BAKSHI SECURITY AND PERSONNEL SERVICES PVT. LTDversusDEVKISHAN COMPUTED PVT. LTD. AND ORS.

                             [2016] 3 S.C.R. 310



A   BAKSHI SECURITY AND PERSONNEL SERVICES PVT. LTD.
                                      v.
           DEVKISHAN COMPUTED PVT. LTD. AND ORS.
                          (Civil Appeal No. 6978of2016)
B                              JULY26,2016
      [DIPAK MISRA AND ROHINTON FALi NARIMAN, JJ.J
           Contract: Tender - Essential conditions - An essential
    condition of a tender has to be strictly complied with - In the instant
    case, as per the tender condition, bid below the minimum wage fixed
c   by the government and an open ended offer were liable to be rejected
    - Respondent no. I tendered bid of an amount which was way below
    the minimum wage fixed by the Government - Moreover, offer made
    by it was not fixed, but open ended - Re~pondent no.1 s bid is
    liable to be rejected.
D
         Writ jurisdiction: Commercial bid - Held: Writ jurisdiction
    cannot be utilized to make a fresh bargain between parties.
          Allowing the appeal, the Court

E          HELD: 1. First and foremost, under tender condition 2.5.5,
    commercial bids have to strictly conform to the format for the
    price bid provided in Annexure 2 of the tender document.
    Annexure 2 makes it clear that the salary paid to deployed
    manpower should not be less than the minimum wage. It further
    goes on to state in paragraph 3 thereof that if the component of
F   salary quoted is less than the minimum wage prescribed, the bid
    is liable to be rejected. On this ground alone, Respondent No.1 's
    bid is liable to be rejected inasmuch as, vide its letter dated
    3.9.2015, Respondent No.1 stuck to its original figure of
    Rs.2,77,68,000/- which is way below the minimum wage fixed by
G   the Government. Secondly, offer of Rs.3,00,92,346/- is an offer
    which is not fixed, but open ended. This is clear from the fact
    that it was up to the Government then to pick up either figure by
    way of acceptance. This is clearly interdicted by clause 2.5.6 of
    the tender which states that prices quoted by the bidder have to
    be fixed, and no open ended bid can be entertained, the same
H   being liable to be rejected straightaway. Such condition is
                                  310
BAKSHI SECURITY AND PERSONNEL SERVICES PVT. LTD.                      311
   v. DEVKISHAN COMPUTED PVT. LTD. AND ORS.

obviously an essential condition of the tender which goes to the       A
eligibility of persons who make offers under the tender. [Para
13) [318-B-D]
       2. Unfortunately, even though the High Court noticed the
open ended nature of Respondent No.1 's bid, it went on to add
that the offer of Respondent No.1 shall be treated as matching         B
with the revised minimum wage calculation and that it is nowhere
envisaged by the tender conditions that rejection of an offer which
may have the potential of causing loss to the tenderer is present.
Once the tender condition states that the tender must strictly
conform to the format provided in Annexure 2, and Annexure 2
in turn clearly states that if the component of salary quoted is       c
less than the minimum wage prescribed, the bid is liable to be
rejected, then the High Court cannot hold otherwise. The High
Court's further finding that Respondent No.1 's offer was "clear"
is wholly incorrect. It was a without prejudice offer which muddied
the waters and rendered the price quoted by the bidder as variable     D
and not fixed. [Para 14) [318-E-G]
      Poddar Steel Corpn. v. Ganesh Engineering Works
      (1991) 3 sec 273: 1991 (2) SCR 696; B.S.N. Joshi &
      Sons Ltd. v. Nair Coal Services Ltd. (2006) 11 SCC
      548: 2006 (8) Suppl. SCR 11 - relied on.
                                                                       E
      3. The writ jurisdiction cannot be utilized to make a fresh
bargain between parties. The High Court was not correct in
treating Respondent No.1 's offer as matching with the revised
minimum wage calculation, as that would make a new contract
between the parties that the parties have not made themselves.
[Paras 17, 19) [320-A; F-G]                                            F

      General Assurance Society Ltd. v. Chandmull .Jain
      (1996) 3 SCR 500; Michigan Rubber (India) Limited v.
      State of Karnataka and Others (2012) 8 SCC 216 :
      2012 (8) SCR 128 - relied on.
                                                                       G
       4. Respondent No.1 has clearly violated the strict terms of
the tender condition on every occasion and hence cannot be given
relief. And, secondly, due to litigation the present tender has not
taken off for over one year. In the absence of malafides, and
indeed the High Court judgment has found that malafides did not
vitiate the calculation of minimum wage by the Labour                  H
312              SUPREME COURT REPORTS                      [2016] 3 S.C.R.


A     Department, it is not accepted that the figure of Rs.2,91,00,000/
      - was tailor made to suit the bid offered by the Appellant. [Para
      21] (322-F-G]
                               Case Law Reference
              1991 (2)   SCR      696          relied on       Para 15
B             2006 (8)   Suppl.    SCR 11      relied on       Para 16
              (1996) 3 SCR 500                 relied on       Para 18
              2012 (8) ' SCR 128               relied on       Para20
              CIVIL APPELLATE JURlSDICTION: Civil Appeal No. 6978 of
c     2016.
            From the Judgment and Order dated 19/22.02.2016 of the High
      Court of Gujarat atAhmadabad in Special Civil Application No. 1864 7
      of 2015.
           H.P. Rawal, Sr. Adv., Anirudh Sharma, Anand Mukharji, Nipun
D     Saxena, Ms. Divya Anand, Advs. for the Appellant.
           Shyam Divan, Sr. Adv., Ms. Madhavi Divan, Nikhil Goel, Ms.
      Naveen Goel, Ashutosh Ghade, Preetesh Kapoor, Ms. Hemantika Wahi,
      Aagam Kaur, Advs. for the Respondents.
              The Judgment of the Court was delivered by
E
              R. F. NARIMAN, J. I. Leave granted.
             2. On 20.11.2014, the Commissioner of Transport, Government
      of Gujarat, floated a tender seeking bids for services inter alia of
      supervisors, computer programmers, data entry operators, and electrician
F     staff at 11 RTO check-posts. A few material clauses of the tender are
      set out hereinbelow:-
              "2.5.5 Commercials
            The Commercial Bids should strictly confo1m to the formats
      provided in Annexure 2 of this tender document.
G
              2.5.6 Fixed Price
         Prices quoted by the Bidder shall be fixed and no variation will be
    allowed under any circumstances during the entire period of the project.
    No open-ended Bid shall be entertained and the same is liable to
H , be rejected straightaway.




                                                                                 '
     BAKSHI SECURITY AND PERSONNEL SERVICES PVT. LTD. v.                         313
   DEVKISHAN COMPUTED PVT. LTD. AND ORS. [R. F. NARIMAN, J.]


       2.8.3 Rejection ofBid                                                     A
       The hard-bound copy of Technical Bid Document shall be
submitted in the form of printed document. Bids submitted by Telex,
fax or email shall not be entertained. Any bid not secured in accordance
with Clause 2.8 mentioned above, shall be rejected by COT without any
further correspondence, as non-responsive. A bid that does not meet all           B
pre-qualification criteria or is not responsive or not fulfilling technical
evaluation shall be rejected by COT, and may not subsequently be made
responsive by correction or withdrawal of the non-conforming deviation
or reservation by the Bidder.
         3.4.5                                                                    c
       It shall be the responsibility of the Bidder to abide by the provisions
of the labour welfare legislations, 1ike The Payment of Wages Act, 1936,
The Payment of Bonus Act, 1965, The Minimum Wages Act, 1948, The
Equal Remuneration Act, 1976, The Payment of Gratuity Act, 1972, The
Employees' State Insurance Act, 1948, Contract Labor Act, 1970, The
Workmen's Compensation Act, 1923 and other similar legislations, rules,
                                                                                  D
and orders as issued from time to time.
         Annexure - 2 (Financial Bid)
         Format for Financial Bid
       Price Bid: (Financial/Commercial Bid submitted in physical form            E
shall be liable for rejection. It should be submitted on line only at https:/
/www.nprocure.com)
       Please provide price bid for supply of Man Power to be deployed
at different Check-posts/CMC.
  S r.           P a r tic u la rs       Qty.   Cost per      To ta I co st       F
  No.                                           person        for 2 4
                                                per           m on th s
                                                man th        with 0 u t
                                                w it ha u t   ta x
                                                ta x
   1        Data E n try                 12 0
            operator
   2        C om p u te r                 02
            Engineer                                                              G
   3        E I e c Ir ic i a n           12
                                                                ~




   4        Supervisor                    1 2

            To ta I

   Additional Service                     %
   Tax
                                                                                  H
                              G rand To ta I
314            SUPREME COURT REPORTS                            [2016] 3 S.C.R.


A
            I. Salary paid to the deployed manpower should not be less than
               the minimum wages published as per the notification issued by
               state govt. labour department or other statutory benefits
               applicable. In case of revision of minimum wages/DA by the
B               labour department, agency would be entitled to get the revised
               rates from Commissioner of transport.
            2. Break-up of salary for each category of employee should be
               provided indicating clearly the wages, DA, other mandatory
               statutory benefits & the service charges.
C           3. If the component of salary quoted is less than the minimum
                wages prescribed or the components of mandatory statutory
                benefits are not included in the break-up, the bid is liable to be
                rejected.
            4. The quantity of manpower required may vary and the supplier
D               may be asked to supply upto 25% extra manpower at the rate
               quoted above.
            5. LI will be decided on grand total.
            Signature:                                      Date:

E           Designation:                                    Seal:"
            3. The financial bids were opened on 10.12.2014. 9 bidders gave
      financial bids of which only three were qualified. The Appellant bid for
      a total amount of Rs.2,92,93,944/-; Respondent No. I bid for
      Rs.2,77,68,000/-, and one Airan Consultants Pvt. Ltd. made a bid for
 F    Rs.3,03,83, 184/-.
             4. On 26.2.2015, the Technical Evaluation Committee, after taking
      into account the opinion of the Labour Department, arrived at a minimum
      wage figure of Rs.3,00,92,346/-. Inasmuch as both the Appellant as
      well as Respondent No. l gave bids which were below this figure, (which
      would, therefore, be less than the amount required as minimum wages,
 G
      in accordance with the tender conditions read with the Annexure 2
      thereof), both the Appellant as well as Respondent No. I were held to be
      ineligible. A decision was, therefore, taken to award the tender to the
      third bidder, namely, M/s Airan Consultants Pvt. Ltd. Respondent No. I
      approached the Gujarat High Court in a writ petition challenging the
 H
     BAKSHI SECURITY AND PERSONNEL SERVICES PVT. LTD. v.                      315
   DEVKISHAN COMPUTED PVT. LTD.AND ORS. (R.F. NARIMAN,J.]


aforesaid decision. By its judgment dated 11.8.2015, the High Court           A
ultimately came to the conclusion that the tender in favour ofM/s Ai ran
Consultants Pvt. Ltd. ought to be quashed and set aside with the further
direction that the GovernmentofGujarat shall give an opportunity to all
three tenderers to resubmit their bids after being appraised of the minimum
wage figure given by the Labour Department. This was done as the
                                                                               B
High Court was of the opinion that all the bidders ought to have been
given an opportunity to revise their bills subsequent to the minimum wage
calculated by the Labour Department.
      5. ln pursuance of the aforesaid judgment, the Transport
Department of the Government of Gujarat furnished to all the competing
bidders the Labour Department's calculation that minimum wages plus
                                                                               c
bonus payable for the contract was Rs.3,00,92,346/-.
      6. In response to the above, the Appellant wrote a letter dated
2.11.2015 sticking to the original bid figure of Rs.2,92,93,944/-. On
3.9.2015, Respondent No.1, in response to the minimum wage figure
                                                                               D
disclosed, wrote to the Government of Gujarat, as follows:-
       "(6.3) Thus, it can be seen that according to the calculation,
       Minimum Wages and other statutory benefits payable to
       the employees for 730 days [2 years of contract] comes to
       Rs.3,00,92,346 [without service tax]. The price at which I
                                                                               E
       am ready to work is Rs.2,77,68,000 [without service tax].
       Thus, against payment of wages and all statutory benefits
       of Rs.J,00,92,346/- and service tax thereon, am ready and
       willing to accept Rs.2, 77 ,68,000 [plus service tax] from the
       Government. Th is would enable the Government to save
       Rs.23,24,346.00 and service tax thereon, and the ultimate               F
       beneficiary would be public exchequer.
       (6.4) I have undertaken in past in writing that I am ready
       to incur loss as well. The price I have offered shall have
       no impediment on wages and statutory benefits to be paid
       to the employees as calculated by the Technical Evaluation              G
       Committee based on the report/ opinion of the Labour
       Commissioner. The tender document itself binds the
       contractor to abide by all labour welfare legislation, and
       therefore, there is no question of resiling from perfonning
       that part of contract from my end.
                                                                               H
316            SUPREME COURT REPORTS                           [2016] 3 S.C.R.


A           (6.5) Even in my previous letters also, I have undertaken
            that I shall conform to all labour welfare legislations even
            after accepting Rs.2, 77,68,000 + Service Tax from the
            Government. I have also undertaken that I shall bear the
            burden of loss incurred on account of the margin between
            my bid and the amount of minimum wages and statutory
B
            benefits payable to my employees. The margin between
            the two shall not be hindrance in quality of services I would
          · offer through m_y employees on these check-posts.
            (6.6) Without prejudice to above, I am to state that I am
            ready to accept even Rs.3,00,92,346.00 +Service Tax, being
c           the bare minimum wages payable to the employees during
            the life of the contract from the Government as calculated
            by the Technical Evaluation Committee based on the report
            of the Labour Commissioner, such offer will result into 'No
            Profit No Loss' business for me, but at the same time, it
D           would create a burden of Rs.23,24,346.00 on the State
            Funds."
             7. On 12. I 0.2015, the Labour Department gave a second opinion
      that though Data Entry Operators are ordinarily to be treated as "skilled
      workers", for the purpose of the present tender they should be treated
 E    as "semi skilled workers". In view of this decision, the Government, on
      30. 10.2015, arrived at a decision that the actual minimum wage plus
      bonus worked out to Rs.2,91,00,000/-, and thus revised their earlier figure
      of Rs.3,00,92,346/-. In the judgment under appeal, the High Court has
      stated, and it is not controverted before us, that this figure was not
      disclosed to either party.
 F
             8. On 2.11.2015, Respondent No. I again knocked at the doors of
      the High Court in a second writ petition filed by it. By the impugned
      judgment dated 22.2.2016, the High Court allowed Respondent no. I's
      petition in the following terms:-

 G
             "8. Under the circumstances, the decision of the authorities
             to shortlist respondent No.3 for awarding the contract is
             set aside. The offer of the petitioner shall be treated as
             matching with the revised minimum wage calculation. The
             petitioner shall give such offer in clear writing and
             undertaking to the authorities latest by 25.2.2016. The
 H           respondent authorities, unless there is any other
     BAKSHI SECURITY AND PERSONNEL SERVICES PVT. LTD. v.                      317
   DEVKISHAN COMPUTED PVT. LTD. AND ORS. [R. F. NARI MAN, J.]


      disqualification of the petitioner to carry out the contract,           A
      being the lower, shall accept the same.
      9. Petition is disposed of."
      9. Being aggrieved by the aforesaid judgment, the Appellant is
before us.
                                                                               B
       I 0. Shri Harin Raval, learned senior advocate appearing on behalf
of the Appellant, has pointedly referred to the tender conditions and has
argued before us that Respondent No. I's writ petition was not at all
maintainable in view of the fact that Respondent No. I stuck to its earlier
offer of Rs.2, 77,68,000/- which was lower than the figure of
Rs.3,00,92,346/- as well as the figure ofRs.2,91,00,000/- fixed by the         c
Government upon advice given by the Labour Department, of minimum
wage plus bonus. According to him, the without prejudice offer of
Rs.3,00,92,346/- flew in the face of the tender conditions-and, therefore,
the writ petition being not maintainable, ought to have been dismissed
both on the ground that the figure quoted by Respondent No. I was below        D
the minimum wage fixed as also on the ground that no open ended bid is
liable to be entertained. He further argued that the Court cannot make
a contract between the parties by treating the offer of the Respondent
No. I as matched with the revised minimum wage calculation. He further
argued that a Mandamus cannot be issued to straightaway award the
tender to a person who does not conform to the essential conditions of         E
the tender.
        11. Countering these submissions, Shri Shyam Divan, learned senior
counsel appearing on behalf of Respondent No. I, has argued that it is an
admitted fact that the revised figure of minimum wage was never disclosed
to either of the parties and this being so, the judgment under appeal is       F
correct. He also stated that though the High Court did not find malafides,
yet it went out 'of its way to comment on the secret manner in which the
Labour Department re-fixed the minimum wage at Rs.2,91,00,000/-,
which is only one lakh above the Appellant's figure ofRs.2,92,00,000/-
and that, therefore, the said non-transparent process rendered the decision    G
of the Government to award the tender to the Appellant as bad in law.
He further argued that ifthe offer of the Respondent No. I was treated
as matching with the revised minimum wage calculation, the State will
benefit by an amount of Rs. I lakh and that this was well within the
discretion of the High Court while exercisingjurisdiction under Article
 226 of the Constitution.                                                      H
318            SUPREME COURT REPORTS                            [2016] 3 S.C.R.



A           12. Having heard learned counsel for the parties, we agree with
      Shri Raval's contention that Respondent No.l's bid was contrary to the
      terms of the tender.

             13. First and foremost, under tender condition 2.5.5, commercial
      bids have to strictly conform to the format provided in Annexure 2 of the
B     tender document. Annexure 2 which contains the format for the price
      bid makes it clear that the salary paid to deployed manpower should not
      be less than the minimum wage. It further goes on to state in paragraph
      3 thereof that ifthe component of salary quoted is less than the minimum
      wage prescribed, the bid is liable to be rejected. On this ground alone,
c     Respondent No.l's bid is liable to be rejected inasmuch as, vide its letter
      dated 3.9.2015, Respondent No. l stuck to its original figure of
      Rs.2,77,68,000/- which is way below the minimum wage fixed by the
      Government. Secondly, Shri Raval is also right in stating that the without
      prejudice offer of Rs.3,00,92,346/- is an offer which is not fixed, but
      open ended. This is clear from the fact that it was up to the Government
D     then to pick up either figure by way of acceptance. This is clearly
      interdicted by clause 2.5.6 of the tender which states that prices quoted
      by the bidder have to be fixed, and no open ended bid can be entertained,
      the same being liable to be rejected straightaway. Such condition is
      obviously an essential condition of the tender which goes to the eligibility
 E    of persons who make offers under the tender.

              14. Unfortunately, even though the High Court noticed the open
      ended nature of Respondent No.l's bid, it went on to add that the offer
      of Respondent No. l shall be treated as matching with the revised
      minimum wage calculation and that it is nowhere envisaged by the tender
 F    conditions that rejection of an offer which may have the potential of
      causing loss to the tenderer is present. It is not for the High Court to
      revisit a condition contained in Annexure 2 read with 2.5.5 of the tender
      in the manner aforesaid. Once the tender condition states that the
      tender must strictly conform to the format provided in Annexure 2, and
      Annexure 2 in turn clearly states that ifthe component of salary quoted
 G    is less than the minimum wage prescribed, the bid is liable to be rejected,
      and the High Court cannot hold otherwise. The High Court's further
      finding that Respondent No.l's offer was "clear" is wholly incorrect.
      It was a without prejudice offer which muddied the waters and rendered
      the price quoted by the bidder as variable and not fixed.
 H
     BAKSHI SECURITY AND PERSONNEL SERVICES PVT. LTD. v.                      319
   DEVKISHAN COMPUTED PVT. LTD. AND ORS. [R. F. NARIMAN, J.]


      15. The law is settled that an essential condition of a tender has to   A
be strictly complied with. In Poddar Steel Corpn. v. Ganesh
Engineering Works, ( 1991) 3 SCC 273, this Court held as under:-
      " ... The requirements in a tender notice can be classified
      into two categories - those which lay down the essential
      conditions of eligibility and the others which are merely                B
      ancillary or subsidiary with the main object to be achieved
      by the condition. In the first case the authority issuing the
      tender may be required to enforce them rigidly. In the other
      cases it must be open to the authority to deviate from and
      not to insist upon the strict literal compliance of the condition
      in appropriate cases .... " [para 6]
                                                                               c
       16. Similarly in B.S.N. Joshi & Sons Ltd. v. Nair Coal Services
Ltd., (2006) 11 SCC 548, this Court held as under:-
       " ... (i) if there are essential conditions, the same must be
       adhered to;                                                             D
       (ii) ifthere is no power of general relaxation, ordinarily the
       same shall not be exercised and the principle of strict
       compliance would be applied where it is possible for all the
       parties to comply with all such conditions fully;
       (iii) it~ however, a deviation is made in relation to all the           E
       parties in regard to any of such conditions, ordinarily again
       a power of relaxation may be held to be existing;
       (ii~ the parties who have taken the benefit of such relaxation
       should not ordinarily be allowed to take a different stand in
       relation to compliance with another part of tender contract,            F
       particularly when the was also not in a position to comply
       with all the conditions of tender fully, unless the court
       otherwise finds relaxation of a condition which being
       essential in nature could not be relaxed and thus the same
       was wholly illegal and without jurisdiction;
                                                                               G
       (v) when a decision is taken by the appropriate authority
       upon due consideration of the tender document submitted
       by al Ithe tenderers on their own merits and if it is ultimately
       found that successful bidders had in fact substantially
       complied with the purport and object for which essential
                                                                               H
320            SUPREME COURT REPORTS                          [2016) 3 S.C.R.


A           conditions were laid down, the same may not ordinarily be
            interfered with; ... " [para 66)
            17. We also agree with the contention of Shri Raval that the writ
      jurisdiction cannot be utilized to make a fresh bargain between
      parties.
B           18. In General Assurance Society Ltd. v. Chandmull Jain,
      (1996) 3 SCR500, this Court, in a slightly different context, stated:
            "In other respects there is no difference between a contract
            ofinsurance and any other contract except that in a contract
            of insurance there is a requirement of uberrima tides i.e.
c           good faith on the part of the assured and the contract is
            likely to be construed contra proferentem that is against
            the company in case of ambiguity or doubt. A contract is
            formed when there is an unqualified acceptance of the
            proposal. Acceptance may be expressed in writing or it may
            even be implied if the insurer accepts the premium and
D           retains it. In the case of the assured, a positive act on his
            part by which he recognises or seeks to enforce the policy
            amounts to an affirmation ofit. This position was clearly
            recognised by the assured himself, because he wrote, close
            upon the expiry of the time of the cover notes that either a
E           policy should be issued to him before that period had expired
            or the cover note extended in time. In interpreting
            documents relating to a contract of insurance, the duty of
            the court is to interpret the words in which the contract is
            expressed by the parties, because it is not for the court to
             make a new contract, however reasonable, if the parties
 F           have not made it themselves. Looking at the proposal, the
             letter of acceptance and the cover notes, it is clear that a
            contract of insurance under the standard policy for fire and
            extended to cover flood, cyclone etc. had come into being."
             19. In the light of the aforesaid judgment, the High Court was not
 G    correct in treating Respondent No. I's offer as matching with the revised
      minimum wage calculation, as that would make a new contract between
      the parties that the parties have not made themselves.
           20. It is also well to remember the admonition given by this Court
      in Michigan Rubber (India) Limited v. State of Karnataka and
 H    Others, (2012) 8 SCC 216 in cases like the present, as under:-
  BAKSHI SECURITY AND PERSONi IEL SERVICES PVT. LTD. v.           321
DEVKISHAN COMPUTED PVT. LTD .. \ND ORS. [R. F. NARIMAN, J.]


   "In Jagdish Mandal v. Statt ofOi-issa, [(2007) 14 SCC           A
   51 7], the following conclusion is relevant:
        "22. Judicial review of administrative action is
      intended to prevent arbitrariness, irrationality,
      unreasonableness, bias and mala tides. Its purpose
      is to check whether choice or decision is made               B
      '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 fea~~res should be borne in
      mind. A contract is a commercial transaction.
      Evaluating tenders and awarding contracts are
                                                                   c
      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           D
      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.
                                                                   E
       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         F
       judicial review, should be resisted. Such interferences,
       either interim or final, may hold up public works for
       years, or delay relief and succour to thousands and
       millions and may increase the project cost manifold.
       Therefore, a court before interfering i_n tender or
       contractual matters in exercise of power of judicial        G
       review, should pose to itself the following questions:
         (i) Whether the process adopted or decision made
       by the authority is mala fide or intended to favour
       someone;
                               OR                                  H
322            SUPREME COURT REPORTS                            [2016] 3 S.C.R.


A                  Whether the process adopted or decision made is
                so arbitrary and irrational that the court can say: 'the
                decision is such that no responsible authority acting
                reasonably and in accordance with relevant law could
                have reached';
B                 (ii) Whether public interest is affected.
                If the answers are in the negative, there should be
                no interference under Article 226. Cases involving
                blacklisting or imposition of penal consequences on
                a tenderer/ contractor or distribution of State largesse
c               (allotment of sites/shops, grant of licences,
                dealerships and franchises) stand on a different
                footing as they may require a higher degree of
                fairness in action."[Para 21]
              21 . We have seen that the present tender has not gotten off the
D     ground since May 2015, and one year's precious time has been wasted
      due to litigation between the parties. We must hasten to add that the
      Government of Gujarat is partly to blame for this inasmuch as it arrived
      at a minimum wage figure and did not disclose the same to the tendering
      parties twice. Even in the second round of litigation, the Government
      did not disclose the newly arrived at mi·nimum wage figure of
E     Rs.2,91,00,000/- to the two persons in the fray before us. Ordinarily,
      therefore, we would have asked the Government to disclose the second
      figure of minimum wage and restart the tendering process. However,
      we do not think that the justice of the case requires us to do so, for two
      reasons. First and foremost, Respondent No. I before us has clearly
 F    violated the strict terms of the tender condition on every occasion and
      hence cannot be given relief. And, secondly, we already find that due
      to litigation the present tender has not taken off for over one year. In
      the absence of malafides, and indeed the High Court judgment has found
      that malafides did not vitiate the calculation of minimum wage by the
      Labour Department, we cannot accept Shri Divan's submission that the
 G    figure ofRs.2,91,00,000/- was tailor made to suit the bid offered by the
      Appellant herein. We, therefore, set aside the decision of the Gujarat
      High Court and allow the Government to proceed further in finalizing
      the tender in favour of the Appellant herein. The appeal is, accordingly,
      allowed with no order as to costs.
 H    Devika Gujral                                                 Appeal allo\Yed.