High Court in exercising the power conferred under Article 226 in governing facts of the present case. 38. 37. This Court, in order to appreciate the rival submissions, needs to refer herein the law laid down by the Hon’ble Apex Court regarding the jurisdiction of the High Court in exercising the power conferred under Article 226 in governing facts of the present case. 38. The Hon’ble Apex Court in the judgment rendered in the case of Tata Cellular vs. Union of India, (1994) 6 SCC 651 has been pleased to hold that the scope of judicial review can be exercised in such a matter in a case where there is lack of reasonableness is administrative law which means to distinguish between proper use of power so as to eliminate the possibility of arbitrariness. Such power is to be exercised to find out the right balance between the administrative discretion to decide matters whether contractual or political in nature or include a policy is contrary to the statutory provision. 39. In such circumstances, the duty of the Court is to confine itself the question of legality and its concern should be: (i) Whether the decision-making authority exceeded its powers? (ii) Committed an error of law. (iii) Committed a breach of rules of natural justice. (iv) Reached a decision with no reasonable tribunal could have reached. (v) Abused its power. 40. Further, in the Case of Raunaq International Ltd. vs. I.V.R. Construction Ltd. & Ors. (1999)1 SCC 492 , the Hon’ble Apex Court while dealing with the issue of scope of judicial review has laid down by holding therein that the decision-making process suffers from bias of arbitrariness the same will be scrutinized under the power of judicial review. 41. The law relating to award of contract by the State and public sector corporations was reviewed by the Hon’ble Apex Court in the case of Air India Ltd. vs. Cochin International Airport Ltd. (2000) 2 SCC 617 wherein it has been observed that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction and it can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. 42. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. 42. It was further held that 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 powers 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. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere. 43. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. (2005) 6 SCC 138 the Hon’ble Apex Court has observed that while exercising power of judicial review in respect of contracts, the court should concern itself primarily with the question, whether there has been any infirmity in the decision-making process. By way of judicial review, the court cannot examine details of terms of contract which have been entered into by public bodies or the State. 44. In the case of Jagdish Mandal Vs. State of Orissa & Ors. (2007) 14 SCC 517 , it has been laid down by the Hon’ble Apex Court that the power of judicial review in the contractual matters is permissible only if, (I) the process adopted or decision made is mala fide or intended to favour someone or the same is so arbitrary and irrational that the court can say: ‘the decision is such that no responsible authority acting reasonably and in accordance with law could have reached.’ (II) public interest is affected. 45. For ready reference, the relevant paragraph of the aforesaid judgment is being quoted as under: “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. 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 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.” 46. In the case of Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 the Hon’ble Apex Court has observed that if the State or its instrumentalities acted reasonably, fairly and in public interest in awarding contract, interference by court would be very restrictive since no person could claim fundamental right to carry on business with the Government. Therefore, the courts would not normally interfere in policy decisions and in matters challenging award of contract by the State or public authorities. 47. Similarly, the Hon’ble Apex Court has reiterated the same view in the case of Montecarlo Ltd. vs. NTPC, AIR 2016 SC 4946 and has held that where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints. 48. Further, the Hon’ble Apex Court in the case of Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. (2016) 16 SCC 818 it was held that 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. 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. 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. 49. It is further settled connotation of law that the decisions for the terms of the invitation to tender are not open to judicial scrutiny the same being in the realm of contract, the Government must have a free hand in setting the terms of the tender. Reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Directorate of Education & Ors. Vs. Educomp Datamatics Ltd. & Ors. (2004) 4 SCC 19 , wherein it has been observed at paragraphs 11 and 12 as under: “11. This principle was again restated by this Court in Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation, (2000) 5 SCC 287 . It was held that the terms and conditions in the tender are prescribed by the Government bearing in mind the nature of contract and in such matters the authority calling for the tender is the best judge to prescribe the terms and conditions of the tender. It was held that the terms and conditions in the tender are prescribed by the Government bearing in mind the nature of contract and in such matters the authority calling for the tender is the best judge to prescribe the terms and conditions of the tender. It is not for the courts to say whether the conditions prescribed in the tender under consideration were better than the ones prescribed in the earlier tender invitations. 12. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny, the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide.” 50. After going through the judgment as referred hereinabove, it is evident that interference by the Court exercising the power under Article 226 of the Constitution of India is only if the decision-making process of the authority suffers from propriety by hitting the principle laid down under Article 14 of the Constitution of India. 51. Further, the general law is that if the candidate participated in the process of selection after seeing the condition stipulated with naked eye and after rejection of the candidature, it is not available for such candidate to turn around and challenge the terms and condition of the advertisement/NIT, reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of State of Orissa vs. Narain Prasad, (1996) 5 SCC 740 . For ready reference, the relevant paragraph of the aforesaid Judgment is being quoted as under: “21.......A person who enters into certain contractual obligations with his eyes open and works the entire contract, cannot be allowed to turn round, according to this decision, and question the validity of those obligations or the validity of the Rules which constitute the terms of the contract. The extraordinary jurisdiction of the High Court under Article 226, which is of a discretionary nature and is exercised only to advance the interests of justice, cannot certainly be employed in aid of such persons. Neither justice nor equity is in their favour.” 52. In Om Prakash Sukla Vs. Akhilesh Kumar Sukla, AIR 1986 SC 1043 , the Hon’ble Apex Court was pleased to hold that when the petitioner therein appeared at the examination without protest and when he found that he would not succeed in the examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner. 53. In the case of Madan Lal and others Vs. State of Jammu and Kashmir and others, AIR 1995 SC 1088 , the Hon’ble Apex Court held that if a candidate takes a calculated chance and appears at the interview, then only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. 54. Similarly, in Vijendra Kumar Verma v. Public Service Commission, Uttarakhand and others, (2011) 1 SCC 150 , in paragraphs, 25 to 28, the Hon’ble Apex Court held as follows: “25. In this connection, we may refer to the decision of the Supreme Court in Dr. G. Sarana v. University of Lucknow, (1976) 3 SCC 585 : 1976 SCC (L&S) 474 wherein also a similar stand was taken by a candidate and in that context the Supreme Court had declared that the candidate who participated in the selection process cannot challenge the validity of the said selection process after appearing in the said selection process and taking opportunity of being selected. Para 15 inter alia reads thus: (SCC p. 591). “15......He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Para 15 inter alia reads thus: (SCC p. 591). “15......He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee.” 26. In P.S. Gopinathan v. State of Kerala, (2008) 7 SCC 70 : (2008) 2 SCC (L&S) 225 this Court relying on the above principle held thus: (SCC p. 84, Para 44) “44.........Apart from the fact that the appellant accepted his posting orders without any demur in that capacity, his subsequent order of appointment dated 15-7-1992 issued by the Governor had not been challenged by the appellant. Once he chose to join the mainstream on the basis of option given to him, he cannot turn back and challenge the conditions. He could have opted not to join at all but he did not do so. Now it does not lie in his mouth to clamour regarding the cut-off date or for that matter any other condition. The High Court, therefore, in our opinion, rightly held that the appellant is estopped and precluded from questioning the said order dated 14-1-1992. The application of principles of estoppel, waiver and acquiescence has been considered by us in many cases, one of them being Dr. G. Sarana v. University of Lucknow, (1976) 3 SCC 585 : 1976 SCC (L&S) 474.....” 27. In Union of India v. S. Vinodh Kumar, (2007) 8 SCC 1 00 : (2007) 2 SCC (L&S) 792 in SCC at Para 18 it was held that: (SCC p. 107) “18.........It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.” 28. Besides, in K.H. Siraj v. High Court of Kerala, (2006) 6 SCC 395 : 2006 SCC (L&S) 1345 in SCC Paras 72 and 74 it was held that the candidates who participated in the interview with knowledge that for selection they had to secure prescribed minimum marks on being unsuccessful in interview could not turn around and challenge that the said provision of minimum marks was improper, said challenge is liable to be dismissed on the ground of estoppel.” 55. Though, some of the cases cited above relate to service matter, but the principle laid down therein by the Hon’ble Apex Court is applicable to the present context also. Therefore, by applying the aforesaid settled principle of the Hon’ble Apex Court to the present context, it can be construed that the petitioner, having participated in the process of tender, should not have turned around and challenged one of the conditions i.e. Section VI(a) of tender by filing this writ petition. 56. In the judgments rendered by the Hon’ble Apex Court as referred above, upon which, reliance has been placed by the learned counsel for the petitioner, wherein, the Hon’ble Apex Court has laid down as to in which circumstances, the High Court is to exercise the extraordinary jurisdiction that if the decision-making process suffers from vice of arbitrariness or unreasonableness, then only, the tender matter is to be interfered with. 57. In the aforesaid context, there is no iota of doubt about the settled proposition of law that if the decision-making process suffers from vice of arbitrariness or unreasonableness, then only, the tender matter is to be interfered with. But in the instant case, petitioner has failed in showing that what type of arbitrary and malafide action has been taken by the respondent concerned against the petitioner. 58. Further, it needs to refer herein that the section in question, i.e. section VI (a) is applicable for all participants and just only on the basis of pleading, it cannot be alleged that respondents have deliberately/intentionally inserted the section VI(a) in order to debarred the petitioner. 59. Further, it needs to refer herein that it is settled principle of law that the bidder/tenderer cannot be permitted to challenge the bid condition/clause which might not suit him and/or convenient to him and the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. Reference in this regard may be made to the judgment rendered in the case of Balaji Ventures Pvt. Ltd. vs. Maharashtra State Power Generation Company Ltd. & Anr. 2022 SCC Online SC 1967, wherein at paragraph 9 it has been held as under: “9. Now so far as the impugned Judgment and order passed by the High Court dismissing the writ petitions is concerned, what was challenged before the High Court was one of the tender conditions/clauses. 2022 SCC Online SC 1967, wherein at paragraph 9 it has been held as under: “9. Now so far as the impugned Judgment and order passed by the High Court dismissing the writ petitions is concerned, what was challenged before the High Court was one of the tender conditions/clauses. The High Court has specifically observed and noted the justification for providing clause 1.12(V). The said clause was to be applied to all the tenderers/bidders. It cannot be said that such clause was a tailor made to suit a particular bidder. It was applicable to all. Owner should always have the freedom to provide the eligibility criteria and/or the terms and conditions of the bid unless it is found to be arbitrary, mala fide and/or tailor made. The bidder/tenderer cannot be permitted to challenge the bid condition/clause which might not suit him and/or convenient to him. As per the settled proposition of law as such it is an offer to the prospective bidder/tenderer to compete and submit the tender considering the terms and conditions mentioned in the tender document.” 60. This Court is conscious with the fact that this Court being the saviour of the fundamental rights as enshrined in constitution of India, is duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias apparent in the decision making process but at the same time this Court is also aware with the settled position of law as laid down by the Hon’ble Apex Court that the Court is normally loathe to interfere in contractual matters in absence of arbitrariness or mala fides or bias or irrationality. 61. The Hon’ble Apex Court in the case of Silppi Constructions Contractors vs. Union of India and Ors. 2019 SCC Online SC 1133 has categorically observed that the Court must realize that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender and has authored the tender documents is the best judge as to how the documents have to be interpreted, for ready reference, the relevant paragraph is being quoted as under: “20. The authority which floats the contract or tender and has authored the tender documents is the best judge as to how the documents have to be interpreted, for ready reference, the relevant paragraph is being quoted as under: “20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.” 62. In the light of the above settled legal position and in the absence of any mala fides or arbitrariness in the process of evaluation of bids and the determination of the eligibility of the bidders, it is not a fit case for interference of this Court. 63. Further, the Hon’ble Apex Court in the case of N.G. Projects Limited Vs. vinod Kumar Jain & Ors. (2022) 6 SCC 127 has observed that the writ court should refrain itself from imposing its decision over the decision of the employer as to whether to accept the bid of a tenderer and that contract of public service should not be interfered with lightly. The injunction or interference in the Tender leads to additional costs on the State and is also against public interest. For ready reference, the relevant paragraph-23 of the said judgment is being referred as under: “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. For ready reference, the relevant paragraph-23 of the said judgment is being referred as under: “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 complying 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 mala fide 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.” 64. Subsequent to the judgment of N.G. Projects Limited (supra), the Hon’ble Apex Court has rendered the judgment in the case of Jai Bholenath Construction vs. The Chief Executive Officer, Zilla Parishad, Nanded & Others in Civil Appeal No. 4140 of 2022 and Special Leave Petition (C) No. 7150 of 2022 upon which reliance has been placed by the learned counsel for the petitioner, as such, it is the bounden duty to go through the ratio of the aforesaid judgment. 65. We have considered the factual aspect of the judgment rendered in the case of Jai Bholenath Construction vs. The Chief Executive Officer, Zilla Parishad, Nanded & Others (supra), wherein, the fact of the said case is that on 17.08.2021, a tender was published inviting offers for the construction of staff quarters of the Primary Health Center, Ewaleshwar, Taulka Mahur, District Nanded. Four bidders participated in the bid, including the appellant and Respondent No. 4 - M/s L.D. Constructions. The appellant was found to be a lowest bidder but the Letter of Intent was not issued to the appellant. It was on 24.11.2021, the Zila Parishad decided that M/s L.D. Constructions – Respondent No. 4 was excluded from the process and was declared it ineligible for non-compliance of the documents. But later on, when the required documents have been submitted by the said respondent then tender committee again perused the documents and found that Respondent No. 4 L.D. Construction has submitted complete documents and as they were found to be eligible. The said action was challenged in a writ petition by the appellant before the High Court but the same was dismissed. 66. Consequently, the matter has been travelled to the Hon’ble Apex Court wherein the Hon’ble Apex Court while setting aside the order of High Court has observed that Respondent No. 4 was declared eligible in a flagrant violation of principles of natural justice and all fairness in the process of determining the eligibility of the tenderers, the bid of Respondent No. 4 was accepted when at the time of opening of technical bids, the said respondent was disqualified. Therefore, the manner in which the bid has been accepted shows arbitrary exercise of the power. 67. It is, thus, evident that in the case of Jai Bholenath Construction vs. The Chief Executive Officer, Zilla Parishad, Nanded & Others (supra), the Hon’ble Apex Court has found error in the decision making process and there was no issue of rejection of candidature due to non-fulfillment of the condition stipulated in the bid document, as such, the judgment rendered by the Hon’ble Apex Court in the case of Jai Bholenath Construction vs. The Chief Executive Officer, Zilla Parishad, Nanded & Others (supra), upon which, reliance has been placed by the learned counsel for the petitioner, is not applicable in the facts and circumstances of the present case. 68. The reference also needs to be made of the judgment rendered by the Hon’ble Apex Court in the case of Dr. Major Meeta Sahai Vs. State of Bihar & Ors., (supra) upon which, reliance has been placed by the learned counsel for the petitioner. 69. 68. The reference also needs to be made of the judgment rendered by the Hon’ble Apex Court in the case of Dr. Major Meeta Sahai Vs. State of Bihar & Ors., (supra) upon which, reliance has been placed by the learned counsel for the petitioner. 69. We have gone through the facts of the aforesaid case wherein it is evident that an appeal has been preferred before the Hon’ble Apex Court, against the order dated 24-11-2016 passed by a Division Bench of the Patna High Court in Meeta Sahai vs. State of Bihar, 2016 SCC Online Pat 10112, whereby the appellant's work experience in an Army Hospital was not considered for grant of weightage and consequential selection and appointment as General Medical Officer in the State of Bihar, on the ground that Rule 6(iii) of the Bihar Health Service (Appointment and Service Conditions) Rules, 2013 mandated that only services rendered in employment of a hospital run by the Government of Bihar could count under the head of work experience. 70. The appellant, having the experience of doctor, had applied, since, the condition stipulated in the advertisement was not specific but after rejection of the candidature on the ground that the experience is only required of a doctor in the civil side and not in the military side and in that pretext, the Hon’ble Apex Court has entertained the petition on the ground that rejection of the candidature could only be known after participation in the process of selection and hence, the principle to challenge after rejection of the candidature putting restriction on the candidate will not be applicable, the relevant paragraphs of the said judgment are being referred as under: 16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256, observing as follows: (SCC p. 584, Para 16) “16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256, observing as follows: (SCC p. 584, Para 16) “16. We also agree with the High Court [Manish Kumar Shahi vs. State of Bihar, 2008 SCC Online Pat 321 : (2008) 4 PLJR 93 ] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.” [See also: Madan Lal vs. State of J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712, Marripati Nagaraja vs. State of A.P. (2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68, Dhananjay Malik vs. State of Uttaranchal, (2008) 4 SCC 171 : (2008) 1 SCC (L&S) 1005 and K.A. Nagamani vs. Indian Airlines, (2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57] The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance. 17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.” 71. Thus, it is evident from the from the factual aspect of the aforesaid case that the condition stipulated in the advertisement was not specific and only after rejection of the candidature on the ground that the experience is required of a doctor in the civil side working in state of Bihar not in the military side, the petitioner came to know about the said condition. The Hon’ble Apex Court has acknowledged the settled position that after having taken part in the process of selection knowing fully well the required condition the candidate is not entitled to challenge the criteria or process of selection but allowed the said appeal only on the ground that the petitioner has came to know about the said condition only after rejection of her candidature. 72. In the instant case the ratio of the Dr. Major Meeta Sahai vs. State of Bihar & Ors. (supra) is not applicable reason being that petitioner from the beginning was having knowledge that the petitioner is not eligible due to not fulfilling the required criteria, as stipulated in Section VI (a) of the bid, whereas, in the case of Dr. Major Meeta Sahai (supra), the petitioner came to know about the said condition, i.e. Rule 6(iii) of Bihar Health Service (Appointment and Service Conditions) Rules, 2013 only after rejection of her candidature. 73. Now, this Court is proceeding to examine the factual aspect in the light of the aforesaid proposition of law. 74. It is admitted fact that the petitioner was conscious with the condition stipulated under condition no. VI(a), wherein, the sole proprietor is made not eligible to participate. 75. The aforesaid fact is admitted, since, the admitted case of the writ petitioner that a representation was filed on 14.05.2024 which has also been appended as a part of the writ petition, wherein, the ground has been taken that the condition stipulated under Section VI(a) replaced or modified by making addition of the sole proprietor also. 76. 75. The aforesaid fact is admitted, since, the admitted case of the writ petitioner that a representation was filed on 14.05.2024 which has also been appended as a part of the writ petition, wherein, the ground has been taken that the condition stipulated under Section VI(a) replaced or modified by making addition of the sole proprietor also. 76. The petitioner has offered his candidature on 05.06.2024 being bid no. 597386. 77. It is, thus, evident that the petitioner was full conscious with the criteria which were not being fulfilled by the petitioner, since, the petitioner was not the partnership firm, rather, the sole proprietor but even then, he had applied. 78. The bid document was submitted on 05.06.2024. The technical bid was opened on 06.06.2024 and rejected on 12.06.2024 and thereafter, the writ petition has been filed on 29.06.2024. 79. It is admitted facts of the instant case that the petitioner was not having the eligibility criteria and if in that pretext, the candidature of the writ petitioner has been rejected, then in such circumstances the said action of respondents cannot said to be suffer from an arbitrariness or unreasonableness. 80. The Hon’ble Apex Court has laid down the proposition in the aforementioned case that in case if decision making process suffers from arbitrariness or unreasonableness, the power under Article 226 of the Constitution of India can be exercised by the writ Court. 81. But, so far as putting condition under the bid document, the law is well settled that putting condition in the bid document is the sole prerogative of the authority and there cannot be any interference by the bidder to insert a condition which suits to him, as has been laid down by the Hon’ble Apex Court in the case of Balaji Ventures Pvt. Ltd. vs. Maharashtra State Power Generation Company Ltd. & Anr. (supra) 82. The ground has been taken that the technical bid has been rejected, thereafter, the work order has also been issued in favour of respondent no. 4, but, it appears from the record that neither the rejection of the technical bid dated 12.06.2024 has been assailed nor the work order issued in favour of respondent no. 4 has been assailed in this writ petition. 83. 4, but, it appears from the record that neither the rejection of the technical bid dated 12.06.2024 has been assailed nor the work order issued in favour of respondent no. 4 has been assailed in this writ petition. 83. This Court has considered the aforesaid aspect of the matter and coming back to the prayer made in the writ petition, wherein, it has been prayed only to quash the criteria as laid down under Section VI(a) as provided under the bid document. 84. This Court, considering the fact in entirety on the basis of the legal position, is of the view that since the thrust of the argument is questioning the criteria under Section VI(a) of the Bid Document which being the absolute domain of the authority who is the best judge as to which candidate is to be considered for fulfillment of the purpose which is in the public utility service and there cannot be any interference by the candidate to ask for imposition of condition, according to the suitability of such candidates. 85. This Court, therefore, is of the view that only because the petitioner is not fulfilling the said eligibility criteria, the same cannot lead to the vice of arbitrariness or unreasonableness. 86. Therefore, this Court is of the view that the instant writ petition lacks merit and no positive direction can be issued. 87. In the result, the instant writ petition fails and is dismissed. 88. Pending interlocutory applications, if any, also stands disposed of. I agree - ARUN KUMAR RAI.