Patna High Court

M/s S. K. TradersversusThe Bihar Public Service Commission, Patna

Decided: 12 February 2026
Disposal: DISMISSED
Bench: SUDHIR SINGH RAJESH KUMAR VERMA

Holding

The Court held that the petitioner’s failure to comply with a mandatory tender condition justified the Commission’s cancellation, forfeiture of EMD and debarment, and no interference was warranted.

Summary

The petitioner, M/s S. K. Traders, challenged the Bihar Public Service Commission's order cancelling its selection as the highest bidder, forfeiting its earnest money deposit and imposing a one‑year debarment. The Commission had acted after a show‑cause notice alleging that the petitioner concealed a prior debarment and submitted a false affidavit under Clause 6 of the NIT, which required a notarized statement of non‑blacklisting. The petitioner argued that debarment and blacklisting are distinct and that the tender did not require disclosure of prior debarment, relying on the Supreme Court’s Kimberley Club decision. The Commission contended that the affidavit required disclosure of any debarment and that the petitioner’s omission was material and misleading. The Court examined the scope of judicial review under Article 226, emphasizing that courts may not substitute their view for the tendering authority unless the decision is arbitrary, mala‑fide or illegal. It held that the tender condition was clear, mandatory, and the petitioner’s non‑compliance justified the cancellation, forfeiture and debarment. Consequently, the writ petition was dismissed.

Issues considered

Whether the Bihar Public Service Commission’s cancellation of the petitioner’s selection, forfeiture of EMD and imposition of debarment is arbitrary, illegal or beyond the terms of the NIT.
Whether Clause 6 of the NIT obliges a bidder to disclose prior debarment or only blacklisting.
Whether the court can intervene under Article 226 to set aside the Commission’s decision.
Whether the distinction between debarment and blacklisting is material for tender eligibility.

Subjects

tender
debarment
blacklisting
earnest money deposit
judicial review
Article 226
arbitrariness
public procurement
contractual obligations

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2038 of 2026
======================================================
M/s S. K. Traders through its Proprietor namely Shankar Kumar, aged about
51 years, (Male), Son of Jamuna Kumar Sahu, Residing at 30Kh, Dariyapur
Gola, Birla Mandir Road, Opposite Church Gate, P.S.- Pirbahore, District-
Patna- 800004.
... ... Petitioner/s
Versus
1. The Bihar Public Service Commission, Patna through its Secretary, 15,
Nehru Path, Bailey Road, Patna- 800001.
2. The Chairman, Bihar Public Service Commission, Patna.
3. The Secretary, Bihar Public Service Commission, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. S.S. Sundaram, Advocate
Mr. Ankit, Advocate
Mr. Aman Kumar, Advocate
For the Respondent/s : Mr. Sanjay Pandey, Advocate
Mr. Nishant Kumar Jha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

2 12-02-2026 Heard learned counsel for the parties.

2. The petitioner firm has filed the present writ

application challenging the order dated 23.01.2026 passed by

the Secretary, Bihar Public Service Commission, Patna,

whereby its selection as the highest bidder (H-1) pursuant to the

Short Term NIT dated 19.12.2025 was cancelled, its Earnest

Money Deposit (EMD) of Rs. 1,00,000/- was forfeited and it

was debarred for one year from participating in tenders issued

by the Commission. The petitioner was subsequently intimated

of the said decision through Memo No. 1718 dated 27.01.2026.
Patna High Court CWJC No.2038 of 2026(2) dt.12-02-2026
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It is not in dispute that the petitioner had participated in the

tender process within time and was declared H-1 after opening

of technical and financial bids. However, before issuance of the

work order, the petitioner was served with a show cause notice

alleging concealment of information regarding its prior

debarment for two years by Bihar State Text Book Publishing

Corporation Limited (BSTBPC) vide order dated 01.01.2024

and submission of a false affidavit under Clause 6 of the NIT.

Despite submitting a reply stating that the earlier order

amounted only to limited debarment and not blacklisting, and

that Clause 6 required disclosure only regarding blacklisting, the

Commission proceeded to cancel the petitioner’s selection,

forfeit the EMD and impose debarment, leading to filing of the

present writ petition.

3. Learned counsel for the petitioner submits that the

impugned action of the respondent Commission is wholly

arbitrary, illegal and dehors the terms and conditions of the NIT.

It is submitted that the tender conditions must be strictly

construed and the authority is bound by the four corners of the

NIT. Clause 6 of the NIT merely required submission of a

notarized affidavit regarding non-blacklisting and did not

mandate disclosure of any prior debarment by any other
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3/9

Government or Semi-Government body. The petitioner having

complied with the explicit requirement of the clause, the

respondents could not have read into it an additional condition

equating “debarment” with “blacklisting.”

4. Learned counsel for the petitioner further submits

that blacklisting and debarment are distinct legal concepts and

cannot be interchangeably applied unless expressly provided in

the tender document. In absence of a specific stipulation

requiring disclosure of prior debarment, the Commission has

travelled beyond the terms of the NIT and imposed penal

consequences without contractual foundation. It is submitted

that such action amounts to adding a new condition post facto,

which is impermissible in law.

5. Learned counsel for the petitioner places reliance

upon the judgment of the Hon’ble Supreme Court in Kimberley

Club Pvt. Ltd. vs. Krishi Utpadan Mandi Parishad & Ors.,

wherein it has been categorically held that the terms of a Notice

Inviting Tender must be clear and unambiguous and that the

tendering authority cannot import conditions not expressly

stipulated therein.

6. Learned counsel for the respondent Commission

submits that the petitioner has deliberately suppressed material
Patna High Court CWJC No.2038 of 2026(2) dt.12-02-2026
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information while submitting the notarized affidavit as required

under Clause 6 of the NIT. It is submitted that the requirement

of furnishing a notarized affidavit regarding non-blacklisting

necessarily obligated the bidder to disclose any order of

debarment or blacklisting passed by a Government or Semi-

Government authority. It is further submitted that debarment and

blacklisting are not materially different in substance, as both

result in exclusion of a bidder from participating in tender

processes and carry serious civil consequences.

7. Learned counsel for the respondent further submits

that the petitioner’s prior debarment by a Government

undertaking was a material fact directly relevant to its eligibility

and credibility. By failing to disclose the same and by stating

that it had not been blacklisted, the petitioner furnished an

affidavit which was misleading in effect. The object of Clause 6

was to ensure that only bidders with clean antecedents

participate in the tender process, and a narrow or technical

distinction between “debarment” and “blacklisting” cannot be

permitted to defeat that purpose. Therefore, the action of

cancellation of selection, forfeiture of EMD and imposition of

debarment is justified and in accordance with law.

8. The limited issue for consideration before this
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Court is whether, in the facts and circumstances of the present

case, this Court, in exercise of its power of judicial review under

Article 226 of the Constitution of India, is required to interfere

with the decision of the respondent Commission cancelling the

petitioner’s selection, forfeiting the EMD and imposing

debarment.

9. It is well settled that the scope of judicial review in

contractual and tender matters is limited. The Court does not sit

as an appellate authority over administrative decisions and

cannot substitute its own view for that of the competent

authority unless the decision-making process is shown to be

arbitrary, mala fide, discriminatory or in violation of statutory

provisions. The interference is confined to examining the

legality of the decision-making process and not the merits of the

decision itself.

10. In the present case, the requirement of submission

of a notarized affidavit formed part of the tender conditions. The

said condition was clear, unambiguous and mandatory in nature.

Participation in the tender process by the petitioner amounted to

acceptance of all the terms and conditions contained therein.

The petitioner cannot, after having participated in the process,

turn around and challenge the consequences flowing from non-
Patna High Court CWJC No.2038 of 2026(2) dt.12-02-2026
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compliance of an essential condition.

11. The respondent authority, being the author of the

tender document, is the best judge of the requirements of the

tender and the necessity of strict compliance with its terms. The

cancellation of selection, forfeiture of EMD and consequent

debarment have been imposed on account of breach of a

mandatory condition and not on any extraneous or irrelevant

consideration.

12. The decision relied upon by the petitioner in

Kimberley Club Pvt. Ltd. (supra) is clearly distinguishable on

facts. In the said case, the issue pertained to a different factual

matrix and the nature of the action under challenge was not

founded upon non-compliance of an essential eligibility

condition expressly stipulated in the tender document. The ratio

of that judgment cannot be extended to a case where the bidder

has admittedly failed to comply with a mandatory requirement

forming the basis of eligibility and contractual obligations.

13. On the contrary, the Hon’ble Supreme Court in

Tata Cellular vs. Union of India, (1994) 6 SCC 651, has

observed as follows:

“94. The principles deducible from the
above are:
(1) The modern trend points to judicial restraint in
administrative action.
Patna High Court CWJC No.2038 of 2026(2) dt.12-02-2026
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(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.”

14. Similarly, in Michigan Rubber (India) Ltd. vs.

State of Karnataka & Ors., (2012) 8 SCC 216, the Hon’ble

Supreme Court has observed as follows:

“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
Patna High Court CWJC No.2038 of 2026(2) dt.12-02-2026
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not whimsically for any ulterior purpose. If the
State acts within the bounds of reasonableness, it
would be legitimate to take into consideration the
national priorities;
(b) Fixation of a value of the tender is
entirely within the purview of the executive and the
courts hardly have any role to play in this process
except for striking down such action of the
executive as is proved to be arbitrary or
unreasonable. If the Government acts in conformity
with certain healthy standards and norms such as
awarding of contracts by inviting tenders, in those
circumstances, the interference by courts is very
limited;
(c) In the matter of formulating
conditions of a tender document and awarding a
contract, greater latitude is required to be conceded
to the State authorities unless the action of the
tendering authority is found to be malicious and a
misuse of its statutory powers, interference by
courts is not warranted;
(d) Certain preconditions or
qualifications for tenders have to be laid down to
ensure that the contractor has the capacity and the
resources to successfully execute the work; and
(e) If the State or its instrumentalities act
reasonably, fairly and in public interest in awarding
contract, here again, interference by court is very
restrictive since no person can claim a fundamental
right to carry on business with the Government.”

15. Applying the aforesaid settled principles, this

Court finds no illegality, irrationality or procedural impropriety

in the impugned action of the respondent authority. The

petitioner, having failed to comply with an essential condition of

the tender, cannot seek equitable relief under Article 226 of the
Patna High Court CWJC No.2038 of 2026(2) dt.12-02-2026
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Constitution of India.

16. Accordingly, no case for interference is made out.

The present writ petition is, therefore, dismissed.

17. Pending application(s), if any, shall also stand

disposed of.

(Sudhir Singh, J)

(Rajesh Kumar Verma, J)
Anushka/-
U

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