Dismissed

M/S Tharu and Sons v. the Union of India and 3 Ors.

Gauhati HC14 Sept 2026WP(C)/2224/2026

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition challenging the award of a railway maintenance contract to the respondent firm. The court held that the tender condition only mandated rejection for quoting the bonus component below par, allowing quotes above par provided the net value post-rebate did not fall below the prescribed rate.

What did the court decide?

Writ petition dismissed; interim order previously passed vacated.

M/S Tharu and Sons Vs the Union of India and… — Public Procurement and Tenders | Gauhati HC (2026)

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GAHC010080782026

2026:GAU-AS:13623

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2224/2026

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M/S THARU AND SONS

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A REGISTERED PARTNERSHIP FIRM, HAVING ITS OFFICE AT 2ND FLOOR, KALAMASSERY SERVICE CO-OPERATIVE BANK BUILDING, NORTH KALAMASSERY, NEAR METRO PILLAR NO. 250, P.O. KALAMASSERY, DIST. ERNAKULAM, KERALA-683104, REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE, MR. SANTHOSH PRASAD, SON OF SANKAR PRASAD, R/O- NO. 1, KOPATI BAGICHA, DALAKATI, UDALGURI, PIN- 784113, ASSAM

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VERSUS

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THE UNION OF INDIA AND 3 ORS REPRESENTED BY THE SECY. TO THE GOVT. OF INDIA , MINISTRY OF RAILWAYS, RAIL BHAWAN, NEW DELHI -110001.

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2:THE NORTH EAST FRONTIER RAILWAY MALIGAON GUWAHATI REPRESENTED BY ITS CHIEF GENERAL MANAGER MALIGAON GUWAHATI PIN- 781011 GUWAHATI KAMRUP METRO ASSAM

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3:THE SENIOR COACHING DEPOT OFFICER NORTH EAST FRONTIER RAILWAY MALIGAON GUWAHATI PIN- 781011 GUWAHATI KAMRUP METRO

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ASSAM

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4:URMILA INTERNATIONAL SERVICES PVT. LTD NEW INCUBATION BUILDING SOFTWARE TECHNOLOGY PARKS OF INDIA RAJIV NAGAR PATNAPIN- 800013 BIHAR

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Advocate for the Petitioner : MR. D DAS SR. ADV, MR G RAHUL,MR. D M NATH

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Advocate for the Respondent : DY.S.G.I., MR H GUPTA(C.G.C)R1,2,3,MRS. B TALUKDAR(R4),MR. S J SARMAH(R4)

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B E F O R E

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Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI

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Advocate for the petitioners: Shri KN Choudhury, Sr. Adv. Shri G. Rahul

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Advocates for the respondents : Shri H. Gupta, CGC

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Ms. B. Talukdar, R.4

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Date on which judgment is reserved : 19.08.2026

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Date of pronouncement of judgment: 15.09.2026

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Whether the pronouncement is of the operative part of the judgment? : NA

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Whether the full judgment has been pronounced? : Yes

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JUDGMENT & ORDER

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The instant writ petition under Article 226 of the Constitution of India has been filed challenging the Award of a work under tender No. SrCDO-KYQ-IHKS25-26 to the respondent no. 4. The principal ground of challenge is that the bid offered by the respondent no. 4 was in clear violation of Clause 12 of the Schedule of Rates of the Notice Inviting Tender.

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As per facts projected, the petitioner is a reputed railway contractor with sufficient experience and was technically qualified for the work, namely, “Integrated Housekeeping Services of Brahamputra Mail and NE Express maintained at Coaching Depot, Kamakhya of NF Railway for a period of 2 (two) years” and had accordingly submitted its bid along with others. In the evaluation, the petitioner had emerged as L2. It is however the case of the petitioner that though the bid of the respondent no. 4 has been adjudged as L1, its bid was in violation of Clause 12 of the Schedule of Rates. It is the specific case of the petitioner that under the aforesaid clause, a bidder was required to quote “at par” against item no. 1 of Schedule 2, which is with regard to payment of bonus to the staff of the contractor, which was reimbursable. The respondent no. 4 had however, quoted above par in the said item and according to the petitioner, this constitutes a violation of the tender condition, making its bid liable for rejection. The grievance of the petitioner is that, in spite of the aforesaid facts and circumstances, the bid of the respondent no. 4 has been accepted and upon adjudging the said bid as L1, the work has been granted in favour of the respondent no. 4. The petitioner also claims to have submitted a representation on 10.04.2026, which has not been considered and accordingly, the instant writ petition has been filed.

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I have heard Shri KN Choudhury, learned Senior Counsel assisted by Shri G. Rahul, learned counsel for the petitioner. I have also heard Shri H. Gupta, learned CGC appearing for the Railways and Ms. B. Talukdar, learned counsel for the respondent no. 4.

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Shri Choudhury, learned Senior Counsel for the petitioner has submitted that a hidden criteria has been adopted by the respondent authorities so as to favour the respondent no. 4. By referring to the Schedule of Rates, more

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particularly Schedule 2 which pertains to bonus to staff, he has submitted that such bonus is to be quoted at par, which has also been quantified at Rs.1,34,98,565.61. He has submitted that while the petitioner had offered its bid, the amount against bonus has been quoted at par. On the other hand, the respondent no. 4 has quoted the bonus item above par and thereafter, the respondent no. 4 has given a rebate.

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By drawing the attention of this Court to the comparative statement, the learned Senior Counsel for the petitioner has submitted that the price bid of the respondent no. 4, as offered, was more than the bid of the petitioner. He has clarified that while the price bid of the petitioner was Rs.18,04,76,139.65, the rate offered by the respondent no. 4 was Rs.18,19,24,416.50. However, the respondent no. 4, who had also quoted a higher rate for the bonus had given a rebate of 0.8%, which brought down its gross value to be less than that of the petitioner and was accordingly adjudged as L1. He has also referred to the Note appended to the bid document which emphasizes that the bonus item rate has to be “at par” and therefore, the bid of the respondent no. 4 was required to be rejected at the threshold. He has submitted that acceptance of the bid of the respondent no. 4 who had quoted bonus above the rate, in spite of the restriction, amounts to adopting a hidden criterion. He has also submitted that in certain other NITs, bids have been rejected where the bonus has been quoted above par.

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In support of his submissions, learned Senior Counsel for the petitioner has relied upon the following cases:

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a. Md. Makrub Khan @ Md. Junu Khan Vs. Manuj Kumar Sarmah [(2011) 3 GLR 15];

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Page No.# 5/9

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b. Dutta Associates Pvt. Ltd. Vs. Indo Merchantiles Pvt. Ltd. [(1997) 1 SCC 53];

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c. Hasmat Ali Vs. State of Assam [(2022) 6 GLR 68].

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In the case of Md. Makrub Khan (supra), a Division Bench of this Court has laid down that no hidden criteria can be adopted in a process for distribution of State largesse by means of a tender. In the said case, the Hon’ble Division Bench had relied upon the case of Dutta Associates Pvt. Ltd. (supra). He has also relied upon the case of Hasmat Ali (supra) wherein it has been laid down that fairness can be ensured by bringing objectivity in the tender conditions. He has submitted that when the tender conditions were clear and specific, the same could not have been violated by the respondent no. 4 and therefore, the bid of the respondent no. 4 was to be rejected at the threshold.

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Per contra Shri Gupta, learned CGC appearing for the Railways has submitted that the tender condition is not to quote below par so far as bonus is concerned. He submits that the same would not be a bar to quote above par in the said item of bonus. He has also drawn the attention of this Court to the comparative statement and has submitted that there were other bidders, including the L8 bidder who had quoted above par in the bonus aspect. He has submitted that the decision-making process is not vitiated by any mala fide and there is no allegation of such mala fide. He has denied that any hidden criterion was adopted.

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So far as the submissions advanced on behalf of the petitioner that in other contracts of the Railways, bids have been rejected for quoting bonus above par, the learned CGC has submitted that the conditions in the other

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contracts were different, whereas in the present contract, the restriction was only for quoting rates below par than the rates in the bonus aspect.

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In support of his submission, the learned CCC has relied upon the following case laws:

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a. NG Projects Ltd. Vs. Vinod Kumar Jain [(2022) 6 SCC 127];

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b. Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Limited [(2016) 16 SCC 818];

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c. Prakash Asphaltings and Toll Highway’s (India) Limited Vs. Mandeepa Enterprises [(2026) 4 SCC 310].

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In the case of NG Projects (supra), the Hon’ble Supreme Court has laid down a caveat that interim orders are not required to be passed in projects of public importance. The case of Afcons Infrastructure Ltd. (supra) have been cited to bring home the submission that so far as interpretation of tender conditions are concerned, the interpretation given by the owner is to be accepted as the owner is the best judge, who is the author of the contract document. In the case of Prakash Asphaltings and Toll Highway’s (India) Limited (supra), the Hon’ble Supreme Court, by referring to the earlier cases including the case of Jagdish Mandal v. State of Orissa reported in (2007) 14 SCC 517 , has reiterated the principles of the restraint to be exercised by a Writ Court in matters of evaluating tender and awarding contracts which are essentially commercial functions.

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Supporting the submissions advanced on behalf of the Railways, Ms. Talukdar, learned counsel for the respondent no. 4 has submitted that the entire process was e-tender and there was a column on rebate. She has denied the contention that any hidden criteria were adopted to favour her client. She has

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brought the attention of this Court to the Note as per which only if below par was quoted so far as bonus is concerned, the same would be summarily rejected. She has clarified that the respondent no. 4 had given rebate at the time of submission of the price bid and the gross value is less than the bid of the petitioner and accordingly, the contract has been rightly granted to her client, who is the L1.

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The rival submissions have been duly considered and the materials placed before this Court have been carefully examined.

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The challenge is primarily on the ground that the bid of the respondent no. 4 is in violation of the tender condition pertaining to quotation on the bonus aspect and ought to have been rejected. To understand the aforesaid ground of challenge, it is required to examine the specific clauses relating to bonus. As per Appendix A1, which is on the aspect of Schedule of Rates, under Schedule 02 provision for bonus to staff has been laid down and the rate provided is Rs.1,34,98,565.61. Clauses 12 and 13 would be relevant for adjudication of the present dispute. As per Clause 12, the bonus, which is at the rate of 8.33% of the minimum wages shall be reimbursed to the contractor after submission of proof that it has been credited to the accounts subject to eligibility. The said clause, however, specifically states that the bidder should quote at par against item No.1 of Schedule 2 of the rate schedule; quoting below par against the bonus item will lead to summarily rejection of the offer. Class 13 would be relevant in the instant case, which is with regard to the situation where rebate is offered. The said clause lays down that in case any rebate is offered by the bidder over gross quoted value, each individual item will be examined considering rebate percentage. It is, however, provided that if the quoted value, including rebate percentage against Schedule No. 2 of BOQ, which relates to

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bonus is below par, then such offer will be summarily rejected.

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In the instant case, the price offered by the respondent no. 4 is Rs.19,55,32,320.49 while the price offered by the petitioner is Rs.19,39,74,705.26. However, the respondent no. 4 has given a rebate of 0.80% on the gross value. It may be mentioned that the rate quoted for bonus was above par than the prescribed rate, which is the bone of contention. After the rebate on the gross value, the net value offered by the respondent no. 4, became lower than that of the net value of the petitioner and accordingly, the respondent no. 4 has been adjudged as L1. This Court has also noted that after the rebate of 0.80%, the net value on the bonus factor offered by the respondent no. 4 does not come below par, than the prescribed rate. Therefore, the Clause 13 embargo would not be applicable qua the offer of the respondent No.4.

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While the petitioner’s case is that quoting for bonus above par should lead to summary rejection, the contention of the Railways is that such summary rejection is only applicable when the bonus is quoted below par. This Court finds force in the contention advanced on behalf of the Railways that there is no bar for quoting the bonus above par. The aforesaid conclusion of this Court is fortified by Clause 13, which lays down that if a rebate is given, the rate in respect of bonus, after rebate should not be below par and in the instant case, the rate of bonus is not below par, which will not lead for summary rejection of the offer of the respondent no. 4. This Court finds force in the contention that the interpretation of the owner of the contract is to be given due deference unless such interpretation is absolutely unreasonable or absurd. This Court is also unable to accept the contention advanced on behalf of the petitioner that in so far as other NITs are concerned, there has been rejection for quoting bonus

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above par. It appears that in those NIT, there was a specific condition that quoting above par would also lead to rejection, which, however is not the condition prescribed in the present NIT.

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The case laws referred and relied upon by the petitioner would not come to the aid of the petitioner as the issue involved is different. This Court is unable to accept the proposition advanced on behalf of the petitioner that a hidden criterion has been adopted. In the opinion of this Court, Clauses 12 and 13 of the tender conditions will not amount to a restriction to quote the bonus component above par and the only restriction was to quote below par which will lead to summary rejection.

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In view of the aforesaid discussions, this Court is of the opinion that no case for interference is made out. Accordingly, the writ petition stands dismissed. Interim order passed earlier stands vacated.

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No order as to cost.

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JUDGE

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Comparing Assistant

M/S Tharu and Sons v. the Union of India and 3 Ors.

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M/S Tharu and Sons v. the Union of India and 3 Ors.

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