M.R. Hariharan Nair, J.

1. The first petitioner is a Small Scale Industrial Unit engaged in the business of manufacturing and assembling, of electronic items and devices. The second petitioner is its Managing Partner. The first respondent is the Agency for Non-Conventional Energy and Rural Technology (ANERT), a Society registered under the Travancore Cochin Literary Charitable Societies Registration Act, and entrusted with the work of propagating adoption of Non-Conventional Energy and Rural Technology. The second respondent Omega Electronics is a firm producing electronic devices and solar lights. Respondents 3 and 4 are its partners.

2. The first respondent issued a tender notification on 27-1-1999 for the supply of (1) solar lanterns, (2) solar home lighting systems and 7 other ancillary solar power devices and the like. According to the revision petitioners, the rates quoted by them for items 1 and 2 were lower than what was quoted by the second respondent. Nevertheless, the first respondent is proceeding to accept the quotation of the second respondent ignoring the claim of the petitioners as regards items 1 and 2. It is pointed out that being a Government Agency the first respondent is bound to follow the provisions of the Kerala State Stores Purchase Manual, by virtue of an order of the Government of Kerala. As such the tender given by the petitioner ought to have been accepted and it was in violation of the guidelines in the Manual as also the principles governing acceptance of contracts by Government Agencies that the order is being given to the second respondent for the supply of solar lanterns and solar home lighting systems.

3. Revision petitioners challenged the proceedings as above by filing a suit as O.S. No. 582/99 before the Munsiffs Court, Thiruvananthapuram. Along with the suit the petitioners/plaintiffs filed an application for injunction restraining the first respondent herein from taking any further action with respect to the finalisation of contract for the supply of items 1 and 2 of the notification and also to restrain them from entering into any agreement with the second respondent or with any other person or from re-tendering for the supply of those items.

4. The Munsiffs Court. Thiruvananthapuram which dealt with the stay petition --I.A. No. 2923 of 1999 in O.S. No. 582/99 dismissed the same. The plaintiffs/petitioners thereupon filed C.M.A. No. 48/99 before the District Court. Thiruvananthapuram and as per the impugned order dated 5-6-1999 the appeal was also dismissed.

5. Heard both sides. The respondents, in their separate counter-affidavits, justifies the stand of the first respondent that the petitioner is ineligible for award of tender for items 1 and 2. It is pointed out that the condition in the tender notification that the tender should be accompanied by a test certificate issued by the prescribed authority, was violated by the plaintiff/petitioners and that was the reason why the plaintiffs tender for item 1 cannot be accepted. The tender given by the second respondent, on the other hand, was accompanied by the required certificate and hence that was accepted. As regards item 2, the contention is that envelope No. 2 did not contain the technical specifications as expected. The respondents thus maintain that the plaintiff is not entitled to get the contract for either item and that there is no scope for grant of any injunction as sought for.

6. What is to be considered is whether there was any illegality, irregularity or impropriety committed by the Courts below in the matter of refusing the injunction

6A. The fact that the first respondent is bound to act in such matters in accordance with the guidelines in the Kerala State Stores Purchase Manual in view of the Specific directions to that effect issued by the Government of Kerala, is not disputed. Even so, there are certain limitations for Court in the matter of interference with the decisions of such authorities. What is involved here is a commercial transaction, warranting commercial decision. The price at which the tenderers are willing to do the work; whether the goods or services offered are of requisite specifications; whether the person tendering has the ability to delivery the goods or services as per the requisite specifications; the financial ability of the tenderer to fulfil the requirements of the job; the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; past experience of the tenderer; whether he has successfully completed similar works earlier; the time that will be taken to deliver the goods or services; and the ability of the tenderer to take follow up action to rectify possible defects or to give post-contract services etc., are all material factors which should enter the mind of the authority when a decision is taken with regard to the award of the contract.

7. Raunaq International Ltd. v. I.V.R. Construction Ltd.. : AIR 1999 SC 393 [LQ/SC/1998/1168] is authority for the proposition that when a public body or agency of the State, as involved herein, enters into such a contract, the aforesaid guidelines are equally applicable and that an element of public interest is involved even in such transactions. Since public money would be expended for the purposes of the contract; the public would be directly interested in the timely fulfilment of the contract with adequate quality and expediency. Poor quality of the work or goods can lead to tremendous public hardship and substantial financial expenditure either in correcting mistakes or in rectifying defects and at times, even in redoing the entire work -- thus involving large extent of public money besides delay in the commissioning of the work or services.

8-9. Raunaq International Ltd. aforementioned is also authority for the proposition that if the dispute is purely between two tenderers, as it happens in this case, the Court must be very careful to see whether any element of public interest is involved in the litigation. Mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved justifying Courts intervention in such commercial transactions. In consequence of Court intervention, the proposed project or work may be considerably delayed leading to escalation in cost which may outweigh the saving which the Court would possibly effect in the expenditure of public money by deciding the dispute (sic) favour of the plaintiff. Therefore, unless the Court is satisfied that there is a substantial amount of public interest involved or the transaction is entered into with mala fides, the Court should not intervene in such matters. In granting an injunction against the award of a contract by a Government Agency, the Court has to satisfy itself that the public interest in holding up the project far outweighs the public interest in carrying it out within a reasonable time albeit at a lightly higher rate.

10. In Ext. A1 specific directions were given with regard to the manner in which the tender has to be submitted. According to Clauses 14 to 16, the tender documents have three parts, namely, Part I, Part II and Part III containing EMD, technical specifications and financial bid respectively. Each must be sealed in separate envelopes and thereafter those envelopes should again be sealed inside an overall envelope. It is only in Part II envelope that the tenderer should give the price at which the item is proposed to be supplied.

11. The purpose behind such a system, it is explained by the learned counsel for the first respondent, is to eliminate inadmissible tenders in limine. The question of price will not assume importance unless the tenderer convinces the ANERT, through adequate documents, the fact that it is competent enough to deliver goods of adequate and specified quality as duly certified by the prescribed technical authority. The mere fact that in some other institutions or even in the Stores Purchase Manual such a system is not prescribed is not at all an indicator that the first respondent has gone astray or that it was acting with mala fides. What is contained in the Stores Purchase Manual are only general guidelines and it is for the authorities concerned in each case to prescribe adequate and appropriate procedure depending upon the services required and the nature of the article upon the services required and the nature of the articles that is to be supplied.

12. It is the admitted case of the petitioner that he was not in a position to furnish the test certificate of competent authority as regards item 1 along with the tender as required in Clause 10 of Ext. A1. The excuse given in this regard is that only after purchasing the tender documents the petitioner became aware of the necessity of the Test certificate and that though he moved for the required test certificate, it was not received within the time allowed by the first respondent in the notification for receipt of tenders or even on the extended date. It was therefore mentioned in Part II envelope that the test certificate has been applied for and that it would be furnished as soon as it was received. It is also the admitted case of the petitioner that before the tender papers were opened after an extension till 3-3-1999, the required certificate was in fact furnished. The question arises whether this is sufficient.

13. It is well settled that the time fixed in a tender notification cannot be extended to suit particular tenderers and that unqualified persons are to be eliminated from the fray. Since the petitioners were not in a position to furnish the required certificate along with the tender for item 1 (solar lantern) within the last date fixed for submission of tenders, the tender furnished by them did not deserve to be considered by the first respondent and the refusal to open Part III envelope was perfectly justified. The fact that the first respondent has no mala fides against the petitioners is clear from the fact that the work covered by item 4 of the notification for which also the petitioners submitted tenders was accepted. It is pertinent to note in this regard that for item 4 there was no requirement of any test certificate to be produced along with the tender.

14. As regards the rejection of quotation for item 2, no reason is pleaded in the counter filed by the first respondent on 30-3-1999 even though it is pointed out during hearing that the petitioner has not manufactured any such equipment earlier in order to supply such Items to the first respondent or to any other similar Government organisation; that they have no experience in the field unlike the second respondent, who is well experienced and that the first respondent has the confidence that the second respondent would be able to deliver the goods promptly and to the satisfaction of all as in earlier years. Yet another reason given is that the petitioner had not enclosed the technical details in Envelope No. 2 and hence the need for opening envelope No. 3 does not arise.

15. Tata Cellular v. Union of India : AIR 1996 SC 11 [LQ/SC/1994/685] is authority for the proposition that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, there are inherent limitations in the exercise of that power by Courts. The right to refuse the lowest or any other tender will always be available to the Government. No doubt the principles laid down in Article 14 of the Constitution have to be kept in mind while accepting or refusing a tender. However, there can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered as an arbitrary power. Judicial quest in administrative matters will only be to find the right balance in the administrative discretion to decide matters whether contractual or involving issues of social policy; but they are not essentially justiciable. The judicial power of review is exercised to reign in any unbridled executive functioning. Judicial review is concerned only with the view of the decision making process and not review of the merits of the decision. When the question of acceptance of the tenders submitted by the first respondent is considered from the said perspective, there appears to be no adequate ground for the grant of an Injunction as sought for by the petitioner as regards Hem 1 -solar lamps, especially when it is admitted that as on the last date fixed for submission of tenders (as extended) the test certificate concerned had not yet been obtained or presented by the petitioner.

16. I have perused the orders of the Courts below. Both the Courts below have discussed the evidence available and no illegality or irregularity is evident in their findings. The revisional jurisdiction of the Court, as held in M.L. Sethi v. R. P. Kapur : AIR 1972 SC 2379 [LQ/SC/1972/327] , is exercised to satisfy that the order of the subordinate Court is within its jurisdiction and that in exercising jurisdiction the Court has not acted illegally; that is, in breach of some provision of law or with material irregularity nor committed some error of procedure in the course of the Judicial proceeding. Mere possibility that the High Court thinks that a different view is also possible is not at all a sufficient ground Justifying interference with the orders of the trial Court based on facts and evidence.

17. In the circumstances, I am not satisfied that this is a fit case where the concurrent findings of the two Courts below have to be struck down or modified as regards item 1 - solar lanterns. However, this cannot be said as regards item 2-solar home lighting system. The tender submitted by the petitioner for that item is attacked only on the ground that envelope No. 2 did not contain the technical details. The petitioners answer in this regard is that it was put in envelope No. 3 in strict conformity with the directions in Ext. A1. Clause B-3 insists that none of the pages of the original tender should be removed. The direction in Clause B-15 that technical bid should be put in envelope 2 can be complied with only if Clause B-3 is violated. If the petitioners were confused when confronted with these conflicting directions and they chose to put the entire papers in envelope-3, they cannot be blamed. In any case they are entitled to get the benefit of doubt in the matter. The first respondent has no case that the 3rd envelope does not contain the entire papers--with no page removed. It is pertinent that the first respondent did not raise this objection in the matter of item 4-electronic ballasts and awarded the work to the present petitioners themselves albeit the entire tender papers were in envelope 3 in that case also. This shows that the objection raised in this regard by the first respondent as regards item 2 is objection for the sake of objection only. Even if the technical bid is in envelope 3, that deserves to be considered on the merits.

18. The proper order to be passed, in the circumstances, is to direct the first respondent to open envelope No. 3 submitted by the petitioners and consider their tender for item 2 on the merits along with those of other eligible tenderers and to take an impartial and just decision on the merits with regard to the award for supply of the item bearing in mind the legal principles mentioned above. Reasons for the decisions will be recorded in the file after tabulating the rates of all eligible tenders. This exercise will be completed within a period of three weeks from this date as the period for performance is fast running out. As far as item 1 is concerned also the award will be on the same consideration and following the same procedure: though the petitioners will not be considered for award of item 1 as they have not furnished the required Test Certificate before 3-3-1999.

The Revision is disposed of with the above modifications to the impugned order and with the above directions.