WA 340/2010 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B. LOKUR HON’BLE MR JUSTICE H.N. SARMA Mr H Sarma, learned counsel has put in appearance on behalf of the caveator/resp ondent No.7. Ms P Barman, learned counsel has put in appearance on behalf of cav eator/respondent Nos.3, 4 and 5. The caveat petitions are accordingly disposed of. We have heard learned counsel for the affected parties. The appellant is aggrieved by an order dated 29-07-2010 passed by a learned Sing le Judge of this Court in WP(C) No.2709/2010. Respondent Nos.3, 4 and 5 issued a short tender notice on 5-2-2010 for the Const ruction of RCC Building (Part of Ground Floor of Block-B of Master Plan) of Arya Vidyapeeth College, Guwahati-16 (for short the College). The tender was invited from experienced Civil Engineers (Ist Class contractors) and the estimated amou nt of the work including civil, electrification, sanitary, internal water supply was about Rs.87.25 lacs. The time for completion of the work was nine months fr om the date of issue of the work order. The terms and conditions of the short tender notice specified, and this is impor tant, that the rate should be quoted as per percentage above/below the Schedule of Rates for Building (Civil Works) of Assam PWD for the year 2004-05 (for short SOR 2004-05). The bids were opened on 17-2-2010. The appellant’s bid was 9% above the estimate d amount. This works out to approximately Rs.95 lacs. Respondent No.7 submitted his bid at 19% above the estimated amount which works out to approximately Rs.1. 03 crores. We have been told by learned counsel for respondent Nos.3 to 5 that the Construc tion Committee of the College met on 22-2-1010 and short listed three bidders. T hey were - (1) Md Mukshad Ali, whose bid was 17% above the SOR 2004-05; (2) M/S AKD Construction & Suppliers, whose bid was 19% above the SOR 2004-05; (3) Sri D ipak Das, whose bid was 20% above the SOR 2004-05. As mentioned above, the bid of the appellant was 9% above the SOR 2004-05 but st ill the appellant was not short listed. On 5-4-2010 the work was allotted to respondent No.7 even though it was not the lowest among the short listed bidders. It is submitted by learned counsel for the appellant that the appellant learnt t hat some activity was going on in the construction area and on enquiries made, i t came to be known that the contract had already been awarded to someone. Theref ore, on 21-4-2010 an application was moved by the appellant under the Right to I nformation Act seeking certain information. The query was replied to by responde nt Nos.3 to 5 on 12-5-2010 and the following information was disclosed.:- (1) The Construction Committee of the college considered the assessment give n by Sri Bipul Medhi, Architect of the College who on the basis of price escalat ion under different heads suggested that the carrying out of construction work a t less than above 15% of the APWD schedule of rates 2004-05 is not possible. Hig her rates are more comfortable. So, the Construction Committee took into conside ration the tenders of rates above 15% of the APWD Schedule of rates 2004-05. The Construction Committee considering the work done and technical backg round short listed the following 3 (three) Tenders- (1) Md Mukshad Ali - Rate 17% above. (2) M/S AKD Construction & Suppliers - Rate 19% above (3) Sri Dipak Das - Rate 20% above. (2) M/S AKD Construction & Suppliers, Class-I(A) Contractor quoted rates 19% abo ve the APWD Schedule of rates of 2004-2005 was accepted as first choice, as work done is convincing and for having Technical background and Sri Dipak Das who qu oted rates 20% above was accepted as Second choice by the Construction Committee for the construction of the RCC building. From the reply given on 12-5-2010 it is clear that respondent Nos.3 to 5 did not accept the SOR 2004-05 as the base rate but decided to add 15% thereto for arriving at a more comfortable rate. In other words the estimated amount f or the work given in the short tender notice (Rs.87.25 lacs approx.) was mislead ing because it was based on the SOR 2004-05 without the 15% escalation. In the meanwhile on 11-5-2010 the appellant had already filed a writ pet ition in this Court challenging the award in favour of respondent No.7. The pres ent writ appeal has arisen as a result of the dismissal of that writ petition. On 24-5-2010 a learned Single Judge entertained the writ petition and af ter hearing learned counsel for the parties directed maintenance of status quo. The writ petition was eventually dismissed by an order dated 29-7-2010. It is pointed out to us by learned counsel for the appellant that in the affidavit in opposition filed by respondent Nos.3 to 5 (before the learned Sing le Judge) that a reference is made to an Office Order dated 31-7-2008 issued by the Office of the Chief Engineer, PWD (Building) of the Govt. of Assam. In that Office Order, it is mentioned that to the SOR 2004-05 an amount of 20% must be a dded for the year 2008-09 to meet the extra cost to the escalation since 2004-05 . In other words the Govt. of Assam was of the view that the SOR 2004-05 should be enhanced by 20% for arriving at the correct Schedule of Rates for the year 20 08-09. As against this, respondent Nos.3 to 5 have stated in their response to the quer y made under the RTI by the appellant that they have taken an escalation of 15% above the SOR 2004-05 for adjusting the extra cost due to escalation. Why these respondents have not followed the Office Order dated 31-7-2008 is not clear. Notwithstanding the Office Order dated 31-7-2008 issued by the Govt. of Assam, respondents 3 to 5 did not indicate in their short tender notice that the SOR 2004-05 will stand modified by some escalation either by 15% or by 20%. In fact the estimated amount given in the short tender notice (Rs.87.25 lacs approx .) was arrived at by these respondents on the basis of the SOR 2004-05. Learned counsel for respondent Nos.3 to 5 submits that this is a mistake on the part of her clients. However, no corrigendum was issued by these respond ents, nor was any bidder informed about the mistake committed by respondent Nos. 3 to 5. Nothing was done to rectify the mistake or bring it to the knowledge of the bidders. It is also worth noting that the applicability of the Office Order dated 31-7-2008 was not mentioned by respondent Nos.3 to 5 either in the short tender notice issued by them on 5-2-2010, nor was it mentioned in the response dated 1 2-5-2010 to the query made under RTI. The 20% escalation as mentioned in the Off ice Order dated 31-7-2008 was mentioned by the respondent Nos.3 to 5 for the fir st time only when the affidavit in opposition was filed to the writ petition pr eferred by the appellant. And even this 20% escalation was not adhered to by res pondents 3 to 5 because they, in fact, escalated the SOR 2004-05 by only 15%. Learned counsel for the appellant has also drawn our attention to the al lotment of the award in favour of respondent No.7 by the letter dated 5-4-2010. In this allotment order, respondent Nos.3 to 5 state that the award is made in f avour of respondent No.7 on the basis of the SOR 2004-05. Even this letter dated 5-4-2010 does not make any mention of the cost escalation, allegedly discussed in the meeting held by the Construction Committee on 22-2-2010. From this allotm ent order dated 5-4-2010, read with the short tender notice, it is quite clear t hat respondent No. 3 to 5 were, all along, proceeding on the basis of the SOR 20 04-05. The escalation clause either of 15% or of 20% was not taken into consider ation by these respondents when they awarded the contract to respondent No.7. It is submitted by learned counsel for the appellant that respondent Nos .3 to 5 introduced a completely new criterion for making the final selection in favour of respondent No.7. According to learned counsel, respondent Nos.3 to 5 a cted completely arbitrarily and the procedure in issuing the short tender notice and awarding the contract was neither transparent nor fair or open. In support of his contention that this is impermissible, learned counsel for the appellant relied upon Dutta Associates Pvt Ltd vs. Indo Merchantiles Pvt Ltd & Ors, (1997) 1 SCC 53 wherein the Supreme Court stated in paragraph 7 of the Report that wha tever procedure is proposed to be followed in accepting a tender, it must be cle arly stated in the tender notice. It is submitted by learned counsel for the appellant that the procedure followed by respondent Nos.3 to 5 has not been mentioned in the tender notice no r it has been mentioned in the allotment order made in favour of respondent No.7 . To make matters worse, the applicable principle, namely, the Office Order date d 31-7-2008 has not been followed. It is submitted that in view of this, the principle laid down by the Sup reme Court in Dutta Associates that the process should be transparent, fair and open has not been adhered to and, therefore, the award of the contract in favour of respondent No.7 must be set aside. Learned counsel for the appellant has also drawn our attention to a rece nt decision delivered by a Division Bench of this Court in Muslim Ali vs. The St ate of Assam & Ors in WP(C) No.256/2010 decided on 16-8-2010 wherein this Court relied upon Dutta Associates Pvt Ltd to set aside the award of contract in favou r of one of the parties in that case on the ground that the process was not tran sparent, fair or open. On the other hand, learned counsel for respondent No.7 referred to Jagdi sh Mandal vs. State of Orissa & Ors, (2007) 14 SCC 517 particularly paragraph 22 thereof to submit that when a contract is awarded bona fide and in public inter est, the courts will not, in exercise of the power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a bidder , is made out. It is submitted that the power of judicial review will not be per mitted to be invoked to protect private interest at the cost of public interest or to decide contractual disputes. In our opinion, the undisclosed change in the criteria announced in the short tender notice and the award of the contract on the basis of the undisclose d criteria, is not a mere procedural irregularity. Respondent Nos.3 to 5 have o verthrown the SOR 2004-05 which formed the foundation of the short tender notic e. In fact, even the estimated amount for award of the contract (about Rs.87.25 lacs) was based on the SOR 2004-05 without any escalation clause. In other words , respondent Nos.3 to 5 expected the contract to be completed at or about this f igure within nine months. The appellant undoubtedly fulfilled the qualification laid down by respondent No s.3 to 5 in their short tender notice. In spite of this, the appellant was not s hort listed for award of the contract but some other bidders whose bids were muc h higher than that of the appellant were considered for short listing for consid eration of the award of the contract. There is absolutely no explanation for thi s. The respondent Nos.3 to 5 did not find acceptable the bid given by Md Mu kshad Ali, whose rate was only 17% above the SOR 2004-05 for grant of the contra ct. Instead, these respondents found respondent No. 7 more acceptable even thoug h its bid was higher than that of Md Mukshad Ali. The reason for this, according to respondent No.3 to 5 is that the Construction Committee found the experience of Md Mukshed Ali unconvincing . What this means is left to one’s imagination. It is easy to speculate on why respondent No.3 to 5 decided to escalate the SOR 2004-05 by 15% and not by 20% as required by the Office Order dated 31-7 -2008. The reason is that if the escalation is 20% then respondent No.7 would fa ll the acceptable limit and only Sri Dipak Das would be eligible for the award o f the contract. However, if the escalation is 15% then respondent No.7 would be eligible for consideration. It, therefore, appears that the response of responde nt No.3 to 5 has been tailor-made to suit the bid of respondent No.7. unfortunat ely, the bid of Md Mukshad Ali turned out to be a stumbling block and so that wa s eliminated on the specious ground of being unconvincing . It is submitted by learned counsel for respondent No.7 that there was a delay on the part of the appellant in approaching this Court for relief. It is s ubmitted that respondent No.7 has already spent an amount of about Rs.30 lacs to wards execution of the contract and, therefore, this Court should balance the eq uities and not interfere. We cannot agree with learned counsel. We have found the process of award ing the contract to respondent No.7 to be completely arbitrary. It was not at al l transparent or fair or open. Merely because respondent No.7 has expended some amount in the execution of the work (after being favoured by respondent Nos.3 to 5 by applying some unknown and undisclosed criteria) cannot be a good ground fo r declining relief to the appellant. Since public interest and public money is i nvolved in the matter, the least that is expected of respondent Nos.3 to 5 is to be fair. Public money is not to be squandered on the whims and fancies of those in authority. That being so, it certainly does not lie in the mouth of responde nt No.3 to 5, more so that of respondent No.7, to say that since some amount has been expended in the execution of the work, the Court should not interfere. Respondent No.7 took the risk to continue with the contract though ex-fa cie it was not the lowest bidder out of all the bidders and even out of the shor t-listed bidders. It is clear that respondent No.7 gambled and lost. It cannot n ow seek to change the rules and seek to win the game. Under the circumstances, we set aside the order under appeal passed by t he learned Single Judge and allow this appeal as well as the writ petition filed by the appellant. The award of contract in favour of respondent No.7 granted by respondent Nos.3 to 5 is quashed. The parties are left to bear their own costs.