Utimaco Technologies Pvt Ltd. vs Union Of India & Ors.
- Court
- Delhi High Court
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Judgment pronounced on: 31.08.2026
# CNR No.DLHC010753462024
+
W.P.(C) 15291/2024 and CM APPL.30135/2026
UTIMACO TECHNOLOGIES PVT LTD. ..... Petitioner
Through: Mr. Amit Sibal, Sr. Adv., Mr. Dheeraj
P. Deo, Mr. Darpan Sachdeva and
Mr. Ankit Handa, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Chetan Sharma, ASG, Ms. Nidhi
Raman, CGSC, Mr. Amit Gupta, Mr.
Akash Mishra, Mr. Arnav Mittal, Mr.
R.V. Prabhat Sharma, Mr.
Yashwardhan and Mr. Sharma
Naman, Advs. along with Ms. Sabina
Shahid, Sr. Consultant (Legal) for
R-1/UOI.
Mr. Udit Seth and Ms. Akshita Gupta,
Advs. for R-4.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
JUDGMENT
1. The present petition has been filed by the petitioner assailing the
Office Memorandum (OM) dated 01.10.2024 bearing File No.47-16/2020-
DM-III (Part)-1228-1235, issued by the respondent no.1/ UOI. The said
Office Memorandum encloses the minutes of the meeting dated 19.09.2024
convened under the chairmanship of the Union Home Secretary, wherein
deliberations were held regarding the implementation of Cell Broadcasting
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under the Common Alerting Protocol (CAP) based Integrated Alert System
named “Sachet”.
2. The petitioner (formerly known as M/s Celltick), is a company
engaged as the provider of Cell Broadcast based products and services. The
grievance of the petitioner arises from the appointment of respondent no.4/
Centre for Development of Telematics (C-DOT) as the sole implementing
agency for the Cell Broadcasting Solutions (CB solution), as reflected in the
minutes of the meeting dated 19.09.2024 enclosed with the aforesaid OM
dated 01.10.2024. The OM dated 01.10.2024, inter alia , records as under:
“6. After detailed discussions and based on the
assurance given by CEO, C-DOT, it was agreed in-
principle to assign a nationwide single implementation of
CAP to C-DOT.”
FACTUAL BACKGROUND
3. The factual matrix, set forth by the petitioner, is that in tune with the
global standards of emergency alerting for timely dissemination of critical
information, the respondent no.3 / National Disaster Management Authority
(NDMA), promulgated a nationwide project under the Disaster Management
Act, 2005, named Common Alerting Protocol Based Integrated Alert
System (Sachet). The objective of the project was to integrate Alert
Generating Agencies (such as the Indian Metrological Department, CWC,
INCOIS, DGRE, FSI), Alert Disseminating Agencies (including Telecom
Service Providers, Radio, Cable TV, Social media, Indian Railways, Coastal
Sirens, GAGAN & NavIC) and Disaster Management Authorities (SDMAs)
on a common alert platform. A Memorandum of Understanding was
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executed between the NDMA and C-DOT on 16.01.2020 for the pilot
project.
4. In the first phase of the said project, NDMA, in collaboration with
respondent no. 4 / C-DOT, initiated alert dissemination through SMS based
communication. Respondent no.2/ Department of Telecommunications
(DoT) was designated as the facilitator and coordinator between NDMA and
Telecom Service Providers (TSPs).
5. NDMA, however, found the SMS-based alert service implemented
by C-DOT to be inadequate, and unsuitable of catering to simultaneous
alerts within short timeframes. Consequently, NDMA proposed the adoption
of Cell Broadcasting services, in addition to SMS based messaging, to meet
the enhanced requirement for instant alert dissemination. This led to the
initiation of Phase-II of the CAP-based Integrated Alert System (Sachet),
focusing on Cell Broadcasting.
6. On 31.05.2022, a meeting was convened under the chairmanship of
DoT, to deliberate upon issues related to CAP-based Integrated Alert
System. The minutes of the said meeting, recorded, inter alia, that Telecom
Service Providers, BSNL and MTNL were already in the process of
implementing Cell Broadcasting, while M/s Bharti Airtel (hereinafter
“ Airtel ”) and Vodafone-Idea were supporting implementation through the
AP-Alert Project awarded to the petitioner. Reliance Jio expressed
preference for the C-DOT solution. The Secretary (Telecom) opined that
TSPs were free to adopt any solution, and directed them to implement Cell
Broadcasting and keep DoT informed. The relevant extracts of the minutes
of the said meeting dated 31.05.2022 are as under:
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7. The petitioner demonstrated its Cell Broadcasting capability to DOT
and NDMA on several occasions and was thereafter identified as an integral
part of the National Cell Broadcasting Service. Pursuant to requisitions from
DoT and NDMA, the petitioner conducted a series of trials between July
2018 and April 2022 with Telecom Service Providers, alongside C-DOT,
under the supervision of DoT and NDMA. These trials, conducted at various
locations consistently yielded successful results. The details of the same,
enclosed as Annexure P6 to the present petition are as under:
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8. On 24.05.2023, respondent no.4/ C-DOT, addressed a letter to
respondent no.2/ DOT, regarding the progress of CAP-based Cell
Broadcasting. Referring to a meeting held on 22.05.2023, C-DOT noted that
both Airtel and Vodafone-Idea had informed DoT of their decision to engage
the petitioner as their implementation partner, and that successful proof of
concept trials had been conducted in Andhra Pradesh and Karnataka. C-DOT
acknowledged that the choice of implementation partner was a time-
consuming factor and opined that such selection should rest with the
Telecom Service Providers, since implementation of Cell Broadcasting
necessarily required their consent to avoid disruption of services.
9. At a meeting held on 09.07.2023, DOT reiterated the need for a pan-
India solution by 01.11.2023. Both Vodafone-Idea and Bharti Airtel
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reaffirmed their decision to proceed with their existing technology partner,
the petitioner. In the said meeting, NDMA highlighted deficiencies in the
proposal submitted by C-DOT and rejected its solution. Subsequently, in a
meeting held on 21.07.2023, DOT reiterated that the choice of cell broadcast
implementation partner lay with the respective Telecom Service Providers.
10. Thereafter, Airtel and Vodafone-Idea submitted letters of support
dated 24.08.2023 and 17.08.2023 respectively, confirming their readiness to
implement the nationwide Cell Broadcasting project using the petitioner’s
system and requesting funding for the same. The said letters of support are
enclosed as Annexure P10(Colly) to the present petition.
11. A review meeting was held on 21.08.2023, involving the respondents
and the Telecom Service Providers, to deliberate upon the issues pertaining
to implementation of Cell Broadcasting (CB). During the said meeting, DoT
was directed to take into account the inputs of the petitioner for finalizing the
testing process. The records of the said meeting (F.No.15-2/2021-DM, dated
28.08.2023) record that the Telecom Service Providers operating on the
petitioner’s platform reported dissemination times of 3-4 seconds, whereas
C-DOT’s solution, tested with Jio, BSNL, and MTNL, was significantly
slower, taking 10-40 seconds.
12. On 26.09.2023, a nationwide implementation review meeting was
chaired by DoT, with NDMA, C-DOT, Telecom Service Providers, and the
petitioner in attendance. The meeting focused on finalizing implementation
plans for Cell Broadcasting services across all Telecom Service Providers,
with emphasis on meeting the 01.11.2023 deadline. DoT requested both the
petitioner and C-DOT to coordinate testing schedules to ensure smooth and
timely execution.
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13. Between 14.10.2022 and 31.10.2023, the petitioner conducted over 50
successful trials under the supervision of DoT and NDMA. Airtel and
Vodafone-Idea affirmed the success of these trials, acknowledging that all
tests proposed by DoT and NDMA had been completed prior to the
01.11.2023 implementation deadline.
14. On 14.12.2023, the inter-departmental committee constituted by the
DOT, comprising personnel from DoT and NDMA to address funding
requirements for Cell Broadcasting solutions across Telecom Service
Providers, submitted its report, recommending a two-party Cell Broadcasting
mechanism for dissemination of critical alerts. The committee fixed a per-
user cost payable to Telecom Service Providers, who would in turn pay the
CB solution provider. In April, 2024, DoT forwarded the committee’s
recommendations to NDMA for further action and release of funds to
Telecom Service Providers.
15. On 20.05.2024, NDMA declined to issue a completion certificate
sought by C-DOT, stating that integration testing conducted with BSNL,
MTNL, and Reliance Jio could not be deemed implementation of the CB
Alert System. NDMA cited inconsistent test results, incomplete integration
with 2G/3G subscribers, and lack of essential operational parameters such as
security and redundancy. The said communication dated 20.05.2024 reads as
under:
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16. On 27.05.2024, NDMA addressed a letter bearing
No.17/01/2021/CAP/DOT/CIT (112569) to respondent no.1/ MHA, seeking
final release of funds noting that the Inter-Ministerial Committee’s report had
been approved by the Union of India. It recorded that DoT had recommended
implementation of CB by two agencies: the petitioner for Airtel and
Vodafone-Idea, and C-DOT for BSNL and Jio.
17. On 21.06.2024, NDMA convened a meeting to resolve outstanding
issues in CAP implementation. NDMA reiterated concerns regarding the
quality of C-DOT’s services, and recommended that Telecom Service
Providers finalize agreements with CB solution providers for speedy
implementation while budgetary allocations were being finalized.
18. On 04.07.2024, a meeting chaired by respondent no.1/MHA was held
with representatives of DoT, NDMA, and C-DOT. In the said meeting
respondent no.1 stated that it had received a financial proposal from DOT,
under which Cell Broadcast with 2 Telecom Service Providers would be
implemented by the Petitioner while C-DOT would be implementing Cell
Broadcast for the other Telecom Service Providers. However, DoT suggested
adoption of a single implementing agency, namely C-DOT, for nationwide
implementation, citing ease of management and lower costs. This was made
conditional upon the willingness of Airtel and Vodafone-Idea to work
exclusively with C-DOT and the meeting concluded on the note that DOT
would seek the approval of TSPs to engage C-DOT as the single and
exclusive implementing agency. On 30.07.2024, DoT issued a
communication to Telecom Service Providers, including those already
working with the petitioner, requesting implementation of C-DOT’s full-
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fledged CB solution across all networks. The said communication is as
under:
19. The TSPs filed detailed responses to the aforesaid communication
dated 30.07.2024. Airtel, by email dated 14.08.2024, confirmed successful
integration of the petitioner’s solution with approximately 1600 base
stations, and reiterated its preference to continue with the petitioner,
cautioning that any change of partner would cause significant delays. The
letter dated 14.08.2024 addressed by M/s Bharti Airtel to the C-DOT is as
under:
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20. Vodafone-Idea, by letter dated 16.08.2024, reiterated its choice of the
petitioner as implementation partner, highlighting successful circle-wise
testing and readiness by November 2023. It cautioned that introduction of C-
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DOT at this stage would delay the project by 12–15 months. The letter dated
16.08.2024 is as under:
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21. NDMA issued a letter dated 08.08.2024 to the respondent no.1/MHA,
referring to the meeting held on 04.07.2024 and pointing out that
implementation of the Cell Broadcasting System had already been
undertaken by C-DOT and the petitioner. NDMA further stated that the
project in its entirety, along with financial implications, was ready to be
sanctioned and that details had been forwarded to the MHA on 27.05.2024.
In the said communication, NDMA categorically noted delays and
shortcomings in C-DOT’s Cell Broadcast solution. It recommended that
research and development (R&D) was not required for implementation, as
the solution was commercially available off the shelf, and suggested that a
tender process be considered. NDMA reiterated its recommendation for an
open tender in its subsequent letter dated 05.09.2024, suggesting adoption of
a multi-vendor solution for Phase-II of the Sachet project.
22. NDMA categorically stated that, as recommended by DoT,
implementation was to be carried out by two agencies. The choice of
implementing partner had been decided by the Telecom Service Providers
and approved by DoT. NDMA also submitted a detailed objective analysis
of the capabilities and performance of C-DOT vis-à-vis the petitioner,
unequivocally stating that DoT’s altered approach was at complete variance
with its earlier stance, which had been acceptable to all stakeholders, and
had resulted in inordinate delay. NDMA emphasized that Airtel and
Vodafone-Idea together accounted for more than 50% of the subscriber base
nationwide, and that testing C-DOT’s solution across all their circles would
take considerable time, thereby depriving citizens of a vital early warning
mechanism. Consequently, NDMA strongly recommended that the current
proposal be revisited, either by reverting to the two-vendor solution or by
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adopting an open tendering process. The letter dated 08.08.2024, annexed as
Annexure P-25 to the present petition, is as under:
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23. Vide letter dated 05.09.2024, NDMA informed MHA that none of the
Telecom Service Providers had given express consent to adopt C-DOT’s
solution. NDMA further recorded that Airtel and Vodafone-Idea had
engaged the petitioner pursuant to DoT’s directions, and that after extensive
pan-India integration trials spanning nearly 18 months, their networks were
ready to provide Cell Broadcast services on the petitioner’s platform. The
communication dated 05.09.2024 is as under:
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24. Thereafter, respondent no.1/ MHA, convened another meeting on
19.09.2024. In this meeting, the decision taken on 04.07.2024 was
reiterated, and it was stated that the meeting was called to finalize the
pathway from proof of concept to a commercial-grade solution, including
scope, implementation, and project timelines. It was allegedly stated by
Respondent No.4, C-DOT, that its equipment and hardware (servers) had
already been installed with Airtel and Vodafone-Idea. Respondent No.3,
NDMA, however, raised concerns regarding the timelines specified by C-
DOT, which sought a period of 12 months for deployment. Despite prior
deficiencies in C-DOT’s solution, it was allegedly decided that C-DOT
would be granted nationwide single implementation of the CAP-based Cell
Broadcasting project.
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25. It is in the aforesaid background that the present petition has been
filed.
SUBMISSIONS ON BEHALF OF THE PETITIONER
26. It is the case of the petitioner that the impugned decision of
respondent nos. 1 and 2, that is, appointment of respondent no.4/ C-DoT as
the sole implementing agency for the Cell Broadcasting System (CBS), is
vitiated by lack of authority, in breach of the Disaster Management Act,
2005, non-compliance with the General Financial Rules, 2017 (GFR),
absence of contemporaneous justification for bypassing open tender,
disregard of technical evaluation, and breach of legitimate expectation and
public trust.
27. It is submitted that respondent no.3/ NDMA is the statutory nodal
authority for CBS implementation under the Disaster Management Act,
2005, including the selection of the implementing agency. NDMA, vide
letters dated 08.08.2024 and 05.09.2024 categorically flagged shortcomings
in C-DOT’s solution and recommended either adoption of a two-vendor
model or an open tender process. Despite NDMA’s statutory authority and
repeated objections and recommendations, those views were disregarded by
respondent nos.1 and 2 in appointment of C-DOT as the sole implementing
agency.
28. The petitioner contends that Rule 194 of GFR, 2017, (which deals
with procurement procedures for “consultancy services”) is inapplicable to
the present matter. It is submitted that the CBS constitutes a “non-
consultancy service” and therefore Rule 204 of GFR, 2017, governs
procurement in the present matter. It is submitted that Rule 204 permits
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procurement by nomination only in exceptional circumstances and requires
detailed contemporaneous justification to be an integral part of the proposal.
29. The petitioner asserts that the respondents have failed to comply with
the mandatory requirements of Rule 204. There is no contemporaneous
record demonstrating proper justification for bypassing the tender process.
The justifications advanced belatedly in these proceedings, viz. “natural
continuation,” “urgency,” or “national security,” do not satisfy the
requirements of Rule 204 and cannot validate the arbitrary appointment of
C-DOT as the sole implementing agency.
30. Learned counsel for the petitioner further submits that the
respondents’ reliance on “national security” and “indigenous technology” is
ex facie unsustainable, as the said grounds do not find mention in the
impugned decision and were raised only subsequently in affidavit/s filed
before this Court, amounting to post facto rationalisations.
31. The petitioner points out that CAP Phase-I SMS alerts continue to
operate through foreign vendors, a substantial proportion of Telecom
Service Provider equipment is sourced from non-Indian vendors, and
operational control over CBS remains with NDMA and the Department of
Telecommunications (DoT). It is submitted that if security and
indigenisation were genuine and decisive concerns, they ought to have been
incorporated as conditions in a transparent tender process. The petitioner, an
indigenous Category-1 Make in India Company, already compliant and
integrated with major TSPs, offered comprehensive transfer-of-technology,
and it is submitted that this thereby met any such requirement.
32. It is submitted that C-DOT’s techno-commercial proposal and
technical bid did not comply with the requirements of the Request for
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Proposal (RFP) dated 07.10.2024. The petitioner relies upon the report of the
Technical Evaluation Committee (TEC) dated 27.11.2024, which expressly
rejected C-DOT’s proposal as non-compliant with essential and inescapable
requirements. It is contended that no fresh evaluation was undertaken after
C-DOT submitted a revised proposal on 28.12.2024 and the core
deficiencies persisted. The absence of re-evaluation, despite NDMA’s
insistence that the RFP criteria continued to apply, demonstrates that the
respondents acted in disregard of mandatory statutory and technical
safeguards.
33. It is contended that the departure from the constitutionally mandated
rule of open tender was effected without cogent justification. Judicial review
requires scrutiny of whether such departure is supported by
contemporaneous reasons consistent with Article 14 of the Constitution and
the GFR, 2017.
34. The petitioner submits that its platform is field-proven and has been
demonstrated successfully, and is already integrated with Airtel, Vodafone-
Idea and BSNL. The petitioner refers to letters from Airtel and Vodafone-
Idea dated 14.08.2024 and 16.08.2024, respectively, in which, the said TSPs
expressly preferred the petitioner and cautioned that replacing it with C-
DOT would cause delay and operational risk. The petitioner further states
that it has approximately 85 CBS deployments worldwide, has been selected
through open global tenders, and has successfully implemented CBS for
disaster alerts in Andhra Pradesh. It is thus submitted that the petitioner was
ready and capable of immediate implementation.
35. The petitioner submits that the impugned decision violates the
doctrines of promissory estoppel and legitimate expectation, inasmuch as the
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respondents had repeatedly assured that Telecom Service Providers would
retain autonomy to select their implementation partners, and relying upon
the said assurances, the petitioner undertook extensive trials and integration,
and achieved readiness by November 2023. The abrupt imposition of C-
DOT, despite the petitioner’s compliance and preparedness, constitutes
breach of fairness and legitimate expectation.
36. It is further submitted that the unilateral designation of C-DOT as the
sole implementing agency, while ignoring established guidelines, technical
assessments and NDMA’s statutory role, the impugned decision violates the
doctrine of public trust. The petitioner contends that the State, as a trustee of
public resources, is bound to act in good faith and protect public interest.
Public safety cannot be compromised for cost considerations or for
promotion of indigenous technology, particularly when NDMA itself has
found C-DOT’s solution deficient.
37. The petitioner draws attention to the steps taken by the respondents in
the aftermath of the present petition, including NDMA’s Memorandum of
Understanding with C-DOT dated 28.02.2025 and the proposed launch of
CBS. The petitioner submits that the same are also vitiated. Reference is
made to the order dated 10.03.2025, passed in the present proceedings,
which records that any agreement/award in favour of C-DOT shall be
subject to the outcome of the present petition.
38. In support of its submissions, the petitioner has placed reliance upon
the following:
a. Ramana Dayaram Shetty v. International Airport
Authority of India (1979) 3 SCC 489;
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b. Bansidhar Construction v. Bharat Coking Coal, (2024) 10
SCC 273;
c. Raunaq International Ltd. v. I.V.R. Construction Ltd. and
Others , (1999) 1 SCC 492;
d. Mohinder Singh Gill & Anr vs The Chief Election
Commissioner, New Delhi & Ors 1978 (1) SCC 405;
e. Indian Medicines Pharmaceutical Corporation v. Kerala
Ayurvedic Co-operative Society Limited, 2023 SCC OnLine
SC 5;
f. Noida Toll Bridge Company Ltd v. Federation of Noida
Residents Welfare Association, 2024 SCC OnLine SC 3831;
g. Global Rescue Foundation v. Union of India, 2019 SCC
OnLine Del 12244;
SUBMISSIONS ON BEHALF OF RESPONDENT NO(s). 1-3
39. At the outset, it is submitted that the challenge to the Office
Memorandum dated 01.10.2024 is misconceived and devoid of merit. The
said decision was premised upon the considerations of larger public interest,
the need for uniformity and the requirement of a coordinated nationwide
implementation of the Cell Broadcasting System (CBS) under the Common
Alerting Protocol (CAP) based Integrated Alert System “Sachet.”
40. It is submitted that the impugned decision to designate respondent no.
4/ C-DOT as the sole implementing agency for the nationwide CBS was
taken after due deliberation and in accordance with law. The said decision
was directed to ensure operational ease, cost efficiency, seamless integration
across all Telecom Service Providers, uniformity and coordinated nationwide
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implementation of a life-saving alerting mechanism. It is contended that a
single implementing agency was necessary to avoid fragmentation,
interoperability issues and delay in rollout. Multiplicity of vendors would
have undermined reliability and timeliness of alerts during disasters. The
adoption of a single agency was therefore a considered policy decision taken
in the larger interest of public safety.
41. It is further submitted that the decision followed structured inter-
ministerial deliberations chaired by the Union Home Secretary on
04.07.2024 and 19.09.2024, attended by the representatives of the Ministry
of Home Affairs (MHA), National Disaster Management Authority
(NDMA), Department of Telecommunications (DoT), and other
stakeholders. In the meeting dated 04.07.2024, it was discussed that a single
agency for the complete solution across all TSPs would be prudent, and DoT
was directed to seek willingness from all service providers. In the meeting
dated 19.09.2024 it was agreed in principle to assign nationwide
implementation of CAP to C-DOT, with NDMA to provide clear
requirements and C-DOT to submit a detailed proposal for approval.
42. Learned counsel for the respondents submits that pursuant to the
aforesaid meeting dated 19.09.2024, NDMA issued an RFP to C-DOT on
07.10.2024. Although the initial proposal was found unresponsive by the
Technical Evaluation Committee on 27.11.2024, C-DOT submitted a
revised proposal on 28.12.2024 incorporating NDMA’s observations. The
revised proposal, on 02.01.2025, was placed before the Appraisal
Committee chaired by the Head of Department, NDMA and was approved
with concurrence of the Financial Adviser and other evaluators. The
proposal was thereafter approved by the Sub-Committee of the National
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Executive Committee (SC-NEC) (chaired by the Union Home Secretary) on
23.01.2025 and sanctioned by the Hon’ble Union Home Minister on
19.02.2025 for an outlay of Rs. 99.82 crores, funded from the Preparedness
and Capacity Building window of the National Disaster Response Fund
(NDRF). The OM dated 19.02.2025 is as under:
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43. Attention is drawn to the letter dated 28.02.2025, addressed by the
NDMA to C-DOT, whereby, NDMA consented to proceed with the signing
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of MoU with respondent no.4/ C-DOT, as regards engagement of C-DOT as
the sole agency nationwide for CBS implementation. The said letter dated
28.02.2025 is as under:
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44. The aforesaid procedure culminated in an MoU dated 28.02.2025
between NDMA and C-DOT, consistent with CAP Phase-I, and the techno-
commercial proposal submitted by C-DOT was appraised by NDMA in the
context of the ‘Guidelines on Constitution and Administration of
Preparedness and Capacity Building Funding Window under the National
Disaster Response Fund (NDRF) and State Disaster Response Fund
(SDRF)’. The respondents assert that the appraisal, recommendation and
approval were carried out in accordance with the said guidelines.
45. It is submitted that single-source selection in the present case is
squarely covered by Rule 194 of the General Financial Rules, 2017, which
permits single-source selection in cases representing a natural continuation
of previous work or in situations where timely completion is critical, such
as natural disasters. CAP Phase-II is stated to be a continuation of CAP
Phase-I, which had been implemented by respondent no. 4 through the
“Sachet” platform. The appointment of respondent no. 4 is therefore
contended to be logical and permissible under the extant rules and statutory
provisions.
46. The respondents further submit that Rule 204 of the GFR, 2017
empowers the competent authority to procure services from a specifically
chosen contractor in consultation with the Financial Adviser upon recording
justification. The respondents assert that such justification was duly
recorded and approved at all requisite levels, including SC-NEC and the
Union Home Minister.
47. Reliance is placed upon the Disaster Management Act, 2005, which
empowers NDMA, NEC and the Central Government to take necessary
measures for disaster preparedness, continuity and response. Allocation of
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Business Rules, 1961, are relied upon to state that disaster management
falls within the domain of the Ministry of Home Affairs. It is submitted that
the decision to proceed with respondent no.4 was taken in exercise of
statutory and policy discretion and cannot be characterised as arbitrary.
48. It is emphasised that the impugned decision is a policy matter of
strategic and national importance within the sovereign domain of the Union.
Relying upon the principles laid down in Shri Sitaram Sugar Co. Ltd. v.
Union of India ; BALCO Employees’ Union v. Union of India ; Kirloskar
Ferrous Industries Ltd. v. Union of India, and Tata Cellular v. Union of
India; it is submitted that judicial review of policy decisions is limited and
that courts should not substitute their judgment for that of the executive in
matters of policy.
49. It is contended that the petitioner has no locus to assail the impugned
decision. It is submitted that the petitioner, a foreign entity, was engaged
only for proof-of-concept trials by two TSPs, namely Airtel and Vodafone-
Idea, under their private contractual arrangements. The petitioner was never
issued any Letter of Award, Letter of Intent or any commitment by the
respondents for full-scale deployment. It is further submitted that the
petitioner’s participation in meetings was limited to monitoring the progress
of the proof-of-concept and the same cannot be construed as recognition of
the petitioner as an implementation agency.
50. The respondents refute the petitioner’s reliance on the report of the
Inter-Departmental Committee (IDC). It is clarified that the IDC was
constituted to recommend funding modalities for Cell Broadcast
implementation and not to determine or allocate implementation
responsibilities. It is asserted that any suggestion that the IDC recommended
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a dual mechanism with the petitioner as implementer for certain TSPs, is to
misrepresent the mandate and findings of the IDC.
51. It is submitted that for effective nationwide implementation of CBS,
integration of the Cell Broadcast Entity with the national disaster
management platform and uniform deployment across all Telecom Service
Providers is imperative. It is further submitted that the solution developed by
respondent no. 4 is fully integrated with the “Sachet” platform and has
undergone extensive testing with Reliance Jio, BSNL, and MTNL, with
deployments for Airtel and Vodafone-Idea at an advanced stage.
52. The respondents emphasise that considerations of national security
and indigenisation were central to the impugned decision. C-DOT’s
platform is described as indigenous, integrated with SACHET, operational
across States and UTs, and having disseminated substantial SMS alerts since
2021. A unified implementation by respondent no. 4 ensures consistency,
interoperability, and disaster-readiness, and is aligned with the objectives of
the Atmanirbhar Bharat initiative promoting indigenous technology in
critical infrastructure.
53. It is also pointed out that C-DOT’s platform has been operationalised
across all States and UTs and has disseminated over 4100 Crore SMS alerts
during emergencies since 2021, demonstrating its effectiveness in severe
weather events, cyclones and other disasters.
54. The respondents therefore submit that the impugned decision to
appoint respondent no.4 as the sole implementing agency for CBS was bona
fide, taken in the public interest, in accordance with the applicable statutory
and financial rules and after due process and approvals; and that the petition
is liable to be dismissed as devoid of merit.
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SUBMISSIONS ON BEHALF OF RESPONDENT NO.4
55. Learned counsel for respondent no.4, Centre for Development of
Telematics (C-DOT), submits that its Cell Broadcast (CB) solution is
indigenously designed, fully functional, tested and deployed with BSNL,
MTNL and Reliance Jio.
56. It is submitted that C-DOT’s solution has been tested across 2G, 3G,
4G and 5G networks, and meets all technical parameters. The solution has
been certified by the Telecommunication Engineering Centre of the
Department of Telecommunications, which issued a Certificate of
Mandatory Conformance on 12.04.2024. The said certificate is enclosed as
Annexure 1 to the additional affidavit dated 25.03.2025 filed on behalf of
the respondent no. 4.
57. The CB solution developed by Respondent No.4 has been recognised
as a trusted tested product by the National Security Council Secretariat
(NSCS) for deployment in Indian telecom networks:
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58. It is submitted that Phase I and Phase II of the CAP-SACHET project
are distinct; Phase I covered SMS dissemination while Phase II introduced
Cell Broadcast. Phase II is a natural continuation of Phase I and was
entrusted to C-DOT pursuant to a Government-to-Government MoU dated
28.02.2025. It is further submitted that the project was completed within the
stipulated six-month period. The shortcomings identified during testing were
part of the normal testing process of a novel project; all bugs and
deficiencies have since been rectified. The solution has been deployed in
live disaster conditions, including Cyclone Montha and the Kumbh Mela,
demonstrating operational reliability.
59. The solution has been operationalised pan-India, with State Operation
Centres established for NDMA and all State Disaster Management
Authorities, and with training and standard operating procedures provided
for their operation. The platform integrates alert-generating agencies with
Telecom Service Providers through proprietary adapters to ensure secure
and efficient dissemination of disaster alerts.
60. It is submitted that the Department of Telecommunications
recommended adoption of a single vendor to facilitate better technical
supervision and consistent results. The Government’s policy of Atmanirbhar
Bharat and the objective of promoting an indigenous solution and
architecture were material considerations in the decision to designate
C-DOT. The decision to entrust C-DOT was taken by the Ministry of Home
Affairs in exercise of its sovereign authority, with public safety and national
interest as the guiding considerations.
61. It is emphasized that C-DOT’s CB solution has received
certifications relating to functionality, security and hosting from relevant
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Government agencies, thereby supporting the policy choice for a unified,
indigenous implementation.
62. Learned counsel for the respondent submits that interference with the
project at this stage would cause irreparable harm to public safety, national
preparedness and technological sovereignty.
ANALYSIS AND CONCLUSION
I. The nature of the project and the scope of the challenge
63. The present challenge is directed against the Office Memorandum
dated 01.10.2024, insofar as it records the in-principle decision to entrust
nationwide implementation of the Cell Broadcasting component of the CAP-
based Integrated Alert System (“Sachet”) to a single agency, i.e., respondent
no.4/ C-DOT.
64. At the threshold, it is necessary to bear in mind the nature of the
project. The Sachet project is not an ordinary commercial procurement; it is
a public-safety initiative directed towards rapid dissemination of emergency
alerts to citizens during disasters. The subject matter of the impugned
decision is thus intimately connected with disaster preparedness and the
protection of life. This aspect has a bearing on the scope of judicial review.
65. Four principal contentions have been made on behalf of the petitioner:
(i) that the impugned decision disregards the statutory primacy of NDMA
and its recorded objections; (ii) that the nomination of C-DOT falls foul of
the General Financial Rules, 2017, there being no contemporaneous
justification for bypassing an open tender; (iii) that the justifications now
offered, including “natural continuation”, “urgency” and “national security”,
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are impermissible post facto rationalisations hit by the principle enunciated
in Mohinder Singh Gill (supra); and (iv) that the impugned decision
breaches the petitioner’s legitimate expectation founded on the respondents’
repeated assurances that Telecom Service Providers would be free to choose
their implementation partners. These contentions have been dealt with
hereunder.
II. Absence of any enforceable right in the petitioner
66. The petitioner’s claim is founded, in substantial measure, upon inter-
departmental communications, minutes of review meetings, the
recommendations of the Inter-Departmental Committee, and letters of
support issued by two Telecom Service Providers. It is not in dispute that no
Letter of Award, Letter of Intent, or any concluded contractual commitment
was ever issued by the respondents in favour of the petitioner. The
petitioner’s engagement was under its arrangements with Airtel and
Vodafone-Idea for proof-of-concept trials; the trials were conducted
pursuant to requisitions from, and under the supervision of DoT and
NDMA.
67. It is well settled that recommendations and deliberations exchanged
between governmental authorities in the course of the decision-making
process do not, by themselves, confer any enforceable rights. In Mahadeo v.
Sovan Devi, (2023) 10 SCC 807, the Supreme Court reaffirmed the position
in the following terms:
“15. It is well settled that inter-departmental communications are
in the process of consideration for appropriate decision and
cannot be relied upon as a basis to claim any right. This Court
examined the said question in a judgment reported as Omkar
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Sinha v. Sahadat Khan [(2022) 12 SCC 228]. Reliance was placed
on Bachhittar Singh v. State of Punjab [1962 SCC OnLine SC 11 :
AIR 1963 SC 395] to hold that merely writing something on the
file does not amount to an order. Before something amounts to an
order of the State Government, two things are necessary. First, the
order has to be expressed in the name of the Governor as required
by clause (1) of Article 166 and second, it has to be
communicated…”
68. The various meetings and communications relied upon by the
petitioner, including the minutes dated 31.05.2022, 09.07.2023 and
21.07.2023, the IDC report dated 14.12.2023 and the NDMA
communications of August-September 2024, were all steps in an evolving
consultative process which had not attained finality.
69. As an entity which participated in the trials at the instance of the TSPs
and whose candidature was under active consideration in the consultative
process, the petitioner is entitled to invite scrutiny of the decision-making
process on recognised public law grounds. However, the absence of a vested
right severely narrows the scope of the present writ petition.
III. The disregard of NDMA’s recommendations and the alleged volte-
face
70. The petitioner has strongly emphasised that the considered objections
and recommendations of NDMA, conveyed vide communications dated
08.08.2024 and 05.09.2024 (wherein NDMA flagged shortcomings in C-
DOT’s solution and recommended either continuation of the multi-vendor
model or resort to an open tender), were disregarded by respondent nos. 1
and 2 while designating C-DOT as the sole implementing agency. It has also
been submitted that until mid-2024, the consistent trajectory of the process
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pointed towards a two-vendor implementation with the petitioner as partner
for Airtel and Vodafone-Idea. In this regard, reference has been made to the
minutes dated 31.05.2022 and 21.07.2023 recording TSP autonomy in the
choice of implementation partner, the meeting dated 09.07.2023 wherein
NDMA rejected C-DOT’s proposal, the IDC report dated 14.12.2023, and
NDMA’s communication dated 27.05.2024 recording the two-agency
recommendation. It appears that a contrary view was taken in the meeting
dated 04.07.2024.
71. The aforesaid contentions do not furnish a cogent ground for
interference. It is evident from a perusal of the record that NDMA’s views
were before the decision-making authority and were deliberated upon; the
minutes of the meetings dated 04.07.2024 and 19.09.2024 record NDMA’s
participation, including its concerns regarding the timelines proposed by C-
DOT.
72. Under the Government of India (Allocation of Business) Rules, 1961,
disaster management falls within the domain of the Ministry of Home
Affairs, and the ultimate decision on the architecture of a nationwide
alerting system vested in respondent no.1. A decision which considers and
consciously departs from a recommendation, for recorded reasons, cannot be
equated with a decision which ignores it. Significantly, NDMA’s own
subsequent conduct in issuing the RFP dated 07.10.2024, evaluation through
its Technical Evaluation Committee and Appraisal Committee, and
execution of the MoU dated 28.02.2025, demonstrates that NDMA
ultimately aligned itself with, and effectuated, the decision.
73. Also, a change of course by the decision making authorities, is not per
se a ground of judicial review. The administration is entitled to reassess its
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approach in the light of evolving circumstances. What the law frowns upon
is change that is unreasoned, covert, mala fide or discriminatory. In the
present case, the change was effected at a formally minuted inter-ministerial
meeting dated 04.07.2024. The same was made conditional upon the
willingness of Airtel and Vodafone-Idea; it was communicated to the TSPs
vide DoT’s letter dated 30.07.2024; the responses of the TSPs dated
14.08.2024 and 16.08.2024, as also NDMA’s contrary recommendations
dated 08.08.2024 and 05.09.2024 were received and the decision was
thereafter reiterated at the meeting dated 19.09.2024.
74. The fact that the outcome of the decision making process did not meet
with the expectations of the petitioner, has no bearing on the legality thereof.
The remit of judicial review extends to verifying that the change of course
was effected by the competent authority, upon deliberations, and for
discernible reasons, not to evaluating the soundness of the technical or
strategic logic underlying the choice of respondent no.4.
75. It would be wholly inappropriate, and beyond the province of this
Court in these proceedings, to sit in judgement as to the technical aspects of
the model ultimately adopted and / or as to whether a single-agency
architecture is, in technical or strategic terms, superior to a two-vendor
model.
IV. The applicable provision of the General Financial Rules, 2017
76. The petitioner contends that the engagement of C-DOT is
procurement of a “non-consulting service” governed by Rule 204; the
respondents invoke Rule 194 (single source selection of consultancy by
nomination), relying on clause (i) thereof. The same refers to “ tasks that
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represent a natural continuation of previous work carried out by the firm ”.
In the course of submissions, reliance was also placed on clause (iv) of Rule
194, as recorded in the order dated 11.11.2025 passed in these proceedings.
Rules 194 and 204 read as under:
“ Rule 194. Single Source Selection/Consultancy by nomination. —
The selection by direct negotiation/nomination, on the lines of Single
Tender mode of procurement of goods, is considered appropriate only
under exceptional circumstance such as:
(i) tasks that represent a natural continuation of previous work carried
out by the firm;
(ii) in case of an emergency situation, situations arising after natural
disasters, situations where timely completion of the assignment is of
utmost importance; and
(iii) situations where execution of the assignment may involve use of
proprietary techniques or only one consultant has requisite
expertise.
(iv) Under some special circumstances, it may become necessary to
select a particular consultant where adequate justification is
available for such single-source selection in the context of the
overall interest of the Ministry or Department. Full justification for
single source selection should be recorded in the file and approval
of the competent authority obtained before resorting to such single-
source selection.
(v) It shall ensure fairness and equity, and shall have a procedure in
place to ensure that the prices are reasonable and consistent with
market rates for tasks of a similar nature; and the required
consultancy services are not split into smaller sized procurement.”
xxx xxx xxx
“ Rule 204. Procurement of Non-consulting services by nomination. —
Should it become necessary, in an exceptional situation to procure a
non-consulting service from a specifically chosen contractor, the
Competent Authority in the Ministry or Department may do so in
consultation with the Financial Adviser. In such cases the detailed
justification, the circumstances leading to such procurement by choice
and the special interest or purpose it shall serve, shall form an integral
part of the proposal.”
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77. In the considered view of this Court, the deployment, integration and
operationalisation of a Cell Broadcasting system across telecom networks
partakes predominantly of the character of a non-consulting service; it
involves the supply, installation and running of a technological system
rather than the rendering of advice or professional counsel. The submission
of the petitioner that Rule 204, and not Rule 194, is the applicable provision,
therefore, merits acceptance. However, the acceptance of that submission
does not carry the petitioner’s case materially further, for the reasons which
follow.
78. Rule 204 itself contemplates procurement by nomination in an
“exceptional situation”, upon consultation with the Financial Adviser, with
the justification forming an integral part of the proposal. The record
discloses that each of these requirements stands substantially satisfied:
(i) The exceptionality of the situation finds reflection in the
minutes of the meetings dated 04.07.2024 and 19.09.2024 themselves,
which takes note of the ease of implementation and management that
would be occasioned by selecting a “single implementation agency”.
The minutes dated 19.09.2024 refer to the continuing nature of the
project with the proof- of-concept (POC) of Cell Broadcasting having
been tested in Phase-I and due for roll out in Phase-II.
It can hardly be disputed that the platform sought to be developed is
inherently a critical one being in the nature of a life-saving national
early-warning system. The same is stated to be in continuum with
Phase-I already implemented by C-DOT under the MoU dated
16.01.2020 ;
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(ii) The revised proposal submitted by the respondent no.4/ C-DOT
was placed before the Appraisal Committee on 02.01.2025, in the
attendance of the Financial Adviser. Upon consideration by the
Appraisal Committee, in the presence of the Financial Adviser, the
proposal was recommended for being placed before the Appropriate
Authority under MHA, that is, Sub-Committee of the National
Executive Committee (SC-NEC). According to the respondent nos. 1-
3, the decision enjoys the concurrence of the Financial Adviser,
inasmuch as a recommendation to place the proposal before SC-NEC
is, by the scheme of the governing rules, is a step that follows only
upon consideration and approval by the Appraisal Committee. The
minutes of the meeting held on 02.01.2025, enclosed in the OM dated
07.01.2025, record the said recommendation as under:
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(iii) The justification travelled with the proposal through the Appraisal
Committee, the SC-NEC and the sanction of the Union Home Minister dated
19.02.2025. The OM dated 19.02.2025 reads as under:
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79. Even if the respondents’ invocation of Rule 194 was incongruous, the
conditions which Rule 194 identifies as justifying nomination (natural
continuation of previous work, emergency and timely completion), are
conceptually identical to the “exceptional situation” contemplated by Rule
204. Thus, the essential discipline which Rule 204 contemplates, was
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observed in substance. There was recorded justification, financial
concurrence and approval of the competent authority. Phase-I (SMS
dissemination) and Phase-II (Cell Broadcasting) are components of a unified
alerting project; the implementation of Phase-I by C-DOT furnished
continuity of expertise, integration with the Sachet platform and installed
infrastructure which extended naturally into Phase-II.
80. At this juncture, it is apposite to advert to the order dated 11.11.2025
passed in these proceedings. During the course of rejoinder arguments, it
was strenuously contended on behalf of the petitioner that there was flagrant
disregard of the GFR, 2017 in engaging C-DOT as a ‘single source vendor’,
and that Rule 194 was ex-facie inapplicable. Taking note of the stand of the
respondents that the decision to proceed with C-DOT was based on Rule
194(iv), the concerned respondent/s were directed to file an affidavit clearly
stating whether the “full justification” for the single source selection was
duly recorded in the file and placed for approval of the Competent
Authority, and whether the approval of the Competent Authority was
accorded after specifically considering the provisions of Rule 194(iv) of the
GFR.
81. In the affidavit filed in compliance with the said order (affirmed on
05.12.2025) on behalf of respondent nos. 1 and 3, it has been candidly
acknowledged that Rule 194 was not explicitly cited or adverted to at the
stage of proposal submission and appraisal. However, the said affidavit
encloses the note sheet containing the justification placed before the
competent authority; the record further establishes the appraisal of the
revised proposal by the Appraisal Committee on 02.01.2025, its approval by
the SC-NEC on 23.01.2025, and the sanction accorded by the Union Home
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Minister on 19.02.2025. In these circumstances, the omission to cite the
specific enabling provision does not vitiate the decision. It is well settled
that an erroneous or absent reference to the source of power does not
invalidate the exercise thereof, so long as the power in fact exists and the
substantive conditions for its exercise stand fulfilled. What Rule 204 (as also
Rule 194) guards against is an unrecorded and unconsidered nomination,
and not a mere failure to recite the relevant rule.
82. In a situation where the substantive safeguards of Rule 204 have been
complied with, the decision cannot be said to be vitiated. Importantly,
judicial review in procurement matters does not proceed on the footing that
every procedural aberration is fatal; the enquiry is whether the decision is
mala fide , arbitrary or such that no reasonable authority could have arrived
at it. The Supreme Court in Tata Cellular v. Union of India (1994) 6 SCC
651 held as under:
“ 70. It cannot be denied that the principles of judicial review
would apply to the exercise of contractual powers by Government
bodies in order to prevent arbitrariness or favouritism. However,
it must be clearly stated that there are inherent limitations in
exercise of that power of judicial review. ………. There can be no
question of infringement of Article 14 if the Government tries to
get the best person or the best quotation. The right to choose
cannot be considered to be an arbitrary power. Of course, if the
said power is exercised for any collateral purpose the exercise of
that power will be struck down.
72. Lord Scarman in Nottinghamshire County Council v. Secretary
of State for the Environment [1986 AC 240, 251 : (1986) 1 All ER
199] proclaimed:
“ ‘Judicial review’ is a great weapon in the hands of the
judges; but the judges must observe the constitutional
limits set by our parliamentary system upon the exercise
of this beneficial power.”
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74. Judicial review is concerned with reviewing not the merits of
the decision in support of which the application for judicial review
is made, but the decision-making process itself.
77. The duty of the court is to confine itself to the question of
legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would
have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a particular
policy or particular decision taken in the fulfilment of that policy is
fair. It is only concerned with the manner in which those decisions
have been taken. The extent of the duty to act fairly will vary from
case to case. Shortly put, the grounds upon which an
administrative action is subject to control by judicial review can
be classified as under:
(i) Illegality : This means the decision-maker must understand
correctly the law that regulates his decision-making power
and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out
addition of further grounds in course of time. As a matter of fact,
in R. v. Secretary of State for the Home Department, ex Brind
[(1991) 1 AC 696] , Lord Diplock refers specifically to one
development, namely, the possible recognition of the principle of
proportionality. In all these cases the test to be adopted is that the
court should, “consider whether something has gone wrong of a
nature and degree which requires its intervention”.
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.
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(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.
(6) Quashing decisions may impose heavy administrative burden on the administration
and lead to increased and unbudgeted expenditure.
Based on these principles we will examine the facts of this case since they commend to us
as the correct principles.”
83. In Kirloskar Ferrous Industries Ltd. v. Union of India , (2025) 1
SCC 695, the Supreme Court, while emphasizing judicial restraint, held as
under:
“ 54. Judicial restraint is rooted in the understanding that courts
should respect the decisions made by the legislative and executive
branches, provided these decisions are legally sound and
constitutionally valid. By adhering to judicial restraint, courts
avoid overstepping their constitutional role and thereby prevent
potential conflicts with the executive and legislative branches. The
principle of separation of powers supports the idea that each
branch has a unique role, and mutual respect between these
branches is essential for the proper functioning of the Government.
The courts are to ensure that laws and policies do not infringe upon
citizens' rights or exceed the authority granted by law. However,
this role does not extend to evaluating whether a policy is “wise”
or whether a better one could be devised, and rather this process is
entrusted to the legislature and executive, which have the expertise
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to make these determinations.
55. The doctrine of judicial restraint, which is central to this
discussion, emphasises that courts should exercise caution and
avoid involvement in policy decisions, as these are complex
judgments that require a balancing of diverse and often competing
interests. Policies are crafted based on thorough analysis of social,
economic, and political factors, considerations beyond the court's
purview. The court is tasked with ensuring that policies do not
breach constitutional provisions or statutory limits; however, they
should not replace policy-makers' judgments with their own unless
absolutely necessary.
56. Policy decisions often require the expertise of professionals and
specialists in fields such as economics, public health, national
security, and environmental science. These domains involve
specialised knowledge that Judges, as generalists in legal matters,
may lack. For instance, in economic policy, the executive may
decide on trade tariffs or subsidies based on extensive data and
projections that aim to balance domestic industry support with
global trade commitments. The courts, lacking the same level of
economic expertise and without the authority to make trade-offs
among competing policy objectives, are typically not equipped to
second-guess these kinds of decisions.
57. While courts have the power of judicial review to ensure that
executive actions and legislative enactments comply with the
Constitution, this power is not absolute. Judicial review is meant to
act as a safeguard against actions that overstep legal boundaries or
infringe on fundamental rights, but it does not entail a
comprehensive re-evaluation of the policy's wisdom. The judicial
review of policy decisions is limited to assessing the legality of the
decision-making process rather than the substantive merits of the
policy itself. For example, if a government policy infringes on
fundamental rights or discriminates against a particular group, the
courts have a duty to strike down such policies. However, in the
absence of constitutional or legal violations, the courts should
respect the policy choices made by the executive or legislature.
58. The duty of the court in policy-related cases is primarily to
determine whether the policy falls within the scope of the authority
granted to the relevant body. If the policy decision is within the
executive's legal authority and has been made following proper
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procedures, the courts should defer to the expertise and discretion
of the policy-makers, even if the policy appears unwise or
imprudent. This restraint ensures that the courts do not impose its
own perspective on policy matters that are rightly the responsibility
of other branches.
59. Economic and social policies often involve significant
redistribution of resources, prioritisation of interests, and
balancing of public needs, which requires careful consideration by
those with specialised knowledge and broad perspectives. In the
realm of economic policy, for instance, questions regarding the
allocation of subsidies, fiscal deficits, or budget allocations are
best managed by the executive, which has access to economic data
and is accountable to the public for its financial management.
Judicial interference in such areas risks creating disruptions in the
economic balance that policy-makers are trying to achieve.
60. The courts should assume that policy-makers act in good faith
unless there is clear evidence to the contrary. As long as the policy
does not contravene the Constitution or violate statutory
provisions, it is not the role of the courts to question the wisdom or
fairness of such policy.”
84. Recently, in Pace Digitek (P) Ltd. v. BSNL, 2025 SCC OnLine Del
6344, the D ivision Bench of this Court held as under:
“ 72. Contrary to the aforesaid judgments relied upon by the
petitioners, the respondents including BSNL, have heavily relied
upon the judgment of the Hon'ble Supreme Court in Jagdish
Mandal (supra). In Jagdish Mandal (supra), the Hon'ble Supreme
Court after having considered the law laid down in Tata Cellular
v. Union of India, (1994) 6 SCC 651 and Raunaq International
Ltd. (supra) succinctly formulated two questions which it
mandated that every Constitutional Court while exercising the
power of judicial review under Article 226 of the Constitution must
consider and examine before interfering in a tender dispute. The
said questions are extracted hereunder:—
“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
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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
favoursomeone
;
OR
Whether the process adopted or decision made is
so arbitrary and irrational that the court can
say:“thedecision 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
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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.”
(emphasis supplied)
73. We find that Jagdish Mandal (supra) also refers to another
judgment of the Hon'ble Supreme Court in the case of Air India
Ltdv. Cochin International Airport Ltd., (2000) 2 SCC 617
wherein in para 7 it was held that, “…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 to a conclusion that
overwhelming public interest requires interference, the court
should intervene”
.
(emphasis supplied)
74. The aforesaid judgments relied upon by the respondents lay
down the law that a Constitutional Court may interfere to the
extent of examining the decision making process and has complete
jurisdiction to interfere provided such decision making process is
found to be vitiated by malafides, unreasonableness and
arbitrariness. It appears that the Hon'ble Supreme Court was
anxious to ensure and declare that while a State has complete
discretion while entering into contracts through public tenders, it
and its instrumentalities have a public duty and responsibility to
be fair to all concerned parties to such public tenders. Of course,
this is not to disregard that the primary objective of a Court is to
be acutely aware of the paramount public interest which may be
involved, while proposing to interfere or interdict a tender
process.
75. That said, this Court is acutely aware of the fact that no stay or
any interim order was passed during the pendency of the present
writ petition which resulted in the tender process being proceeded
with and declaration of certain bidders as L1 who also furnished
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PBGs. Further it appears that BSNL has disbursed advance money
to certain L1 bidders. Interfering with the tender at this stage and
that too having wide amplitude and of such huge amount may
create a rippling effect across the 16 packages involved in the
tender process. Moreover, the tender and the project it implements
is greatly significant and of paramount national importance and
interference at this stage may not be conducive to the nation itself
keeping in view that the whole nation and every village is being
united by OFC which would undoubtedly enhance communication
and connectivity and cannot be undermined. Furthermore, as
enunciated by the Hon'ble Supreme Court in Jagdish Mandal
(supra); Tata Cellular (supra); and Raunaq International (supra),
the Constitutional Courts ought to consider whether interference
in such matters would be in public interest and in the absence
whereof, even if there is an element of error, Courts would do well
not to interdict tender process. [See para : 72 and 73 above]. The
Hon'ble Supreme Court in R D Shetty (supra) also held that even
though there was reason to interfere in the dispute arising in that
case, yet, refrained from passing any order in favour of the
petitioners. Our interference would surely not serve any public
interest since there are a number of bidders who have been
declared as successful L-1 Bidders; many of them have already
been awarded contracts; furnished their PBGs to the extent of
more than Rs. 700 crores; and BSNL appears to have disbursed
advance money to the extent of more than Rs. 800 crores and some
respondents also claim to have commenced the works too. In
contradistinction, our interdiction would create a rippling effect
on all the 16 packages and have a nationwide impact on all those
bidders who may be otherwise successful on their own merits. It
may further cause an unending chaos and multiple litigations,
burdening the State unnecessarily. We have no doubt that it may
further delay and protract the implementation of the tender,
unnecessarily enhancing the project cost which is stated to be Rs.
65,000 crores as of now.
76. Thus, balancing the controversy, though there has been a
display of some error, we do not find any paramount public
interest that may impel this Court to interfere or interdict either
the tender process or the further award of contracts to the
successful L-1 bidders across any of the packages.
77. It is trite that exercise of jurisdiction under Article 226 of the
Constitution of India is discretionary and relief may not
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necessarily be granted in all cases. In particular, where public
interest would far outweigh private interests, then, even where
there is some infraction by the State, the Constitutional Courts
may refuse to grant relief. Even when some defect is found in the
decision-making process, the Court must exercise its discretionary
powers 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. [See : Air India Limited (supra) and followed
in Tata Motors Ltd. v. Brihan Mumbai Electric Supply &
Transport Undertaking, (2023) 19 SCC 1]. Applying the said
principle in the present case, though we find errors in action of the
BSNL, for the reasons and the conclusions drawn above in para 75
and 76, we are unable to grant any discretionary relief as sought
in the present writ petition. The petition is thus dismissed. Pending
applications, if any, too are disposed of.”
85. There can also be no cavil with the proposition that although public
contracts should ordinarily be awarded by open and transparent tender
process, the same admits of exceptions where the departure is for cogent
reasons germane to public interest. In the present case, reasons for the
departure exist and stand reflected in the record viz. the continuity of work;
the certified technical conformance of C-DOT’s platform (Certificate of
Mandatory Conformance dated 12.04.2024 issued by the
Telecommunication Engineering Centre, Department of
Telecommunications, Government of India, and recognition by the National
Security Council Secretariat); the stated imperative of uniform,
interoperable nationwide implementation of a disaster-alerting system; and
the layered approvals culminating in the sanction of the Union Home
Minister. Whether these reasons reflect the best technical or strategic course
is not for this Court to adjudge; it suffices that they are germane, recorded
and cannot be said to be tainted with mala fides . Importantly, the choice of a
Government-established society (respondent no4/ C-DOT) with an existing
government-to-government relationship, for a sovereign public-safety
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function, stands on a materially different footing from the grant of
commercial largesse to a private entity by nomination.
86. The proposition that the rule of open tender, though salutary, is not
inviolable, is settled by a long line of authorities. In Kasturi Lal Lakshmi
Reddy v. State of J&K , (1980) 4 SCC 1, it was held as under:
“22. ....... We have already discussed the terms of the impugned Order and it
is clear from what we have said that the impugned Order was unquestionable
and without doubt, in the interest of the State and even with a microscopic
examination we fail to see anything in it which could possibly incur the
reproach of being condemned as arbitrary or irrational. It is true that no
advertisements were issued by the State inviting tenders for award of tapping
contract in respect of these blazes or stating that tapping contract would be
given to any party who is prepared to put up a factory for manufacture of
rosin, turpentine oil and other derivatives within the State, but it must be
remembered that it was not a tapping contract simpliciter which was being
given by the State. The tapping contract was being given by way of allocation
of raw material for feeding the factory to be set up by the 2nd respondents.
The predominant purpose of the transaction was to ensure setting up of a
factory by the 2nd respondents as part of the process of industrialisation of
the State and since the 2nd respondents wanted assurance of a definite supply
of resin as a condition of putting up the factory, the State awarded the
tapping contract to the 2nd respondents for that purpose. If the State were
giving tapping contract simpliciter there can be no doubt that the State would
have to auction or invite tenders for securing the highest price, subject, of
course, to any other relevant overriding considerations of public weal or
interest, but in a case like this where the State is allocating resources such as
water, power, raw materials etc. for the purpose of encouraging setting up of
industries within the State, we do not think the State is bound to advertise and
tell the people that it wants a particular industry to be set up within the State
and invite those interested to come up with proposals for the purpose. The
State may choose to do so, if it thinks fit and in a given situation, it may even
turn out to be advantageous for the State to do so, but if any private party
comes before the State and offers to set up an industry, the State would not be
committing breach of any constitutional or legal obligation if it negotiates
with such party and agrees to provide resources and other facilities for the
purpose of setting up the industry. The State is not obliged to tell such party:
“Please wait I will first advertise, see whether any other offers are
forthcoming and then after considering all offers, decide whether I should let
you set up the industry.” It would be most unrealistic to insist on such a
procedure, particularly in an area like Jammu and Kashmir which on
account of historical, political and other reasons, is not yet industrially
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developed and where entrepreneurs have to be offered attractive terms in
order to persuade them to set up an industry. The State must be free in such a
case to negotiate with a private entrepreneur with a view to inducing him to
set up an industry within the State and if the State enters into a contract with
such entrepreneur for providing resources and other facilities for setting up
an industry, the contract cannot be assailed as invalid so long as the State
has acted bona fide, reasonably and in public interest. If the terms and
conditions of the contract or the surrounding circumstances show that the
State has acted mala fide or out of improper or corrupt motive or in order to
promote the private interests of someone at the cost of the State, the court will
undoubtedly interfere and strike down State action as arbitrary,
unreasonable or contrary to public interest. But so long as the State action is
bona fide and reasonable, the court will not interfere merely on the ground
that no advertisement was given or publicity made or tenders invited. Here,
the 2nd respondents approached the State for the purpose of setting up a
modern factory for manufacture of rosin, turpentine oil and other derivatives
and asked for allocation of resin and the State, with a view to offering an
incentive to the 2nd respondents to set up the factory, made the impugned
Order awarding the tapping contract in respect of these blazes to the 2nd
respondents as a part of a package deal. We have already pointed out and we
need not repeat again, that the impugned Order was reasonable and in the
interest of the State and in the circumstances, we are clearly of the view that
it cannot be assailed as invalid merely because no advertisements were
issued inviting offers for setting up a factory and taking the tapping contract
as an integral part of the transaction.
”
87. It is significant that in Kasturi Lal (supra), the Supreme Court
emphasised that the transaction in question was not a “tapping contract
simpliciter” directed at revenue maximisation, but an allocation of resources
in furtherance of a distinct State policy, and that where the predominant
object of the State is not the earning of revenue but the achievement of a
larger policy objective, the yardsticks appropriate to ordinary commercial
transactions cannot be mechanically applied. The analogy to the present case
is apparent; the designation of an implementing agency for a nationwide
emergency-alerting system is not a revenue-yielding commercial
proposition, but the discharge of a sovereign public-safety function.
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88. To similar effect is Sachidanand Pandey v. State of West Bengal,
(1987) 2 SCC 295, wherein the Supreme Court, upholding the grant of a
lease by private negotiation without auction or tender, culled out the
governing propositions in the following terms:
“4. .....Obviously, if the government is alive to the various
considerations requiring thought and deliberation and has arrived at
a conscious decision after taking them into account, it may not be for
this Court to interfere in the absence of mala fides. On the other hand,
if relevant considerations are not borne in mind and irrelevant
considerations influence the decision, the court may interfere in order
to prevent a likelihood of prejudice to the public......
xxx xxx. xxx.
40. On a consideration of the relevant cases cited at the Bar the
following propositions may be taken as well established: State-owned
or public-owned property is not to be dealt with at the absolute
discretion of the executive. Certain precepts and principles have to be
observed. Public interest is the paramount consideration. One of the
methods of securing the public interest, when it is considered
necessary to dispose of a property, is to sell the property by public
auction or by inviting tenders. Though that is the ordinary rule, it is
not an invariable rule. There may be situations where there are
compelling reasons necessitating departure from the rule but then the
reasons for the departure must be rational and should not be
suggestive of discrimination. Appearance of public justice is as
important as doing justice. Nothing should be done which gives an
appearance of bias, jobbery or nepotism.”
89. The scope of scrutiny mandated by Kasturi Lal (supra) and
Sachidanand Pandey (supra) is thus confined to ascertaining whether
reasons for the departure from the ordinary rule of open tender exist, are
germane, and are not suggestive of mala fides or discrimination.
90. As stated hereinabove, it would be inappropriate for this Court to
travel further and sit in judgment over the rationale, or the technical/strategic
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logic, of proceeding with C-DOT as the sole implementing agency; the
comparative wisdom of that choice lies within the domain of the executive.
V. The ‘Mohinder Singh Gill’ objection
91. It has been vehemently contended on behalf of the petitioner that the
justifications of natural continuation, urgency, national security and
indigenisation do not find place in the impugned O.M and have been
supplied only through affidavit/s filed in these proceedings. According to
the petitioner the same is impermissible in view of the law laid down in
Mohinder Singh Gill & Anr vs The Chief Election Commissioner, New
Delhi & Ors 1978 (1) SCC 405. The contention proceeds on the settled
principle that validity of an administrative order must be judged by the
reasons stated in it and cannot be supplemented by fresh reasons in the
shape of an affidavit or otherwise.
92. The principle in Mohinder Singh Gill (supra) has been taken note of
by the Supreme Court in numerous subsequent judgments. In All India
Railway Recruitment Board v. K. Shyam Kumar , (2010) 6 SCC 614, the
Supreme Court took the view that the principle laid down in Mohinder
Singh Gill (supra) is not applicable where larger public interest is involved
and that in such situation additional grounds can be looked into to examine
the validity of an order. The relevant extracts are as under:
“44. We are also of the view that the High Court has committed a grave error
in taking the view that the order of the Board could be judged only on the
basis of the reasons stated in the impugned order based on the report of
Vigilance and not on the subsequent materials furnished by CBI. Possibly, the
High Court had in mind the Constitution Bench judgment of this Court
in Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC 405]
45. We are of the view that the decision-maker can always rely upon
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subsequent materials to support the decision already taken when larger
public interest is involved. This Court in Madhyamic Shiksha Mandal,
M.P. v. Abhilash Shiksha Prasar Samiti [(1998) 9 SCC 236] found no
irregularity in placing reliance on a subsequent report to sustain the
cancellation of the examination conducted where there were serious
allegations of mass copying. The principle laid down in Mohinder Singh
Gill case [(1978) 1 SCC 405] is not applicable where larger public interest
is involved and in such situations, additional grounds can be looked into to
examine the validity of an order.
The finding recorded by the High Court
that the report of CBI cannot be looked into to examine the validity of the
order dated 4-6-2004, cannot be sustained.”
93. A similar approach was adopted in PRP Exports v. State of T.N.,
(2014) 13 SCC 692. The aforesaid judgments in All India Railway
Recruitment Board (supra) and PRP Exports (supra) came to be considered
in 63 Moons Technologies Ltd. v. Union of India, (2019) 18 SCC 401,
wherein it was held as under:
“100. Valiant attempts have been made by counsel in the High Court
as well as counsel in this Court to support the order on grounds which
are outside the order, stating that such grounds make it clear that in
any case, the government order has been made in public interest. The
celebrated passage in Mohinder Singh Gill [Mohinder Singh
Gill v. Chief Election Commr., (1978) 1 SCC 405] states that : (SCC
p. 417, para 8)
“8. The second equally relevant matter is that when a statutory
functionary makes an order based on certain grounds, its validity
must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the beginning may, by the
time it comes to court on account of a challenge, get validated by
additional grounds later brought out. We may here draw attention
to the observations of Bose, J. in Gordhandas Bhanji [Commr. of
Police v. Gordhandas Bhanji, 1951 SCC 1088 : AIR 1952 SC 16 :
1952 SCR 135] : (SCR p. 140 : AIR p. 18, para 9)
‘9. … public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations
subsequently given by the officer making the order of what he
meant, or of what was in his mind, or what he intended to do.
Public orders made by public authorities are meant to have
public effect and are intended to affect the actings and conduct of
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those to whom they are addressed and must be construed
objectively with reference to the language used in the order
itself.’
Orders are not like old wine becoming better as they grow older.”
We are of the view that it is the Central Government that has to
be “satisfied” that its order is in public interest and such
“satisfaction” must, therefore, be of the Central Government
itself and must, therefore, appear from the order itself. All these
valiant attempts made to sustain such order must be rejected.
101. However, the learned Senior Advocates on behalf of the
respondents have cited All India Railway Recruitment Board v. K.
Shyam Kumar [All India Railway Recruitment Board v. K. Shyam
Kumar, (2010) 6 SCC 614 : (2010) 2 SCC (L&S) 293] , which,
according to them, renders the judgment in Mohinder Singh
Gill [Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC
405] inapplicable where larger public interest is involved. In this
judgment, Mohinder Singh Gill [Mohinder Singh Gill v. Chief
Election Commr., (1978) 1 SCC 405] was distinguished thus : (K.
Shyam Kumar case [All India Railway Recruitment Board v. K. Shyam
Kumar, (2010) 6 SCC 614 : (2010) 2 SCC (L&S) 293] , SCC p. 631,
paras 44-45)
“44. We are also of the view that the High Court has committed a
grave error in taking the view [K. Shyam Kumar v. All Railway
Recruitment Boards, 2005 SCC OnLine AP 201 : (2005) 4 ALD
411] that the order of the Board could be judged only on the basis
of the reasons stated in the impugned order based on the report of
Vigilance and not on the subsequent materials furnished by CBI.
Possibly, the High Court had in mind the Constitution Bench
judgment of this Court in Mohinder Singh Gill v. Chief Election
Commr. [Mohinder Singh Gill v. Chief Election Commr., (1978) 1
SCC 405]
45. We are of the view that the decision-maker can always rely
upon subsequent materials to support the decision already taken
when larger public interest is involved. This Court in Madhyamic
Shiksha Mandal, M.P. v. Abhilash Shiksha Prasar
Samiti [Madhyamic Shiksha Mandal, M.P. v. Abhilash Shiksha
Prasar Samiti, (1998) 9 SCC 236] found no irregularity in
placing reliance on a subsequent report to sustain the
cancellation of the examination conducted where there were
serious allegations of mass copying. The principle laid down
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in Mohinder Singh Gill case [Mohinder Singh Gill v. Chief
Election Commr., (1978) 1 SCC 405] is not applicable where
larger public interest is involved and in such situations,
additional grounds can be looked into to examine the validity of
an order. The finding recorded by the High Court that the report
of CBI cannot be looked into to examine the validity of the order
dated 4-6-2004, cannot be sustained.”
102. It will be seen that there is no broad proposition that the case
of Mohinder Singh Gill [Mohinder Singh Gill v. Chief Election
Commr., (1978) 1 SCC 405] will not apply where larger public
interest is involved. It is only subsequent materials i.e. materials in the
form of facts that have taken place after the order in question is
passed, that can be looked at in the larger public interest, in order to
support an administrative order. To the same effect is the judgment
in PRP Exports v. State of T.N. [PRP Exports v. State of T.N., (2014)
13 SCC 692] , SCC para 8. It is nobody's case that there are any
materials or facts subsequent to the passing of the final order of the
Central Government that have impacted the public interest, and
which, therefore, need to be looked at. On facts, therefore, the two
judgments cited on behalf of the respondents have no application.
Thus, it is clear that no reasonable body of persons properly
instructed in law could possibly hold, on the facts of this case, that
compulsory amalgamation between FTIL and NSEL would be in
public interest.”
94. The somewhat uneven course traversed by the Mohinder Singh Gill
doctrine was comprehensively considered by the Supreme Court in SBI v.
Tanya Energy Enterprises, (2025) 259 Comp Cas 405. The said judgment
considers the entire line of authorities. The Supreme Court in SBI v. Tanya
Energy Enterprises (supra) noted the necessity of reconciling the aforesaid
decisions and observed as under:
“36. Mohindhr Singh Gill v. Chief Election Commissioner [(1978)
1 SCC 405; 1977 SCC OnLine SC 323.] has been considered by
this court in Chairman, All India Railway Recruitment Board v. K.
Shyam Kumar [(2010) 6 SCC 614; (2010) 2 SCC (L&S) 293; 2010
SCC OnLine SC 579.] . It has been held there that the principle
laid down in Mohindhr Singh Gill v. Chief Election
Commissioner [(1978) 1 SCC 405; 1977 SCC OnLine SC 323.] is
not applicable where larger public interest is involved and in such
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a situation, additional grounds can be looked into, to examine the
validity of an order. To the same effect is the decision in PRP
Exports v. Chief Secretary, Government of Tamil Nadu [(2014) 13
SCC 692; 2013 SCC OnLine SC 1104.] . However, Chairman, All
India Railway Recruitment Board v. K. Shyam Kumar [(2010) 6
SCC 614; (2010) 2 SCC (L&S) 293; 2010 SCC OnLine SC 579.]
and PRP Exports v. Chief Secretary, Government of Tamil
Nadu have been considered in 63 Moons Technologies
Ltd. v. Union of India [(2019) 217 Comp Cas 181 (SC); (2019) 18
SCC 401; 2019 SCC OnLine SC 624.] where it has been held in
paragraph 102 by a co-ordinate Bench that there is no broad
proposition that the law laid down in Mohindhr Singh Gill v. Chief
Election Commissioner will not apply where larger public interest
is involved. The decisions in Chairman, All India Railway
Recruitment Board v. K. Shyam Kumar and PRP Exports v. Chief
Secretary, Government of Tamil Nadu were distinguished on the
ground that the co-ordinate Benches there had proceeded to
consider subsequent materials that emerged for the purpose of
validating the order under challenge.”
95. The Supreme Court thereafter proceeded to reconcile the position and
held as under:
“38. The respective Benches in Commissioner of
Police v. Gordhandas Bhanji [1951 SCC 1088; 1951 SCC OnLine
SC 70; AIR 1952 SC 16.] , Mohindhr Singh Gill v. Chief Election
Commissioner [(1978) 1 SCC 405; 1977 SCC OnLine SC 323.]
, Opto Circuit India Ltd. v. Axis Bank [(2021) 6 SCC 707; (2021) 3
SCC (Cri) 105; 2021 SCC OnLine SC 55.] and 63 Moons
Technologies Ltd. v. Union of India [(2019) 217 Comp Cas 181
(SC); (2019) 18 SCC 401; 2019 SCC OnLine SC 624.] , in our
reading, while mandating what has been noticed above was not
required to and, as such, rightly did not go that far in establishing
the principle that, in all cases coming before it, the court is
necessarily bound to confine itself to the grounds mentioned in the
administrative order under challenge and cannot look beyond such
grounds at all. While the courts, in course of reviewing
administrative orders, may not permit additional grounds not found
within the four corners of the said order to be raised in an affidavit
or in oral arguments, we are inclined to the view that the factual
narrative in such order and the documents referred to therein can
certainly be considered together with the case set up in the writ
petition, but in appropriate cases. Such cases could include a case,
as the present, where the mentioned grounds are found to be
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untenable and, thus, unsustainable, but an alternative ground
(appearing from the factual narrative in the order itself and/or
from the records relevant thereto) is traceable which could have
validly been mentioned as a ground to support the impugned
rejection had there been a proper application of mind by the
administrative authority. In all such cases, it would be open to the
court to uphold it on such alternative ground subject, of course, to
the affected party being put on notice and an opportunity to
respond. This approach, which would prioritize fairness and justice
over technicalities, does not run contrary to or inconsistent with
the law laid down in the afore referred precedents.”
96. The position that emerges, therefore, is that as a general proposition
the rule in Mohinder Singh Gill (supra) remains good law and the validity
of an administrative order is ordinarily to be tested on grounds stated in it.
However, the rule does not altogether disable the Court from considering the
factual narrative contained in the impugned order and the documents
referred to therein, as also the preceding orders leading up to the issuance of
the impugned order.
97. In appropriate cases, the Court may sustain the decision on a ground
traceable from such narrative or records, even if they do not find a specific
mention in the impugned order as long as, they are clearly discernible. There
is thus a clear distinction between supplementing an order/ decision through
material extraneous to the record (which is impermissible) and
substantiation of the decision on the basis of grounds which are implicit and
manifest from the contemporaneous records (the same may be permissible in
a given factual context).
98. Importantly also, it cannot be lost sight of that in the very nature of
things the impugned OM cannot be read in isolation of the attendant
circumstances which led up to its issuance. The impugned OM is not a self-
contained, speaking order of an adjudicatory kind. It is a communication
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which records and encloses minutes of meeting dated 19.09.2024 and is in
the nature of a crucial step in the decision making process. The said minutes
are a part of a chain of events which are inextricably linked to each other. To
insist that the impugned order be tested only by what appears within its four
corners, divorced from the entire record which led up to it, would be akin to
applying Mohinder Singh Gill (supra) in a manner which would result in
distortion/misapplication of the principle laid down therein.
99. In the present case, it is quite evident that the justifications cited by
the respondent/ Ministry of Home Affairs, Union of India have not been
conjured merely for the purpose of opposing the present petition, they are
traceable to the contemporaneous record of which the impugned OM forms
a part.
100. The justifications relied upon find an independent anchor in the
record antecedent to the present petition. The MoU dated 16.01.2020,
followed by the MoU dated 23.08.2021, under which Phase-I (SMS-based
dissemination) was entrusted to respondent no.4/C-DOT, predate the
impugned OM by several years. The minutes dated 19.09.2024 themselves
record the continuing nature of the project, noting that the proof-of-concept
for Cell Broadcasting had been tested in Phase-I and was due for roll-out in
Phase-II. Further, the Certificate of Mandatory Conformance dated
12.04.2024, and the recognition extended by the National Security Council
Secretariat, both precede the impugned OM and were part of the technical
record available to the decision-making authority at the relevant time. The
status of respondent no.4/C-DOT as a Government-established society, and
its pre-existing government-to-government engagement, are matters of
record which are independent of, and prior to, the present lis .
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101. Thus, none of the justifications relied upon by the respondents can be
said to be an afterthought manufactured to meet the petitioner's challenge.
Each finds a documentary footing that predates not merely the institution of
the writ petition, but the impugned OM itself. It is this antecedent
traceability that distinguishes a permissible substantiation of reasons already
inherent in the record, from an impermissible post facto rationalisation of
the kind proscribed in Mohinder Singh Gill (supra).
VI. The standard of review and the merits-based objections
102. The petitioner has drawn attention to the fact that the Technical
Evaluation Committee (TEC) found C-DOT’s initial proposal non-
compliant on 27.11.2024 and that no fresh evaluation of the revised proposal
dated 28.12.2024 was undertaken; that NDMA had earlier recorded
deficiencies and slower dissemination times in C-DOT’s solution; and that
the petitioner’s field-proven platform was ready for immediate deployment.
103. The aforesaid contentions are, in substance, an invitation to this Court
to undertake a comparative technical evaluation and to substitute its own
assessment for that of the executive. That is impermissible in terms of the
dicta laid down by the Supreme Court in Tata Cellular v. Union of India,
(1994) 6 SCC 651; Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517;
Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216.
The legal position is well settled that in exercise of the jurisdiction under
Article 226 of the Constitution of India, the court reviews the decision-
making process, not the merits of the decision; the grounds are concerned
with illegality, irrationality and procedural impropriety; and the court does
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not possess the technical expertise to sit in appeal over evaluations made by
domain experts.
104. Tested on that touchstone, the merit based objections do not survive.
The deficiencies noted by the Technical Evaluation Committee (TEC) on
27.11.2024 were apparently addressed by C-DOT in its revised proposal
dated 28.12.2024, which was thereupon appraised by the Appraisal
Committee (with the Financial Adviser’s concurrence) and approved
through the SC-NEC and the Union Home Minister. Whether the appraisal
of the revised proposal ought to have taken the form of a fresh reference to
the TEC, or whether the Appraisal Committee’s scrutiny sufficed, is a
matter on which the competent authority’s choice is not open to second-
guessing. No mala fides are pleaded, much less established.
105. In so far as considerations of national security and indigenisation are
concerned, the same reinforces the conclusion that it would be inappropriate
for this Court to exercise judicial review. Having perused the record,
including the recognition of C-DOT’s solution by the National Security
Council Secretariat, this Court is satisfied that the invocation of these
considerations is not a mere ipse dixit .
VII. Discretion, equities and the stage of the project
106. Even where some infraction in the decision-making process is
discernible, the grant of relief under Article 226 remains discretionary, and
the discretion is to be exercised in furtherance of public interest. In Pace
Digitek (P) Ltd . (supra), a Division Bench of this Court, applying the
principles enunciated in Jagdish Mandal (supra), Tata Cellular (supra), and
Air India Ltd v. Cochin International Airport Ltd. , (2000) 2 SCC 617,
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declined interference notwithstanding demonstrated errors, having regard to
the advanced stage of the project and the paramount public interest in its
completion. The twin questions formulated in Jagdish Mandal (supra) viz.
whether the decision is mala fide or so arbitrary that no reasonable authority
could have reached it, and whether public interest is affected by interference,
both stand answered against the petitioner in the present case.
107. Moreover , the position on the ground has travelled far beyond the
impugned OM. The project stands sanctioned at an outlay of Rs. 99.82
Crores; the MoU dated 28.02.2025 has been executed; the solution is stated
to have been deployed, including in live disaster conditions; and the
Ministry of Home Affairs has launched the Cell Broadcasting solution on
02.05.2026 (as placed on record in these proceedings). It is true that the
order dated 10.03.2025 passed in these proceedings preserved the position
by making any agreement or award in favour of C-DOT subject to the
outcome of this petition. However, it cannot be disregarded that to displace
the implementing agency of an operational nationwide emergency-alert
system, and thereby to suspend or interfere with a live early-warning
mechanism upon which the safety of citizens depends, would be a remedy
wholly disproportionate to any alleged procedural grievances urged. In any
event, the alleged procedural infractions have been found to be non-
meritorious. Yet, if the petitioner perceives that it has suffered quantifiable
loss by reason of any actionable wrong, its remedy, if any, lies in claiming
damages. It is made clear that the petitioner is not precluded from doing so.
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VIII. CONCLUSION
108. To summarise: (i) the petitioner acquired no enforceable right from
the consultative process, the inter-departmental communications or the
TSPs’ letters of support; (ii) NDMA’s recommendations were considered
and consciously departed from for recorded reasons, and NDMA thereafter
itself effectuated the impugned decision; the change of course was
deliberate, reasoned and documented; (iii) the engagement of C-DOT, being
procurement of a non-consulting service, is governed by Rule 204 of the
GFR, 2017, the substantive requirements whereof (exceptional situation,
consultation with the Financial Adviser and recorded justification) stand
satisfied on the record; (iv) the justifications for the decision are traceable
from the contemporaneous record and are not impermissible
supplementation within the meaning of Mohinder Singh Gill (supra), as
explained in SBI v. Tanya Energy Enterprises (supra); (v) the merits-based
technical objections cannot invite an appellate review, it being inappropriate
for this Court to sit in judgment over the rationale or the technical/strategic
logic of proceeding with C-DOT; and (vi) in any event, no case for the
exercise of discretionary jurisdiction is made out, having regard to the
operational status of a critical public-safety system.
109. Before concluding, this Court is constrained to observe that there is no
reason why, in a procurement of this magnitude and sensitivity, the
applicable rule could not have been specifically identified and its
requirements consciously addressed in the final approval itself. The fact that
this Court has, on the limited touchstone of judicial review, not found
adequate grounds to interfere, must not be construed as diluting the salutary
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nature of this requirement. The Secretary, Ministry of Home Affairs, and
other departments of the Union of India, are directed to take appropriate
course-correction measures so that in future procurements by nomination,
the specific enabling provision of the GFR shall be expressly invoked, the
justification there for contemporaneously recorded, and the approval of the
competent authority obtained with conscious reference thereto.
110. It is clarified that nothing in this judgment is to be treated as an
adjudication upon the comparative technical merit or commercial capability
of the petitioner’s platform, and this judgment shall not stand in the way of
the petitioner participating in any future procurement process that the
respondents may undertake in relation to this or any other project.
111. In the circumstances, with the above observations, the present petition
(along with pending applications), stands dismissed.
SACHIN DATTA, J
AUGUST 31, 2026
uk, ss
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