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PETITIONER: G.J. FERNANDEZ

       Vs.

RESPONDENT: STATE OF KARNATAKA & ORS.

DATE OF JUDGMENT01/02/1990

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. SAIKIA, K.N. (J)

CITATION:  1990 AIR  958            1990 SCR  (1) 229  1990 SCC  (2) 488        JT 1990 (1)   134  1990 SCALE  (1)117  CITATOR INFO :  RF         1991 SC1579  (6)

ACT:     Constitution of India 1950: Articles 226 and  136--Award of  contract by Karnataka Power Corporation to  Mysore  Con- struction Co.-Validity of--Eligibility of party to apply for State  contracts--Supply of  tender  documents--Essentiality of--Comparative merits of parties-Not for Court to decide.

HEADNOTE:     The  petitioner aggrieved by the award of a contract  by the  respondent  in favour of  Mysore  Construction  Company (M.C.C.) filed a Writ Petition and a further Writ Appeal  in the  Karnataka High Court. Being unsuccessful there he  came up in appeal before this Court by way of special leave.     The  single judge of the High Court had taken  the  view that  prerequisites  for  the supply of  tender  forms  were contained  in  Para I of the  Notification  Inviting  Tender (NIT) and the details called for in Para V could be supplied any  time. The Division Bench on appeal did not express  any opinion regarding the requirements set out in para V but was of the view that there was nothing unfair or arbitrary about the award of the contract to the MCC. In appeal before  this Court the plea of the petitioner is that the Karnataka Power Corporation  should not have accepted the tender of MCC,  as the  MCC  did not fulfil  certain  preliminary  requirements contained in Para I and V of the NIT which according to  him have  to  be fulfilled before the forms of tender  could  be supplied to any intending contractor. Dismissing the appeal of the petitioner, the Court,     HELD: Para V cannot but be read with para I. The  supply of some of the documents referred to in para V is indispens- able to assess whether the applicant fulfills the  prequali- fying requirements set out in para I. It will be too extreme to  hold  that  the omission to supply  every  small  detail referred  to  in para V would affect the  eligibility  under para I and disqualify the tenderer. [240E-F] 230     If  a party has been consistently and bona  fide  inter- preting  the  standards  prescribed by it  in  a  particular manner,  this  Court should not interfere though it  may  be

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inclined  to  read or construe the  conditions  differently. [241E]     Assuming for purposes of argument that there has been  a slight  deviation  from  the terms of the NIT,  it  has  not deprived the appellant of its right to be considered for the contract. On the other hand its tender has received due  and full consideration. If, save for the delay in filing one  of the relevant documents, MCC is also found to be qualified to tender  for the contract. no injustice can be said  to  have been  done  to  the appellant by the  consideration  of  its tender  side  by side with that of the MCC and  in  the  KPC going in for a choice of the better on the merits. [242E-G]     The  comparative merits of the appellant  ViS-a-vis  MCC are, however, a matter for the KPC to decide and not for the Courts.[243C-D]

JUDGMENT:     Ram  Gajadher Nishad v. State of U.P.,  (C.A.  1819/89); Ramana Dayaram Sherry v. The International Airport Authority of India & Ors., [1979] (3) SCR 1014, referred to.     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1027  of 1990.     From  the  Judgment and Order dated  27.10.1989  of  the Karnataka High Court in Writ Appeal No. 2017 of 1989.     K.  Parasaran, C.S. Vaidyanatha, S.R. Bhat, S.R.  Setia, K.V. Mohan and Mrs. Sunitha B. Singh for the Petitioner.     K.N. Bhatt, Rajinder Sachhar, Vineet Kumar, B. Mohan and K.G. Raghvan for the Respondents. The Judgment of the Court was delivered by     RANGANATHAN, J. The petitioner is aggrieved by the award of  a  contract  by the  Karnataka  Power  Corporation  Ltd. (K.P.C.),  an instrumentality of the State of Karnataka,  in favour  of  the Mysore Construction Co. (M.C.C.).  His  writ petition  and  a further writ appeal in the  Karnataka  High Court  having been unsuccessful, he has preferred this  Spe- cial  Leave Petition from the judgment of the High Court  in the  writ  appeal. We have heard counsel for both  sides  at length. We 231 grant Special leave and proceed to dispose of the appeal.     Though,  at  an earlier stage of the  proceedings  there were  some allegations of favoritism, the plea of the  peti- tioner, as urged before us, is that the K.P.C. should not at all have entertained the tender of M.C.C. as the M.C.C.  did not  fulfill certain preliminary requirements  which,  under the  Notification Inviting Tenders (N.I.T.), had to be  ful- filled even before the forms of tender could be supplied  to any intending contractor.     The  contract  pertained to the construction of  a  Main Station  Building  of a Power House at the  Raichur  Thermal Power  Plant at an estimated cost of about Rs.  1.8  crores. The N.I.T. dated 27.12.1988 invited tenders from  registered contractors of appropriate class. Paragraph I of the notifi- cation listed three "Minimum qualifying requirements"  viz., that the intending tenderer: (1)  should  have  executed civil  and  architectural  works including  insulation in a power  plant/industrial  complex, preferably in power plant; (2) should have executed atleast 1000 cubic metres per month of  concrete pouring and atleast 300 cubic metres per  month of brick work at one site; and (3)  should have had an annual turnover of atleast  1  crore for each of the preceding three years.

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Para  V-  required the intending tenderers  to  furnish  the following information "along with the application for  issue of blank tender books", namely: (a)  Audited  Balance Sheet/Certificate from  Chartered  Ac- countant for preceding three years; (b) Latest income-tax clearance Certificate; (c) Copy of the Registration Certificate (d)  Annual output of the works of all the above  nature  at any site accompanied by a certificate from the  organisation for  whom the tenderer had carried out the works  furnishing details  such as rate of pouring of concrete.  manufacturing of hollow concrete 232 block,  precast concrete block,  .....  etc., and period  of completion scheduled/envisaged, equipments and their deploy- ment i.e., man months etc. The N.I.T. specified January 17, 1989, as the last date  for receipt  application forms for issue of blank tender  books. The  issue  of  blank tender books was to  be  between  23rd January to 27th January, 1989 and the completed tender books had  to  be submitted by 3.00 p.m. on 6.2.89. It  is  common ground,  however,  that  subsequently this  time  frame  was altered.  The last date for receipt of application form  for issue  of blank tender books remained as 17th January,  1989 but the other items were altered to read as follows:       "1.  Last date for receipt of      10.2.89            clarification:        2. Period to issue blank tender    10.2.89 to           books                           16.2.89        3. Last date and time for receipt  27.2.89           completed tender books:         upto 3.00 P.M.     It  appears that six parties applied for  tender  books. These were scrutinized with reference to the  pre-qualifying requirements  and  data  on experience, work  done  etc.  as furnished by each of the applicants. Four of the firms  were found  to be pre-qualified by the Chief Engineer and  tender books  were  issued to them. Only three  of  them,  however, submitted completed tender books by February 27, 1989. These tenders  were examined by the Chief Engineer as well  as  an independent  firm of Engineering Consultants,  namely,  Tata Consulting  Engineers (T.C.E.). Both the Chief  Engineer  as well  as  T.C.E.  recommended acceptance of  the  tender  of M.C.C.  (which  was the lowest tender) in view of  the  fact that  M.C.C. had adequate experience in the construction  of R.C.C.  works and they were capable of mobilising the  work- force required for the work. It may be mentioned that  after making necessary adjustments it was found that the tender of M.C.C.  was Rs. 15 lakhs less than the tender of  the  peti- tioner.     The  principal argument advanced on behalf of the  peti- tioner  is that paragraphs I and V of the  N.I.T.  specified certain  pre-qualifying requirements. Unless these  require- ments  were fulfilled, the contractor was not even  entitled to be supplied with a set of tender documents. It is submit- ted that M.C.C. did not comply with these requirements and 233 hence  its  application for tender forms  should  have  been rejected at the outset.     The learned single Judge in the High Court went into the matter  in great detail and came to the conclusion that  the petitioner’s contentions were not well founded. He took  the view that the pre-requisites for supply of tender forms were only  the three conditions set out in para I of  the  N.I.T. and that the details called for in para V could be  supplied at  any time. He, therefore, rejected the petitioner’s  con-

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tention  that  the  extensions of time given  to  M.C.C.  to submit  the  tender with requisite clarifications  were  not warranted.  The Division Bench, on appeal, did  not  express any  clear opinion as to the nature of the requirements  set out  in Para V but was satisfied, on an overall  view,  that there was nothing unfair or arbitrary about the award of the contract tO the M.C.C. It observed:          "We have carefully considered these contentions. We are  of  the view that while exercising  jurisdiction  under Article  226 of the Constitution, it is not for us to  reap- praise  the  facts on merits and come to one  conclusion  or other with regard to these aspects of the matter. Why we are obliged  to say this is if the Court is satisfied  there  is nothing arbitrary or unfair in the award of the contract, it cannot  convert itself into a super technical Committee  and find  out  whether the requirements have been  fulfilled  or not. While saying so, we are conscious of the fact that what is argued before the learned single Judge is with  reference to  prequalifications  or in other  words  the  eligibility. Nevertheless  where the person who is incharge of  award  of contract  was satisfied about the eligibility and  that  too after consultancy through an independent agency like Tata’s, we  cannot  come  to a contrary conclusion and  then  say  a particular  certificate does not in terms meet the  require- ment  laid  down under clause V(d). That we consider  is  no function  of  the Court. After all the object of  tender  in most matters like this is to satisfy the authority that  the person who undertakes to execute the work or the person  who offers  the tender would be really worth and then  he  would perform to the best of his ability and to the requirement of the  person who wants to have the contract. If  these  basic principles  are kept in mind, we do not think we can  intro- duce  nuances  of law to enter into the  realm  of  contract which we consider should be kept out of the purview of writ 234 jurisdiction. From this point of view, we are unable to find out  any  justification to interfere with the order  of  the learned single Judge."     The first question that falls to be considered is as  to whether there is any difference between the requirements  in paras  I and V and whether only para I and not para  V--sets out the pre-conditions of eligibility to submit a tender for the contract. In our opinion, it is difficult to accept  the view  of the learned single Judge of the High Court that  it is  only para I that stipulates the pre-conditions and  that all  the  documents referred to in the other  paras  can  be supplied at any time before the final award of the contract. It  is seen that paras I to XIII set out various  terms  and conditions some of which relate to the pre-tender stage  and some to later stage. For instance, paras X and XI come  into operation  only after the tenders are received and para  XII makes  it  clear that the K.P.C.’s  decision  regarding  the fulfilment of para IV may remain open right till the  actual award of the contract. However, on the contrary, the  condi- tion  set  out in para VI has clearly to be  fulfilled  even before asking for tender forms. Para V seems to stand  some- where  in between. If one reads paras I and V  together,  it will be seen that a common thread runs through them and that they  are  really meant to supplement each other. It  is  in order  to satisfy itself that the requirements of para  I(1) and (2) are fulfilled that the K.P.C. calls for the certifi- cates mentioned in para V and the fulfilment of the require- ment in para I(3) has obviously to be verified by  reference to the audited balance sheets called for under clause (a) of para V. The reference in clause (d) of para V to the "annual

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output of the works of the above nature" is also obviously a reference to the works of the nature described in para I. It is  clear that at least some, if not all, of  the  documents referred to in para V, are intended to verify the fulfilment of  the  three  prequalifying requirements of  para  I.  The stipulation of the time element within which the information asked  for  in  para V should be supplied is  also  of  some significance; it specifically requires the information to be supplied  along  with the application for tender  forms.  As pointed out by this Court in its judgment dated 3.3.1989  in Ram  Gajadher  Nishad  v. State of U.P.,  C.A.  1819/89,  an intending tenderer can be perhaps letigimately excluded from consideration  for a contract, if the certificates  such  as the  ones under clauses (b) and (c) of para V are  not  fur- nished. It may not, therefore, be correct to read para I  in isolation  and treat it as the only condition precedent  for the  supply  of  forms of tender. The  more  harmonious  and practical  way of construing the N.I.T. is by  saying  that, before  the tender books can be supplied, an intending  ten- derer  should  satisfy the K.P.C, by supplying such  of  the documents called for in para V as are material in  assessing the fulfilment of the condition in para I, that he  fulfills the three 235 conditions  set  out in para I. It seems clear to  us  that, apart from para I, there are some other requirements in  the N.I.T.  which have to be complied with before the  applicant can  be eligible for supply of tender forms. These  include, if not all, at least such of those documents referred to  in para  V(d) as have a direct bearing on the three  conditions outlined in para I.     Bearing  this approach in mind, let us examine  to  what extent,  according to the appellants, the M.C.C.  failed  to fulfil the N.I.T. requirements:     So far as para I is concerned, two defects were  pointed out. The first was that, as against the requirement that the applicant  "should  have executed   .....   works  including insulation",  the certificate of 25.1.1989 produced  by  the M.C.C.  was only to the effect that it "is  constructing"  a building in Hyderabad for the National Geophysical  Research Institute "in which they have done wall insulation and  roof insulation  for airconditioning work". The second was  that, as against the second requirement of para I that the  appli- cant  should  have executed "at least 300 cubic  metres  per month of brick work at one site, the certificate from  Vasa- vadatta Cements produced by the M.C.C. on 1.2.89 only stated that  it  had  "constructed over 300 cubic  meter  of  brick masonry for the packing plant and D.G. building totaling  to 327.29  cubic  metre during the month of June  1985".  These certificates,  it  is submitted, do not come up to  the  re- quirements of Para I. We think that this criticism, based on the differences in wording as between the language of para I and the certificates produced by the M.C.C., is too weak  to be  accepted. It was for the K.P.C. to consider  the  suffi- ciency  of these certificates. The conditions only  required that the applicant should supply information to show that he had  experienced in insulation work and that he could  carry out  brick work in a month to the extent indicated.  It  was for  the  K.P.C.  to assess the value  of  the  certificates furnished  in this regard and if the K.P.C. considered  them sufficient  to  warrant the issue of a tender  form  to  the applicant,  we do not think we should interfere  with  their decision.     So far as para V is concerned, the criticism is that two items  of information concerning the requirements of  clause

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(d)  of Para V were not supplied along with the request  for application of tender forms.but were supplied much later. It was only on 21.6.89 that M.C.C. furnished a certificate that they had executed "hollow cement blocks work" for the Indian Telephone Industries Ltd. but even that certificate gave  no details. It vaguely stated that "the item had been  executed as  per  our  bill of quantities". Again,  it  was  only  on 18.8.89  that M.C.C. produced a certificate from  Vasvadatta Cements  regarding the work of concreting done by it. It  is pointed out incidentally that 236 this  is also a part of the specific requirements in para  I and,  as such, the VI.C.C. cannot be said to have  satisfied the  preliminary conditions Tendering it eligible to  tender for the contract. The second of these does not really  cause much  difficulty. For, even as early as 11.1.89  along  with its application for tender dated 3.1.89  M.C.C. had produced a certificate from the K.P.C. itself that it had done 35,000 cubic  metres  of concreting during 7 months  and  this  was apparently considered sufficient for the K.P.C. subsequently called  for  a certificate only regarding brick  work.  This leaves  only  the first of the criticisms that  the  details regarding  hollow cement block works done by the M.C.C.  was furnished only on 21.5.89.     Should the M.C.C. have been denied altogether the  right to  Tender for the contract consequent on the delay in  sub- mitting this document is the second question that arises for consideration.  Sri Parasaran, for the appellant would  have us answer this question in the affirmative on the  principle enunciated by Frankfurter, J. and approved by this Court  in Raman Daygram Sherry v. The International Airport  Authority of India & Ors., [1979] 3 S.C.R. 1014. Bhagwati, J. (as  his Lordship  then  was)  formulated in the  following  words  a principle  which has since been applied by this Court  in  a number of cases: "It  is  a well settled rule of administrative law  that  an executive authority must be rigorously held to the standards by  which it professes its actions to be judged and it  must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated  by Mr.  Justice  Frankfurter in Viteralli v.  Seton,  359  U.S. 535:3 Law. Ed. (Second series) 1012, where the learned Judge said:          An executive agency must be rigorously held to  the standards  by  which it professes its action to  be  judged. Accordingly,  if  dismissal from employment is  based  on  a defined procedure, even though generous beyond the  require- ments that bind such agency, that procedure must be  scrupu- lously observed. This judicially evolved rule of administra- tive law is now add, rightly so. He that takes the procedur- al sword shall perish with the sword." "This  Court  accepted the rule as valid and  applicable  in India  in A.S. Ahluwalia v. Punjab, [1975] 3 SCR 82  and  in subsequent decision given in Sukhdev v. Bhagatram, [1975]  3 SCR 619. Mathew, J., quoted the above-referred  observations of  Mr. Justice Frankfurter with approval. It may  be  noted that this rule, though supportable also as emanation 237 from Article 14, does not rest merely on mat article. It has an independent existence apart from Article 14. It is a rule of administrative law which has been judicially evolved as a check  against exercise of arbitrary power by the  executive authority. If we turn to the judgment of Mr. Justice  Frank- furter  and  examine it, we find that he has not  sought  to draw  support for the rule from the equality clause  of  the

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United States Constitution, but evolved it purely as a  rule of administrative law. Even in England, the recent trend  in administrative  law is in that direction as is evident  from what  is stated at pages 540-41 in Prof. Wade’s  Administra- tive  Law  4th  edition. There is no reason  why  we  should hesitate  to  adopt this rule as a part of  our  continually expanding administrative law. XXX                      XXX                            XXX It  is,  therefore, obvious that both having regard  to  the constitutional mandate of Article 14 as also the  judicially evolved  rule of administrative law, the 1st respondent  was not  entitled to act arbitrarily in accepting the tender  of the 4th respondents, but was bound to conform to the  stand- ard or norm laid down in paragraph I of the notice  inviting tenders  which required that only a person running a  regis- tered.  Find  II   Class hotel or restaurant and  having  at least  5  years’ experience as such should  be  eligible  to tender. It was not the contention of the appellant that this standard  or norm prescribed by the 1st respondent was  dis- criminatory  having  no just or reasonable relation  to  the object of inviting tenders namely, to award the contract  to a  sufficiently experienced person who would be able to  run efficiently  a find class restaurant at the airport.  Admit- tedly the standard or norm was reasonable and  non-discrimi- natory  and once such a standard or norm for running a  Find Class  restaurant should be awarded was laid down,  the  1st respondent  was not entitled to depart from it and to  award the contract to the 4th respondents who did not satisfy  the condition of eligibility prescribed by the standard or norm. If  there was no acceptable tender from a person who  satis- fied the condition of eligibility, the 1st respondent  could have  rejected the tenders and invited fresh tenders on  the basis of a less stringent standard or norm, but it could not depart from the standard or norm prescribed by it and  arbi- trarily  accept the tender of the 4th respondents. When  the 1st respondent entertained the tender of the 4th respondents even though they did not have 5 years’ expe- 238 rience  of  running a II Class restaurant or  hotel,  denied equality  of opportunity to others similarly situate in  the matter of tendering for the contract. There might have  been many other persons, in fact the appellant himself claimed to be one such person, who did not have 5 years’ experience  of running a II Class restaurant, but who were otherwise compe- tent  to  run  such a restaurant and they  might  also  have competed  with  the 4th respondents for obtaining  the  con- tract,  but they were precluded from doing so by the  condi- tion  of eligibility requiring five years’  experience.  The action of the 1st respondent in accepting the tender of  the 4th  respondents, even though they did not satisfy the  pre- scribed condition of eligibility, was clearly  discriminato- ry,  since it excluded other person similarly  situate  from tendering for the contract and it was plainly arbitrary  and without  reason.  The acceptance of the tender  of  the  4th respondents  was,  in  the circumstances  invalid  as  being violative of the equality clause of the Constitution as also of  the  rule  of administrative  law  inhibiting  arbitrary action."     Shri  Vaidyanathan, who supplemented the  arguments  for the petitioner, contended that this rule has been demonstra- bly infringed in the present case, even on the K.P.C.’s  own showing.  He  cited  two documents filed by  the  K.P.C.  to substantiate  this contention. The first is "A note  on  the tendering system in K.P.C." which, inter alia, reads: "2.00  Brief tender notification containing  description  of

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the  work, estimated cost of the work, period of  completion and   the   minimum   prequalifying/eligibility   conditions required  and other general requirements such as the  value/ fashion  of  C.M.D.  to be  furnished,  latest  certificates works,  and furnishing of audited balance sheet  etc.,  duly indicating  the dates for issuing and receipt of tenders  is widely circulated and also advertised in leading  newspapers for  the  information  of  the  intending  tenderers.  Where prequalifying  conditions are notified in the  notification, the  applications  for  the issue of  tenders  is  carefully scrutinised  with  reference to these requirements  and  the tenders  will  be issued to those who comply  with  all  the prequalifying/  eligibility  requirements.  Apart  from  the prequalifying  conditions  contained  in  the  brief  tender notification,  certain  general  requirements  as  described above will also be looked into. any deficiency in the gener- al requirements 239 will,  however, not disqualify the tenderers from  receiving the  tender  books as these conditions  could  be  satisfied prior to acceptance of the successful tender. Any clarifica- tions  required  on the  prequalifying  requirements/general requirements  will also be obtained before issue  of  tender documents from the intending tenderers. The tenders will  be issued to those tenderers who comply with the  prequalifying conditions. The second is the record of minutes showing what they  actu- ally did: "57.01  There was extended discussion on the  issue.  C.M.D. also informed that one of the tenderers had sent a represen- tation  objecting to the consideration of the tender of  M/s M.C.C.  on  the  ground  that they  had  not  fulfilled  the prequalifying  requirements.  There was a discussion  as  to whether the stipulations mentioned in the N.I.T. other  than those  stipulated under prequalifying conditions have to  be mandatorily fulfilled before the tenders were filed. It  was clarified  that  only three  prequalifying  conditions  were prescribed  in the N.I.T. and other details called for  vide para 5(c) of N.I.T., were only for information and are  such they  could be met before consideration of the  tenders.  It was clarified that while tenders which did not meet  minimum prequalifying conditions were not eligible to be  considered at  all,  any shortcoming in furnishing the details  at  the time  of  tendering would not disqualify the  tenderer  from bidding for the work, so long as the conditions could be met before  finalisation of the award. It was further  clarified that the word ’shall’ used in the N.I.T. has been the normal practice in all tenders and agreement clauses and the  deci- sion of the K.P.C. and the application other than the  mini- mum  qualifying requirement should be prerogative of  K.P.C. only. It was informed that the practice in K.P.C. so far has been to go by the minimum qualifying requirements as  stated in the N.I.T. and the rest of the information were only  for assessing the capabilities of the tenderers as well as their eligibility and simply because Mr. G.J. Fernandez has made a complaint it would not be proper to deviate from this estab- lished procedure. As per clause-11, the Corporation reserves the  fight to reject or accept the tender without  assigning any reasons. In this particular case, the lacuna in furnish- ing  the information has been set right subsequently by  the tenderer  before opening of the price documents,  the  Chief Engineer had 240 come  to the conclusion that the firm had fulfilled all  the prequalifying  requirements  and as such the tender  of  M/s

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M.C.C. had been found to be in order. It was also  clarified by GM(T) that the use of cement hollow block masonry may not be required at all and instead the brick masonry may be used as  this item of work was essentially for a filler wall  and the  walls would be non-load bearing. It was clarified  that those who were prequalified had satisfied the condition with regard to quantity of brick masonry work.          57.02  Under  the  circumstances,   the   Committee recommended  entrustment  of  work to M/s  M.C.C.  at  their quoted  rates  amounting to Rs.209.39  lakhs  together  with their  stipulation  regarding release  of  security  deposit against furnishing bank guarantee. 57.03  However, it was decided that in future it  should  be made  clear  that  only prequalifying  conditions  would  be mandatory." These  two documents, particularly the last sentence of  the second one, clearly show, Shri Vaidyanathan urged, that  the K.P.C.  had  relaxed its N.I.T. standards in favour  of  the M.C.C.     Interesting  as  this argument is, we do  not  see  much force  in it. In the first place, although, as we  have  ex- plained  above,  para V cannot but be read with para  I  and that the supply of some of the documents referred to in para V is indispensable to assess whether the applicant  fulfills the prequalifying requirements set out in para I, it will be too extreme to hold that the omission to supply every  small detail referred in para V would affect the eligibility under para I and disqualify the tenderer. The question how far the delayed  supply, or omission to supply, any one or  more  of the  details  referred  to therein will affect  any  of  the prequalifying  conditions  is a matter which it is  for  the K.P.C.  to assess. We have seen that the documents having  a direct learning on para I viz. regarding output of  concrete and brick work had been supplied in time. The delay was only in  supplying the details regarding "hollow  cement  blocks" and  to what extent this lacuna effected the  conditions  in para I was for the K.P.C. to assess. The minutes relied upon show  that, after getting a clarification from  the  General Manager  (Technical), the conclusion was reached  that  "the use  of cement hollow block masonry may not be  required  at all  and  instead the brick masonry may be used".  In  other words, the contract was unlikely to need any work in  hollow cement  blocks and so the documents in question was  consid- ered  to be of no importance in judging  the  pre-qualifying requirements. There is nothing wrong with this, 241 particularly as this document was eventually supplied.     Secondly,  whatever  may be the  interpretation  that  a court  may place on the N.I.T, the way in which  the  tender documents  issued by it has been understood and  implemented by the K.P.C. is explained in its "note", which sets out the general  procedure which the K.P.C. was following in  regard to N.I.T.s issued by it from time to time. Para 2.00 of  the "note"  makes  it clear that the K.P.C. took the  view  that para I alone incorporated the "minimum  prequalifying/eligi- bility conditions" and the data called for under para V  was in  the nature "general requirements". It further  clarifies that  while tenders will be issued only to those who  comply with  the  prequalifying conditions, any deficiency  in  the general requirements will not disqualify the applicant  from receiving  tender  documents and that data  regarding  these requirements  could be supplied later. Right or wrong,  this was  the way they had understood the  standard  stipulations and on the basis of which it had processed the  applications for contracts all along. The minutes show that they did  not

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deviate  or want to deviate from this established  procedure in regard to this contract, but, on the contrary, decided to adhere  to  it even in regard to this  contract.  They  only decided, in view of the contentions raised by the  appellant that para V should also be treated as part of the  prequali- fying conditions, that they would make it specific and clear in their future N.I.T.s that only the fulfilment of prequal- ifying  conditions would be mandatory. If a party  has  been consistently  and bona fide interpreting the standards  pre- scribed  by it in a particular manner, we do not think  this Court should interfere though it may be inclined to read  or construe  the conditions differently. We are, therefore,  of opinion that the High Court was right in declining to inter- fere.     Thirdly,  the  conditions and stipulations in  a  tender notice  like this have two types of consequences. The  first is that the party issuing the tender has the right to  punc- tiliously  and rigidly enforce them. Thus, if a  party  does not strictly comply with the requirements of paras III, V or VI  of  the N.I.T., it is open to the K.P.C. to  decline  to consider the party for the contract and if a party comes  to Court  saying that the K.P.C. should be stopped  from  doing so,  the Court will decline relief. The second  consequence, indicated.by  this Court in earlier decisions, is  not  that the  K.P.C. cannot deviate from these guidelines at  all  in any  situation but that any deviation, if made,  should  not result  in arbitrariness or discrimination. It comes in  for application  where  the non-conformity with,  or  relaxation from,  the prescribed standards results in some  substantial prejudice or injustice to any of the parties involved or  to public interest in general. For example, in this very  case, the K.P.C. made some changes in the time frame origi- 242 nally  prescribed.  These  changes  affected  all  intending applicants  alike  and were not objectionable. In  the  same way,  changes  or relaxations in other directions  would  be unobjectionable  unless  the  benefit of  those  changes  or relaxations were extended to some but denied to others.  The fact  that a document was belatedly entertained from one  of the  applicants will cause substantial prejudice to  another party who wanted, likewise, an extension of time for  filing a  similar  certificate  or document but  was  declined  the benefit. It may perhaps be said to cause prejudice also to a party which can show that it had refrained from applying for the tender documents only because it thought it would not be able  to  produce the document by the  time  stipulated  but would have applied had it known that the rule was likely  to be relaxed. But neither of these situations is present here. Sri  Vaidhyanathan says that in this case one of the  appli- cants  was excluded at the preliminary stage. But it is  not known on what grounds that application was rejected nor  has that party come to Court with any such grievance. The  ques- tion, then, is whether the course adopted by the K.P.C.  has caused any real prejudice to the appellant and other parties who  had  already  supplied all the documents  in  time  and sought no extension at all? It is true that the  relaxations of  the time schedule in the case of one party  does  affect even such a person in the sense that he would otherwise have had one competitor less. But, we are inclined to agree  with the respondent’s contention that while the rule in  Ramana’s case  (supra)  will be readily applied by Courts to  a  case where a person complains that a departure from the  qualifi- cations  has  kept him out of the race,  injustice  is  less apparent where the attempt of the applicant before Court  is only  to gain immunity from competition. Assuming  for  pur-

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poses  of  argument that there has been a  slight  deviation from the terms of the NIT, it has not deprived the appellant of its right to be considered for the contract; on the other hand,  its tender has received due and  full  consideration. If,  save for the delay in filing one of the relevant  docu- ments,  M.C.C. is also found to be qualified to  tender  for the contract, no injustice can be said to have been done  to the  appellant  by the consideration of its tender  side  by side with that of the M.C.C. and in the K.P.C. going in  for a  choice of the better on the merits. The appellant had  no doubt  also urged that the M.C.C. had no experience in  this line  of work and that the appellant was much better  quali- fied for the contract. The comparative merits of the  appel- lant vis-a-vis M.C.C. are, however, a matter for the  K.P.C. (counselled by the T.C.E.) to decide and not for the Courts. We were, therefore, rightly not called upon to go into  this question.     For  the reasons discussed above, this appeal fails  and is dismissed. But we make no order as to costs. R.N.J.                                          Appeal  dis- missed. 243