For Petitioner : Mr. Brain Da Silva, Senior Advocate assisted by
Mr. Sarabvir Singh Oberai, Advocate
For Respondent : Mr. Praveen Das, Additional Advocate General
No.1 / State
For Respondent : Mr. Trivikram Nayak, Advocate
No.2 / CMSCL
For Respondent : Mr. S.C. Verma, Senior Advocate assisted by
No.3 Mr. Devashish Tiwari, Ms. Ruchi Nagar,
Mr. Shiv Sewak and Mr. Dinesh Yadav,
Advocates
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
1. Heard Mr. Mr. Brain Da Silva, learned Senior Advocate assisted by
Mr. Sarabvir Singh Oberai, learned counsel for the petitioner. Also
heard Mr. Praveen Das, learned Additional Advocate General,
appearing for the State/ respondent No.1, Mr. Trivikram Nayak,
Medical Services Corporation Limited and Mr. S.C. Verma, learned
Senior Advocate assisted by Mr. Devashish Tiwari, Ms. Ruchi
Nagar, Mr. Shiv Sewak and Mr. Dinesh Yadav, learned counsel,
2. The present writ petition has been filed by the petitioner under
iv. Grant any other relief that this Hon'ble Court
deems fit and just in the facts and circumstances of
the case.
v. Costs be awarded to the Petitioner."
3. Brief facts of the case are that the Petitioner is a company
registered under the Companies Act having its registered office at
1st Floor, Global Tower, Avanti Vihar, Raipur, Chhattisgarh and is
engaged in providing emergency management services including
ambulance services, mobile medical units and other medical
emergency response services. The Petitioner has successfully
operated the Dial 108 Emergency Ambulance Service in the
States of Madhya Pradesh and Chhattisgarh and has also been
operating the Dial 104 Health Helpline service.
4. The Petitioner had earlier been awarded a contract in the year
2019 for operating the 108 Sanjeevi Express Emergency
Ambulance Service in the State of Chhattisgarh. Upon the expiry
of the said contract period, Respondent No. 2 floated a fresh
Request for Proposal dated 09.04.2025 for operation,
maintenance and management of the 108 Sanjeevi Express
ambulance services. Certain arbitrary conditions in the tender
were challenged by the Petitioner before this Court in WPC No.
2271/2025, and this Court vide order dated 08.05.2025 quashed
the clauses relating to disqualification based on past blacklisting.
5. Pursuant to the said order, the Petitioner participated in the tender
process and submitted its bid. Although the technical bids were
opened and the marks of the bidders were published, the
Respondent authorities cancelled the tender on 07.07.2025 citing
"technical reasons". Thereafter, a Second Tender dated
11.07.2025 was floated and subsequently a corrigendum dated
28.08.2025 substantially altered the technical evaluation criteria
and allocation of marks without assigning any reasons. Due to
such changes, only one bidder participated and the Second
Tender was also cancelled.
6. Subsequently, Respondent No. 2 issued a Third Tender dated
24.09.2025 retaining the same modified technical evaluation
criteria. Despite objections raised by several bidders in the pre-bid
meeting, the Respondents refused to modify the criteria. As a
result, only one bidder namely EMRI Green Health Services
participated in the tender process. The Petitioner has discovered
that the changes in the evaluation criteria were introduced at the
behest of the said bidder, thereby eliminating fair competition.
Hence, the Petitioner has approached this Court challenging the
arbitrary and discriminatory actions of the Respondent authorities
by way of instant petition.
7. Mr. Brain Da Silva, learned Senior Advocate, appearing for the
petitioner vehemently argued that the revised technical evaluation
criteria and marking system were introduced at the behest of
Respondent No. 3. It is an undisputed fact that Respondent No. 3,
in its pre-bid queries submitted for the Second Tender, proposed
substantial changes to the evaluation criteria and sought
modification of the entire marking system originally prescribed by
the Tender Inviting Authority. Such changes were arbitrarily
accepted and implemented by Respondent No. 2 through
corrigendum dated 28.08.2025 without assigning any justification.
He further argued that it is settled law that the Courts may
exercise the power of judicial review where the tender conditions
are arbitrary or are designed to favour a particular bidder. In this
regard, reliance is placed on Rishi Kiran Logistics Private
Limited v. Board of Trustees of Kandla Port Trust (2015) 13
SCC 233, para 24, Meerut Development Authority v.
Association of Management Studies (2009) 6 SCC 171, para
26, Maa Binda Express Carrier v. North-East Frontier Railway
(2014) 3 SCC 760, para 8, Jagdish Mandal v. State of Orissa
(2007) 14 SCC 517, para 22, and Michigan Rubber (India) Ltd.
v. State of Karnataka (2012) 8 SCC 216, paras 23-24.
8. It is submitted by Mr. Da Silva that the marking system
incorporated in the Third Tender dated 24.09.2025 has been
structured in a manner which confers a clear advantage upon
Respondent No.3. As the tender follows the Quality and Cost
Based Selection (QCBS) method, wherein higher weightage is
assigned to technical marks, the impugned marking system
ensures that Respondent No.3 secures higher technical marks
while other bidders, including the Petitioner, are placed at a
disadvantage. The Supreme Court has consistently held that the
State must ensure a level playing field and fair opportunity to
all bidders in public procurement processes. In this regard,
reliance is placed upon Reliance Energy Ltd. v. Maharashtra
State Road Development Corporation Ltd. (2007) 8 SCC 1,
paras 36-37.
9. Mr. Da Silva further submitted that the arbitrariness of the revised
marking system becomes evident from the fact that Respondent
No. 3 had secured 87.5 marks in the First Tender process,
whereas in the Third Tender process, which incorporates the
amended marking system, Respondent No. 3 secured 95.4 marks.
The substantial increase in marks clearly demonstrates that the
evaluation criteria were amended in a manner intended to favour a
particular bidder and to exclude other competitors from fair
participation, thereby rendering the entire tender process arbitrary
and contrary to the settled principles governing public
procurement.
10. Mr. Da Silva also submitted that the Second Tender was cancelled
on 22.09.2025 citing vague "technical reasons", and within a span
of merely two days the Third Tender dated 24.09.2025 was issued
incorporating the very same amended technical evaluation criteria
and marking system which had earlier been introduced through
corrigendum at the instance of Respondent No.3. The
extraordinary haste in cancelling the tender and reissuing it with
identical conditions clearly demonstrates a predetermined
intention to favour Respondent No. 3, which falls within the limited
grounds where judicial interference in tender matters is
permissible.
11. Mr. Da Silva contended that the Petitioner, being aggrieved by the
tailor-made conditions, did not participate in the impugned tender
process and instead chose to challenge the same before this
Hon'ble Court. It is settled law that a party who participates in a
tender process cannot subsequently challenge the conditions
thereof; however, where the party refrains from participation due to
arbitrary conditions, it retains the right to challenge the same. In
this regard reliance is placed on R.B. Associates Global
Connect Pvt. Ltd. v. Balaji Security (Civil Appeal No.
14508/2025, Supreme Court) and Municipal Corporation, Katra
v. Ashwani Kumar (2024 SCC OnLine SC 840, para 21).
12. Mr. Da Silva further contended that the Petitioner approached this
Hon'ble Court at a stage when no third-party rights had been
created. As per the online portal, the tender was still at the stage
of technical evaluation at the time of filing of the petition. The
alleged Letter of Intent dated 29.12.2025 does not create any
vested right in favour of Respondent No. 3, particularly when the
financial bids were evaluated only on 07.02.2026. In this regard
reliance is placed upon Level 9 Biz Pvt. Ltd. v. Himachal
Pradesh Housing and Urban Development Authority (2024
SCC OnLine SC 480, para 10).
13. Mr. Da Silva also contended that any alleged third-party rights
claimed by Respondent No. 3 have been created subsequent to
the filing of the present petition and even after the order dated
14.01.2026 passed by this Hon'ble Court. The Respondents
entered into an agreement dated 23.01.2026 despite being aware
of the pendency of the present proceedings and therefore such
actions have been undertaken at their own risk and cannot confer
any equity in their favour.
14. Mr. Da Silva submitted that the averments made by the Petitioner
regarding the arbitrary manner in which the evaluation criteria
were amended have not been specifically denied by the
Respondents. It is settled law that absence of specific denial
amounts to admission. In this regard reliance is placed upon Asha
v. Pt. B.D. Sharma University of Health Sciences (2012) 7 SCC
389, para 17.
15. Mr. Da Silva further submitted that the judgments relied upon by
the Respondents are distinguishable on facts and cannot be
applied in a mechanical manner, as it is well settled that a
judgment must be read in the context of the facts involved in that
particular case. In this regard reliance is placed upon Haryana
Financial Corporation v. Jagdamba Oil Mills (2002) 3 SCC 496,
para 19.
16. Mr. Da Silva lastly submitted that the impugned marking system
and the tender process are arbitrary, discriminatory and designed
to favour a particular bidder, thereby restricting fair competition
and violating the settled principles governing public procurement.
The same therefore warrants interference by this Hon'ble Court in
exercise of its writ jurisdiction.
17. On the other hand, Mr. Trivikram Nayak, learned counsel,
appearing for respondent No.2 / CMSCL opposed the aforesaid
submisison and submitted that the present writ petition is wholly
misconceived and devoid of merit. The Petitioner has challenged
the tender conditions despite having consciously chosen not to
participate in the tender process. It is settled law that tender
conditions fall within the domain of the tendering authority and the
Courts ordinarily refrain from interfering in such matters unless the
decision is found to be arbitrary, mala fide or intended to favour a
particular party. In this regard reliance is placed upon Michigan
Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216,
wherein the Hon'ble Supreme Court held that the Government and
its agencies have the freedom to frame tender conditions to
ensure effective execution of the contract and the Courts should
exercise restraint in interfering with such policy decisions.
18. Mr. Nayak further submitted that the Respondent Authority had
initially issued a Request for Proposal dated 09.04.2025 for
operation, maintenance and management of the Dial 108 Sanjeevi
Express Emergency Ambulance Services in the State of
Chhattisgarh. During the course of the said tender process, certain
issues and objections were raised with regard to the tender
conditions, including the issue relating to blacklisting which was
also subject matter of judicial scrutiny. In view of the developments
and in order to ensure clarity and transparency in the tender
process, the Respondent Authority decided to cancel the said
tender on 07.07.2025 for technical and administrative reasons. It is
further submitted that thereafter the Respondent Authority issued a
Second Tender dated 11.07.2025 for the same project so as to
invite fresh competitive bids. During the pre-bid stage several
queries and suggestions were received from different bidders and
stakeholders. After considering such queries, certain modifications
were introduced through a corrigendum dated 28.08.2025 in order
to improve the evaluation criteria and to ensure selection of a
technically competent agency capable of delivering emergency
medical services of the highest standard. However, due to certain
technical and administrative considerations, the said Second
Tender was also cancelled on 22.09.2025 in exercise of the
powers of the Tender Inviting Authority.
19. Mr. Nayak contended that subsequently the Respondent Authority
issued a Third Tender dated 24.09.2025 for the same project with
the objective of ensuring continuity of critical emergency
ambulance services in the State. The conditions contained in the
Third Tender were framed after taking into account the experience
gained from the earlier tender processes and the operational
requirements of the project. The tender adopted the Quality and
Cost Based Selection (QCBS) method, which is a widely accepted
procurement methodology for selection of technically competent
service providers. He further contended that the allegation of the
Petitioner that the technical evaluation criteria were modified to
favour Respondent No. 3 is wholly baseless and speculative. The
modifications introduced in the evaluation criteria were made after
considering suggestions received during the pre-bid process from
various stakeholders and were intended solely to strengthen the
technical assessment of bidders and to ensure effective delivery of
emergency ambulance services in the larger public interest. It is
further submitted that the Petitioner, despite being aware of the
tender conditions in the Third Tender dated 24.09.2025,
consciously chose not to participate in the tender process. Having
voluntarily abstained from participation, the Petitioner cannot now
challenge the tender conditions or the outcome of the tender
process merely on the basis of speculative apprehensions. In this
regard reliance is placed upon Municipal Corporation, Katra
(supra), wherein the Hon'ble Supreme Court reiterated that a party
which does not participate in the tender process cannot
subsequently question the same.
20. Mr. Nayak submitted that the tender process under the Third
Tender dated 24.09.2025 has already been duly concluded. After
completion of the evaluation process, the Respondent Authority
issued a Letter of Intent dated 29.12.2025 in favour of Respondent
No. 3, and thereafter a formal agreement dated 23.01.2026 has
been executed between Respondent No. 2 and Respondent No. 3
for implementation of the project. Accordingly, the contractual
relationship between the parties has already come into existence
and the project has proceeded further in accordance with the
tender conditions. It is submitted that once the tender process has
been completed and the contract has been awarded, the scope of
interference under Article 226 becomes extremely limited,
particularly when the Petitioner did not participate in the bidding
process. Interference at this stage would seriously prejudice public
interest as the project pertains to critical emergency ambulance
services meant for the citizens of the State.
21. Mr. Nayak also submitted that the cancellation of the earlier
tenders and issuance of subsequent tenders were undertaken
strictly in accordance with the powers vested in the Tender Inviting
Authority and were guided by administrative considerations and
public interest. The Respondent Authority has the right to cancel a
tender and issue a fresh tender if such action is considered
necessary to ensure transparency and efficiency in the
procurement process. In this regard reliance is placed upon
Meerut Development Authority (supra). He lastly submitted that
the scope of judicial review in contractual and tender matters is
extremely limited and the Court does not sit as an appellate
authority over the decision of the tendering authority. Interference
is warranted only where the decision is found to be arbitrary,
irrational or actuated by mala fides. In this regard reliance is
placed upon Jagdish Mandal (supra).
22. Mr. S.C. Verma, learned Senior Advocate, appearing for
respondent No.3 submitted that the present writ petition is wholly
misconceived and liable to be dismissed insofar as it seeks to
challenge a tender process which has already culminated in a
concluded contract. The tender process in question has reached
its logical and legal conclusion with the issuance of the Summary
Sheet dated 27.11.2025, followed by the issuance of the Letter of
Intent dated 29.12.2025, and the subsequent execution of a
binding Service Agreement dated 23.01.2026 between
Respondent No. 2 and the Respondent No.2. Thus, the
contractual relationship between the parties has already been
formalized and the project has progressed to the implementation
stage. He further submitted that pursuant to the issuance of the
Letter of Intent and the execution of the Service Agreement, the
Answering Respondent has already acted upon the said contract
by depositing the required Performance Bank Guarantee and
mobilizing substantial financial and operational resources for
implementation of the project. He also submitted that the
respondent No.3 had already undertaken extensive preparatory
work and has made significant investments in order to ensure
timely commencement of the emergency ambulance services in
accordance with the contractual timelines. It is further submitted
that under the current Service Agreement, the respondent No.3 is
required to operationalize a fleet of 375 new ambulances,
comprising 300 Basic Life Support (BLS) ambulances, 70
Advanced Life Support (ALS) ambulances and 5 Neo-Natal
ambulances, which are scheduled to be fully operationalized by
01.04.2026. These ambulances will be equipped with advanced
medical infrastructure including Mobile Data Terminals (MDTs) and
Location-Based Services (LBS), which are specifically designed to
optimize response times and ensure timely medical assistance to
patients in critical emergencies. He also submitted that the
implementation of the present project will significantly enhance the
healthcare capacity of the State. Under the proposed framework,
approximately 45,000 individuals per month (375 x 4 x 30) are
expected to receive emergency medical services. This represents
a substantial increase in comparison to the 27,000 individuals per
month (300 x 3 x 30) who were previously served under the earlier
arrangement. Thus, the new framework will ensure that an
additional 18,000 citizens per month, i.e., an approximate 67%
increase, will have access to life-saving emergency medical
services.
23. Mr. Verma further contended that in order to meet the critical
timelines under the Service Agreement, they had already
undertaken substantial project mobilization. The Answering
Respondent has placed orders for ambulances valued at
approximately Rs. 53 Crores and has procured medical equipment
worth approximately Rs. 15 Crores, apart from depositing the
mandatory Performance Bank Guarantee. Furthermore, they had
completed the recruitment of more than 770 Emergency Medical
Technicians (EMTs) and 605 Pilots, who are required for the
operation of the expanded ambulance fleet. He also contended
that any judicial interference at this advanced stage of the project
would not only cause grave prejudice to the Respondent No.3,
who has already undertaken substantial investments and
contractual obligations, but would also adversely affect the public
interest. The project in question relates to the provision of
emergency medical services which are critical for safeguarding the
lives of citizens, and any disruption at this stage would directly
jeopardize the public health welfare of thousands of people. It is
further submitted that the Petitioner, having consciously chosen
not to participate in the tender process, cannot now seek to
challenge the outcome of the same after the contract has already
been awarded and implemented. It is a settled principle of law that
the scope of judicial review in contractual and tender matters is
extremely limited and the Court should refrain from interfering
once the tender process has been concluded and the contract has
been acted upon, particularly where public interest is involved.
24. We have heard learned Senior Advocate appearing for the
petitioner as well as for respondent No.3 and learned counsel
appearing for the respondent No.2 and have perused the material
placed on record.
25. The principal grievance of the petitioner is that the technical
evaluation criteria introduced in the tender dated 24.09.2025 were
allegedly tailored to favour Respondent No.3 and thereby restrict
fair competition. It is contended that such modification of the
marking system was introduced at the instance of Respondent
No.3 and that the said action renders the entire tender process
arbitrary and liable to be set aside.
26. Per contra, learned counsel appearing for Respondent No.2 and
Respondent No.3 have opposed the writ petition and contended
that the petitioner has consciously chosen not to participate in the
third tender process and therefore cannot be permitted to
challenge the tender conditions. It has further been contended that
the tender process has already culminated in the issuance of the
Summary Sheet dated 27.11.2025, the Letter of Intent dated
29.12.2025 and the execution of a binding Service Agreement
dated 23.01.2026 between Respondent No.2 and Respondent
No.3. It is also submitted that Respondent No.3 has already
mobilized substantial resources and undertaken significant
investments for implementation of the project.
27. Before adverting to the rival contentions, it would be appropriate to
refer to the settled principles governing judicial review in matters
relating to public tenders and contractual decisions of the State.
28. In Michigan Rubber (India) Ltd. (supra), the Hon'ble Supreme
Court has categorically held that the terms and conditions of a
tender fall within the domain of the tendering authority and that the
Court should exercise great restraint in interfering with such
conditions unless they are found to be arbitrary, discriminatory or
actuated by mala fides.
29. Similarly, in Jagdish Mandal (supra), the Supreme Court held that
judicial review in tender matters is limited and the Court should not
interfere unless the decision-making process is shown to be
arbitrary, irrational or intended to favour someone.
30. The Supreme Court in Meerut Development Authority (supra)
has further held that the State or its instrumentalities are entitled to
cancel a tender process and invite fresh bids in public interest and
such decisions should not ordinarily be interfered with unless they
are patently arbitrary.
31. Another important principle was laid down by the Supreme Court
in Municipal Corporation, Katra (supra), wherein it was held that
a party which does not participate in the tender process cannot
subsequently challenge the same.
32. The law with respect to interference in tender matters is limited to
certain extent as has been considered by the Hon'ble Supreme
Court in large number of cases including in the case of Tata
Motors Limited vs Brihan Mumbai Electric Supply &
Transport Undertaking (BEST) and others 1 wherein the Hon'ble
Supreme Court has considered the factum of interference in the
tender matters and has held as under:
"48. This Court being the guardian of fundamental
rights is duty-bound to interfere when there is
arbitrariness, irrationality, mala fides and bias.
However, this Court has cautioned time and again
that courts should exercise a lot of restraint while
exercising their powers of judicial review in
contractual or commercial matters. This Court is
normally loathe to interfere in contractual matters
unless a clear-cut case of arbitrariness or mala
fides or bias or irrationality is made out. One must
remember that today many public sector
undertakings compete with the private industry.
The contracts entered into between private parties
are not subject to scrutiny under writ jurisdiction.
No doubt, the bodies which are State within the
1 2023 SCC OnLine SC 671
meaning of Article 12 of the Constitution are bound
to act fairly and are amenable to the writ
jurisdiction of superior courts but this discretionary
power must be exercised with a great deal of
restraint and caution. The courts must realise their
limitations and the havoc which needless
interference in commercial matters can cause. In
contracts involving technical issues the courts
should be even more reluctant because most of us
in Judges' robes do not have the necessary
expertise to adjudicate upon technical issues
beyond our domain. The courts should not use a
magnifying glass while scanning the tenders and
make every small mistake appear like a big
blunder. In fact, the courts must give "fair play in
the joints" to the government and ublic sector
undertakings in matters of contract. Courts must
also not interfere where such interference will
cause unnecessary loss to the public exchequer."
33. Recently, the Hon'ble Supreme Court, in the matter of
Banshidhar Construction Pvt. Ltd. v. Bharat Coking Coal Ltd.
& Others, {Civil Appeal No. 11005 OF 2024, decided on
04.10.2024}, taking note of the decisions rendered in various
other celebrated judgments, observed as under:
"21. There cannot be any disagreement to the legal
proposition propounded in catena of decisions of this
Court relied upon by the learned counsels for the
Respondents to the effect that the Court does not sit as a
Court of Appeal in the matter of award of contracts and it
merely reviews the manner in which the decision was
made; and that the Government and its instrumentalities
must have a freedom of entering into the contracts.
However, it is equally well settled that the decision of the
government/ its instrumentalities must be free from
arbitrariness and must not be affected by any bias or
actuated by malafides. Government bodies being public
authorities are expected to uphold fairness, equality and
public interest even while dealing with contractual
matters. Right to equality under Article 14 abhors
arbitrariness. Public authorities have to ensure that no
bias, favouritism or arbitrariness are shown during the
bidding process and that the entire bidding process is
carried out in absolutely transparent manner.
34. 22. At this juncture, we may reiterate the well-
established tenets of law pertaining to the scope of
judicial intervention in Government Contracts.
23. In Sterling Computers Limited vs. M/s. M & N
Publications Limited and Others2, this Court while
dealing with the scope of judicial review of award of
contracts held: -
"18. While exercising the power of judicial review, in
respect of contracts entered into on behalf of the
State, the Court is concerned primarily as to whether
there has been any infirmity in the "decision making
process". In this connection reference may be made
to the case of Chief Constable of the North Wales
Police v. Evans [(1982) 3 All ER 141] where it was
said that: (p. 144a)
"The purpose of judicial review is to ensure that
the individual receives fair treatment, and not to
ensure that the authority, after according fair
treatment, reaches on a matter which it is
authorised or enjoined by law to decide for itself
a conclusion which is correct in the eyes of the
court."
By way of judicial review the court cannot examine
the details of the terms of the contract which have
been entered into by the public bodies or the State.
Courts have inherent limitations on the scope of any
such enquiry. But at the same time as was said by
the House of Lords in the aforesaid case, Chief
Constable of the North Wales Police v. Evans
[(1982) 3 All ER 141] the courts can certainly
examine whether "decision-making process" was
reasonable, rational, not arbitrary and violative of
Article 14 of the Constitution."
2 (1993) 1 SCC 445
24. In Tata Cellular vs. Union of India 3, this Court had
laid down certain priniciples for the judicial review of
administrative action.
"94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in
administrative action.
(2) The court does not sit as a court of appeal but
merely reviews the manner in which the decision
was made.
(3) The court does not have the expertise to correct
the administrative decision. If a review of the
administrative decision is permitted it will be
substituting its own decision, without the necessary
expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be
open to judicial scrutiny because the invitation to
tender is in the realm of contract. Normally speaking,
the decision to accept the tender or award the
contract is reached by process of negotiations
through several tiers. More often than not, such
decisions are made qualitatively by experts.
(5) The Government must have freedom of contract.
In other words, a fair play in the joints is a necessary
concomitant for an administrative body functioning in
an administrative sphere or quasi-administrative
sphere. However, the decision must not only be
tested by the application of Wednesbury principle of
reasonableness (including its other facts pointed out
above) but must be free from arbitrariness not
affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy
administrative burden on the administration and lead
to increased and unbudgeted expenditure. Based on
these principles we will examine the facts of this
case since they commend to us as the correct
principles."
25. It has also been held in ABL International Limited
and Another vs. Export Credit Guarantee Corporation
of India Limited and Others4, as under: -
3 (1994) 6 SCC 651
4 (2004) 3 SCC 553
"53. From the above, it is clear that when an
instrumentality of the State acts contrary to public
good and public interest, unfairly, unjustly and
unreasonably, in its contractual, constitutional or
statutory obligations, it really acts contrary to the
constitutional guarantee found in Article 14 of the
Constitution."
26. In Jagdish Mandal vs. State of Orissa and Others 5,
this Court after discussing number of judgments laid
down two tests to determine the extent of judicial
interference in tender matters. They are: -
"22. (i) Whether the process adopted or decision
made by the authority is mala fide or intended to
favour someone; or Whether the process adopted or
decision made is so arbitrary and irrational that the
court can say: "the decision is such that no
responsible authority acting reasonably and in
accordance with relevant law could have reached;"
(ii) Whether public interest is affected. If the answers
are in the negative, there should be no interference
under Article 226. Cases involving blacklisting or
imposition of penal consequences on a
tenderer/contractor or distribution of State largesse
(allotment of sites/shops, grant of licences,
dealerships and franchises) stand on a different
footing as they may require a higher degree of
fairness in action."
27. In Mihan India Ltd. vs. GMR Airports Ltd. and
Others6, while observing that the government contracts
granted by the government bodies must uphold fairness,
equality and rule of law while dealing with the contractual
matters, it was observed in Para 50 as under: -
"50. In view of the above, it is apparent that in
government contracts, if granted by the government
bodies, it is expected to uphold fairness, equality
and rule of law while dealing with contractual
matters. Right to equality under Article 14 of the
Constitution of India abhors arbitrariness. The
transparent bidding process is favoured by the Court
to ensure that constitutional requirements are
satisfied. It is said that the constitutional guarantee
5 (2007) 14 SCC 517
6 (2022) SCC OnLine SC 574
as provided under Article 14 of the Constitution of
India demands the State to act in a fair and
reasonable manner unless public interest demands
otherwise. It is expedient that the degree of
compromise of any private legitimate interest must
correspond proportionately to the public interest."
28. It was sought to be submitted by the learned
Counsels for the Respondents relying upon the
observations made in Central Coalfields Limited and
Another vs. SLL-SML (Joint Venture Consortium) and
Others7, that whether a term of NIT is essential or not is
a decision taken by the employer which should be
respected. However, in the said judgment also it is
observed that if the employer has exercised the inherent
authority to deviate from the essential term, such
deviation has to be made applicable to all the bidders and
potential bidders. It was observed in Para 47 and 48 as
under:-
"47. The result of this discussion is that the issue of
the acceptance or rejection of a bid or a bidder
should be looked at not only from the point of view of
the unsuccessful party but alsofrom the point of view
of the employer. As held in Ramana Dayaram Shetty
[Ramana Dayaram Shetty v. International Airport
Authority of India, (1979) 3 SCC 489] the terms of
NIT cannot be ignored as being redundant or
superfluous. They must be given a meaning and the
necessary significance. As pointed out in Tata
Cellular [Tata Cellular v. Union of India, (1994) 6
SCC 651] there must be judicial restraint in
interfering with administrative action. Ordinarily, the
soundness of the decision taken by the employer
ought not to be questioned but the decision-making
process can certainly be subject to judicial review.
The soundness of the decision may be questioned if
it is irrational or mala fide or intended to favour
someone or a decision "that no responsible authority
acting reasonably and in accordance with relevant
law could have reached" as held in Jagdish Mandal
[Jagdish Mandal v. State of Orissa, (2007) 14 SCC
517] followed in Michigan Rubber [Michigan Rubber
(India) Ltd. v. State of Karnataka, (2012) 8 SCC
216].
7 (2016) 8 SCC 622
48. Therefore, whether a term of NIT is essential or
not is a decision taken by the employer which should
be respected. Even if the term is essential, the
employer has the inherent authority to deviate from it
provided the deviation is made applicable to all
bidders and potential bidders as held in Ramana
Dayaram Shetty [Ramana Dayaram Shetty
v.International Airport Authority of India, (1979) 3
SCC 489] . However, if the term is held by the
employer to be ancillary or subsidiary, even
thatdecision should be respected. The lawfulness of
that decision can be questioned on very limited
grounds, as mentioned in the various decisions
discussed above, but the soundness of the decision
cannot be questioned, otherwise this Court would be
taking over the function of the tender issuing
authority, which it cannot."
35. Keeping the aforesaid principles in view, the facts of the present
case may now be examined.
36. The record reveals that the first tender was issued on 09.04.2025
and was subsequently cancelled on 07.07.2025. Thereafter a
second tender was issued on 11.07.2025 which was also
cancelled on 22.09.2025. Subsequently, the third tender was
issued on 24.09.2025. It is not in dispute that the petitioner chose
not to participate in the third tender process. The petitioner has
sought to justify its non-participation on the ground that the
technical evaluation criteria were allegedly tailor-made to favour
Respondent No.3. However, apart from bald allegations, no
material has been placed on record to substantiate the plea of
mala fides or favouritism. The mere fact that certain modifications
were introduced in the evaluation criteria or that Respondent No.3
secured higher marks in the technical evaluation cannot, by itself,
lead to the conclusion that the tender conditions were framed with
the intention to favour a particular bidder.
37. It is also relevant to note that the tender process has already
culminated in the issuance of the Summary Sheet dated
27.11.2025 followed by the issuance of the Letter of Intent dated
29.12.2025 and the execution of a binding Service Agreement
dated 23.01.2026 between Respondent No.2 and Respondent
No.3. The materials placed on record further indicate that
Respondent No.3 has already acted upon the contract by
depositing the Performance Bank Guarantee and mobilizing
substantial resources for execution of the project, including
placing orders for ambulances and medical equipment and
recruiting the required manpower. The project in question relates
to the operation of the 108 emergency ambulance services in the
State and is intended to provide critical medical assistance to the
public at large. Interference with the tender process at this stage
would not only affect the contractual rights of the parties but would
also adversely impact the larger public interest.
38. The Supreme Court has consistently held that in matters relating
to public contracts, the Court must keep in mind the larger public
interest and should refrain from interfering once the contract has
been substantially acted upon.
39. In Reliance Energy Ltd. (supra), the Supreme Court emphasized
the concept of a level playing field but at the same time observed
that the scope of judicial review is limited to examining the
decision-making process and not the merits of the decision itself.
In the present case, no material has been placed on record to
demonstrate that the decision-making process adopted by the
respondent authorities was arbitrary, irrational or actuated by mala
fides. On the contrary, the record reveals that the respondent
authorities have followed a transparent process and have taken
decisions in exercise of their administrative discretion.
40. In view of the settled legal position and the facts of the present
case, this Court does not find any ground warranting interference
in exercise of jurisdiction under Article 226 of the Constitution of
India.
41. Accordingly, the writ petition being devoid of merit is liable to be
and is hereby dismissed. No cost(s).
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Chandra
Head-Note
Where the petitioner chose not to participate in the tender process
and failed to place any material establishing arbitrariness, mala fides or
favouritism in the decision-making process, and the tender had already
culminated in a concluded contract acted upon by the successful bidder,
the High Court declined to interfere under Article 226 of the Constitution
of India in view of the limited scope of judicial review in contractual
matters and the overriding consideration of public interest.
