Orissa High Court
The Sanskar vs State Of Odisha And Others ... Opposite ... on 30 June, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.17079 of 2025
AND
W.P.(C) No.10733 of 2025
In the matter of Applications under Article 226 of the
Constitution of India
***
W.P.(C) No.17079 of 2025
THE SANSKAR ... Petitioner
-VERSUS-
State of Odisha and others ... Opposite parties
Counsel appeared for the parties:
For the Petitioner : Mr. Ramakanta Mohanty,
Senior Advocate along with Mr.
Abhas Mohanty, Advocate
For the Opposite parties : Mr. Debashis Tripathy,
Additional Government
Advocate
Mr. Manoj Kumar Mishra,
Senior Advocate along with Mr.
Niranjan Panda, Advocate
(for Opposite Party Nos. 2 and
3)(Bhubaneswar Municipal
Corporation)
Mr. Durga Prasad Nanda,
Senior Advocate along with
M/s. Diptanshu Nanda &
associates (for Opposite party
Nos. 4, 5 and 7)
Social Activities and Health
Advancement (SAHA), Bhubaneswar ... Petitioner
-VERSUS-
State of Odisha and others ... Opposite parties
Counsel appeared for the parties:
For the Petitioner : Mr.Surya Prasad Mishra,
Senior Advocate being assisted
by Mr. Soumya Mishra,
Advocate
For the Opposite parties : Mr. Debashis Tripathy,
Additional Government
Advocate
Mr. Niranjan Panda, Advocate
(for Opposite Party Nos. 2 and
3)(Bhubaneswar Municipal
Corporation)
Mr. Durga Prasad Nanda ,
Senior Advocate along with
M/s.Diptanshu Nanda &
associates (for Opposite party
Nos. 4, 5 and 7)
P R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. HARISH TANDON
AND
HONOURABLE JUSTICE
MR. MURAHARI SRI RAMAN
Date of Hearing : 30.06.2025 :: Date of Judgment : 30.06.2025
J UDGMENT
HARISH TANDON, C.J.--
Both the cases are taken up together having assailed
the decision of the Authorities in evaluating the
suitability of the intending bidder at the technical bid
stage which are the subject matter of the challenge in
the respective writ petitions. Pursuant to the Notice
Inviting Tender (NIT) No.40497 dated 01.10.2024, the
writ petitioners who were the existing contractors
participated in the said tender process but were not
found suitable at the time of technical bid.
2. NIT postulates the submission of the bid by 5th
November, 2024 till 3.00 P.M. and the opening of the
bid was indicated to be done on the same date at 4.30
P.M.
3. Before we proceed to deal with the points urged
by the respective counsels, it would be apposite and
profitable to adumbrate the salient facts emerged from
the respective writ petitions as such points aimed at
the common goal.
4. In W.P.(C) No.17079 of 2025, the writ petitioner
is an existing contractor and working in several Wards
within the Bhubaneswar Municipal Corporation for
door-to-door collection of segregated waste with
associated IEC activities and because of untimely
floating of the tender before the expiration of the
period of contract, the existing contract was allowed to
be extended from time to time and last of such
extension reveals its tenure till today. The bid
submitted by the writ petitioner within the time
stipulated in the said NIT is rejected by the Authority
on the premise that the bid was not in conformity with
the conditions stipulated in the said NIT dated 1st
October, 2024. It is beyond cavil of dispute that one of
the conditions enshrined in the said NIT is that the
intending bidder should submit the net worth of
Rs.50.00 lakhs as on 31st March, 2024. Undeniably
the petitioner submitted the Auditor's report along
with bid documents indicating the net worth exceeding
the said limit but for the period up to 31st October,
2024. Since the requirement under the said NIT was
that the intending bidder must submit his net-worth
as on 31st March, 2024, a letter dated 3rd March, 2025
was issued by the Municipal Corporation seeking a
clarification over the discrepancies perceived from a
document pertaining to the net worth by 7th March,
2025. Such clarification was sought as the Authorities
noticed discrepancy in the auditor's report on the
basis of Section 5.4.5 of the Manual for Procurement
of Works 2022 which provides that at the time of
evaluation and the comparison of the bids, the
procuring entity may ask the bidder for clarification in
the event of any ambiguity and/or discrepancies are
noticed with an intent to promote the competitions.
Pursuant to the same clarification was submitted on
6th March, 2025 by the writ petitioner appending the
Auditor's report in relation to a net-worth as on 31st
March, 2024 and there is no ambiguity of perceiving
the said certificate that the net-worth as indicated by
the Authorities as on 31st March, 2024 exceeds the
base limit, i.e.50.00 lakhs.
5. The meeting for technical bid evaluation for
selection of an agency was held on 21st March, 2025
and the bid of the writ petitioner was rejected as a new
or further document post the last date of submission
of the bid is unacceptable. The said decision is the
subject matter of challenge in the instant writ petition.
6. The writ petitioner in W.P.(C) No.10733 of 2025 is
an existing contractor in different works of the
Municipal Corporation and the previous contract was
extended from time to time as the Municipal
Corporation could not initiate the tender process and
is operative till date. Pursuant to the aforementioned
notice inviting tender, the writ petitioner participated
in the tender process and submitted all the requisite
documents along with the offer. Subsequently, the
Authority did not find the writ petitioner eligible for
the financial bid as it does not meet the requisite
qualifications in the technical bid. The Authority
rejected the tender submitted by the writ petitioner as
he could not secure 75 marks out of 100 in terms of
Clause 6.2.2 of the NIT.
7. The challenge thrown on the decision making
process primarily founded upon awarding of marks in
evaluating the suitability and the eligibility of the writ
petitioner. According to the writ petitioner, the
evaluation by the Committee in awarding the marks is
patently erroneous as there is no laxity to the
Authorities in awarding lesser marks on each
parameters provided therefor, and, therefore, the
action of the Authority is tainted with malice and
percolate a sense of favouritism and nepotism in the
contractual field.
8. On the conspectus of the fact as succinctly
narrated hereinabove, the counsels for the respective
writ petitioners raised an issue and urged the points
attributable to the facts pleaded in the respective writ
petitions but to achieve a common destination of
awarding the contracts to the other bidders after
rejecting their bid at the technical bid stage.
9. Taking the plea of the writ petitioner, i.e. "The
Sanskar", the learned Senior Counsel appearing for
the petitioner vociferously submits that the moment
the letter seeking clarification is issued to the writ
petitioner touching upon the Auditor's report
containing the period anterior to the last date of
submission of an application, for which the
clarification is given, it is not open for the Authority to
reject the bid at the technical bid stage on the ground
that fresh document cannot be accepted. It is fervently
submitted that the net-worth as on 31st March, 2024
exceeds the base amount as per the report of the same
auditor, and, therefore, such report cannot be
discarded on the pretext that a fresh document is
submitted after the last date of submission of an
application. The writ petitioner perceived the language
employed in the said clarificatory letter as if the
Authority wanted to know the net-worth as on 31st
March, 2024 and if the same Auditor has certified the
net-worth that exceeds the net-worth fixed by the
Authority, there is no occasion to discard the bid
having not submitted in strict conformity to the terms
and conditions embodied in the said NIT.
10. On the other hand, the learned Senior Counsel
appearing for the Municipal Corporation submits that
the clarification was sought in terms of the provisions
contained in the Manual for Procurement of Works
2022 because of discrepancies noticed by the
Procuring Committee with regard to the date
appearing therein which cannot be construed as
second lease of life to the bidder to submit the new
documents. He further submits that the clarification
was restricted to a ministerial or a clerical error and
not for submission of fresh documents and, therefore,
the decision of the Authority cannot be impinged at
any score. It is arduously submitted that the provision
as quoted by the Authority i.e. Manual For
Procurement of Works 2022 conveyed the laudable
intention that the documents sought for by way of
clarification must be relatable to a last date of
submission of the application and cannot be
interpreted for the purpose of submitting the fresh
document which is dated after the last date of
submission of the bid. He further submits that the
balance sheet annexed to the Auditor's report are
ambiguous and inculcate a sense that the same is
tailored to make the petitioner eligible and, therefore,
the action of the Authority cannot be said to be
perverse, illegal and/or erroneous.
11. Mr. Durga Prasad Nanda, learned Senior Counsel
for the successful bidder adopted the submissions of
the Senior Counsel appearing for the Corporation and
submitted that the writ petition deserves dismissal at
the threshold.
12. No relation to the tender required to be
recapitulated before we embark our journey on the
peripheral of the submissions advanced by the writ
petitioners before us. The Notice Inviting Tender is
floated containing the various clauses and inviting the
offer from the intending participants in order to
promote the competition and to secure the best
suitable price for the work.
13. It admits no ambiguity that the clauses embodied
in the notice inviting the tender partakes the character
of contract the moment the offer is made accepting the
proposals. The conditions and/or stipulations
contained in the Notice Inviting Tender has to be
rigorously accepted and the offer is made being
conscious that it shall constitute a part of the
contract, the moment the acceptance to the proposed
condition is conveyed by participating in the tender
process. After the bid is opened and the successful
bidder is declared, in absence of any special
agreement entered subsequently, the terms and
conditions of the NIT remained operative and binding
on the contracting parties and is an integral part of
the contract. There is no fetter on the part of the
Authority inviting the tender to put the conditions in
the tender documents and the right to reject the bid
for non-fulfilment of any of the terms and conditions
are inhered and ingrained into the Authority. The
scope under the judicial review against the decision of
the Authority either in accepting or rejecting the bid is
limited unless the Court finds the decision being
tainted with perversity, bias, arbitrariness and above
all "cannot withstand" on the test of reasonability
(Wednusbury's principle). The adherence to the
conditions is sine qua non to participation in the
tender process and therefore, the intending bidder
must satisfy the conscience of the Court exercising the
power of judicial review that the decision of the
Authority in rejecting the bid either at the technical
stage or the financial stage does not meet the basic
ingredients of the law as stated above. It is no longer
res integra that the suitability and the eligibility of the
intending bidder is adjudged at the last date of the
submission of an application and if the documents are
required to be filed along with the bid documents, it
must find its existence as on the last date of
submission of the bid. The decision of the Authority in
extending the time for submission of a fresh document
after the last date of submission is often regarded as
an action tainted which smack of arbitrariness,
anonymity, nepotism and favouritism.
14. In the backdrop of the above provisions
contained in Section 5.4.5 of the Manual for
Procurement of Works 2022 applied by the Authority
has to be construed in a pragmatic perspective. It is
evident from the language employed in the said section
that at the time of evaluation and the comparison of
the bids if the procuring agency perceived any
ambiguity and/or discrepancies may request for
clarification within a specified time with clear
stipulation that such clarification cannot mean any
change in terms or the substance of bid including any
specification. It further conveys a clear message that
such information in case of a historical document
must find its existence before the date for opening of
the bid in order to satisfy the conscience that no
significant changes have taken place by the passage of
time. It is to be kept in mind that the terms and
conditions of a contract cannot be ordinarily permitted
to be varied unilaterally. The moment the proposal,
offer and acceptance are complete it partakes the
character of contract and the contracting parties shall
not be permitted to vary any of the terms and
conditions of the contract unilaterally, but the
variation may be permissible on the consent of the
contracting parties. At the stage of notice inviting
tender, once the bid is submitted, the acceptance of
the bid depends upon the fulfilment of the condition
contained therein and in the event any power is
provided in the statutory document to operate in a
specific field, it has to be construed in a meaningful
manner and not pedantically to frustrate the core
object and the purpose of inviting the bid.
15. Section 5.4.5 of the Manual of Procurement of
the Works 2022 though bestowed the power upon the
procuring agency to seek clarification but in view of
the express embargo having contained therein, it
cannot be construed as a provision for enlarging the
date for submission of a fresh document after the last
date of submission of an application or the date of
opening of the bid. The clarification as considered in
an ordinary sense is something to be clarified on the
existing document and not the submission of the fresh
document. The tenet of the clarificatory letter does not
convey a laudable intention as to what is sought to be
clarified by the writ petitioner but there is no
hesitation to construing such letter in the background
of the facts and circumstances that the same was
intended for the purpose of the date given in the
Auditor's report on the net- worth of the writ
petitioner. In other words, the clarification was sought
for whether the net-worth as shown in the Auditor's
report was as on 31st March, 2024 or 31st October,
2024. Subsequent document furnished depicting in
the Auditor's report containing the net-worth is a fresh
document as there cannot be any change in the
substance of the bid in terms of the said provision
applied by the Authority in rejecting the bid at the
technical bid stage.
16. We, therefore, find that moment the letter
seeking clarification is issued by the Authority, the
net-worth indicated in the report prepared by the
auditor as on 31st March, 2024 is a fresh document
but not a clarification on the net-worth of the writ
petitioner as on the said date.
17. The writ petition i.e. W.P.(C) No.17079 of 2025,
sans merit, is hereby dismissed.
18. So far as the writ petition filed by Social Activities
and Health Advancement (SAHA) is concerned, the
challenges basically founded on awarding the marks in
terms and conditions incorporated in the notice
inviting tender. Clause 6.2 of the NIT contained an
exhaustive mechanism for evaluating the bid of the
intending bidders by awarding the marks for different
specifications.
19. According to the learned Senior Counsel
appearing for the writ petitioner, the Authority should
not exercise his discretion in awarding the marks
erratically but should award the marks the moment
the bidder meets the requirement supported by cogent
evidence. The said clause contains the technical
evaluation criteria and the eligibility and the suitability
is to be adjudicated on the basis of the marks divided
in several components on the basis of various criteria
but out of 100 marks. Clause 6.2.2 of the NIT
postulates that the qualifying technical score (Ts) for
opening of the financial bid is 75 marks out of 100
marks, meaning thereby the intending bidder if
secures less than 75 out of 100 marks earmarked on
several eventualities, shall be kept outside the zone of
participation in the financial bid. It is trite to mention
that awarding the marks on each category of
specifications is within the exclusive domain of the
Authorities and a uniform method of awarding the
same should be adopted. There are certain stipulation
which ruled out the exercise of discretion by the
Authorities as the same is basically based upon the
document to be submitted in support thereof. But
there are certain specification and/or eventuality
which confers the discretion upon the Authority in
awarding the marks based upon several
considerations.
20. It appears from the documents annexed to the
counter affidavit that the writ petitioner secured 64
marks out of 100 marks and therefore, he was not
eligible in the financial bid. In view of the conditions
imposed under Clause 6.2.2, it is vociferously
submitted by Senior Advocate for the writ petitioner
that the marks awarded against 60 marks appearing
in Serial Nos. 1 to 3 of Clause 6.2 is arbitrary and
smacks of nepotism and favouritism.
21. The Senior Counsel was conscious on the
proposition of law that the power of judicial review in
regard to the tender are within the limited compass as
a writ Court cannot interfere with the decision or the
order of the Authority but shall exercise such power
on the decision making process. According to the
learned Senior Counsel the manner in which the
marks are awarded to the writ petitioner by the
Authority is suggestive of perversity and the other
factors which render the decision of the Administrative
Authority liable to be interfered with cannot be ruled
out. On a meaningful reading of Clause 6.2, there is
no ambiguity in perceiving that in some cases the
marks are to be awarded on the basis of fulfilment of
such conditions but in others discretion is also vested
upon the Authority to award the marks to each of the
intending bidder which may fall short of the marks
earmarked for such purposes. We find that the
Authorities have provided a reason of awarding 64
marks which cannot be said to be perverse, irrational
and/or unreasonable. We are conscious that the
Authorities must act reasonably and must provide the
reasons before rejecting the bid of any of the intending
bidders. Any decision which is bereft of reasons
cannot be said to be a decision in conformity with the
law. The interference by the writ Court to a decision
which lacks reason is well known but if the reason is
given in the order passed by the Administrative
Authority, the scope for its interference becomes
minimal. The moment the Court finds the decision to
be reasonable, rational and taken on the assimilation
of the facts, in such event, the Writ Court should be
slow and circumspect in interfering with such
administrative order. We find from the documents
appended to the counter affidavit that the Authority
assigned the reasons justifying 64 marks being
awarded to the petitioner which cannot be said to be
perverse or smacks of arbitrariness.
22. It takes us to another plea taken by the writ
petitioner that awarding 40 marks for technical
presentation is too onerous and may invite misuse of
power by the Authorities in selecting the suitable
bidder in terms of the said NIT. In support of the
aforesaid contention, reliance is placed upon a
judgement of the Supreme Court in the case of State
of Assam and Others vs. Arabinda Rabha and
others; Civil Appeal No.2350 of 2025 decided on
7th March, 2025. The Apex Court in the given
decision deprecated the action of the Government or
its instrumentality in selecting the eligible candidate
solely on the basis of an interview. It is further held
that if such procedure is adopted, it will percolate a
sense of arbitrariness and at times the assessment of
the suitability may be undermined. There is no quarrel
to the proposition as laid down in the above report,
had the present matter been a case, where entire
selection is based upon the marks to be awarded in
the interview. In public employment the selection
cannot be founded solely on the basis of an interview,
as element of arbitrariness cannot be ruled out and
the eligible candidates are capriciously kept out of the
zone of public employment which offends the core
value of Article 16 of the Constitution of India. The
selection by way of an interview is susceptible to be
misused or abused at the behest of an Authority and
therefore, such selection process cannot be said to be
in tune with the constitutional ethos. A decision is
what is decided in the context of the facts and the
other factors involved in the said case as a little
difference in fact or an additional fact may invite
different decisions, and, therefore, in order to cull out
the ratio, the Court must consider the facts involved in
the said case. In the instant case the entire
assessment of the suitability is not founded on the
basis of technical presentation which is amenable to
be abused or misused at the behest of the executive
fiat, but several other parameters are also provided
earmarking the definite marks. Therefore, it cannot be
said that the ratio of law laid down in Arabinda
Rabha (supra) in any manner has application in the
instant case.
23. It takes us to another plea taken by the writ
petitioner that the decision of the Committee was
never communicated to the writ petitioner, and
therefore, the action is liable to be interfered with in
view of the judgment rendered by the Division Bench
of this Court in the case of Sical Logistics Ltd. vs.
Mahanadi Coalfields Limited and others reported
in 2017 (II) ILR-CUTTACK 1035. The said judgment
is rendered on the basis of the administrative decision
by the Authority in cancelling the tender process and
issuance of the fresh tender process without providing
any reason. The Division Bench of this Court held that
the reason is a concomitant of passing an order, and,
therefore, the Authority must discharge its duty so
assigned in a meaningful manner. It is highlighted
that providing reasons even in administrative field is
the reflection of a mind and the consideration behind
the said decision and also conveys a clear message to
the person who has affected by the said decision. In
such perspective, it was held that non-communication
of decision raises a great suspicion about the action of
the Authorities and there is no fetter on the part of the
writ Court to interfere with the same.
24. The instant case is distinguishable on facts and
features, which renders the said judgment of the
coordinate Bench inapplicable. The Authority while
rejecting the bid at the technical stage recorded the
reasons which cannot be termed as perverse or an act
of arbitrariness.
25. We are conscious about the proposition of law
that the Authority must communicate the decision
affecting the rights of the parties and should not sat
over the same for a considerable period of time. The
communication of the decision not only ensures the
fairness and transparency in the administrative field
but also percolates the reasons for the persons to
understand the grounds for which his offer is rejected.
26. We find that the last date of submission for the
said application was fixed on 15th November, 2024 and
subsequent thereto the steps are taken for evaluation
of the suitability of the candidates. It cannot be
reasonably inferred that the evaluation is done much
after the last date of submission on the basis of the
fact. The documents annexed to the counter affidavit
reveals that in the meeting, the Committee took into
consideration all the applications submitted by the
intending bidders including the writ petitioners and
the decision was taken thereupon. A distinction must
be drawn between the act of the authorities, who sat
over the decision and did not communicate the
decision for a long considerable period of time and the
decision which has been taken in a close proximity of
time and the litigation is ensued wherein such
disclosure is made by way of filing a pleading.
27. We, thus, do not find substance in the plea taken
by the writ petitioner that since no communication
was made, the same would entail the entire exercise
liable to be struck down.
28. The writ petition i.e. W.P.(C) No.10733 of 2025 is
also dismissed. There shall be no order as to costs.
(HARISH TANDON)
CHIEF JUSTICE
(MURAHARI SRI RAMAN)
JUDGE
High Court of Orissa, Cuttack
The 30th June, 2025/Bichi/Aswini
Signature Not
Verified
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal
Assistant (Secretary-in-
Charge)
Reason: Authentication
Location: ORISSA HIGH
COURT, CUTTACK
Date: 14-Jul-2025 15:30:47
