BRIJBHAL SINGH GAUTAM Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS intra -Court appeal has been preferred by appellant/petitioner for quashing grant of contract to Kamlesh Kumar Mishra, respondent No. 10 for the period 1999 to 2002. Contract granted for five years 1997 to 2002 to respondent No. 10 was quashed in the first round of litigation and this Court directed consideration to be made afresh after inviting applications for the remaining period as respondent No. 10 lacked catering experience and grant of impugned contracts were quashed in the earlier writ petition filed by present petitioner, in which he succeeded upto the Supreme Court against the grant in favour of Kamlesh Kumar Mishra, which is in question, for running of tea, coffee, sweets, namkin, fruit stalls and for grant of contract for vegetarian and non -vegetarian refreshment room at Manikpur Railway Station. The case has a chequered history. The first round of litigation which concluded upto the Apex Court is relevant to take notice here. An advertisement was published initially on 10.11.1996 inviting tenders for catering of snacks and fruits and for refreshment rooms respectively and applications were invited for awarding contract from reputed and established business concerns as per the policy of the Railway for allotment of catering/vending licence, according to which the reputed caterers could apply. Business standing was relevant criterion along with catering experience and financial standing being other relevant factors, a selection committee met and interviewed the persons. Under the first advertisement dated 10.11.1996, the selection of respondent No. 10 Kamlesh Kumar Mishra, which stands quashed, was made with a view to enable induction of youth and dynamism in the area of catering. The selection was challenged in Writ Petition No. 4394/97 Which was decided by this Court on 6.1.1999 and learned single Judge of this Court came to the conclusion that the experience of Kamlesh Kumar Mishra, respondent No. 10 herein, as honorary manager of USA (Ustad Shakeel Ahmed) Hotel (hereinafter referred to "Hotel USA.") cannot be taken to be any experience at all in the field of catering. This Court came to the conclusion, in previous writ petition, that the selection of respondent No. 10 on the pretext to induct youth and dynamism was against the policy and norms laid down which were not adhered to. It was found that there was deviation from the laid down policy and the standard of fairness in selection were not observed. Hence, the writ petition was allowed and fresh Selection Committee was directed to be constituted for the two catering contracts at Manikpur Railway Station and it was directed that the Railway should take a decision strictly in terms of the laid down policy. The decision of the single Bench of this Court in Writ Petition No. 4394/1997 dated 6.1.1999 was challenged in LPA No. 24/1999 by the respondent No. 10. A Division Bench of this Court passed a detailed order and also took note of various shortcomings of the respondent No. 10 and various irregularities committed by him under the grant and also the fact that he was fined Rs. 1,000 for having been found guilty of paying less wages to the employees than shown in the register and for not maintaining the proper record. It was mentioned that volume of the sales was being under cost and on random check of the THALI, items' weight was found to be less than what was prescribed for the standard THALI; too much salt was found to be present in the SABJIS, tea powder was found to be of very substandard quality. PETHA was found being sold from the stall though this item was not authorised for sale and said item was sold at the rate of Rs. 25 per kg. as per marked price and weight on the packet. On weighment the packet was found to be only 600 grams. PAN stall was found in operation, while the sale of it was restricted. Sweets were not served. Both, dry and wet DAL, SABJI and Curd were found to be of lesser weight than prescribed to be served in THALI. This Court though took notice of these events, but, confined its decision whether the decision of the Committee selecting respondent No. 10, was in consonance with the guidelines laid down by the Railway or not. Division Bench of this Court in LPA No. 24/1999 came to the conclusion that the committee could not go beyond the guidelines. The selection was set aside. However, the Division Bench of this Court directed that fresh applications should be invited so that the Selection Committee may have better candidates and choice may become more wider. LPA No. 24/1999 was decided on 22.3.1999 and the respondents were directed to complete the fresh process of selection within a period of four months and it was expected that the Railway should proceed and undertake the fresh process for selecting the best candidate. The respondent No. 10 preferred SLP No. 6650/1999, against the decision of single Bench in W.P. No. 4394/1997 and that of Division Bench of this Court in LPA No. 24/1999 before the Supreme Court, which SLP was called on for hearing on 11.5.1999 and was dismissed. Thus, the first round concluded and question attained finality that the grant of contract to respondent No. 10 was illegal and he had no experience of catering. As per the order of Division Bench of this Court, respondents were having the sufficient time of four months w.e.f. 22.3.1999 upto 21.7.1999 to start and complete the process of selection afresh. Pursuant to direction in LPA, fresh advertisement -Annexure -P/9 was issued which was published in 'NAV BHARAT' newspaper dated 14.5.1999. It was mentioned in the advertisement that the character certificate, business experience, education certificates are necessary to be enclosed along with the application by the applicant and if the applicant is of Scheduled Caste/Scheduled Tribe, he should file certificate issued by the competent authority of the caste/tribe and the priority shall be given to the applicant possessing diploma in catering, services. The last date for submitting the application was 10.6.1999 by registered post A.D., to be addressed to the Senior Divisional Manager (Commercial), Central Railway, Jabalpur. It was categorically specified that for the interview, the candidates shall have to come on their own expenses and the applicants who had submitted their application earlier in the first round, shall also have to apply afresh. Separate advertisements were issued : one for refreshment room; another for tea, coffee, sweets, Namkin and fruit stalls. In both the advertisements holding of interview was a condition mentioned for selection, the applicants shall have to bear their own expenses for attending the interview. In the previous advertisement which was issued in the year 1996, in which the application was required to be submitted on 10.12.1996, the conditions for interview were the same and the interview was conducted before finalising the selection process. After grant of contract to respondent No. 10 was quashed in the first round of litigation upto the Apex Court, second advertisement was issued. Though the number of applicants had increased and it was specified in the advertisement that interview was to be conducted but decision was suddenly taken to dispense with the process of interview, which, in the submission of appellant/petitioner, was owing to a decision taken in undue haste by an officer i.e. DRM who was already under transfer and he wanted to see finalisation of the proceedings before he was relieved. As already mentioned above under the fresh advertisement issued, the last date for receipt of the application was 10.6.1999 for refreshment room and tea stall. For refreshment room, 26 application forms were sold and 23 application forms were received and for tea stall, 24 application forms were received. The selection process was to be completed in two stages. Applications were to be short -listed at the first stage by the Screening Committee consisting of 3 Senior Grade Officers. Thereafter actual selection was to be conducted by committee of 3 JAG Grade Officers after holding the interview of candidates found fit by the Screening Committee. Note dated 15.6.1999 indicates that a committee consisting of three persons was nominated on 14.6.1999. Thereafter a note was put up on 15.6.1999 that one of the member of committee was on leave upto 20.6.1999, therefore, the screening of the applications was held up. It appears that there was change of Screening Committee on 15.6.1999, though the incumbent who was initially nominated was on leave upto 20.6.1999. A meeting of Screening Committee was held on 18.6.1999 which short -listed candidates for interview/selection. Office note dated 23.6.1999 records that the Screening Committee has completed short -listing and it was mentioned in the office Note dated 23.6.1999 placed before the Senior DCA ADM/DRM that as per the policy, after screening of applications, the Selection Committee shall choose most suitable candidate among the short -listed candidates based on reputation, capability and suitable track record of the short -listed candidates. ADRM was, therefore, requested to kindly decide whether interview in this case may be cancelled. This office note appears to be simply signed by Senior DCM, ADRM and DRM on 23.6.1999 itself, without deciding by reasoned order if interview in this case may be cancelled, office note was simply signed and ultimately without conducting the interview of candidates, the selection Committee met on 26.6.1999 and considered 22 applications and found the same very person Kamlesh Kumar Mishra, respondent No. 10 fit for award of contract for refreshment room at Manikpur Railway Station, he was treated as existing licensee under the very agreement which was quashed. The Committee considered his offer to be most suitable offer. Selection Committee has taken into consideration three factors : (1) He has worked as Manager, USA (Ustad Shakeel Ahmed) Hotel from 1992 to 1993. (2) He has also worked as Manager, Hotel Basera, from 1993 to 1996. (3) He is existing licensee of refreshment room and stall since 13.9.1997 and his performance has been satisfactory. Though he was fined Rs. 1,000 there was wide spread appreciation of the service rendered under the contract which was quashed. The contract was pursuant to the meeting of the Selection Committee on 26.6.1999. On 28.6.1999 the contract in favour of Kamlesh Kumar Mishra, respondent No. 10 was sanctioned and communication was issued. It was mentioned that after fresh selection was conducted, it was decided to award refreshment room licence as well as tea stall and catering licence to respondent No. 10. It appears that subsequently after contract was granted to respondent No. 10 on 28.6.1999, opinion of lawyer of the Railway was sought by DRM (C) Jabalpur about not holding the interview. On 21.8.1999 a letter was written. Legal opinion was not given as the matter became sub -judice in Writ Petition No. 3186/1999. Several objections were submitted and it was objected that in the conditions of advertisement inviting applications, it was clearly mentioned that the applicants will have to attend the interview and without conducting the interview, again same person has been awarded the contract whose grant was quashed by the High Court which decision was approved upto the Supreme Court. Hence, it was prayed that the allotment made to respondent No. 10 be quashed/cancelled and interview be directed to be conducted and best suitable candidate be directed to be given the refreshment room and catering licence of tea, snakes stalls. In the instant second round of Us in WP No. 3186/1999, interim order was passed on 14.7.1999 by the single Judge of this Court and the operation of the orders dated 29.6.1999 (Annexure -P/13 and P/14) was stayed and functioning of respondent No. 10 was ordered to be stopped and this Court directed the respondent Nos. 1 and 2 to make alternative arrangement for providing catering to the public. An application was filed to vacate the stay by respondent No. 10. The writ petition was ultimately finally decided without vacating the stay on 14.10.1999 by the learned single Judge and the writ petition was dismissed. Before the learned single Judge, assailing the present grant of contract, not only the petitioner/appellant filed the Writ Petition No. 3186/99, but, another writ petition was also filed by one Dinesh Gupta vide W.P. No. 3281/1999, whose application was rejected by the Screening Committee on the ground that he had not submitted the certificate of his character verification on proper format. He was possessing the certificate of Hotel Management and also having experience of Taj Mahal Hotel from 1.8.1978 to 9.9.1980 and Hotel Siddarth w.e.f. 19.5.1983 and was working in the Hotel Kanha Shyam since November, 1996 till date. His case was that he ought to have been given priority as he was possessing Diploma, but, this application was illegally rejected and consequently he was not called for interview, the interviews were not conducted and were dispensed with in an illegal manner, hence, the decision selecting respondent No. 10 has not been taken by the respondents in an objective manner. Learned single Judge while dismissing the writ petition observed that no prejudice is caused by not holding the interview as it was not conducted for anybody, inspite of such stipulation in the advertisement, no fault could be found in the selection process. Learned single Judge took the view that the Court would be slow in taking decision in the matter of award of contract. Learned single Judge has come to the conclusion that it is not necessary that experience of the caterers should be acquired in the capacity of being proprietor. The contention raised by the petitioner that respondent did not possess catering experience was rejected. The fact that respondent No. 10 possessed experience of Hotel Basera was not mentioned earlier while submitting the application in the year 1996. The single Judge has found that it has been rightly taken into consideration by the respondent No. 1 to 9 and no fault could be found on that count. Learned single Judge agreed with the submission that the experience of Hotel USA could not be taken into consideration. Learned single Judge has observed that as far as experience of USA Hotel is concerned, this Court had already held that the experience was of no consequence, in fact, no experience was acquired. Learned single Judge declined to interfere as the Court should not substitute the decision as an appellate forum and learned single Judge took the view that the experience acquired under the contract quashed by this Court could be taken into consideration and for the purpose of qualification, respondents have mainly relied on the experience allegedly gained by respondent No. 10 as a Manager of Hotel Basera. With respect to the claim which was raised by another petitioner Dinesh Gupta, who has not preferred LPA, learned single Judge has observed that the certificate of Dy. Commissioner of Police, Delhi was filed which could not be taken into consideration as such certificate issued by S. P. Kanpur should have been filed and the view expressed by the Screening Committee was found to be impeccable. It has been alleged by the petitioner/appellant that the respondent No. 10 had not worked in Hotel USA at all and it was simply a procured certificate. Certificate of Assistant Labour Commissioner, Rewa in Form -G, was issued which did not show the name of respondent No. 10 Kamlesh Kumar Mishra as Manager. It is submitted that the claims of experience in Hotel USA was false. Hence, another certificate was subsequently obtained on 25.07.1997 showing that respondent No. 10 was doing honorary managerial job for several years. The petitioner/appellant submits that his credentials are better. He is more educated, experienced and reputed. The decision to grant contracts again to respondent No. 10 was taken in undue haste. It is further submitted that the respondent No. 2 Satish Kumar, Divisional Manager, Railway, was already under order of transfer, his reliever was to arrive at Jabalpur on 29.6.1999, therefore, the orders granting catering contracts dated 28.6.1999 were issued in hot haste. Had the granting authorities and the Selection Committee decided not to dispense with interview, it would not have been possible to grant licence to respondent No. 10 before the reliever of DRM would have arrived. On earlier occasion, the Selection Committee invited all the candidates for interview. Non -holding of the interview is arbitrary and mala fide act which requires to be explained by the authority granting both the licences again to respondent No. 10. It is alleged that the selection process has not been fair and equal. The experience of other persons was negatived only on the ground that they did not possess managerial experience of catering in the capacity of their being 'proprietor' of the concern, whereas the experience of respondent No. 10 was taken into consideration without his being proprietor. It is also alleged that the Diploma holders who were to be given priority, their applications were illegally discarded on an irrelevant consideration and process of selection stands totally vitiated by not holding the interview. It is also urged that once the advertisement contained that the interview will be attended by the candidates on their own expenses and such interviews were conducted on earlier occasion also, further there is nothing in the policy to bar the interview. It is further submitted that two stages of selection i.e. screening the applications by Screening Committee and constitution of different Selection Committee indicate that candidates were to be called for interview as per advertisement and as a matter of fact cancellation of interview was an illegality. The applications were received on 10.6.1999. The Screening Committee was constituted on 14.6.1999. Its constitution was changed in undue haste on 15.6.1999 as DRM who was under transfer was bent upon to give the contract only to respondent No. 10. Thus, in order to see that the matter is decided before he is relieved on 29.6.1999 as he was under transfer, the interviews were dispensed with on 23.6.1999. Selection Committee appears to have met on 26.6.1999. Contracts were granted to respondent No. 10 vide Annexures -P/13 and P/14 on 28.6.1999. Respondent Nos. 1 to 9 in their return submitted that the policy is simply a guideline and does not create any enforceable right and selection has been made in a fair manner and the policy did not stipulate any personal interview and in order to avoid any complication, no interview was held. The fact that the DRM was under transfer and his reliever was to arrive on 29.6.1999, has neither been denied in the return, nor controverted before us in the present appeal by the railways. It is submitted in the return that the DRM had nothing to do, it was ADRM, who was to take decision. But, we directed the record to be produced and we find that the file was travelling to DRM. He has signed the office Note -sheet dated 23.6.1999. Thus, he was involved in the decision making process. The respondent No. 10 submits that he has been rightly selected and his services rendered at Manikpur Railway Station were highly appreciated. He has experience of Hotel USA and also of Hotel Basera. In the rejoinder filed by the petitioner it was contended that the experience certificate for the period 15.1.1994 to 31.12.1996 of Hotel Basera is fabricated, false and after thought and it did not see the light of the day in the first round of litigation upto 11.5.1999. The respondent No. 10 submits in his affidavit filed on 11.10.1999 that he worked at Hotel Basera from 15.1.1994 to 31.12.1996 in honorary capacity as Manager and gained experience and certificate has been filed as Annexure -R. 10/7 and an affidavit of Gendalal Patel, owner of Hotel Basera has also been filed along with Menu Card of Hotel Basera -Annexure -R. 10/9. Learned counsel for the appellant has assailed the judgment mainly on the same grounds taken by the petitioner as mentioned above. He has urged that procedure of arriving at the decision, was wholly impermissible. Different standard/yardstick has been applied while screening the applications and holding of interview could not have been dispensed with and cancellation of the interview was wholly impermissible and tainted with mala fide and the intended attitude has been that of grant of contract to respondent No. 10 only, though the grant was quashed earlier. Without following the due procedure, an effort was made to over reach the decision of the Court and the findings recorded earlier. His submission is that the experience of Hotel USA was taken into consideration which could not have been considered and the respondent is guilty of fabricating the document regarding experience of Hotel Basera and has filed false affidavit before this Court. If this experience was available and if he was working from 1994 to 1996 at Hotel Basera, he ought to have claimed the experience at the time of first round selection and in litigation in the year 1996. The procedure of selection was vitiated and was against the guidelines issued by the Railways and holding of interview was a must for the purpose of selection and it was not made known to anybody that interview was not to be conducted. In a calandestine manner, decision was taken not to conduct the interview and an undue haste was shown to grant the contract to respondent No. 10, whereas for selection process time of four months was available i.e. upto July 21st, 1999 and candidates could very well be called for interview within the time available. Thus, process of selection stands totally vitiated on that ground alone and deserves to be set aside. Learned counsel has also taken us through the proceedings of the Screening Committee as well as that of Selection Committee and submits that the procedure adopted for screening as well as selection has been unfair and cannot be said to be based on objective criteria. Learned counsel appearing for respondent No. 10 Shri Rajendra Tiwari, senior Advocate has addressed at length and submits that the parameter available for judicial review does not warrant any interference by this Court in the writ petition under Article 226/227 of the Constitution of India. The respondent No. 10 has been selected in proper manner. No prejudice has been caused by not holding the interviews and the interview is not provided in the policy. Learned counsel Shri S. K. Mukherjee appearing for the Railways also supported the submission of learned counsel for the respondent No. 10. During the course of hearing, we specifically directed the Railways to produce before us the record pertaining to issuance of advertisement and format of advertisement was settled by whom and under order of which authority it was settled. The records have been produced, but, that does not contain the proceedings with respect to settlement of advertisement. In both the advertisement, we find that the holding of interview was clearly contemplated and it is not disputed that at earlier occasion the interview was conducted. Notes have been filed by the Railways indicating that after the decision in the first round of litigation in W.P. No. 4374/1997 on 6.1.1999, a decision was taken by the Railway Authorities dated 1.2.1999 to initiate selection proceedings and it was decided there was no need for calling fresh applications and the recommendation of the new committee should be based purely on facts on record and reservation of SC/ST candidates are not to be made applicable in the review and the period for which the licence is to be issued is for the remaining period, not for five years which was advertised in 1996. In the meantime, the Railway Board issued letter dated 9.3.1999 that since new catering policy was under issue, therefore, the Zonal Railway should not finalise any contract or refreshment room and pantry cars till revised policy was issued. In accordance with the direction of the Division Bench of this Court made in LPA No. 24/1999, 24 applications were received, about 16 applications were found suitable by the Screening Committee for refreshment room and cases of these applicants were placed before the Selection Committee. All of a sudden, it was decided not to hold the interview. Thus, the Selection Committee after considering the record of all the applicants gave its recommendations. Kamlesh Kumar Mishra, respondent No. 10 was again found fit for grant of both the impugned contracts for remaining period of 3 years. It is urged on behalf of respondents that since this Court has directed selection strictly in terms of policy, hence, interviews were cancelled. It is necessary to mention that in the earlier writ petition W.P. No. 4394/97 neither the learned single Judge nor the Division Bench in LPA anywhere has held that conducting of interview was not permissible act. On the contrary, it appears from the decision that it was nowhere observed or even held that holding of interview is not proper mode of selection. Thus, in other words process of holding of interviews was not objected to, hence, by necessary implication, process of conducting of interview was upheld. We agree with the observation of the learned single Judge based on various Supreme Court's decisions that the Court has not to sit as an appellate authority as the decision of grant of contract and judicial review is mainly confined to whether decision making process was fair or not. It is apt to refer to various decisions on the question which lays down considerations of interference : The condition of eligibility has been held to be an essential condition. In case of Ramana Dayaram Shetty vs. The International Airport Authority of India and others (AIR 1979 SC 1628), where tenders were invited for running restaurant and snack bars, condition of eligibility was prescribed to be only the person running a registered IInd class Hotel or restaurant and having at least 5 years' experience as such should be eligible to submit a tender. Such a condition was held to be mandatory and person must fulfil it. The test of eligibility laid down was an objective test and not a subjective one. In paragraph 7 their Lordships have laid down as under : "We must in the circumstances, hold that, on a proper construction, what paragraph (1) of the notice required was that only a person running a registered IInd Class hotel or restaurant and having at least 5 years' experience as such should be eligible to submit a tender. This was a condition of eligibility and it is difficult to see how this condition could be said to be satisfied by any person who did not have five years' experience of running a IInd Class Hotel or restaurant. The test of eligibility laid down was an objective test and not a subjective one. What the condition of eligibility required was that the person submitting a tender must have 5 years' experience of running a IInd Class hotel, as this would ensure by an objective test that he was capable of running a IInd Class restaurant and it should not be left to the 1st respondent to decide in its subjective discretion that the person tendering was capable of running such a restaurant." In Poddar Steel Corporation vs. Ganesh Engineering Works and others ((1991) 3 SCC 273 = AIR 1991 SC 1579 = 1991 (2) Arb. LR 94 (SC)), the Apex Court has classified the requirement in a tender notice into two categories those which lay down the essential condition of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In case of Raunaq International Ltd. vs. I.V.R. Construction Ltd. and others ((1999) 1 SCC 492 = 1999 (1) Arb. LR 431 (SC)), their Lordships have laid down one of the relevant considerations for award of contract of commercial transaction to be past experience. In M/s. Monarch Infrastructure (P) Ltd. vs. Commissioner, Ulhasnagar Municipal Corporation and others (JT 2000 (6) SC 491 = 2000 (2) Arb. LR 638 (SC)), it was reiterated that the condition as to eligibility cannot be changed and must be observed. Learned counsel for respondent No. 10 has relied on Raunaq International (supra), that only when some elements of public interest is involved Court should make an interference not otherwise and their Lordships had laid down that it should be a consideration before the Court that proposed project may be considerably delayed and the result in escalation in the cost and interference is called for only to cater to substantial amount of public interest or the transaction is entered into mala fide, the Court should not intervene under Article 226 in dispute between two rival tenders. Learned counsel has also submitted that the Court does not sit in appeal in the realm of the contract. In case of Tata Cellular vs. Union of India ((1994) 6 SCC 651 = AIR 1996 SC 11 = 1995 (1) Arb. LR 193 (SC)), their Lordships of the Supreme Court have laid down the tests of Courts efforts to find out legality of whether a decision -making authority exceeded its powers or committed an error of law, or committed a breach of the rules of natural justice or reached a decision which no reasonable tribunal would have reached or abused its powers. The Court has to confine itself to the manner in which decision was made and the decisions of experts are not to be interfered with as to the matter of experience and eligibility gained as Manager of a Hotel. Objective test has to be applied not to subjective satisfaction. In case of State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision -making process and interference is called if it is found vitiated by mala fides, unreasonableness and arbitrariness, such bodies, have the public duty to be fair to all concerned. In case of Air India Ltd. vs. Cochin International Airport Ltd. and others ((2000) 2 SCC 617 = 2000 (1) Arb. LR 554 (SC)), these considerations have been laid down to be relevant while making Interference. In case of Sterling Computers Limited vs. M/s. M and N Publications Limited and others ((1993) 1 SCC 445), when irrelevant factors were taken into considerations, the grant was struck down. In case of Mahabir Auto Stores and others vs. Indian Oil Corporation and others (AIR 1990 SC 1031), it has been insisted that the State acts in its executive power under Article 298 of the Constitution in entering or not entering in contracts with individual parties. Article 14 of the Constitution would be applicable to those exercise of power. Therefore, the action of State organ can be checked under Article 14. Every action of the State executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article 14 of the Constitution. If a Government action even in the matters of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable. Rule of reason and rule against arbitrariness and discrimination, rules of fair play and natural justice are part of the rule of law applicable in situation or action by State instrumentality in dealing with citizens. Even though the rights of the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and non -discrimination. Their Lordships have also held that there can be "malice in Law". Existence of such "malice in law" is part of the critical apparatus of a particular action in administrative law. Indeed "malice in law" is part of the dimension of the rule of relevance and reason as well as the rule of fair play in action. Learned counsel for the respondent has relied on the decision in case of Tata Iron and Steel Co. Ltd. vs. Union of India and another ((1996) 9 SCC 709), to contend that judicial review in the policy decision -making is not permissible. In the instant case we are not adjudging upon the policy, but, in our opinion the policy which has been laid down has not been adhered to inspite of the clear direction of this Court in the same matter and the respondents have clearly acted arbitrarily as discussed hereafter. Learned counsel has also relied on the decision in case of Indian Airlines Corporation vs. Capt. K.L. Shukla and others ((1993) 1 SCC 17), to contend that the High Court cannot assume the role of Selection Committee and evaluate fitness of a candidate. We accept the submission. In our opinion the High Court cannot act as Selection Committee and evaluate fitness, nor we are resorting to that exercise, but, as per policy, condition of eligibility of having experience is an essential condition which cannot be waived or relaxed nor can be left at subjective satisfaction as per mandate of R. D. Shetty (supra). In case of M/s. G.J. Fernandez vs. State of Karnataka (AIR 1990 SC 958), tenders were invited from registered contractors of appropriate class and minimum qualifying requirements were also laid down. Learned counsel for respondents submits on the strength of the said decision that sufficiency of material should be decided by a person calling tenders not by the Court. We are not deciding the sufficiency of the material filed, but, in view of the finding in the previous writ petition wherein it was held that the respondent was not having any catering experience, whether that finding has been given weight and is binding and could be over reached of in the method and manner in which it has been done by the respondents and whether experience of Hotel 'Basera' though the authorities have accepted it ignoring the fact that such experience was never claimed while submitting the first application for the same contract, which was set aside this experience was not claimed right upto the Supreme Court. In case of New Horizons Limited and another vs. Union of India and others ((1995) 1 SCC 478), the tender of New Horizons Ltd. was not considered on the ground that its experience was not same as that of the appellant and acceptance of the tender of respondent No. 4 which offered a much lower amount as royalty was held to be arbitrary and irrational. The Apex Court finding the experience of New Horizons Ltd. was illegally discarded, interfered. In case of Monarch Infrastructures (P) Ltd. vs. Commissioner, Ulhasnagar Municipal Corporation and others (supra), the High Court set aside the award of contract in favour of M/s. Monarch Infrastructure (P) Ltd. because it had not fulfilled the condition regarding the Clause 6(a) of the tender notice. Same was deleted subsequently to the last date of acceptance of the tenders. The Apex Court approved the decision as the fresh tenders were already invited by the time the matter came to be decided by the Apex Court. The policy of the Railways Ex. P/1 issued on 6.1.1992 contains communication dated 6.1.1992 issued by Government of India, Ministry of Railway (Railway Board) contains the policy for allotment of catering/vending licences, which was framed to enable induction of contractors of repute and expertise to ensure improved quality of catering services to the passengers. It was decided that catering/vending licences must be given to only reputed and professional caterers. Thus, all the previous instructions were superseded and the applications are to be invited from the professional and reputed caterers through advertisement. Thereafter, the policy provides scrutinising of such applications by Screening Committee consisting of 3 officers of not less than JAG Grade in case of large important units and not less than Senior Scale Officers in respect of other units. The Screening Committee shall short -list the applicants keeping in mind the following factors : (1) Reputation/business standing of the applicant; (2) Turnover of the applicant's business; (3) Catering experience of the applicant; (4) Financial standing of the applicant; (5) Size of the establishment and staff required for the unit; (6) Location of the unit/units; and (7) Any other factor considered relevant by the Screening Committee. On the aforesaid seven considerations, screening process has to take place and thereafter consideration for Selection Committee are given in para 2 of the policy. Thus, the Selection Committee shall choose the most suitable among the short -listed candidates based on the reputation, capability, experience and track record of the party to give requisite standard of food and service to the passengers. However, in case of small and roadside stations preference will be given to Scheduled Caste/Scheduled Tribe candidates. There is no ceiling limit of holding of unit by a licensee. Para 8 provides that as far as possible only one licensee should be there for one station/train. This Court decided in the first round of litigation when the contract was awarded for the period 1997 to 2002 which decision has attained finality between same parties regarding the same contract, that the respondent No. 3, (respondent No. 10 herein) who was a completely a novice in the filed of catering, has been given a chance in order to induct fresh blood in the field of catering to groom them for better and professional management as old licensees have shown no improvement. This Court clearly held that respondent No. 10 (respondent No. 3 in the previous writ petition), was having no experience in the field of catering. The experience of respondent No. 3 as honorary Manager of USA Hotel was held to be no experience at all in the field of catering and the decision of the Committee was held not on the consideration of laid down policy and respondent No. 10 was held to be totally inexperienced in the field of catering and could not be awarded the contract simply on the ground of unsatisfactory record of existing contractors. Once, the policy provides various considerations, the decision must be based only on those considerations. Hence, fresh selection was directed. In paragraph 9 of the order passed in previous writ petition, learned single Judge of this Court observed as under : "(9) Here is a case where railway has itself laid down a written policy to be followed uniformly by all the Railway authorities for all railway stations. The selection committee was expected to make selection in the light of the laid down policy. Instead of comparatively assessing the merits of the various applicants for the two contracts, the selection committee chose to evolve its own policy of 'introducing youth and dynamism' in the field of catering. In this policy criteria evolved, experience, reputation and financial standing of a concern had little value as the new comers had to be given a chance. This action on the part of the selection committee is not only deviation from the laid down policy but infact substitution of a policy of its own. Such action can neither be termed to be fair nor just. The grievance of the petitioner is, therefore, legitimate that the selection committee in selecting respondent No. 3 has completely ignored the laid down policy and the norms indicated therein. The two decisions in the case of Tata Celluler (supra) and Sterling Computers (supra) fully support the petitioner's case and impel this Court to quash the action of the selection committee. It is the duty of the Court to enforce standards of fairness in actions of the government and governmental authorities while they are dealing with tenderers and contractors in granting contracts." The said decision rendered by Justice D. M. Dharmadhikari as he then was, and was approved by the Division Bench of this Court in LPA No. 24/1999. The LPA was decided on 22.3.1999. SLP against the said decision was dismissed by the Supreme Court. Points which arise for consideration are : (1) Whether the action of not holding interview inspite of mention in advertisement, is bad in law and the selection stands vitiated on this count ? (2) Whether the respondent No. 10 fulfils the eligibility criteria and possessed the experience as per requirement of the policy ? (3) Whether the approach of the Screening and that of Selection Committees while considering the experience and suitability was equal and uniform ? We take the first question for consideration, whether it was permissible to give a go by to the process of interview. It was mentioned in the advertisement that interview will be conducted. The petitioner's case is that the decision to dispense with the interviews was taken in undue haste and was not based on bona fides. It is further submitted that it has been the practice in past to call the incumbent for interview by the Selection Committee and then overall performance is considered in accordance with the policy, past record, reputation. It is submitted that the DRM who had also granted the contract earlier which was quashed was under transfer and was to be relieved on 29.6.1999 and had the interview been conducted as per the advertisement, it would not have been possible to complete the process of finalising the contracts before 29.6.1999. It is further submitted that with a view to finalise the contracts before DRM leaves, not only the interview was dispensed with, but, constitution of the Screening Committee formed on 14.6.1999 was changed on 15.6.1999, whereas the incumbent initially nominated was on leave only till 20.6.1999. The circumstances clearly indicate of undue haste. It is also submitted that the petitioner/appellant was confident of receiving call for the interview, but, without even informing decision of cancellation of interview both the contracts were awarded to respondent No. 10 in calandestine manner. It is further submitted that in order to assess the performance, antecedents, personality which includes assessment of various factors, on interview without resorting to it the final selection could not be made. It is also submitted that the reason mentioned that the policy is silent about the interview does not mean that the interview is not to be conducted. Alternatively, it is submitted that if the interview was not contemplated or was not to be held then the advertisement becomes bad as it clearly speaks of holding of interview before finalising the selection and for that purpose incumbents had to bear their own expenses. Learned counsel for the respondent No. 10 has submitted that it is for the Railway to explain the reason of not conducting the interview. His selection cannot vitiate on this count as similar treatment was given to all the incumbent. He was earlier interviewed when contract was granted to him, which stands quashed. Hence, it was not necessary to conduct his interview again. Learned counsel for the respondent/Railway has submitted that it was in accordance with the directions of this Court issued in the previous writ petition/LPA, and of the Supreme Court, the decision was taken not to conduct the interview as the directions was to make fresh selection strictly in accordance with the policy, thus, the interview was not conducted and advertisement issued was against the policy to that extent. In our opinion, once in both the advertisements, it was mentioned that interview will be conducted, it was not open to the respondent Nos. 1 to 9 to finalise the selection without calling the incumbents for interview. It is not denied that it has been consistent practice of Railways to conduct the interview before finalising the award of such contracts. In this case, there is no valid reason shown to exist for taking a decision of not calling various applicants found fit on screening for interview. There is no direction in the writ issued by this Court in W.P. No. 4394/1997 or LPA No. 24/1999 to debar interview. There are two stages of the process. First is screening and the second is selection itself under the policy; first is by the Screening Committee and later by the Selection Committee. The policy lays down various factors for the Screening Committee in order to short -list the candidates. They are seven in number : (i) Reputation/business standing of the applicant; (ii) Turnover of the applicant's business, if any; (iii) Catering experience of the applicant; (iv) Financial standing of the applicant; (v) Size of the establishment and staff required for the unit; (vi) Location of the until/units; and (vii) Any other factor considered relevant by the Screening Committee. Policy further prescribes that the Selection Committee shall choose the most suitable among the short -listed candidates based on reputation, capability, experience and track record of the short -listed candidates. The preference clause contained in paragraph No. 3 of the policy dated 6.1.1992 prescribes for any category in award of contracts and the basic criteria should be capability, reputation, experience and track record of the contractor to give requisite standard of food and service to the passengers. This part of the preference clause is relevant as Manikpur is a big railway junction. In order to assess the capability and the actual experience, it appears that interview was proposed to be held, which has undisputedly been the practice. In our view the respondent Nos. 1 to 9 were bound by the condition of advertisement and the mode prescribed of selection of the candidates and they could not dispense with holding of interview for grant of contract. No corrigendum to the advertisement was issued. The intention was not made known to any candidate of not conducting interview and on facts the allegations which has been levelled appears to be having substance in it that decision was taken to dispense with the interview on 23.6.1999 in undue haste so as to finalise the grant of contract at an early date. This fact has not been denied in the return filed by the respondent Nos. 1 to 9 that the DRM was under transfer and his reliever was to come on 29th January, 1999. There was undue haste shown. The time was available with the respondents of finalising the grant of contract till 22.7.1999, after dismissal of SLP by the Supreme Court, it appears that the note was put on 11.6.1999 to constitute a Screening Committee so as to screen the applications received upto 10.6.1999 which was the last date of submitting the applications. The Screening Committee was constituted on 14.6.1999. A note was put on 15.6.1999 that DEN(N) Member of Committee was on leave upto 20th June, therefore, screening of applicants was held up. Immediately, on 15.6.1999 itself the Screening Committee constitution was changed and DEN(S) was nominated as the Member of Screening Committee. The Screening Committee's minutes show that the screening was done on 18.6.1999 and thereafter upto 23.6.1999 nothing was done, whereas DEN(N) could have very well participated in the screening, since he was on leave upto 20th June, 1999 only and screening could be finalised on his arrival and nothing was done after screening till 23.6.1999. Thereafter the facts speak of undue haste shown in the matter is further fortified by the fact that on 23.6.1999 note was put before the Senior DCM/ADRM and DRM/Senior DCM which runs as under : OFFICE NOTE Date : 23.06.1999 Sub. : Award of refreshment room (Veg. and Non -Veg.) licence at Manikpur Station. The screening committee comprising of DCM, DEE(G) and DEN(S) have screened the applications received for refreshment room (Veg. and Non -Veg.). The proceedings of screening committee are pat up at P -43 for perusal. As per policy, after screening of applications, the selection committee shall choose the most suitable among the short listed candidates based on the reputation, capability, experience and track record of the short listed parties. ADRM is, therefore, requested to kindly decide if interview in this case may be cancelled. Submitted for orders please. Signed. Above office note speaks only dispensing with the interview with respect to refreshment room (Veg. and Non -Veg.), not with respect to Tea, Coffee, Sweet, Namkin and fruits stalls, interview for which was also not held. The said office note was signed by the persons mentioned above. It is clear that the interview was to be conducted, that is why this proposal of cancellation was moved and this assumes significance as after next five days DRM had to vacate the office which fact has not been disputed by the Railways. The submission of counsel for the Railways that since this Court in the previous writ petition/LPA had directed not to conduct the interview, hence, it was cancelled. As a matter of fact, this submission is entirely fallacious and has no legs to stand. This Court has not at all directed that holding of interview was bad in law or had vitiated the decision of first grant made in favour of respondent No. 10. The only direction issued by this Court was that the decision should be taken in accordance with the considerations mentioned in the policy and fresh applications were directed to be invited so as to widen the field of considerations to select better candidates. Thus, taking the garb of the order of this Court of not taking the interview is absolutely non -existence as this Court has not at all adversely commented on the process of holding of interview for finalizing of selection. Nor it was mentioned in note sheet dated 23.6.1999 that there was any such direction of this Court as suggested. Pursuant to the decision of this Court in W.P. No. 4394/1997 dated 6.1.1999, a decision was taken on 1.2.1999 by the Railways to initiate the selection proceedings as per the direction of this Court as issued by the single Bench, there was no need for calling fresh applications and the new committee should consider the facts on record in accordance with the policy and observation of this Court made by single Bench, but, this part of direction was modified by the Division Bench of this Court in LPA No. 24/1999 wherein this Court has clearly directed as under : "(7) We are of the opinion that the approach of the learned single Judge appears to be just and it cannot be said that the view taken by the learned single Judge in the facts and circumstances of the case is in any way wrong. The learned single Judge has clearly directed that fresh selection should be conducted within the time bound programme. The learned counsel for Railway Administration has submitted that it is not clear whether reconsideration by committee should be confined to the candidates who have applied or to invite the fresh applications. It is clarified that fresh applications should be invited so that Committee may have better candidates and choice may become more wider. It would be more in consonance with the justice as more persons can compete for purposes of grant of licence. We are of the opinion that the view taken by the learned single Judge is correct. The Railway Administration should proceed and undertake the fresh process for selecting the best candidate. The process of selection should be conducted within a period of four months. Appeal being without any merit is dismissed with the above directions. No order as to costs." When this Court directed that fresh applications should be invited so that Committee may have better candidates and choice may become more wider and more persons were allowed to compete and the respondents had accepted the decision of this Court in LPA as they had no option, SLP filed against it was dismissed by the Supreme Court and they issued re -advertisement mentioning that the expenses for attending the interview will be borne by the incumbent attending it and as a matter of fact fresh applications came and more candidates applied, thus, the interview should have been conducted. Thus, we find that the policy does not bar interview, the respondent Nos. 1 to 9 are bound by advertisement and consistent practice and as a matter of fact after finalising and granting the contract on 28.6.1999, it appears from the record produced that the legal opinion was sought of the counsel and on 21.8.1999 DRM had written letter to the Advocate seeking his legal opinion on the question of the notifications published in the newspaper inviting applications for award of contract at Manikpur Railway Station for Tea, Coffee, Sweets, Namkin and Fruits stall and for refreshment room (Veg. and Non -Veg.). In both the notifications, it was mentioned that the applicants will have to attend the interview at their own expenses. But, the interview was not conducted for short -listed candidates in view of the policy. Opinion was sought if the interview was necessary for selection of catering licence. The counsel did not consider it fit to give legal opinion as the matter was sub -judice in WP No. 3186/1999. Thus, the decision for dispensing with the interview appears to be taken in undue haste to finalise the grant of contract before DRM leaves on 29.6.1999 and the contract was granted on 28.6.1999, DRM himself had signed the office note dated 23.6.1999 of dispensing with the interview whereas he was already under transfer. This fact goes to show that the respondents were clearly trying to over reach the decision of this Court of single Bench and LPA Bench. The contention raised that the interview was not conducted for all the candidates, hence, there is no discrimination, is not acceptable as the main question is whether the respondent Nos. 1 to 9 have followed the procedure mentioned by them in the advertisement of selection and whether departure made is permissible ? In our opinion since the decision to dispense with the interview firstly was impermissible and secondly was improper, we have no hesitation to reject the submission raised when procedure is settled it has to be followed. Concept of equality or non -discrimination cannot be invoked on the face of irregularity or illegality. The decision to cancel the interview violates mandate of Tata Cellular (supra), the State and its instrumentality are bound to adhere to norms, standards and procedure and cannot depart from them arbitrarily. Now we come to the question of eligibility of respondent No. 10 and acceptance of his candidature and the question whether acceptance and grant of contract to him is in accordance with the policy of the Railways ? The policy of the Railways as contained in memo dated 6.1.1992 for allotment of catering/vending licences mentions for the purpose of scrutiny, reputation/business standing, turnover if any, catering experience, financial standing, size of the establishment and staff required for the unit, location of the unit are the relevant criteria for the purpose of screening the application in order to short -list the candidates, whereas the selection has to be made of most suitable among the short -listed candidates based on (i) reputation (ii) capability (iii) experience and (iv) track record of the short -listed parties. Applying the dictum of decisions in R. D. Shetty (supra), Poddar Steel Corporation (supra), Raunaq International (supra) and M/s. Monarch Infrastructures (supra) to the facts, in the instant case, the respondent No. 10 was not fulfilling the condition of eligibility as his experience of hotel USA, Satna was negated in the previous writ petition and experience of Hotel Basera was not claimed in the previous writ petition and the document which has been annexed is of doubtful origin and respondent Nos. 1 to 9 had taken into consideration the experience of Hotel 'USA' and Hotel 'Basera' which has vitiated its decision, experience of Hotel 'USA' could not be taken into consideration in view of the finding of this Court in the previous writ petition, the experience of Hotel USA had become irrelevant and the respondents while taking it into consideration again, have virtually proceeded against the decision of this Court upheld by the Supreme Court, which was binding on them in the same contract for the same period. The policy requires possessing of experience and goods track record. Thus, the selection made is vitiated being not in accordance with the policy and the experience gained by respondent No. 10 under the illegal grant which was quashed was not the only consideration for adjudging experience, but. Selection Committee had considered impermissible material of Hotel 'USA' and "Basera". The experience gained by respondent No. 10 under the illegal contact which was quashed for the same period and again for the purpose of remaining period of same very contract the said experience has been taken into consideration, which cannot be said to be fair and equal treatment for all the incumbents. This Court in previous writ/LPA held that the respondent No. 10's selection was bad in law for want of his possessing catering experience. The experience acquired during the pendency of the previous writ petition, which was quashed, could not be counted in order to hold respondent No. 10 to be experienced for remaining period of same contract, this is clearly an attempt to over reach the finding of this Court, by the Selection Committee. The condition of eligibility was also mentioned in the advertisement as an essential and the documents were required to be submitted in that regards. This Court in previous writ petition W.P. No. 4394/1997, while grant made in favour of respondent No. 10 was quashed and fresh selection was directed to be made, has held in paragraph No. 7 as under : "(7) From the above quoted decision of the selection committee what is apparent is that respondent No. 3 has been selected only for, as has been described by it 'induction of youth and dynamism in the area of catering". The committee has stated that the existing contractors and old licensees have shown no improvement. It is, therefore, necessary to bring in some fresh blood in the field of catering to groom them for better and professional management. It appears that it is with the above object that respondent No. 3, who was a completely a novice in the field of catering, has been given a chance." In paragraph 8 it was further held as under : (8) The learned counsel for respondent No. 3 tried hard to convince this Court that he is experienced in catering. Along with the rejoinder of the petitioner, certain documents have been filed to show that respondent No. 3 was only working as a honorary manager for a very brief period in a private hotel called Hotel USA on a formal enquiry made by the petitioner from the Labour Department respondent No. 3 was not shown on the list of employees. The petitioner has also produced some bills of USA hotel to show that there is only facility of stay and not of food. The inmates of the hotel were supplied food from caterers outside. The experience of respondent No. 3 as honorary manager of USA hotel which has only lodging facility cannot be taken to be any experience at all in the field of catering. The selection committee itself has not treated it to be an experience and has given a chance to respondent No. 3 only, as described by it to 'induct youth and dynamism in the area of catering". It is apparent from the minutes of the selection committee and its decision contained in the portion quoted above that the committee did not adhere to the laid down policy of encouraging totally young and inexperienced caterers because of unsatisfactory record of the existing contractors. It is not for this Court to decide whether the policy evolved by the selection committee is fair, sound and for the best interest of the travelling public. Ordinarily in matters like the present one of selecting best caterer at the railway station for supply of eatables and food to travelling public, the administrative officers constituting the selection committee should be allowed to exercise their discretion and best judgment and this Court should refrain from interfering. The scope of interference by the Court in such matters should be minimal. The Court is not concerned with the correctness or otherwise of the actual decision taken. The Court, if at all, when called upon, is concerned with the selection making process. The Administrative law in view of the obligations of the State and its authorities under Articles 12 and 14 of the Constitution of India, has already made sufficient advance to permit this Court to scrutinise whether the decision making process in awarding contracts was just and fair." Thus, the extract of finding of this Court in the previous writ petition is that the respondent No. 10 was having no experience at all in the field of catering and this decision has attained finality with respect of experience of USA Hotel at Satna. The finding of this Court with respect to the experience at USA Hotel is final and conclusive and binding on the Railways while deciding the question afresh. However, the selection committee has taken into consideration the experience of USA Hotel while arriving at finding in favour of respondent No. 10. Though, we are aware that this Court is not sitting as Court of appeal, in such a matter, but, fact remains that USA Hotel's experience of respondent No. 10 was held to be of no experience in the field of catering. Respondent No. 10 has been found to be possessing experience by the Selection Committee on three counts : (i) He had worked from 1990 to 1993 in the Hotel USA at Satna, (ii) Experience of Hotel Basera from 1994 to 1996, and (iii) Experience gained under the same contract, quashed by this Court. The observation of the Selection Committee mentions that "The committee has gone through all the offers which Screening Committee has found suitable in the light of Railway Board's guidelines (experience, capability, reputation, track record) available in this office about penalty imposed and irregularities noticed during inspection about existing licensees was also seen". The observations of the Selection Committee with respect to respondent No. 10 are as under : "13. Shri Kamlesh Kumar Mishra : The candidate has worked on Civil Engineering contracts of stations between Satna -Manikpur for Dy. CE (Construction)/Railways/Jabalpur between 1989 to 1993. He is a graduate from A.P.S. University, Rewa. He has worked as Manager in Hotel USA, Satna from 1990 to 1993 and as Manager in Hotel Basera from 1993 to 1996. He is the existing licensee of DRM and Tea stall at Manikpur Railway Station since 13.9.1997. Performance of the candidate as existing licensee has been found above average. There has been no public complaint for unsatisfactory catering services at Manikpur during the period of operation of his contract. An inspection by Divisional Railway Manager alongwith Divisional Railway Users' Consultative Committee member on 30.9.1997 found the quality of meals satisfactory. Irregularities were, however, detected in Senior DCM's inspection on 12.2.1998 in the maintenance of records, the quality and quantity of ingredients used, the cooking systems used and in the sale of unauthorised items for which the licensee was fined Rs. 1,000. The committee notes that there has been widespread appreciation of the catering services rendered by the licensee. During the period of operation of the contract, there were 74 commendations, including 25 by prominent members of the public." The conclusions and recommendations were separately given by the Selection Committee and the Selection Committee concluded in view of the observations to give both the contracts to respondent No. 10. The decision of the Selection Committee stands vitiated on various grounds. First as already mentioned for the reason that it has been taken into consideration that the respondent No. 10 has worked as Manager in Hotel USA, Satna from 1990 to 1993. Secondly, the experience which has been found by the Selection Committee of respondent No. 10 possessing the experience as Manager at Hotel Basera from 1993 to 1996. The experience of Hotel Basera from 1993 to 1996 is clearly an after though and documents have been manufactured so as to get rid of the finding of this Court recorded earlier against respondent No. 10 that he was not having catering experience of Hotel USA when the earlier contract was awarded to respondent No. 10, the last date of submitting the applications was 10.12.1996. If as a matter of fact had the respondent No. 10 been actually working in Hotel Basera he would have definitely claimed this as his experience of catering, but, admittedly he had not mentioned this fact in the first application pursuant to which his selection was made in 1997 and was quashed by this Court in 1999 on the ground that he was having no experience in the field of catering and his experience of Hotel USA was held to be no experience in the field of catering. We find no plausible reason available to respondent No. 10 for not disclosing this fact in the application submitted in December, 1996 for obtaining the same contract, a material fact which cannot be ignored. The certificate of experience (R -10/3) filed by the respondent is dated 1.1.1997, he should have mentioned this fact in his application filed in December, 1996 that he was working in Hotel Basera as Manager from 1994. The interviews were previously conducted on 24.2.1997 and on 11.3.1997. If this certificate of Hotel Basera was earlier possessed and was actually obtained on 1.1.1997, by respondent No. 10 of Hotel Basera. If it was really in existence at the relevant time, nothing could prevent respondent No. 10 from submitting it before the interview Board. Not only this in the previous application filed in the month of December, 1996, he did not mention this fact of working as Manager in Hotel Basera. He did not take this stand when his experience was put to an issue in the first round of litigation. In paragraph No. 5.12 of W.P. No. 4394/1997 the petitioner had averred with respect to respondent No. 10 (who was respondent No. 3) that so far as the respondent No. 3 is concerned he possesses no qualification as required. Apart from this, there is no eligibility to his credit as per advertisement issued on 10.11.1996. The respondent No. 3 does not possess any of the requirements mentioned by the respondent Board in the matter of allotment of catering contract, such as professional experience, reputation/business standing and catering experience. In the previous writ petition, in reply to the said averment made in the writ petition, in the return filed by the respondent No. 10 in 1998 the following was mentioned : "As to paragraph 5.12 : The contents are absolutely incorrect, the answering respondent has wide experience of catering and he is also doing business of Tendu leaves. Infact, the answering respondent has served as a catering manager in the well known Hotel USA at Satna in Madhya Pradesh. It is pertinent to mention here that the said Hotel is renowned Hotel at Satna and is the only VIP Air Conditioned Hotel for the Visitors/Tourists. The photo copies of the experience certificates issued by the proprietor of the USA Hotel dated 5.4.1993 and 26.7.1997 are filed herewith and marked as Annexures R -3B and R -3C. The answering respondent also filed the copy of rates and menu which are annexed herewith as Annexures R -3D and Annexure R -3E. It is in this Hotel the answering respondent has successfully managed as Catering Manager. On the contrary it is petitioner who has no experience in respect of the catering as a business and this would be clear from the return of income tax, photocopies of which is filed here with and marked as Annexures R -3F and Annexure R -3G." The return was filed on 25.2.1998 along with affidavit and in the return it was not claimed by the respondent No. 10 that he had experience of Hotel Basera from 1994 to 1997 also in addition to that of Hotel USA. Hotel's USA's experience was rejected by Court and with respect to Hotel Basera it was not claimed, obviously for the reason that the respondent No. 10 as a matter of fact did not possess this experience and was not working as Manager at Hotel Basera on honorary basis. In the previous LPA No. 24/1999 filed before this Court, a perusal of memo of appeal does not show that experience of Hotel Basera was claimed or asserted at any point of time. The selection was primarily rejected by the Single Bench in the previous writ petition on the ground of inexperience of respondent No. 10. If he was possessing such experience he ought to have pleaded, asserted and claimed not only in the application filed in December, 1996 before the Selection Committee, but, before this Court also. Thus, we are of the opinion that the respondent No. 10 has no experience of working as Manager at Hotel Basera and he could not now claim that experience, if it was available, it ought to have been asserted, claimed in the previous litigation as this experience pertains to the period prior to the first selection and nothing precluded respondent No. 10 from claiming it. It is clear that whatever pleas available to the parties of experience ought to have been put forth earlier. Besides, that technical rule of barring taking such a plea later on in our opinion on facts it is clear that the respondent No. 10 was having no such experience and he had rightly not claimed it right upto the Apex Court till 1999. We have other reason also to discard the experience certificate of Hotel Basera as contained in Annexure -R -10/7. The return on behalf of respondent No. 10 dated 12.9.1999 was filed on 14.9.1999 when the case was fixed before the single Bench. In paragraph No. 25 of the return to WP 3186/99 in the instant matter, the experience of Hotel Basera was not claimed, nor any document was filed in this regard. In the return filed by respondent No. 10 on 12.9.1999 there was no whisper with respect to experience of Hotel Basera nor any document was filed. However, an additional affidavit was filed by respondent No. 10 on 11.10.1999 and a rejoinder was also filed by the petitioner on the same date. In the affidavit of respondent No. 10 certificate dated 1.1.1997 Annexure R -10/7 was filed for the first time before the High Court. The certificate mentions that Kamlesh Kumar Mishra, respondent No. 10 had worked as manager in Hotel Basera on honorary/non -salary basis from 1994 to 1996 in order to gain experience. Copy of the affidavit was also filed of one Gendalal, Proprietor of Hotel Basera dated 9.10.1999 in support of this certificate dated 1.1.1997. M.P. Shops and Establishment Act, 1958 is applicable to Hotels and the registration of the establishment is necessary under Section 6 and it is necessary to every establishment to send statement in the prescribed form containing the name of the employer, the manager and the presently holding position of management, if any, the name of the establishment and the category of the establishment such as Hotel, etc. Section 6(2) of the Act lays down the following particulars to be notified in the prescribed form : (a) the name of the employer, the manager and the person holding positions of management, if any; (b) the postal address of, and the date of starting the business by, the establishment; (c) the name, if any, of the establishment; (d) the category of the establishment, i.e. whether it is a shop, commercial establishment, residential hotel, restaurant, eating -house, theatre or other "place of public amusement or entertainment; and (e) such other particulars, as may be prescribed. Section 7 prescribes a duty of an employer to notify to the Inspector, in the prescribed form, any change in respect of any information contained in his statement under Section 6 within seven days after the change has taken place. The case of the petitioner in the present writ petition was that had respondent No. 10 actually worked as Manager, his name should have been mentioned in the particulars of registration maintained under the M.P. Shops and Establishments Act, 1958. The certificate P/34 of Hotel USA has been filed which does not record the name of respondent No. 10 in the capacity of Manager. The Manager is shown to be Shakeel Ahmed and Smt. Yasmin Shakeel. In counter the affidavit the respondent No. 10 has filed one certificate Annexure R -3/3 dated 8.9.1999 issued by the Assistant Labour Commissioner that employees names and addresses are not to be mentioned in the particulars mentioned under the M.P. Shops and Establishment Act, 1958. Only number of employees is mentioned. But, the respondent No. 10 was working as a Manager, if he was working in any managerial capacity, in view of Section 6(2)(a) of M.P. Shop and Establishment Act, he ought to have found mention in registration particulars as every change is also required to be submitted with respect to managerial person. With respect to Hotel USA the respondent No. 3 has filed document Annexure R -3/3 in order to impress that the names are not to be mentioned of the employees, but, his submission is palpably incorrect as in the registration particulars of Hotel USA name of Manager has been mentioned as Shakeel Ahmed and Smt. Yasmin Shakeel. No such particulars of Hotel Basera has been filed before us by the respondent No. 10 and it is clear that his name was not mentioned in particulars mentioned under Sections 6 and 7 of the M.P. Shops and Establishments Act, 1958. He had not claimed this experience of Hotel Basera earlier round of litigation upto 1999 as such an experience was in existent. There is not even a single document filed of Hotel Basera which may have been signed by the respondent No. 10 while working from 1994 to 1996 in the capacity of Manager. It appears that proprietor of Hotel Basera has simply obliged him by issuing a certificate that too mentioning clearly that respondent No. 10 had worked on honorary basis. It is surprising that for three years he worked as Manager on honorary basis without realising a penny. There is also no document filed signed by respondent No. 10 evincing that he worked as Manager at Hotel Basera. It appears that the respondent No. 10 without working may not claim the salary, the fact of his working on honorary basis was mentioned in certificate specifically though certificate did not require it to be so mentioned. In the absence of corresponding evidence of respondent No. 10 of working at Hotel Basera in view of the clear finding of this Court recorded in 1999 that the respondent No. 10 is inexperienced in the field of catering we cannot act upon the experience claimed by respondent No. 10 while submitting the application on 10.6.1999 that he was working at Hotel Basera though the fact is mentioned in the application which appears to have been submitted in June 1999, but, for the reason mentioned above we have no hesitation to reject the so -called experience of 'Hotel Basera' which is clearly an after thought and the documents appear to be obtained in order to get rid of the finding of this Court recorded in the first writ petition. Thus, the Selection Committee's decision is vitiated on the ground of taking into consideration the experience of Hotel Basera also. An attempt has been made by filing the document Annexure R -3/3 by the respondent No. 10 to submit that as a matter of fact the finding of the previous writ petition recorded by the single Bench was contrary to the material which was on record of that writ petition. Firstly, we are of the view that the finding which has been recorded is binding as in the previous writ petition it was clearly a matter in issue, whether the respondent No. 10 was having an experience of catering and decision was rendered by this Court on merits and finding is conclusive and binding, attempt to reopen the finding is futile. Registration particulars of Hotel USA, Satna show absence of name of respondent No. 10 from managerial staffs. Though we are not sitting in appeal, but, we are of the opinion that absence of name of respondent No. 10 in the registration particulars of Hotel USA, Satna goes to negate his submission that he was having the experience of Hotel USA catering services. The certificate of Hotel USA Annexure -R -3/5 which is menu card of DAWAT Restaurant was also on record in the previous writ petition. If he was working either in the Hotel USA or its DAWAT Restaurant, his name should have been mentioned in P/34 registration particulars of Hotel USA or that of DAWAT Restaurant P/ -35. Moreover, the experience which is said to be gained from 1990 to 1993 was again on honorary basis without payment of salary. There is no document filed of this period also which would show that as a matter of fact the respondent No. 10 had discharged the duty of Manager. Not a single document of that period has been filed which may be in writing of respondent No. 10. It cannot be taken that the respondent No. 10 was continuously working without payment of salary from 1990 and the finding of this Court in the previous writ petition right or wrong is binding and the said finding appears to be based on sound reasoning and has been overlooked/ignored by respondent Nos. 1 to 9 while selecting the respondent No. 10 again considering that every experience after his grant was quashed with respect to the contract in question only. In our opinion applying the dictum of Apex Court in case of Sterling Computers Limited (supra), in the instant case as impermissible material has been taken into consideration, hence, we have no option except to quash the contracts. Once the experience of Hotel USA and Basera is negated, there remains only the experience which the respondent No. 10 is said to have obtained while working under both the contracts granted in 1997 till they were quashed by this Court in 1999. In our opinion since both the contracts were quashed by this Court in LPA and fresh selection was directed inviting fresh applicants and previous decision was held to be not in accordance with the policy of the Railways the findings were supposed to be given effect to with respect to inexperience of respondent No. 10 in the field of catering, Division Bench of this Court in LPA No. 24 of 1999 decided on 22.3.1999 has taken serious note of irregularities, wherein it was noticed that fine of Rs. 1,000 was imposed for supplying less quantity, selling impermissible material, food was found not upto the standard and instead of 1 Kg. which was printed, material being supplied was 600 grams of PETHA of which sale was not authorised, PAN stall was found in operation sale of which was restricted. Thereafter it was not fair for the Selection Committee to consider that very experience which has been obtained by respondent No. 10 while working under illegal grant of contract of refreshment room and tea stalls which was set aside by this Court while giving categorically finding that the respondent No. 10 was inexperienced and the experience being one of the considerations under the policy, decision should be strictly taken in accordance with the policy, not on the basis of youth or dynamism. Thus, the contracts which were illegally procured/given to the respondent No. 10 in 1997 and were set aside, that experience should not and ought not to have weighed with the respondent. There is left nothing, in the field of experience of respondent No. 10. We have, thus, no hesitation to come to the conclusion that the experience which is one of the main consideration of eligibility in the policy of the Railways of 1992 was not fulfilled by respondent No. 10, it is really painful that this exercise has to be undertaken again when in previous writ in same contract for same period finding of experience was recorded against respondent No. 10. Thus, grant of contract to him is clearly an arbitrary act dehorse of the policy and shows undue insistence of respondent Nos. 1 to 9 to give the contract only to respondent No. 10. They are expected to act in grant of contracts in fair and equal manner to everybody. In our view in the facts and circumstances of the instant case decision is such which was arrived at in the unreasonable manner and it appears to be a case of abuse of process and powers, and error of law was also committed while taking into consideration same experience in contravention of the decision rendered in the previous writ petition by this Court in the same contract which was affirmed by the Supreme Court and the contract to utmost surprise was again given to the same person counting that very experience also. Wednesbury Principle of fairness requires to act fairly. Illegality, irrationality and procedural impropriety, etc. can be the grounds of making an interference. Irrationality may occur when weight of the facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld, Action can be unreasonable if it is unequal in its operation as between different classes. If unequal treatment has been given, the decision has to be set aside. We have found that on the ground of not possessing managerial experience in the capacity of being proprietor several persons were adjudged ineligible and discarded whereas so called managerial experience without his being proprietor of concern which we have found that respondent No. 10 was not possessing, was taken into consideration. Thus, on the touch stones of the various tests and the principles laid down in Tata Cellular (supra), by the Apex Court we have no option except to quash the grant made of both the contracts in favour of respondents No. 10. Though in view of our findings above it is not necessary to consider other illegalities, however, there are other reasons also to cull out that unfair treatment has been meted out to various incumbents while arriving at the decision to grant the contracts to respondent No. 10 and everybody has not been treated on the equal footing. We find several impermissible aspect adverted to in the method and manner in arriving the conclusion though we are not sitting as Court of appeal but, criteria which has been applied leaves no room for doubt that the respondents Nos. 1 to 9 have failed to apply the policy equally to all. The experience of several better incumbents acquired as Manager of prestigious Hotels was rejected on the ground that it was not acquired in the capacity of their being proprietor of said Hotels. The policy does not require that one should be proprietor of such a Hotel and respondent No. 10's experience admittedly was not in that capacity of proprietor, but was taken into consideration and accepted. The Selection Committee's minutes show that experience of Shri Arif Kamal Khan was rejected as he was having experience of catering manager and was not of proprietor of catering business. Similarly the experience of Shri Manoj Kumar Sharma was rejected on the ground "the candidate has experience of manager and not as proprietor of the business". The experience of Shri Kamlendra Singh was rejected in the following words : "The candidate has experience as Manager and not as Proprietor of business. The experience of Shri Rameshchandra Srivastava and Shri Vinod Kumar Mishra was also rejected on the same ground that they were not possessing it as proprietor. Experience of Shri Raj Kumar Srivastava was also rejected on the ground that he has no experience of proprietorship of catering establishment. Thus, we find that different standards have been applied in the decision making process by the Selection Committee. The better experienced candidates have been rejected on the ground that they were not possessing it in the capacity of proprietor of the business whereas the respondent No. 10's experience was accepted without his being proprietor. Thus, we find that different yard -sticks were applied to assess the experience which is ex facie illegal and arbitrary approach in the decision making process. In the instant case applying the test of Mahabir Auto Stores and others vs. India Oil Corporation and others (supra), no valid reason has been shown to dispense with the interview and there are other impermissible factors and the action is clearly discriminatory and unfair and criteria has been unequally applied to the candidates. Decision making process was itself arbitrary, discriminatory and unreasonable. The action is also against the ratio of Raunaq International Ltd. (supra). In the instant case, on facts we have found experience of others was discarded on illegal consideration which also vitiates the law laid down in the case of New Horizons Limited and another vs. Union of India (supra). Though it is not necessary to go into question, it is also to be noticed that the diploma holders were to be given priority as per the advertisement issued for both the contracts. There were diploma holders who had applied. One such diploma holder was rejected at the screening stage itself by the Screening Committee namely; Dinesh Gupta who had preferred W.P. No. 3281/1999 before the single Bench which was decided along with writ petition filed by the present appellant i.e. W.P. No. 3186/1999. Claim of petitioner was also discarded on irrelevant consideration dehorse of policy. Further the policy/advertisement gives the priority to diploma holders, which has been given a go -by, while not following the policy decision the candidature of Shyamanand Gupta was rejected on the ground that he was Manager of Four Star Hotel. Thus, the degree/diploma holders were ignored to whom priority was to be given and inexperienced respondent No. 10 was chosen by counting the experience under the quashed grant of contract, thus, unfair advantage has been given to the respondent No. 10 which could not be given particularly in the same very contract for the reminder of the period 28.6.1999 to 26.8.2002 granted as per Annexures P/13 and P/14, the initial grant of contract in favour or respondent No. 10 was for five years made in 1997 upto 2002 which has been quashed in the first round of litigation. In the result LPA is allowed. The grant of contracts of refreshment room (Veg. and Non -veg.) and Tea, Coffee, Sweet, Namkin, Fruits stalls as per Annexures -P -13 and P -14 is quashed. Respondents are directed to start forthwith entire selection process afresh in accordance with the policy and conclude it within two months from the date of this order. The judgment passed by the learned single Judge is set aside. Writ Petition No. 3186/1999 is allowed. Costs on parties.