Promarc Software Private Limited, Nagpur and Another vs Rashtrasant Tukdoji Maharaj Nagpur University, Thr. Its Registrar, Nagpur

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2025:BHC-NAG:10957-DB

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR

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WRIT PETITION NO. 4824 OF 2025

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Promarc Software Private Limited, a duly incorporated Private Limited Company having its registered office at Plot No. 12, “Sukhsagar”, Hindustan Colony, Amravati Road, Nagpur 440 033

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Rahul Trivedi, Aged about 48 yrs, Occ. Business, R/o Gopal Nagar, Nagpur …... PETITIONERS

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...V E R S U S...

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Rashtrasant Tukdoji Maharaj Nagpur University, through its Registrar, having its office at Jamnalal Bajaj Administrative Building, Mahatma Jyotiba Phule Educational Premises, Campus Square to Ambazari T Point Road, Nagpur 440 033 .....RESPONDENTS ---------------------------------------------------------------------------------------------------Mr. Akshay Naik, Senior Advocate a/b Mr. Rohan Deo, Advocate for petitioners.

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Mr. M.G. Bhangde, Senior Advocate a/b Mr. R.S. Khobragade, respondent.

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CORAM:- ANIL S. KILOR, &

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RAJNISH R. VYAS, JJ.

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RESERVED ON : 06.10.2025 PRONOUNCED ON : 15.10.2025

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JUDGMENT ( Per : Rajnish R. Vyas )

Belkhede, PS

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Heard.

Rule. Rule made returnable forthwith. Heard finally, with the consent of the parties.

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It is the case of the petitioner that e tender dated 7–8–2025 bearing number 2048– 2025 for Appointment of an agency to provide, implement and maintain customised end to end examination processing work at Rashtra Sant Tukdoji, Maharaj, Nagpur University, Nagpur(including pre and post examination, reassessment/revaluation, on screen valuation, PhD cell, student facilitation Centre), be set aside being violative of article 14 and 19 of the Constitution of India.

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Mr. Akshay Naik, learned Senior Counsel has put forwarded his argument which can be summarized as under:

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i) Petitioner company has been doing the similar type of work as mentioned in the present tender document, since last many years and has wealth of experience.

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ii) Initially, tender No. 1564-2024 dated 09-12-2024, for the same work (Appointment of an Agency to Provide, implement & maintain a Customized End to End Examination Processing Work) was floated in which the petitioner participated.

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Belkhede, PS

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iii) According to him, a tender opening committee on 29-01-2025 cancelled the tender on the ground that both bidders including petitioner and one more participant could not match the price range prescribed by the Government Resolution.

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iv) According to him, in tender No. 1564/2024, he was fulfilling all the criteria, except the financial bids which could not be matched by the bidders in the said tender.

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v) A fresh tender No. 2048/2025 dated 07-08-2025,(subject, matter of present petition) for the same work was issued by the respondent, with tailor made conditions, only with a view to exclude the petitioner from tender process.

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vi) The petitioner would have otherwise been eligible to participate in the present tender (tender 2048-2025) process since it is eligible in all other respects. The terms and conditions of the present tender are arbitrary and discriminatory.

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vii) The present tender prescribes that bidder must have minimum average turnover of Rupees Twenty Five Crores in the last five financial year i.e. 2019-2020 to 2023-2024, apart from having a positive net worth of same amount as on 31-03-2025 (page No. 29, Sec. 5).

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Belkhede, PS

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viii) The said condition is in sharp contrast with the qualifying criteria of earlier tender in terms of which a bidder would only be required to have maximum annual turnover of four crores for the past two years. There is no intelligible differentia between the terms and conditions of contract and increase in financial credentials. The Court has power to set aside onerous condition.

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ix) Mr. Naik, learned Senior Counsel relied upon a judgment passed in Writ Petition No. 2445/2024, by this Court, on 14-03-2024, more particularly, paragraph Nos. 7,23 and 24. He also while arguing about scope of interference of this Court in tender matter has relied upon a judgment in case of LIC of India and Another Vs. Consumer Education & Research Centre and Others , reported in (1995)5 SCC 482 .

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x) The gist of his argument is, in the sphere of contractual relation, public authorities must act fairly and should not act arbitrarily.

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xi) He while pointing out various documents and record contended that action on the part of respondent in changing terms and conditions in tender No. 5048-2025 is nothing but malice in law and therefore, he relies on the case Uddar Gagan Properties Limited Vs. Sant Singh and Others reported in (2016)11 SCC 378 , more particularly, paragraph 23.

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Belkhede, PS

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xii) According to him, malafides can be inferred from undisputed facts even without naming a particular officer and even without a positive evidence.

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xiii) Mr. Naik has brought our attention to the minutes of meeting dated 12-06-2025 (page 241 of petition) and has pointed out that even the Finance and Account Officer has suggested that financial credentials and turnover for five years be reduced from Rupees Twenty Five Crores to Rupees Five Crores.

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xiv) According to him, the minutes would further show that though period of tender mentioned in tender No. 2048-2025 is for three years starting with academic year 2025-26, the period mentioned in the minutes shows that same is extended till five years.

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xv) There is absolutely no reason to modify condition regarding the financial capacity and minimum average turnover from Rs. 4 crorers to 25 crorers , which speaks about arbitrary and malafide action.

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Per contra, Mr. M.G. Bhangde, learned Senior Counsel has advanced his arguments, which in nutshell are as under:

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i) The Court has limited power to interpret terms and

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Belkhede, PS

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conditions of contract.

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ii) Though malafides are alleged but are neither pleaded properly nor proved legally.

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iii) The petitioner has failed to point out that how the conditions were tailor made.

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iv) According to him, the petitioner fails to satisfy other conditions of the tender.

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v)object behind increasing financial credential to Rupees Twenty Five Crores is to award contract to the firm which is sound in all aspects.

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vi) If the terms and conditions of tender Nos. 1564 and 2048 are compared, it would reveal that the conditions are not same but are different.

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vii) Attention was also brought to minutes of meeting dated 12-06-2025 (page 241 of petition) in which it was stated that if the respondent fails to get any bidder having turnover of Rupees Twenty Five Crores and no response is given to tender, appropriate modification can be done in future. He states that in accordance with the tender notice published (Tender No. 2048-2025), three bidders have submitted their bid.

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Belkhede, PS

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viii) Other Universities / authorities for the similar nature of work have put requirement of having turnover of ten crores, Twenty Crores and Twenty Five Crores, also. He has relied upon comparative chart (page 36) filed along with his reply.

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In the aforesaid background, this court has per the record after giving patient hearing to all parties.

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In the aforesaid background we have perused the record

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and given thoughtful consideration to the issues involved.

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From the record of the case and more particularly, the comparative chart submitted by the respondent along with its reply dated 18-09-2025 (page 228) it would be clear that the terms and conditions in (Tender No. 1564) and present Tender No. 2048 and scope of work is not similar in true sense. In earlier tender, work regarding screening valuation centre was to be provided by respondent University. Under present tender No. 2048-2025, responsibility is shifted from University to vendor. So far as work of data center servers for valuation in new tender, server house and data centre infrastructure is shifted to vendor. In earlier tender, screens required were 50 , whereas

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Belkhede, PS

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in present tender (2048) number of screens is 100. Further, by way of comparative chart (page 233) , scope of work Ph.D. Cell Automation RTMNU Tender, in old tender and present tender, would reveal that many conditions including the hall tickets and roll lists, entrance test and result, research centre connection are changed. Thus, fact remains it cannot be said that there were similar conditions in tender No. 1564 and present tender No. 2048/2025.

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It is further pertinent to mention here that according to the qualification criteria, the firm should have had a minimum average turnover of Rupees Twenty Five Crores in last five financial years i.e. 2019-20 to 2023-24 and must have a positive net worth of Rs 25 crores as on 31-03-2024. But when Chartered Accountant’s certificate, issued in favour of petitioner dated 06-01-2025 (page 210) is seen, it would reveal that for financial year ending on 31-03-2022, turnover of the petitioner was Rs. 7,47,89,760/-, for financial year ending 31-03-2022 Rs. 4,74,58,210/- and financial year ending on 31-03-2024, turnover was Rs. 5,70,38,200/-. Had respondent wanted to make tailor made condition, it could have made it above 7,47,89,760/- and there was no need to make turnover to the tune of Rs. Twenty Five Crores. The

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Belkhede, PS

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condition might have been introduced for the first time but same cannot be the reason to conclude that condition is onerous.

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Further in minutes of meeting, the account and audit officer might have tabled his opinion that amount of turnover be reduced, but has absolutely no force in the eyes of law. It further cannot be said that in order to keep aside competition, the said condition was put since according to the respondent, now, three bidders have participated. Therefore it cannot be said that there was no fundamental change of work in present tender No. 2048 than tender No. 1564.

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It is further necessary to mention here that there is no material to arrive at the conclusion that the respondent has acted in malafide manner and therefore, just because there were discussion in meeting dt. 12.6.25 regarding reduction of amount of turnover and exchange of various communications, it cannot be said that same amounts to malice in law.

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Contention of the petitioner that nature of work in old tender and present tender was somewhat similar and petitioner has wealth of

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Belkhede, PS

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experience in the work subject matter of tender, does not mean that only petitioner is entitled to claim the work. Competition would also mean that new players will take part and benchmarks would be different.

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Mr. Bhangde, learned Senior Counsel in the aforesaid background has rightly brought our attention to the judgment in case of Shagun Mahila Udyogik Sahakari Sanstha Maryadit Vs. State of Maharashtra and Ors , reported in 2011 Vol.9 Page 340 , more particularly, paragraph 47 and contended that the petitioner can not be said to be eligible since he has not fulfilled the other conditions also. In the matter at hand except a bare averment that the petitioners fulfills all other conditions than the condition of turnover, no specific pleadings pointing out how each of the conditions, petitioners fulfill, are made or documents in support of the same are filed. In the backdrop of this fact we cannot accept the arguments made by the petitioners that this is not the stage where petitioners need to establish the said fact. Thus, on this count also petition fails.

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We cannot further ignore dictum of the Hon’ble Apex Court in case of Association of Registration Plates Vs. Union of India and Others,

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Belkhede, PS

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reported in ( 2005) Vol.1 SCC 679, which says that in absence of any indication from the record that the terms and conditions were tailor made to promote parties, it would not be proper to interfere in the tender condition.

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Further observation of Hon’ble Apex Court in case of Michigan Rubber (India) Limited Vs. State of Karnataka and Others , reported in 2012 Vol 8 SCC 216 , more particularly paragraph 23 (C&D), reproduced below clearly shows that the power of judicial review are very limited.

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“(c) – In the matter of formulating conditions of a tender document and award a contract, greater latitude is required to be conceded to the State authorities unless the auction of tendering authority is found to be malacious and misuse of its statutory powers, interference by Court is not warranted.”

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“(d) – Certain pre-conditions or qualification for tenders have to be laid down ensure that contractor has the capacity and resources to successful execute the work.”

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Considering the aforesaid guidelines, it cannot be said that petitioners have brought any material on record to show that the condition was tailor made and the terms and conditions of earlier tender No. 1564 and present tender No. 2048 were similar. No doubt, the Court can always interfere in tender matters also if condition is found

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Belkhede, PS

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unerasonable, but for that also, material is required to be brought on record. Therefore, the judgments cited by learned Senior Counsel Mr. Naik is not applicable to case in hand. Just because the amount of financial turnover has been increased, it cannot be said that the respondent has not acted in fair and proper manner and acted in arbitrary manner. The object was crystal clear to get the work done from company which has strong base in every aspect. Thus, the judgment in case of LIC of India and Another Vs. Consumer Education & Research Centre and Others will have to be read in the aforesaid background. Needless to mention, the dictum of Hon’ble Apex Court that the Court cannot seat over judgment and what should be the turnover required for entity to participate cannot be lost sight of.

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In the aforesaid background, the petition is dismissed.

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(RAJNISH R. VYAS, J.) (ANIL S. KILOR, J.)

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Belkhede, PS

Promarc Software Private Limited, Nagpur and Another v. Rashtrasant Tukdoji Maharaj Nagpur University, Thr. Its Registrar, Nagpur

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Promarc Software Private Limited, Nagpur and Another v. Rashtrasant Tukdoji Maharaj Nagpur University, Thr. Its Registrar, Nagpur

Case brief

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