M/S Care Security and Allied Services, Bbsr Vs State of Orissa

2. The Transport Commissioner, Odisha floated a tender for selection of a service provider for supplying manpower services with basic computer knowledge on manhour basis to the office of the Transport Commissioner and its subordinate offices. One of the terms incorporated in the said tender document relating to the preparation and evaluation of the proposal mandatorily required several documents to be appended with the tender bid, which includes Non-Blacklisted Undertaking in the format annexed to the bid document as Annexure-7. The said prescribed format requires a certification and confirmation from each of the intending bidders that they are not debarred or blacklisted by an office of the Transport Commissioner, any State Government or Central Government or any State agency/Department from participating in projects as on the proposal due date.

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3. The tender was floated on 23^rd May, 2025 and the last date of submission of the bid document was fixed on 12^th June, 2025. The affidavit as per Annexure-7 of the bid document shown by the petitioner revealed that the petitioner is not debarred and/or blacklisted from participating in the project as on the proposal due date.

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W.P.(C) No. 21049 of 2025 Page 2 of 8

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4. Undeniably, in a proceeding initiated against the petitioner by the Collector and District Magistrate, Kandhamal, Phulbani, it was blacklisted for a period of three years in the said District. A challenge was made to the High Court in W.P.(C) No.11313 of 2021, which was disposed of by the Court directing the authority to consider the representation dated 19^th June, 2021 within a specified time. The matter was remitted to the competent authority and the said representation was disposed of by withdrawing the word ‘blacklisted’, but the petitioner was still prevented from participating in the tender for next three years in the said District. The said order was further challenged in a subsequent writ petition being W.P.(C) No.40185 of 2021, which was disposed of with the following

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observations:

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“3. It is manifest that the operation of the said order has become ineffective with the efflux of time i.e. period of three years.

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4. Mr. S. Palit, learned Senior Counsel appearing on behalf of the petitioner has however submitted that on the one hand the Collector decided to withdraw the order of the blacklisting, on the other hand the petitioner was not allowed to participate in the tender processes for providing different category of man power on out sourcing basis for three years, which has the same effect of blacklisting. As a result, this stigma may continue with the petitioner for all times to come.

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5. Considering the facts and circumstances and the nature of the impugned order which has been passed,

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W.P.(C) No. 21049 of 2025 Page 3 of 8

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we dispose of the present writ application with an observation that no observation made in the impugned order dated 19.07.2021 shall be treated to be a stigma against the petitioner for any tender in which he may participate after 19.07.2021.”

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5. It is, thus, manifest from the above quoted observations in the earlier writ petition that the Collector withdrew the order of blacklisting but prevented the petitioner from participating in a tender process for three years, which according to the petitioner tantamount to continuance of the stigma attached to the petitioner. While disposing of the said writ petition, the Division Bench observed that none of the observations made by the Collector in its order shall be treated as a stigma for any tender in which he may participate after 19^th July, 2021.

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5.1 . The tenet of the observations made in the earlier writ petition conveys a clear message that the word ‘blacklisted’ was withdrawn and, therefore, the petitioner cannot be said to be blacklisted. However, the debarment continued, which was also observed by the Court shall not be treated as a stigma in future participation as on the date when the said writ petition came to be disposed of finally, the said period expired and/or elapsed.

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W.P.(C) No. 21049 of 2025 Page 4 of 8

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6. The concept of blacklisting a person in entering into a contract with the Government has far-reaching consequences and is thus regarded as a civil death. The blacklisting or debarment though coined in two different words , but have the same effect preventing an individual or entity to establish a contractual relation with the Government or its agencies. Often, the blacklisted is tested on the doctrine of proportionality and the apex Court in catena of decisions held that perpetual blacklisting has a ramification on the commercial solvency and/or capacity of an individual or entity to enter into the contract with the Government and, therefore, the period may be specified depending upon the gravity of the misconduct.

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7. In the case of State of Odisha v. Panda Infraproject limited reported in ( 2022) 4 SCC 393 , the apex Court held that the blacklisting of the contractor to operate perpetually offends the fabric of the doctrine of proportionality and reduced the same to five years.

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8. The moment the period expires and/or elapses, if such stigma is allowed to continue, it would offend the core purpose and will encourage the civil death in perpetuity. An individual or entity cannot be debarred eternally from participating in the tender process

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W.P.(C) No. 21049 of 2025 Page 5 of 8

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and such blacklisting or the debarment must be restricted to a specified period, which would augment the rule against the perpetuity and participation can be ensured after the expiry of the said period by efflux of time. If the blacklisted contractor, who suffered the order of blacklisting is prevented from participating in the Government tender process or establishing a contractual relation with the Government for a particular period, it cannot be permitted to carry such stigma for all time to come.

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8.1. Precisely for such reason, the Division Bench of this Court in an earlier writ petition in unequivocal term held that the order preventing the petitioner from participating in any tender process shall not be regarded as a stigma and further permitted the petitioner to participate in any tender process on and after 19^th July, 2021.

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9. Admittedly, on the date of floating of the tender and submission of the bid, there was no subsisting order either of a blacklisting or debarment nor any stigma can be attached thereto and, therefore, the authorities cannot reject the said application as the petitioner did not disclose the order of debarment/blacklisting, which was admittedly not subsisting as on the said date.

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W.P.(C) No. 21049 of 2025 Page 6 of 8

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10. Apart from the same, the Annexure-7 i.e. the format indicates that the affidavit must be filed disclosing that the participating individual or the entity is not debarred or blacklisted from participating in project as on the proposal due date. Even if the proposal due date is considered to be a date of floating the tender or the date of submission of the application, there was no subsisting order and, therefore, it cannot be said that as on the said date, there was any impunity suffered by the petitioner in participating in the tender process.

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11. Having held so, the order of the authority being Annexure-1 to the writ petition cannot be sustained; the same is hereby quashed and set aside.

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12. Since the petitioner’s bid was rejected at the technical stage on such ground, which is held to be unsustainable, the petitioner is entitled to participate in a financial bid stage. At this juncture, it is informed by learned Standing Counsel appearing for the Transport Department that during the pendency of the instant writ petition, the financial bid has already been opened and the Government is approached to grant approval in favour of a preferred bidder. Till date, the approval has not arrived.

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W.P.(C) No. 21049 of 2025 Page 7 of 8

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13. In such view of the matter, we do not find any obstacle if the petitioner’s bid is opened at the financial bid stage and in the event, the price quoted by the petitioner appears to be competitive being commensurate with the price quoted by the other two bidders, the steps shall be taken to approach the Government in this regard. In the event, the price quoted by the petitioner is either too excessive or does not come within the ambit of the consideration, the authority shall communicate the same to the petitioner.

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14. With these observations, this writ petition is disposed of. No

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order as to costs.

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(M.S. Raman) (Harish Tandon) Judge Chief Justice

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M. Panda/ S.K. Behera

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Signature Not Verified

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Digitally Signed Signed by: SISIRA KUMAR BEHERA Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Aug-2025 17:53:39

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W.P.(C) No. 21049 of 2025 Page 8 of 8

M/S Care Security and Allied Services, Bbsr v. State of Orissa

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M/S Care Security and Allied Services, Bbsr v. State of Orissa

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