Patna High Court
Anand Kumar GuptaversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
Holding
The court held that the tender conditions are not arbitrary or unreasonable and that judicial interference is not warranted, resulting in dismissal of the petition.
Summary
The petitioner, a director of Mildwave Marketing Pvt. Ltd., challenged two tenders issued by Veer Kunwar Singh University for manpower and security services, alleging that the eligibility criteria – a minimum of nine years' experience and an average turnover of Rs.25 crore – were arbitrary, discriminatory and contrary to the General Financial Rules. The university defended the criteria as reasonable and necessary for efficient service delivery. The court examined whether it could intervene in the tendering authority's discretion under its writ jurisdiction. Relying on Supreme Court precedents that the tendering authority is best placed to set terms and that judicial review is limited to cases of arbitrariness, bias, or mala fides, the court found no such infirmity in the tender conditions. Consequently, the petition was dismissed for lack of merit.
Issues considered
- Can the court, exercising writ jurisdiction, vary or quash tender conditions that are within the exclusive prerogative of the tendering authority?
- Are the eligibility criteria of nine years' experience and Rs.25 crore turnover arbitrary, discriminatory, or mala fide under the General Financial Rules?
- Do the tender notices violate principles of fair competition and public procurement law?
Subjects
- tender
- procurement
- General Financial Rules
- arbitrariness
- judicial review
- public procurement
- eligibility criteria
- contract law
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.339 of 2026
======================================================
Anand Kumar Gupta Son of Suraj Narayan Gupta, Resident of Ward No. 22,
Mahajan Toli No.1, PS and District Arrah at Bhojpur, Bihar 802301, Director
of Mildwave Marketing Private Limited having its registered office at
1/2/H/20 Jiban Krishna Gosh Road, Kolkata, West Bengal- 700037.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Education Department,
Government of Bihar, Patna.
2. The Principal Secretary, Education Department, Government of Bihar,
Patna.
3. Veer Kunwar Singh University, Ara through its Registrar, Veer Kunwar
Singh University, Ara, District Ara at Bhojpur.
4. Registrar, Veer Kunwar Singh University, Ara, District Ara at Bhojpur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Ravi Ranjan, Advocate
For the Respondent/s : Mr.Ajay Kumar, AC to GP-4
For the University : Mr.Rajesh Pd. Chaudhary, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)
2 29-01-2026 Heard learned counsel for the parties.
2. Following reliefs are sought for in the present writ
petition:
“(i) For issuance of an appropriate writ in the
nature of Certiorari or any other writ of
similar nature for quashing the tender no.
1/2025 dated 23-12-2025 invited by
Respondent University for supply of manpower
services at Veer Kunwar Singh University, Ara
as also another tender being Tender no.
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1/2025 dated 23-12-2025 for supply of security
services on the ground that said tenders are
thoroughly illegal and in contravention of
norms prescribed by General Financial Rules.
(ii) For issuance of an appropriate writ in the
nature of Mandamus, commanding and
directing the Respondent University not to
proceed ahead in Tender no. 1/2025 as far as
supply of manpower to Veer Kunwar Singh
University, Ara as also for tender no. 1 for
supply of security service for said university, is
concerned as said tenders are thoroughly
illegal and acting further on its will constitute
further illegality.
(iii) For issuance of any other appropriate
writ/writs, order/orders, direction/directions
for which the writ petitioner is entitled under
the facts and circumstances of the case.”
3. The brief facts of the case are that the Respondent
Registrar, in terms of its office order dated 23.12.25, issued a
notice inviting tender vide ‘Tender No. 01/2025/Manpower
Services’ under two bid systems for providing manpower
services at Veer Kunwar University, Ara. Along with said notice
inviting tender, tender documents containing the terms and
conditions were also provided. Further, the Respondent
University issued another tender being ‘Tender No.
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1/2025/Security Services’ dated 23.12.2025 for the supply of
security services with the same terms and conditions. The
petitioner, who is a director of a company by the name
Mildwave Marketing Pvt. Ltd., has alleged that the terms and
conditions prescribed in both the tenders are arbitrary and
prescribed in such a manner that only large firms can apply for
said tenders. Being aggrieved by such arbitrary tender
conditions, which have ousted the petitioner from participation
in the tender process, the present writ petition has been
preferred before this Hon’ble Court.
4. Learned counsel for the petitioner submits that the
terms and conditions of the tender is unreasonable, tailormade to
benefit few selected categories of entrants and is not based upon
principle of fair play and competition. Learned Counsel for the
petitioner points out that as per stipulations of the terms of the
agreement, minimum 9 years of experience has been demanded
and an average turnover of Rs.25 crore for the last three
financial years has been prescribed. The said arbitrary condition
so imposed is clear indicator of favoritism as due to said
arbitrary clause, new and medium capable firms will be ousted
naturally. These conditions so imposed are not only highly
irrelevant in services like manpower outsourcing but also
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decreases competitiveness, and run contrary to the spirit of the
General Financial Rules.
5. Learned counsels for the respondents submit that
the terms and conditions prescribed in the impugned tender are
reasonable, justified, and non-discriminatory in nature. It is
submitted that the tendering authority, being the expert body, is
best placed to assess its requirements and to determine the
eligibility criteria necessary for the effective execution of the
services in question. Learned counsels further submit that the
conditions incorporated in the tender have been framed after due
consideration and are neither arbitrary nor vitiated by any
favoritism towards any selected categories of entrants.
Moreover, it is pointed out that the eligibility criteria have been
formulated solely in furtherance of public interest, with the
object of ensuring efficient and reliable service delivery, and not
to serve individual interest of any person.
6. The limited question that arises for consideration is,
whether the court can, in exercise of its writ jurisdiction, vary,
modify or alter tender conditions, when such prescription lies
within the exclusive prerogative of the tendering authority.
7. Upon perusal of the materials available on record
and submissions made on behalf of the parties, it is evident that
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the tender notices have been challenged mainly on two grounds:
first, that the tender notice prescribes a minimum nine years of
experience; and secondly, that the average turnover of the
participant is required to be Rs. 25 crores for the last three
financial years. These conditions have been alleged to be
unreasonable and arbitrary.
8. However, it is apparent that the aforesaid
conditions are not indicator of biasness or favouritism, rather it
has been framed by the tendering authority keeping in view the
nature and requirements of the work to be performed. The
authority inviting the tender, being the owner or employer of the
work, who authored the tender document, is the best person to
understand its functional needs and to determine the appropriate
eligibility criteria for ensuring proper execution of the work. In
this regard, it is relevant to take note of the decision of
Directorate of Education v. Educomp Datamatics Ltd.,
reported in (2004) 4 SCC 19, wherein Division Bench of the
Hon’ble Supreme Court observed that:
“11. This principle was again restated by this
Court in Monarch Infrastructure (P) Ltd. v.
Commr., Ulhasnagar Municipal Corpn. [(2000) 5
SCC 287] It was held that the terms and conditions
in the tender are prescribed by the Government
bearing in mind the nature of contract and in such
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matters the authority calling for the tender is the
best judge to prescribe the terms and conditions of
the tender. ...…
12. It has clearly been held in these decisions that
the terms of the invitation to tender are not open to
judicial scrutiny, the same being in the realm of
contract. That the Government must have a free
hand in setting the terms of the tender. It must have
reasonable play in its joints as a necessary
concomitant for an administrative body in an
administrative sphere. The courts would interfere
with the administrative policy decision only if it is
arbitrary, discriminatory, mala fide or actuated by
bias. It is entitled to pragmatic adjustments which
may be called for by the particular circumstances.
The courts cannot strike down the terms of the
tender prescribed by the Government because it
feels that some other terms in the tender would
have been fair, wiser or logical. The courts can
interfere only if the policy decision is arbitrary,
discriminatory or mala fide.”
9. Similarly, in the case of Afcons Infrastructure Ltd.
v. Nagpur Metro Rail Corpn. Ltd., reported in (2016) 16 SCC
818, the Hon’ble Supreme Court has observed that:
“15. We may add that the owner or the
employer of a project, having authored the
tender documents, is the best person to
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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.”
10. Further, the Hon’ble Supreme Court in the case of
Jagdish Mandal v. State of Orissa, reported in (2007) 14 SCC
517, while explaining the scope of judicial review in tender
matters, observed as follows:
“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
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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. …….”
11. Similarly, in the case of Uflex Ltd. v. State of T.N.,
reported in (2022) 1 SCC 165, the Hon’ble Supreme Court has
observed that:
“47. Insofar as the participating entities are
concerned, it cannot be contended that all and
sundry should be permitted to participate in
matters of this nature. In fact, in every tender
there are certain qualifying parameters whether
it be technology or turnover. The Court cannot
sit over in judgment on what should be the
turnover required for an entity to
participate. ..........”
12. In light of the foregoing discussions and settled
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position of law, this Court is of the view that the issue before us
for consideration is to be answered in the negative. It is well
recognized that the terms and conditions of a tender are
formulated by the tendering authority after taking into account
the nature of the work, the level of expertise required, and the
need to ensure effective and reliable execution of the services.
In such matters, the tendering authority is most suitably placed
to assess its requirements, and the Court must not substitute its
own view for that. The scope of judicial review in tender
matters is extremely limited and arises only in cases of
arbitrariness or unreasonableness.
13. Further, it is well settled that the nature of works
and services undertaken through tender processes varies from
case to case. In the present case, having regard to the nature,
scope, and requirements of the work involved, it cannot be said
that the eligibility conditions prescribed in the tender notice are
arbitrary or unreasonable. Owing to such variation in works and
services, it is neither feasible nor desirable to prescribe any rigid
or strait-jacket formula for laying down eligibility criteria. The
authority inviting the tender is required to frame such conditions
keeping in view the specific requirements, scope, and
complexities of the work involved. Consequently, each tender
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must necessarily be examined on the touchstone of its own facts
and requirements.
14. In view of the aforesaid discussion and the settled
legal position, we find no substance in the challenge raised by
the petitioner.
15. Accordingly, the present writ application stands
dismissed.
16. Pending application(s), if any, shall stand disposed
of.
(Sudhir Singh, J)
(Ritesh Kumar, J)
vinita/-
U
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