IN THE MATTER OF YOGESH TEWARI vs STATE OF UTTARAKHAND
- Court
- Uttarakhand High Court
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HIGH COURT OF UTTARAKHAND AT NAINITAL
HON’BLE THE ACTING CHIEF JUSTICE SRI MANOJ KUMAR TIWARI
AND
HON’BLE SRI JUSTICE SUBHASH UPADHYAY
Writ Petition (M/B) No. 169 of 2025
28 October, 2026
In the matter of Yogesh Tewari --Petitioner
Versus
State of Uttarakhand and others --Respondents
Counsel for the petitioner : Mr. Saurabh Kumar Pandey, learned
counsel.
Counsel for the Respondent nos. 1 to 3: Mr. J.C. Pandey, learned Standing
Counsel for the State of Uttarakhand.
Counsel for respondent no. 4: Mr. Naresh Pant (through V.C) and
Mr. Raunak Pant, learned counsel.
The Court made the following:
JUDGMENT: (per Hon’ble The Acting Chief Justice Sri Manoj Kumar Tiwari)
Petitioner responded to a Notice Inviting
st
Tender dated 16.01.202”5, issued by Chief Engineer, 1
Circle, Public Works Department, Almora, for ‘Holistic
Development Work of Surya Dev Mandir, Katarmal
under Manaskhand Mandir Mala Mission”.
2. His technical bid was declared to be non-
responsive by the Technical Evaluation Committee, vide
order dated 04.04.2025. The reason for declaring
petitioner’s bid as non responsive is that as per Section
3, Clause 2.4.2 of the bidding document, every bidder
was required to give details of any one work of similar
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nature, along with certificate, which was to be given in
Form Exp-2, however, the experience certificate
furnished by petitioner is not as per the bidding
document.
3. Since Clause 2.4.2 of Section 3 of bidding
document has been referred to for declaring petitioner’s
bid as non-responsive, therefore, for ready reference
Clause 2.4.2 of Section 3 is reproduced below:-
“2.4.2 Specific Construction Experience: (a) Contracts of Similar work and
Nature
Participation as contractor or
subcontractor in at least one
contract that was started and
has been substantially or
successfully completed with in
the last five years, and that are
similar to the proposed works.
The similarity shall be
necessarily based on the
physical size, complexity,
methods, technology or other
characteristics as described in
section 5, employer’s
requirements, and must have
executed works worth Rs.
137.25 Lakh (Inclusive of
escalation) in any one financial
year within these five years.
Must meet
requirement
Must meet
requirement
Not
Applicable
Not
Applicable
Forms
given in
Section 4
EXP 2
* The escalation shall be calculated as per the procedure described under para 2.3.2 of
this section. (Base Year 2023-24).”
4. Perusal of Clause 2.4.2 of Section 3 reveals
that every bidder is required to give details of at least
one contract of similar nature that was started and has
been substantially or successfully completed within the
last five years. It further indicates that every bidder is
required to have executed works worth Rs. 137.25 lacs
in any one financial year within last five years.
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5. Section 4 of the bidding document contains
the format in which information under various heads is
to be supplied by a bidder. Form Exp-2 of Section 4
provides a format in which specific construction
experience has to be submitted. For ready reference,
Form Exp-2 is reproduced below:-
Form EXP-2; Specific Construction Experience
Fill up one (1) form per contract.
Contract of Similar Size and Nature
Contract No…..of…… Contract Identification
Award Date Completion
Date
Role in Contract
Contractor Subcontractor
Total Contract Amount INR
If partner in a JV or
subcontractor, specify
participation of total contract
amount
Percent Total
Amount
Employer’s Name
Address
Telephone/Fax Number
Description of the similarity in accordance with Criteria 2.4.2 of Section 3
Physical-Experience
Sl No. Major Components Unit Quantity Executed
1 CC/RCC Cum
2. Steel Work M.T.
3. Masonry work Cum
4. Flooring/Clading work Sqm
Financial-Experience
Sl. No Financial Year Amount (in Lacs)
1 2019-20
2 2020-21
3 2021-22
4 2022-23
5 2023-24
6. 2024-25 (Current Financial Year upto 21/01/2025)
Attached copies of certificates of accreditation for the project listed above.
6. The experience certificate submitted by
petitioner with his technical bid is enclosed at page 421
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of the writ petition, which was issued by Kumaon
Mandal Vikas Nigam Ltd. on 17.02.2025. Perusal of the
certificate reveals that petitioner was awarded contract
for construction of Yodha Bhawan, Ma Barahi Temple at
Devidhura; the date of commencement of the said work
was 11.09.2017 and contract period was nine months
and contract price as per agreement was
Rs.1,22,30,291.91/- and the revised contract price was
Rs.4,40,42,215/-. The break-up of the value of work
done by petitioner under the said contract in different
financial year, is given below in tabular format:-
Sl. No. Financial Year Amount (Rs.)
1. 2018-19 1,44,79,804.00
2. 2019-20 1,98,73,003.00
3. 2020-21 96,89,408.00
7. Learned State Counsel submits that as per
Clause 2.4.2 of Section 3 of the bidding document,
every bidder is required to have executed work worth
Rs.137.25 lacs (inclusive of escalation) in any financial
year within the last five financial years, however,
petitioner does not meet the said condition as per the
certificate submitted by him with his technical bid.
Learned State Counsel further submits that as per
Clause 2.4.2 of Section 3 of the bidding document,
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every bidder is required to have completed at least one
contract that was started and was completed within last
five years, while as per the experience certificate
produced by petitioner, work of construction of Yodha
Bhwan, Ma Barahi Temple at Devidhura commenced on
11.09.2017 that is much before the five years period,
as required by Clause 2.4.2. Learned State Counsel
further submits that even the experience certificate
submitted by petitioner was not in the prescribed
format i.e. Form Exp-2, but it was in the shape of a
letter issued by General Manager, Kumaon Mandal
Vikas Nigam, therefore, the employer had no other
option, but to reject petitioner’s technical bid for non-
compliance of the relevant clauses of the bidding
document.
8. Learned State Counsel further submits that
against rejection of his technical bid, petitioner made a
representation, which was also decided by reasoned
order. Decision taken by three member technical
evaluation committee on 05.04.2025 is on record as
Annexure-5 to the writ petition. The reason assigned
for declaring petitioner’s bid as non-responsive is that
as per the experience certificate submitted by
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petitioner with his bid, the date of commencement of
the work of construction of Yodha Bhawan at Ma Barahi
Temple, Devidhura is not within last five years, as
required by the Clause 2.4.2.
9. We find substance in the contention raised by
learned State Counsel. Admittedly, the experience
certificate submitted by petitioner with his technical bid
is not in the prescribed proforma. The experience
certificate submitted by petitioner reveals that date of
commencement of work at Ma Barahi Temple,
Devidhura was not within the last five years, but was
much earlier. Thus, the decision taken by the technical
evaluation committee of rejecting petitioner’s technical
bid cannot be faulted. A bid, which is not supported by
necessary documents as per conditions of the bid
document, is liable to be declared as non-responsive.
The experience certificate submitted by petitioner was
not as per the conditions of the bid document and
experience claimed by petitioner was not within last
five years. Moreover, the certificate was not submitted
in the prescribed format, therefore, the technical
evaluation committee was justified in declaring
petitioner’s bid as non-responsive.
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10. Law is well settled that in tender matters,
scope of judicial review is very limited and the
interpretation to the conditions of bidding document, as
given by employer/project proponent has to be
respected. In the present case, the employer has found
the technical bid of petitioner as non-responsive due to
certain defects in his experience certificate, therefore,
there is hardly any scope for interference in the view
taken by Technical Evaluation Committee.
11. Hon’ble Supreme Court, in the case of Afcons
Infrastructure Limited v. Nagpur Metro Rail Corporation
Ltd., reported in (2016) 16 SCC 818 , has held as
under:-
“ 13. In other words, a mere disagreement with the decision-
making process or the decision of the administrative authority is
no reason for a constitutional court to interfere. The threshold
of mala fides, intention to favour someone or arbitrariness,
irrationality or perversity must be met before the constitutional
court interferes with the decision-making process or the
decision.”
12. In Afcons Infrastructure Limited (supra), it
was further held that the owner or employer of a
project, having authored the tender documents, is the
best person to understand and appreciate its
requirements and interpret its documents.
Constitutional Courts must defer to his understanding
and appreciation of the tender documents, unless there
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is mala fide or perversity in the understanding or
appreciation or in the application of the terms of the
tender conditions. It is possible that the owner or
employer of a project may give an interpretation to the
tender documents, which is not acceptable to the
Constitutional Courts, but that by itself is not a reason
for interfering with the interpretation given.
13. In Raunaq International Ltd vs I.V.R.
Construction Ltd. And Ors reported as (1999) 1 SCC
492, Hon’ble Supreme Court held as under:-
“ 11. When a writ petition is filed in the High Court challenging
the award of a contract by a public authority or the State, the
court must be satisfied that there is some element of public
interest involved in entertaining such a petition. If, for example,
the dispute is purely between two tenderers, the court must be
very careful to see if there is any element of public interest
involved in the litigation. A mere difference in the prices offered
by the two tenderers may or may not be decisive in deciding
whether any public interest is involved in intervening in such a
commercial transaction. It is important to bear in mind that by
court intervention, the proposed project may be considerably
delayed thus escalating the cost far more than any saving which
the court would ultimately effect in public money by deciding
the dispute in favour of one tenderer or the other tenderer.
Therefore, unless the court is satisfied that there is a
substantial amount of public interest, or the transaction is
entered into mala fide, the court should not intervene under
Article 226 in disputes between two rival tenderers.
12. …..
13. Hence before entertaining a writ petition and passing any
interim orders in such petitions, the court must carefully weigh
conflicting public interests. Only when it comes to a conclusion
that there is an overwhelming public interest in entertaining the
petition, the court should intervene.
14. Where there is an allegation of mala fides or an
allegation that the contract has been entered into for collateral
purposes and the court is satisfied on the material before it that
the allegation needs further examination, the court would be
entitled to entertain the petition. But even here, the court must
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weigh the consequences in balance before granting interim
orders.
15. Where the decision-making process has been structured
and the tender conditions set out the requirements, the court is
entitled to examine whether these requirements have been
considered. However, if any relaxation is granted for bona fide
reasons, the tender conditions permit such relaxation and the
decision is arrived at for legitimate reasons after a fair
consideration of all offers, the court should hesitate to
intervene.”
14. In the case of Air India Ltd. v. Cochin
International Airport Ltd. and others, reported as
(2000) 2 SCC 617 , Hon’ble Supreme Court has held as
under:-
“ 7. The law relating to award of a contract by the State, its
corporations and bodies acting as instrumentalities and
agencies of the Government has been settled by the decision of
this Court in Ramana Dayaram Shetty v. International Airport
Authority of India [(1979) 3 SCC 489] , Fertilizer Corpn.
Kamgar Union (Regd.) v. Union of India [(1981) 1 SCC 568] ,
CCE v. Dunlop India Ltd. [(1985) 1 SCC 260 : 1985 SCC (Tax)
75] , Tata Cellular v. Union of India [(1994) 6 SCC 651] ,
Ramniklal N. Bhutta v. State of Maharashtra [(1997) 1 SCC
134] and Raunaq International Ltd. v. I.V.R. Construction Ltd.
[(1999) 1 SCC 492] The award of a contract, whether it is by a
private party or by a public body or the State, is essentially a
commercial transaction. In arriving at a commercial decision
considerations which are paramount are commercial
considerations. The State can choose its own method to arrive
at a decision. It can fix its own terms of invitation to tender and
that is not open to judicial scrutiny. It can enter into
negotiations before finally deciding to accept one of the offers
made to it. Price need not always be the sole criterion for
awarding a contract. It is free to grant any relaxation, for bona
fide reasons, if the tender conditions permit such a relaxation.
It may not accept the offer even though it happens to be the
highest or the lowest. But the State, its corporations,
instrumentalities and agencies are bound to adhere to the
norms, standards and procedures laid down by them and
cannot depart from them arbitrarily. Though that 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. The State, its
corporations, instrumentalities and agencies have the public
duty to be fair to all concerned. Even when some defect is
found in the decision-making process the court must exercise
its discretionary power under Article 226 with great caution and
should exercise it only in furtherance of public interest and not
merely on the making out of a legal point. The court should
always keep the larger public interest in mind in order to decide
whether its intervention is called for or not. Only when it comes
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to a conclusion that overwhelming public interest requires
interference, the court should intervene.”
15. Hon’ble Supreme Court in the case of M/s
N.G. Projects Ltd. vs. Vinod Kumar Jain & others ,
reported as (2022) 6 SCC 127 has held that the
constitutional Courts should refrain from interfering
with tender process for infrastructure projects, as
interference in such matters stalls projects of national
importance and results in cost overrun. Paragraph nos.
21 to 23 of the said judgment are extracted below:-
21. Since the construction of road is an infrastructure project
and keeping in view the intent of the legislature that
infrastructure projects should not be stayed, the High Court
would have been well advised to hold its hand to stay the
construction of the infrastructure project. Such provision should
be kept in view even by the writ court while exercising its
jurisdiction under Article 226 of the Constitution of India.
22. The satisfaction whether a bidder satisfies the tender
condition is primarily upon the authority inviting the bids. Such
authority is aware of expectations from the tenderers while
evaluating the consequences of non-performance. In the tender
in question, there were 15 bidders. Bids of 13 tenderers were
found to be unresponsive i.e. not satisfying the tender
conditions. The writ petitioner was one of them. It is not the
case of the writ petitioner that action of the Technical
Evaluation Committee was actuated by extraneous
considerations or was mala fide. Therefore, on the same set of
facts, different conclusions can be arrived at in a bona fide
manner by the Technical Evaluation Committee. Since the view
of the Technical Evaluation Committee was not to the liking of
the writ petitioner, such decision does not warrant for
interference in a grant of contract to a successful bidder.
23. In view of the above judgments of this Court, the writ court
should refrain itself from imposing its decision over the decision
of the employer as to whether or not to accept the bid of a
tenderer. The Court does not have the expertise to examine the
terms and conditions of the present day economic activities of
the State and this limitation should be kept in view. Courts
should be even more reluctant in interfering with contracts
involving technical issues as there is a requirement of the
necessary expertise to adjudicate upon such issues. The
approach of the Court should be not to find fault with
magnifying glass in its hands, rather the Court should examine
as to whether the decision-making process is after complying
with the procedure contemplated by the tender conditions. If
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the Court finds that there is total arbitrariness or that the
tender has been granted in a mala fide manner, still the Court
should refrain from interfering in the grant of tender but instead
relegate the parties to seek damages for the wrongful exclusion
rather than to injunct the execution of the contract. The
injunction or interference in the tender leads to additional costs
on the State and is also against public interest. Therefore, the
State and its citizens suffer twice, firstly by paying escalation
costs and secondly, by being deprived of the infrastructure for
”
which the present day Governments are expected to work.
16. 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 held as follows:-
“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
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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 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:
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(i) Whether the process adopted or decision made by the
authority is mala fide or intended to favour someone; or
whether the process adopted or decision made is so arbitrary
and irrational that the court can say: “the decision is such that
no responsible authority acting reasonably and in accordance
with relevant law could have reached”? 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.”
17. For the aforesaid reasons, this Court do not
find any scope for interference in the matter.
18. Accordingly, writ petition fails and is
dismissed.
19. Interim order dated 23.04.2025 stands
vacated.
__________________________________
MANOJ KUMAR TIWARI, A.C.J.
_________________________________
SUBHASH UPADHYAY, J.
Dt: 28.10.2026
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