M/S SUNIL KUMAR AGRAWAL LLP, RAIPUR vs STATE OF ODISHA
- Court
- Odisha High Court
WP(C)/35596/2025
ODHC010901442025
2026:OHC:294-DB
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.35596 of 2025
CNR No.: ODHC01-090144-2025
In the matter of an Application under Articles 226 and 227
of the Constitution of India, 1950
*
M/s. Sunil Kumar Agrawal LLP
Regd. Office: Chandani Chowk
Raigarh – 496 001, Chhattisgarh
Represented through its
Authorised Representative
(duly authorised by its Board of Directors)
Sri Purusottam Agrawal
Aged about 30 Years
Son of Ishwar Prasad Agrawal
Residing At: B-26, Banyan-Tree-Khamadih
Raipur. … Petitioner
-V ERSUS -
1.
State of Odisha
Represented through
Commissioner- cum -Secretary
Works Department
Government of Odisha
Secretariat Building, Bhubaneswar
District: Khordha.
2. State of Odisha
Represented through
Chief Engineer- cum -Addl. Secretary
To Government, Works Department
Bhubaneswar, District: Khordha.
3. Engineer-in-Chief (Civil- cum -Roads)
Odisha, Nirman Soudha, Unit-V
Bhubaneswar, District: Khordha.
WP(C) No.35596 of 2025 Page 1 of 56
4. Chief Engineer (Building-I) Odisha
Nirman Soudha, Unit-V, Bhubaneswar
District: Khordha.
5. Chief Engineer (Building-II), Odisha
Nirman Soudha, Unit-V, Bhubaneswar
District: Khordha.
6. B.C. Bhuyan Construction Pvt. Ltd.
Plot No.890, Palasuni, Rasulgarh
Bhubaneswar – 751 010, Odisha
Represented through its
Managing Director. … Opposite parties.
Counsel appeared for the parties:
For the Petitioner : Mr. Prafulla Kumar Rath,
Senior Advocate
Assisted by
M/s. Prabodha Chandra Nayak,
Subrat Kumar Sahu and
Deba Prasad Mishra,
Advocates
For the Opposite party : Ms. Aishwarya Dash,
No.1 to 5 Additional Standing Counsel
For the Opposite party : Mr. Pradipta Kumar Mohanty,
No.6 Senior Advocate
Assisted by
Pronoy Mohanty, S.N. Das,
S.K. Sahu, K.T. Mudali and
P. Pani, Advocates
P R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. HARISH TANDON
AND
HONOURABLE JUSTICE
MR. MURAHARI SRI RAMAN
WP(C) No.35596 of 2025 Page 2 of 56
Date of Hearing : 03.09.2026 :: Date of Judgment : 12.11.2026
J UDGMENT
M URAHARI S RI R AMAN
, J.—
Questioning the propriety of financial evaluation of the
bids with respect to tender titled undertaken on
03.11.2025, and legality of decision taken thereby
declaring the opposite party No.6 as the lowest bidder (―L-
1‖), the petitioner approached this Court by way of the
instant writ petition for exercise of power of judicial
review under Article 226/227 of the Constitution of India:
“In the above premises, it is most humbly prayed that this
Hon‟ble Court may graciously be pleased to:
A. Issue a writ of Certiorari, quashing the impugned
Financial Evaluation dated 03.11.2025 (Annexure-6),
to the extent declaring opposite party No.6 as L-1,
despite having quoted 18.76% less than estimated
cost, in blatant violation of Office Memorandum
No.1437 dated 31.01.2023 of the Works Department,
Government of Odisha, (Annexure-8) which mandates
any bidder quoting more than 15% less than the
tender value shall be rejected;
B. Declare that the action of opposite party No.4-Tender
Authority in accepting and treating the financial bid of
opposite party No.6 as responsive is illegal, arbitrary,
discriminatory, mala fide, non-speaking and violative
of Articles 14 and 19(1)(g) of the Constitution of India;
WP(C) No.35596 of 2025 Page 3 of 56
C. Issue a writ of mandamus, directing opposite party
No.4 to declare that the petitioner is the L-1 Bidder
since petitioner has complied all conditions and
Government Circular in compliance with Office
Memorandum No.1437, dated 31.01.2023 as well as
the Odisha Pubic Works Department Code and
Contract Management Framework, and to consider
the petitioner‟s bid for further tender finalization for
the work Construction of New Banijyakar Bhawan at
Chandrasekharpur, Bhubaneswar on Turnkey
Basis— Bid Identification No.C.E.(B)-04/2025-26;
D. Hold that the decision-making process in the present
tender suffers from procedural irregularities, violation
of statutory Government instructions, non-application
of mind, unequal treatment and manifest
arbitrariness, thereby violative of Article 14/19(1)(g)
of the Constitution of India;
E. And/or be pleased to pass any other order/orders as
may be deemed fit and proper in the interest of justice
and equity.
And for this act of kindness, the petitioner as in duty
bound, shall ever pray.”
Case of the petitioner:
2. The petitioner, a limited liability partnership firm
registered under the Limited Liability Partnership Act,
2008, participated in the tender floated by the Chief-
Engineer (Building-II), Odisha, Bhubaneswar (for brevity,
―tendering authority‖) on 21.04.2025 inviting bids for
execution of works on ―turnkey basis‖ for construction of
WP(C) No.35596 of 2025 Page 4 of 56
Banijyakar Bhawan at Chandrasekharpur in
Bhubaneswar. The tendering authority published
corrigenda from time to time by extending last date of
submission of documents, as a result of which the last
date fixed for opening of bid on 06.06.2025 initially
scheduled got extended. Consequently, the final date for
bid submission was extended to 11.07.2025, and the
receipt of hard copies was scheduled for 18.07.2025.
Accordingly, the opening of the Technical Bid (Cover-I)
was rescheduled for 19.07.2025 (See, fourth corrigendum
dated 03.07.2025).
2.1. The minutes of the Technical Evaluation Committee in its
Meeting held on 29.10.2025 reveal that out of eleven
participating bidders, seven qualified and were called for
a presentation on 03.11.2025 (Annexure-5), which being
concluded, the financial bids were opened at 6.30 p.m. on
the said date. At paragraph 12 of the writ petition it is
averred by the petitioner as follows:
“That the financial bid was opened on 03.11.2025 wherein
the opposite party No.6 quoted less (than) 18.76% and the
petitioner quoted 14.99% less than the estimated value of
the contact and the opposite party No.6 declared as L-1
bidder.”
2.2. This writ petition has been filed on the premise that such
a decision is contrary to amended provisions contained in
Clause 36 of Appendix-IX of Volume-II of the Odisha
WP(C) No.35596 of 2025 Page 5 of 56
Public Works Department Code (for convenience be called
1
. The decision of the tendering authority is
―OPWD Code‖)
arbitrary inasmuch as there is no justified reason for it to
selectively choose provisions of said Code to be applied in
different contexts. Therefore, such decision alleged to
have offended provisions enshrined in Article 14 of the
Constitution of India. The decision of the tendering
authority, it is contended, being arbitrary and falling
within the ken of Article 14, deserves to be declared
vitiated for the course adopted by the authority prevents
the petitioner from carrying his business smoothly, as a
result of which it impinges upon pristine provisions of
Article 19(1)(g) of the Constitution of India.
Counter affidavit of the opposite party Nos.1 to 5:
3. Reference is made to Clause 13 under the Heading
―Preparation of Bids‖ of the Instruction to Bidders forming
1
Clause 36 of Appendix-IX contained in Volume-II of the Odisha Public Works
Department Code as amended by virtue of Office Memorandum bearing
No.1437— 07559600192022, dated 31.01.2023 issued by the Government of
Odisha in Works Department stands thus:
“If the rate quoted by the bidder is less than 15% of the amount put to tender, then
such a bid shall be rejected and the tender shall be finalized basing on merits of
rest bids. But, if more than one bid is quoted (decimal up to two numbers will be
taken for all practical purposes) either at the estimated cost put to tender or less
than the estimated cost put to tender, the tender accepting authority will finalise
the tender through a transparent lottery system, where all bidders/their authorized
representatives, the concerned SE/Executive Engineer of concerned Division and
DAO will remain present.
1. This amendment to the codal provision shall take effect from the date of
issue of the order.
2. Accordingly, the relevant existing codal/contractual provision stands
modified with effect from the date of issue of this O.M.
3. This has been concurred in by Finance Department in their OSWAS File
No.FIN-WF1-MISC-0042-2022.”
WP(C) No.35596 of 2025 Page 6 of 56
part of Request for Proposal (―ITB‖, abbreviated) which
stands as follows:
“13. Bid Price:
13.1 The Contract shall be for the whole work as described
in Sub-Clause 1.1 based on the Lump-sum Price bid
submitted by the Bidder.
13.2 The bidder shall fill the total bid price as Lump-sum
Price (both in figures and words) for execution of work
on Lump-sum/Turnkey basis including all items of
works as specified in the Bid document.
13.3 The prices tendered shall except in so far as it is
otherwise, provided under the contract, include all
constructional plant, labour, supervision, materials,
erection maintenance, insurance, profit, taxes and
duties except GST & other levies together with all
general risks, liabilities and obligations set out or
implied in the contract.
13.4 The lump-sum bid price quoted by the bidder shall be
fixed for the duration of the Contract and shall not be
subject to adjustment on any account.”
3.1. The ―estimated cost‖ for the tender was not defined in the
Request for Proposal (―RfP‖, for convenience). Rather, the
―amount put to tender‖ is the ―Lump-Sum Price‖ as
required to be quoted by the bidders. As per Clause 13.2
of the ―Preparation of Bid‖, the bidder is required to fill
the total bid price in figures online as ―Lump-Sum Price‖.
Nowhere in the ITB it was mentioned that percentage rate
WP(C) No.35596 of 2025 Page 7 of 56
of ―amount put to tender‖ would be the criteria for
evaluation to determine the lowest bidder.
3.2. With such note, it is explained by the opposite parties
that the petitioner along with six others was called for
presentation on 03.11.2025 and upon the financial bids
being opened, the opposite party No.6 was found to be L-1
having quoted the lowest price of Rs.175,00,00,000/-.
Though offer was made to reduce the cost, it expressed
inability. Accordingly, the Works Department, being
moved in terms of Note-1 of Clause 6.3.15 contained in
Volume-I of the OPWD Code, the approval was accorded
vide Letter No.24172/AC-II-07218800812025/W, dated
15.12.2025.
3.3. In the decision-making process, there is no flaw
warranting interference of this Court.
Counter affidavit of the opposite party No.6:
4. The instant tender process commenced pursuant to the
Request for Proposal (―RfP‖, for short) of the Government
of Odisha in Works Department with all detail particulars,
wherein the tender has been described as the National
Competitive Bidding (Works on Turnkey basis with
Architectural Planning, Design and Execution). Thus the
RfP is not confined to the State of Odisha, but attracts
bidders from outside the State of Odisha. Unlike other
tenders, which are confined to the State of Odisha,
WP(C) No.35596 of 2025 Page 8 of 56
nowhere it was prescribed that the Office Memorandum
No.1437— 07559600192022, dated 31.01.2023 of the
Works Department, which is incorporated in the OPWD
Code, would be applicable. Thus, having no universal
application of such codal provision, it cannot be gainsaid
that the evaluation of financial bid would be based on
estimated value of the contract. This is more particularly
so when the contract is a turnkey project inviting bidders
not confining participants from this State only. Therefore,
the apprehension of the petitioner, that the decision of
the Committee which undertook financial evaluation of
the bids ignored the tenor of Clause 36 of Appendix-IX of
Volume-II of the OPWD Code, being introduced by way of
the Office Memorandum dated 31.01.2023, is without
comprehension.
4.1. Explaining further, it has been set out by the opposite
party No.6 that the RfP specified ―amount put to tender‖
was Rs.215.40 Crores ―Lump-Sum‖, which is apparent
from the proceeding dated 29.10.2025 of Technical
Evaluation Committee. The petitioner misconstrued it to
be the estimated cost of the turnkey project. Elaborating
further, it is stated that the nature of tender specifying
that the works contract to be awarded for execution
would be on ―turnkey basis‖ requires quotation of ―Lump-
Sum Price‖. In that view of the matter, neither Clause 36
of Appendix-IX of Volume-II of the OPWD Code, as
WP(C) No.35596 of 2025 Page 9 of 56
amended by dint of the Office Memorandum dated
31.01.2023, is applicable nor can it be inferred that the
said amount as mentioned in the proceeding of the
Committee in the Meeting held on 29.10.2025 was
considered to be the estimated cost, which would be
taken as the basis for determination of the lowest bid.
Had those aspects being mentioned in the instant tender
documents, all other bidders would have perceived in the
same fashion.
4.2. Raising strong objection, the opposite party No.6 sought
to clarify that the petitioner, by placing heavy reliance on
the column specifying ―% in figures‖ calculated on
supposed estimated cost on its own manufactured/ self-
prepared document, not only misdirected itself but also
2
misled this Court.
2
Annexure-6 of the writ petition which the petitioner seeks to quash stands as
follows:
Short
Name
Sl.
No.
Bidder Name Amount Bid
Rank
Estimated
Cost
% in
figures
BoQ 1 BC Bhuyan
Construction Pvt.
Ltd. (BID ID
2995844)
1750000000 L-1 * -18.76%
2 Sunil Kumar
Agrawal, LLP (BID
ID 2975722)
1831115400 L-2 * -14.99%
3 V. Sathyamoorthy
& Co. (BID ID
2981167)
1893000000 L-3 * -12.12%
4 BPC Infraprojects
Private Limited (BID
ID 2965777)
1973485000 L-4 * -8.38%
5 NJR Constructions
Pvt. Ltd. (BID ID
2996297)
2000635200 L-5 * -7.12%
WP(C) No.35596 of 2025 Page 10 of 56
4.3. Referring to Clause 13 of the ITB it is asserted that the
estimated cost for the instant tender was not specified in
the invitation for bids; nonetheless, the bidder is required
to fill the ―total price as Lump-Sum Price‖ for execution of
work. The ITB does not require percentage rate of amount
put to tender to be specified by the tenderer.
Hearing:
5. The pleadings are completed and exchanged among the
parties. The matter was heard at length on earlier
occasions. On 03.09.2026 counsel for respective parties
advanced final arguments.
5.1. Having heard Sri Prafulla Kumar Rath, learned Senior
Advocate for the petitioner; Ms. Aishwarya Dash, learned
Additional Standing Counsel appearing for the opposite
party Nos.1 to 5; and Mr. Pradipta Kumar Mohanty,
learned Senior Advocate for the opposite party No.6, the
matter was reserved for preparation and delivery of
Judgment/order.
Arguments and submissions:
6 KMV Projects
Limited (BID ID
2993147)
2433804600 L-6 * 12.99%
7 DEE VEE Projects
Limited (BID ID
2995275)
2500794000 L-7 * 16.10%
WP(C) No.35596 of 2025 Page 11 of 56
6. Sri Prafulla Kumar Rath, learned Senior Advocate
submitted that:
i. Clause 36 of Appendix-IX of Volume-II of the OPWD
Code prohibits acceptance of bids quoting more than
15% below the estimated cost and said provision
mandates outright rejection of such abysmally low
bids. Once the OPWD Code is made applicable to
RfP, the authority cannot selectively apply its
provisions by accepting beneficial clauses to suit its
purpose, and discard mandatory restrictions. Such
selective application of codal provisions qua tender
conditions is per se arbitrary, lacks transparency,
and violative of Article 14 of the Constitution of
India. When the State Government fixed Contractor’s
profit and overhead charges @ 7.5% each to be
adopted in the analysis of rates of various items in
order to work out estimated cost vide Office
3
Memorandum dated 26.10.2013 , and made it
3
Following is the text of the Office Memorandum bearing File No.07556900062013
(Pt.I)/11681/W., dated 26.10.2013 issued by the Government of Odisha in Works
Department:
“Sub: Provision of Contractors Profit & Overhead Charges In Analysis of Rates.
After careful consideration Government have been pleased to fix
Contractor‟s profit and overhead charges @ 7.5% each to be adopted In
Analysis of Rates of various items to work out estimated cost. This is over
and above the cost of labour and materials and hire charges of heavy
machinery. No extra cost for sundries and T & P shall be allowed in
Analysis of Rates. This is applicable to all engineering works including cost
of pipes, fittings and specials.
Analysis of Rates is being changed accordingly.
1. These amendments shall take effect from the date of issue of the order.
2. Accordingly, relevant existing codal/contractual provision stands modified
with effect from the date of issue of this O.M.
WP(C) No.35596 of 2025 Page 12 of 56
applicable to all Engineering Works, quoting the rate
beyond 15% would not be permissible in law.
Therefore, the rejection of the petitioner’s bid and
the acceptance of the bid of the opposite party No.6
is ex facie illegal, arbitrary and discriminatory
attracting vice of Article 14 and the decision of the
authority encroaches upon fundamental right
envisaged under Article 19(1)(g) of the Constitution
of India.
ii. The tender document itself incorporates the OPWD
Code and the Contract Management Framework.
The State cannot be allowed to pick and choose
circumstances and situations envisioned in the
different provisions of the OPWD Code for their
application in a tender. In essence what is sought to
be argued is that the provisions of the OPWD Code
are to be applied lock, stock, and barrel.
iii. It is an undisputed fact that the opposite party No.6
quoted (-)18.75% below the estimated cost, which is
not in consonance with the permissible threshold
prescribed under Clause 36 of Appendix-IX. The
Chief Engineer’s letter dated 10.11.2025 itself
records percentage of deviation and reference to
Clause 36 of Appendix-IX, Volume-II, OPWD Code.
3. This has been concurred in by the Finance Department vide their U.O.R.
No.206- WF-I, dated 31.08.2013.
EIC-cum-Secretary to Government”
WP(C) No.35596 of 2025 Page 13 of 56
Thus, applicability of said Clause 36 is to be treated
to be not disputed by the State. The present case is
not one of interpretation but of admitted non-
compliance.
iv. The percentage of deviation being calculated, the
comparative statement records excess/less in
percentage. As such financial evaluation is clearly
done with reference to the estimated cost/value of
the project. The Government cannot deny the
applicability of percentage-based restrictions
contained in the codal provisions after having itself
applied percentage analysis.
6.1. It is submitted by learned Senior Counsel that unfairness,
lack of transparency in the decision making process and
arbitrariness attracts vice of Article 14 of the Constitution
of India, that renders the decision itself vitiated. He cited
the following observations made in Michigan Rubber
(India) Limited Vrs. State of Karnataka, (2012) 8 SCC 216 :
“23. From the above decisions, the following principles
emerge:
(a) the basic requirement of Article 14 is fairness in
action by the State, and non-arbitrariness in essence
and substance is the heartbeat of fair play. These
actions are amenable to the judicial review only to the
extent that the State must act validly for a discernible
reason and not whimsically for any ulterior purpose.
If the State acts within the bounds of reasonableness,
WP(C) No.35596 of 2025 Page 14 of 56
it would be legitimate to take into consideration the
national priorities;
(b) fixation of a value of the tender is entirely within the
purview of the executive and courts hardly have any
role to play in this process except for striking down
such action of the executive as is proved to be
arbitrary or unreasonable. If the Government acts in
conformity with certain healthy standards and norms
such as awarding of contracts by inviting tenders, in
those circumstances, the interference by Courts is
very limited;
(c) In the matter of formulating conditions of a tender
document and awarding a contract, greater latitude is
required to be conceded to the State authorities
unless the action of tendering authority is found to be
malicious and a misuse of its statutory powers,
interference by Courts is not warranted;
(d) Certain preconditions or qualifications for tenders
have to be laid down to ensure that the contractor has
the capacity and the resources to successfully execute
the work; and
(e) If the State or its instrumentalities act reasonably,
fairly and in public interest in awarding contract, here
again, interference by Court is very restrictive since
no person can claim fundamental right to carry on
business with the Government.
24. Therefore, a Court before interfering in tender or
contractual matters, in exercise of power of judicial
review, should pose to itself the following questions:
(i) Whether the process adopted or decision made
by the authority is mala fide or intended to
WP(C) No.35596 of 2025 Page 15 of 56
favour someone; or whether the process adopted
or decision made is so arbitrary and irrational
that the court can say:
“the decision is such that no responsible
authority acting reasonably and in accordance
with relevant law could have reached”;
and
(ii) Whether the public interest is affected. If the
answers to the above questions are in negative,
then there should be no interference under
Article 226.”
7. Per contra, Ms. Aishwarya Dash, learned Additional
Standing Counsel and Sri Pradipta Kumar Mohanty,
learned Senior Advocate would submit that there is no
illegality in the decision making process. In unison they
stated that judicial review may be invoked in the event
decision making process is erroneous or irregular;
however, it need not be exercised unless the decision is
tainted with mala fide or arbitrariness, even if the
decision is flawed. It is submitted that the tendering
authority is the best person to interpret the requirement
of the turnkey project, and the Committee, comprising of
experts, having taken conscious and conscientious
decision to evaluate the financial bids in terms of the RfP,
this Court ought to desist from invoking its extraordinary
jurisdiction.
Analysis and decision:
WP(C) No.35596 of 2025 Page 16 of 56
8. Before embarking on a journey to examine the rival
contentions, arguments and submissions, it may be apt
to have regard to the following observations made in
Vedika Resources Vrs. National Aluminium Company Ltd.,
2025 SCC OnLine Ori 4148 :
“7.1. As is held by this Court in AF Enterprises Limited Vrs.
The State of Odisha, ILR (2023) 1 Cut 124 that an
essential condition stipulated in NIT must be adhered
to scrupulously and the authority issuing tender is
required to enforce it with rigidity.
7.2. The Hon‟ble Supreme Court of India in the case of
Banshidhar Construction Pvt. Ltd. Vrs. Bharat Coking
Coal Limited, (2024) 10 SCC 273 observed that the
writ Court does not sit as a Court of appeal in the
matter of award of contracts and it merely reviews
the manner in which the decision was made; and that
the Government and its instrumentalities must have a
freedom of entering into the contacts. However, it is
equally well settled that the decision of the
Government/its instrumentalities must be free from
arbitrariness and must not be affected by any bias or
actuated by mala fides. For better appreciations, the
following is quoted from said reported judgment:
„22. At this juncture, we may reiterate the well-
established tenets of law pertaining to the scope
of judicial intervention in Government contracts.
23. In Sterling Computers Ltd. Vrs. M & N
Publications Ltd., (1993) 1 SCC 445, this Court
while dealing with the scope of judicial review of
award of contracts held:
WP(C) No.35596 of 2025 Page 17 of 56
„18. While exercising the power of judicial
review, in respect of contracts entered into
on behalf of the State, the Court is
concerned primarily as to whether there
has been any infirmity in the “decision
making process”. In this connection
reference may be made to Chief Constable
of the North Wales Police Vrs. Evans,
(1982) 1 WLR 1155 (HL) where it was said
that:
„… The purpose of judicial review is to
ensure that the individual receives fair
treatment, and not to ensure that the
authority, after according fair
treatment, reaches on a matter which
it is authorised or enjoined by law to
decide for itself a conclusion which is
correct in the eyes of the court.‟
By way of judicial review the court
cannot examine the details of the
terms of the contract which have been
entered into by the public bodies or the
State. Courts have inherent limitations
on the scope of any such enquiry. But
at the same time as was said by the House
of Lords in the aforesaid case, Chief
Constable of the North Wales Police Vrs.
Evans, (1982) 1 WLR 1155 (HL) the courts
can certainly examine whether “decision-
making process” was reasonable, rational,
not arbitrary and violative of Article 14 of
the Constitution.‟
WP(C) No.35596 of 2025 Page 18 of 56
24. In Tata Cellular Vrs. Union of India, (1994) 6
SCC 651, this Court had laid down certain
principles for the judicial review of
administrative action:
„94. The principles deducible from the above
are:
(1) The modern trend points to judicial
restraint in administrative action.
(2) The court does not sit as a court of appeal
but merely reviews the manner in which
the decision was made.
(3) The court does not have the expertise to
correct the administrative decision. If a
review of the administrative decision is
permitted it will be substituting its own
decision, without the necessary expertise
which itself may be fallible.
(4) The terms of the invitation to tender cannot
be open to judicial scrutiny because the
invitation to tender is in the realm of
contract. Normally speaking, the decision
to accept the tender or award the contract
is reached by process of negotiations
through several tiers. More often than not,
such decisions are made qualitatively by
experts.
(5) The Government must have freedom of
contract. In other words, a fair play in the
joints is a necessary concomitant for an
administrative body functioning in an
administrative sphere or quasi-
WP(C) No.35596 of 2025 Page 19 of 56
administrative sphere. However, the
decision must not only be tested by the
application of Associated Provincial Picture
Houses Vrs. Wednesbury Corpn., (1948) 1
K.B. 223 (CA) 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.”
25. It has also been held in ABL International Ltd.
Vrs. Export Credit Guarantee Corpn. of India
Ltd., (2004) 3 SCC 553, as under:
„53. From the above, it is clear that when an
instrumentality of the State acts contrary to
public good and public interest, unfairly,
unjustly and unreasonably, in its
contractual, constitutional or statutory
obligations, it really acts contrary to the
constitutional guarantee found in Article 14
of the Constitution.‟
26. In Jagdish Mandal Vrs. State of Orissa, (2007)
14 SCC 517, this Court after discussing number
of judgments laid down two tests to determine
the extent of judicial interference in tender
matters. They are:
WP(C) No.35596 of 2025 Page 20 of 56
„22. *
(i) Whether the process adopted or decision
made by the authority is mala fide or
intended to favour someone;
or
(ii) Whether the process adopted or decision
made is so arbitrary and irrational that the
court can say:
„the decision is such that no responsible
authority acting reasonably and in
accordance with relevant law could have
reached;
Whether public interest is affected.‟
If the answers are in the negative, there
should be no interference under Article
226.
Cases involving blacklisting or imposition
of penal consequences on a tenderer/contractor
or distribution of State largesse (allotment of
sites/shops, grant of licences, dealerships and
franchises) stand on a different footing as they
may require a higher degree of fairness in
action.‟
27. In Mihan (India) Ltd. Vrs. GMR Airports Ltd.,
(2022) 19 SCC 69, while observing that the
Government contracts granted by the
Government bodies must uphold fairness,
equality and rule of law while dealing with the
contractual matters, it was observed as under:
„50. In view of the above, it is apparent that in
Government contracts, if granted by the
WP(C) No.35596 of 2025 Page 21 of 56
Government bodies, it is expected to
uphold fairness, equality and rule of
law while dealing with contractual
matters. Right to equality under
Article 14 of the Constitution of India
abhors arbitrariness. The transparent
bidding process is favoured by the Court to
ensure that constitutional requirements are
satisfied. It is said that the
constitutional guarantee as provided
under Article 14 of the Constitution of
India demands the State to act in a
fair and reasonable manner unless
public interest demands otherwise. It is
expedient that the degree of compromise of
any private legitimate interest must
correspond proportionately to the public
interest.‟
28. It was sought to be submitted by the learned
counsel for the respondents relying upon the
observations made in Central Coalfields Ltd.
Vrs. SLL-SML (JVC), (2016) 8 SCC 622, that
whether a term of NIT is essential or not is a
decision taken by the employer which should be
respected. However, in the said judgment also it
is observed that if the employer has
exercised the inherent authority to deviate
from the essential term, such deviation has
to be made applicable to all the bidders
and potential bidders. It was observed in
paras 47 and 48 as under:
„47. The result of this discussion is that the
issue of the acceptance or rejection of a bid
WP(C) No.35596 of 2025 Page 22 of 56
or a bidder should be looked at not only
from the point of view of the unsuccessful
party but also from the point of view of the
employer. As held in Ramana Dayaram
Shetty Vrs. International Airport Authority
of India, (1979) 3 SCC 489 the terms of
NIT cannot be ignored as being
redundant or superfluous. They must
be given a meaning and the necessary
significance. As pointed out in Tata
Cellular Vrs. Union of India, (1994) 6 SCC
651 there must be judicial restraint in
interfering with administrative action.
Ordinarily, the soundness of the
decision taken by the employer ought
not to be questioned but the decision-
making process can certainly be
subject to judicial review. The
soundness of the decision may be
questioned if it is irrational or mala
fide or intended to favour someone or
a
decision „that no responsible
authority acting reasonably and in
accordance with relevant law could
as held in Jagdish Mandal
have reached‟
Vrs. State of Orissa, (2007) 14 SCC 517
followed in Michigan Rubber (India) Ltd.
Vrs. State of Karnataka, (2012) 8 SCC 216.
48. Therefore, whether a term of NIT is
essential or not is a decision taken by the
employer which should be respected. Even
if the term is essential, the employer
has the inherent authority to deviate
from it provided the deviation is made
WP(C) No.35596 of 2025 Page 23 of 56
applicable to all bidders and potential
bidders as held in Ramana Dayaram
Shetty Vrs. International Airport Authority
of India, (1979) 3 SCC 489. However, if the
term is held by the employer to be ancillary
or subsidiary, even that decision should be
respected. The lawfulness of that
decision can be questioned on very
limited grounds, as mentioned in the
various decisions discussed above, but
the soundness of the decision cannot
be questioned, otherwise this Court
would be taking over the function of
the tender issuing authority, which it
cannot
.‟ ‟ *
7.3. It may be pertinent to refer to judgment of the Hon'ble
Supreme Court in Vidarbha Irrigation Development
Corporation Vrs. Anoj Kumar Agarwala, (2020) 17
SCC 577, wherein it has been observed as follows:
„14. The law on the subject is well settled. In Bakshi
Security & Personnel Services (P) Ltd. Vrs.
Devkishan Computed (P) Ltd., (2016) 8 SCC 446,
this Court held:
„14. The law is settled that an essential
condition of a tender has to be strictly
complied with. In Poddar Steel Corpn. Vrs.
Ganesh Engg. Works, (1991) 3 SCC 273
this Court held as under:
„6. The requirements in a tender notice *
can be classified into two categories—
those which lay down the essential
conditions of eligibility and the others
WP(C) No.35596 of 2025 Page 24 of 56
which are merely ancillary or
subsidiary with the main object to be
achieved by the condition. In the first
case the authority issuing the tender
may be required to enforce them rigidly.
In the other cases it must be open to
the authority to deviate from and not to
insist upon the strict literal compliance
with the condition in appropriate
cases.‟
15. Similarly in B.S.N. Joshi & Sons Ltd. Vrs.
Nair Coal Services Ltd., (2006) 11 SCC 548
this Court held as under:
„(i) if there are essential conditions, the
same must be adhered to;
(ii) if there is no power of general
relaxation, ordinarily the same shall
not be exercised and the principle of
strict compliance would be applied
where it is possible for all the parties to
comply with all such conditions fully;
(iii) if, however, a deviation is made in
relation to all the parties in regard to
any of such conditions, ordinarily again
a power of relaxation may be held to be
existing;
(iv) the parties who have taken the benefit
of such relaxation should not ordinarily
be allowed to take a different stand in
relation to compliance with another part
of tender contract, particularly when he
was also not in a position to comply
WP(C) No.35596 of 2025 Page 25 of 56
with all the conditions of tender fully,
unless the court otherwise finds
relaxation of a condition which being
essential in nature could not be relaxed
and thus the same was wholly illegal
and without jurisdiction;
(v) when a decision is taken by the
appropriate authority upon due
consideration of the tender document
submitted by all the tenderers on their
own merits and if it is ultimately found
that successful bidders had in fact
substantially complied with the purport
and object for which essential
conditions were laid down, the same
may not ordinarily be interfered with;‟
16. We also agree with the contention of Shri
Raval that the writ jurisdiction cannot be
utilised to make a fresh bargain between
parties.‟
15. However, the learned counsel appearing on
behalf of the appellant strongly relied upon
Afcons Infrastructure Ltd. Vrs. Nagpur Metro
Rail Corpn. Ltd., (2016) 16 SCC 818, and paras
14 and 15 in particular, which state:
„14. We must reiterate the words of caution that
this Court has stated right from the time
when Ramana Dayaram Shetty Vrs.
International Airport Authority of India,
(1979) 3 SCC 489 was decided almost 40
years ago, namely, that the words used in
the tender documents cannot be ignored or
WP(C) No.35596 of 2025 Page 26 of 56
treated as redundant or superfluous— they
must be given meaning and their
necessary significance. In this context, the
use of the word “metro” in Clause 4.2(a) of
Section III of the bid documents and its
connotation in ordinary parlance cannot be
overlooked.
15. We may add that the owner or the
employer of a project, having authored the
tender documents, is the best person to
understand and appreciate its
requirements and interpret its documents.
The constitutional courts must defer to this
understanding and appreciation of the
tender documents, unless there is mala
fide or perversity in the understanding or
appreciation or in the application of the
terms of the tender conditions. It is
possible that the owner or employer of a
project may give an interpretation to the
tender documents that is not acceptable to
the constitutional courts but that by itself is
not a reason for interfering with the
interpretation given.‟
16. It is clear even on a reading of this
judgment that the words used in the tender
document cannot be ignored or treated as
redundant or superfluous— they must be
given meaning and their necessary
significance. Given the fact that in the
present case, an essential tender condition
which had to be strictly complied with was
not so complied with, the appellant would
WP(C) No.35596 of 2025 Page 27 of 56
have no power to condone lack of such
strict compliance. Any such condonation,
as has been done in the present case,
would amount to perversity in the
understanding or appreciation of the terms
of the tender conditions, which must be
interfered with by a constitutional court.‟
” *
9. Having taken note of the above principles as enunciated
by the Hon’ble Supreme Court of India and noticed by a
co-ordinate Bench of this Court in the case of Vedika
Resources Vrs. National Aluminium Company Ltd., 2025
SCC OnLine Ori 4148 referred to supra, on scrutiny of the
papers enclosed with the writ petition, it would transpire
that:
i. Clause 2.1 of Annexure-I to ITB speaks of payment
of the EMD or Bid Security along with the bid at 1%
of the estimated contract value (ECV) or as
mentioned in the bid document.
ii. Clause 16.1 of Annexure-III to ITB spells out that
the bidder shall furnish, as part of his Bid, a Bid
Security for an amount of Rs.2,15,40,000/- for this
particular work in online mode.
iii. Clause 13 of Section 1 of ITB under the Heading
―Preparation of Bids‖ specifically employs the
expression
“the contract shall be for the whole work
as described in sub-clause 1.l, based on the Lump-
WP(C) No.35596 of 2025 Page 28 of 56
Sum Price Bid submitted by the Bidder” and “the
bidder shall fill the total bid price as Lump-Sum Price
(both in figures and words) for execution of work on
Lump-Sum/Turnkey basis including all items of
.
works as specified in the Bid document”
9.1. From the undisputed facts adumbrated by the petitioner,
it can be culled out from paragraph 9 of the writ petition
that:
“That the Proceeding of Technical Evaluation Committee
meeting held on 29.10.2025, wherein it was mentioned
that the amount put to tender Rs.215.40 crores Lump-Sum.
EMD required Rs.2,15,40,000/-. The Committee examined
the technical bid documents of the bidders wherein seven
bidders qualified in technical bid including the petitioner
and the opposite party No.6, B.C. Bhuyan Construction Pvt.
Ltd.”
9.2. However, it is discernible by having a glance at paragraph
15 of the rejoinder affidavit filed by the petitioner that it
construed the amount put to tender valued at ―Rs.215.40
crores Lump-Sum‖, as if it is the ―estimated contract
value‖; the reason being that Clause 2.1 of Annexure-I to
ITB instructed to pay the EMD or the bid security along
with the bid @ l% of the estimate contract value and
Clause 16.1 of Annexure-III to ITB specified that the bid
security would be Rs.2,15,40,000/-. Nevertheless, it is
clarified by Ms. Aishwarya Dash, learned Additional
Standing Counsel that the ―amount put to tender‖ at
WP(C) No.35596 of 2025 Page 29 of 56
Rs.2,15,40,000/-, as reflected in the Proceedings of
Technical Evaluation Committee in its Meeting held on
29.10.2025, cannot be equated with the ―Lump-Sum
Price Bid‖ reflected in Clause 13 of Section 1 of ITB under
the Heading ―Preparation of Bids‖. Being the ―Lump-Sum‖
amount to be quoted by the bidders for execution of
works contract on turnkey basis, this Court finds force in
her submission that the bidder is instructed to fill the
total bid price as ―Lump-Sum Price‖ for execution of work
on turnkey basis, which includes all items of works as
specified in the Bid document. It is highlighted that the
ECV of the turnkey project has not been specified
anywhere in the RfP. Thus, the Lump-Sum Price quoted
in the bids has been taken as the basis for financial
evaluation.
9.3. Misreading or erroneous reading of the RfP and its terms
by the petitioner cannot grant it the benefit claimed. On a
plain reading, if a literal construction of the terms of the
RfP leads to no absurd or anomalous results, it is not for
the Court to resort to external tools to interpret the
contract. In Punjab State Power Corporation Limited and
another Vrs. EMTA Coal Limited, (2021) 11 SCR 772, it has
been re-stated thus:
“22. The principle of giving a plain and literal meaning to
the words in a Statute is well recognized for ages.
Though there are a number of judgments, we may
WP(C) No.35596 of 2025 Page 30 of 56
gainfully refer to the judgment of this Court delivered
by Das, J. as early as 1955 in the case of
Jugalkishore Saraf Vrs. Raw Cotton Company
Limited, (1955) 1 SCR 1369 :
„The cardinal rule of construction of statutes is to read
the statute literally, that is by giving to the words
used by the legislature their ordinary, natural and
grammatical meaning. If, however, such a reading
leads to absurdity and the words are susceptible
of another meaning the Court may adopt the
same. But if no such alternative construction is
possible, the Court must adopt the ordinary rule of
literal interpretation.‟ *
It is a settled principle of law that when, upon a plain
and literal interpretation of the words used in a
Statute, the legislative intent could be gathered, it is
not permissible to add words to the Statute. Equally,
such an interpretation which would make some terms
used in a Statute otiose or meaningless, has to be
avoided.”
9.4. The petitioner participated in the process of tender with
full knowledge of the terms of the RfP. The requisite
compliance with the essential conditions is also not
unknown to it at the time of preparing and submission of
the bid. Thus, it cannot, when it is declared as the L-2
bidder on the basis of data provided by it to the tendering
authority, turn around to contend that provisions of
Clause 36 of Appendix-IX, Volume-II, OPWD Code being
not adhered to, the process of tender is required to be
scrapped. The following is succinctly said in Municipal
WP(C) No.35596 of 2025 Page 31 of 56
Committee Katra Vrs. Ashwani Kumar, 2024 SCC OnLine
SC 840 :
“18. The situation at hand is squarely covered by the latin
maxim „nullus commodum capere potest de injuria
sua propria‟, which means that no man can take
advantage of his own wrong. This principle was
applied by this Court in the case of Union of India
Vrs. Maj. Gen. Madan Lal Yadav, (1996) 4 SCC 127
observing as below:
„28. …In this behalf, the maxim nullus commodum
capere potest de injuria sua propria — meaning
no man can take advantage of his own
wrong — squarely stands in the way of
avoidance by the respondent and he is estopped
to plead bar of limitation contained in Section
123(2). In Broom‟s Legal Maxim (10th Edn.) at p.
191 it is stated:
„… it is a maxim of law, recognised and
established, that no man shall take advantage
of his own wrong; and this maxim, which is
based on elementary principles, is fully
recognised in courts of law and of equity, and,
indeed, admits of illustration from every branch
of legal procedure.‟
The reasonableness of the rule being manifest,
we proceed at once to show its application by
reference to decided cases. It was noted therein
that a man shall not take advantage of his
own wrong to gain the favourable
interpretation of the law. In support thereof,
the author has placed reliance on another
maxim frustra legis auxilium invocat quaerit qui
WP(C) No.35596 of 2025 Page 32 of 56
in legem committit. He relies on Perry Vrs.
Fitzhowe [[L.R.] 8 Q.B. 757 : 15 LJ QB 239]. At
p. 192, it is stated that if a man be bound to
appear on a certain day, and before that day
the obligee puts him in prison, the bond is void.
At p. 193, it is stated that “it is moreover a
sound principle that he who prevents a thing
from being done shall not avail himself of the
non-performance he has occasioned”. At p. 195,
it is further stated that
“a wrong doer ought
not to be permitted to make a profit out of
. At p. 199 it is observed that
his own wrong”
“the rule applies to the extent of undoing the
advantage gained where that can be done and
not to the extent of taking away a right
previously possessed.‟
19. It is beyond cavil of doubt that no one can be
permitted to take undue and unfair advantage
of his own wrong to gain favourable
interpretation of law. It is a sound principle that he
who prevents a thing from being done shall not avail
himself of the non-performance he has occasioned. To
put it differently, „a wrong doer ought not to be
permitted to make profit out of his own wrong‟. The
conduct of the respondent-writ petitioner is fully
covered by the aforesaid proposition.”
9.5. Since the RfP does not admit of any inconsistency in
perceiving that it is a turnkey project and the bidders are
required to quote the Lump-Sum Price, the application of
provisions of Clause 36 of Appendix-IX of Volume-II of
OPWD Code could be dispensed with by the tendering
authority, who is the best judge to understand the
WP(C) No.35596 of 2025 Page 33 of 56
requirements for identifying the lowest bidder. However,
for the purpose of taking punitive measures like
blacklisting, which provisions are provided under
different Appendix/Chapter of the OPWD Code the RfP
may have incorporated such provisions to apply, but that
ipso facto does not give scope for the petitioner to contend
that all other provisions of the OPWD Code under
different Appendices contemplating very many other
situations would apply to the RfP in question. In order to
appreciate the stand taken by the petitioner, reference to
Annexure-I to ITB with Heading:
“Procedure to participate
In online bidding— e-procurement” is not irrelevant, which
stated thus:
the Officer Inviting Tender shall
“14.8Accordingly,
recommend to the Chief Manager (Tech) State
Procurement Cell, Odisha for blocking of portal
registration of bidder and simultaneously action shall
also be initiated by Officer inviting tender for
blacklisting as per Appendix-XXXIV of OPWD code
Volume-II.”
4
9.6. The adoption of method for blocking portal registration
5
and blacklisting of contractors for enforcement of timely
execution of contract under different Appendices of the
OPWD Code cannot have any impact on the evaluation
4
See, Appendix-IX(A) of Volume-II of OPWD Code dealing with ―Executive
instructions regarding calling for and acceptance of tender in e-procurement‖
specifies in Clause 23 thereof modalities for ―blocking of portal registration‖.
5
See, Appendix XXXIV of Volume-II of OPWD Code dealing with ―Codal provisions
for blacklisting contractors‖.
WP(C) No.35596 of 2025 Page 34 of 56
process of the Committee. Neither is mala fides attributed
to any of the members of the Committee or tendering
authority, nor is discriminatory treatment alleged by the
petitioner vis-à-vis other participants. The procedure for
taking coercive measures, as provided under the OPWD
Code, has been adopted to prevent default by the
contractors. This aspect has no bearing on the evaluation
process undertaken to identify the lowest bid. Minute
excursion of the RfP under the Heading ―Bid Datasheet‖
given Annexure-III to ITB in Clause 22.3 clarifies that
“The “Financial Bids” of the responsive bidders shall be
opened online. During detail evaluation of the “Financial
Bid” of the lowest evaluated bidder, the responsiveness of
the bid will be further examined and if required, the bidder
shall be asked to clarify its offer through further
negotiation” .
9.7. On the facts emerging from the documents available on
record, it can safely be said that merely because for the
purpose of taking punitive action against the bidder/
contractor with respect to any specific default the
procedure laid in the OPWD Code is activated, this alone
is not germane consideration, to contend by the
petitioner, that the tendering authority could not be
selective in application of provisions of the OPWD Code. It
is, therefore, emphatically submitted placing heavy
reliance on said Clause 36 by Sri Prafulla Kumar Rath,
WP(C) No.35596 of 2025 Page 35 of 56
learned Senior Advocate that as the rate quoted by the
opposite party No.6 is not in consonance with the
mandate contained in Clause 36 of Appendix-IX, Volume-
II of the OPWD Code, such a bid ought to have been
rejected and the tender should have been finalized basing
on merits of rest of the bids. Much stress has been laid by
the learned Senior Advocate that the tendering authority
could not be allowed to adopt the fragmented and
selective method of tender norms, which has the effect of
defeating the doctrine of a level playing field, violating
legitimate expectation of uniform evaluation, and such a
recourse results in denial of equal treatment under Article
14 of the Constitution of India.
9.8. Such a stance of the petitioner has no substance. It is not
the case of the petitioner that the tendering authority/
Financial Evaluation Committee has adopted different
standards for different bidders in the present case. The
Proceedings of the Committee in the instant case
demonstrates that the Lump-Sum Price quoted by
individual bidders (seven bidders) was the basis for
deciding lowest tenderer.
9.9. In Punjab State Power Corporation Limited Vrs. EMTA Coal
Limited, (2021) 11 SCR 772 it has been made clear that:
“26. The issue with regard to legitimate expectation has
been recently considered by a bench of this Court to
which one of us (L. Nageswara Rao, J.) was a
WP(C) No.35596 of 2025 Page 36 of 56
member. After considering various authorities on the
issue, in the case of Kerala State Beverages (M and
M) Corporation Limited Vrs. P.P. Suresh, (2019) 9 SCC
710 = (2019) 17 SCR 164, it was observed thus:
„20. The decision-makers‟ freedom to change
the policy in public interest cannot be
fettered by applying the principle of
substantive legitimate expectation. [Findlay,
In re, 1985 AC 318 = (1984) 3 WLR 1159 =
(1984) 3 All ER 801 (HL)]. So long as the
Government does not act in an arbitrary or in an
unreasonable manner, the change in policy does
not call for interference by judicial review on the
ground of a legitimate expectation of an
individual or a group of individuals being
defeated.”
9.10. In view of the scope of judicial review as delineated in
Agmatel India Pvt. Ltd. Vrs. Resoursys Telecom, (2022) 18
SCR 861 , this Court feels it apposite to give deference to
the understanding and appreciation of the tender
documents by the tendering authority, who is the best
person to interpret them. Court is not expert in
commercial tenders, so it should trust the judgment of
the authority that issued the tender. Unless there is mala
fide or perversity in the understanding or appreciation or
in the application of the terms of the tender conditions, it
is not apt for the Court to substitute its own view for that
of the technical experts, who have evaluated the bids. In
WP(C) No.35596 of 2025 Page 37 of 56
Om Gurusai Construction Company Vrs. V.N. Reddy,
(2023) 11 SCR 379 it has been reiterated as follows:
“25. In this case, the tendering authority, after due
verification, about the non-operation of the banks on
15.03.2021 and 16.03.2021 due to the strike by the
bank employees, had accepted the additional
performance security on 17.03.2021 and awarded
the work to the appellant. It is well settled by a long
line of judgments that the owner or the employer of a
project, having authored the tender documents, is the
best person to understand and appreciate its
requirements and interpret its documents. It has also
been held that the constitutional courts must defer to
this understanding and appreciation of the tender
documents by the employer unless there is mala fide
or perversity in the understanding or appreciation.
[See Afcons Infrastructure Limited Vrs. Nagpur Metro
Rail Corporation Limited and Another, (2016) 16 SCC
818 and Uflex Limited Vrs. Government of Tamil Nadu
and Others, (2022) 1 SCC 165)].
26. In this case, no mala fide has been alleged and the
interpretation as adopted by the tendering authority
cannot be said to be perverse. We also do not find
that the decision to accept the additional performance
security on 17.03.2021 and the issuance of the work
order was arbitrary and irrational. We also do not
find it to be a decision, which no responsible authority
acting reasonably and in accordance with law could
have reached. On facts, no case of prejudice to public
interest by the award of the work has also been
made out. In such circumstances, the High Court
ought not to have interfered with the acceptance of
WP(C) No.35596 of 2025 Page 38 of 56
the tender and the issuance of the work order in the
present case.”
10. The next plank of submission of the learned Senior
Counsel for the petitioner is that irrespective of nature of
tender, the provisions of the OPWD Code are required to
be scrupulously followed by the tendering authority
without any deviation. Quintessentially it is urged that in
the event of confusion or difficulty in the terms of the RfP
and the provisions of the OPWD Code, the latter should
prevail.
10.1. This question does not require extensive deliberation by
this Court. Suffice it to refer to Akshay Kumar Rout Vrs.
6
State of Odisha, 2026 ILR-CUT ONLINE 3566 , wherein it
has been held as follows:
“4. In course of hearing of the instant writ petition, an
additional affidavit is filed disclosing the letters
issued subsequently by the authority calling upon the
petitioner to appear and attend for negotiation which
again has been read and construed as a mandatory
direction to execute the work at the rate and the price
quoted by the lowest bidder. A plea is taken before
us that the OPWD Code is merely an executive
instruction having no force of law and, therefore,
the authorities cannot compel the second lowest
bidder to execute the work at a price not quoted by
the second lowest bidder and in support of the said
contention the reliance is placed upon the three judge
6
See also, Binodini Infrastructure Pvt. Ltd., Bhawanipatna Vrs. State of Odisha,
2026 ILR-CUT ONLINE 3252.
WP(C) No.35596 of 2025 Page 39 of 56
Bench decision of the Supreme Court in the case of
G.J. Fernandez Vrs. State of Mysore and others,
reported in AIR 1967 SC 1753 = 1967 SCC OnLine SC
68.
5. Such being the only argument advanced before us, let
us examine whether on a factual matrix, the law as
argued by the petitioner has any relevance or
applicability? It is no gain saying that in absence of
any statutory rule framed under Article 309 of the
Constitution of India in respect of a particular area,
aspect/subject the executive powers conferred under
Article 162 of the Constitution to make any provision
is eminently and evidently conferred upon the State.
The three judge Bench in G.J. Fernandez (supra) held
that the executive power of the State shall extend to
the matters with respect to which legislature of the
State has a power to make laws, which is further
indicative of the fact that such power is restrictive and
does not confer any power to issue a rule thereunder.
It is aimed to issue any executive instructions but
cannot be exercised to issue statutory rules and,
therefore, has its applicability in relation to its
enforcement between the State Government and the
servant and cannot be imposed upon a third party not
confers any power of its enforceability in the
following:
„12. Thus under Article 162, the State *
Government can take executive action in all
matters in which the legislature of the State can
pass laws. But Article 162 itself does not confer
any rule making power on the State Government
in that behalf. We are therefore of opinion that
instructions contained in the Code are mere
WP(C) No.35596 of 2025 Page 40 of 56
administrative instructions and are not statutory
rules. Therefore even if there has been any
breach of such executive instructions that does
not confer any right on the appellant to apply to
the court for quashing orders in breach of such
instructions. It is unnecessary for us to decide
whether there has been in fact a breach of any
instruction contained in the Code with respect to
tenders and we do not therefore so decide. But
assuming that there has been any breach that is
a matter between the State Government and its
servant, and the State Government may take
disciplinary action against the servant
concerned who disobeyed these instructions.
But such disobedience did not confer any right
on a person like the appellant, to come to court
for any relief based on the breach of these
instructions. It is for this reason that we are not
referring to the Code, though the High Court did
consider whether there was any breach of these
administrative instructions and came to the
conclusion that there was no breach. In the view
we take it is unnecessary for us to consider this,
for we are of opinion that no claim for any relief
before a court of law can be founded by a
member of the public, like the appellant, on the
breach of mere administrative instructions.‟
6. In a subsequent judgment rendered in the case
of P. Tulsi Das and others Vrs. Government of
Andhra Pradesh and others, reported in AIR
2003 SC 43 = (2003) 1 SCC 364, the Apex Court
held that there is no fetter put on the State to
take recourse to the executive powers enshrined
under Article 162 of the Constitution in absence
WP(C) No.35596 of 2025 Page 41 of 56
of any Rules framed under Article 309 of the
Constitution and, therefore, appears to be co-
extensive with the legislative powers laying
down the conditions of service and the right
accrued to or acquired by the citizen in the
following:
„14. On a careful consideration of the principles
laid down in the above decisions in the
light of the fact situation in these appeals
we are of the view that they squarely
apply on all fours to the cases on hand in
favour of the appellants. The submissions
on behalf of the respondent State that the
rights derived and claimed by the
appellants must be under any statutory
enactment or rules made under Article 309
of the Constitution of India and that in
other respects there could not be any
acquisition of rights validly, so as to
disentitle the State to enact the law of the
nature under challenge to set right serious
anomalies which had crept in and
deserved to be undone, does not merit our
acceptance. It is by now well settled that in
the absence of rules under Article 309 of
the Constitution in respect of a particular
area, aspect or subject, it is permissible for
the State to make provisions in exercise of
its executive powers under Article 162
which is coextensive with its legislative
powers laying conditions of service and
rights accrued to or acquired by a citizen
would be as much rights acquired under
law and protected to that extent. The
WP(C) No.35596 of 2025 Page 42 of 56
orders passed by the Government, from
time to time beginning from February 1967
till 1985 and at any rate up to the passing
of the Act, to meet the administrative
exigencies and cater to the needs of public
interest really and effectively provided
sufficient legal basis for the acquisition of
rights during the period when they were in
full force and effect. The orders of the High
Court as well as the Tribunal also
recognised and upheld such rights and
those orders attained finality without being
further challenged by the Government, in
the manner known to law. Such rights,
benefits and perquisites acquired by the
teachers concerned cannot be said to be
rights acquired otherwise than in
accordance with law or brushed aside and
trampled at the sweet will and pleasure of
the Government, with impunity.
Consequently, we are unable to agree that
the legislature could have validly denied
those rights acquired by the appellants
retrospectively not only depriving them of
such rights but also enact a provision to
repay and restore the amounts paid to
them to the State. The provisions of the Act,
though can be valid in its operation “in
futuro” cannot be held valid insofar as it
purports to restore status quo ante for the
past period taking away the benefits
already available, accrued and acquired
by them. For all the reasons stated above
the reasons assigned by the majority
opinion of the Tribunal could not be
WP(C) No.35596 of 2025 Page 43 of 56
approved in our hands. The provisions of
Sections 2 and 3(a) insofar as they purport
to take away the rights from 10.02.1967
and obligate those who had them to repay
or restore them back to the State are
hereby struck down as arbitrary,
unreasonable and expropriatory and as
such are violative of Articles 14 and 16 of
the Constitution of India. No exception
could be taken, in our view, to the
prospective exercise of powers thereunder
without infringing the rights already
acquired by the appellants and the
category of the persons similarly situated
whether approached the courts or not
seeking relief individually. The provisions
contained in Section 2 have to be read
down so as to make it only prospective, to
save the same from the unconstitutionality
arising out of its retrospective application.‟
7. In an earlier decision rendered in the case of
Ramana Dayaram Shetty Vrs. International
Airport Authority of India and others, reported in
AIR 1979 SC 1628 = (1979) 3 SCC 489, the apex
Court held that when the obligation of the State
to follow a norm, gives rise to co-extensive right
of a citizen; it imbibed within itself a right on the
citizenry to invoke judicial review for enforcing
such right. However, in the decision rendered in
the case of R. Sai Bharathi Vrs. J. Jayalalitha
and others, reported in AIR 2004 SC 692 =
(2004) 2 SCC 9, the apex Court held that, even if
the Government order is traced to have been
issued under the executive power of the State
WP(C) No.35596 of 2025 Page 44 of 56
emanating from Article 162 of the Constitution,
the Code will not be enforceable if the language
used therein is not in mandatory terms and
intended to issue mere guidelines or the
instructions to the person concerned or the
authority.
8. We do not find any trace of a legislative power
to make the rules exercised by the authority
while issuing the OPWD Code as the same is an
executive instruction/guidelines issued by the
authority for its adherence in relation to the
subject and/or aspect engulfed therein in the
event any departure is made. We do not find
any fetter having put in the above noted decision
seeking a strict adherence thereof provided the
language used in the executive instruction is in
mandatory form. We did not dialect much on the
aspect and limit open to be discussed in another
case as we find from the facts germinating from
the record that the same can be decided on the
basis thereof.”
10.2. This apart, one must bear in mind that the codal
provisions contained in the OPWD Code are executive
instructions and they are mere procedures to facilitate
smooth functioning of works entrusted to the contractors.
It is well settled that procedural laws must be liberally
construed to serve as handmaid of justice and not as its
mistress. [See, Sardar Amarjit Singh Kalra Vrs. Pramod
Gupta, (2003) 3 SCC 272, N. Balaji Vrs. Virendra Singh,
(2004) 8 SCC 312 and Kailash Vrs. Nanhku, (2005) 4 SCC
WP(C) No.35596 of 2025 Page 45 of 56
480]. This Court in Akbar Mohammed Vrs. State of
Odisha, 2006 SCC OnLine Ori 33 held,
The Supreme Court in the case of G.J. Fernandez Vrs.
“9.
State of Karnataka, AIR 1990 SC 958, laid down that
it is not that the authority inviting tenders cannot
deviate or relax the prescribed standard in any
situation. But any deviation if made, should not result
in arbitrariness or discrimination where it results in
arbitrariness or discrimination, the law as laid down
by the Supreme Court in the case of Ramana
Dayaram Shetty Vrs. The International Airport
Authority of India, AIR 1979 SC 1628 comes in for
application.
10. In the case of Raunaq International Ltd., AIR 1999 SC
393, the Supreme Court has cautioned that
intervention by the Court in contractual matters may
lead to considerable delay in execution of the project
and consequent escalation of cost and, therefore,
unless there is a substantial amount of public interest
or the transaction is entered into mala fide, the Court
should not intervene under Article 226 of the
Constitution in disputes between two rival tenderers.”
10.3. The contention of the petitioner is that invariably in every
tender wherever the rate is required to be quoted by the
bidder, it should be less than l5% of the amount put to
tender as per Clause 36 of Appendix-IX, Volume-II, OPDW
Code. In view of the position discussed supra , it is
fallacious to argue that in the event the rate is more, i.e.,
not in consonance with said Clause 36, such a bid is
required to be rejected. The tendering authority, being the
WP(C) No.35596 of 2025 Page 46 of 56
author, is the best person to understand and appreciate
its requirements and interpret its documents. This Court,
having no technical expertise, should not delve into the
arithmetical precision of the evaluation process adopted
by the Committee.
10.4. It is, therefore, in the opinion of this Court, that where
two views are possible, the one taken by the tendering
authority is to be respected. There is no, nor can there be
any, quarrel with the broad proposition of law in this
regard. Nevertheless, it cannot be an absolute proposition
that a writ court is barred from interfering with an
administrative action when manifest arbitrariness,
irrationality, unreasonableness, or perversity is evident in
the action of the authorities. Hence, if the language used
in a document is susceptible to two meanings or
interpretations, the one adopted by the authorities does
not invite any interference, even if the Court feels that the
other interpretation could have been more conveniently
adopted. Needless to say, where the language of the
document is unambiguous and leaves no room for
alternative interpretations, any contrary interpretation by
the authority would remove any inhibition on the writ
court to interfere.
Conclusion:
WP(C) No.35596 of 2025 Page 47 of 56
11. Certain preconditions or qualifications for tenders have to
be laid down to ensure that the contractor has the
capacity and the resources to successfully execute the
work. Article 14 of the Constitution prohibits the
Government from arbitrarily choosing a contractor at its
will and pleasure. It has to act reasonably, fairly and in
public interest in awarding contract. At the same time, no
person can claim it as a fundamental right to carry on
business with the Government. All that he can claim is
that in competing for the contract, he should not be
unfairly treated and discriminated, to the detriment of
public interest. Reference may be made to the decisions
in Air India Ltd. Vrs. Cochin International Airport Ltd.,
(2000) 2 SCC 617; Asia Foundation & Construction Ltd.
Vrs. Trafalgar House Construction (I) Ltd., (1997) 1 SCC
738; Krishnan Kakkanth Vrs. Govt. of Kerala, (1997) 9 SCC
495; Ugar Sugar Works Ltd. Vrs. Delhi Admn., (2001) 3
SCC 635; Sterling Computers Ltd. Vrs. M&N Publications
Ltd., (1993) 1 SCC 445; Union of India Vrs. Dinesh Engg.
Corpn., (2001) 8 SCC 491 .
11.1. Keeping abreast of the legal perspective delineated in the
afore-referred cases and having examined the factual
aspect obtained on record, this Court conceived that the
tendering authority has proceeded on the basis of the
total bid price disclosed as Lump-Sum Price in terms of
vide Annexure-III to
Clause 13.2 of ―Preparation of Bids‖
WP(C) No.35596 of 2025 Page 48 of 56
ITB. The terms of the RfP being unambiguous and the
tendering authority having understood the requirement in
the manner spelt out therein, in the absence of any
allegation of fraud, mala fides , or misrepresentation, the
petitioner has failed to successfully question the propriety
and legality of the decision of the tendering authority.
Apart from this, no procedural irregularity or vitiating
factor is discernible in the decision-making process of the
tendering authority or the Committee.
11.2. It may not be out of place to have reference to the
following observation contained in Air India Ltd. Vrs.
Cochin International Airport Ltd., (2000) 2 SCC 617 :
“7. The law relating to award of a contract by the State,
its corporations and bodies acting as instrumentalities
and agencies of the Government has been settled by
the decision of this Court in Ramana Dayaram Shetty
Vrs. International Airport Authority of India, (1979) 3
SCC 489, Fertilizer Corpn. Kamgar Union (Regd.) Vrs.
Union of India, (1981) 1 SCC 568, CCE Vrs. Dunlop
India Ltd., (1985) 1 SCC 260, Tata Cellular Vrs. Union
of India, (1994) 6 SCC 651, Ramniklal N. Bhutta Vrs.
State of Maharashtra, (1997) 1 SCC 134 and Raunaq
International Ltd. Vrs. I.V.R. Construction Ltd., (1999)
1 SCC 492. The award of a contract, whether it is by
a private party or by a public body or the State, is
essentially a commercial transaction. In arriving at a
commercial decision considerations which are
paramount are commercial considerations. The State
can choose its own method to arrive at a decision. It
can fix its own terms of invitation to tender and that is
WP(C) No.35596 of 2025 Page 49 of 56
not open to judicial scrutiny. It can enter into
negotiations before finally deciding to accept one of
the offers made to it. Price need not always be the
sole criterion for awarding a contract. It is free
to grant any relaxation, for bona fide reasons, if
the tender conditions permit such a relaxation.
It may not accept the offer even though it
happens to be the highest or the lowest. But the
State, its corporations, instrumentalities and
agencies are bound to adhere to the norms,
standards and procedures laid down by them
and cannot depart from them arbitrarily. Though
that decision is not amenable to judicial review, the
court can examine the decision-making process and
interfere if it is found vitiated by mala fides,
unreasonableness and arbitrariness. The State, its
corporations, instrumentalities and agencies have the
public duty to be fair to all concerned. Even when
some defect is found in the decision-making
process the court must exercise its discretionary
power under Article 226 with great caution and
should exercise it only in furtherance of public
interest and not merely on the making out of a
legal point. The court should always keep the larger
public interest in mind in order to decide whether its
intervention is called for or not. Only when it comes to
a conclusion that overwhelming public interest
requires interference, the court should intervene.”
11.3. The following observations in Monarch Infrastructure (P)
Ltd. Vrs. Ulhasnagar Municipal Corpn., (2000) 5 SCC 287
are significant:
“10. There have been several decisions rendered by this
Court on the question of tender process, the award of
WP(C) No.35596 of 2025 Page 50 of 56
contract and have evolved several principles in regard
to the same. Ultimately what prevails with the
courts in these matters is that while public
interest is paramount there should be no
arbitrariness in the matter of award of contract
and all participants in the tender process
should be treated alike. We may sum up the legal
position thus:
(i) The Government is free to enter into any contract
with citizens but the court may interfere where it
acts arbitrarily or contrary to public interest.
(ii) The Government cannot arbitrarily choose any
person it likes for entering into such a
relationship or to discriminate between persons
similarly situate.
(iii) It is open to the Government to reject even the
highest bid at a tender where such rejection is
not arbitrary or unreasonable or such rejection is
in public interest for valid and good reasons.”
11.4. Jespar I. Slong
The Hon’ble Supreme Court of India in
Vrs. State of Meghalaya, (2004) 11 SCC 485 , observed as
follows:
“It is seen from the above directions issued by the Court
that the High Court left open the question of reassessing
the value of the tender to the State authorities. However, it
directed them to take into consideration the report
submitted by the Enforcement Inspectors of the Motor
Vehicles Department. It did not prohibit the said authorities
from taking into consideration any other material which
was also available. Therefore, in our opinion, it was open
to the authorities to rely upon such other material as was
WP(C) No.35596 of 2025 Page 51 of 56
available to it while reassessing the value of the tender
but, of course, it also had to consider the report submitted
by the Enforcement Inspectors. By its order the High Court
had also not specifically held that the reasonable
assessment of the tender value made by it at Rs 40,29,600
was a conclusive value and the authorities were bound by
the same, because if it was so then there was no need to
give the direction to the State authorities to make a
reassessment on the material available to it. We think it is
clear from the above judgment that the reasonable
assessment of the tender value made by the High Court at
Rs 40,29,600 was only a tentative expression of opinion.
That apart, fixation of a value of the tender is
entirely within the purview of the executive and
courts hardly have any role to play in this process
except for striking down such action of the executive
as is proved to be arbitrary or unreasonable. From the
above findings of ours, it is clear that the Tender-
Acceptance Committee had the necessary authority to
reassess the value of the tender which it did by fixing the
value at Rs 2 crores. This value was fixed after taking into
consideration the report submitted by the Enforcement
Inspectors as also the report and data supplied by PWD
and if the said authorities thought it fit and safe to rely
upon the data supplied by the PWD authorities, we can
find no fault with the same. In this context in our opinion,
the Minister who disagreed with the recommendation of the
Tender-Acceptance Committee was in error in coming to the
conclusion that the figure of Rs 40,29,600 fixed by the
learned Single Judge in his order was a final value and the
State authorities had no right to differ from the same.”
11.5. In the instant case, all the participants are treated alike
and were given equal opportunity to participate in the
WP(C) No.35596 of 2025 Page 52 of 56
tender process. The Lump-Sum Price quoted by the
bidders were taken into consideration for evaluation of
financial bids submitted by all the seven bidders who
qualified in the technical evaluation stage. As the bid of
the opposite party No.6 was found to be the lowest bid, he
was declared successful and placed as L-1. The opposite
party No.6 having disclosed lowest Lump-Sum price
compared to six others including the petitioner, there is
no scope for this Court to interfere with the decision
taken by the tendering authority.
11.6. In the case of Gopal Chandra Sahu Vrs. State of Odisha,
2016 (I) ILR-CUT 439 the question arose whether the
authority is required to consider according to conditions
laid in tender vis-a-vis the OPWD Code, a Division Bench
of this Court has expressed the following view:
“23. It is not disputed before us that the authorities have
evaluated the price bids of the bidders in accordance
with the terms and conditions of the tender. It is also
not the case of the petitioner that his price bid has
been improperly evaluated or worked out. The only
plea of the petitioner is that as the rates offered by
him was 14.99.02% less than the estimated cost and
the rates quoted by the present opposite party no.6
was found to be 14.995% less than the estimated
cost, both the bids should have been counted as
14.99% less than the estimated cost and the tender
accepting authority should have finalized the tender
through a transparent lottery system in terms of
WP(C) No.35596 of 2025 Page 53 of 56
Clause36 of the OPWD Code, the provisions of which
are applicable to the present tender.
24. The terms and conditions of the tender cannot be
expanded or diluted by application of the provisions of
the OPWD Code, on the basis of a marginal note to the
provisions for deposit of additional performance
security in the contract data. Such marginal notes
cannot be considered as a legitimate aid to
construction of the provisions of the tender document.
The side notes are not to be considered as part of the
tender document and therefore such marginal notes
cannot be referred to for the purpose of construction of
the provisions of the tender document. (See-Guntaiah
and others Vrs. Hamamma and others, (2005) 6 SCC
228).
25. It is trite law that the terms and conditions of an
invitation to tender is not open to judicial scrutiny, as
the same is in the realm of contract. It is reiterated at
the risk of repetition that in the matter of formulating
conditions of a tender document and awarding a
contract, greater latitude is required to be conceded to
the State authorities and unless the action of
tendering authority is found to be malicious and a
misuse of its statutory powers, interference by Courts
is not warranted.
26. The petitioner having failed to show as to how the
authorities have acted in an arbitrary, unreasonable
and mala fide manner in dealing with his bid and
there being no impropriety or illegality in the selection
of opposite party No.6, we do not find any scope for
interference in exercise of extraordinary writ
jurisdiction. The writ petition being devoid of merits,
the same is accordingly dismissed. No costs.”
WP(C) No.35596 of 2025 Page 54 of 56
12. Careful reading of prayer(s) made in the writ petition
percolates the impression that the petitioner has sought
for quashing of Annexure-6, which is a self-serving
document. While entertaining the writ petition, it was
given to understand that the tender evaluation Committee
instead of evaluating the bids on the basis of percentage
on estimated contract value as per Clause 36 of
Appendix-IX of Volume-II of OPWD Code, it erroneously
taken the total bid price disclosed as Lump-Sum Price
given at Clause 16.1 of Annexure-III to ITB. Enclosing the
enumeration of financial evaluation (autogenerated BoQ)
at Annexure-E/4 to the counter affidavit it is submitted
by the learned Additional Standing Counsel that the
petitioner has placed its own calculation at Annexure-6 of
the writ petition, which does not match with the method
adopted by the Committee. Said BoQ summary details
depicts the following fact and figures:
“BoQ Summary Details
Tender Title:
Construction of New Banijyakar Bhawan at Chandrasekharpur,
Bhubaneswar on turnkey basis in the State of Odisha
Tender ID: 2025_EICCL_113988_1
Bidder Name Amount Bid Rank
Sheet
Name
Sl.
No.
BoQ 1 BC Bhuyan Construction Pvt. Ltd.
(BID ID 2995844)
1750000000 L-1
2 Sunil Kumar Agrawal, LLP (BID ID
2975722)
1831115400 L-2
3 V. Sathyamoorthy & Co. (BID ID
2981167)
1893000000 L-3
4 BPC Infraprojects Private Limited
(BID ID 2965777)
1973485000 L-4
5 NJR Constructions Pvt. Ltd. (BID 2000635200 L-5
WP(C) No.35596 of 2025 Page 55 of 56
ID 2996297)
6 KMV Projects Limited (BID ID
2993147)
2433804600 L-6
7 DEE VEE Projects Limited (BID ID
2995275)
2500794000 L-7
12.1. In the wake of the aforesaid detailed discussions and the
reasons ascribed in the foregoing paragraphs, this Court
finds that the perception of the petitioner is wholly
misconceived and without any valid foundational basis.
13.
Under the above premise, having found no merit in the
contention of the petitioner, there is no scope left for this
Court to show indulgence in the matter by exercise of
extraordinary writ jurisdiction. The writ petition, hence,
stands dismissed.
14. In view of dismissal of the writ petition, interim order
passed stands vacated and pending Interlocutory
Application(s), if any, is disposed of. In the circumstances,
there shall be no order as to costs.
I agree.
(HARISH TANDON) (MURAHARI SRI RAMAN)
CHIEF JUSTICE JUDGE
Signature Not
Verified
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal
Assistant (Secretary in-charge)
Reason: Authentication
Location: ORISSA HIGH
COURT, CUTTACK
Date: 12-Nov-2026 21:46:41
High Court of Orissa, Cuttack
The 12th November, 2026//Aswini/Bichi/ Laxmikant
WP(C) No.35596 of 2025 Page 56 of 56