Abhilasha Commercial Private Limited Thru. Authorized Representative,Mr.Vivek Srivastava vs State of U.P. Thru. Prin. Secy. Deptt. of Basic Education and 3 Others

Heard Shri Dhruv Mathur, learned Senior Advocate assisted by Shri Tushar Mittal, learned counsel appearing for the petitioner, Shri Sharad Kumar Shukla and Shri Nayan Mittal, learned counsel appearing for Respondent No.4, Ms. Deepshikha, learned Chief Standing Counsel appearing for Respondent No.1 and Shri Sarvesh Kumar Dubey, learned counsel appearing for Respondent No.7.

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This is a writ petition under Article 226 of the Constitution of India wherein the petitioner is aggrieved by the rejection of his technical bid.

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The captioned writ petition has been filed by the petitioner inter alia praying therein for the following reliefs:-

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"I. Issue a Writ, order or direction in the nature of certiorari quashing the Impugned Technical Evaluation Result dated 22.12.2025 in respect of tender bearing No. GEM/2025/B/6719552 dated 23.09.2025 issued by the Respondent Nos. 1-3, insofar as it relates to the Petitioner, copy whereof is annexed to the instant Petition as Annexure-1;

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II. To issue a writ, order or direction in the nature of Mandamus commanding the Respondents to reconsider the technical bid of the Petitioner in respect of tender bearing No. GEM/2025/B/6719552 dated 23.09.2025, issued by the Respondent Nos. 1 - 3, after declaring the Petitioner as eligible;

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III. To issue a writ, order or direction in the nature of Mandamus directing the Respondents from not taking any further action, including but not limited to opening of the financial bid in furtherance to the technical evaluation dated 22.12.2025, issuance of Letter of Award and/or Execution of Contract and/or issuance of Work Order in respect of tender bearing No. GEM/2025/B/6719552 dated 23.09.2025, issued by the Respondent Nos. 1 to 3;

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In the alternative to prayer (1) and (II) above

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IV. Issue a Writ, order or direction in the nature of certiorari commanding the Respondents to quash the entire tender process, including any consequential actions taken, in respect of the tender process emanating from tender bearing No. GEM/2025/B/6719552 dated 23.09.2025, issued by the Respondent Nos. 1 - 3, and direct the Respondent Nos. 1-3 to conduct a fresh tendering process;

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V. To issue a writ, order or direction in the nature of Mandamus directing a court-monitored independent investigation into the tendering process emanating from the tender bearing No. GEM/2025/B/6719552 dated 23.09.2025, issued by the Respondent Nos. 1 - 3;

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VI. To issue a writ, order or direction in the nature of Mandamus directing laying down appropriate guidelines for inter alia the Respondent Nos. 1 - 3 to provide safeguards preventing collusion/cartelization and ensuring transparency and equal opportunity for all prospective bidder(s);"

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It is to be noted that technical bid of the petitioner has been rejected vide impugned order dated September 23, 2025 for the following reasons:-

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"Pre-Qualification: In the bid and clarification sought the bidder has not submitted work order issued in FY 2023-24 along with its completion. Proof of completion of work orders are not as per the bid requirement. Hence not qualified for technical evaluation."

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Shri Dhruv Mathur, learned Senior Advocate appearing for the

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petitioner has placed before this Court, a chart annexed at Page No. 170 of the writ petition to show work experience of the petitioner's company for the Financial Years 2022-23, 2023-2024 & 2024-25.

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Shri Dhruv Mathur, learned Senior Counsel has apprised the Court regarding work orders issued to the petitioner's company in the Financial Years 2022-23 & 2024-25 and he has also shown to the Court one work order issued on 30.03.2023 and has submitted that for all practical purposes, the work order dated 30.03.2023 can be treated as work experience for the Financial Year 2023-24.

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It has been submitted on behalf of the petitioner that for all practical purposes, petitioner's company possess required experience for three consecutive Financial Years i.e. 2022-23, 2023-24 & 2024-25, as per the terms of the tender document but in spite of that the respondent authority in an absolutely arbitrary manner had treated the work order issued on 30.03.2023 towards the experience for Financial Year 2022-23, whereas the work under the said work order had effectively been done in the Financial Year 2023-24.

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Learned counsel appearing for the petitioner has thus argued that the rejection of petitioner's technical bid by the respondent authority on its face is absolutely arbitrary and thus, the decision of rejection is liable to be quashed by this Court.

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Ms. Deepshikha, learned Chief Standing Counsel appearing for Respondent No.1 and Shri Sarvesh Kumar Dubey, learned counsel appearing for Respondent No.7 have argued that there can be two ways of evaluating required work experience of the petitioner's company that is either the dates of issuance of work orders or the dates of completion of work. It has further been submitted that if the work experience of the petitioner's company is counted by taking into account the dates of issuance of the work orders then it is admitted fact that the petitioner's company does not have any work order issued in Financial Year 2023-24 that is w.e.f. 01.04.2023 till 31.03.2024 and if the work experience is evaluated in terms of the dates of completion of the work then petitioner's company has not completed any work in the Financial Year 2022-23.

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Thus, on both the counts petitioner's company does not have documents relating to requisite works experience for three consecutive financial years in terms of the conditions of the tender document and therefore, the technical bid of the petitioner's company has been rejected.

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Leaned counsels appearing for the respondents have further submitted that the petitioner could not point out any arbitrariness or mala fide on the part of the respondent authorities and therefore, in view of the legal proposition settled by the Hon'ble Supreme Court through its catena of judgments, there is no occasion for this Court to interfere with the impugned order whereby technical bid of the petitioner had been rejected.

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We have heard learned counsels appearing for the parties and have perused the material available on record. Before scrutinizing the facts of the present case in detail we feel it appropriate to have a look over the judgments rendered by the Hon'ble Supreme Court, wherein the scope of interference in the tender matters by the Courts has been considered in detail.

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The Hon'ble Supreme Court in its judgment rendered in the case of Tata Motors Limited vs. The Brihan Mumbai Electric Supply and Transport Undertaking (Best) and others, reported in (2023) 19 SCC 1 had categorically held that the writ court should be slow to interfere in commercial matters specially in relation to tenders issued by the Government. The relevant paragraphs of the judgement are delineated below:-

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"55. Ordinarily, a writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer unless something very gross or palpable is pointed out. The court ordinarily should not interfere in matters relating to tender or contract. To set at naught the entire tender process at the stage when the contract is well underway, would not be in public interest. Initiating a fresh tender process at this stage may consume lot of time and also loss to the public exchequer to the tune of crores of rupees. The financial burden/implications on the public exchequer that the State may have to meet with if the Court directs issue of a fresh tender notice, should be one of the guiding factors that the Court should keep in mind. This is evident

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from a three-Judge Bench decision of this Court in Association of Registration Plates v. Union of India and Others, reported in (2005) 1 SCC 679 .

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56. The law relating to award of contract by the State and public sector corporations was reviewed in Air India Ltd. v. Cochin International Airport Ltd., reported in (2000) 2 SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that 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 powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. 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 interfere.

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57. As observed by this Court in Jagdish Mandal v. State of Orissa and Others, reported in (2007) 14 SCC 517 , that while invoking power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes."

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The Hon'ble Supreme Court in its judgment rendered in the case of Travancore Devaswom Board v. Ayyappa Spices, reported in (2024) 7 SCC 543 had discussed in detail the principles that would apply in

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relation to judicial review in tender matters. The relevant paragraphs of the judgement are delineated below:-

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"20. The principle that in matters of public tenders for procurement, judicial review is restrained is well established. In cases where a party invoking writ jurisdiction has been a participant in the tender process, courts should be slow and cautious in exercising the power of judicial review. In a recent decision, UFLEX Ltd. v. State of Tamil Nadu, this Court has held that constitutional courts should exercise caution while interfering in contractual and tender matters, disguised as public interest litigations.

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21. The following observations are important for the purpose of this case :

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"1. The enlarged role of the Government in economic activity and its corresponding ability to give economic "largesse" was the bedrock of creating what is commonly called the "tender jurisdiction". The objective was to have greater transparency and the consequent right of an aggrieved party to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, beyond the issue of strict enforcement of contractual rights under the civil jurisdiction. However, the ground reality today is that almost no tender remains unchallenged. Unsuccessful parties or parties not even participating in the tender seek to invoke the jurisdiction of the High Court under Article 226 of the Constitution. The public interest litigation (PIL) jurisdiction is also invoked towards the same objective, an aspect normally deterred by the Court because this causes proxy litigation in purely contractual matters.

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2. The judicial review of such contractual matters has its own limitations. It is in this context of judicial review of administrative actions that this Court has opined that it is intended to prevent arbitrariness, irrationality, unreasonableness, bias, and mala fides. The purpose is to check whether the choice of decision is made lawfully and not to check whether the choice of decision is sound. In evaluating tenders and awarding contracts, the parties are to be governed by principles of commercial prudence. To that extent, principles of equity and natural justice have to stay at a distance.

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3. We cannot lose sight of the fact that a tenderer or contractor with a grievance can always seek damages in a civil court and thus, "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."

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The Division Bench of this High Court after relying on several Supreme Court's judgments in Moksh Innovations Inc. v. State of U.P. and others reported in 2021 SCC OnLine All 206 also held as follows :-

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"10. The first and foremost question which falls for our consideration is as to what is the scope of judicial scrutiny in relation to a challenge made by an unsuccessful bidder, to a tender condition. There is no doubt that in regard to allotment of contract the action of the Government or its instrumentality are subject to judicial review, however, it is also equally well settled that a tender submitted in response to a NIT is only an offer which the Government or its instrumentality are under no obligation to accept. It is only that the participating tenderer should be dealt with in a fair and non-discriminatory manner in the matter of evaluation of tenders. Ordinarily scope of judicial scrutiny of a tender matter implies that terms of tender are not open to judicial scrutiny unless it is found that the same have been tailor-made to benefit a particular party or class of tenderers. It is also equally settled by a long line decisions by Hon'ble Supreme Court that a party having participated in the tender knowing that it was unsuccessful ordinarily, cannot be permitted to challenge the conditions of tender, as such after thought action on the part of the unsuccessful bidder is impermissible to be entertained by the Courts. It is trite law that a tenderer having accepted the tender conditions and submitted the tender does not have locus to challenge the conditions of tender for the reason that in such a situation any party aggrieved by the conditions of tender ought to have challenged the NIT before submitting its tender pursuant to such notice."

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The above judgments that have been cited above were considered by the Division Bench of this Court (wherein one of us was part of the

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quorum) in Avani Paridhi Energy and Communications Pvt. Ltd. vs. State of U.P. and others in Writ-C No.9597 of 2025 , decided on October 6, 2025 and the Court had made the following observations:-

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"10. The principles that emerge from a reading of the above judgments is crystal clear that the Writ Court should ordinarily refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer unless something very gross or palpable is pointed out. Furthermore, a person who has participated in the tender process is barred from challenging the said tender conditions at the closing stages when it is clear that the person is unsuccessful. Any such challenge to the tender conditions is required to be made by the person at the very first instance and an unsuccessful tenderer cannot raise a ground that the tender conditions were in any manner unlawful so as to reverse the decision at the eleventh hour."

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Thus from the proposition of law settled in the aforesaid judgments, it is crystal clear that unless it is shown that the tender process for grant of tender has been arbitrary or there has been mala fide on the part of the authorities in finalizing the tender, the writ court should not interfere in the tender process. For violation of petty procedural technicalities, the writ court should be loathe in exercising its jurisdiction in tender matters.

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In the present case, neither learned counsel for the petitioner could show any arbitrariness on the part of the authorities in finalizing the tender process nor he could show any mala fide on the part of authorities dealing with the tender matter.

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Proceeding to deal with the facts of this particular matter, we find that under the tender document, a tenderer company was required to have certain work experience for three consecutive financial years. The petitioner's company while submitting his tender has claimed requisite work experience for the Financial Years 2022-23, 2023-24 & 2024-25. The petitioner's company has annexed a chart at Page No. 170 to this writ petition to demonstrate its work experience.

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From perusal of the chart of work experience annexed by the petitioner at Page No. 170 of this writ petition, it is evident that no work

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order has been issued to the petitioner's company in the Financial Year 2023-24. We find that petitioner's company claims that the work order issued to it on 30.03.2023 be considered as work experience for the Financial Years 2023-24, as the said work order was issued only two days prior to the start of Financial Year 2023-24.

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We required learned Senior Advocate appearing for the petitioner's company to answer our pointed query as to what are the dates of completion of the works done by the petitioner's company in the Financial Years 2022-23, 2023-24 & 2024-25. Learned Senior Advocate appearing for the petitioner could not place before the Court, any document to show any work completed by the petitioner's company in the Financial Year 2022-23.

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We are of the view that the work experience of petitioner's company can be evaluated in two ways, that is, either from the dates of issuance of work orders or by the dates of completion of works assigned to the petitioner's company. We find that if we take the date of issuance of work orders to evaluate the work experience of the petitioner's company then petitioner's company does not have any work order issued in the Financial Year 2023-24, and further, if the work experience of the petitioner's company is ascertained by the dates of completion of work then also petitioner's could not show to this Court, any document relating to completion of the work by the petitioner's company in the Financial Year 2022-23.

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In light of the aforesaid facts, it is evident that the petitioner's company does not possess requisite work experience as per tender document for three consecutive Financial Years i.e. 2022-23, 2023-24 & 2024-25. Ergo, we do not find any arbitrariness in rejection of the technical bid of the petitioner's company.

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Accordingly, the writ petition lacks merit and is hereby dismissed .

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(Manjive Shukla,J.) (Shekhar B. Saraf,J.)

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January 29, 2026 Satish

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Digitally signed by :- SATISH KUMAR BHARATI High Court of Judicature at Allahabad, Lucknow Bench

Abhilasha Commercial Private Limited Thru. Authorized Representative,Mr.Vivek Srivastava v. State of U.P. Thru. Prin. Secy. Deptt. of Basic Education and 3 Others

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Abhilasha Commercial Private Limited Thru. Authorized Representative,Mr.Vivek Srivastava v. State of U.P. Thru. Prin. Secy. Deptt. of Basic Education and 3 Others

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