Patna High Court
Kaushal KishoreversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
Holding
The cancellation order was set aside as arbitrary because the disqualified bidder had waived his right to object, leaving no valid ground for cancellation.
Summary
The petitioner, Kaushal Kishore, was declared the lowest bidder (L-1) for a Rural Road Strengthening tender, but the Tender Committee cancelled the tender on the ground that a disqualified bidder, Praveen Kumar, had not been given adequate opportunity to submit required documents. Praveen Kumar later sent a letter admitting his failure to submit the payment certificate and Form 26AS and expressly waived any right to object or provide the documents. The court held that this waiver extinguished any grievance, making the Committee’s reliance on alleged denial of opportunity both factually incorrect and legally untenable. It further observed that the cancellation was arbitrary, violated the principles of fairness and Article 14, and ignored the material fact of the bidder’s waiver. Citing precedents on waiver and arbitrariness, the court set aside the cancellation order. Consequently, the writ petition was allowed, directing the respondents to proceed with awarding the contract to the petitioner.
Issues considered
- Whether the tender cancellation was justified despite the disqualified bidder's waiver of his right to object.
- Whether the cancellation violated Article 14 of the Constitution by being arbitrary and unreasonable.
- Whether the authority could cancel the tender under Clause 33 of the NIT without assigning a reason.
Subjects
- tender cancellation
- waiver
- arbitrariness
- Article 14
- public procurement
- e‑tender
- contractual discretion
- fairness
- transparency
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16089 of 2025
======================================================
Kaushal Kishore S/o Sahja Sharma, R/o Village-Bishunpura, P.O.-Manikpur,
P.S. Kurtha, District-Arwal.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Rural Work
Department, Government of Bihar, Patna.
2. The Additional Chief Secretary, Rural Work Department, Government of
Bihar, Patna.
3. The Engineer in Chief cum Additional Commissioner cum Special Secretary,
Rural Work Department, Government of Bihar, Patna.
4. Nodal Officer MMGSUY, Rural Works Department, Govt. of Bihar, Patna.
5. The Chief Engineer Rural Works Department, Bihar, Patna.
6. The Chief Engineer (2), Rural Works Division, Gaya.
7. Superintending Engineer, Rural Works Department, Aurangabad.
8. The Executive Engineer, Rural Works Department, Arwal.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ramakant Sharma, Sr. Advocate
Mr. Rajesh Kumar, Advocate
Mr. Priyansh Ranjan, Advocate
For the Respondent/s : Mr. Sanjay Prasad, AC to AAG-4
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)
3 25-03-2026 Heard the parties.
2. Following is the relief sought for in the present writ
application:-
“I. For quashing the letter dated
15.09.2025 issued by the Tender Committee
constituted under the Chairmanship of Respondent
No.-3, communicated vide E-letter dated 16.09.2025
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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by the Respondent No.-5, as contained in Annexure-
P:7 by which the Petitioner who was duly selected
in financial bid being L-1 against NIT No-
RRSMP/10/25-25, Package No- RRSMP/25-26
(Tender ID 143239) has been cancelled and order
for re-tender has been made.
II. For commanding the Respondents to
continue the contract and issue work order in favour
of the Petitioner as he has been duly selected being
L-1 for the execution of the said contract work.
III. For issuance of such other
appropriate order or direction which may deem fit
and proper in the facts and circumstances of the
present case.”
3. The brief facts of the present case are that an e-
tender bearing No. RRSMP-10/2025-26 was invited under the
signature of the Engineer-in-Chief-cum-Additional
Commissioner-cum-Special Secretary on 03.07.2025 for
execution of works under the Rural Road Strengthening and
Management Program (RRSMP), which was uploaded on the
departmental portal on 05.07.2025. The last date for submission
of bids was initially fixed as 01.08.2025 and was subsequently
extended to 08.08.2025. The petitioner, being eligible,
participated in the tender process for Package No. RRSMP/25-
26 (Tender ID 143239), Arwal-2. During the technical
evaluation, one of the bidders, namely Praveen Kumar (ID No.
624777), was declared disqualified on account of non-
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
3/14
submission of payment certificate and Form 26AS as required
for verification of Annual Turnover under the bid conditions.
Opportunity was granted to the bidders to raise objections;
however the said bidder did not avail the same. Thereafter, the
financial bid was opened and the petitioner was declared L-1
(lowest bidder). The case of the petitioner was also
recommended for issuance of work order by the Executive
Engineer. Subsequently, the Tender Committee, vide decision
dated 15.09.2025 (communicated on 16.09.2025), cancelled the
tender process and directed re- tendering on the ground that the
disqualified bidder was not afforded adequate opportunity.
4. The order under challenge is the Letter dated
15.09.2025 (Annexure- P/7) issued by the Tender Committee,
which is reproduced hereinbelow:-
“fcgkj ljdkj
xzkeh.k dk;Z foHkkx
fnukad%& 15@09@2025 dks lEiUu foHkkxh; fufonk lfefr dh cSBd
dh dk;Zokgh
mifLFkfr%&
(i) Jh nhid dqekj flag] vij eq[; lfpo] xzkeh.k dk;Z foHkkxA
(ii) bZ0 t; fd”kksj Bkdqj] vfHk;ark izeq[k] xzkeh.k dk;Z foHkkxA
(iii) bZ0 pUnz”ks[kj vktkn] eq[; vfHk;ark&3 ¼Hkkxyiqj½A
(iv) bZ0 vfuy dqekj] eq[; vfHk;ark&2 ¼x;k½A
(v) Jh vkehj uS;~;j] vkarfjd foRrh; lykgdkj] xzkeh.k dk;Z foHkkxA
2- cSBd esa 4515 (MMGSUY) ;kstuk ds vo;o ds :i esa xzkeh.k
lM+d lqn`<h+ dj.k ,oa izca/ku dk;Zdze vUrxZr E-Tendering ds ek/;e ls izkIr
dh x;h 02 fufonkvksa (Tender Id-141673 ,oa 142021) dk rduhdh chM ij
vfHk;ark izeq[k dh v/;{krk esa xfBr rduhdh chM lfefr }kjk rduhdh chM
dk fu’iknu fd;k x;k gS mDr nksuksa fufonkvksa dk foRrh; chM [kqyus ds
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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mijkar mDr fufonk ds L1 fufonkdkj dk ATO ds tkWap ds dze esa Payment
Certificate xyr ik;k x;k gS ,oa 01 fufonk (Tender Id-143239) esa
fufonkdkj Praveen Kumar }kjk Bid esa ATO ds lk{; ds :i esa tek fd,
tkus okys 26AS/ Payment Certificate Online tek ugha jgus ds dkj.k
v;ksX; ?kksf’kr fd;k x;k gS ,oa foRrh; chM dk;Zikyd vfHk;ark }kjk [kksyus
tkus ds vuq”kalk ds vkyksd esa [kksy fn;k x;k gS tcfd fufonkdkj Praveen
Kumar }kjk ATO ds lk{; ds :i esa 26AS/ Payment Certificate dh ekax
dh tkuh pkfg, Fkh pqfd CMBD dh dafMdk 24-2 esa Substantially Responsive
ATO dh ekax dh x;h gSA CMBD esa ATO ds tkap gsrq 26AS/ Payment
Certificate dh ekax dh tkuh gSA
mDr rhuksa fufonkvksa ds lac/ak esa foHkkxh; fufonk lfefr }kjk
fuEuor~ fu.kZ; fy;k tkrk gSA
5. Learned counsel for the petitioner submits that the
impugned action is arbitrary, unreasonable, and violative of
Article 14 of the Constitution of India. It is further submitted
that a concluded stage of tender evaluation cannot be nullified
on untenable and extraneous considerations.
6. Learned counsel further submits that even the basis
of the impugned action is factually unsustainable. It is pointed
out that the petitioner has brought on record, by way of
supplementary affidavit, a letter dated 12.09.2025 (Annexure-
P/8 to the supplementary affidavit) issued by the concerned
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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bidder, namely Praveen Kumar, addressed to the competent
authority, wherein he has categorically stated that he had
mistakenly not submitted the requisite certificates and that he
has neither filed any objection nor intends to do so in future.
The said matter is reproduced as under:-
“ DATE:-12/9/2025
lsok esa]
vij lpho egksn;
xzkeh.k dk;Z foHkkx] iVuk
fo’k;%& dk;Z ize.My vjoy R.R.S.M.P VsaMj bZMh
0143239 esa rduhdh fufonk ds laca/k esaA
egk”k;]
mi;ZqDr fo’k; ds lanHkZ esa dguk gS fd eSa bl
fufonk esa Hkkx fy;k Fkk eq>s bl fufonk esa A.T.O.
lacaf/kr Payment Certificate ,oa 26AS @”kiFk i=
esa rduhdh fufonk esa vlQy fd;k x;k gSA bl
fufonk esa esjs }kjk Payment Certificate ,oa 26AS/
“kiFk i= Hkqyo”k ugha yx Ikk;k Fkk blesa esjs }kjk
ifjokn@vkifRr Hkh ugha fn;k x;k gS vkSj Hkfo’; esa
ugha fn;k tk,xkA
vr% Jheku ls vuqjks/k gS fd esjs }kjk fn, x;s
vkosnu ij mphr fu.kZ; ysus fd d`I;k fd, tk,A
izfrfyfi%&
1- vfHk;ark izeq[k egksn;
2- uksMy R.R.S.M.P xzkeh.k dk;Z foHkkx
3- dk;Zikyd vfHk;ark xzkeh.k dk;Z foHkkx] vjoyA
fo”oklHkktu
izoh.k dqekj”
7. It is further submitted that the said letter was
forwarded by the Executive Engineer vide Memo No. 1490
dated 13.09.2025 (Annexure- P/9 to the supplementary
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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affidavit) to the higher authority, thereby leaving no ambiguity
regarding the position of the said bidder. The said document is
reproduced as under:-
“i=kad 1490 @ vjoy] fnukad 13-09-2025
izs’kd]
dk;Zikyd vfHk;ark]
xzkeh.k dk;Z foHkkx]
dk;Z ize.My] vjoyA
lsok esa]
vfHk;ark izeq[k]
xzkeh.k dk;Z foHkkx]
fcgkj] iVukA
fo’k;%& VsUMj vkbZ0Mh0&143239 esa laosnd izoh.k dqekj
}kjk fn;s x;s i= ds laca/k esaA
egk”k;]
mi;qZDr fo’k; ds laca/k esa dguk gS fd VsUMj
vkbZ0Mh0&143239 esa laosnd izoh.k dqekj us Hkkx fy;k
Fkk mUgsa bl fufonk esa layXu ATO ds lkFk flfoy
dk;Z ds lk{; ds :i esa Payment Certificate ,oa
26AS ugha layXu djus ds dkj.k mUgsa bl fufonk esa
vlQy fd;k x;k FkkA
laosnd izoh.k dqekj }kjk vius i= ds ek/;e
ls ;g lwfpr fd;k x;k gS fd os Hkwyo”k Payment
Certificate ,oa 26AS / “kiFk i= ugha yxk ik;s Fks
vkSj bUkds }kjk dksbZ ifjokn@vkifRr ugha fn;k x;k gS
vkSj Hkfo’; esa ugha fn;k tk;sxkA ¼izoh.k dqekj }kjk fn;s
x, i= dh Nk;k izfr layXu½A
vuq0&;FkksDrA
fo”oklHkktu
g0@&
dk;Zikyd vfHk;ark
xzkeh.k dk;Z foHkkx]
dk;Z ize.My] vjoyA”
8. In view thereof, learned counsel submits that the
very foundation of the impugned decision stands vitiated as the
concerned bidder himself has accepted that he had mistakenly
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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not submitted the requisite documents and waived any right to
object. It is, thus, submitted that the impugned order is
unsustainable in law and is liable to be set aside.
9. Per contra, learned counsel for the respondents
submits that the impugned decision has been taken after due
scrutiny by the Departmental Tender Committee in order to
ensure fairness and transparency in the tender process. It is
submitted that as per Clause 4.4A(a) of the CMBD, submission
of documents for verification of Annual Turnover (ATO),
including payment certificate/26AS, is mandatory. Although,
Clause 24.2 of the CMBD pertains to substantial
responsiveness, the requirement under Clause 4.4A(a) being
essential could not be dispensed with. It is further submitted that
since the financial bids had already been opened, the
confidentiality of rates stood compromised, and therefore, it was
not feasible to seek any further clarification from bidders. In
such circumstances, the decision to cancel the tender was
justified.
10. Learned counsel further submits that as per Clause
33 of the NIT, the competent authority reserves the right to
cancel the bidding process at any stage prior to award of
contract without assigning any reason. It is further submitted
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that the impugned decision is strictly in accordance with the
aforesaid clauses and does not warrant interference.
11. The limited issue for consideration before this
Court is whether the respondent authorities were justified in
cancelling the tender process on the ground of alleged denial of
opportunity to a bidder, when such bidder had, prior to the
impugned decision itself, waived his right to submit the
requisite documents or raise any objection.
12. Having heard learned counsel for the parties and
upon consideration of the materials available on record, it
transpires that the sole foundation of the impugned decision
dated 15.09.2025 is that one bidder, namely Praveen Kumar,
was disqualified for non-compliance of Clause 24.2 of the
CMBD and non-submission of 26AS/Payment Certificate as
required under Clause 4.4A, and that he was allegedly not
afforded adequate opportunity to respond to such
disqualification.
13. However, the materials on record unequivocally
demonstrate that prior to the impugned decision itself, the said
bidder had waived his right to submit the requisite documents or
to raise any objection. The letters dated 12.09.2025 and
13.09.2025 (Annexure- P/8 & P/9), clearly establish that the
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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said bidder consciously accepted his disqualification and
categorically stated that he neither intends to file any objection
nor to pursue the matter further.
14. In such circumstances, the very foundation of the
impugned decision becomes unsustainable and collapses. The
doctrine of waiver, which is a well-recognized principle in law,
postulates that where a person, with full knowledge of his rights,
voluntarily abandons or relinquishes the same, he cannot
subsequently be heard to complain. The Hon’ble Supreme Court
in Krishna Bahadur v. Purna Theatre, reported in (2004) 8
SCC 229 has held that a right can be waived by the party for
whose benefit it exists, even by conduct. The relevant part of the
said judgment reads as follows:
“10. A right can be waived by the party
for whose benefit certain requirements or conditions
had been provided for by a statute subject to the
condition that no public interest is involved therein.
Whenever waiver is pleaded it is for the party
pleading the same to show that an agreement
waiving the right in consideration of some
compromise came into being. Statutory right,
however, may also be waived by his conduct.”
15. Applying the aforesaid principle to the present
case, once the concerned bidder had, before the decision dated
15.09.2025, consciously and waived his right to object or to
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furnish documents, there remained no subsisting right or
grievance which required protection or consideration by the
respondent authorities. In such a situation, for the authorities to
subsequently rely upon an alleged denial of opportunity to that
very bidder as a ground for cancelling the entire tender process
is not only contradictory but also manifestly arbitrary.
16. This Court is unable to comprehend as to how a
ground, which had already ceased to exist by virtue of
Annexure-P/8 could have been resurrected to justify
cancellation of the tender. Such an approach clearly reflects
non-application of mind and consideration of an irrelevant
factor, while ignoring material facts available on record.
17. Further, it is well settled that while the State and
its instrumentalities possess discretion in contractual matters,
such discretion is not absolute and must conform to the mandate
of fairness, transparency, and non-arbitrariness under Article 14
of the Constitution. In Tata Cellular v. Union of India,
reported in (1994) 6 SCC 651, the Hon’ble Supreme Court
observed that judicial review is concerned with the decision-
making process, and interference is warranted where the
decision is arbitrary or based on irrelevant considerations. The
relevant part of the said judgment reads as follows:-
“94. The principles deducible from the
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above are:
(1) The modern trend points to judicial
restraint in administrative action.
(2) The court does not sit as a court of
appeal but merely reviews the manner in which the
decision was made.
(3) The court does not have the expertise
to correct the administrative decision. If a review of
the administrative decision is permitted it will be
substituting its own decision, without the necessary
expertise which itself may be fallible.
(4) The terms of the invitation to tender
cannot be open to judicial scrutiny because the
invitation to tender is in the realm of contract.
Normally speaking, the decision to accept the tender
or award the contract is reached by process of
negotiations through several tiers. More often than
not, such decisions are made qualitatively by
experts.
(5) The Government must have freedom
of contract. In other words, a fair play in the joints
is a necessary concomitant for an administrative
body functioning in an administrative sphere or
quasi-administrative sphere. However, the decision
must not only be tested by the application of
Wednesbury principle of reasonableness (including
its other facts pointed out above) but must be free
from arbitrariness not affected by bias or actuated
by mala fides.
(6) Quashing decisions may impose
heavy administrative burden on the administration
and lead to increased and unbudgeted expenditure.”
18. Likewise, in Jagdish Mandal v. State of Orissa,
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
12/14
reported in (2007) 14 SCC 517, it has been held that if a
decision is so arbitrary that no reasonable authority could have
arrived at it, the Court would be justified in interfering.
“22. Judicial review of administrative
action is intended to prevent arbitrariness,
irrationality, unreasonableness, bias and mala fides.
Its purpose is to check whether choice or decision is
made “lawfully” and not to check whether choice or
decision is “sound”. When the power of judicial
review is invoked in matters relating to tenders or
award of contracts, certain special features should
be borne in mind. A contract is a commercial
transaction. Evaluating tenders and awarding
contracts are essentially commercial functions.
Principles of equity and natural justice stay at a
distance. If the decision relating to award of
contract is bona fide and is in public interest, courts
will not, in exercise of power of judicial review,
interfere even if a procedural aberration or error in
assessment or prejudice to a tenderer, is made out.
The power of judicial review will not be permitted to
be invoked to protect private interest at the cost of
public interest, or to decide contractual disputes.
The tenderer or contractor with a grievance can
always seek damages in a civil court. Attempts by
unsuccessful tenderers with imaginary grievances,
wounded pride and business rivalry, to make
mountains out of molehills of some
technical/procedural violation or some prejudice to
self, and persuade courts to interfere by exercising
power of judicial review, should be resisted. Such
interferences, either interim or final, may hold up
public works for years, or delay relief and succour
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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to thousands and millions and may increase the
project cost manifold. Therefore, a court before
interfering in tender or contractual matters in
exercise of power of judicial review, should pose to
itself the following questions:
(i) Whether the process adopted or
decision made by the authority is mala fide or
intended to favour someone;
OR
Whether the process adopted or decision
made is so arbitrary and irrational that the court
can say: “the decision is such that no responsible
authority acting reasonably and in accordance with
relevant law could have reached”;
(ii) Whether public interest is affected.
If the answers are in the negative, there
should be no interference under Article 226. Cases
involving 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.”
19. In the present case, the cancellation of the tender
is based on a ground which is demonstrably factually incorrect
and legally untenable, inasmuch as the bidder concerned had
already waived his right. The decision, therefore, suffers from
arbitrariness, non-consideration of relevant material, and
reliance on a non-existent ground.
20. This Court also finds that once the tender process
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had progressed to the stage where the petitioner was declared L-
1, the respondents were expected to act in a fair and reasonable
manner, and any decision to annul such process ought to be
supported by cogent and valid reasons. The reason assigned in
the present case falls short of such standard.
21. Accordingly, this Court is of the considered
opinion that the impugned decision dated 15.09.2025 cancelling
the tender process suffers from serious infirmity and cannot be
sustained in law.
22. Consequently, the order dated 15.09.2025 is set
aside and the writ application is, accordingly, allowed.
23. Pending application(s), if any, shall also stand
disposed of.
(Sudhir Singh, J)
(Shailendra Singh, J)
Sachin/A.F.R.-
U
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