Patna High Court
Poct Services vs The State Of Bihar on 8 August, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1377 of 2025
Table of Contents
Sl. No. Topic Page No.
1. Cause Title 2-3
2. Case of the Petitioner 6-11
3. Submissions on behalf of the Petitioner 12-15
4. Submissions on behalf of the Respondent 16-19
Nos. 4 to 7 (State Health Society)
5. Submissions on behalf of the Respondent 19-24
Nos. 8 and 9
6. Submission of Respondent No. 10 25-28
7. Consideration:-
Plea of Constructive Res Judicata 28-43
Essential Conditions-Mandatory 43-65
Documents as per N.I.T.
Opinion of this Court 65-67
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
2/67
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1377 of 2025
======================================================
POCT Services, having its registered office located at 298-281, Transport
Nagar, Kanpur Road, adjacent to Transport Nagar Metro Station, P.S.-
Sarojini Nagar, P.O.- Manas Nagar, Lucknow, Uttar Pradesh- 226023. through
its duly authorized representative, Vinay Mishra, Male, Aged About 54 years,
Son of Late Data Ram Mishra, Resident of- B-653, P.O. and P.S.-
Rajajipuram, Lucknow, Uttar Pradesh PIN- 226017. ... ... Petitioner
Versus
1. The State of Bihar Through its Additional Chief Secretary, Department of
Health, Government of Bihar, Patna.
2. The Director-in-Chief, Department of Health, Government of Bihar, cum
Chairman, Technical Committee, State Health Society Bihar (SHSB), Patna.
3. The Assistant Director, Regional Office for Health and Family Welfare,
Patna, Government of India.
4. The Executive Director, State Health Society Bihar (SHSB), Patna.
5. The Administrative Officer, State Health Society, Patna, Bihar.
6. The Deputy Secretary-cum-In Charge, PPP, State Health Society Bihar
(SHSB), Patna.
7. The Additional Director, Finance, State Health Society Bihar,
8. M/S Hindustan Wellness Private Limited, having its registerd Address at
107, 1st Floor, Sector 44, Gurugram, Haryana, India- 122002.
9. M/S Dr. Khannas Pathcare Private Limited, having its registered address at
E-8-A, Ground Floor, New Delhi, 110016.
10. Consortium of Science House Medicals Private Limited and Sodani
Hospitals and Diagnostics Pvt. Ltd. Having its registered Office at 1st Floor,
Plot No. - C-65 at Gautam Nagar, Bhopal, Madhya Pradesh, India - 46202
through its authorised signatory Mr. Sanchit Chaturvedi, aged about 33
years, son of Satish Chaturvedi, House No. A-07, Ashima Divine City, Near
Pebble Bay Phase - II, Baghmugaliya, Huzur, P.S. - Baghsewaniya, Bhopal,
Madhya Pradesh - 462043.
... ... Respondents
======================================================
Appearance :
For the Petitioner : Mr. Mrigank Mauli, Sr. Advocate
Ms. Madhubala Kumari, Advocate
Mr. Amit Anand, Advocate
For the State : Mr. P.K. Shahi, Sr. Advocate
Mr. K.K. Sinha, Advocate
For the Resp No. 6 & 8 : Mr. Ashish Giri, Sr. Advocate
Mr. Kumar Shanu, Advocate
Mr. Kumar Abhishek, Advocate
Mr. Shubham, Advocate
Mr. Ranvir Pratap Singh, Advocate
Mr. Parag Maini, Advocate
Mr. Raghav Chadha, Advocate
Mr. Abhishek Awasthi, Advocate
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
3/67
For the Resp no. 9 : Mr. Ravinder Singh, Advocate
Mr. Parth Gaurav, Advocate
Mr. Govind Raj Shahi, Advocate
For the Resp no. 10 : Mr. Abhinav Srivastava, Sr. Advocate
Mr. Nirbhay Prashant, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 08-08-2025
In the present writ petition, the petitioner is seeking the
following reliefs:-
"(i) For quashing and setting aside the Agreement
dated 19.11.2024 (Annexure P/14), executed between
the State Health Society Bihar (SHSB) and the
Consortium of M/s Hindustan Wellness Pvt. Ltd. (Lead
Partner) and M/s Dr. Khannas Pathcare Pvt. Ltd.
(Partner 2), as the selected agency for providing
pathology services at designated government
healthcare facilities under the Hub and Spoke model in
Bihar. The said Agreement, executed pursuant to the
issuance of the Letter of Intent (LOI), as detailed in
Schedule I of the Agreement, stems from a selection
process riddled with procedural irregularities and non-
compliance with the eligibility criteria outlined in
Section V, Clause 2.4 of the tender document. The LOI,
which forms the basis of this Agreement, was issued in
contravention of the mandatory requirement for
bidders to demonstrate conducting a minimum of 20
lakh pathology tests per year during the last three
financial years (FY 2021-22, FY 2022-23, and FY
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
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2023-24) through client-issued certificates, supported
by Work Orders, MoUs, Contracts, or Agreements.
(ii) For quashing and setting aside the selection of the
Consortium of Respondent No. 8 and Respondent No.
9, comprising M/s Hindustan Wellness Pvt. Ltd. (Lead
Partner) and M/s Dr. Khannas Pathcare Pvt. Ltd.
(Partner 2), as the L1 bidder for providing pathology
services at designated government healthcare facilities
under the Hub and Spoke Model in Bihar, as finalized
in the proceedings of the Project Appraisal Committee
(PAC) meeting held on 23.10.2024, and formalized
under the signatures of the PAC members on
29.10.2024
, as contained in Annexure-P/13 related to
Notice Inviting Tender (NIT) Reference No.
09/SHSB/Pathology Services/2024-25, on the ground
that the Consortium of Respondent No. 8 and
Respondent No. 9 does not fulfil the eligibility criteria
mandated under Section V, Clause 2.4 of the tender
document, which requires conducting a minimum of 20
lakh pathology tests per year during the last three
financial years (FY 2021-22, FY 2022-23, FY 2023-24)
and the submission of a self-attested copy of the
Experience Certificate issued by the client
(Government/Private), along with the Work
Order/MoU/Contract Agreement, evidencing the count
of pathology tests conducted per year during the last 3
years (FY 2021-22, FY 2022-23 and FY 2023-24), thus
rendering their selection arbitrary, unlawful, and
contrary to the terms of the tender.
(iii) For quashing and setting aside the Minutes of the
Meeting of the Technical Committee, dated
21.10.2024, related to Notice Inviting Tender (NIT)
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
Reference No. 09/SHSB/Pathology Services/2024-25,
as detailed in Annexure-P/8, for the selection of an
agency to provide pathology services at designated
government healthcare facilities under the Hub and
Spoke model in Bihar. This meeting, held on
21.10.2024 at 5:30 p.m. in the Conference Hall of the
State Health Society Bihar, Patna, was convened for
the evaluation of technical bids and was issued under
the signatures of the members present, are challenged
on the grounds that the Consortium of Respondent
Nos. 8 and 9 was deemed technically qualified despite
failing to meet the eligibility criteria.
(iv) For commanding the respondents to produce the
complete records pertaining to the tender process,
including all documents submitted online in
accordance with Section II, Clause 10.3 of the tender
document, as well as the Letter of Intent (LOI), Letter
of Award (LOA), Work Order, and any Contract
Agreement executed between the respondent
authorities and the L1 bidder (Respondent No. 8 and
Respondent No. 09) for the execution of services under
the subject contract. Upon such production and after
judicial scrutiny, for quashing and setting aside the said
LOI, LOA, Work Order, and any related contract
agreement, considering the procedural irregularities,
non-compliance with eligibility criteria, and violations
of the tender process, to ensure transparency and
uphold the integrity of public procurement.
(v) For further commanding the respondent authorities
to recommence or reprocess the entire bidding process
afresh, in light of the facts and circumstances of this
case, as the fundamental eligibility criteria outlined in
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
the tender document have been grossly violated in the
selection of the consortium of Respondent No. 8 and
Respondent No. 9 as the L1 bidder. The gross non-
compliance with the mandatory eligibility
requirements, including the minimum capacity of
conducting 20 lakh pathology tests annually for the last
three financial years, has undermined the integrity,
transparency, and fairness of the procurement process.
Alternatively, in view of the demonstrated ineligibility
of Respondent No. 8 and Respondent No. 09, the
petitioner, being, a fully compliant and eligible bidder,
prays that the contract under the tender be awarded to
the petitioner in accordance with the principles of
fairness and equity in public procurement, thereby
safeguarding public interest and ensuring adherence to
procurement norms.
(vi) For grant of any other incidental/consequential or
other appropriate relief/reliefs to which the petitioner
may be found entitled."
Case of the Petitioner
2. The State Health Society, Bihar (hereinafter referred
to as the 'Society' of 'the Tender-Inviting Authority') issued an e-
tender (Notice Inviting Tender) (hereinafter referred to as the
'NIT') bearing Reference No. 09/SHSB/Pathology Services/2024-
25 dated 21.08.2024. A copy of the e-tender has been brought on
record as Annexure 'P/2' to the writ application. A perusal thereof
would show that the Society floated the tender intending to select
an agency for providing pathology services in Hub and Spoke
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
Model under Public Private Partnership ('PPP') mode for a period
of 5 years from the date of signing of the contract agreement. The
Society invited bids from eligible business entities, in providing
the services as mentioned in the standard documents. After the NIT
was published, on 30.08.2024, a corrigendum was issued in
response to the various queries and requests made by the
prospective bidders during the pre-bid meeting held earlier. By this
corrigendum (Annexure 'P/3'), the timeline for submission of pre-
bid queries was extended. All the prospective bidders had an
opportunity to raise their concerns and receive appropriate
responses. The second corrigendum was issued on 10.09.2024
extending the schedule of events for the tender process timeline
revised for the submission of online bidding documents. A third
corrigendum was subsequently issued on 17.09.2024 by which
certain clarifications were issued clearing the concerns raised by
the interested bidders during the pre-bid meeting as well as other
submissions online. The technical committee decided to amend
certain conditions in the NIT including the schedule of events. It is
stated that pre-bid meeting was held on 03.08.2024 and the
minutes of the meeting were duly recorded on 17.09.2024.
3. It is the case of the petitioner that despite issuance of
three corrigendum and clarifications, the respondents failed to
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
ensure a fair, transparent and competitive bidding process. The
fourth corrigendum was issued on 25.09.2024 by the Society in
response to multiple requests received from the bidders via e-mail
to extend the timeline for submission of the documents under the
NIT. The corrigendum updated the schedule of the events. The
petitioner submitted it's bid on 03.10.2024 and according to the
petitioner, they complied with each of the conditions laid down by
the tender document.
4. The minutes of the technical committee meeting held
on 21.10.2024 has been brought on record as Annexure 'P/8' to the
writ application. The technical submissions from all the seven
bidders were reviewed and all were technically qualified. The
technical committee subsequently invited these technically
qualified bidders for a presentation scheduled on 23.10.2024 and
proposed to proceed with the opening with the financial bids.
5. It is the submission of the petitioner that the technical
presentation was conducted in an extremely rash manner which
compromised the ability of the bidders to adequately prepare. The
technical presentation required the bidder to present a
comprehensive proposal covering various aspects of the project,
including an understanding of the project, implementation plans,
human resource deployment, training methodology, service level
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
agreement management, strategies for fulfilling key performance
indicators and the use of laboratory information management
system and other innovative IT technologies. The petitioner
received e-mail on 22.10.2024 at 06:37 PM from the Director-in-
Chief, Department of Health, Government of Bihar-cum-Chairman
of the technical committee to attend the technical representation
scheduled on 23.10.2024 at 11:00 AM onwards. It is further stated
that the Executive Director of the Society informed the petitioner
via e-mail dated 22.10.2024 at 06:05 PM to attend financial bid
opening scheduled for 23.10.2024 at 04:00 PM. The submission is
that even before technical presentation, the bidders were directed
to be present for the financial bidding process. The copies of the e-
mails have been brought on record vide Annexures 'P/9' and
'P/10' respectively.
6. According to the petitioner, during the financial bid
opening, significant discrepancies were observed in the
submissions of M/s Science House Medicals Pvt. Ltd. including
two conflicting bids - one showing a one percent discount on the
e-procurement portal and the other, in a separately uploaded excel
sheet reflecting a 77.06 percent discount. Further, Hindustan
Wellness Pvt. Ltd. and its consortium partner (L1 bidder) fails to
meet the essential eligibility criteria of conducting at least twenty
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
lakhs pathology tests annually as required under Section V, Clause
2.4 of the tender document. As per the requirement mandates,
proof in the form of an experience certificate issued by the end-
user (government or private) and supporting documents such as
Work Orders or Agreements were required. M/s Hindustan
Wellness Pvt. Ltd. (Respondent No. 8) and its consortium partner
M/s Dr. Khanna's Pathcare Pvt. Ltd. (Respondent No. 9) could not
furnish the mandatory documents as per Clause 2.4 which
rendered their bid non-compliant and invalid but the Society
permitted both the bidders i.e. M/s Science House Medicals Pvt.
Ltd. (Respondent No. 10) and M/s Hindustan Wellness Pvt. Ltd.
and its consortium joint (Respondent Nos. 8 and 9 respectively) to
proceed. This is said to be a compromise with the quality and
efficacy of pathology services posing a serious threat to the
integrity and objectives of the tender process.
7. It is stated that on 23.10.2024 at 07:16 PM, the
petitioner in co-ordination with Respondent No. 8 submitted an e-
mail to the Executive Director of the Society attaching a formal
representation and objection regarding observed irregularities in
the financial bid opening. The joint representation emphasized that
M/s Science House Pvt. Ltd.'s bid contained conflicting discount
rates on the e-procurement portal. On 24.10.2024, the petitioner
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
submitted a detailed representation to the Additional Chief
Secretary, Health-cum-CEO of the Society and also to the
Executive Director in which the petitioner highlighted significant
discrepancy and procedural irregularities.
8. The petitioner highlighted the conflicting financial
submissions by Respondent No. 10 and inability of Respondent
Nos. 8 and 9 to comply with the mandatory conditions of at least
one consortium partner must have an experience of conducting a
minimum of twenty lakhs pathology tests per year over the last
three financial years (FY 2021-22, FY 2022-23 and FY 2023-24).
Copies of the representations of the petitioner are Annexures
'P/11' and 'P/12 series' to the writ application.
9. The grievance of the petitioner is that despite
submission of the detailed representation highlighting that
Respondent No. 8 and Respondent No. 9 do not fulfill the
eligibility criteria, the Project Appraisal Committee (PAC)
proceeded without proper scrutiny and recommended selection of
the consortium of Respondent Nos. 8 and 9 as L1 bidder for
providing these pathology services. This recommendation was
issued under the signature of the members present at the PAC
meeting, as recorded in the minutes of the meeting signed on
29.10.2024.
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
Submissions on behalf of the Petitioner
10. Mr. Mrigank Mauli, learned Senior Counsel
representing the petitioner has drawn the attention of this Court
towards Clause 2.4 under Section V of the NIT. Section V deals
with the eligibility criteria. It is submitted that Clause 2.4 is a
mandatory eligibility criteria which cannot be relaxed or ignored
by the Society. It is submitted that the petitioner having pointed
out the illegality and irregularity in the declaration of Respondent
Nos. 8 and 9 as L1 bidder submitted an application under Right to
Information Act, 2004 (hereinafter referred to as the 'RTI Act,
2004') vide Annexure 'P/15'. The petitioner requested to provide
the details about the participants, technical and financial
evaluations, Letters of Acceptance (LoA) issued and eligibility
document submitted by specific bidders, compliance with
procurement rules and any amendments or the complaints
addressed during the process. It is submitted that respondents
denied to furnish the information requested under Annexure
'P/15', on the ground that case is pending and, therefore, it would
be exempted under Section 8(1) of the RTI Act, 2004.
11. Learned Senior Counsel submits that the specific
statements of the petitioner in paragraphs '22' to '25' of the writ
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
application have not been specifically denied by the Respondents.
In this regard, paragraph '32' of the counter affidavit filed on
behalf of the Respondent Nos. 4 to 7 (Bihar Health Society) has
been relied upon. Paragraph '30' of the counter affidavit of
Respondent No. 8 is in response to paragraphs '22' and '23' of the
writ application which has also been placed before this Court to
submit that even Respondent No. 8 has not specifically denied the
statements made in paragraphs '22' and '23' of the writ
application. In fact, a perusal of the counter affidavit of the Society
as well as Respondent No. 8 would show that they did not deny
that in terms of Clause 2.4 in the eligibility criteria, Respondent
No. 8 had not submitted the self-attested copies of experience
certificate issued by the client (government/private) along with
Work Order/MoU/Contract/Agreement evidencing the counting of
pathology test conducted per year during the last three years. It is
submitted that Respondent Nos. 8 and 9 might have conducted one
crore of pathology tests as per tender conditions but it is to be done
for their client and they had to produce experience certificate
issued by the client along with the Work Order.
12. Learned Senior Counsel further submitted that in
terms of the paragraph '4(vi)' under Section V (eligibility criteria),
the partners of the consortium shall mandatorily form a Special
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
Purpose Vehicle (SPV) under the Companies Act, 2013 to execute
the project, after they are selected and awarded the contract
agreement. It is pointed out that SPV was to be formed within 90
days but it has yet not been done. It is a matter of record that
without forming SPV, agreement was executed on 19.11.2024
between the Society and Respondent No. 8 which is establishing
the fact that Society has only favoured the Respondent No. 8 by
not adhering to Clause 2.4 which was a mandatory clause under
the eligibility criteria and even thereafter the Society executed an
agreement with Respondent No. 8 without realising that the
agreement was to be executed with the SPV.
13. To strengthen his submissions, learned Senior
Counsel has drawn the attention of this Court towards the format
of Memorandum of Understanding (MoU and consortium) as
contained under Section VII. The MoU between the consortium
partners is required to be submitted at the time of bidding for the
project. Paragraph '3' of the MoU is a covenant under which the
parties have undertaken that in the event the consortium is
declared the selected bidder and awarded the project, it shall
incorporate a separate entity a Special Purpose Vehicle (SPV)
under Companies Act within 90 days of the issue of the Letter of
Intent (LoI) and shall be required to sign a contract agreement with
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
SHSB for performing all its obligations as per the terms and
conditions of the project. It is, thus, submitted that the agreement
has been wrongly executed with consortium even as no SPV has
been formed in terms of the conditions mentioned in the tender
documents and its Annexure '5'.
14. Learned Senior Counsel submits that earlier, the
petitioner had moved this Court in a writ application being CWJC
No. 17583 of 2024 challenging the tender process initiated by the
Society, with a specific focus on the technical presentation and the
financial bid opening conducted on 23.10.2024. The writ petition
was presented on 30.10.2024. At the time of presentation of the
said writ, the minutes of the financial bid held on 23.10.2024 and
signed on 29.10.2024 were not known. Later on, when the
petitioner came to know the same, two I.As. Were filed for
impleadment of parties. By its judgment dated 03.12.2024, this
Court dismissed the earlier writ application granting liberty to the
petitioner to challenge the issuance of Letter of Award (LoA) to
the successful bidders, if the petitioner is so aggrieved. It is
submitted that during the pendency of the writ application, the
petitioner learnt that an agreement dated 19.11.2024 has been
executed between the Society and Respondent Nos. 8 and 9.
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
Submissions on behalf of the Respondent Nos. 4 to 7
(State Health Society)
15. A counter affidavit has been filed on behalf of
Respondent Nos. 4 to 7 through its State Programme Officer in the
office of the Executive Director, State Health Society, Bihar. It is
submitted that the entire tendering process has been conducted in
fair and transparent manner. The tender was floated by the Society
as an initiative to address the growing demand for quality health
care services in the State, particularly, in under-served and remote
areas. The PAC has adhered to the established procedure and the
financial bids of all the seven technically qualified bidders were
duly opened on 23.10.2024 and the comparison sheet was
downloaded in presence of all the bidders and the evaluation was
done on the basis of this comparison sheet itself. The selection is
based on a maximum percentage of discount quoted by the
participated bidder on the base price i.e. prevailing on the CGSH
(Central Government Health Scheme) rates which is the common
practice being followed in various states to over diagnostic
services in Government Health Care facilities. Upon conclusion of
the bidding process, consortium of Respondent Nos. 8 and 9
emerged as L1, accordingly they were issued the LoI on
05.11.2024. Subsequently, the agreement was executed on
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
19.11.2024 and Award Letter dated 31.12.2024. All the district
authorities were informed about the selection of bidder no. 2 for
the provision of the specified pathological services.
16. It is submitted that the petitioner did not qualify as
alone, therefore, it's claims seem to stem from its dissatisfaction
with the outcome of the tender process. The objection regarding
the selection/tender process has been raised by the petitioner only
subsequent to their rejection in the financial bid evaluation and not
at any prior stage of the tender process. It is submitted that the
petitioner only intended to create obstruction and delay in ongoing
tender process.
17. It is submitted that bid submitted by the M/s Science
House Medicals Pvt. Ltd. was disqualified/rejected strictly in
accordance with the terms of the 'NIT' because the said bidder had
quoted two different financial rates "1" in the financial rate
column of the comparison sheet, while the percentage discount on
the base price was discovered to be "77.06%" in the same sheet.
While answering paragraphs '22' to '27' of the present writ
application, the Respondent Nos. 4 to 7 have submitted in
paragraph '32' of their counter affidavit that Respondent
Authorities have conducted the tender process in fair and
transparent manner and the petitioner's claim is void of merit
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
which is required to be dismissed outrightly. It is submitted that
Respondent Authorities have meticulously followed the terms and
conditions of the Notice Inviting Tender in question and the
selection of the successful bidder was made through and after
following the objective evaluation of all the bids received.
18. In course of his submission, Mr. P.K. Shahi, learned
Advocate General submits on the strength of the statement made in
paragraph '30' of the supplementary counter affidavit of the
Society that the tender evaluation committee verified the
documents submitted by the successful bidders, certificate of
Chartered Accountant (in short 'CA') along with MoU/Work
Order/Agreement sufficiently satisfied with the requested
credentials were accepted as a valid and reliable format of
documentary evidence in the absence of any prescribed format in
'NIT' against the requirement of client issued count certificates in
the tender, particularly, for providing entity having retail business.
It is stated in paragraph '35' of the supplementary counter affidavit
that the tender document did not prescribe any specific format to
show the count of test conducted specially for the companies that
handle millions of individual pathology tests like retail labs. It is
submitted that the CA Certificate is highly reliable and based on
audited financial records which are thoroughly checked and are
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
legally recognized as accurate. Although, in the supplementary
counter affidavit (paragraph '35'), it is stated that the supporting
documents are voluminous, therefore, the deponent instead of
enclosing such documents with this affidavit craves leave of this
Court to produce the same as and when required. In course of his
submission, learned Advocate General has clearly stated that apart
from the CA Certificate, there is no other document, particularly,
by way of experience certificate issued by the client
(government/private) along with Work Order/MoU/Contract
Agreement evidencing the count of pathology tests, in the
possession of the society. In fact, towards the end of his
submission, learned Advocate General has submitted that the
Society has right to relax any of the conditions in the NIT.
19. It is submitted that the denial of information sought
under RTI is in terms of the specific statutory exemptions provided
by the RTI Act. It would not have any bearing upon the fairness of
the tender process.
Submissions on behalf of the Respondent Nos. 8 and 9
20. A counter affidavit has been filed on behalf of
Respondent Nos. 8 and 9. In course of argument, Mr. Ravinder
Singh, learned counsel for the Respondent No. 9 has adopted the
arguments/submissions made on behalf of Respondent No. 8. The
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
Respondent No. 8 has raised a preliminary issue. It is submitted
that the petitioner has filed this writ application just to prolong the
ongoing litigation as the petitioner has already signed a rate
bearing Tender No. BMSIC/REAGENT/19-01 for the same work
with the Bihar Medical Services and Infrastructure Corporation
Limited with tenure 'extending till 27th June, 2027 or till the period
when new rate contract comes into force whichever is earlier'. The
existing rate card governing services rendered by the petitioner
shall cease to exist upon the commencement of the said new tender
i.e. NIT Reference No.-09/SHSB/Pathology Service/2024-25. A
copy of the communication dated 13.06.2024 issued by the GM
(Procurement) BMSICSCL to the Managing Director of the
petitioner company has been brought on record. It is submitted that
the petitioner is supplying Reagents (chemicals) to the
Government of Bihar at an exorbitantly high rate. In contrast under
the Notice Inviting Tender in question, the consortium of
Respondent Nos. 8 and 9 shall be providing comprehensive end-
to-end services including manpower, reagents, machinery and
other essential components at merely 1/6th of the rate specified in
the existing rate contract. The comparative rate chart detailing the
rates at which the petitioner on one hand and Respondent Nos. 8
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
and 9 on the other hand offering the same services to the people of
Bihar has been provided in paragraph '5' of the counter affidavit.
21. It is submitted that the petitioner was blacklisted by
the Government of Maharashtra for being involved in unethical
practice and has been under litigation which has not been disclosed
by him.
22. It is submitted that pursuant to the issuance of Work
Order/Purchase Order dated 05.11.2024 and signing of the
agreement dated 19.11.2024, the consortium of Respondent Nos. 8
and 9 has made investment and added manpower whereafter
Respondent No. 8 is conducting the pathology test. It is submitted
that the tender process has been conducted in a fair manner and
keeping in view the judgment of the Hon'ble Supreme Court in the
case of Tata Motors Limited Vs. The Brihan Mumbai Electric
Supply and Transport Undertaking (BEST) and Others
reported in 2023 SCC OnLine SC 671, this Court need not
exercise its extra writ jurisdiction to interfere with the selection of
Respondent Nos. 8 and 9 as the lowest bidder.
23. The bone of contention in the present writ
application is the experience of Respondent Nos. 8 and 9 in terms
of Clause 2.4 under the eligibility criteria in Section V of NIT. In
this regard, the petitioner has relied upon the statements made in
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
paragraphs '22' and '23' of the writ application. Respondent No. 8
has responded to paragraphs '22' and '23' of the writ application in
paragraph '30' of its counter affidavit wherein it is stated that the
statements made in paragraphs '22' and '23' of writ application are
wrong and denied and was vague and merely speculative in nature.
24. In course of argument, learned Senior Counsel for
the Respondent No. 8 has relied upon the judgment dated
03.12.2024 passed by an Hon'ble Division Bench of this Court in
CWJC No. 17583 of 2024 (POCT Services Vs. The State of Bihar
and Others), copy of which has been enclosed as Annexure 'R/5'
to the counter affidavit of Respondent No. 8. It is submitted that
Annexure 'R/5' would operate as 'constructive res judicata' and
deserves to be dismissed on this ground alone. Reliance has been
placed on paragraph '17' of the writ application (CWJC No. 17583
of 2024) to demonstrate that earlier, the same writ petitioner had
pointed out that Respondent No. 8 does not meet the essential
capacity requirements of twenty lakhs tests annually as mandated
under Section V Clause 2.4 of the tender document but while
dismissing the writ petition, the Hon'ble Division Bench of this
Court was not inclined to entertain the writ application filed
against the decision of the technical committee to call for a
technical presentation followed up opening of the financial bid and
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
the tender process was carried out and concluded. So far as the
liberty granted to the petitioner in the said writ to challenge the
'LoA' issued to the successful bidder is concerned, it is the
submission of learned Senior Counsel for Respondent No. 8 that
no substantive ground has been raised by the petitioner in the
present writ with respect to the LoA and in fact, the petitioner
seeks to challenge the decision of the technical committee which
would be impermissible and not entertainable. Reliance in this
regard has been placed upon the judgment of the Hon'ble Supreme
Court in the case of Celir LLP Vs. Sumati Prasad Bafna and
Others reported in 2024 SCC OnLine SC 3727.
25. Learned Senior Counsel for the Respondent No. 8
submits that the consortium of Respondent Nos. 8 and 9 meets the
technical requirement and all the required documents were
categorically uploaded on the e-procurement portal for the
satisfaction of the State Health Society. It is submitted that the
Respondent Health Society acting in full compliance of the
requirement of the tender documents on the experience certificate
duly issued by the client (government/private). It is submitted that
in accordance with Clause 2.4, the Respondent has duly submitted
experience certificate, MoU/Agreement from concerned clients
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
and evidence of doing much more than twenty lakhs pathology
tests per annum.
26. In course of arguments/ submissions, Mr. Ashish
Giri, learned Senior Counsel for Respondent No. 8 accepts the fact
that State Health Society has taken stand that what were submitted
by Respondent No. 8 were the Chartered Accountant Certificate
and not the experience certificate issued by the client
(government/private). It has also been admitted at the Bar that so
far as the copies of the MoU/Agreement between Respondent No.
8 and Respondent No. 9 with their respective clients are
concerned, no copy of MoU/Agreement has been submitted.
27. As regards formation of SPV, it is submitted that as
per tender document, the formation of SPV is only subsequent
action to be done after 90 days from the date of Letter of Intent
(LoI) and it is not a condition precedent. Referring to Clause 8.9
Section III of the tender document, learned Senior Counsel
submits that a contract between the society and the selected bidder
was required to be sent within 21 days from the issuance of LoI. It
is in this background that LoI was issued on 29.10.2024 and
subsequently, agreement was executed on 19.11.2024 i.e. within
21 days.
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
28. A counter affidavit has also been filed on behalf of
Respondent No. 10 i.e. the consortium of M/s Science House
Medical Private Limited and Diagnostic Pvt. Ltd. It is the stand of
Respondent No. 10 that they have filed a separate writ petition
bearing No. 17505 of 2024 which is pending consideration before
this Court. In the said writ petition, the Respondent No. 10 has
sought quashing of the financial bid disqualification order dated
October 29, 2024 which was issued by Respondent Nos. 2 and 3.
In this writ petition, the Respondent No. 10 has requested this
Court to issue direction to Respondent Nos. 1, 2 and 3 to
reconsider its financial bid and to award the contract to
Respondent No. 10.
29. It is submitted that the only intention of the
petitioner is to delay the fair resolution of the matter and obstruct
justice for Respondent No. 10 who has been unfairly affected by a
biased and unjust financial evaluation carried out by the
authorities. While denying the allegation made by the petitioner in
the writ application against this respondent in paragraph '16' of the
writ application and saying that those are false, misleading and
baseless, Respondent No. 10 has submitted that Clause 9.5 of
Section II (Instructions to Bidders) of the tender document
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
explicitly states that bidders are required to download the financial
bid file from e-procurement portal, fill in the prescribed format by
entering their quoted discount rate and upload the complete file.
Only one standard format (in the form of an excel sheet) is made
available to the bidders to download, fill out and upload via the e-
procurement portal. This form corresponds to Annexure '16' to the
tender document. According to Respondent No. 10, they fully
adhered to these instructions and submitted its financial bid using
the excel sheet downloaded from the e-procurement portal. Thus,
the allegation that Respondent No. 10 submitted two bids as
alleged by the petitioner is entirely unfounded. Learned counsel
for Respondent No. 10 has further submitted that the Respondent
No. 10 has filed its writ application on 13th November, 2024.
30. Upon becoming aware of the filing of writ, the
Respondent Soceity hastily executed the agreement with the
consortium of Respondent Nos. 8 and 9 on 19th November, 2024.
This action appears to be a deliberate attempt to deprive
Respondent No. 10 of its rightful claim over the contract despite
having quoted the highest discount percentage of 77.06% which
was 4.01% higher than the discount rate offered by the consortium
of Respondent No. 8 and Respondent No. 9. Moreover, this rushed
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
execution of the agreement seemingly meant to evade judicial
scrutiny and deny Respondent No. 10 its rightful access to justice.
31. At this stage, this Court would record that the writ
petition preferred by Respondent No. 10 was earlier heard on
24.01.2025 by a learned co-ordinate Bench of this Court wherein a
direction was issued to the Executive Director (Society) not to
precipitate the matter till the next date of hearing. Registry was
directed to process the Token no. 1283 of 2025 (i.e. of the present
writ) and list the matter along with the said writ petition before the
roster Bench. On 05.02.2025, both the writ petitions were listed
together and on the said date, an interim direction dated
24.01.2025 was ordered to be continued till final disposal.
32. It appears from the record that when the parties
exchanged their pleadings and the matters were being heard, vide
order dated 18.02.2025, the Registry was directed to place the
matter before Hon'ble the Acting Chief Justice on administrative
side and obtain necessary order to place the matter before a Bench
to which one of the Hon'ble Judges is not a party to the
proceeding. Thereafter, the matter was assigned to this Bench. The
hearing in CWJC No. 17505 of 2024 continued on several dates.
The hearing was concluded in the said matter on 24.06.2025 and
the judgment was reserved. While reserving the judgment, it was
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
made clear that though the matters are being heard separately, the
judgment in both the writ applications would be rendered
simultaneously after completion of hearing in the present writ. In
the aforementioned background, the hearing of the present writ
application begun from 26.06.2025 which continued on several
dates and ultimately, the parties concluded their submissions on
09.07.2025. They were given liberty to file their respective written
arguments/submissions by 15.07.2025.
Consideration
33. We have heard learned Senior Counsel for the
parties.
Plea of Constructive Res Judicata
34. It appears from the records that earlier, the petitioner
had moved this Court in CWJC No. 17583 of 2024. The said writ
application was dismissed with liberty to challenge the 'LoA', by a
Hon'ble Division Bench of this Court vide judgement dated
03.12.2024. A perusal of the order of the Hon'ble Division Bench
would show that in the said writ application, the petitioner raised a
grievance against the decision taken on 21.10.2024 by the
Technical Committee to proceed on a technical presentation and
opening of financial bid and the technical presentation called on
23.10.2024 at 11:00 AM and the financial bid opening at 4:00 PM
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
on the very same day. In the writ petition following reliefs were
prayed for:-
"i. A writ of certiorari, or any other suitable writ,
order, or direction, quashing the order contained
in File No. SHSB/GA/PPP/8035/2024/3746, dated
22.10.2024, issued by the Executive Director of
the State Health Society Bihar (SHSB), as detailed
in Annexure-P/9, This order pertains to the
participation in the Financial Bid Opening under
NIT Reference No. NIT-09/SHSB/Pathology
Services/2024-25, which was conveyed to the
petitioner via email on 22.10.2024 at 6:05 p.m.
ii. A writ of Certiorari, or any other appropriate
writ, order, or direction, quashing the order
contained in File No.
SHSB/GA/PPP/8035/2024/3678, dated
21.10.2024, issued by the Director-in-Chief,
Department of Health, Government of Bihar, who
is also the Chairman of the Technical Committee
for the tender process under NIT No.
09/SHSB/Pathology Services/2024-25, as detailed
in Annexure-P/8. This order pertains to the
selection of an agency to provide pathology
services at designated government healthcare
facilities under the Hub and Spoke model in the
State of Bihar. The petitioner was invited for a
technical presentation on 23.10.2024 at 11:00 am.
at the Conference Hall, 4th Floor, Swasthya
Bhawan, State Health Society, Sheikhpura, Patna
800014. The invitation, conveyed through email
on 22.10.2024 at 6:37 p.m.,
iii. A writ of Certiorari, or any other appropriate
writ, order, or direction, for quashing the Minutes
of the Meeting of the Technical Committee, dated
21.10.2024, related to Notice Inviting Tender
(NIT). Reference No. 09/SHSB/Pathology
Services/2024-25, as detailed in Annexure-P/7, for
the selection of an agency to provide pathology
services at designated government healthcare
facilities under the Hub and Spoke model in
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
Bihar. This meeting, held on 21.10.2024 at 5:30
p.m. in the Conference Hall of the State Health
Society Bihar, Patna, was convened for the
evaluation of technical bids and was issued under
the signatures of the members present.
iv. A writ of Mandamus, or any other appropriate
writ, order, or direction, restraining the
respondents from proceeding further with the
impugned tender process under NIT No.
09/SHSB/Pathology Services/2024-25; and/or for
grant of any other incidental/consequential or
other appropriate relief/reliefs to which the
petitioner may be found entitled."
35. We have called for the records of CWJC No. 17583
of 2024. On perusal of the records, it is found that the affidavit in
the said writ petition was sworn on 30.10.2024 and copies of the
same were served on the same day in the office of the learned
Advocate General. The writ application was presented on that very
day i.e. on 30.10.2024.
36. In the writ application, the petitioner raised
grievance against the decision of the Technical Committee
allowing ineligible bidder to participate in the financial bid. In
paragraph '17' of the writ application, the petitioner had raised a
grievance against respondent no.8 and respondent no. 10. It is
stated in paragraph '23' that M/s Science House Medicals Private
Limited (respondent no.10) was declared L-1 by the Committee
while the portal displayed them as L-7. In the prayer portion of the
writ application, a prayer was made inter alia to grant relief in
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
terms of paragraph '1' as also to restrain the society from
proceeding further and from awarding the contract or LoI to M/s.
Science House Medicals Private Limited or any bidder in violation
of the tender terms.
It is evident that the petitioner was not aware that consortium
of Respondent no. 8 and Respondent No. 9 has been declared L-1
bidder.
37.. In the aforementioned background of the facts and
reliefs prayed in the writ application, we have to take a view as to
whether the judgment of the Hon'ble Division Bench of this Court
passed in CWJC No. 17583 of 2024 would operate against the
petitioner on the principle of constructive res judicata. When we
go through the judgment of this Court, it is found that in paragraph
'2' of the judgment, the Hon'ble Division Bench has taken note of
the fact that the petitioner had filed an interlocutory application
seeking to implead two successful bidders on the ground that they
had been qualified illegally and without looking at the
requirements as per the NIT, the Hon'ble Division Bench observed
inter alia "..................... which we perceive as an extension of the
scope of the writ petition, against which no relief has been sought
in the memorandum."
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
38. The Hon'ble Division Bench observed that in the
writ petition, there are four reliefs sought, which are in the nature
of a writ of certiorari against the decision to hold the technical
presentation at 11:00 AM on 23.10.2024; the financial bid opening
at 4:00 PM on the same day and the decision to that end of the
Technical Committee taken on 21.10.2024.
39. The Hon'ble Division Bench having taken note of
the four reliefs which were prayed in the writ application finally
observed in paragraphs '12' '13' and '14' as under: -
"12. We cannot permit the petitioner to expand the
scope of the writ petition; to include allegations
against the successful bidders, to be agitated, when
even such relief was not sought in the writ petition. We
also notice that even today there is only an
impleadment sought of two bidders who participated
without any amendment to the pleadings or reliefs. We
are not inclined to entertain the writ petition filed
against the decision of the Technical Committee to call
for a Technical Presentation, followed up with the
opening of the financial bid and the tender process so
carried out and concluded. However, we make it clear
that the petitioner would be left liberty to challenge the
LoA issued to the successful bidders, if he is so
aggrieved.
13. The writ petition would stand dismissed with the
above reservation.
14. Interlocutory Application(s), if any, shall stand
closed"
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
40. To us, it appears that while dismissing the writ
application, the Hon'ble Division Bench has made it clear that the
petitioner would be left at liberty to challenge the LoA issued to
the successful bidders, if he is so aggrieved. The Hon'ble Division
Bench was conscious about the scope of the litigation at the said
stage. We have noticed from the pleadings available on the record
that minutes of the meeting dated 23.10.2024 was finally signed by
the members except one of them of the PAC only on 29.10.2024
and the same was uploaded on the portal of the State Health
Society on 30.10.2024. Since the writ application was already
affidavited, copy served and filed in this Court on 30.10.2024
(14:35:25 Hrs.) as per records available with this Court, it may be
easily found that the petitioner had no opportunity to challenge the
proceeding of the PAC meeting held on 29th October, 2024 in
which the consortium of Respondent no. 8 and Respondent no.9
were declared the successful bidders. When they came to know
about the decision of the PAC in it's meeting held on 23rd October,
2024, they moved this Court by filing Interlocutory Application to
implead the successful bidders, however, the Hon'ble Division
Bench did not allow the petitioner to agitate the allegations against
the successful bidder and to proceed with the writ application by
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
impleading the successful bidders on the ground that there was no
amendment to the pleadings or the reliefs were sought for. Even
though, we find that the petitioner had agitated one of the issues
which is being raised in the present writ application against the
successful bidders in paragraph '17' of the writ application, it is
evident to us that the said issue was not adjudicated by the Hon'ble
Division Bench and liberty was granted to the petitioner to
challenge the 'LoA' issued to the successful bidders.
41. This Court is, therefore, of the opinion that to shut
out the petitioner from filing the present writ application despite
the fact that earlier the Hon'ble Division Bench had given liberty
to the petitioner to challenge the LoA, without adjudicating the
issues raised in paragraph '17' of the writ application, would
amount to leaving the petitioner remediless. It would not be a fair
play in action. The principles of constructive res judicata would
have no application in the facts of the present case.
42. Respondent no. 8 has relied upon the judgment of
the Hon'ble Supreme Court in the case of Celir LLP (supra).
Paragraphs '135' to '153' of the judgment have been referred to.
The Hon'ble Supreme Court has discussed in detail the
'Henderson Principle' as corollary to the constructive res judicata
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
in paragraphs '135' '136' and '137' are quoted hereunder for a
ready reference: -
"135. The 'Henderson Principle' is a foundational
doctrine in common law that addresses the issue
of multiplicity in litigation. It embodies the
broader concept of procedural fairness, abuse of
process and judicial efficiency by mandating that
all claims and issues that could and ought to have
been raised in a previous litigation should not be
relitigated in subsequent proceedings. The
extended form of res-judicata more popularly
known as 'Constructive Res Judicata' contained in
Section 11, Explanation VII of the CPC originates
from this principle.
136. In Henderson v. Henderson, [1843] 3 Hare
999, the English Court of Chancery speaking
through Sir James Wigram, V.C. held that where a
given matter becomes the subject of litigation and
the adjudication of a court of competent
jurisdiction, the parties so litigating are required to
bring forward their whole case. Once the litigation
has been adjudicated by a court of competent
jurisdiction, the same parties will not be permitted
to reopen the lis in respect of issues which might
have been brought forward as part of the subject
in contest but were not, irrespective of whether
the same was due to any form of negligence,
inadvertence, accident or omission. It was further
held, that principle of res judicata applies not only
to points upon which the Court was called upon
by the parties to adjudicate and pronounce a
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
judgment but to every possible or probable point
or issue that properly belonged to the subject of
litigation and the parties ought to have brought
forward at the time. The relevant observations
read as under:--
"In trying this question I believe I state the rule of
the Court correctly when I say that, where a given
matter becomes the subject of litigation in, and of
adjudication by, a Court of competent
jurisdiction, the Court requires the parties to that
litigation to bring forward their whole case, and
will not (except under special circumstances)
permit the same parties to open the same subject
of litigation in respect of matter which might have
been brought forward as part of the subject in
contest, but which was not brought forward, only
because they have, from negligence, inadvertence,
or even accident, omitted part of their case. The
plea of res judicata applies, except in special
cases, not only to points upon which the Court
was actually required by the parties to form an
opinion and pronounce a judgment, but to every
point which properly belonged to the subject of
litigation, and which the parties, exercising
reasonable diligence, might have brought forward
at the time. [...]"
(Emphasis supplied)
137. The above proposition of law came to be
known as the 'Henderson Principle' and
underwent significant evolution, adapting to
changing judicial landscapes and procedural
requirements. The House of Lords in Johnson v.
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
Gore Wood & Co, [2002] 2 A.C. 1, upon
examining the 'Henderson Principle'
authoritatively approved it with the following
observations:--
(i) Lord Bingham of Cornhill integrated the
principle with the broader doctrine of abuse of
process and held that the bringing of a claim or
the raising of a defence in later proceedings which
ought to have been raised earlier will not always
be hit by this principle, but rather will apply
where such point is sought to be raised as an
additional or collateral attack on a previous
decision and the bringing forth of such ground
amounts to misusing or abusing the process of the
court or as a means for unjust harassment of a
party. The relevant observations read as under:--
"Henderson v. Henderson abuse of process, as
now understood, although separate and distinct
from cause of action estoppel and issue estoppel,
has much in common with them. The underlying
public interest is the same : that there should be
finality in litigation and that a party should not be
twice vexed in the same matter. This public
interest is reinforced by the current emphasis on
efficiency and economy in the conduct of
litigation, in the interests of the parties and the
public as a whole. The bringing of a claim or the
raising of a defence in later proceedings may,
without more, amount to abuse if the court is
satisfied (the onus being on the party alleging
abuse) that the claim or defence should have been
raised in the earlier proceedings if it was to be
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
raised at all. I would not accept that it is
necessary, before abuse may be found, to identify
any additional element such as a collateral attack
on a previous decision or some dishonesty, but
where those elements are present the later
proceedings will be much more obviously abusive,
and there will rarely be a finding of abuse unless
the later proceeding involves what the court
regards as unjust harassment of a party. It is,
however, wrong to hold that because a matter
could have been raised in earlier proceedings it
should have been, so as to render the raising of it
in later proceedings necessarily abusive. That is
to adopt too dogmatic an approach to what
should in my opinion be a broad, merits-based
judgment which takes account of the public and
private interests involved and also takes account
of all the facts of the case, focusing attention on
the crucial question whether, in all the
circumstances, a party is misusing or abusing the
process of the court by seeking to raise before it
the issue which could have been raised before. As
one cannot comprehensively list all possible forms
of abuse, so one cannot formulate any hard and
fast rule to determine whether, on given facts,
abuse is to be found or not [...]"
(Emphasis supplied)
(ii) Lord Millett construing the Principle held that
it does not belong to the doctrine of res-judicata
in the strict sense but rather was analogous to the
doctrine, as it goes a step further to encompass
even those proceedings that either culminated into
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
a settlement or issues which had never been
adjudicated previously in order to protect the
process of the court from abuse and the defendant
from oppression. The relevant observations read
as under:--
"As the passages which I have emphasised
indicate, Sir James Wigram V-C did not consider
that he was laying down a new principle, but
rather that he was explaining the true extent of
the existing plea of res judicata. Thus he was
careful to limit what he was saying to cases which
had proceeded to judgment, and not, as in the
present case, to an out of court settlement. Later
decisions have doubted the correctness of treating
the principle as an application of the doctrine of
res judicata, while describing it as an extension of
the doctrine or analogous to it ... But these
various defences [res judicata, issue or cause of
action estoppel] are all designed to serve the
same purpose : to bring finality to litigation and
avoid the oppression of subjecting a defendant
unnecessarily to successive actions. While the
exact relationship between the principle
expounded by Sir James Wigram V-C and the
defences of res judicata and cause of action and
issue estoppel may be obscure, I am inclined to
regard it as primarily an ancillary and salutary
principle necessary to protect the integrity of
those defences and prevent them from being
deliberately or inadvertently circumvented.
In one respect, however, the principle goes further
than the strict doctrine of res judicata or the
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
formulation adopted by Sir James Wigram V-C,
for I agree that it is capable of applying even
where the first action concluded in a settlement.
Here it is necessary to protect the integrity of the
settlement and to prevent the defendant from
being misled into believing that he was achieving
a complete settlement of the matter in dispute
when an unsuspected part remained outstanding.
However this may be, the difference to which I
have drawn attention is of critical importance. It
is one thing to refuse to allow a party to relitigate
a question which has already been decided; it is
quite another to deny him the opportunity of
litigating for the first time a question which has
not previously been adjudicated upon. This latter
(though not the former) is prima facie a denial of
the citizen's right of access to the court conferred
by the common law and guaranteed by article 6
... While, therefore, the doctrine of res judicata in
all its branches may properly be regarded as a
rule of substantive law, applicable in all save
exceptional circumstances, the doctrine now
under consideration can be no more than a
procedural rule based on the need to protect the
process of the court from abuse and the defendant
from oppression [...]"
(emphasis supplied)"
43. The Hon'ble Supreme Court has held in paragraph
'140' of the judgment as under:-
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
"140. The fundamental policy of the law is that
there must be finality to litigation. Multiplicity of
litigation benefits not the litigants whose rights
have been determined, but those who seek to delay
the enforcement of those rights and prevent them
from reaching the rightful beneficiaries of the
adjudication. The Henderson Principle, in the same
manner as the principles underlying res judicata, is
intended to ensure that grounds of attack or defence
in litigation must be taken in one of the same
proceeding. A party which avoids doing so does it
at its own peril. In deciding as to whether a matter
might have been urged in the earlier proceedings,
the court must ask itself as to whether it could have
been urged. In deciding whether the matter ought to
have been urged in the earlier proceedings, the
court will have due regard to the ambit of the
earlier proceedings and the nexus which the matter
bears to the nature of the controversy. In holding
that a matter ought to have been taken as a ground
of attack or defence in the earlier proceedings, the
court is indicating that the matter is of such a
nature and character and bears such a connection
with the controversy in the earlier case that the
failure to raise it in that proceeding would debar
the party from agitating it in the future. The
doctrine itself is based on public policy flowing
from the age-old legal maxim interest reipublicae
ut sit finis litium which means that in the interest of
the State there should be an end to litigation and no
party ought to be vexed twice in a litigation for one
and the same cause."
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
44. On a bare reading of the aforementioned paragraphs,
it would appear that in deciding as to whether a matter might have
been urged in the earlier proceedings, this Court must ask itself as
to whether it could have been urged. In deciding whether the
matter ought to have been urged in the earlier proceedings, the
Court will have due regard to the ambit of the earlier proceedings
and the nexus which the matter bears to the nature of the
controversy. When we apply this principle in the facts of the
present case, we are of the considered opinion that in fact, the
issues raised in the present writ petition have not been
adjudicated/determined by the Hon'ble Division Bench and it was
left open to the petitioner to challenge the 'LoA' issued to the
successful bidder.
45. The order dated 03.12.2024 passed in CWJC No.
17583 of 2024 clearly shows that the Court did not allow the
petitioner to expand the scope of the writ petition but granted
liberty to challenge the 'LoA' issued to the successful bidder. It is
evident that the petitioner could not have challenged the decision
of the PAC as contained in minutes dated 23 rd October 2024 which
was in fact uploaded only on 30.10.2024. The Hon'ble Division
Bench instead of determining the issues raised in earlier writ
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
application, and further allowing the petitioner to extend the scope
of writ application, granted liberty to challenge the LoA issued to
the successful bidders. We would reiterate that the submissions of
learned Senior counsel for respondent no. 8 that the writ
application would be barred by principles of constructive res
judicata and Henderson principles is liable to be rejected.
46. There would be one more reason to reject this plea.
This Court has found that in course of scrutiny of Tender the
Technical Bid Committee has made wrong and false enteries in the
technical bid comparative chart which is Annexure '1' to Annexure
'P/17' of the writ petition. This has been done in order to favour
the consortium of Respondent Nos. 8 & 9. In such circumstance,
this Court cannot remain oblivious of the seriousness of the matter
and this writ cannot be said to be an abuse of the process of Court.
Essential Conditions-Mandatory Documents as per
N.I.T.
47. We have noticed from the submissions of the parties
recorded hereinabove that the bone of contention of the parties
cluster around clause 2.4 under section V eligibility criteria. The
same is quoted hereunder for a ready reference:-
Eligibility Criteria Mandatory Documents
2.4 The bidder (In case of sole Self-attested copy of
bidder) should have an Experience Certificate Issued
experience of conducting a by Client
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
minimum 20 lakh pathology (Government/Private) along
tests per year during the last 3 with Work
years (FY 2021-22, FY 2022- Order/MoU/Contract/Agreeme
23 and FY 2023-24). In case of nt evidencing the count of
consortium, either one of the pathology tests conducted per
consortium members should year during the last 3 years
have the experience of (FY 2021-22, FY 2022-23 and
conducting a minimum 20 lakh FY 2023-24).
pathology tests per year during
the last 3 years (FY 2021-22,
FY 2022-23 and FY 2023-24).
48. It is evident from a bare reading of Clause 2.4 that it
is one of the essential eligibility criteria in support of which
documents are to be submitted by the bidders. The documents
which are required to be submitted have been duly pointed out. A
self attested copy of experience certificate issued by the client
(government/private) along with work
order/MoU/contract/agreement evidencing the count of pathology
tests conducting per year during the last three years (FY 2021-22,
2022-23, 2023-24) were required to be submitted by the bidders.
49. In paragraphs '22' and '23' of the writ application,
the petitioner has made specific statements which we quote
hereunder for a ready reference:-
"22. That the petitioner has come to know that the
Consortium of M/s Hindustan Wellness Pvt. Ltd.
(Lead Partner) and M/s Dr. Khannas Pathcare
Pvt. Ltd. (Partner 2) fails to meet the essential
capacity requirement of conducting 20 lakh tests
annually, as mandated under Section V, Clause 2.4 of
the Tender Document. The consortium's claim of
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
meeting this requirement is based solely on a self-
attested document, which is in direct contravention
of the stipulations under the said clause of the Notice
Inviting Tenders. The petitioner submits that this self-
attested declaration does not constitute credible
evidence as per the tender conditions, and the State
authorities are well within their rights to verify the
claim. If deemed necessary, the relevant bid
documents can be brought on record before this
Hon'ble Court for further scrutiny. The inability to
satisfy this fundamental eligibility criterion
significantly undermines the qualification of
Consortium of M/s Hindustan Wellness Pvt. Ltd.
(Lead Partner) and M/s Dr. Khannas Pathcare
Pvt. Ltd. (Partner 2) to proceed further in the tender
process, rendering their selection arbitrary and non-
compliant.
23. That such inconsistencies, including the selection
of M/s Hindustan Wellness Pvt. Ltd. and its
consortium partner as the L1 bidder despite their
failure to meet the mandatory eligibility criteria,
violate the guidelines issued by the Central Vigilance
Commission (CVC) and established procurement
principles. These principles mandate strict adherence
to the eligibility conditions outlined in the tender
document to ensure transparency, fairness, and
accountability in public procurement processes. The
deviation from these norms in favor of M/s
Hindustan Wellness Pvt. Ltd. undermines the
integrity of the tender process and creates an unfair
and non-competitive environment, contravening the
very objectives of public procurement."
50. In response to the aforementioned statements in the
writ petition, in its counter affidavit Respondent nos. 4 to 7 have
come out with the following statements:-
"32. The contents of paragraph 18 to 20 and
paragraphs 22 to 27 of the writ petition are wholly
incorrect, misleading, and are denied in their
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
entirety. The respondent authorities categorically
state that the tender process was conducted in a fair,
transparent manner and in strict compliance with the
principles of law. Accordingly, the petitioner's
claims are devoid of merit and should be dismissed
outright.
It is further submitted that in this regard that
paragraph 27 of this counter affidavit is reiterated
herein for the sake of brevity. The aforementioned
allegations of the petitioner is merely a repetition,
baseless allegations without any substantive
foundation. The respondent authorities have
meticulously followed the terms and conditions of
the Notice Inviting Tender (NIT) in question, and
the selection of the successful bidder was made after
a thorough and objective evaluation of all bids
received."
51. In its supplementary counter affidavit, respondent
nos. 4 to 7 have once again tried to explain it further. In this
regard, their statements made in paragraphs '34' and '35' of the
supplementary counter affidavit are to be taken note of which are
quoted hereunder for a ready reference:-
"34. That the tender evaluation committee verified the
documents submitted by successful bidder such as
certificate of Chartered Accountant along with
MoU/Work Order/Agreement and being sufficiently
satisfied with the requisite credentials, accepted as a
valid and reliable form of documentary evidence in the
absence of any prescribed format in NIT against the
requirement of client-issued count certificates in the
tender particularly for private entity having retail
business.
35. That the tender document (NIT) did not
prescribe any specific format to show the count of
test conducted especially for companies that handle
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
millions of individual pathology tests, like retail
labs and respondent no.8 & 9. The supporting
documents are voluminous, therefore the deponent
instead of enclosing such documents with this affidavit
craves leave of the Hon'ble court to produce the same
as and when required.
That Chartered Accountant's certificate is highly
reliable and based on audited financial records, which
are thoroughly checked and are legally recognized as
accurate. This certificate was also backed up by other
documents like work orders and agreements, MOU
etc. proving that pathology tests have been done/
pathology service provided by successful bidder. Thus
the Technical Committee has acted in a reasoned
manner and no illegality or arbitrariness can be
attributed to the decision to technically qualify the
selected bidder in the absence of any prescribed
format to show count of test done particularly for
private entity/retail business entity. Hence the decision
of technical committee is neither arbitrary nor
violative to tender process as wrongly alleged by
petitioner rather a fiscally responsible and legally
sustainable measure/decision in furtherance of public
interest and effective financial management."
52. In response to paragraphs '22' and '23' of the writ
petition, the contesting Respondent No. 8 has made the following
statements in paragraph '30' of its' counter affidavit:-
"30. That the contents of Paragraphs Nos. 22 and
23 of the Writ application are wrong and denied.
The same are vague and merely speculative in
nature without any substantiation whatsoever. The
same has been replied to extensively in the
preceeding paragraphs."
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
Apparantly, there is no denial of the statements made in
paragraphs '22' and '23' of the writ petition.
53. As recorded hereinabove, in course of his
submissions, Mr. P.K. Shahi, learned Advocate General has clearly
stated that apart from the CA certificate, there is no other
document by way of experience certificate issued by the client
(Government/Private) along with MoU/order/contract evidencing
count of pathology tests is in possession of the Society. We have
also recorded that Mr. Ashish Giri, learned Senior Advocate
representing Respondent No. 8 has accepted the fact that the State
Health Society has taken a stand that what were submitted by
Respondent No. 8 were the CA certificate and not the experience
certificate issued by the client (Government/Private) and no copy
of MoU/Agreement has been submitted.
54. Despite this being clear, in course of hearing of the
writ petition, this is unfortunate that when the written submissions
were filed on behalf of Respondent No. 8, it has been emphatically
submitted in some of the paragraphs that Respondent Nos. 8 and 9
have satisfied the criteria under Clause 2.4 by providing
experience certificate duly issued by the client
(government/private).
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
55. We find that in the written submission of Respondent
No. 8, instead of accepting the correct position which emerged in
course of hearing of the writ application, attempt has been made to
repeat and reiterate certain facts with regard to the submissions of
the experience certificate issued by the client.
56. Having gone through the aforementioned pleadings,
we find that clause 2.4 of Section V prescribes a mandatory
document, in fact in paragraph 30 of their supplementary counter
affidavit, respondent nos. 4 to 7 have themselves termed this
document a mandatory document, it is crystal clear that respondent
no. 8 had not provided the self-attested copies of experience
certificate issued by client (government/public) along with work
order/MoU/agreement/contract) evidencing the count of pathology
tests conducted per year. Initially, neither respondent nos. 4 to 7
nor respondent no. 8 specifically answered the paragraph '22' and
'23' of the writ application but having noticed that their statements
are not specifically answering the assertions of the petitioner, the
respondent nos. 4 to 7 have come out with supplementary counter
affidavit in which they have for the first time talked about
submission of a certificate of Chartered Accountant along with
MoU/work order/agreement which satisfies the PAC. In course of
hearing, we were given to peruse the certificate of Chartered
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
Accountant and at this stage, it has been detected that this
certificate was not along with MoU/work order/agreement of any
of the clients (government/private). It is only a certificate of the
Chartered Accountant showing the financial transactions carried
out by respondent no. 8 which is another eligibility requirement.
57. To this Court, it has transpired that the Respondent
No. 8 and Respondent No. 9 had not submitted the mandatory
documents in terms of clause 2.4 of Section V of Instructions to
Bidders (I.T.B.) but in the technical bid comparative chart, they
were wrongly and falsely shown to have submitted these
documents.
At this stage, this Court would reproduce clause 9.6, Section
V of the I.T.B. as under:-
"9.6 Following required evaluation criteria must be
submitted through online mode on e-Procurement
Portal https://eproc2.bihar.gov.in :
9.6.1 Technical Proposal covering letter, as per
Annexure-1
9.6.2 Authorization Letter for signing of proposal in
favour of signatory to tender documents as per
'Annexure-2' for Sole Bidder and in case of
Consortium 'Annexure-2' & 'Annexure-3'.
9.6.3 A duly notarized declaration (for not being
blacklisted) from the bidder should be submitted in
the format given in the 'Annexure-6' (Applicable
for Sole Bidder or for Consortium shall mean each
of the Partners including the Lead Partner)
9.6.4 Particulars of the bidder, as per Annexure-7
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
9.6.5 Self-attested copy of establishment of the
entity under Companies Act, 1956/2013 or Limited
Liability Partnership Act 2008, or Societies
Registration Act 1860, or Indian Trusts Act 1882
(Applicable for Sole Bidder or for Consortium shall
mean each of the Partners including the Lead
Partner)
9.6.6 Self-attested copy of audited financial
statement for the FY 2021-22, FY 2022-23 & FY
2023-24 i.e. Audited Balance Sheet, Audited Profit
& Loss Account (if the bidder is registered under
Companies Act or Limited Liability Partnership
Act), Audited Income & Expenditure Account (if
the bidder is registered under Societies & Trust Act)
along with related notes on account.
9.6.7 Turnover certificate issued by Chartered
Accountant (must be mentioned Membership No.,
UDIN No. & Date) certifying the financial turnover
related to Pathology Services of respective years for
which the bidder is submitting the turnover
statement for the financial years (FY) 2021-22,
2022-23 and 2023-24. (Applicable for Sole Bidder
or for Consortium shall mean each of the Partners
including the Lead Partner)
9.6.8 Self-attested copy of the Income Tax Returns
(ITR) acknowledgement for three assessment years
(AY) i.e. 2021-22, 2022-23 and 2023-24, for
bidders (Sole Bidder or for Consortium shall mean
each of the Partners including the Lead Partner)
9.6.9 Self-attested copy PAN Card and certificate of
registration of EPF, ESI and GST issued by the
appropriate authority valid as on date of submission
of tender documents. (Applicable for Sole Bidder or
for Consortium shall mean each of the Partners
including the Lead Partner)
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
9.6.10 Self-attested copy of Experience Certificate
issued by Client (Government/Private) along with
Work Order/MoU/Contract/Agreement evidencing
the required experience of the bidder mentioned in
the Eligibility Criteria in 'Section-V'.
9.6.11 Self-attested copy of Registration document
showing incorporation of the Bidder, and an
undertaking on the letterhead of the Bidder stating
that the Bidder has been in operation for a minimum
of last 3 (three) Financial Years (i.e. FY 2021-22,
FY 2022-23 and FY 2023-24) in the field of
establishment, implementation and management of
integrated laboratory network services.
9.6.12 In the case of consortium, the partners shall
have to mandatorily submit the following:
a) Board resolutions for bidding entities for each
partner(s) including lead partner in the consortium,
as per format "Annexure-4".
b) "Memorandum of Understanding (MoU)-
Consortium", as per format given in "Annexure-
5"."
58. In the technical bid comparative chart and
evaluation sheet (Annexure '1') which is enclosed with the
minutes of the Meeting (MOM) of the Technical Committee held
on 21.10.2024 (Annexure 'P/8'), the documents submitted by the
bidders in terms of requirement as pointed out under clause 9.6 of
Section V of I.T.B have been shown in the tabular chart. A close
perusal of the tabular chart would show that as regards the
mandatory documents under clause 2.4 of Section V of the N.I.T.
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
read with clause 9.6.10, the same have been shown "Lead Partner
submitted Partner 2 submitted". It means, the Respondent Nos. 8
and 9 both are said to have submitted self-attested copy of
experience certificate issued by the client (Government/Private)
along with work order/MoU/Contract/Agreement evidencing the
count of pathology tests during the last three years (FY 2021-22,
FY 2022-23 and FY 2023-24). Clause 9.6 says that required
evaluation criterion must be submitted. This requirement is duly
mentioned in sub-clause 9.6.10 of clause 9.6 of Section V of
I.T.B.
As recorded above, in fact, the required documents were not
submitted by Respondent No. 8 and Respondent No. 9. This Court
has, therefore, no hesitation in recording that this is a clear case of
giving undue favour to Respondent No. 8 and Respondent no. 9
by falsifying the records.
59. The Chartered Accountant certificate showing that
the bidder (in case of consortium) have a cumulative minimum
average annual turnover of INR 50 crores from Pathology services
during the FY 2020-21, FY 2021-22 and FY 2022-23 and that the
lead partner on the consortium must have a minimum annual
average turnover of INR 25 crores while another partner must
have a minimum annual average turnover of INR 12.5 crores from
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
pathology services during the aforesaid Fys, is a separate
requirement in terms of sub-clause 9.6.7 under clause 9.6, Section
V (N.I.T.).
It is evident that Chartered Accountant Certificate is required
in terms of clause 9.6.7 whereas experience certificate in terms of
clause 2.4 is another mandatory document under clause 9.6.10.
60. There is nothing on the record that in terms of clause
18 of Section I (NIT) or clause 5.1 of Section II Tender Inviting
Authority i.e. the State Health Society ever amended clause 2.4 or
9.6 under Section V (I.T.B.). These clauses remained as they
stood, hence, the bidders were obliged to fulfill the required
evaluation criteria. The words 'must be submitted' clearly show
that the documents were to be mandatorily submitted.
(Emphasis is mine)
Clause 10.2 of Section V of the I.T.B. only strengthens the
views of this Court. Clause 10.2 reads as under:-
"10.2 Technical Evaluation of the Bid will be done
on the basis of technical qualification criteria and
documents mentioned (TECHNICAL BID) in
Mandatory Documents Link present in the e-
Procurement Portal https://eproc2.bihar.gov.in
falling which the bid will not be considered for
technical evaluation."
61. From the statements made in paragraph '35' of the
supplementary counter affidavit, it is evident that the respondent
nos. 4 to 7 are coming out with a cover to provide a shield to
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
respondent nos. 8 and 9. According to respondent nos. 4 to 7, the
tender document (NIT) did not prescribe any specific format to
count the test conducted specially for companies that handle
millions of individual pathology test, like retail labs. This cannot
be the stand of respondent nos. 4 to 7 on the face of Clause 2.4
clearly providing that a self-attested copy of experience certificate
issued by the client (government/private) along with MoU/ order
of contract document evidencing the count of pathology tests were
to be provided. Not prescribing any specific format to show the
count of test has been cited by respondent nos. 4 to 7 as a rescuing
factor for respondent no.8. Further, it is evident that handling of
millions of individual pathology tests like retail labs by respondent
nos. 8 and 9 would not have made them eligible in terms of Clause
2.4. The provision is very clear in Clause 2.4. It should be
experience certificate issued by the client (government/private)
with work order/MoU/contract/agreement. This tender was not for
those who were handling millions of individual pathology tests
like a retail lab. We agree with the submissions of learned Senior
Counsel for the petitioner that respondent nos. 8 and 9 might have
an experience of carrying out individual pathology test over a
crore but that would not make them eligible in terms of Clause 2.4.
Here, we see a clear attempt by respondent nos. 4 to 7 to cover up
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
the fact that respondent no. 8 had not provided the required
mandatory document in terms of Clause 2.4.
62. It is because of this that towards the end of his
submissions, Mr. P.K. Shahi, learned Advocate General has
submitted that the State Health Society has power to relax the
conditions, therefore, in public interest if the condition as
contained in Clause 2.4 has been relaxed to some extent, this Court
need not interfere with the decision of the Society in declaring
respondent no. 8 a successful bidder. We would respectfully differ
with the opinion of the learned Advocate General on this point. At
first instance, there is no decision on record to do away with clause
2.4. No amendment as respect clause 2.4 and 9.6 has been notified
by Respondent Nos. 4 to 7. It is not the stand of R-4 to R-7 that
they have consciously ignored/relaxed the eligibility criterion for
R-8 and R-9. In fact the R-4 to R-7 have shown R-8 and R-9
fulfilling the said criterion by making false entries in the Technical
Bid comparison sheet. Thus, this stand of exercise of power to
relax the eligibility criterion does not reflect in the decision
making process. This does not conform to the privilege-of-
participation principle as laid down in Ramana Dayaram Shetty
vs. International Airport Authority of India reported in (1979) 3
SCC 489. Moreover, if the condition as contained in Clause 2.4
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
would have been relaxed for respondent no.8, we find no reason
that why this Society would not exercise the same discretion
judiciously that too in public interest in respect of respondent no.
10 who has in fact submitted a financial bid which is providing
advantage of over four percent of higher percentage of discount. If
the discretion would have been applied in favour of the respondent
no.10 in the given facts of the case, it would have benefited the
public exchequer. This has also an element of public interest. In
fact, when this plea was taken by learned Advocate General, we
specifically called upon him to make a statement as to why the
same relaxation/exercise of discretion was not done in favour of
respondent no.10 who had offered four percent more discount that
would go in several crores of rupees and that would be ultimately
beneficial to the State exchequer and to the public at large. We
could not get any satisfactory response to this query.
63. In view of the discussions made hereinabove, we
find that the respondent nos. 4 to 7 have ignored Clause 2.4 and
9.6.10 under Section V of the NIT and allowed respondent nos. 8
and 9 to qualify for the financial bid and in financial bid, selected
the consortium of Respondent No. 8 and Respondent No. 9 even as
they are not offering the highest discount. We have already
recorded as to how wrong and false entries were made in the
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
technical bid comparison chart (Annexure '1' to 'P/17' of the writ
petition) in order to favour Respondent Nos. 8 and 9.
64. At this stage, it would be important to have a glance
over the judgments of the Hon'ble Supreme Court in the matters of
interference with the award of contract/tender by a writ court. In
the case of Tata Motors (Supra), the Hon'ble Supreme Court has
held that in contract involving technical issues, Court should be
even more reluctant, the Court should not use magnifying glass
and must give fair play in the joints. It is further observed in the
judgment that no interference be made unless it will cause
unnecessary loss to the public exchequer.
65. In the case of Ramana Dayaram Shetty (supra),
the Hon'ble Supreme Court has been pleased to hold that the word
used in the document are not superfluous or redundant and those
must be given some meaning and weightage.
66. In the case of Tata Cellular Vs. Union of India
reported in (1994) 6 SCC 651 in paragraph '94', the Hon'ble
Supreme Court has been pleased to emphasize the need to find a
right balance between the administrative discretion to decide the
matters on the one hand and need to remedy any unfairness on the
other.
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
67. In the case of Raunaq International Ltd. Vs. I.V.R.
Construction Ltd. And Others reported in (1999) 1 SCC 492, the
Hon'ble Supreme Court was considering a challenge to an interim
order of stay of the operation of the Letters of Intent issued to M/s
Raunaq International Ltd. by the Hon'ble High Court of Bombay.
In the said case M/s Raunaq International Ltd. was not meeting
the qualifying requirements but it was reported that the company
had done CW piping for 210 MW units. The qualifying
requirements of bidder was that the bidder should have designed,
fabricated/manufactured, supplied, erected and successfully
commissioned large diameter piping system comprising the supply
of MS pipes not less than 2000 mm diameter and laid/buried for a
minimum total length of 3 kms in a thermal power station and the
same should be in successful operation for the past two years. The
Tender awarded to M/s Raunaq International Ltd. was challenged
by another bidder M/s I.V.R. Construction Ltd. There was a
submission that the Board of Directors of Maharashtra State
Electricity Board whil awarding the contract to M/s Raunaq
International Ltd. had relaxed a cretira. The Hon'ble Supreme
Court considered the challenge made to the interim order staying
the award of tender to M/s Raunaq International Ltd. and found
that the relaxation of criteria would have been required in respect
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
of M/s I.V.R. Construction Ltd. also but in view of the fact that the
offer of M/s Raunaq International Ltd. was the lowest, if the Board
had accepted the offer of M/s Raunaq International Ltd. after
weighing their requirements against the qualifications of the two
competing bidders, the High Court couldnot have intervened and
stayed the operation of the award of contract.
68. This Court finds that the facts revealed in the present
writ application are otherwise. In this case, there is no provision in
the N.I.T. for the relaxation with respect to the eligibility criteria
and mandatory requirement. If at all any relaxation was to be given
to the Respondent No. 8, there was no reason for Respondent Nos.
4 to 7 not to exercise their discretion in favour of Respondent No.
10 who had offered 4% more discount in their financial bid
document. The Hon'ble Supreme Court has considered as to what
are the elements of public interest. This Court would qoute
paragraph '9' and '10' of the judgment of the Hon'ble Supreme
Court in the case of Raunaq International Ltd. (supra) for a
ready reference:-
"9. 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 of paramount importance are commercial
considerations. These would be :
(1) The price at which the other side is willing to
do the work;
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
(2) Whether the goods or services offered are of
the requisite specifications;
(3) Whether the person tendering has the ability
to deliver the goods or services as per
specifications. When large works contracts
involving engagement of substantial manpower
or requiring specific skills are to be offered, the
financial ability of the tenderer to fulfil the
requirements of the job is also important;
(4) the ability of the tenderer to deliver goods or
services or to do the work of the requisite
standard and quality;
(5) past experience of the tenderer, and whether
he has successfully completed similar work
earlier;
(6) time which will be taken to deliver the goods
or services; and often
(7) the ability of the tenderer to take follow up
action, rectify defects or to give post contract
services.
Even when the State or a public body enters into
a commercial transaction, considerations which
would prevail in its decision to award the contract
to a given party would be the same. However,
because the State or a public body or an agency
of the State enters into such a contract, there
could be, in a given case, an element of public
law or public interest involved even in such a
commercial transaction.
10. What are these elements of public interest ?
(1) Public money would be expended for the
purposes of the contract. (2) The goods or
services which are being commissioned could be
for a public purpose, such as, construction of
roads, public buildings, power plants or other
public utilities. (3) The public would be directly
interested in the timely fulfilment of the contract
so that the services become available to the public
expeditiously. (4) The public would also be
interested in the quality of the work undertaken or
goods supplied by the tenderer. Poor quality of
work or goods can lead to tremendous public
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
hardship and substantial financial outlay either in
correcting mistakes or in rectifying defects or
even at times in re-doing the entire work - thus
involving larger outlays or public money and
delaying the availability of services, facilities or
goods, e.g. A delay in commissioning a power
project, as in the present case, could lead to
power shortages, retardation of industrial
development, hardship to the general public and
substantial cost escalation."
69. In the case of Jagdish Mandal Vs. State of Orissa
reported in (2007) 14 SCC 517 (para 22), the Hon'ble Supreme
Court has been pleased to observe as under:-
"22. Judicial review of administrative action is
intended to prevent arbitrariness, irrationality,
unreasonableness, bias and malafides. 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, certainspecial 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
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
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.
If the answers are in the negative, there should be
no interference under Article 226. Cases involving
black- listing or imposition of penal consequences
on a tenderer/contractor or distribution of state
largesse (allotment of sites/shops, grant of
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
licences, dealerships and franchises) stand on a
different footing as they may require a higher
degree of fairness in action."
70. In the case of Podder Steel Corpn. Versus Ganesh
Engg. Works and Others reported in (1991) 3 SCC 273, the
Hon'ble Supreme Court in paragraph '6' has held as under:-
"6. .......The requirements in a tender notice can be
classified into two categories -- those which lay
down the essential conditions of eligibility and the
others which are merely ancillary or subsidiary with
the main object to be achieved by the condition. In the
first case the authority issuing the tender may be
required to enforce them rigidly. In the other cases it
must be open to the authority to deviate from and not
to insist upon the strict literal compliance of the
condition in appropriate cases. ......"
Similarly, in the case of B.S.N. Joshi & Sons Ltd. Versus
Nair Coal Services Ltd. and Others Reported in (2006) 11 SCC
548, The Hon'ble Supreme Court in paragraph '66' has held as
under:-
"66. We are also not shutting our eyes towards the
new principles of judicial review which are being
developed; but the law as it stands now having regard
to the principles laid down in the aforementioned
decisions may be summarised as under:
(i) if there are essential conditions, the same must
be adhered to;
(ii) if there is no power of general relaxation,
ordinarily the same shall not be exercised and the
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
principle of strict compliance would be applied
where it is possible for all the parties to comply
with all such conditions fully;
(iii) if, however, a deviation is made in relation to
all the parties in regard to any of such conditions,
ordinarily again a power of relaxation may be held
to be existing;
(iv) the parties who have taken the benefit of such
relaxation should not ordinarily be allowed to take
a different stand in relation to compliance with
another part of tender contract, particularly when
he was also not in a position to comply with all the
conditions of tender fully, unless the court
otherwise finds relaxation of a condition which
being essential in nature could not be relaxed and
thus the same was wholly illegal and without
jurisdiction;
(v) when a decision is taken by the appropriate
authority upon due consideration of the tender
document submitted by all the tenderers on their
own merits and if it is ultimately found that
successful bidders had in fact substantially
complied with the purport and object for which
essential conditions were laid down, the same may
not ordinarily be interfered with;
(vi) the contractors cannot form a cartel. If despite
the same, their bids are considered and they are
given an offer to match with the rates quoted by the
lowest tenderer, public interest would be given
priority;
(vii) where a decision has been taken purely on
public interest, the court ordinarily should exercise
judicial restraint."
Opinion of this Court
71. In the facts of the presnt case, we are of the
considered opinion that the process adopted by the authorities of
the Society were intended to favour the consortium of Respondent
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
No. 8 and Resp No. 9. We say so as on the one hand a mandatory
eligibility criteria in terms of the Clause 2.4 read with clause
9.6.10 of the Tender Docuemnt has been given go-bye in order to
award the work to the consortium of Respondent Nos. 8 and 9 but
at the same time, Respondent No. 10 who has given the highest
discount that too by more than 4 percentage over and above the
discount rate offerred by the consortium of Respondent No. 8 and
9 has been ousted by accepting the objection of Respondent No. 8
and that of the petitioner in the name of being a competitive bid.
We find that if the eligibility criteria as contained in Clause 2.4
read with 9.6.10 is given a go-bye, the quality of work which are
to be undertaken by the successful bidder and the public money
which would be spent for the purpose both would suffer.
72. In result, this Court is of the considered opinion that
the Respondent Nos. 8 and 9 have failed to fulfil the eligibility
criteria as contained in Clause 2.4 read with Clause 9.6.10, Section
V of the Tender Document. The 'LoI' issued in favour of
Respondent Nos. 8 and 9 and consequent agreement dated
19.11.2024 are result of a favour shown to them at both the stages
keeping aside the public interest, hence, those are liable to be
quashed and cancelled. We accordingly, quash and cancel the 'LoI'
Patna High Court CWJC No.1377 of 2025 dt.08-08-2025
and consequent agreement executed in favour of consortium of
Respondent Nos. 8 and 9.
73. The respondent Nos. 4 to 7 i.e. the Society shall
convene a meeting of the Technical Bid Committee and the PAC
within one month from today. They will go for scrutiny of the
tenders, take a decision with regard to award of tender afresh at the
earliest keeping in view the discussions and observations made in
this judgment hereinabove.
74. The writ application is allowed to the extent
indicated hereinabove.
(Rajeev Ranjan Prasad, J)
(Ashok Kumar Pandey, J)
SUSHMA2/-
AFR/NAFR AFR
CAV DATE 09.07.2025
Uploading Date 08.08.2025
Transmission Date
