Jharkhand High Court
Manjeet Plastic Industries vs State Of Jharkhand on 12 September, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.3857 of 2024
----
Manjeet Plastic Industries, through its Authorised
Signatory, Mr. Nitinn Kapoor @ Mr. Nitin Kapoor, aged
about 42 years, son of Mr. Manjeet Kapoor, R/o House
No.30, Road No.56, Punjabi Bagh, P.O.-Punjabi Bagh-III,
P.S.-Punjabi Bagh Delhi-110026 … … Petitioner
Versus
1. State of Jharkhand, Through Secretary, Department of
School, Education & Literacy, office at MDI Bhawan,
Ground Floor, Dhurwa, P.O. & P.S.-Dhurwa, Dist-
Ranchi, Jharkhand.
2. Joint Secretary, School Education and Literacy
Department, office at MDI Bhawan, Ground Floor,
Dhurwa, P.O & P.S- Dhurwa, Dist- Ranchi, Jharkhand.
3. Jharkhand Education Project Council through its Project
Director having its registered office at JSCA Stadium
Road, Jagannathpur, Sector-III, Dhurwa, P.O. and P.S.
Dhurwa, District Ranchi.
4. M/s Sumaja Electroinfra Pvt. Ltd. Through Mr. Sudhir
Aggarwal, Share Holder, having its office at 231, Tagore
Park, New Delhi-110009.
5. Mr. Sudhir Aggarwal, S/o- not known to the petitioner,
R/o- 231, Tagore Park, New Delhi- 110009.
6. M/s High Spirit Commercial Ventures Pvt. Ltd. Through
Mr. Tushar Jain, Director, Universal Majestic, 1009-
1010 10th Floor, PL Lokhande Marg P.S-Ghatkopar
Mankhurd Link Road, P.O- Govandi Dist-Mumbai,
Maharastra.
7. M/s. Shiv Naresh, Through Shiv Prakash Singh,
Managing Director, E-23, Karampura, P.O & P.S-
Ramesh Nagar, New Delhi. … … Respondents
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CORAM: HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE ARUN KUMAR RAI
——
For the Petitioner : Mr. Indrajit Sinha, Advocate
Mr. Ashutosh Jain, Adv. (Through V.C.)
Mr. Sahil, Advocate
Mr. Saurabh Narayan, Advocate
For the State : Mr. Mohan Kr. Dubey, AC to AG
For the JEPC : Mr. Krishna Murari, Advocate
Mr. Raj Vardhan, Advocate
Mr. Harshpreet Singh, Advocate
——–
C.A.V. on 06.08.2024 Pronounced on 12.09.2024
Per Sujit Narayan Prasad, A.C.J.
I.A. No.6839 of 2024
1. The instant interlocutory application has been filed for
seeking amendment/addition in the para(1) and prayer clause
of the writ petition, which reads as under:-
“(a) For issuance of appropriate writ /order
/direction quashing the Letter dated
04.07.2024. to the extent that Petitioner has
been declared ineligible in view of Section VI (a)
of the Impugned Tender conditions which has
already been challenged in the instant writ
petition being arbitrary and illegal and staying
the tender process till the issues involved in the
writ petition get resolved.
(b) Stay the operation of letter dated 04.07.2024
till the issues involved in the writ petition get
resolved.”
2. Learned counsel for the petitioner has submitted that the
instant interlocutory application has been filed for seeking leave
of this Court to amend the para (1) and prayer clause by
challenging the decision taken by the Technical Committee, by
which, the respondent no.3 vide letter dated 04.07.2024 has
opened the Technical Bid, in which, the petitioner’s bid has
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W.P.(C) No.3857/2024
been rejected.
3. Learned counsel for the respondents, are having no
objection in allowing the instant interlocutory application.
4. This Court, considering the aforesaid fact, is of the view
that the said interlocutory application needs to be allowed and
accordingly, allowed.
5. Accordingly, the prayer, as allowed is treated to be the
part of the present petition.
6. In view thereof, I.A. No.6839 of 2024 stands allowed.
Prayer
7. Initially, this writ petition has been filed under Article 226
of the Constitution of India for the following reliefs:-
“(a) For issuance of appropriate writ / order /
direction for quashing the tender/bid no.
(Annexure-2) MRE/33/252/ 2024-25/1509
issued by Respondent No. 3 to the extent of the
eligibility criteria (Section VI(a)) on the grounds
that the same are arbitrary, irrational and
violative of Articles 14 and 19 of the Constitution
of India; and pass direction for modifying the
eligibility criteria [Section VI(a)] to include
proprietorships;
(b) Direction in the nature of writ of mandamus or
any other appropriate writ, orders or directions in
the nature thereof, inter alia directing Respondent
No 3 to consider the representation dated
14.05.2024 submitted by the Petitioner and to
consider the bid submitted by the Petitioner, a sole
proprietor, on 05.06.2024 being bid no.597386
and consider the same for evaluation as per the
terms of the tender MRE/33/252/2024-25/1509.
(c) For issuance of appropriate writ / order /
direction directing not carry on with the technical
procedure until the issue involved in the present
writ is resolved;
(d) Disqualifying Respondent No 4 from
participating in the tender process for not being
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W.P.(C) No.3857/2024
eligible as per the eligibility criteria laid down in
the Tender documents; and
(e) Stay the implementation / execution of tender /
bid no. MRE/33/252/2024-25/1509 pending the
outcome of the present writ petition”
Factual Matrix
8. The brief facts of the case, as per the pleading made in the
writ petition, needs to be referred, which read as under: –
9. It is the case of the writ petitioner that the petitioner is a
sole proprietorship firm having its registered office at Plot No.
336, Sector 17, HSIIDC, Bahadurgarh, Haryana. The petitioner
is a reputed manufacturer with extensive experience in school
supplies including school bags, uniforms, and shoes of different
sizes and specifications since 1980 and is a duly registered sole
proprietorship under the Micro, Small and Medium Enterprises
Development Act, 2006.
10. The petitioner has been supplying school bags and
footwear to various states such as Tamil Nadu, Punjab, Uttar
Pradesh, West Bengal and Andhra Pradesh. There has never
been any objection raised in any tendering authority, before or
after grant of tender, to the petitioner’s corporeal form.
11. On 08.05.2024, respondent No. 3 floated Tender bearing
Bid No. MRE/33/252/2024-25/1509 (hereinafter, the
“impugned tender”) on 08.05.2024, inviting bids for the tender
for distribution of school bags to children studying in
government schools in classes I-VIII for the year 2024-25 under
the school kit scheme within the state budget through the
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W.P.(C) No.3857/2024
Jharkhand Education Project Council (JEPC). Pertinently, theeligibility criteria lay down that only (i) companies incorporated
in India, (ii) registered Indian partnership firms (including
limited liability partnerships), (iii) limited liability partnerships
/companies, are eligible to apply for the tender.
12. In this regard, on 14.05.2024, the petitioner, being
aggrieved by the arbitrary eligibility criteria, sent a query to
respondent No.3 requesting, inter alia, for modification of
Section VI (a) to include proprietorship firms, stating its
reasons for the same.
13. Thereafter, respondent no.3 issued Corrigendum with
regard to the replacing the condition of demand draft/bank
guarantee towards tender with amount of tender fee and
EMD/Bid Security and clarified that rest of the clauses of the
bid document would remain same which clearly shows that the
respondent no.3 did not consider the representation letter
submitted by the Petitioner.
14. Subsequently, Mr. Nitin Kapoor personally visited the
office of respondent no.3 on 13.06.2024 and 20.06.2024 trying
to make his case but despite multiple requests, was not
provided any rationale for the exclusion of proprietorship from
the eligibility criteria for the impugned tender.
15. Being aggrieved with the same, the petitioner has
approached this Court by filing the instant writ petition.
16. It is evident from the pleading made in the writ petition as
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W.P.(C) No.3857/2024
referred hereinabove that the petitioner has participated in thebid in terms of condition of bid. The aforesaid bid document
contains condition under Section VI(a) which provides that any
company incorporated in India, registered Indian partnership
firm (including limited liability partnership), limited liability
partnership and/or companies may participate in the bid.
17. The petitioner has participated but his candidature has
been rejected due to non-fulfillment of the condition stipulated
under Section VI(a) of the bid document. However, the writ
petition was filed prior to decision of the technical committee.
The ground for filing the writ petition was the section no.VI(a)
be declared to be arbitrary and without any reason as to why
the proprietorship firm has been deprived from participating in
the bid and accordingly candidature of the writ petitioner has
been rejected. The writ petition has been filed on that pretext.
Arguments advanced on behalf of the writ petitioner
18. Mr. Indrajit Sinha, learned counsel for the petitioner
assisted by Mr. Ashutosh Jain, Advocate and Mr. Sahil,
Advocate has submitted that the aforesaid condition depriving
the proprietorship firm is arbitrary and without any rational.
19. It has been submitted that since, the aforesaid condition
is arbitrary and without any reason said to be irrational and as
such, the same is fit to be quashed and set aside and in
consequence upon the same, the rejection of the candidature of
the writ petitioner is to be accepted.
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20. Learned counsel for the petitioner has relied upon the
judgments, i.e., Jai Bholenath Construction Vs. The Chief
Executive Officer, Zilla Parishad, Nanded & Others (Civil
Appeal No. 4140 OF 2022 [@ Special Leave Petition (C) NO.
7150 OF 2022, New Horizons Limited & Anr. Vrs. Union of
India & Ors., (1995) 1 SCC 478 and Reliance Energy Ltd. &
Anr. Vrs. Maharashtra State Road Development Corpn.
Ltd. & Ors., (2007) 8 SCC 1 in order to buttress his argument
that in case, the condition is arbitrary and irrational in the bid
document, the same can well be interfered with by the High
Court in exercise of power conferred under Article 226 of the
Constitution of India.
Arguments advanced on behalf of the Respondent-JEPC
21. Mr. Krishna Murari, learned counsel for the respondent-
JEPC has submitted that the writ petition is fit to be dismissed,
reason being that, the petitioner, after knowing the terms and
conditions, as provided in the bid document, has participated,
even though, he was not fulfilling the condition stipulated
under Section VI(a).
22. It has been submitted that the petitioner, rather, has mis-
represented in giving declaration in the affidavit, which was
required to be given along with the bid document, wherein, it
has been stated by him that all the conditions of the bid
document have been fulfilled.
23. The authority believing the same, has accepted the bid
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W.P.(C) No.3857/2024
document but on scrutiny at the time of technical bid, it was
found that the petitioner is not fulfilling the condition
stipulated under Section VI(a) of the bid document and hence,
his candidature has been rejected.
24. Learned counsel for the respondent-JEPC, has submitted
that putting condition in the bid document is the exclusive
domain of the authority and there cannot be any interference
by the bidder.
25. It has further been stated that once the bidder has
participated in the bid and when it has been rejected, it is not
available for the bidder to turn around and question the
condition stipulated in the bid document.
26. Learned counsel for the respondent-JEPC has relied upon
the judgments, i.e., N.G. Projects Limited Vrs. Vinod Kumar
jain & Ors., (2022) 6 SCC 127 and Tata Motors Limited Vrs.
Brihan Mumbai Electric Supply & Transport Undertaking
(Best) & Ors., 2023 SCC OnLine SC 671.
Response of the learned counsel for the petitioner
27. Mr. Indrajit Sinha, learned counsel for the petitioner, in
response thereof, has submitted that the argument which has
been advanced that the condition as contained under Section
VI(a) was known to the petitioner and once accepted the terms
and conditions and participated in the bid, the bidder is having
no reason to challenge the same but the same is not fit to be
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W.P.(C) No.3857/2024
accepted in the facts and circumstances of the case, since, the
petitioner has already made protest with respect to the
availability of condition under Section VI(a) with a request to
change the said condition.
28. To buttress his argument, learned counsel for the
petitioner has further relied upon the Dr. Major Meeta Sahai
Vrs. State of Bihar & Ors., reported in (2019) 20 SCC 17.
Analysis
29. We have heard the learned counsel for the parties and
gone across the pleading made in the writ petition.
30. The undisputed facts in this case are that the bid
document contains a condition under Section VI(a) which
stipulates that any company incorporated in India, registered
Indian partnership firm (including limited liability partnership),
limited liability partnership and/or companies may participate
in the bid. The bidder should be a manufacturer of school bags,
for the ready reference, the same is being referred as under: –
“(a) any company incorporated in India,
registered Indian partnership firm (including
limited liability partnership), limited liability
partnership and/or companies may
participate in the bid. The bidder should be a
manufacturer of school bags”
31. The aforesaid condition requires the consideration of
candidature of such bidder if any company incorporated in
India, registered Indian partnership firm (including limited
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W.P.(C) No.3857/2024
liability partnership), limited liability partnership and/or
companies.
32. The petitioner has made representation on 14.05.2024 for
consideration of his bid in the capacity of sole proprietor.
33. The authority, while considering the bid document at the
time of technical scrutiny, has rejected the bid document on the
ground that the condition stipulated under Section VI(a) has
not been fulfilled.
34. The petitioner is aggrieved with the rejection of his
candidature on the ground that the condition stipulated under
Section VI(a) is arbitrary and irrational.
35. While, on the other hand, the respondent has taken the
plea that putting condition is the sole prerogative of the
authority and consciously, the partnership firm has been
inserted by taking into consideration the issue of liability of
proprietorship firm and the partnership firm.
36. The ground has been taken that after accepting the terms
and conditions, the petitioner has participated, even though, he
was not eligible to participate, since, the petitioner is not the
partnership firm, rather, the sole proprietor and as such, it is
not available for the petitioner to challenge the said condition
once candidature of the petitioner has been rejected.
37. This Court, in order to appreciate the rival submissions,
needs to refer herein the law laid down by the Hon’ble Apex
Court regarding the jurisdiction of the High Court in exercising
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W.P.(C) No.3857/2024
the power conferred under Article 226 in governing facts of the
present case.
38. The Hon’ble Apex Court in the judgment rendered in the
case of Tata Cellular Vs. Union of India reported in (1994) 6
SCC 651 has been pleased to hold that the scope of judicial
review can be exercised in such a matter in a case where there
is lack of reasonableness is administrative law which means to
distinguish between proper use of power so as to eliminate the
possibility of arbitrariness. Such power is to be exercised to find
out the right balance between the administrative discretion to
decide matters whether contractual or political in nature or
include a policy is contrary to the statutory provision.
39. In such circumstances, the duty of the Court is to confine
itself the question of legality and its concern should be:
(i). Whether the decision-making authority
exceeded its powers?
(ii). committed an error of law,
(iii). committed a breach of rules of natural justice,
(iv). reached a decision with no reasonable
tribunal could have reached or,
(v). abused its power.
40. Further, in the Case of Raunaq International Ltd. Vrs.
I.V.R. Construction Ltd. & Ors., [(1999)1 SCC 492], the
Hon’ble Apex Court while dealing with the issue of scope of
judicial review has laid down by holding therein that the
decision-making process suffers from bias of arbitrariness the
same will be scrutinized under the power of judicial review.
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W.P.(C) No.3857/2024
41. The law relating to award of contract by the State and
public sector corporations was reviewed by the Hon’ble Apex
Court in the case of Air India Ltd. v. Cochin International
Airport Ltd., reported in (2000) 2 SCC 617 wherein it has
been observed that the award of a contract, whether by a
private party or by a State, is essentially a commercial
transaction and it can choose its own method to arrive at a
decision and it is free to grant any relaxation for bona
fide reasons, if the tender conditions permit such a relaxation.
42. It was further held that the State, its corporations,
instrumentalities and agencies have the public duty to be fair to
all concerned. Even when some defect is found in the decision-
making process, the court must exercise its discretionary
powers under Article 226 with great caution and should
exercise it only in furtherance of public interest and not merely
on the making out of a legal point. The court should always
keep the larger public interest in mind in order to decide
whether its intervention is called for or not. Only when it comes
to a conclusion that overwhelming public interest requires
interference, the court should interfere.
43. In Master Marine Services (P) Ltd. v. Metcalfe &
Hodgkinson (P) Ltd., (2005) 6 SCC 138 the Hon’ble Apex
Court has observed that while exercising power of judicial
review in respect of contracts, the court should concern itself
primarily with the question, whether there has been any
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W.P.(C) No.3857/2024
infirmity in the decision-making process. By way of judicial
review, the court cannot examine details of terms of contract
which have been entered into by public bodies or the State.
44. In the case of Jagdish Mandal Vrs. State of Orissa &
Ors. [(2007) 14 SCC 517], it has been laid down by the Hon’ble
Apex Court that the power of judicial review in the contractual
matters is permissible only if, (I) the process adopted or
decision made is mala fide or intended to favour someone or the
same is so arbitrary and irrational that the court can say: ‘the
decision is such that no responsible authority acting reasonably
and in accordance with law could have reached.’ (II) public
interest is affected.
45. For ready reference, the relevant paragraph of the
aforesaid judgment is being quoted as under:-
“22. Judicial review of administrative action is
intended to prevent arbitrariness, irrationality,
unreasonableness, bias and mala fides. Its
purpose is to check whether choice or decision
is made “lawfully” and not to check whether
choice or decision is “sound”. When the power
of judicial review is invoked in matters
relating to tenders or award of contracts,
certain special features should be borne in
mind. A contract is a commercial transaction.
Evaluating tenders and awarding contracts
are essentially commercial functions.
Principles of equity and natural justice stay at
a distance. If the decision relating to award of
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W.P.(C) No.3857/2024
contract is bona fide and is in public interest,
courts will not, in exercise of power of judicial
review, interfere even if a procedural
aberration or error in assessment or prejudice
to a tenderer, is made out. The power of
judicial review will not be permitted to be
invoked to protect private interest at the cost
of public interest, or to decide contractual
disputes. The tenderer or contractor with a
grievance can always seek damages in a civil
court. Attempts by unsuccessful tenderers
with imaginary grievances, wounded pride
and business rivalry, to make mountains out
of molehills of some technical/procedural
violation or some prejudice to self, and
persuade courts to interfere by exercising
power of judicial review, should be resisted.
Such interferences, either interim or final, may
hold up public works for years, or delay relief
and succour to thousands and millions and
may increase the project cost manifold.”
46. In the case of Michigan Rubber (India) Ltd. v. State of
Karnataka (2012) 8 SCC 216] the Hon’ble Apex Court has
observed that if the State or its instrumentalities acted
reasonably, fairly and in public interest in awarding contract,
interference by court would be very restrictive since no person
could claim fundamental right to carry on business with the
Government. Therefore, the courts would not normally interfere
in policy decisions and in matters challenging award of contract
by the State or public authorities.
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W.P.(C) No.3857/2024
47. Similarly, the Hon’ble Apex Court has reiterated the same
view in the case of Montecarlo Ltd. vs. NTPC, AIR 2016 SC
4946 and has held that where a decision is taken that is
manifestly in consonance with the language of the tender
document or subserves the purpose for which the tender is
floated, the court should follow the principle of restraint.
Technical evaluation or comparison by the court would be
impermissible. The principle that is applied to scan and
understand an ordinary instrument relatable to contract in
other spheres has to be treated differently than interpreting and
appreciating tender documents relating to technical works and
projects requiring special skills. The owner should be allowed to
carry out the purpose and there has to be allowance of free play
in the joints.
48. Further, the Hon’ble Apex Court in the case of Afcons
Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd.
(2016) 16 SCC 818 it was held that a mere disagreement with
the decision-making process or the decision of the
administrative authority is no reason for a constitutional court
to interfere. The threshold of mala fides, intention to favour
someone or arbitrariness, irrationality or perversity must be
met before the constitutional court interferes with the decision-
making process or the decision. The owner or the employer of a
project, having authored the tender documents, is the best
person to understand and appreciate its requirements and
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W.P.(C) No.3857/2024
interpret its documents. It is possible that the owner or
employer of a project may give an interpretation to the tender
documents that is not acceptable to the constitutional courts
but that by itself is not a reason for interfering with the
interpretation given.
49. It is further settled connotation of law that the decisions
for the terms of the invitation to tender are not open to judicial
scrutiny the same being in the realm of contract, the
Government must have a free hand in setting the terms of the
tender. Reference in this regard may be made to the judgment
rendered by the Hon’ble Apex Court in the case of Directorate
of Education & Ors. Vrs. Educomp Datamatics Ltd. & Ors.
reported in (2004) 4 SCC 19, wherein it has been observed at
paragraphs 11 and 12 as under:-
“11. This principle was again restated by this
Court in Monarch Infrastructure (P) Ltd. v. Commr.,
Ulhasnagar Municipal Corpn. [(2000) 5 SCC 287] It
was held that the terms and conditions in the
tender are prescribed by the Government bearing
in mind the nature of contract and in such matters
the authority calling for the tender is the best
judge to prescribe the terms and conditions of the
tender. It is not for the courts to say whether the
conditions prescribed in the tender under
consideration were better than the ones
prescribed in the earlier tender invitations.
12. It has clearly been held in these decisions that
the terms of the invitation to tender are not open to
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W.P.(C) No.3857/2024
judicial scrutiny, the same being in the realm of
contract. That the Government must have a free
hand in setting the terms of the tender. It must
have reasonable play in its joints as a necessary
concomitant for an administrative body in an
administrative sphere. The courts would interfere
with the administrative policy decision only if it is
arbitrary, discriminatory, mala fide or actuated by
bias. It is entitled to pragmatic adjustments which
may be called for by the particular circumstances.
The courts cannot strike down the terms of the
tender prescribed by the Government because it
feels that some other terms in the tender would
have been fair, wiser or logical. The courts can
interfere only if the policy decision is arbitrary,
discriminatory or mala fide.
50. After going through the judgment as referred hereinabove,
it is evident that interference by the Court exercising the power
under Article 226 of the Constitution of India is only if the
decision-making process of the authority suffers from propriety
by hitting the principle laid down under Article 14 of the
Constitution of India.
51. Further, the general law is that if the candidate participated
in the process of selection after seeing the condition stipulated
with naked eye and after rejection of the candidature, it is not
available for such candidate to turn around and challenge the
terms and condition of the advertisement/NIT, reference in this
regard may be made to the judgment rendered by the Hon’ble
Apex Court in the case of State of Orissa vs. Narain Prasad,
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W.P.(C) No.3857/2024
(1996) 5 SCC 740. For ready reference, the relevant paragraph
of the aforesaid Judgment is being quoted as under:
“21. —- A person who enters into certain
contractual obligations with his eyes open and
works the entire contract, cannot be allowed to
turn round, according to this decision, and
question the validity of those obligations or the
validity of the Rules which constitute the terms of
the contract. The extraordinary jurisdiction of the
High Court under Article 226, which is of a
discretionary nature and is exercised only to
advance the interests of justice, cannot certainly
be employed in aid of such persons. Neither
justice nor equity is in their favour.”
52. In Om Prakash Sukla Vs. Akhilesh Kumar Sukla, AIR
1986 SC 1043, the Hon’ble Apex Court was pleased to hold
that when the petitioner therein appeared at the examination
without protest and when he found that he would not succeed
in the examination he filed a petition challenging the said
examination, the High Court should not have granted any relief
to such a petitioner.
53. In the case of Madan Lal and others Vs. State of Jammu
and Kashmir and others, AIR 1995 SC 1088, the Hon’ble
Apex Court held that if a candidate takes a calculated
chance and appears at the interview, then only because the
result of the interview is not palatable to him he cannot turn
round and subsequently contend that the process of interview
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W.P.(C) No.3857/2024
was unfair or Selection Committee was not properly
constituted.
54. Similarly, in Vijendra Kumar Verma v. Public Service
Commission, Uttarakhand and others, (2011) 1 SCC 150, in
paragraphs, 25 to 28, the Hon’ble Apex Court held as follows:
“25. In this connection, we may refer to the decision
of the Supreme Court in G. Sarana (Dr.) v.
University of Lucknow [(1976) 3 SCC 585 : 1976
SCC (L&S) 474] wherein also a similar stand was
taken by a candidate and in that context the
Supreme Court had declared that the candidate
who participated in the selection process cannot
challenge the validity of the said selection process
after appearing in the said selection process and
taking opportunity of being selected. Para 15 inter
alia reads thus: (SCC p. 591).
“15. … He seems to have voluntarily appeared
before the committee and taken a chance of
having a favourable recommendation from it.
Having done so, it is not now open to him to turn
round and question the constitution of the
committee.”
26. In P.S. Gopinathan v. State of Kerala [(2008) 7
SCC 70 : (2008) 2 SCC (L&S) 225] this Court relying
on the above principle held thus: (SCC p. 84, para
44)
“44. … Apart from the fact that the appellant
accepted his posting orders without any demur in
that capacity, his subsequent order of
appointment dated 15-7-1992 issued by the
Governor had not been challenged by the
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W.P.(C) No.3857/2024
appellant. Once he chose to join the mainstream
on the basis of option given to him, he cannot
turn back and challenge the conditions. He could
have opted not to join at all but he did not do so.
Now it does not lie in his mouth to clamour
regarding the cut-off date or for that matter any
other condition. The High Court, therefore, in our
opinion, rightly held that the appellant is
estopped and precluded from questioning the
said order dated 14-1- 1992. The application of
principles of estoppel, waiver and acquiescence
has been considered by us in many cases, one of
them being G. Sarana (Dr.) v. University of
Lucknow [(1976) 3 SCC 585 : 1976 SCC (L&S)
474] ….”
27. In Union of India v. S. Vinodh Kumar [(2007) 8
SCC 100 : (2007) 2 SCC (L&S) 792] in SCC at para
18 it was held that: (SCC p. 107)
“18. … It is also well settled that those
candidates who had taken part in the selection
process knowing fully well the procedure laid
down therein were not entitled to question the
same.”
28. Besides, in K.H. Siraj v. High Court of Kerala
[(2006) 6 SCC 395 : 2006 SCC (L&S) 1345] in SCC
paras 72 and 74 it was held that the candidates
who participated in the interview with knowledge
that for selection they had to secure prescribed
minimum marks on being unsuccessful in interview
could not turn around and challenge that the said
provision of minimum marks was improper, said
challenge is liable to be dismissed on the ground of
estoppel.”
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W.P.(C) No.3857/2024
55. Though, some of the cases cited above relate to service
matter, but the principle laid down therein by the Hon’ble Apex
Court is applicable to the present context also. Therefore, by
applying the aforesaid settled principle of the Hon’ble Apex
Court to the present context, it can be construed that
the petitioner, having participated in the process of tender,
should not have turned around and challenged one of the
conditions i.e. Section VI(a) of tender by filing this writ petition.
56. In the judgments rendered by the Hon’ble Apex Court as
referred above, upon which, reliance has been placed by the
learned counsel for the petitioner, wherein, the Hon’ble Apex
Court has laid down as to in which circumstances, the High
Court is to exercise the extraordinary jurisdiction that if the
decision-making process suffers from vice of arbitrariness or
unreasonableness, then only, the tender matter is to be
interfered with.
57. In the aforesaid context, there is no iota of doubt about the
settled proposition of law that if the decision-making process
suffers from vice of arbitrariness or unreasonableness, then
only, the tender matter is to be interfered with. But in the
instant case, petitioner has failed in showing that what type of
arbitrary and malafide action has been taken by the respondent
concerned against the petitioner.
58. Further, it needs to refer herein that the section in
question, i.e., section VI (a) is applicable for all participants and
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W.P.(C) No.3857/2024
just only on the basis of pleading, it cannot be alleged that
respondents have deliberately/intentionally inserted the section
VI(a) in order to debarred the petitioner.
59. Further, it needs to refer herein that it is settled principle
of law that the bidder/tenderer cannot be permitted to
challenge the bid condition/clause which might not suit him
and/or convenient to him and the authority floating the tender
is the best judge of its requirements and, therefore, the court’s
interference should be minimal. Reference in this regard may
be made to the judgment rendered in the case of Balaji
Ventures Pvt. Ltd. Vs. Maharashtra State Power Generation
Company Ltd. & Anr. [2022 SCC OnLine SC 1967], wherein
at paragraph 9 it has been held as under:
“9. Now so far as the impugned Judgment and
order passed by the High Court dismissing the
writ petitions is concerned, what was challenged
before the High Court was one of the tender
conditions/clauses. The High Court has
specifically observed and noted the justification
for providing clause 1.12(V). The said clause was
to be applied to all the tenderers/bidders. It
cannot be said that such clause was a tailor made
to suit a particular bidder. It was applicable to all.
Owner should always have the freedom to provide
the eligibility criteria and/or the terms and
conditions of the bid unless it is found to be
arbitrary, mala fide and/or tailor made. The
bidder/tenderer cannot be permitted to challenge
the bid condition/clause which might not suit him
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W.P.(C) No.3857/2024
and/or convenient to him. As per the settled
proposition of law as such it is an offer to the
prospective bidder/tenderer to compete and
submit the tender considering the terms and
conditions mentioned in the tender document.”
60. This Court is conscious with the fact that this Court being
the saviour of the fundamental rights as enshrined in
constitution of India, is duty bound to interfere when there is
arbitrariness, irrationality, mala fides and bias apparent in the
decision making process but at the same time this Court is also
aware with the settled position of law as laid down by the
Hon’ble Apex Court that the Court is normally loathe to
interfere in contractual matters in absence of arbitrariness or
mala fides or bias or irrationality.
61. The Hon’ble Apex Court in the case of Silppi
Constructions Contractors v. Union of India and Ors., 2019
SCC OnLine SC 1133 has categorically observed that the
Court must realize that the authority floating the tender is the
best judge of its requirements and, therefore, the court’s
interference should be minimal. The authority which floats the
contract or tender and has authored the tender documents is
the best judge as to how the documents have to be interpreted,
for ready reference, the relevant paragraph is being quoted as
under:
“20. The essence of the law laid down in the
judgments referred to above is the exercise of
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W.P.(C) No.3857/2024
restraint and caution; the need for overwhelming
public interest to justify judicial intervention in
matters of contract involving the State
instrumentalities; the courts should give way to
the opinion of the experts unless the decision is
totally arbitrary or unreasonable; the court does
not sit like a court of appeal over the appropriate
authority; the court must realise that the authority
floating the tender is the best judge of its
requirements and, therefore, the court’s
interference should be minimal. The authority
which floats the contract or tender, and has
authored the tender documents is the best judge
as to how the documents have to be interpreted. If
two interpretations are possible then the
interpretation of the author must be accepted. The
courts will only interfere to prevent arbitrariness,
irrationality, bias, mala fides or perversity. With
this approach in mind we shall deal with the
present case.”
62. In the light of the above settled legal position and in the
absence of any mala fides or arbitrariness in the process of
evaluation of bids and the determination of the eligibility of the
bidders, it is not a fit case for interference of this Court.
63. Further, the Hon’ble Apex Court in the case of N.G.
Projects Limited Vrs. Vinod Kumar jain & Ors., reported in
(2022) 6 SCC 127 has observed that the writ court should
refrain itself from imposing its decision over the decision of the
employer as to whether to accept the bid of a tenderer and that
contract of public service should not be interfered with lightly.
– 24 –
W.P.(C) No.3857/2024
The injunction or interference in the Tender leads to additional
costs on the State and is also against public interest. For ready
reference, the relevant paragraph-23 of the said judgment is
being referred as under:-
“23. In view of the above judgments of this Court,
the writ court should refrain itself from imposing its
decision over the decision of the employer as to
whether or not to accept the bid of a tenderer. The
Court does not have the expertise to examine the
terms and conditions of the present day economic
activities of the State and this limitation should be
kept in view. Courts should be even more reluctant
in interfering with contracts involving technical
issues as there is a requirement of the necessary
expertise to adjudicate upon such issues. The
approach of the Court should be not to find fault
with magnifying glass in its hands, rather the
Court should examine as to whether the decision-
making process is after complying with the
procedure contemplated by the tender conditions. If
the Court finds that there is total arbitrariness or
that the tender has been granted in a mala fide
manner, still the Court should refrain from
interfering in the grant of tender but instead
relegate the parties to seek damages for the
wrongful exclusion rather than to injunct the
execution of the contract. The injunction or
interference in the tender leads to additional costs
on the State and is also against public interest.
Therefore, the State and its citizens suffer twice,
firstly by paying escalation costs and secondly, by
– 25 –
W.P.(C) No.3857/2024
being deprived of the infrastructure for which the
present day Governments are expected to work.”
64. Subsequent to the judgment of N.G. Projects Limited
(supra), the Hon’ble Apex Court has rendered the judgment in
the case of Jai Bholenath Construction Vs. The Chief
Executive Officer, Zilla Parishad, Nanded & Others (Civil
Appeal No. 4140 OF 2022 [Special Leave Petition (C) NO.
7150 OF 2022] upon which reliance has been placed by the
learned counsel for the petitioner, as such, it is the bounden
duty to go through the ratio of the aforesaid judgment.
65. We have considered the factual aspect of the judgment
rendered in the case of Jai Bholenath Construction Vs. The
Chief Executive Officer, Zilla Parishad, Nanded & Others
(supra), wherein, the fact of the said case is that on
17.08.2021, a tender was published inviting offers for the
construction of staff quarters of the Primary Health Center,
Ewaleshwar, Taulka Mahur, District Nanded. Four bidders
participated in the bid, including the appellant and Respondent
No. 4 – M/s L.D. Constructions. The appellant was found to be
a lowest bidder but the Letter of Intent was not issued to the
appellant. It was on 24.11.2021, the Zila Parishad decided that
M/s L.D. Constructions – Respondent No. 4 was excluded from
the process and was declared it ineligible for non-compliance of
the documents. But later on, when the required documents
have been submitted by the said respondent then tender
– 26 –
W.P.(C) No.3857/2024
committee again perused the documents and found that
Respondent No. 4 L.D. Construction has submitted complete
documents and as they were found to be eligible. The said
action was challenged in a writ petition by the appellant before
the High Court but the same was dismissed.
66. Consequently, the matter has been travelled to the Hon’ble
Apex Court wherein the Hon’ble Apex Court while setting aside
the order of High Court has observed that Respondent No. 4
was declared eligible in a flagrant violation of principles of
natural justice and all fairness in the process of determining
the eligibility of the tenderers, the bid of Respondent No. 4 was
accepted when at the time of opening of technical bids, the said
respondent was disqualified. Therefore, the manner in which
the bid has been accepted shows arbitrary exercise of the
power.
67. It is, thus, evident that in the case of Jai Bholenath
Construction Vs. The Chief Executive Officer, Zilla
Parishad, Nanded & Others (supra), the Hon’ble Apex Court
has found error in the decision making process and there was
no issue of rejection of candidature due to non-fulfillment of the
condition stipulated in the bid document, as such, the
judgment rendered by the Hon’ble Apex Court in the case of Jai
Bholenath Construction Vs. The Chief Executive Officer,
Zilla Parishad, Nanded & Others (supra), upon which,
reliance has been placed by the learned counsel for the
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W.P.(C) No.3857/2024
petitioner, is not applicable in the facts and circumstances of
the present case.
68. The reference also needs to be made of the judgment
rendered by the Hon’ble Apex Court in the case of Dr. Major
Meeta Sahai Vrs. State of Bihar & Ors., (supra) upon
which, reliance has been placed by the learned counsel for the
petitioner.
69. We have gone through the facts of the aforesaid case
wherein it is evident that an appeal has been preferred before
the Hon’ble Apex Court, against the order dated 24-11-2016
passed by a Division Bench of the Patna High Court in Meeta
Sahai v. State of Bihar 2016 SCC OnLine Pat 10112 ,
whereby the appellant’s work experience in an Army Hospital
was not considered for grant of weightage and consequential
selection and appointment as General Medical Officer in the
State of Bihar, on the ground that Rule 6(iii) of the Bihar Health
Service (Appointment and Service Conditions) Rules, 2013
mandated that only services rendered in employment of a
hospital run by the Government of Bihar could count under the
head of work experience.
70. The appellant, having the experience of doctor, had applied,
since, the condition stipulated in the advertisement was not
specific but after rejection of the candidature on the ground
that the experience is only required of a doctor in the civil side
and not in the military side and in that pretext, the Hon’ble
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W.P.(C) No.3857/2024
Apex Court has entertained the petition on the ground that
rejection of the candidature could only be known after
participation in the process of selection and hence, the
principle to challenge after rejection of the candidature putting
restriction on the candidate will not be applicable, the relevant
paragraphs of the said judgment are being referred as under:-
16. It is well settled that the principle of estoppel
prevents a candidate from challenging the
selection process after having failed in it as
iterated by this Court in a plethora of judgments
including Manish Kumar Shahi v. State of
Bihar [Manish Kumar Shahi v. State of Bihar,
(2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256] ,
observing as follows: (SCC p. 584, para 16)
“16. We also agree with the High Court [Manish
Kumar Shahi v. State of Bihar, 2008 SCC OnLine
Pat 321 : (2008) 4 PLJR 93] that after having
taken part in the process of selection knowing
fully well that more than 19% marks have been
earmarked for viva voce test, the appellant is not
entitled to challenge the criteria or process of
selection. Surely, if the appellant’s name had
appeared in the merit list, he would not have even
dreamed of challenging the selection. The
[appellant] invoked jurisdiction of the High Court
under Article 226 of the Constitution of India only
after he found that his name does not figure in the
merit list prepared by the Commission. This
conduct of the appellant clearly disentitles him
from questioning the selection and the High Court
did not commit any error by refusing to entertain
– 29 –
W.P.(C) No.3857/2024
the writ petition.” [ See also: Madan Lal v. State of
J&K, (1995) 3 SCC 486 : 1995 SCC (L&S)
712, Marripati Nagaraja v. State of A.P., (2007) 11
SCC 522 : (2008) 1 SCC (L&S) 68, Dhananjay
Malik v. State of Uttaranchal, (2008) 4 SCC 171 :
(2008) 1 SCC (L&S) 1005 and K.A.
Nagamani v. Indian Airlines, (2009) 5 SCC 515 :
(2009) 2 SCC (L&S) 57]
The underlying objective of this principle is to
prevent candidates from trying another shot at
consideration, and to avoid an impasse wherein
every disgruntled candidate, having failed the
selection, challenges it in the hope of getting a
second chance.
17. However, we must differentiate from this
principle insofar as the candidate by agreeing to
participate in the selection process only accepts
the prescribed procedure and not the illegality in
it. In a situation where a candidate alleges
misconstruction of statutory rules and
discriminating consequences arising therefrom,
the same cannot be condoned merely because a
candidate has partaken in it. The constitutional
scheme is sacrosanct and its violation in any
manner is impermissible. In fact, a candidate may
not have locus to assail the incurable illegality or
derogation of the provisions of the Constitution,
unless he/she participates in the selection
process.”
71. Thus, it is evident from the from the factual aspect of the
aforesaid case that the condition stipulated in the
advertisement was not specific and only after rejection of the
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W.P.(C) No.3857/2024
candidature on the ground that the experience is required of a
doctor in the civil side working in state of Bihar not in the
military side, the petitioner came to know about the said
condition. The Hon’ble Apex Court has acknowledged the
settled position that after having taken part in the process of
selection knowing fully well the required condition the
candidate is not entitled to challenge the criteria or process of
selection but allowed the said appeal only on the ground that
the petitioner has came to know about the said condition only
after rejection of her candidature.
72. In the instant case the ratio of the Dr. Major Meeta Sahai
Vrs. State of Bihar & Ors (supra) is not applicable reason
being that petitioner from the beginning was having knowledge
that the petitioner is not eligible due to not fulfilling the
required criteria, as stipulated in Section VI (a) of the bid,
whereas, in the case of Dr. Major Meeta Sahai (supra), the
petitioner came to know about the said condition, i.e., Rule
6(iii) of Bihar Health Service (Appointment and Service
Conditions) Rules, 2013 only after rejection of her candidature.
73. Now, this Court is proceeding to examine the factual
aspect in the light of the aforesaid proposition of law.
74. It is admitted fact that the petitioner was conscious with
the condition stipulated under condition no.VI(a), wherein, the
sole proprietor is made not eligible to participate.
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W.P.(C) No.3857/2024
75. The aforesaid fact is admitted, since, the admitted case of
the writ petitioner that a representation was filed on
14.05.2024 which has also been appended as a part of the writ
petition, wherein, the ground has been taken that the condition
stipulated under Section VI(a) replaced or modified by making
addition of the sole proprietor also.
76. The petitioner has offered his candidature on 05.06.2024
being bid no.597386.
77. It is, thus, evident that the petitioner was full conscious
with the criteria which were not being fulfilled by the petitioner,
since, the petitioner was not the partnership firm, rather, the
sole proprietor but even then, he had applied.
78. The bid document was submitted on 05.06.2024. The
technical bid was opened on 06.06.2024 and rejected on
12.06.2024 and thereafter, the writ petition has been filed on
29.06.2024.
79. It is admitted facts of the instant case that the petitioner
was not having the eligibility criteria and if in that pretext, the
candidature of the writ petitioner has been rejected, then in
such circumstances the said action of respondents cannot
said to be suffer from an arbitrariness or unreasonableness.
80. The Hon’ble Apex Court has laid down the proposition in
the aforementioned case that in case if decision making process
suffers from arbitrariness or unreasonableness, the power
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W.P.(C) No.3857/2024
under Article 226 of the Constitution of India can be exercised
by the writ Court.
81. But, so far as putting condition under the bid document,
the law is well settled that putting condition in the bid
document is the sole prerogative of the authority and there
cannot be any interference by the bidder to insert a condition
which suits to him, as has been laid down by the Hon’ble Apex
Court in the case of Balaji Ventures Pvt. Ltd. Vs.
Maharashtra State Power Generation Company Ltd. &
Anr.(supra)
82. The ground has been taken that the technical bid has
been rejected, thereafter, the work order has also been issued
in favour of respondent no.4, but, it appears from the record
that neither the rejection of the technical bid dated 12.06.2024
has been assailed nor the work order issued in favour of
respondent no.4 has been assailed in this writ petition.
83. This Court has considered the aforesaid aspect of the
matter and coming back to the prayer made in the writ petition,
wherein, it has been prayed only to quash the criteria as laid
down under Section VI(a) as provided under the bid document.
84. This Court, considering the fact in entirety on the basis of
the legal position, is of the view that since the thrust of the
argument is questioning the criteria under Section VI(a) of the
Bid Document which being the absolute domain of the
authority who is the best judge as to which candidate is to be
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W.P.(C) No.3857/2024
considered for fulfillment of the purpose which is in the public
utility service and there cannot be any interference by the
candidate to ask for imposition of condition, according to the
suitability of such candidates.
85. This Court, therefore, is of the view that only because the
petitioner is not fulfilling the said eligibility criteria, the same
cannot lead to the vice of arbitrariness or unreasonableness.
86. Therefore, this Court is of the view that the instant writ
petition lacks merit and no positive direction can be issued.
87. In the result, the instant writ petition fails and is
dismissed.
88. Pending interlocutory application(s), if any, also stands
disposed of.
(Sujit Narayan Prasad, A.C.J.)
I agree
(Arun Kumar Rai)
(Arun Kumar Rai, J.)
A.F.R.
Rohit/
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