G.S. Sistani, J.
1. Petitioner has filed the present writ petition under Article 226 of the Constitution of India seeking issuance of appropriate writ or direction quashing rejection order dated 15.4.2019 issued by respondent No.1.
2. Pleadings in the matter are complete. With the consent of the parties, the writ petition is taken-up for final hearing and disposal at the admission stage itself.
3. The necessary facts required to be noticed for the disposal of this petition are that the petitioner is stated to be engaged inter-alia in providing catering services since the year 1991 and being empanelled for rendering outdoor catering services in some of the most prestigious clubs and institutions in Delhi.
4. Respondent No.1 invited a tender on 8.10.2018 seeking bids for empanelling of service providers for outdoor catering services at respondent No.1 centre. The petitioner submitted its bid alongwith relevant documents and a demand draft of Rs. 50,000/- as per the requirements of the tender conditions. As per tender condition No. 8, the bids were to be submitted in two parts – (a) sealed technical bid and (b) sealed financial bid. Both the technical and financial bids were to be sealed; and the sealed envelopes, bearing the name and complete postal address of the bidder, were further required to be placed in a bigger envelope superscribed “BID FOR EMPANELMENT AS OUTDOOR CATERING SERVICE PROVIDER AT DAIC, NEW DELHI”, which bigger envelope was itself required to be sealed. The envelope containing both bids was to be submitted by hand to respondent No.1 on or before 11 AM on 19.11.2018.
5. As per the averments in the writ petition, when the bigger envelope submitted by the petitioner was opened in the presence of all bidders at the bid-opening meeting on 20.11.2018, it was noticed that the smaller envelope containing the financial bid submitted by the petitioner was in fact not found sealed. Objections were raised by other bidders and resultantly respondent No.1 rejected the bid of petitioner on this ground alone.
6. As per averments made in the petition, the petitioner was orally informed about the rejection of his bid, however he did not receive any written communication and did not have information as to why his bid had been rejected.
7. Thereafter, the petitioner claims to have addressed a communication to respondent No.1 on 12.2.2019 wherein he confirmed that as sole Proprietor of the petitioner concern, Sandeep Bindra had personally attended the bid opening meeting. Reliance is placed on the following paragraphs of communication dated 12.2.2019, which we reproduce below:
* “Referring to above mentioned tender, it is submitted that sealed tender document were delivered in your office before the last submission date.
* I, (Sandeep Bindra - Proprietor) personally attended the opening Bid Meet for the same.
* As understood & enquired from your office, it seems that our empanelment is not being considered and nor even being intimated to us till date.
* During the meet, as enquired by the concerned at your office, it was clearly shown that the main envelope was sealed with quick fix and tapped as well and other two envelopes for the technical & financial bid were sealed with quick fix/gum.
* Received telephonic message in the month of January to send our Mobile Kitchen Van for inspection & next day they called not to bring it.
It is requested that reason for disqualifying Moets Catering Service, if correct, may kindly be intimated to us at the earliest.
Once again we would like to inform that the main envelope was sealed and tapped with scotch tape and rest were very much SEALED as desired in the tender document and nowhere it was written that tender had to be sealed by tape. We request you to look into the matter and do the needful at your end please.”
8. The case of the petitioner is that although all three envelopes submitted by the petitioner were sealed, the main envelope was sealed with Quickfix and was also taped; however the other envelopes were only sealed with glue. During the course of the hearing, learned Counsel for the petitioner has contended that the financial bid envelope may have opened-up possibly because the glue may have come un-stuck. He further submits that there is no dispute that the financial bid and the technical bid were both submitted in a bigger envelope, which was duly sealed and taped; and thus, there was substantial compliance with tender condition No. (A)(8)(i) & (ii) and complete compliance with tender condition No.(A)(9). He submits that respondents are wrongly placing reliance on tender condition No. (A)(18) as also tender condition No. (C)(8), which we reproduce below :
“(A) (18) Disqualification of bids: The bid is liable to be disqualified if (1) Not submitted in accordance with the prescribed forms. (2) During the validity period, or its extended period, if any, the Bidder increases his quoted prices. (3) The Bidder qualifies the bid with his own conditions (4) Bid received after due date and time. (5) Bid not accompanied by all requisite forms and supporting documents. (6) Information submitted in Technical bid is found to be misrepresented, incorrect or false accidentally, unwittingly or otherwise, at any time during the processing of the contract (no matter at what stage) or during the tenure of the contract including the extension period, if any (7) Awardees of the contract qualify the letter of acceptance of the contract with his conditions. (8) Bidders may specifically note that while processing the tender documents, if it comes to our knowledge expressly or implied, that some Bidders may have colluded in any manner whatsoever or otherwise joined to form a cartel resulting in delay/ holding up the processing of tender, then the Bidders so involved are liable to be disqualified for this contract as well as for a further period of two years. (9) No Bidder will be allowed to withdraw after submission of the bids otherwise the EMD submitted by the bidder would stand forfeited. (10) In case of successful bidder declines the offer of contract, for whatsoever reason(s) the EMD submitted by the successful bidder would stand forfeited.”
“C. PRE-BID MEETING AND OPENING OF BIDS
8. If any of the conditions of Tendering are not fulfilled, such Tender/Tenders will be summarily rejected outright and objections raised in this regards will neither be entertained. DAIC reserves the right to choose, accept or reject any or all requests/offer, in full or part at any stage, reduce or increase the quantity/rate of items without assigning any reasons therefore.”
9. Learned Counsel for petitioner submits that inspite of substantial compliance with the tender conditions, respondent No.1 has acted in an arbitrary manner at the behest and instance of other bidders present at the bid-opening meeting. The arbitrary action of respondent No.1 is evident from the rejection letter addressed to the petitioner which was received only in the month of April 2019, after contempt proceedings were initiated by the petitioner against respondent No.1 for non-compliance with order dated 11.03.2019 passed in W.P. (C) 2411/2019, whereby the Court had directed respondent No.1 to inform the petitioner in writing of the reasons for rejection of its bid.
10. Learned Counsel for petitioner further submits, that even assuming, without admitting, that the envelope containing the financial bid remained unsealed, it would not constitute breach of any ‘essential condition’ of the tender document, which could deprive the petitioner of a fair opportunity of being considered for the contract. Insofar as Rule 163 of the General Financial Rules, 2017 relied upon by the respondents, the petitioner submits that firstly, as per a plain reading of the terms of the Rule, this Rule applies only to tenders for purchase of high value plant, machinery etc. of a complex and technical nature and not to a tender for services as in the present case. Secondly, the petitioner argues that while Rule 163 stipulates the separate sealing of the technical bid as well as the financial bid, with both bids then being put in a bigger cover which is also to be sealed, the Rule then also contemplates separate opening of the technical bid and the financial bid. It is pointed-out that in the present case, the two bids were in any case not opened separately but on the same date, at the same time, at the same venue and in the presence of all the bidders. Accordingly, it is submitted that Rule 163 was not applied to the bidding process even by the respondents.
11. Counsel for petitioner has also relied upon a judgment passed by a Division Bench of this Court in the case of ABC Beverages Private Limited v. Indian Railway Catering & Tourism Corporation (IRCTC) Ltd. and Others, W.P. (C) 2785/2017 decided on 28.7.2017, more particularly paras 2, 12 and 16, which we reproduce below:
“2. IRCTC had originally floated the NIT on 6.10.2016, and thereafter revised it on 21.12.2016. The Petitioner submitted its technical and financial bids on 9.1.2017 in accordance with the procedure prescribed in the revised NIT. In accordance with Clause 3.4 of therevised NIT, the technical bids contained in Envelope No. 1 were opened on 11.1.2017 by IRCTC. No deficiency in the bids was pointed out to the petitioner at that time. On the contrary, minor deficiencies in the bids of some other bidders, for instance, non-submission of certain documents in the bid of Ion Exchange (India) Limited, were pointed out by IRCTC. Thereafter, on 7.3.2017, it came to the petitioner’s knowledge, from IRCTC that its technical bid was rejected on the ground that a notarial stamp was not affixed on certain Tender documents i.e. APPENDIX-II, III & IV, (though those documents were duly attested and notarized), as was required by sub-clauses (b) to (d) of Clause 2.12.1 (i) of the revised NIT.
12. In the present case, it is evidently a situation where the technical bid of the Petitioner was rejected by the IRCTC on technical grounds; the rejection was meted out in an arbitrary and discriminatory manner, since Surya, the second respondent was made aware of similar discrepancies for their correction, after the submission of bids. The distinction sought to be made between the filings in the petitioner’s documents and those of Surya, in the opinion of the Court, is artificial. In the petitioner’s case, at least, the public notary had attested the relevant documents in the Annexures-II, III and IV. Only the notary’s stamp was missing. That per se did not undermine the effectiveness of the documents. Possibly, in a Court of law, the inadequacy of stamp would have resulted in impounding of the instrument leading to payment of penalty and the requisite stamp amount. However, that view would have arisen, only in the event of a dispute pertaining to the contents or dispute impinging upon something where the documents occupied a center stage. In other words, the documents were not in issue; a notary public attested them. Likewise, in the case of Surya, the second respondent, the requisite documents were not on the record. However, the tender committee observed that such documents were merely ancillary given that the registration number of the company was disclosed.
16. For the above reasons, the Court is of the opinion that the rejection of the petitioner’s bid in the circumstances was unjustified. The award of the tender pursuant to the NIT in question to the second respondent is hereby quashed. However this would not result in the undoing of the entire tender process itself. The jurisprudence, which has evolved over the last two decades, in respect of commercial contracts, is that there ought to be minimal interference with the State or agency’s decisions. In case of illegality, procedural irregularity mala fides or manifest arbitrariness, the Courts’ exercise of jurisdiction under Article 226 of the Constitution is warranted (Tata Cellular v. Union of India, 1994 (SLT SOFT) 425=1994 (6) SCC 651; Union of India v. Dinesh Engineering Corpn., VI (2001) SLT 704=IV (2001) CLT 91 (SC)=(2001) 8 SCC 491; Michigan Rubber (India) Limited v. State of Karnataka & Ors., IV (2012) BC 177 (SC)=VI (2012) SLT 116=(2012) 8 SCC 216; Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. & Anr., VI (2016) SLT 586=IV (2016) BC 485 (SC)=2016 (16) SCC 818; JSW Infrastructure v. Kakinada Seaports, IV (2017) SLT 579=2017(4) SCC 740 etc.) In the present case, the interpretation which ousted the petitioner’s tender bid was both arbitrary and discriminatory. Yet, the rule of minimal interference has to be followed. Rather than setting aside the entire tender process, the appropriate course would be to correct the decision-making and direct the first respondent to open the financial bid of the petitioner. In case the procedure results in a fresh evaluation vis--vis the successful bidder, i.e., the second respondent, i.e., Surya, IRCON shall proceed to evaluate the two bids (i.e., the petitioners’ and that of Surya) afresh and finally decide whom to award the contract, in accordance with the NIT and the law. This process shall be completed within 3 weeks.”
12. Counsel for petitioner prays that in the circumstances, no essential term or condition of the tender has been breached and, even assuming the technical bid was submitted un-sealed, that was only non-compliance with an ancillary condition. Therefore, it is urged that the financial bid of the petitioner be opened and the petitioner be considered for empanelment, pointing-out that in case such a relief is granted to the petitioner, it would have no adverse effect on the respondents nor would the tender process be unsettled.
13. Mr. Shukla, Counsel for respondent No.1, on the other hand submits that there is no infirmity or illegality in the decision rendered by respondent No.1. Respondent No.1 has scrupulously applied the tender conditions. He submits that the tender condition makes it crystal clear that the three envelopes were to be individually sealed; which condition has admittedly been violated.
14. Learned Counsel for respondent No.2 has placed reliance on a judgment rendered by Gujarat High Court in the case of Payal S. Padhiar v. General Manager, Telecom, Palanpur and Another, Special Civil Application No. 936/2000 decided on 21.2.2000 in which case, while dealing with a challenge to whether a tender submitted was to be treated as 'sealed' by 'applying gum and staple pins', a learned Single Judge of the Gujarat High Court, referring to the definition of the word ‘seal’ as appearing in the Concise Oxford Dictionary, has held that the word ‘seal’ particularly in context of invitation of sealed tender cannot be loosely understood. 'Seal' would mean a piece of wax, lead, paper etc. with a stamp design, attached to a document as a guarantee of authenticity and also a similar material attached to a receptacle, envelope, etc., affording security, by having to be broken to allow access to the contents. It has accordingly been held that a sealed tender would obviously therefore mean that the tender is placed in an envelope or package or other receptacle, which is attached with a piece of wax etc., affording security, so that it cannot be easily opened without tampering with the material so attached. It has been further observed that an envelope which is closed by applying gum, can always be ‘steam-opened’ and cannot be said to be ‘sealed’ in the context of the expression "sealed tender" used while inviting offers. In this view of the matter, the learned Single Judge of the Gujarat High Court has held that there was no substance in the contention raised by the petitioner in that case that the Tender Committee had acted arbitrarily in refusing to open the tender on the ground that it was not duly sealed.
15. With due deference to the view taken by the learned Single Judge in the afore-cited matter, we are unable to persuade ourselves to agree with the view, for the reasons as detailed later in this judgment.
16. Counsel for respondent No.2 also submits that prejudice would be caused to the rights of the successful tenderers, who, after having been declared successful, have created infrastructure and have made large investments to service their obligations under contract. If the petitioner is empaneled at this stage, that infrastructure would go waste as there would be further fragmentation of business/orders that are likely to be placed for catering services at respondent No.1 center.
17. Counsel for respondent No.3 has relied upon a judgment rendered by this Court in the case of The Delhi Motor Truck Owners Union v. East Delhi Municipal Corporation and Others, in W.P. (C) 10849/2019 decided on 22.10.2019 in support of his submission that the scope of judicial review in tender matters is narrow. Reliance is placed on paras 9, 10 and 11, which read as under:
“9. It has repeatedly been held by the Apex Court that while exercising powers of judicial review, the Court should be slow to interfere with a decision, unless the decision is arbitrary or irrational.
“10. In the case of Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited and Another, VI (2016) SLT 586=IV (2016) BC 485 (SC)=(2016) 16 SCC 818, the Supreme Court in paras 11, 15, and 16 has held as under:
11. Recently, in Central Coalfields Ltd. v. SLLSML (Joint Venture Consortium), VII (2016) SLT 647=(2016) 8 SCC 622 : (2016) 4 SCC (Civ) 106 : (2016) 8 Scale 99] it was held by this Court, relying on a host of decisions that the decision-making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision-making process is mala fide or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us.
xxx xxx xxx
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. 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.
16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court.
“11. It would also be useful to refer to the decision in Central Coalfields Limited and Another v. SLL-SML (Joint Venture Consortium) and Others, (2016) 8 SCC 622, referred to in Afcons Infrastructure Limited (supra), paragraph 43 of which is reproduced hereunder:
43. Continuing in the vein of accepting the inherent authority of an employer to deviate from the terms and conditions of an NIT, and reintroducing the privilege-of-participation principle and the level playing field concept, this Court laid emphasis on the decision-making process, particularly in respect of a commercial contract. One of the more significant cases on the subject is the three-Judge decision in Tata Cellular v. Union of India, (1994) 6 SCC 651] which gave importance to the lawfulness of a decision and not its soundness. If an administrative decision, such as a deviation in the terms of NIT is not arbitrary, irrational, unreasonable, mala fide or biased, the Courts will not judicially review the decision taken. Similarly, the Courts will not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation. This was quite clearly stated by this Court (following Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651] ) in Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] in the following words: (SCC p. 531, para 22)
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. 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.”
This Court then laid down the questions that ought to be asked in such a situation. It was said: (Jagdish Mandal case [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] , SCC p. 531, para 22)
22. … Therefore, a Court before interfering in tender or contractual matters in exercise of power of judicial 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;
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”;
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226.”
18. Counsel for respondent No.3 has also placed reliance on Silppi Construction Contractors v. Union of India and Others, IV (2019) BC 561 (SC)=IX (2019) SLT 391=2019 SCC OnLine SC 1133, in support of his contention that the Courts must be restrained and cautious while exercising their powers of judicial review in contractual matters. Para 19 reads as under:
“19. This Court being the guardian of fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that Courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior Courts but this discretionary power must be exercised with a great deal of restraint and caution. The Courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the Courts should be even more reluctant because most of us in judges’ robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the Courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the Courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.”
19. Counsel for respondent No.4 has adopted the arguments raised by Mr. Bindra, Counsel appearing for respondent No.3, as also Mr. Shukla, Counsel appearing for respondent No.1, besides strongly opposing this writ petition on the ground of delay.
20. We have heard learned Counsels for the parties and have considered their rival contentions. There is no quarrel with the legal propositions sought to be relied upon by Counsels appearing for the respondents with regard to the scope of judicial review in commercial matters, more particularly in matters relating to tenders.
21. The law with regard to deciding the matters pertaining to tenders is clear. In the case of Tata Cellular v. Union of India, 1994 (SLT SOFT) 425=(1994) 6 SCC 651, it was held that the Courts are concerned only with the decisionmaking process and not with the decision itself.
22. Further in the case of Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited, IV (2016) BC 485 (SC)=VI (2016) SLT 586=(2016) 16 SCC 818, more particularly, in the following paragraphs, it has been held as under:
“13. In other words, a mere disagreement with the decisionmaking 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.
“14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India, 1979 (SLT SOFT) 338=(1979) 3 SCC 489] was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous — they must be given meaning and their necessary significance. In this context, the use of the word “metro” in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked.
“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. 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.
“16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by Nmrcl to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by Nmrcl was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court.”
23. In the present case, it is common ground that in compliance with the tender conditions, the petitioner had submitted its technical and financial bid in a bigger envelope. Admittedly, the bigger envelope was sealed and so was the envelope containing the technical bid. The controversy involved is that the financial bid was found in an un-sealed condition at the bid-opening meeting. While it is the case of the petitioner that the envelope was sealed with glue, which may have opened-up, it is the contention of respondent No.1 that the envelope containing the financial bid was not sealed. During the course of hearing, none of the respondents have been able to give a plausible reply as to whether any prejudice has been caused to them by reason of the financial bid being found in an un-sealed state, whatever be the reason for that. In light of the fact that both the technical and financial bids were enclosed in a bigger envelope, which bigger envelope was admittedly sealed, except to say that the financial bid being found in an open condition was a violation of tender condition No.8 (ii), no palpable prejudice has been cited by any of the respondents. Counsels for the respondents however strongly urge that all conditions of the tender are to be strictly followed; and it is not for the Court to examine the relevancy or importance of any tender condition. On the question of delay, the respondents have contended that the petitioner has slept over his rights, being fully aware that his tender has been rejected in the month of November, 2018; and does not therefore deserve the indulgence of this Court.
24. As far as the question of delay is concerned, we are satisfied with the explanation of the petitioner that after rejection of his bid, he was not served any written communication in that regard. Resultantly, he addressed a representation to respondent No.1 on 12.2.2019, which also remained unanswered. Accordingly, the petitioner filed a writ petition bearing W.P. (C) 2411/2019, which was decided by order dated 11.3.2019. Paras 4 and 5 of order dated 11.3.2019 read as under:
“4. Mr Shukla, learned Counsel appearing for the respondents states that the reasons regarding nonconsidering the petitioner's bid had been intimated to him, nonetheless, the same would be formally intimated to him in writing within a period of one week from today.
5. In view of the above, no further orders are required to be passed. Needless to state that if the petitioner is aggrieved by the said decision, it is not precluded from availing the remedies as available in law.”
25. Counsel for the petitioner has also submitted that in fact thereafter, he was compelled to file a contempt case bearing CONT. CAS (C) 309/2019 to get respondent No.1 to furnish the reasons for rejection in writing, which was disposed of vide order dated 9.4.2019, which order reads as under:
Issue notice. Mr. Bhagwan Swarup Shukla, the learned Standing Counsel for the Union of India accepts notice. He submits upon instructions that on 11.3.2019 the respondent was duly communicated about the order and the latter had promptly intimated the petitioner about the reason why his bid was not considered. Mr. Shukla has shown to the Court both the e-mail communications. The same are taken on record. He seeks time to file a compliance report within two weeks, Mr. Shukla assures that a proper communication on the letterhead of the respondent organization shall be conveyed to the petitioner by the 16th of this month.
The petition is disposed off in the above terms with liberty to the petitioner to approach the Court in case of any difficulty.
A copy of this order be given dasti to the parties, under the signature of the Court Master.”
26. Having regard to the fact that a representation was made to respondent No.1, as also a contempt petition had to be filed, it is evident that the petitioner was eager to safeguard his rights and was continuously making efforts to get a copy of the rejection letter, which was supplied to him only in the month of April, 2019; and thereafter he filed the present writ petition, which was listed in the month of May, 2019. Accordingly, the objection with regard to delay and latches is without any force and is rejected.
27. Insofar as the adherence to the tender conditions is concerned, in the case of Lakhvinder Singh v. East Delhi Municipal Corporation & Another, W.P. (C) 1251/2019 decided on 28.11.2019, this Court has highlighted and drawn a distinction between the essential conditions of a tender document and ancillary conditions. Reading of Clause 8 of the tender document as a whole shows that the bids were to be submitted in a sealed envelope. However, this condition is to be considered in light of the fact that the bigger envelope containing the two-bid envelopes was in fact duly sealed. Additionally, none of the respondents have been able to show that any prejudice was caused to them on account of the financial bid envelop
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e remaining unsealed, whether inadvertently or on account of poor quality of glue or for any other reason; nor have the respondents been able to show that the integrity of the tendering process was vitiated by reason of the petitioner’s financial bid being found in open condition in the smaller envelope, which was inside the sealed bigger envelope. 28. It may also be relevant to notice that the entire bid opening process happened simultaneously, in a closed room, in full view of all bidders/their representatives; and there was accordingly no scope for any manipulation or tampering with the bids of any of the bidders. Even stretching imagination, if the petitioner’s financial bid was found in an open condition, the only person which could possibly have been prejudiced, would be the petitioner; who is however, not complaining. 29. For the sake of completeness, we must also deal with the case of Payal S. Padhiar (supra) referred by Counsel for respondent No. 2, only to say that the issue of whether or not a bid is submitted in 'sealed' condition must be assessed from a practical and pragmatic view-point. The day and age of applying wax, lead or other similar material with a stamp design or any such similar device is long gone. In our view, the issue of whether a bid was 'sealed' must only be seen from the perspective of whether the contents of the bid were in any manner ‘leaked’ or made available to a competitor in a manner as to prejudice the bidder; or in a manner as would vitiate the integrity of the tendering process. No pedantic or formulaic construction is to be given to the requirement of ‘sealing’ of a bid. 30. In the present case, as discussed above, all bids were opened in a room at the same time; the petitioner's financial bid was in any case contained in a smaller envelope, which though found in an unsealed condition by itself, was placed in a bigger envelope which was properly sealed ; and accordingly no possibility of any leakage of its contents or prejudice to any party was possibly caused. 31. In these circumstances, we do not think that the view taken by the learned Single Judge of the Gujarat High Court in any way helps respondent No. 2. 32. In the process what has really transpired is that respondent Nos. 2, 3 & 4 have come to be empaneled as a consequence of the tendering process and have had the advantage of lead-time of about one year as empaneled caterers for respondent No.1 center. However, this Court does not propose to, and indeed cannot, turn the clock back by giving the petitioner any benefit for the one year already gone-by. This Court is however of the view that the petitioner’s financial bid being found in an open condition is not a matter of any consequence or moment in so far as the tendering process is concerned. Without having to delve any further into the possible causes thereof, in our view, interests of justice will be served if at this stage it is directed that the petitioner’s technical and financial bid be also considered by respondent No.1; and if the petitioner is found to be otherwise successful, the petitioner be also be empaneled as one of the caterers for respondent No.1 center for the balance of the tender/contract period, without allowing any claim of any nature whatsoever with regard to the period which has already lapsed. 33. In the circumstances, it is directed that the petitioner’s technical and financial bid be opened; and if found successful, the petitioner be empaneled for the balance tender/contract period, without any claims for the past period. 34. Accordingly, the present writ petition is allowed in the above terms. These directions be complied with within six weeks from today. Writ Petition allowed.