M/S. Paritosh Services Agency vs Notified Area Council
2025 Latest Caselaw 8521 Ori

Orissa High Court

M/S. Paritosh Services Agency vs Notified Area Council on 20 September, 2025

Author: Murahari Sri Raman

Bench: Murahari Sri Raman

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                         W.P.(C) No.25232 of 2025

   M/s. Paritosh Services Agency, Cuttack ....                             Petitioner

                              -Versus-
   Notified Area Council, Remuna,                     ....         Opposite Parties
   Balasore and another


  Advocates appeared in this case:
  For Petitioner              : Mr. Lalit Kumar Maharana, Advocate

  For Opposite Parties        : Mr. Sukanta Kumar Dalai, Advocate

                          CORAM:
                HON' BLE THE CHIEF JUSTICE
                            AND
          HON'BLE MR. JUSTICE MURAHARI SRI RAMAN

                                JUDGMENT

--------------------------------------------------------------------------------

Date of Hearing and Judgment : 20th September, 2025

-------------------------------------------------------------------------------- HARISH TANDON, CJ.

1. The petitioner after participating in the tender process and

having weeded out at the final stage of awarding the contract, the

challenge is made to Clause-(e) of the financial bid providing for

fair lottery process in the event of quoting the same price by

multiple bidders.

2. The writ petition running into several pages is reflective of

the contention that such clause is tailored to suit a particular

intending bidder depriving the others and, therefore, should be

regarded to have been tainted with bias and arbitrariness.

3. At the very outset, a seminal issue was raised as to whether a

bidder, who participated in the tender with open eyes can take a

rebound and challenge any or more of the conditions incorporated in

the tender document, more particularly, in relation to an eligibility

criterion and the mechanism in which the said tender is required to

be finalized.

4. According to the learned counsel appearing for the

petitioner, if one or more conditions incorporated in the tender

document is harsh, arbitrary, unfair and/or irrational, there is no

fetter in law to approach the Court and challenge the same. It is

further submitted that the petitioner cannot be thrown out of the

process by such stringent clause and, therefore, the aforementioned

clause should be declared as unconscionable and/or irrational. The

authorities may, therefore, be directed to conduct the entire process

afresh.

5. Shorn off unnecessary details, the tender was floated by the

Housing and Urban Department, Government of Odisha for

privatization of sanitation works i.e., road sweeping, cleaning of

drains, bush cutting in thirteen numbers of wards and transportation

of road sweeping waste to identified MCC/MRF Centre under

Remuna NAC & land filling.

6. There is no dispute on the minimum eligibility criteria

enshrined in the said Tender Call Notice and the petitioner having

fulfilled all such criteria participated in the tender process without

any demur and qualified at the technical bid stage. After having

successfully undergone the evaluation process indicated in the said

tender call notice, the petitioner's bid was considered at the financial

bid stage.

7. Indubitably, more than one intending bidders quoted the

same lowest price including the petitioner and by virtue of Clause-

(e) in the financial bid section, the bidder will be selected by a fair

lottery process as per Code.

8. Admittedly, the petitioner could not emerge successful in the

said process undertaken by the Tender Committee and the challenge

is thrown to the said clause on the grounds enumerated hereinbefore

with an additional ground that in a previous tender call notice, the

process of selecting the bidder was different from the one, which is

incorporated in the present tender call notice.

9. Before we proceed to decide the issue, it would be apposite

and profitable to quote Clause-(e) from the financial bid section,

which runs thus:

"e. In the financial bid, the bidder with the lowest price shall be awarded the contract. However, in case of more than 01 (one) bidder (Technically qualified) quoted the same lowest price, then the bidder will be selected by the fare lottery process as per code."

10. Though the pivotal issue involved in the instant writ petition

is whether a bidder, who participated in the tender can challenge any

of the terms and conditions of the tender call notice, an additional

ground is also taken that the said clause is tailored to favour a blue-

eyed intending bidder. We feel it prudent to deal with the said point

also.

11. It admits no ambiguity that it is within the competence of the

authority floating a tender inviting the bid for a specified work to

put the terms and conditions as felt inevitable and such freedom has

to be recognized and the challenge to any of the terms and

conditions is restricted only on the ground of arbitrariness, mala

fide, perversity and/or violative of any of the statutory rules or the

Codes applicable in this regard. The freedom of contract even in a

public contract should always be embraced and a person intending

to participate in the tender must agree to such terms and conditions

and in the event the challenge to any of the terms and conditions is

required to be made, it should be done before participation in the

tender. A person cannot be permitted to take a calculated chance in

participating in the tender and after having found unsuccessful

cannot be permitted to throw the challenge to any one or more terms

and conditions incorporated in the tender document.

11.1. Support can be lent to a judgment of the Supreme Court in

case of Balaji Ventures Pvt. Ltd. v. Maharashtra State Power

Generation Company Ltd. (Special Leave to Appeal (C) No.1616 of

2022 decided on 11.02.2022) reported at 2022 SCC OnLine SC

1967, wherein an identical issue was raised that one of the clauses in

the tender call notice was tailored to suit a particular tenderer and,

therefore, such clause is required to be struck down. In this aspect, it

is held that the authority is the best person to incorporate any terms

and conditions at the time of drafting and/or preparing the tender

call notice and the challenge must be restricted if such terms and

conditions are found arbitrary, mala fide and/or smack of bias. The

apex Court also observed that the freedom of contract even in a

public contract is reserved with the Government and the challenge to

any of the terms and conditions must be restricted, if it violates the

Wednesbury principle or suffers from any legal vices.

11.2. Even prior to the aforementioned judgment, the apex Court

in case of Silppi Constructions Contractors v. Union of India

reported in (2020) 16 SCC 489, put a restraint on the writ Court to

interfere with the terms and conditions enshrined in the tender call

notice unless the decision is totally arbitrary, unreasonable and/or

tainted with bias in the following:

"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 realize that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and

has authored the tender documents is the best judge as to how the documents have to be interpreted. 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."

11.3. It is no gainsaying that the freedom of contract is inhered

and ingrained in a contractual field even in case of a public contract

and the challenge to any terms and conditions is restricted only

when such terms and conditions are arbitrary, mala fide,

unreasonable and irrational and tailored to suit a particular tenderer

percolating a smack of bias. The interference into any terms and

conditions embodied in the tender call notice by the High Court in

exercise of power of judicial review is minimal and to be exercised

within the limited compass. The terms and conditions must also

withstand on the Wednesbury principle and a strong case of such

nature must be made out in the pleading.

11.4. The above quoted clause which is a seminal issue of

challenge in the instant writ appeal does not percolate a sense of

arbitrariness, mala fide, unreasonability and/or irrationality and,

therefore, we do not find that the same comes within the bracket of

any of such grounds as narrated hereinabove.

12. The pivotal issue as adumbrated hereinbefore is whether the

petitioner can challenge the terms and conditions of the tender call

notice after participating therein without any demur and/or

objection. It has been a consistent view taken by the apex Court that

it is not open to the intending bidder to challenge any terms and

conditions of the tender call notice after participating therein and the

Court shall not permit such bidder to take a 'U' turn and file a writ

petition after having unsuccessful in the tender process.

12.1. The observations made by the apex Court in case of Madan

Lal v. State of Jammu & Kashmir; reported in (1995) 3 SCC 486

can be gainfully applied to buttress the aforesaid notion in the

following:

"9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview

conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644 :

AIR 1986 SC 1043] it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.

10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be

unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee."

12.2. The observations appear to be a rational as the litigation

cannot be termed as a game of chance nor a person should be

permitted to take a chance after participating in a tender process and

challenging the terms and conditions of the tender call notice having

unsuccessful therefrom. The principle of estoppel must also stand in

the way of such litigant as a person cannot be permitted to approbate

and reprobate at the same time. If by conduct a person has done

something, he cannot be permitted to retract therefrom as the

estoppel will come on the way of such errant litigant.

13. From whatever angle the matter is looked at, we do not find

any substance in the stand of the writ petitioner and, therefore, the

writ petition is dismissed, but in the circumstances with no order as

to costs. Pending Interlocutory Applications, if any, shall stand

disposed of accordingly.

                        (M.S. Raman)                         (Harish Tandon)
                          Judge                                Chief Justice



S. Behera/
S.K. Behera






                Signed by: SISIRA KUMAR BEHERA
                Designation: Junior Stenographer
                Reason: Authentication
                Location: High Court of Orissa, Cuttack