M/S. Swosti Powercon, Bargarh vs. State Of Odisha

ORISSA HIGH COURT: CUTTACK AFR W.P.(C) NO. 32512 OF 2023 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- M/s. Swosti Powercon, Bargarh ..… Petitioner -Versus- State of Odisha and others ….. Opp. Parties For petitioner : M/s Ipsit Aurobindo Acharya, and C.K. Rout, Advocates For opp. parties : Mr. P.P. Mohanty, Addl. Government Advocate [O.P. No.1] Mr. Ashok Kumar Panigrahi and Ankita Panigrahi, Advocates [O.Ps. 2 & 3] P R E S E N T: THE HONOURABLE DR. JUSTICE DR. B.R.SARANGI AND THE HONOURABLE MR. JUSTICE G. SATAPATHY Date of Hearing and Judgment :: 05.03.2024 DR. B.R. SARANGI,J. M/s. Swosti Powercon, Bargarh, a proprietorship firm, represented through its sole proprietor, has filed this writ petition seeking to quash the order dated 19.09.2023 rejecting his bid // 2 // communicated through e-mail vide Annexure-3 series, and to direct the opposite parties to consider the HT License certificate along with the bid of the petitioner correctly as per website copy in https:// eiceletricityodisha.nic.in, as mentioned in the representation vide Annexure-5 series, and also to allow the petitioner to participate in the bid and to issue LOA/Work Order in its favour in the event of success in the bid. 2. The factual matrix of the case, in brief, is that the Executive Engineer, Sonepur Lift Irrigation Division- opposite party no.3 issued tender call notice on 01.08.2023 in respect of 90 numbers of packages for the work “Installation and Energisation of (Revival) River Lift Irrigation Projects with Supply of all materials on Turnkey basis”. The estimated cost for each package, EMD amount and cost of bid documents were mentioned in the Detailed Tender Call Notice dated 01.08.2023. The last date to submit the bids was fixed to 24.08.2023 and the date and time for opening of tender was mentioned as 25.08.2023 at 11.00 AM. As per the conditions // 3 // stipulated in the tender call notice, the petitioner, having the required eligibility criteria, applied for the same. The petitioner was having the H.T. License bearing No. 3104, which was valid till 05.11.2023, i.e. for the period of more than one month from 25.08.2023 (date of opening of tender). The petitioner submitted its bids for 12 different numbers of packages under DTCN dated 01.08.2023 including the present package. It had also entered into an agreement with another contractor for the civil work part under the package, as allowed in terms of the DTCN dated 01.08.2023. The petitioner had submitted the Electrical (HT) License-HT 3104 issued by the Electrical Licensing Board Odisha (ELBO)-opposite party no.4 dated 13.12.2021, which was valid till 05.11.2023. As per the conditions stipulated in the tender document, the petitioner applied for the work in question, but opposite party no.3 issued an e-mail on 19.09.2023 stating that its bid has not been accepted. On 19.09.2023, rejection order was uploaded on the portal wherein the reason for rejection of the bid of the // 4 // petitioner was mentioned “Invalid HT License submitted”. Hence, this writ petition. 3. Mr. I.A. Acharya, learned counsel appearing for the petitioner contended that the bid identification no. OLIC-S 焁 NP 01/2023-24 dated 01.08.2023 clearly indicates the date and time for opening of tender in the office of the Executive Engineer, L.I. Division, Subarnapur on 25.08.2023 at 11.00 Hrs. Clause-2.2 of the said bid identification prescribes eligibility that the contractor should have valid civil license of requisite class as per the Tender Call Notice and valid H.T. license issued by ELBO and validity of both the licenses should be for a period at least one month from the date of the opening of the tender. It is contended that if the advertisement shows the date of opening of the tender as 25.08.2023, the validity of the licenses should be till 25.09.2023. Learned counsel for the petitioner brought to the notice of this Court with regard to the Electrical Contractor License granted in favour of the petitioner, wherein the validity period has been prescribed as 05.11.2023. Therefore, it is contended that by the time // 5 // the advertisement was issued, the petitioner had valid H.T. license and, as such, it has been mentioned in N.B. of the said license that the contractor license is treated to be valid if and only if certificates/permits of all the above staff are valid. Thereby, it is contended that since the petitioner has possessed valid Electrical Contractor License, rejection of the bid of the petitioner on the ground of submission of invalid H.T. License under Annexure-3 series dated 19.09.2023 cannot be sustained in the eye of law. Learned counsel for the petitioner contended that the Electrical Contractor License contains two notes, i.e. “(i) Contractor License is treated to be valid if and only if certificates/ permits of all the above staff are valid and (ii) This document is not valid unless it is checked/ verified with official website: https://eiceletricityodisha.nic.in.” Therefore, while considering the bid submitted by the petitioner, the opposite parties should have taken into consideration the above mentioned notes while examining the license granted in favour of the petitioner. But, without taking the same into consideration, the impugned rejection // 6 // cannot be sustained on the flimsy ground “Invalid HT License submitted”. Thereby, there is absolutely non- application of mind by the tendering authority. It is thus contended that in exercise of powers under judicial review, this Court can interfere with such arbitrary rejection of the bid submitted by the petitioner, who compiled the terms and conditions in letter and spirit, and allow the petitioner to participate in the bid process, so far as twelve works are concerned for which the petitioner had submitted its bid. 4. Mr. P.P. Mohanty, learned Additional Government Advocate appearing for the State-opposite parties contended that since the tender inviting authority, i.e., Orissa Lift Irrigation Corporation is a public sector undertaking of the State Odisha and an independent body, and the impugned action having been taken by such organisation, the State has no role to play, so far as tender in question is concerned. 5. Mr. A.K. Panigrahi, learned counsel appearing for opposite parties no.2 and 3 raised objection with // 7 // regard to maintainability of the writ petition stating inter alia that the matters/disputes relating to the contract cannot be agitated nor the alleged terms of the contract can be enforced through writ jurisdiction under Article 226 of the Constitution of India. He contended that since the petitioner does not possess valid license, as per the eligibility, the authority is well justified in rejecting the bid of the petitioner. Under clause 3.10, it has been provided that conditional tenders are liable for rejection. Similarly, as per clause 3.13 in case of any discrepancies in the description of the items in the Tender Call Notice, the same can only be resolved by the Executive Engineer/ Superintending Engineer, OLIC, whose view is final, binding and conclusive for the purpose of the contract. Any incomplete bid submitted is liable to be rejected as per clause 3.14 of the DTCN. As the bid of the petitioner has been rejected on the ground that H.T. license submitted by the petitioner is invalid, any representation filed to that extent cannot be sustained. Therefore, he prayed for dismissal of the writ petition. // 8 // 6. Though notice has been issued to opposite party no.4 and A.D. has returned after valid service, as is evident from the office note dated 12.10.2023, but since nobody entered appearance on behalf of opposite party no.4, this Court adjourned the matter. However, learned counsel appearing for both the petitioner and opposite parties no.2 and 3 contended that since opposite party no.4 is the license granting authority and there is no dispute with regard to the license granted by such authority, there is no need for participation of opposite party no.4 in the proceeding itself. Thereby, with the consent of learned counsel for the parties, the matter is taken up to be decided at the stage of admission. 7. This Court heard Mr. I.A. Acharya, learned counsel appearing for the petitioner; Mr. P.P. Mohanty, learned Additional Government Advocate appearing for the State-opposite party no.1 and Mr. A.K. Panigrahi, learned counsel appearing for opposite parties no. 2 and 3. With the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. // 9 // 8. Before delving into the merits of the case, for a just and proper adjudication of the case, the relevant provisions of the tender document are quoted hereunder:- “ODISHA LIFT IRRIGATION CORPORATION LTD. OFFICE OF THE EXECUTIVE ENGINEER LIFT IRRIGATION DIVISION, SUBARNAPUR. Procurem ent Officer Bid Identifi cation No. Availability of Tender On-Line for Bidding Last date & time of seeking tender clarification Date & Time of Opening of tender in the office of the Executive Engineer, L.I. Division, Subarnapur 1 2 3 4 5 6 Executive Engineer, L.I. Division, subarnap ur OLIC- SNP- 01/20 23-24 16-08-23 at 11.00 Hrs 24-08- 2023 at 17.00 Hrs 23-08-23 at 17.00 Hrs. 25-08-23 at 11.00 Hrs. “Section-II IMPORTANT INFORMATION FOR CONTRACTOR 2.1 The Bid documents consisting of plans, specification, schedule of quantities/rates and set of terms & condition of contract and other necessary documents can be Seen in the website www.tendersodisha.gov.in. 2.2 Eigibility: (1) The contractor should have valid Civil license of requisite class as per the Tender call Notice and valid H.T. // 10 // license issued by ELBO and validity of both the licenses should be for a period at least 1 month from the date of the opening of the tender. (ii) In case the Contractor has only the Civil or Electrical license, then he has to make joint venture agreement with other Contractor and the joint venture agreement should be registered in any registration office only. However the Electrical Contractor will hand over the Electrical installation to TPWODL. (iii) in case of joint venture candidate no Price preference and other financial benefits allowed to SC/ST contractor/Engineer Contractor/ Physical Handicapped Contractor. (iv) The contractor should have valid GST Registration certificate and PAN issued by I.T. Department. 2.3 No hard copy document be submitted to the undersigned. 2.6 The last date seeking clarification towards "e" Procurement portal using his/her DSC up to 17.00 Hrs of Dt. 23.08.2023. through e-challan” “SECTION-IV GENERAL TERMS AND CONDITIONS 4.1 Method of submission of tender documents Xxx xxx xxx The scanned copy of following documents should be uploaded with a tender (i) Xxx xxx xxx (iv) Valid Electrical (H.T.) License issued by E.L.B.O.” “GOVERNMENT OF ODISHA ENERGY DEPRTMENT Electrical Licensing Board of Odisha (ELBO), BHUBANESWAR FORM-D (Regulation 25-26-28) ELECTRICAL CONTRACTOR LICENSE I do hereby certify that electrical contractor license granted to SWOSTI POWERCON has been renewed on this day to carry out electrical work upto specified voltage level in the State of Odisha under Electrical Licensing Board, Regulation, Odisha 2014 for the purpose of Regulation 29(1) of the Central Electrical Authority (Measuring Relating to Saftey & Electricity Authority (Measures Relating to Safety & Electric Supply) Regulations,2010 (as amended). Name of the Farm - SWOSTI POWERCON // 11 // Name of the Proprietor -DEVKANAN SAHU Authorized Representative - Business Address BARGARH, BARGARH, BARGARH Date of Birth 25/03/1989 Mobile No. 9438408911 Email Id -ceo@swostipowercon.com Type of Contractor License HT Contractor License No. 3104 In Operative Period 06.11.2021 to 29.11.2021 Date of Issue 13/12/2021 Validity Period 05/11/2023 Allowed to carry out electrical works upto 33KV S.NO Category SCC No. Name Valid Till 1 Supervisor EHT 281 PRAMOD KUMAR PRADHAN 30/11/2023 Sl. No. Category Permit CODES Permit No. Name Valid Till 1. Lineman MV BAR 1468 Muktendu Shekhar Dash 27/08/2022 2. Wireman MV BOU 88 Ganapati Ray 05/07/2024 3. Workman HT BAR 736 Bijaya Kumar Ghibela 21/08/2024 N.B: Contractor License is treated to be valid if and only if certificates/ permits of all the above staffs are valid. N.B: Please Note: This document is not valid unless it is checked/ verified with official webste: https://electricityodisha.nic.in” List of BIDS Rejected against Tender Call Notice No. 01/23-24 dt 01.08.23 (Pacakage-57) L.I. Div-Subarnapur Sl. No. Name of the Bidder Reason of Rejection // 12 // 1 SWOSTI POWERCON Invalid HT Licence Submitted 9. In view of the aforesaid provisions, there is no doubt that pursuant to the conditions stipulated in the tender documents, the date and time for opening of the tender documents was fixed to 25.08.2023 at 11.00 Hrs, provided the bid is submitted in terms of the conditions stipulated therein. As per the eligibility criteria stipulated in clause 2.2 (i), the contractor should have valid civil license of requisite class as per the tender call notice and valid H.T. license issued by ELBO and validity of both the licenses should be for a period at least one month from the date of the opening of the tender. Therefore, the date of opening of the tender being 25.08.2023, the period of validity of H.T. license should have been at least till 25.09.2023. As per clause 2.3, no hard copy document was to be submitted to the tendering authority. As per clause 4.1 under General Terms and Conditions, the petitioner was to submit the scanned copy of the valid electrical (H.T.) license issued by ELBO. In terms of such condition, the petitioner submitted the // 13 // scanned copy of the valid electrical (H.T.) license issued by ELBO, as has been placed on record at page-76 of the brief, where the validity period has been prescribed as 05.11.2023, which covers the period 25.09.2023, i.e., a period of at least one month from the date of opening of the tender, i.e. 25.08.2023. Therefore, the petitioner has got valid electrical (H.T.) license with him. As per the notes mentioned in the said electrical contractor license, it has been mentioned that the contractor license is treated to be valid if and only if certificates/ permits of all the above staff are valid. Similarly, second note specifies that the said document is not valid unless it is checked/ verified with official website: https:// eiceletricityodisha.nic.in. Therefore, a bare reading of the license attached along with the bid document clearly indicates that the HT License No. 3104 issued by the Electrical Licensing Board of Odisha (ELBO) in the name of the petitioner- SWOSTI POWERCON is valid till 05.11.2023. On further verification of the aforesaid website in respect of contractor’s license HT-3104 issued by the ELBO, it is found that the individual staff license // 14 // is valid at least till 30.11.2023. Therefore, contractor’s HT license is valid and it is eligible as per the provisions contained in the eligibility criteria of the DTCN dated 01.08.2023. 10. The HT license of the petitioner is valid till 05.11.2023, which is much more than one month period from the date of opening of the bid, i.e., 25.08.2023 and the said HT License was again renewed on 30.10.2023 by the opposite party no.4 till 05.11.2026, which has been placed on record as Annexure-6 at page-110 of the brief. Therefore, there is no question of breach of trust or contractual belief, rather the present issue is one of incorrect reading of HT certificate by the opposite parties no.2 and 3. Thereby, the opposite parties no.2 and 3 have acted arbitrarily and unreasonable by misinterpreting the conditions stipulated in the tender documents, which violates Articles 14 and 19 of the Constitution of India. As such, it is neither incomplete tender, nor conditional tender, nor any discrepancy is there in the bid of the petitioner so as to contend “Invalid HT License submitted”. // 15 // 11. It is clearly mentioned that HT License being No. 3104 issued by the Electrical Licensing Board of Odisha in the name of the petitioner-SWOSTI Powercon was valid and the validity period was till 05.11.2023. The license further mentions the validity of individual staff, which has to be read along with the contractor’s license. On verification of website in respect of Contractor’s License, i.e. HT-3104 issued by ELBO, it is found that individual staff license was valid till 30.11.2023. Therefore, the Contractor’s HT License was valid and eligible as per the eligibility criteria fixed in the DTCN dated 01.08.2023. 12. The contention raised by Mr. Panigrahi, learned counsel for opposite parties no.2 and 3 is that the petitioner uploaded the license, which was valid till 05.11.2023, but the permit of Muketendu Sekhar Dash, Lineman MV was not valid during that specific period (valid till 27.08.2022). So, as per the criteria mentioned in the license, the uploaded license of the bidder considered as invalid and accordingly rejected. Such contention has no leg to stand, because the opposite // 16 // parties no.2 and 3 have only considered the 1st Note of the License and ignored the 2nd Note. Therefore, the opposite parties should have taken note of conjointly both the notes mentioned in the license and should have gone through the website to find out the correctness of the license submitted by the petitioner. 13. In view of such position, there is no need to go for further clarification, since the documents submitted by the petitioner were genuine and a bare reading of the same makes the petitioner eligible in respect of the tender in question. Mere reading of one part and ignoring of other part of a document, i.e., the license to the detriment of the petitioner cannot be sustained as it amounts to arbitrary, unreasonable and irrational exercise of power by the opposite parties no.2 and 3. 14. In Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, at Paragraph-22, the apex Court observed as follows:- “Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or // 17 // 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.” 15. In Union of India v. Dinesh Engineering Corporation, (2001) 8 SCC 491, the apex Court held that in Contractual matter like the Government Contract, the Public Authority needs to be rational and reasonable in their decision making process. At Paragraph-16, it has been held as follows:- “16. But then as has been held by this Court in the very same judgment that a public authority even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be // 18 // conceded in such authorities, they are bound to follow the norms recognised by courts while dealing with public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law especially Article 14 of the Constitution. In the instant case, we have noticed that apart from rejecting the offer of the writ petitioner arbitrarily, the writ petitioner has now been virtually debarred from competing with the EDC in the supply of spare parts to be used in the governors by the Railways, ever since the year 1992, and during all this while we are told the Railways are making purchases without any tender on a proprietary basis only from the EDC which, in our opinion, is in flagrant violation of the constitutional mandate of Article 14. We are also of the opinion that the so-called policy of the Board creating monopoly of EDC suffers from the vice of non- application of mind, hence, it has to be quashed as has been done by the High Court.” 16. In Ajay Kumar Jain v. State of Odisha, 2017 SCC OnLine Ori 473, the apex Court at Paragraphs-23, 24, 25 and 26, observed as follows:- “23. In the case of Union of India Vs. International Trading Co., reported in (2003) 5 SCC 437, Hon'ble Supreme Court at paragraph-23 has held as under: "23. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interest of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In // 19 // determining whether there is any unfairness involved; the nature of the right alleged to have been infringed the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country..........." (emphasis supplied) 24. In the case at hand, by the restriction imposed at the pre-bid stage, the right of the potential bidders, who are otherwise eligible to participate in the tender process, is being arbitrarily infringed. It certainly curtails the reasonable expectation of the intending eligible bidders to participate in the bidding process. 25. In the case of Association of Registration Plates Vs. Union of India and others, reported in (2005) 1 SCC 679, Hon'ble Supreme Court at paragraph-43 held as under: "43. Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work, Article 14 of the Constitution prohibits the government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim fundamental right to carry on business with the government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated to the detriment of public interest. Undisputedly, the legal position which has been firmly established from various decisions of this Court, cited at the // 20 // Bar (supra) is that government contracts are highly valuable assets and the court should be prepared to enforce standards of fairness on government in its dealings with tenderers and contractors. (emphasis supplied) 26. No purpose can certainly be served in nipping the contractors, who are otherwise eligible, at the threshold. There cannot be any fair competition, as there would be lesser participants, which is certainly detrimental to the public interest.” 17. In Sterling Computer Limited v. M/s. M & N Publications Limited, (1993) 1 SCC 445, the apex Court at Paragraphs 18 and 19 observed as follows:- “18 While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process". In this connection reference may be made to the case of Chief Constable of the North Wales Police v. Evans, [1982] 3 All ER 141, where it was said that 'The purpose of judicial review- "... is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court." By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the state. Courts have inherent limitations on the scope of any such enquiry. But at the same time as was said by the House of Lords in the aforesaid case, Chief Constable of the North Wales Police v. Evans (supra), the Courts can certainly examine whether 'decision making process" was reasonable, rational not arbitrary and violative of Article 14 of the Constitution. 19. If the contract has been entered into without ignoring the procedure which can be said to // 21 // be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract. But, once the procedure adopted by an authority for purpose of entering into a contract is held to be against the mandate of Article 14 of the Constitution, the Courts cannot ignore such action saying that the authorities concerned must have some latitude or liberty in contractual matters and any interference by court amounts to encroachment on the exclusive right of the executive to take such decision.” 18. In Reliance Energy Limited v. Maharashtra State Road Development Corporation Limited, (2007) 8 SCC 1, the apex Court at Paragraphs 36, 37, 38 and 39 observed as follows:- “36. We find merit in this civil appeal. Standards applied by courts in judicial review must be justified by constitutional principles which govern the proper exercise of public power in a democracy. Article 14 of the Constitution embodies the principle of "non-discrimination". However, it is not a free- standing provision. It has to be read in conjunction with rights conferred by other articles like Article 21 of the Constitution. The said Article 21 refers to "right to life". In includes "opportunity". In our view, as held in the latest judgment of the Constitution Bench of nine-Judges in the case of I.R. Coelho vs. State of Tamil Nadu 兟 (2007) 2 SCC 1, Article 21/14 is the heart of the chapter on fundamental rights. It covers various aspects of life. "Level playing field" is an important concept while construing Article 19(1)(g) of the Constitution. It is this doctrine which is invoked by REL/HDEC in the present case. When Article 19(1)(g) confers fundamental right to carry on business to a company, it is entitled to invoke the said doctrine of "level playing field". We may clarify that this doctrine is, however, subject to public interest. In the // 22 // world of globalization, competition is an important factor to be kept in mind. The doctrine of "level playing field" is an important doctrine which is embodied in Article 19(1)(g) of the Constitution. This is because the said doctrine provides space within which equally-placed competitors are allowed to bid so as to subserve the larger public interest. "Globalization", in essence, is liberalization of trade. Today India has dismantled licence-raj. The economic reforms introduced after 1992 have brought in the concept of "globalization". Decisions or acts which results in unequal and discriminatory treatment, would violate the doctrine of "level playing field" embodied in Article 19(1)(g). Time has come, therefore, to say that Article 14 which refers to the principle of "equality" should not be read as a stand alone item but it should be read in conjunction with Article 21 which embodies several aspects of life. There is one more aspect which needs to be mentioned in the matter of implementation of the aforestated doctrine of "level playing field". According to Lord Goldsmith - commitment to "rule of law" is the heart of parliamentary democracy. One of the important elements of the "rule of law" is legal certainty. Article 14 applies to government policies and if the policy or act of the government, even in contractual matters, fails to satisfy the test of "reasonableness", then such an act or decision would be unconstitutional. 37. In Union of India and another vs. International Trading Co. and another - (2003) 5 SCC 437, the Division Bench of this Court speaking through Pasayat, J. had held : "14. It is trite law that Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. 15. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give // 23 // impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the state, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness." 38 When tenders are invited, the terms and conditions must indicate with legal certainty, norms and benchmarks. This "legal certainty" is an important aspect of the rule of law. If there is vagueness or subjectivity in the said norms it may result in unequal and discriminatory treatment. It may violate doctrine of "level playing field". 39. In Reliance Airport Developers (P) Ltd. v. Airports Authority of India and others -(2006) 10 SCC 1, the Division Bench of this Court has held that in matters of judicial review the basic test is to see whether there is any infirmity in the decision- making process and not in the decision itself. This means that the decision-maker must understand correctly the law that regulates his decision- making power and he must give effect to it otherwise it may result in illegality. The principle of "judicial review" cannot be denied even in contractual matters or matters in which the Government exercises its contractual powers, but judicial review is intended to prevent arbitrariness and it must be exercised in larger public interest. Expression of different views // 24 // and opinions in exercise of contractual powers may be there, however, such difference of opinion must be based on specified norms. Those norms may be legal norms or accounting norms. As long as the norms are clear and properly understood by the decision-maker and the bidders and other stakeholders, uncertainty and thereby breach of rule of law will not arise. The grounds upon which administrative action is subjected to control by judicial review are classifiable broadly under three heads, namely, illegality, irrationality and procedural impropriety. In the said judgment it has been held that all errors of law are jurisdictional errors. One of the important principles laid down in the aforesaid