WP(C) 4717/2010 BEFORE THE HON’BLE MR JUSTICE IA ANSARI JUDGMENT & ORDER (oral) 1. Heard Mr. S. S. Dey and Mr. M. Nath, learned counsel appearing for the p etitioner, and Dr. B. Ahmed, learned Standing Counsel, Assam Fisheries Developme nt Corporation, appearing for respondent Nos.1 and 2. Also heard Mr. A. M. Buzar baruah, learned counsel appearing on behalf of respondent No. 3. 2. Pursuant to a tender notice, dated 01.06.2010, issued by the Assam Fishe ries Development Corporation (hereinafter referred to as ’the respondent Corpora tion’), inviting tender for settlement of, amongst others, Darrow Meenmahal (i.e . Darrow Fishery) of Sivasagar district, the petitioner, the respondent No.3 and some others submitted their tenders and participated in the selection process. The tender box was opened on 05.06.2010. The petitioner’s grievance is that tho ugh he was the highest eligible bidder and the respondent No.3 was found to be t he second highest bidder, the respondent Corporation has not accepted the tender of the petitioner and settled the said Fishery, in favour of the respondent No. 3, by means of the order, dated 30.07.2010, at the rate, which was quoted by the petitioner. The petitioner, therefore, seeks with the help of this application, made under Article 226 of the Constitution of India, issuance of appropriate wr it(s) setting aside and quashing the order of settlement, dated 30.07.2010, afor ementioned. 3. While considering the present writ petition, it needs to be noted that i n terms of the comparative statement, which has been prepared in the present cas e, the petitioner was, admittedly, the highest tenderer, his quoted rate being R s.1,10,211/-, whereas the offer of the respondent No.3 was Rs.1,05,000/-, the re spondent No.3 being the second highest bidder and the difference between their r espective quoted rates being barely Rs.5,211/-. Ordinarily, the settlement of th e Fishery ought to have been made with the petitioner, he being the highest bidd er. The State respondents have, however, settled the Fishery in favour of the re spondent No.3 at the bidded amount of the present petitioner. Thus, settlement o f the Fishery with the respondent No.3 does not cause any financial loss to the respondent Corporation. 4. The moot question, therefore, which arises, in the present case, is: whe ther the respondent Corporation acted within the ambit of law in making settleme nt of the Fishery in favour of the respondent No. 3 ? 5. Seeking to justify the act of settlement of the Fishery in favour of res pondent No.3, Dr. B. Ahmed, learned Standing Counsel for the respondent Corporat ion, has produced the relevant records to show that though the petitioner was th e highest bidder, he was found to be ineligible and since he did not remain elig ible, the mere fact that he was the highest bidder could not have been made a gr ound to settle the Fishery in his favour. 6. It is not in dispute that if the petitioner, as a tenderer, was found in eligible, then, it is immaterial whether he was the highest bidder or not. The h ighest bidder, in order to be a selectee, has to be an eligible one too. 7. Pointing out as to what infirmity the petitioner’s tender suffered from, Dr. Ahmed has pointed out that in terms of the conditions of eligibility, a ten derer is required to affix his photograph, which has to be duly attested by a ga zetted officer, and if the tenderer is a Cooperative Society, the recent photogr aph of the person, authorized by the Executive Committee, duly attested by a gaz etted officer. In the case at hand, according to Dr. Ahmed, the photographs, whi ch the petitioner had submitted along with his tender documents, were not attest ed by a gazetted officer as was required under Clause 4.1.1 of the tender notice . 8. Appearing on behalf of the petitioner, Mr. S. S. Dey, learned counsel, h as contended that attestation of the photograph, as stipulated in the tender not ice, was not a mandatory requirement and, hence, the mere fact that the petition er’s photograph was not attested by a gazetted officer could not have been made a ground to disqualify him or to treat him as an ineligible tenderer. To buttres s his submission, Mr. Dey further points out that a close examination of the var ious terms and conditions as stipulated in the tender notice, in the present ca se, would show that wherever an omission to satisfy a condition warranted the co nsequence of disqualification of a tenderer, the same has been mentioned in the tender notice itself. Such an instance can be noticed, points out Mr. Dey, in Cl ause 4.1.7, whereby it has been made clear that a tenderer, who fails to give re venue clearance certificate and is a defaulter, his tender would not be consider ed; whereas the non-attestation of the photograph of the tenderer by a gazetted officer was not such a defect, which would have disqualified the tenderer; other wise, the terms and conditions, contained in the tender notice, would have so me ntioned. Thus contends Mr. Dey. 9. In support of his submission that every term and condition of a tender n otice need not necessarily be treated as mandatory and that only those terms and conditions shall be treated to be mandatory, which would go to the root of the selection process, Mr. Dey has referred to, and relied upon, M/s. Poddar Steel C orporation vs. M/s. Ganesh Engineering Works and others [AIR 1991 SC 1579]. 10. For the purpose of clarity, Clause 4.1.1. and Clause 4.1.7. of the Tende r Document are reproduced below : 4.1.1.In the form there should be photograph of the tenderer duly attested by a gazetted officer. In case the tenderer being a Co-operative Society, the recen t photograph of the person duly authorized by the Executive Committee duly attes ted by a gazetted officer. 4.1.7.The attested copy of the Bakijai Clearance Certificate from Deputy Commi ssioner/Sub-Divisional Officer. In case the tenderer being a Co-operative Societ y, the Bakijai Clearance Certificate should be in the name of the Co-operative S ociety. The Bakijai Clearance Certificate should be issued after the previous fi nancial year of the year of accepting the tender. Any tenderer having been found as defaulter of the Corporation, the said tender will not be considered. 11. It is no doubt true that Clause 4.1.7. does state clearly that any tende rer, who has been a defaulter, would not be considered, but the consequence of n ot attesting the photograph, as required by Cause 4.1.1, is not mentioned in the tender notice. In other words, it is not specifically mentioned in the tender n otice that the omission to attest the photograph would render a tenderer ineligi ble for consideration; whereas the tender documents clearly stated that a tender er, who was found to be a defaulter, would be treated ineligible. 12. The limited question, therefore, in the present case, is whether the att estation of the photograph of a tenderer by a gazetted officer shall be treated a mandatory requirement of the conditions of tender or not. In this regard, it h as been pointed out by Mr. A. M. Buzarbaruah, learned counsel for the respondent No.3, that it is not uncommon for the Courts to receive, in Assam, allegations of lessee of a fishery of the respondent Corporation sub-leasing fishery and it is in order to know as to who the tenderer is that his photograph is required to be attested by a gazetted officer so that the person, operating the fishery, be comes known and the act of sub-leasing fishery can be easily detected. 13. Apart from the fact that there is substance in what Mr. Buzarbaruah cont ends, nothing could be submitted, on behalf of the petitioner, to show as to wha t is the reason for requiring attestation of a photograph of a tenderer by a per son none less than a gazetted officer. It is not merely attestation of the photo graph of a tenderer, but attestation by a gazetted officer, which is the require ment of the conditions of the tender. Such a requirement cannot be wished away b y saying that it is not a mandatory requirement. 14. Coupled with the above, what is required to be noticed is that the tende rs were opened on 05.06.2010 and even at that time, the petitioner did not satis fy the requirement of producing any duly attested photograph of his. It is in su ch circumstances that the tender documents were considered by the respondent Cor poration. When the respondent Corporation, on examining the tender papers/docume nts, found the petitioner’s photograph without having been attested by a gazette d officer, the respondent Corporation was bound to treat the petitioner as ineli gible. In the circumstances indicated hereinbefore, no wrong can be said to have been committed by the respondent Corporation in treating the petitioner ineligi ble. 15. In the present fact situation, it could not be explained, on behalf of t he petitioner, as to what steps the respondent Corporation ought to have taken, when they had found the petitioner’s photograph without having requisite attesta tion. Nothing could be shown from the tender documents to indicate that the resp ondent Corporation, in such a situation, as the one at hand, was required to inf orm the petitioner and invite him to rectify the defect merely because he was th e highest bidder. 16. While considering the case of M/s. Poddar Steel Corporation (supra), whi ch Mr. S. S. Dey, learned counsel relies upon, it may be noted that, in M/s. Pod dar Steel Corporation (supra), it has been pointed by the Supreme Court that 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 ancillary or subsidiary to the main object to be achieved by the cond ition. In the first case, the authority, issuing the tender, may be required to enforce them rigidly. In the other appropriate cases, it must be open to the aut hority to deviate from, and not to insist upon, the strict literal compliance of the condition. 17. Thus, what the decision, in M/s. Poddar Steel Corporation (supra), point s out is that a condition of eligibility, which is essential, cannot be deviated from and cannot be relaxed; whereas a condition of eligibility, which is ancill ary or subsidiary to the main object, which the tender seeks to achieve, such a condition may be relaxed. The main object of including every condition, in a ten der notice, has to be examined and ascertained and not merely the fact as to whe ther the tender notice has specifically mentioned or nor as to what consequence, an omission to comply with such a condition, would follow. What is, however, ex tremely important to note is that relaxation cannot be in every case but only in ’appropriated cases’ as indicated in M/s. Poddar Steel Corporation (supra). In effect, thus, while it is not possible for an authority, which floats tender not ice, to relax an essential condition of eligibility, a condition, which is not e ssential, may be relaxed provided the facts of the case so warrant. The observat ions made, in this regard, in M/s. Poddar Steel Corporation (supra), read as und er: ( 6 ) It is true that in submitting its tender accompanied by a cheque of the U nion Bank of India and not of the State Bank clause No. 6 of the tender notice w as not obeyed literally, but the question is as to whether the said non-complian ce deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tend ers is bound to give effect to every term mentioned. in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories - those which lay down the essential conditions of eligibility and t he others which are merely ancillary or subsidiary with the main object to be ac hieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. *** *** *** However, it remains to be seen as to which of the two c lauses the present case belongs. ( 7 ) THE nature of payment by a certified cheque was considered by this Court i n Sita Ram Jhunjhunwala v. Bombay Bullion Association Ltd. , (1965) 35 Com Cas 5 26. (AIR 1965 SC 1628) Several objections were taken there in support of the ple a that the necessary condition in regard to payment was not satisfied and in tha t context this Court quoted the observations from the judgment in an Engligh dec ision (vide Spargo’s case (l873) L. R. 8 Ch. App. 407) that it is a general rule of law that in every case where a transaction resolves itself into paying money by A to B and then handing it back again by B to A, if the parties meet togethe r and agree to set one demand against the other, they need not go through the fo rm and ceremony of handing the money backwards and forwards. This court applied the observations to a transaction requiring payment by one to another. The High Court’s decisions in B. D. Yadav’s case (AIR 1984 Bombay 351) and T V. Subhadra Amma’s case (AIR 1982 Ker 81) are also illustrations where literal compliance of every term of the tender notice was not insisted upon. ( 8 ) IN the present case the certified cheque of the Union Bank of India drawn on its own branch must be treated as sufficient for the purpose of achieving the object of the condition and the Tender Committee took the abundant caution by a further verification from. the bank. In this situation it is not correct to hol d that the Diesel Locomotive Works had no authority to waive the technical liter al compliance of clause 6, specially when it was in its interest not to reject t he said bid which was the highest. We, therefore, set aside the impugned judgmen t and dismiss the writ petition of the respondent No. 1 filed before the High Co urt. The appeal is accordingly allowed with costs throughout. Appeal allowed. 18. In the case of M/s. Poddar Steel Corporation (supra), the requisite cond ition was that the earnest money was to be paid by cash or by demand draft on th e State Bank of India. What the tenderer, in M/S. Poddar Steel Corporation (supr a), had done was that it had given a certified cheque of the Union Bank of India in respect of the said earnest money. In this context, the Supreme Court was re quired to decide if the said certified cheque was sufficient compliance of the c onditions of eligibility. It is in context of this fact situation that the Supre me Court pointed out that since the purpose of depositing earnest money, by cash or by demand draft, was to ensure realization of the earnest money, should ther e be a default, this interest was equally protected even when a person gave a ce rtified cheque of a nationalized bank. 19. Thus, the objective of the requirement of depositing the earnest money, by way of cash or by demand draft drawn on the State Bank of India, was equally served with the certified cheque of the United Bank of India. It is in the conte xt of the facts of such a case that it was decided by the Supreme Court, in M/s. Poddar Steel Corporation (supra), that though the tenderer did not strictly adh ere to the conditions of eligibility, prescribed in the tender notice, his actio n nevertheless satisfied the condition of eligibility and, hence, it was legally permissible to treat the tender as valid relaxing the requirement of deposit of earnest money by cash or by demand draft drawn on the State Bank of India only. 20. In the case at hand, the obvious purpose of requiring a tenderer’s photo graph to be attested by a gazetted officer was to identify the tenderer and ensu re that it is he, who and not someone else, operates the fishery, for, an actual fisherman, under the Governmental scheme, is the one to whom a fishery, under t he respondent Corporation, is aimed to be leased out. This apart, no step was ta ken by the petitioner to satisfy the condition of eligibility even at the time, when the sealed tenders were opened. It was not the duty of the respondent-Corpo ration to inform the petitioner of the defect with which his tender was sufferin g from and to invite him to furnish to the respondent Corporation an attested co py of his photograph. 21. Situated thus, this Court is of the firm view that in the facts and atte nding circumstances of the present case, the respondent Corporation was wholly j ustified in treating the petitioner as ineligible. When the petitioner was right ly treated as ineligible, he could not have been granted the settlement. This ap art, the recommendation, made by the Managing Director of the respondent Corpora tion, to the Chairman of the Corporation, gives complete details of the facts as to why the petitioner was treated to be ineligible and it is in such a situatio n that the respondent Corporation, instead of granting the settlement in favour of the petitioner, at his quoted rate, made the settlement in favour of the resp ondent No.3 at the highest bid received in the tender process, the highest bid b eing that of the petitioner. In the circumstances, as indicated hereinbefore, th e action of the respondent Corporation cannot be said to have suffered from any infirmity, legal or factual. 22. It is trite that the scope of judicial review, in contractual matters, i s circumscribed. While reviewing the administrative decision taken by a person, the Court does not examine the merit of a selection. What the Court examines, in such a case, is whether the administrator has taken into account all facts, whi ch were relevant, and whether the administrator has kept eschewed from the purvi ew of his consideration every such fact or element, which was irrelevant. If th e administrator is found to have taken into account all the relevant facts and k ept excluded from his consideration every irrelevant fact, the Court would not, while exercising power of judicial review under Article 226 of the Constitution of India, interfere with the decision, which the administrator reaches, for, the Court does not sit, on appeal, against the decision and does not examine the me rit of the decision. Interference would be possible, when the administrator is g uided by bias, prejudice or his selection is mala fide, irrational or arbitrary. In the case at hand, no mala fide, on the part of the respondent Corporation, c ould be pointed out by the petitioner. This apart, when the administrative decis ion has not taken into account any irrelevant fact and is not shown to have omit ted to take into consideration any relevant fact, the administrative decision do es not invite, and cannot be said to have invited, invoking of this Court’s extr aordinary jurisdiction under Article 226 of the Constitution of India. 23. Because of what has been discussed and pointed out above, this Court doe s not find any merit in this writ petition. The writ petition is, therefore, not admitted and shall accordingly stand dismissed. 24. No order as to costs. 25. Let the relevant records be returned to the learned Standing Counsel for the respondent Corporation.