[Cites 27, Cited by 0]
Uttarakhand High Court
January vs Directorate Women Empowerment And ... on 10 January, 2026
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
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HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition Misc. Bench No. 35 of 2026
10 January, 2026
Vinishma Technologies ...Petitioner
Versus
Directorate Women Empowerment And Child
Development Department ... Respondent
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Presence:-
Mr. Bhupesh Kandpal, learned counsel for the petitioner.
Mr. Yogesh Chandra Tiwari & Mr. Gajendra Tripathi, Standing Counsel
for the State of Uttarakhand.
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JUDGMENT
Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Siddhartha Sah, J.
(Per: Hon'ble Manoj Kumar Tiwari, J.)
1. Directorate of Women Empowerment and
Child Development, Uttarakhand invited bids for supply
of Educational School Kits by issuing a notice inviting
tender dated 18.12.2025. Petitioner submitted bid
pursuant to said notice, as is apparent from averments
made in para 11 and 13 of the writ petition.
2. Petitioner apprehends that his bid may be
rejected due to certain conditions mentioned in the bid
document, therefore, he has approached this Court,
seeking the following relief:-
(i) A writ order, order direction in the nature of certiorari
quashing the impugned clause 1(Ga) and 1 (Da) of the
additional terms and conditions of bid document bearing
no. GEM/2025/B7019467 dated 18.12.2025 (Annexure
No. 1 to the writ petition) as well as the condition no.
2(4) of the corrigendum dated 29.12.2025 (Annexure No.
2 to the writ petition) issued by the Directorate of Women
Empowerment and Child Development Department.
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3. Petitioner has challenged Clause 1(x) and 1
(³) of the additional terms and conditions of the bid
document. Clause 1(x) requires every bidder to submit
an affidavit that he is not black listed by any
Agency/Central or State Government and; further that
he is not involved in any litigation with any
Agency/Central or State. Clause 1(?k) requires each
bidder to submit test report from a Government
Laboratory, certifying that the material used in the Pre-
School Kit is Food Grade, Non-Toxic and Non-
Hazardous.
4. Clause 1(³) requires each bidder to submit
sealed sample of items mentioned in Serial No. 1 to 17
of pre-school kit in corrugated cardboard carton.
Petitioner has also challenged the condition of
submitting "no dues certificate" issued by Jurisdictional
Goods and Service Tax (GST) Authority, which was
added by Corrigendum issued on 29.12.2025.
5. Learned counsel for the petitioner submits
that the requirement of submitting affidavit by each
bidder "that it is not involved in any litigation with any
Agency/State or Centre Government", is arbitrary and it
does not have any nexus with the object sought to be
achieved. Learned counsel for the petitioner submits
that the condition of submitting test report from
Government Laboratory that the material used in pre-
school kit is Food Grade, Non-Toxic and Non-Hazardous,
is also arbitrary, which restricts competition. He further
submits that the condition mentioned in Clause (³) is
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contrary to Office Memorandum dated 15.10.2003
issued by Central Vigilance Commission, Government of
India, as it makes the decision too subjective and may
result in award of contract at higher rates.
6. This Court is not impressed by the
submissions made by learned counsel for the petitioner.
In the case of Directorate of Education & others vs.
Educomp Datamatics Ltd. & others, reported as 2004
(4) SCC 19, Hon'ble Supreme Court has held as
under:-
"9. It is well settled now that the courts can scrutinise the
award of the contracts by the Government or its agencies in
exercise of their powers of judicial review to prevent
arbitrariness or favouritism. However, there are inherent
limitations in the exercise of the power of judicial review in
such matters. The point as to the extent of judicial review
permissible in contractual matters while inviting bids by
issuing tenders has been examined in depth by this Court
in Tata Cellular v. Union of India [(1994) 6 SCC 651] . After
examining the entire case-law the following principles have
been deduced: (SCC pp. 687-88, para 94)
"94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in
administrative action.
(2) The court does not sit as a court of appeal but merely
reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the
administrative decision. If a review of the administrative
decision is permitted it will be substituting its own decision,
without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open
to judicial scrutiny because the invitation to tender is in the
realm of contract. Normally speaking, the decision to accept
the tender or award the contract is reached by process of
negotiations through several tiers. More often than not, such
decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In
other words, a fair play in the joints is a necessary
concomitant for an administrative body functioning in an
administrative sphere or quasi-administrative sphere.
However, the decision must not only be tested by the
application of Wednesbury principle of reasonableness
(including its other facts pointed out above) but must be free
from arbitrariness not affected by bias or actuated by mala
fides.
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(6) Quashing decisions may impose heavy administrative
burden on the administration and lead to increased and
unbudgeted expenditure."
10. In Air India Ltd. v. Cochin International Airport
Ltd. [(2000) 2 SCC 617] this Court observed: (SCC p. 623,
para 7)
"The award of a contract, whether it is by a private
party or by a public body or the State, is essentially a
commercial transaction. In arriving at a commercial
decision considerations which are paramount are
commercial considerations. The State can choose its own
method to arrive at a decision. It can fix its own terms of
invitation to tender and that is not open to judicial
scrutiny. It can enter into negotiations before finally
deciding to accept one of the offers made to it. Price need
not always be the sole criterion for awarding a contract. It
is free to grant any relaxation, for bona fide reasons, if
the tender conditions permit such a relaxation. It may not
accept the offer even though it happens to be the highest
or the lowest. But the State, its corporations,
instrumentalities and agencies are bound to adhere to the
norms, standards and procedure laid down by them and
cannot depart from them arbitrarily. Though that decision
is not amenable to judicial review, the court can examine
the decision-making process and interfere if it is found
vitiated by mala fides, unreasonableness and
arbitrariness."
(emphasis supplied)
11. This principle was again restated by this Court in Monarch
Infrastructure (P) Ltd. v. Commr., Ulhasnagar Municipal
Corpn. [(2000) 5 SCC 287] It was held that the terms and
conditions in the tender are prescribed by the Government
bearing in mind the nature of contract and in such matters
the authority calling for the tender is the best judge to
prescribe the terms and conditions of the tender. It is not for
the courts to say whether the conditions prescribed in the
tender under consideration were better than the ones
prescribed in the earlier tender invitations.
12. It has clearly been held in these decisions that the terms
of the invitation to tender are not open to judicial scrutiny,
the same being in the realm of contract. That the
Government must have a free hand in setting the terms of
the tender. It must have reasonable play in its joints as a
necessary concomitant for an administrative body in an
administrative sphere. The courts would interfere with the
administrative policy decision only if it is arbitrary,
discriminatory, mala fide or actuated by bias. It is entitled to
pragmatic adjustments which may be called for by the
particular circumstances. The courts cannot strike down the
terms of the tender prescribed by the Government because it
feels that some other terms in the tender would have been
fair, wiser or logical. The courts can interfere only if the policy
decision is arbitrary, discriminatory or mala fide.
(emphasis supplied)"
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7. In the case of M/s Michigan Rubber (India)
Ltd. Vs. State of Karnaaka & others, reported as (2012)
8 SCC 216, Hon'ble Supreme Court while considering
validity of pre-qualification criteria inserted in a tender
notice for supply of tyres, tubes and flaps by Karnataka
Road Transport Corporation. After considering the law
on the point challenge to pre-qualification criteria was
settled by Hon'ble Supreme Court. The relevant extract
of the judgment rendered by Hon'ble Supreme Court,
are reproduced below:-
"12. In Raunaq International Ltd. v. I.V.R. Construction
Ltd. [(1999) 1 SCC 492] this Court reiterated the principle
governing the process of judicial review and held that the writ
court would not be justified in interfering with commercial
transactions in which the State is one of the parties except where
there is substantial public interest involved and in cases where
the transaction is mala fide.
13. In Union of India v. International Trading Co. [(2003) 5
SCC 437] this Court, in similar circumstances, held as under:
(SCC pp. 445 & 447, paras 15-16 & 22-23)
"15. While the discretion to change the policy in exercise of
the executive power, when not trammelled by any statute or
rule is wide enough, what is imperative and implicit in terms of
Article 14 is that a change in policy must be made fairly and
should not give the impression that it was so done arbitrarily or
by any ulterior criteria. The wide sweep of Article 14 and the
requirement of every State action qualifying for its validity on
this touchstone irrespective of the field of activity of the State
is an accepted tenet. The basic requirement of Article 14 is
fairness in action by the State, and non-arbitrariness in
essence and substance is the heartbeat of fair play. Actions are
amenable, in the panorama of judicial review only to the extent
that the State must act validly for a discernible reason, not
whimsically for any ulterior purpose. The meaning and true
import and concept of arbitrariness is more easily visualised
than precisely defined. A question whether the impugned
action is arbitrary or not is to be ultimately answered on the
facts and circumstances of a given case. A basic and obvious
test to apply in such cases is to see whether there is any
discernible principle emerging from the impugned action and if
so, does it really satisfy the test of reasonableness.
16. Where a particular mode is prescribed for doing an act
and there is no impediment in adopting the procedure, the
deviation to act in a different manner which does not disclose
any discernible principle which is reasonable itself shall be
labelled as arbitrary. Every State action must be informed by
reason and it follows that an act uninformed by reason is per
se arbitrary.
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***
22. If the State acts within the bounds of reasonableness, it
would be legitimate to take into consideration the national
priorities and adopt trade policies. As noted above, the
ultimate test is whether on the touchstone of reasonableness
the policy decision comes out unscathed.
23. Reasonableness of restriction is to be determined in an
objective manner and from the standpoint of interests of the
general public and not from the standpoint of the interests of
persons upon whom the restrictions have been imposed or
upon abstract consideration. A restriction cannot be said to be
unreasonable merely because in a given case, it operates
harshly. In determining whether there is any unfairness
involved; the nature of the right alleged to have been
infringed, the underlying purpose of the restriction imposed,
the extent and urgency of the evil sought to be remedied
thereby, the disproportion of the imposition, the prevailing
condition at the relevant time, enter into judicial verdict. The
reasonableness of the legitimate expectation has to be
determined with respect to the circumstances relating to the
trade or business in question. Canalisation of a particular
business in favour of even a specified individual is reasonable
where the interests of the country are concerned or where the
business affects the economy of the country. (See Parbhani
Transport Coop. Society Ltd. v. RTA [AIR 1960 SC 801] , Shree
Meenakshi Mills Ltd. v. Union of India [(1974) 1 SCC 468]
, Hari Chand Sarda v. Mizo District Council [AIR 1967 SC 829]
and Krishnan Kakkanth v. Govt. of Kerala [(1997) 9 SCC 495]
.)"
14. In Jespar I. Slong v. State of Meghalaya [(2004) 11 SCC
485] this Court, in para 17, held as under: (SCC p. 494)
"17. ... fixation of a value of the tender is entirely within the
purview of the executive and courts hardly have any role to
play in this process except for striking down such action of the
executive as is proved to be arbitrary or unreasonable."
15. In Assn. of Registration Plates v. Union of India [(2005) 1
SCC 679] a similar issue was considered by a Bench of three
Judges. In that case, the dispute was about the terms and
conditions of notices inviting tenders (NITs) for supply of high
security registration plates for motor vehicles. The tenders had
been issued by various State Governments on the guidelines
circulated by the Central Government for implementing the
provisions of the Motor Vehicles Act, 1988 and the newly
amended Central Motor Vehicles Rules, 1989. The main grievance
of the appellant therein was that all notices inviting tenders
(NITs) which were issued by various State Governments,
contained conditions which were tailored to favour companies
having foreign collaboration. Their further grievance was that the
tender conditions were discriminatory as per Article 14 of the
Constitution and were being aimed at excluding indigenous
manufacturers from the tender process. It was also contended
that in all the cases, the work of supply of high security
registration plates for all existing vehicles and new vehicles was
being entrusted to a single licence plates manufacturer in a State
or a region and for a long period of 15 years, thus creating
monopoly in favour of selected bidders to the complete exclusion
of all others in the field.
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16. The further contention advanced in Assn. of Registration
Plates case [(2005) 1 SCC 679] was that creation of monopoly in
favour of a few parties having connection with foreign concerns is
violative of the fundamental right of trade under Article 19(1)(g)
and discriminatory under Article 14 of the Constitution. It was
also pointed out that in the name of implementing the amended
Rule 50 of the Motor Vehicles Rules, 1989, the States are
imposing conditions in the tender that would take away the
existing rights of the manufacturers of plates in India.
17. On the condition laid down for prescribed minimum turnover of
business, the challenge made on behalf of the petitioners in Assn. of
Registration Plates case [(2005) 1 SCC 679] was that fixing such
high turnover for such a new business is only for the purpose of
advancing the business interests of a group of companies having
foreign links and support. That it was impossible for any indigenous
manufacturer of security plates to have a turnover of approximately
Rs 12.5 crores from the high security registration plates which were
sought to be introduced in India for the first time and the
implementation of the project has not yet started in any of the
States.
18. On behalf of the Union of India, the State authorities and the
counsel appearing for the contesting manufacturers, in their
replies, have tried to justify the manner and implementation of
the policy contained in Rule 50 of the Motor Vehicles Rules. On
behalf of the Union of India, the learned ASG submitted that
under Rule 50 read with the Statutory Order of 2001 issued under
Section 109(3) of the Motor Vehicles Act, the State Governments
are legally competent to formulate an appropriate policy for
choosing a sole or more manufacturers in order to fulfil the object
of affixation of security plates. The Scheme contained in Rule 50
read with the Statutory Order of 2001 leaves it to the discretion
of the State concerned to even choose a single manufacturer for
the entire State or more than one manufacturer regionwise. It
was pointed out that such a selection cannot be said to confer
any monopoly right by the State on any private individual or
concern. He further pointed out that the tender conditions were
formulated taking into account the public interest consideration
and aspects of high security.
19. While considering the above submissions, the three-Judge
Bench held as under: (Assn. of Registration Plates case [(2005) 1
SCC 679] , SCC pp. 698-701, paras 38-40 & 43-44)
"38. In the matter of formulating conditions of a tender
document and awarding a contract of the nature of ensuring
supply of high security registration plates, greater latitude is
required to be conceded to the State authorities. Unless the
action of tendering authority is found to be malicious and a
misuse of its statutory powers, tender conditions are
unassailable. On intensive examination of tender conditions,
we do not find that they violate the equality clause under
Article 14 or encroach on fundamental rights of the class of
intending tenderers under Article 19 of the Constitution. On the
basis of the submissions made on behalf of the Union and the
State authorities and the justification shown for the terms of
the impugned tender conditions, we do not find that the
clauses requiring experience in the field of supplying
registration plates in foreign countries and the quantum of
business turnover are intended only to keep indigenous
manufacturers out of the field. It is explained that on the date
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of formulation of scheme in Rule 50 and issuance of guidelines
thereunder by the Central Government, there were not many
indigenous manufacturers in India with technical and financial
capability to undertake the job of supply of such high
dimension, on a long-term basis and in a manner to ensure
safety and security which is the prime object to be achieved by
the introduction of new sophisticated registration plates.
39. The notice inviting tender is open to response by all and
even if one single manufacturer is ultimately selected for a
region or State, it cannot be said that the State has created a
monopoly of business in favour of a private party. Rule 50
permits the RTOs concerned themselves to implement the
policy or to get it implemented through a selected approved
manufacturer.
40. Selecting one manufacturer through a process of open
competition is not creation of any monopoly, as contended, in
violation of Article 19(1)(g) of the Constitution read with clause
(6) of the said article. As is sought to be pointed out, the
implementation involves large network of operations of highly
sophisticated materials. The manufacturer has to have
embossing stations within the premises of the RTO. He has to
maintain the data of each plate which he would be getting from
his main unit. It has to be cross-checked by the RTO data.
There has to be a server in the RTO's office which is linked with
all RTOs in each State and thereon linked to the whole nation.
Maintenance of the record by one and supervision over its
activity would be simpler for the State if there is one
manufacturer instead of multi-manufacturers as suppliers. The
actual operation of the scheme through the RTOs in their
premises would get complicated and confused if multi-
manufacturers are involved. That would also seriously impair
the high security concept in affixation of new plates on the
vehicles. If there is a single manufacturer he can be forced to
go and serve rural areas with thin vehicular population and less
volume of business. Multi-manufacturers might concentrate
only on urban areas with higher vehicular population.
***
43. Certain preconditions or qualifications for tenders have
to be laid down to ensure that the contractor has the capacity
and the resources to successfully execute the work. Article 14
of the Constitution prohibits the Government from arbitrarily
choosing a contractor at its will and pleasure. It has to act
reasonably, fairly and in public interest in awarding contract. At
the same time, no person can claim a fundamental right to
carry on business with the Government. All that he can claim is
that in competing for the contract, he should not be unfairly
treated and discriminated, to the detriment of public interest.
Undisputedly, the legal position which has been firmly
established from various decisions of this Court, cited at the
Bar [Ed.: Reference may be made to the decisions in Air India
Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC
617; Asia Foundation & Construction Ltd. v. Trafalgar House
Construction (I) Ltd., (1997) 1 SCC 738; Krishnan
Kakkanth v. Govt. of Kerala, (1997) 9 SCC 495; Ugar Sugar
Works Ltd. v. Delhi Admn., (2001) 3 SCC 635; Sterling
Computers Ltd. v. M&N Publications Ltd., (1993) 1 SCC
445; Union of India v. Dinesh Engg. Corpn., (2001) 8 SCC
491.] is that government contracts are highly valuable assets
and the court should be prepared to enforce standards of
fairness on the Government in its dealings with tenderers and
contractors.
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44. The grievance that the terms of notice inviting tenders
in the present case virtually create a monopoly in favour of
parties having foreign collaborations, is without substance.
Selection of a competent contractor for assigning job of supply
of a sophisticated article through an open-tender procedure, is
not an act of creating monopoly, as is sought to be suggested
on behalf of the petitioners. What has been argued is that the
terms of the notices inviting tenders deliberately exclude
domestic manufacturers and new entrepreneurs in the field. In
the absence of any indication from the record that the terms
and conditions were tailor-made to promote parties with
foreign collaborations and to exclude indigenous
manufacturers, judicial interference is uncalled for."
After observing so, this Court dismissed all the writ petitions
directly filed in this Court and transferred to this Court from the
High Courts.
20. In Reliance Airport Developers (P) Ltd. v. Airports Authority of
India [(2006) 10 SCC 1] this Court held that while judicial review
cannot be denied in contractual matters or matters in which the
Government exercises its contractual powers, such review is
intended to prevent arbitrariness and must be exercised in larger
public interest.
21. In Jagdish Mandal v. State of Orissa [(2007) 14 SCC 517]
the following conclusion is relevant: (SCC pp. 531-32, para 22)
"22. Judicial review of administrative action is intended to
prevent arbitrariness, irrationality, unreasonableness, bias and
mala fides. Its purpose is to check whether choice or decision
is made 'lawfully' and not to check whether choice or decision
is 'sound'. When the power of judicial review is invoked in
matters relating to tenders or award of contracts, certain
special features should be borne in mind. A contract is a
commercial transaction. Evaluating tenders and awarding
contracts are essentially commercial functions. Principles of
equity and natural justice stay at a distance. If the decision
relating to award of contract is bona fide and is in public
interest, courts will not, in exercise of power of judicial review,
interfere even if a procedural aberration or error in assessment
or prejudice to a tenderer, is made out. The power of judicial
review will not be permitted to be invoked to protect private
interest at the cost of public interest, or to decide contractual
disputes. The tenderer or contractor with a grievance can
always seek damages in a civil court. Attempts by unsuccessful
tenderers with imaginary grievances, wounded pride and
business rivalry, to make mountains out of molehills of some
technical/procedural violation or some prejudice to self, and
persuade courts to interfere by exercising power of judicial
review, should be resisted. Such interferences, either interim
or final, may hold up public works for years, or delay relief and
succour to thousands and millions and may increase the
project cost manifold. 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
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such that no responsible authority acting reasonably and in
accordance with relevant law could have reached';
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no
interference under Article 226. Cases involving blacklisting or
imposition of penal consequences on a tenderer/contractor or
distribution of State largesse (allotment of sites/shops, grant of
licences, dealerships and franchises) stand on a different
footing as they may require a higher degree of fairness in
action."
22. The same principles have been reiterated in a recent decision
of this Court in Tejas Constructions & Infrastructure (P)
Ltd. v. Municipal Council, Sendhwa [(2012) 6 SCC 464] .
23. From the above decisions, the following principles
emerge:
(a) The basic requirement of Article 14 is fairness in action
by the State, and non-arbitrariness in essence and substance is
the heartbeat of fair play. These actions are amenable to the
judicial review only to the extent that the State must act
validly for a discernible reason and not whimsically for any
ulterior purpose. If the State acts within the bounds of
reasonableness, it would be legitimate to take into
consideration the national priorities;
(b) Fixation of a value of the tender is entirely within the
purview of the executive and the courts hardly have any role to
play in this process except for striking down such action of the
executive as is proved to be arbitrary or unreasonable. If the
Government acts in conformity with certain healthy standards
and norms such as awarding of contracts by inviting tenders, in
those circumstances, the interference by courts is very limited;
(c) In the matter of formulating conditions of a tender
document and awarding a contract, greater latitude is required
to be conceded to the State authorities unless the action of the
tendering authority is found to be malicious and a misuse of its
statutory powers, interference by courts is not warranted;
(d) Certain preconditions or qualifications for tenders have
to be laid down to ensure that the contractor has the capacity
and the resources to successfully execute the work; and
(e) If the State or its instrumentalities act reasonably, fairly
and in public interest in awarding contract, here again,
interference by court is very restrictive since no person can
claim a fundamental right to carry on business with the
Government.
24. 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"? and
(ii) Whether the public interest is affected?
If the answers to the above questions are in the negative, then
there should be no interference under Article 226."
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8. In the case of Central Coalfields Limited &
another vs SLL-SML (Joint Venture Consortium) &
others, reported as 2016 (8) SCC 622, Apex Court has
held as under:-
"47. The result of this discussion is that the issue of the
acceptance or rejection of a bid or a bidder should be looked at
not only from the point of view of the unsuccessful party but also
from the point of view of the employer. As held in Ramana
Dayaram Shetty [Ramana Dayaram Shetty v. International Airport
Authority of India, (1979) 3 SCC 489] the terms of NIT cannot be
ignored as being redundant or superfluous. They must be given a
meaning and the necessary significance. As pointed out in Tata
Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651] there
must be judicial restraint in interfering with administrative action.
Ordinarily, the soundness of the decision taken by the employer
ought not to be questioned but the decision-making process can
certainly be subject to judicial review. The soundness of the
decision may be questioned if it is irrational or mala fide or
intended to favour someone or a decision "that no responsible
authority acting reasonably and in accordance with relevant law
could have reached" as held in Jagdish Mandal [Jagdish
Mandal v. State of Orissa, (2007) 14 SCC 517] followed
in Michigan Rubber [Michigan Rubber (India) Ltd. v. State of
Karnataka, (2012) 8 SCC 216] .
48. Therefore, whether a term of NIT is essential or not is a
decision taken by the employer which should be respected. Even
if the term is essential, the employer has the inherent authority
to deviate from it provided the deviation is made applicable to all
bidders and potential bidders as held in Ramana Dayaram
Shetty [Ramana Dayaram Shetty v. International Airport
Authority of India, (1979) 3 SCC 489] . However, if the term is
held by the employer to be ancillary or subsidiary, even that
decision should be respected. The lawfulness of that decision can
be questioned on very limited grounds, as mentioned in the
various decisions discussed above, but the soundness of the
decision cannot be questioned, otherwise this Court would be
taking over the function of the tender issuing authority, which it
cannot.
49. Again, looked at from the point of view of the employer if the
courts take over the decision-making function of the employer
and make a distinction between essential and non-essential terms
contrary to the intention of the employer and thereby rewrite the
arrangement, it could lead to all sorts of problems including the
one that we are grappling with. For example, the GTC that we are
concerned with specifically states in Clause 15.2 that "Any bid not
accompanied by an acceptable Bid Security/EMD shall be rejected
by the employer as non-responsive". Surely, CCL ex facie
intended this term to be mandatory, yet the High Court held that
the bank guarantee in a format not prescribed by it ought to be
accepted since that requirement was a non-essential term of the
GTC. From the point of view of CCL, the GTC has been
impermissibly rewritten by the High Court."
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9. From the aforesaid judgments, it is revealed
that in the matter of formulating conditions of a tender
document, greater latitude is required to be conferred
to the State Authorities unless the action of Tendering
Authority is found to be malicious or misuse of its
statutory powers. Certain preconditions or qualifications
for bidders have to be laid down in the tender
document to ensure that only a bidder, with the
required resources to execute the work, is awarded the
contract.
10. The condition added by the corrigendum is
aimed at ensuring that every bidder complies with
applicable tax laws, therefore, the said condition also
cannot be said to be arbitrary or illegal. Every employer
is bound to ensure compliance of tax laws and here the
employer is a authority under the State, therefore, it
has greater responsibility of complying with the all laws
on the related fields.
11. Similarly the undertaking required to be
given by bidder, that he is not in litigation with any
other employer, cannot be said to be so arbitrary or
illegal which may warrant interference. While awarding
contract, employer is entitled to get information
regarding litigation, if pending, between the bidder and
some other agency which awarded contract to him
earlier.
12. Similarly, the condition of furnishing test
report from a Government Laboratory that the material
used in pre-school kit is Food Grade, Non-Toxic and
Non-Hazardous is necessary to ensure that the material
2026:UHC:475-DB
supplied by the bidder, upon award of contract to him,
does not pose a health hazard to the children, to whom
the kits are to be supplied.
13. Similarly the condition, which requires
bidders to provide sealed sample of the items supplied
in pre-school kit, cannot be said to be arbitrary, as the
employer is entitled to monitor quality of the material
supplied, and the sample can also be used for
comparing the material, which a bidder supplies after
award of contract.
14. Petitioner has relied upon Clause 8 of bid
document under caption "Disclaimer" for questioning
validity of Clause 1(³) of the tender document. Clause
8 under caption "Disclaimer" is reproduced below:-
"8. Seeking sample with bid or approval of samples during
bid evaluation process. (However, in bids for attached
categories, trials are allowed as per approved procurement
policy of the buyer nodal Ministries)."
15. Learned State Counsel is right in submitting
that trials are allowed as per approved procurement
policy for Buyer Nodal Ministries in respect of bids of
certain categories which were attached with the tender
document, as is apparent from Clause 8, however,
petitioner has not enclosed the list with the writ
petition. In the absence of list of items of excepted
categories, this Court has no other option but to draw
adverse inference that trial was allowed for the
educational school kit.
16. As held in the case of Directorate of
Education & others vs. Educomp Datamatics Ltd. &
2026:UHC:475-DB
others (supra), terms of the invitation to tender are not
open to judicial scrutiny, the same being in the realm of
contract, government must have a free hand in settling
terms of the tender and it must have reasonable play in
its joints as a necessary concomitant for an
administrative body in an administrative sphere. Courts
can interfere with the administrative policy decision
only if it is arbitrary, discriminatory, mala fide or
actuated by bias.
17. This Court while exercising power under
Section 226 of the Constitution, cannot strike down the
terms of tender prescribed by the Government, merely
because it feels that some other term in the tender
would have been fair, wise or logical. This Court can
interfere only if the policy decision is arbitrary
discriminatory or mala fide.
18. Since, this is not the case here and there is
no allegation that the impugned condition has been
tailor-made to suit the interest of any bidder, therefore,
this Court do not find any reason to interfere in the
matter.
19. Accordingly, the writ petition fails and is
dismissed.
(Siddhartha Sah, J.) (Manoj Kumar Tiwari, J.)
10.01.2026
Aswal
NITI RAJ Digitally signed by NITI RAJ SINGH ASWAL
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH
COURT OF UTTARAKHAND,
SINGH
2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802a
3a08b08d1369512ea30f3, postalCode=263001,
st=UTTARAKHAND,
serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C22
DACF4F4610C1FE58A58531726FBB0, cn=NITI RAJ SINGH
ASWAL
ASWAL
Date: 2026.01.12 01:32:36 -08'00'
