Karnataka High Court
Dr. Ambika S Patil vs The State Of Karnataka on 7 November, 2025
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
WRIT PETITION NO. 201957 OF 2025 (GM-TEN)
BETWEEN:
DR. AMBIKA S. PATIL W/O SANJEEV PATIL,
AGE: 40 YEARS, OCC: DIRECTOR,
SHANTA HOSPITAL, HIGH COURT ROAD,
KALABURAGI-585102,
R/O. H. NO. 84 KHB COLONY, MSK MILL ROAD,
KALABURAGI-585102.
...PETITIONER
(BY SRI AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI MAHESH PATIL, ADVOCATE)
AND:
Digitally signed 1. THE STATE OF KARNATAKA,
by SACHIN
REPRESENTED BY ITS SECRETARY,
Location: HIGH
COURT OF LABOR DEPARTMENT, VIKASA SOUDHA,
KARNATAKA BENGALURU-560001.
2. THE JOINT SECRETARY,
KARNATAKA BUILDING AND OTHER CONSTRUCTION
WORKERS WELFARE BOARD IN KARNATAKA,
KALYAN SURAKSHA BHAVANA,
ITI COMPOUND, DAIRY CIRCLE,
BENGALURU-560029.
...RESPONDENTS
(BY SRI SHESHADRI JAISHANKAR M., AGA FOR R1;
SRI MRC RAVI, SENIOR COUNSEL FOR
SRI KRUPA SAGAR PATIL, ADVOCATE FOR R2)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
a) ISSUE A WRIT IN THE NATURE OF CERTIORARI TO QUASH
THE IMPUGNED NOTIFICATION BEARING NO.
KBOCWWB/PHC/CR-05/2025-26 DATED 11.06.2025 VIDE
ANNEXURE-C ISSUED BY 2ND RESPONDENT TO THE EXTENT
OF CLAUSE 11 (q)(2) AT SL NO. (1) AND HOLD THE SAME AS
ARBITRARY, ILLEGAL AND UNCONSTITUTIONAL. b) DIRECT
THE RESPONDENTS NOT TO BASE THE EVALUATION OF BIDS
ON (20) MARKS PROVIDED IN CLAUSE 11 (q)(2) SL NO. (1). c)
PASS SUCH OTHER RELIEF AS THIS HON'BLE COURT DEEMS
FIT IN THE CIRCUMSTANCES OF THE CASE.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 15.10.2025, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
CAV ORDER
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)
Petitioner is before this Court seeking the following
reliefs :
a. Issue a writ in the nature of certiorari to quash
the impugned notification bearing No.
KBOCWWB / PHC / CR-05 / 2025-26 dated
11.06.2025 vide Annexure-C issued by the 2nd
respondent to the extent of Clause 11(q)(2) at
Sl.No.(1) and hold the same as arbitrary, illegal
and unconstitutional; and
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b. Direct the respondents not to base the
evaluation of bids on [20] marks provided in
Clause 11 (q)(2) Sl.No.(1).
2. The case of the petitioner is;
2.1 That respondent No.2-Board, constituted as per
the provisions of the Building and other Construction
Workers (Regulation of Employment and Conditions of
Service) Act, 1996 for the purpose of providing welfare
and social security measures to the registered building and
other construction workers, had called for submission of
proposal by issuing e-tender notification dated
11.06.2025, for the purpose of providing preventive
healthcare checkup for registered construction workers
and their dependents within the jurisdiction of Labour
Officer of Bidar, Karnataka State for the financial year
2025-26. Petitioner who owns her hospital situated at
Kalaburagi, being in a position to fulfill all the general
conditions of eligibility and criteria for evaluation,
submitted her proposal for the said tender.
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2.2. The grievance of the petitioner is only with
regard to the evaluation criteria as provided under Clause
11(q)(2) of e-tender notification. In terms of which,
allotment of 20 marks to the bidders is based on they
having carried out such services of Preventive Health
Checkup in any State Government and Central
Government Department, Boards, Government
Organization, Public Sector Units, cumulatively in the last
three financial years by awarding 10 marks for having
done the work from Rs.5.00 to Rs.30.00 crores; 15 marks
for having done the work for Rs.30.01 upto Rs.60.00
crores and 20 marks for having done the work above
Rs.60.00 crores. Thus, 20 out of 100 marks under
technical evaluation criteria would be assigned based on
their work done in the past three financial years. It is this
technical evaluation criteria which according to the
petitioner lacks reasonable basis and is imposed with
mala-fide intentions of promoting a cartel to suit and to
favour a particular group of bidders. That the impugned e-
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tender notification to the said extent is discriminatory,
irrational, unreasonable and not based on any logical
criteria. But for the aforesaid Clause 11(q)(2) of e-tender
notification, petitioner is eligible in all other aspects to
apply under the impugned e-tender notification as it holds
Level-2 hospital license and also houses ICU and other
facilities, in case of emergencies which is one of the
requirements of Clause 11(q)(1) of e-tender notification.
2.3. It is further case of the petitioner that in the e-
tender notification that was issued for the year 2024-25 by
respondent No.2 vide notification dated 10.12.2024 Clause
11(q)(1) and (2) had imposed similar conditions to which
petitioner had applied and was found to be qualified in
terms of Clause 11(q)(1) which is a pre-qualification
criteria. That the petitioner was the lowest bidder amongst
the last three bidders. However, the contract was awarded
to one Chandan Das Blossom Multi Specialty Hospital who
had quoted highest bid. The petitioner was eliminated
arbitrarily in view of insertion of Clause 11(q)(2) at
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Sl.No.1. That apart from the petitioner, the other two
bidders who had quoted higher value than the petitioner
were earlier empanelled in the respondent No.2 - Board to
carryout such works.
2.4 That when the respondent No.2 - Board
commenced to call tenders through e-procurement portal
since from last year i.e., from 2024-25, the clauses in
notification were kept more specifically Clause 11(q)(2)
Sl.No.1 only to suit the criteria of these earlier empanelled
bidders. Similar clause is continued to be inserted in the
present notification only with a view to eliminate the other
bidders. Hence, the present petition seeking quashing of
notification to the extent of Clause 11(q)(2) at Sl.No.1 as
the same is arbitrary, illegal and unconstitutional.
3. Statement of objections is filed by respondent
No.2, While denying the averments and allegations made
in the petition, it is contented;
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3.1. That Clause 11(q)(2) at Sl.No.1 is not a newly
inserted condition as it was in existence even in the earlier
tender notification issued for the year 2024-2025. That the
tender notifications are issued not only in respect of Bidar
District, but in respect of 21 other districts of the
Karnataka State. All the said tender documents carry
similar Clause 11(q)(2) at Sl.No.1. That the tenders are
called in terms of Rule 28-C of the Karnataka
Transparency in Public Procurement Rules, 2000
(hereinafter referred to as 'Rules, 2000'). That in terms of
the said Rules, combined evaluation of technical and
financial proposals are carried out by the respondent No.2,
weightage of 15% of technical evaluation and 25% of the
financial proposal is based on the standard bid document
as per Karnataka Transparency in Public Procurement Act,
2000 and Rules, 2000.
3.2. That the allegation of insertion of the said
Clause 11(q)(2) of e-tender notification to eliminate the
petitioner is incorrect inasmuch as with the same clause
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existing in the earlier notification for the year 2024-2025,
the petitioner had participated. The petitioner not having
qualified in the earlier tender due to such clause has
come-up with the present petition with false allegation.
3.3. That the purpose of having such condition in
tender notification is to select an agency which is capable
of implementation of its preventive healthcare scheme in
the district of Bidar, within the jurisdiction of Labour
Officer, Bidar, which involves conducting of 20 medical
tests to the registered beneficiaries and their dependents.
It also involves adequate IEC activities prior to holding of
camps, collection of samples at designated camps, the
storage of samples and specimen as per medical
guidelines, the analysis of samples at designated
laboratories and the distribution of hard copies of the
medical reports to the beneficiaries and the dependents
through proper medical consultations. That the entire
exercise of this scheme has to be completed in a span of
150 days. The agency is therefore required to have the
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necessary physical and human resources to carry out the
same scheme simultaneously throughout the district
through different medical camps. The work involves
qualitative output from the selected agency. Therefore, the
allegation of said clause having been inserted to eliminate
bidders and to accommodate few is baseless.
3.4. That the said clause requires bidder to have
carried out preventive healthcare services in any State
Government or Central Government Department, Boards,
Government Organizations, Public Sector Units in the last
three years. Any agency, who has carried out such works
in any part of India is eligible to apply. The higher the
value of the work done, higher will be the expertise and
experience of the agency in the said field, which will be the
base for awarding higher marks for the higher work done.
The condition is only designed to suit the scheme and not
for any discriminatory purpose. It is not available for the
petitioner to challenge the said clause merely because she
did not meet the requirement of the said clause. The
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tender is an open tender available for any bidder from any
part of India to participate. As such, the allegation of
insertion of said clause to favour previously empanelled
agency is incorrect. Hence, sought for dismissal of the
petition.
4. Learned Senior counsel Sri. Ameetkumar
Deshpande reiterating the averments and the grounds
urged in the memorandum of petition, extensively taking
this Court through the records, submitted;
4.1. That the Clause 11(q)(2) at Sl.No.1 of the
tender notification is inserted with a deliberate intention of
creating artificial barrier restricting open and healthy
competition. The very intention of inserting such clause is
only to facilitate selected few bidders, in this case, who
were already empanelled. He refers to Annexure-G of the
writ petition wherein names of eight agencies are
reflected. He points out to one M/s. Blossom Multi-
specialty Hospital, Bengaluru; M/s. Ashwini Hospital,
Tumkur; and M/s. Sanjeevini Speciality Hospital and Heart
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Care Centre, Hubli found in the said document to contend
that repeatedly it is only these entities who have been
facilitated and the insertion of the impugned clause is only
designed to provide them the space eliminating other
bidders like that of the petitioner.
4.2. That there is no justification in imposing
additional condition requiring the bidders to have financial
turnover derived from rendering preventive healthcare
check-up service only to State or Central Government
Departments inasmuch as not every bidder though have
similar financial turnover derived from rendering service of
preventive healthcare check-up to private individuals and
entities are given option. This only restricts and narrows
down the competition.
4.3. That the respondent No.2 being a State under
Article - 12 of the Constitution of India is duty bound to
ensure that the public largess is distributed by giving wide
publication and maintaining transparency by providing
enhanced higher competition amongst all the bidders.
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4.4. He relies upon the judgment of the Apex Court
in the case of Vinishma Technologies Private Ltd. vs.
State of Chhattisgarh and another decided on
06.10.2025 in SLP (C) No.24075/2025 and referring to
para 18 of the said judgment, he submitted that the Apex
Court under similar facts situation of the matter, providing
for conditioning the tender has held such condition to be
violative of Articles 14 and 19(1)(g) of the Constitution of
India. Hence, seeks for allowing the petition granting the
prayer as sought for.
5. In response, learned Senior counsel appearing
for respondent No.2 submitted;
5.1. That the petitioner who had submitted her
tender in response to earlier notification issued for the
year 2024-25 with similar clause and condition being
unsuccessful was fully aware of the consequence of said
condition. She having not challenged the said clause in the
earlier notification or at any point subsequently is
estopped from raising such grounds in the present tender
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notification called for the year 2025-26. That earlier
tenders were called only for the empanelled bidders, which
restriction was removed from the year 2024-25 and is
made open and pan India in terms of which any agency
interested across India can participate. The respondent
has removed the concept of empanelment. As such, there
is no discrimination or any intention to facilitate any
particular tenderer.
5.2. That there was a pre-bid meeting held on
18.06.2025 and the last date for submitting the proposal
was 10.07.2025. Clause 5(13) provides a pre-bid
conference at the office of the Joint Secretary, KBOCWWB,
wherein if a prospective bidder has any query or
suggestions regarding tender conditions, they should
submit their queries online or offline on 18.06.2025 upto
17.00 p.m. The purpose of having such pre-bid conference
is to provide an opportunity for the bidders to raise any
objection for the clauses in the tender documents, if they
are aggrieved. The petitioner not having responded to or
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participated in the said pre-bid meeting or having raised
any objection with regard to the tender conditions cannot
maintain the petition raising the dispute as sought to be
done in the instant case. Petitioner is therefore estopped
from raising any objection with regard to the validity
otherwise of said tender condition.
5.3. The last date for submission of the tender was
10.07.2025 and the writ petition is filed on 11.07.2025,
just a day after the last date for submission of tender,
which only manifests the mala-fide intention of the
petitioner who had kept quite till the last minute of
submission of the bid and thereafter preferred the writ
petition with an apprehension of she not being successful
in the bid.
5.4. That even Clause 11(q) - Criteria for evaluation,
1 Pre-qualification (PQ) Criteria Sl.No.3 provides for
similar condition and the petitioner has not chosen to
challenge the same. Merely, because the petitioner did not
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score required marks and few tenderers had participated
cannot be the ground to consider the allegation of
arbitrariness and favouritism. The estimated value of the
tender notification is Rs.9.85 crores. It is based on 20
tests to be done on one person costing Rs.2,950/-. The
rate which is given by ESI. That the evaluation of bids and
20 marks provided in Clause 11(q)(2) at Sl.No.1 is not
arbitrary as alleged inasmuch as if the turnover in the said
specific work is Rs.60 crores, then the quality of work of
such tender would be good and based on turnover on the
specific work the points have been bifurcated. In fact, the
petitioner has furnished certificate for having done the
work issued by Kalaburagi Mahanagar Palike Corporation
for year 2023-24. In terms of which, the turnover of the
petitioner is above Rs.4-00 crores. As such, the petitioner
has been given 10 marks for the said criteria. Allegation of
petitioner not having been given any mark under the said
criteria is incorrect.
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5.5. That the respondent No.2 has evaluated and
awarded the marks to the petitioner based on the
information and documents submitted as required under
Clause 11(q)(2) Sl.No.1 to 7. The requirement of
experience of having carried out preventive health check-
up service in any State Government or Central
Government departments, Boards, Government
Organizations, Public Sector unit cannot be said to be
arbitrary and unreasonable as the number of checkups
required to be done in the notification is about 33,500
within span of five months. Private entity can carry out
such test, if any, only to its employees. In the present
case, preventive healthcare check-up facility of 20 tests is
required to be conducted on registered construction
workers of the Karnataka Building and Other Construction
Workers' Welfare Board and their dependents, who are
general public, that can be carried out only by the State
Government, Central Government Department, Boards,
Government Organizations, Public Sector Units. Therefore,
the allegation of petitioner that the above clause being
arbitrary cannot be countenanced.
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5.6. That actually the petitioner has scored a total of
68 marks. The petitioner has been awarded 10 out of 20
marks under the impugned clause. Even if additional 10
marks are awarded, the total score of the petitioner would
be 78 points. Whereas the successful bidders have been
awarded 97 points and even if 10 marks given to them
under the impugned clause are reduced it would not make
significant different. As such, the allegation of
discrimination in view of insertion of impugned claim,
cannot be accepted.
5.7. It is settled law that the owners shall have
freedom to provide eligibility criteria and to the terms and
conditions of the bid unless it is found to be mala-fide and
tailor made. A bidder / tender cannot be permitted to
challenge the bid conditions for clause which might not
suit him or inconvenient to him. Hence, seeks for dismissal
of the writ petition.
5.8. In support of his submission, the learned
counsel relied upon the following judgments :
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i) Directorate of Education and Others vs.
Educomp Datamatics Ltd. and Others reported
in (2004) 4 SCC 19;
ii) Balaji Ventures Pvt. Ltd. vs. Maharashtra State
Power Generation Company Ltd. and another
reported in 2022 SCC OnLine SC 1967;
iii) All Assam Private Security Agencies
Association, represented by its President vs.
Tezpur University, represented by its Vice
Chancellor and others reported in 2025 SCC
OnLine Gau 2820.
6. Heard. Perused the records.
7. The points that arise for consideration in this
writ petition is:-
(i) Whether on the facts and in the law, Clause
11(q)(2) at Sl.No.1 of the tender notification
dated 11.06.2025 creates an artificial barrier,
thereby restricting the competition only to a
select few bidders and is therefore arbitrary
and unreasonable.?
(ii) Whether respondent No.2 - Board is justified
in imposing condition as contained in Clause
11(q)(2) at Sl.No.1 of the e-tender
notification.?
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8. Before adverting to the rival submissions made
by the learned Senior counsel appearing for the petitioner
and the respondent respectively, appropriate to refer to
the settled position of law providing for judicial review in
the matters of public contracts. In the case of Directorate
of Education (supra) at paragraphs 9 to 12 the Apex
Court has held as under :
"9. It is well settled now that the courts can scrutinize the
award of the contracts by the government or its agencies in
exercise of its powers of judicial review to prevent
arbitrariness or favoritism. However, there are inherent
limitations in the exercise of the power of judicial review in
such matters. The point as to the extent of judicial review
permissible in contractual matters while inviting bids by
issuing tenders has been examined in depth by this Court
in Tata Cellular vs. Union of India [1994 (6) SCC 651]. After
examining the entire case law the following principles have
been deduced.
"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
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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.
[Emphasis supplied]
10. In Air India Limited vs. Cochin International
Airport Limited [2000 (2) SCC 617], this Court observed:
"The award of a contract, whether it is by a
private party or by a public body or the
State, is essentially a commercial
transaction. In arriving at a commercial
decision considerations which are paramount
are commercial considerations. The State can
choose its own method to arrive at a
decision. It can fix its own terms of invitation
to tender and that is not open to judicial
scrutiny. It can enter into negotiations before
finally deciding to accept one of the offers
made to it. Price need not always be the sole
criterion for awarding a contract. It is free to
grant any relaxation, for bona fide reasons, if
the tender conditions permit such a
relaxation. It may not accept the offer even
though it happens to be the highest or the
lowest. But the 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
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decision is not amenable to judicial review,
the court can examine the decision-making
process and interfere if it is found vitiated by
mala fides, unreasonableness and
arbitrariness."
[Emphasis supplied]
11. This principle was again re-stated by this Court
in Monarch Infrastructure (P) Ltd. vs. Commissioner,
Ulhasnagar Municipal Corporation and Others [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 one 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 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."
9. In the case of All Assam Private Security
Agencies Association (supra), at paragraphs 22 to 27
has held as under :
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"22. Having noticed the above position; this Court
would now examine the decisions of the Hon'ble Supreme
Court holding the field with regard to the power of the writ
Court to interfere with the prescriptions made in a tender
condition as well as the importance so required to be given
with regard to interpretation of such tender conditions set-out
by the employer.
23. With regard to the power of judicial review of the
administrative action; the Hon'ble Supreme Court in the case
of Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, had
drawn the following conclusions:
"22. Judicial review of administrative action is intended
toprevent 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 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.
and succour to thousands and millions and may
increase the project cost manifold. Therefore, a court
before interfering in tender or contractual matters in
exercise of power of judicial review, should pose to
itself the following questions:
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(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.
or If the answers are in the negative, there
should be no interference under Article 226.
Cases involving blacklisting or Imposition
tenderer/contractor distribution of State
largesse of penal consequences on a
tenderer/contractor or distribution of State
largesse (allotment of sites/shops, grant of
licences, dealerships and frances) stand on a
different footing as they may require a higher
degree of fairness in action."
24. The Hon'ble Supreme Court in the case of Afcons
Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd.,
(2016) 16 SCC 818, had drawn the following conclusions:
"11. Recently, in Central Coalfields Ltd. v. SLL-SML
(Joint Venture Consortium) it was held by this Court,
relying on a host of decisions that the decision-making
process of the employer or owner of the project in
accepting or rejecting the bid of a tenderer should not
be interfered with. Interference is permissible only if
the decision-making process is mala fide or is intended
to favour someone. Similarly, the decision should not
be interfered with unless the decision is so arbitrary or
irrational that the Court could say that the decision is
one which no responsible authority acting reasonably
and in accordance with law could have reached. In
other words, the decision-making process or the
decision should be perverse and not merely faulty or
incorrect or erroneous. No such extreme case was
made out by GYT-TPL JV in the High Court or before
us.
12. In Dwarkadas Marfatia and Sons v. Port of Bombay
it was held that the constitutional courts are concerned
with the decision-making process. Tata Cellular v.
Union of India went a step further and held that a
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decision if challenged (the decision having been arrived
at through a valid process), the constitutional courts
can interfere if the decision is perverse. However, the
constitutional courts are expected to exercise restraint
in interfering with the administrative decision and
ought not to substitute its view for that of the
administrative authority. This was confirmed in Jagdish
Mandal v. State of Orissa as mentioned in Central
Coalfields.
13. In other words, 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.
14. We must reiterate the words of caution that this
Court has stated right from the time when Ramana
Dayaram Shetty v. International Airport Authority of
India was decided almost 40 years ago, namely, that
the words used in the tender documents cannot be
ignored or treated as redundant or superfluous they
must be given meaning and their necessary
significance. In this context, the use of the word
"metro" in Clause 4.2 (a) of Section III of the bid
documents and its connotation in ordinary parlance
cannot be overlooked.
15. We may add that the owner or the employer of a
project, having authored the tender documents, is the
best person to understand and appreciate its
requirements and interpret its documents. The
constitutional courts must defer to this understanding
and appreciation of the tender documents, unless there
is mala fide or perversity in the understanding or
appreciation or in the application of the terms of the
tender conditions. 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."
25. In the case of Galaxy Transport Agencies v. New
J.K. Roadways, Fleet Owners & Transport Contractors, (2021)
16 SCC 808, a 3-Judge Bench of the Hon'ble Supreme Court
had held that the authority that authors the tender document
is the best person to understand and appreciate its
requirements and thus, its interpretation should not be second
guessed by a Court in judicial review proceeding.
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26. The Hon'ble Supreme Court in the case of Agmatel
India Pvt. Ltd. v. Resoursys Telecom, (2022) 5 SCC 362, after
noticing its earlier decisions in the case of Galaxy Transport
Agencies(supra); Bharat Cooking Coal Ltd. v. AMR Dev
Prabha, (2020) 16 SCC 759; Silppi Constructions Contractors
v. Union of India, (2020) 16 SCC 489; had drawn the
following conclusions:
"24. The scope of judicial review in contractual
matters, and particularly in relation to the process of
interpretation of tender document, has been the
subject-matter of discussion in various decisions of this
Court. We need not multiply the authorities on the
subject, as suffice it would be refer to the three-Judge
Bench decision of this Court in Galaxy Transport
Agencies wherein, among others, the said decision in
Afcons Infrastructure has also been considered; and
this Court has disapproved the interference by the High
Court in the interpretation by the tender inviting
authority of the eligibility term relating to the category
of vehicles required to be held by the bidders, in the
tender floated for supply of vehicles for the carriage of
troops and equipment.
25. This Court referred to various decisions on the
subject and stated the legal principles as follows:
(Galaxy Transport Agencies case, SCC paras 14-20)
"14. In a series of judgments, this Court has held that
the authority that authors the tender document is the
best person to understand and appreciate its
requirements, and thus, its interpretation should not be
second-guessed by a court in judicial review
proceedings. In Afcons Infrastructure Ltd. v. Nagpur
Metro Rail Corpn. Ltd., this Court held: (SCC p. 825,
para 15)
"15. We may add that the owner or the
employer of a project, having authored the
tender documents, is the best person
requirements to and understand interpret and
its appreciate its The documents. constitutional
courts must defer to this understanding and
appreciation of the tender documents, unless
there is or mala fide or perversity in the
understanding appreciation or in the application
of the terms of the tender conditions. 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."
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15. In the judgment in Bharat Coking Coal Ltd. v. AMR
Dev Prabha, under the heading "Deference to
authority's interpretation", this Court stated: (SCC p.
776, paras 50-52)
"50. Lastly, we deem it necessary to deal with
another fundamental problem. It is obvious that
Respondent 1 seeks to only enforce terms of
NIT. Inherent in such exercise is interpretation
of contractual terms. However, it must be noted
that judicial interpretation of contracts in the
sphere of commerce stands on a distinct footing
than while interpreting statutes. or their
51. In the present facts, it is clear that BCCL
and C1-India have laid recourse to clauses of
NIT, whether it be to justify condonation of
delay of Respondent 6 in submitting
performance bank guarantees decision to
resume auction on grounds of technical failure.
BCCL having authored these documents, is
better placed to appreciate their requirements
and interpret them.
52. The High Court ought to have deferred to
this understanding, unless it was patently
perverse or mala fide. Given how BCCL's
Interpretation of these clauses was plausible
and not absurd, solely differences in opinion of
contractual interpretation ought, not to have
been grounds for the High Court to come to a
finding that the appellant committed illegality."
16. Further, in the recent judgment in Silppi
Constructions Contractors v. Union of India, this Court
held as follows: (SCC pp. 501-02, para 20)
"20. The essence of the law laid down in the
judgments referred to above is the exercise of
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
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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."
17. In accordance with these judgments and noting
that the interpretation of the tendering authority in this
case cannot be said to be a perverse one, the Division
Bench ought not to have interfered with it by giving its
own interpretation and not giving proper credence to
the word both" appearing in Condition No. 31 of the
NIT For this reason, the Division Bench's conclusion
that JK Roadways was wrongly declared to be
negligible, is set aside.
18. Insofar as Condition No. 27 of the NIT prescribing
work experience of at least 5 years of not less than the
value of Rs. 2 crores is concerned, suffice it to say that
the expert body, being the Tender Opening Committee,
consisting of four members, clearly found that this
eligibility condition had been satisfied by the appellant
before us. Without therefore going into the assessment
of the documents that have been supplied to this
Court, it is well settled that unless arbitrariness or mala
fide on the part of the tendering authority is alleged,
the expert evaluation of a particular tender, particularly
when it comes to technical evaluation, is not to be
second-guessed by a writ court. Thus, in Jagdish
Mandal v. State of Orissa, this
Court noted: (SCC pp. 531-32, para 22) "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 commercial contracts are
essentially functions. Principles of equity and natural
justice stay at a distance. If the decision relating to
award of contract is bona fide and is in public interest,
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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.
Therefore, a court before interfering in tender or
contractual matters in exercise of power of judicial
review, should pose to itself the following questions:
(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.
interference If the answers are in the negative, there
should be no 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."
19. Similarly, in Montecarlo Ltd. v. NTPC Ltd. 13, this
Court stated as follows: (SCC p. 288, para 26)
"26. We respectfully concur with the aforesaid
statement of law. We have reasons to do so. In
the present scenario, tenders are floated and
offers are invited for highly complex technical
subjects. It requires understanding and
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appreciation of the nature of work and the
purpose it is going to serve. It is common
knowledge in the competitive commercial field
that technical bids pursuant to the notice
inviting tenders are scrutinised by the technical
experts and sometimes third-party assistance
from those unconnected with the owner's
organisation is taken. This ensures objectivity.
Bidder's expertise and technical capability and
capacity must be assessed by the experts. In
the matters of financial assessment, consultants
are appointed. It is because to check and
ascertain that technical ability and the financial
feasibility have sanguinity and are workable and
realistic. There is a multi-prong complex
approach; highly technical in nature. The
tenders where public largesse is put to auction
stand on a different compartment. Tender with
which we are concerned, is not comparable to
any scheme for allotment. This arena which we
have referred requires technical expertise.
Parameters applied are different. Its aim is to
achieve high degree of perfection in execution
and adherence to the time schedule. But, that
does not mean, these tenders will escape
scrutiny of judicial review. Exercise of power of
judicial review would be called for if the
approach is arbitrary or mala fide or procedure
adopted is meant to favour one. The decision-
making process should clearly show that the
said maladies are kept at bay. But 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."
20. This being the case, we are unable to fathom how
the Division Bench, on its own appraisal, arrived at the
conclusion that the appellant held work experience of
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only 1 year, substituting the appraisal of the expert
four-member Tender Opening Committee with its own."
(italicised matter emphasised in the original; emphasis
in bold italics supplied)
26. The abovementioned statements of law make it
amply clear that the author of the tender document is
taken to be the best person to understand and
appreciate its requirements; and if its interpretation is
manifestly in consonance with the language of the
tender document or subserving the purchase of the
tender, the Court would prefer to keep restraint.
Further to that, the technical evaluation or comparison
by the Court is impermissible; and even if the
interpretation given to the tender document by the
person inviting offers is not as such acceptable to the
constitutional court, that, by itself, would not be a
reason for interfering with the interpretation given."
27. The ratio of the decisions of the Hon'ble Supreme Court as
noticed in the above-noted cases, is to the effect that the
owner or the employer of a project having authored the
tender document is the best person to understand and
appreciate its requirement and interpret its documents. A
constitutional Court is to defer to this understanding and
appreciation of the tender documents unless there is malafide
or perversity in the understanding or appreciation or in the
application of the terms of the tender conditions. Even if the
interpretation of a tender document as projected by the
employer, is not acceptable to a constitutional Court, that, by
itself; would not be a reason for interfering with the
interpretation so projected by the employer. It also further
stipulates that if two interpretations are possible then the
interpretation of the employer, must be accepted. The said
decisions lay down that the interference of a Court would be
only to prevent arbitrariness, irrationality, bias, mala fide, or,
perversity."
10. The issue involved in the present petition
requires to be adjudicated in the light of aforesaid settled
position of law. Criteria for evaluation as provided under
Clause 11(q)(i) and (q)2 of the e-tender notification is
extracted for immediate reference:-
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"q. Criteria for evaluation :
1. Pre-qualification (PQ) Criteria -
Bidders should satisfy all the criteria's mentioned in the below table
can participate and submit their bids and they will be eligible for
technical evaluation subject to satisfactory compliance to General
evaluation criteria. The bids which are not meeting all the mandatory
clauses shall be rejected and will not be considered for technical
evaluation. Compliance sheet as per Annexure 1 is to be used for the
purpose.
Pre-Qualification/Eligibility Criteria
Documents to be
Sl.No. Criteria
submitted
1. Xxx xxx
2. The bidder shall have a Audited Balance sheet and
minimum Average Financial Profit & Loss account and
turnover of Rs.15.00 crore in ITR Acknowledgements of
last three financial years duly the Applicant for each of
attested by CA (FY 2022- the last 3 audited financial
2023, 2023-24 & 2024-2025). years (FY 2021-2022,
2022-2023 & 2023-24).
CA Certificate for Annual
turnover for last three
financial years with UDIN
No.
3. The bidder shall have carried Work
out a Preventive Health Completion/Satisfactory
Checkup Services with a Certificate and its relevant
minimum value of Rs. 5.00 Work Order issued by
Crores in a single work order Competent Authority to be
in any State Govt./Central submitted.
Govt.
Departments/Boards/Govt.
Organizations/ Public Sector
Units in the last 3-financial
years (FY 2022-2023, 2023-24
& 2024-2025).
4 Xxx xxx
5 Xxx xxx
6 Xxx xxx
7 Xxx xxx
8 Xxx xxx
9 Xxx xxx
10 Xxx xxx
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2. Technical Qualification Criteria:-
The Evaluation Committee feels that the following parameters are
critical for the success of a project of this nature and expects the
bidders to provide accurate and precise information in their
responses.
Technical Qualification Criteria
Sl.No. Description Basis of Max
Evaluation Marks
1 The bidder shall have carried 5.00 up to 30.00
out Preventive Health Checkup crores-10 marks.
Services (Cumulative Work
Done Value) in any State
Govt./ Central Govt.
30.01 up to
Departments/ Boards/ Govt. 20
60.00 crores-15
Organizations/Public Sector
marks.
Units in the last 3 years (FY
2022-2023, 2023-24 & 2024- Above 60.00
2025). crores-20 marks.
2 The bidder should be Registered Since
registered with ESI & EPF as 12 year as on
on date of tender submission. tender date-3
marks.
5
Registered Since
>2 year as on
tender date-5
marks.
3 Minimum Average Financial Rs. 15.00 Cr to
The bidder shall have a Rs. 30.00 Cr 12
turnover of Rs. 15.00 crores in marks.
last three financial years duly
Rs. 30.01 Cr to 20
Audited or attested by CA with
UDIN No. (FY 2022-2023, Rs. 60.00 Cr 16
2023-24 & 2024-2025) marks.
More than Rs.
60.00 Cr :20
Marks
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4 The bidder should have 1 to 3 Work
executed Preventive Health Orders-5 marks.
care Checkup Centers with a
minimum value of Rs. 5.00
Crores in a single work order
4 to 6 Work
for any State Govt. Central
Orders -7.5
Govt. Departments/
marks.
Boards/Govt. Organizations/
Public Sectors in the last 3
10
years (FY 2022-2023, 2023-24
& 2024-2025). 7 & Above Work
Orders -10
marks.
5 The bidder should have Preventive health
performed Preventive Health checkup tests
care Checkups for any State performed:
Govt./ Central
Departments/Boards/Govt.
Organizations/Public Sectors in 15
30000 to 75000-
the last 3 years (FY 2022-
10Marks.
2023, 2023-24 & 2024-2025).
75001 to
100000-12.5
Marks.
Above 100000-
15 Marks.
6 The bidder should be KPME Level-2:
mandatorily registered with
KPME Level-2 or equivalent Registered for 2
certificate issued by concerned to 3 years as on
state Health Department tender date-5
registered for a minimum of 2 marks.
years as on date of bid
Registered more
submission. 10
than 3 years as
on tender date-
10 marks.
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7 Methodology and Approach for Presentation-10
overall implementation of marks
projects. A presentation in the Methodology and 20
form of color printout should approach-10
be submitted along with the marks.
bid.
Total 100
*Note: To qualify for financial bid, the bidder has to score minimum
of 60 marks in the above Technical Evaluation Criteria.
11. Petitioner has no grievance about the pre-
qualified criteria as per Clause 11(q)(1) as above. The
petitioner seeking quashment of Clause 11(q)2 Sl.No.1
which provides for allotment of marks based on the
services carried out in preventive health check up services
as extracted herein above.
12. Admittedly, respondent No.2 had issued e-
tender notification with similar clause for the period 2024-
25 for the same purpose and the petitioner had applied for
bids in terms of the said tender notification. Petitioner was
apparently qualified in terms of Clause 11(q)(1) which is a
pre-qualification criteria and the petitioner was the lowest
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amongst last three bidders. However, contract was
awarded to one Chandan Das Blossom Multi-Specialty
Hospital, who had quoted highest bid and the petitioner
was eliminated apparently in view of insertion of Clause 11
(q)(2) at Sl.No.1.
13. The present e-tender notification, inviting the
tenders for the financial year 2025-26 also contains Clause
11(q)(2) at Sl.No.1 and the petitioner has participated in
the process.
14. The dispute is with regard to said Clause
11(q)(2) at Sl.No.1 providing the basis for evaluation and
allotment of 20 marks based on the bidder having carried
out preventive health care check up services to the State
and Central Government entities.
15. According to the petitioner aforesaid Clause is
inserted with a mala-fide intention of promoting and
favouring a particular group of bidders and to create an
artificial barrier. Bidders like petitioner who have not
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rendered service to the State and Central Government
entities can never be able to the said condition at any time
as the same would act as barrier for all time to come. That
since bidders like petitioner would never get an
opportunity to render services to the State and Central
Government entities, they would be systematically
excluded from participation. As such, the said clause is
discriminatory and without any rational.
16. On the contrary, the respondent - Board
contend that clause 11(q)(2)(1) is not the sole criteria of
evaluation and the said clause is in existence even in the
earlier tender notification. The purpose is to select an
agency which is competent and capable of implementing
the scheme effectively, with such large magnitude. It does
not create any barrier or impediment as any one who has
carried out preventive health care service to any State or
Central Government Departments across the country is
entitled to participate. As such, it is neither discriminatory
nor unreasonable.
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17. A close scrutiny of the impugned Clause
11(q)(2) at Sl.No.1 of the e-tender notification would
indicate that the bidder shall have carried out preventive
health check up service "IN ANY" State Government /
Central Government Departments / Boards / Government
Organizations / Public Sector Units in the last 3 financial
years 2022-2023, 2023-24 & 2024-2025. In other words,
bidders who have carried out such service across the
country are entitled participate. Such service is not
restricted to any particular State Government or any
particular Department or Board or Organization of the
State and Central Government. Therefore, contention of
the said Clause operates to create artificial barrier cannot
be countenanced.
18. Reliance placed on by the Senior counsel
appearing for the petitioner to the judgment of the Apex
Court in the case of Vinishma Technologies Pvt. Ltd.
(supra) is of no avail inasmuch as the issue fell for
consideration in the said case was with reference to a
tender condition which as extracted in paragraph 13 of the
said judgment reads as under :
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"(4). Past Performance Restriction: Bidders must
have supplied sports goods worth at least Rs.6.00 crores
(cumulative) to State Government agencies of
Chhattisgarh in the last three financial years (2021-22,
2022-23, 2023-24 or 2022-23, 2023-24, 2024-25)."
19. Apex Court referring to the settled legal position
in the matter of formulating the conditions of the tender
document, found that under the facts of the said case the
impugned tender conditions had an effect of excluding
bidders, who though otherwise financially sound and
technically competent, had no experience of supply of
sports goods to the State Government Agency of
'Chattisgarh' in the past three years. It further found that
the State by linking the eligibility criteria with the past
local supply had created an artificial barrier, against the
supplier who had no past dealing with the "State of
Chhattisgarh'. Consequently, it concluded that the
impugned condition curtails the fundamental rights of the
bidders who have been ineligible to participate in the
tender.
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20. The mark difference between the tender
condition, subject matter of the present lis and the tender
conditions subject matter of the case in Vinishma
Technologies Pvt. Ltd. (supra) is that the eligibility
criteria in the said case was restricted to those who had
supplied items to the State Government Agencies of
"Chattisgarh" alone. Thereby it had restricted and
excluded participation of those who had not supplied items
to State of "Chattisgarh". Which is not the case at hand.
As seen above, in terms of the technical qualification
criteria any person who has rendered such service to
"ANY" State Government or Central Government
Department, Boards or Government Organization or Public
Sector Units is eligible and entitled to participate.
21. It is wide open, as rightly contented by the
learned counsel for the respondent, to anyone who has the
experience of providing such service from any part of the
country and the same is not restricted to any particular
Region or State.
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22. In that view of the matter, the contention
raised by the petitioner that the impugned Clause is
restrictive in its nature cannot be countenanced.
23. Considering the volume of work involved in the
process of rendering service and the experience, expertise
and resources that would take to render such service, as
noted above, the inclusion of the condition Clause 11(q)(2)
at Sl.No.1 cannot be found to be arbitrary or
unreasonable.
24. Another aspect of the matter is, as seen from
the written synopsis submitted by the respondent - Board,
the petitioner has been awarded 68 marks while the
successful bidder has been awarded 97 marks. Admittedly,
petitioner has been awarded 10 marks under the
impugned clause. As rightly contented by the learned
counsel for the respondent - Board, even if petitioner is
awarded full 20 marks instead of 10 marks, under the
impugned clause, her total score would still be 78 marks
and even if all the 20 marks awarded to the successful
bidder under the impugned clause is taken away from the
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total 97 marks, his score would be 77 marks. Thus, even
in the present or in the absence of impugned clause, the
difference of marks awarded thereunder would not make
out a case of discrimination or of creating artificial barrier
as contended by the petitioner.
25. For the aforesaid reasons and analysis points
raised above, are answered accordingly i.e., the Clause-
11(q)(2) at Sl.No.1 of the e-tender notification is neither
arbitrary nor unreasonable and the respondent No.2 -
Board is justified in imposing such condition regarding
Technical Qualification criteria. Accordingly, the following;
ORDER
The writ petition is dismissed.
No order as to costs.
Sd/-
(M.G.S.KAMAL)
JUDGE
SN
CT:PK
