Nafr High Court
Case Details
1 ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2025:CGHC:35692-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 3017 of 2025 M/s. Ch. Philip Caterers (A Proprietorship Firm) Through its Proprietor Shri Ch. Philip, Age 49 Years, S/o. Late Ch. John, Residence and Office at behind Tagore School, Sector-1, Shivanand Nagar, Khamtarai, Raipur, District - Raipur (C.G.) versus ... Petitioner 1 - State of Chhattisgarh, through the Secretary, Department of Health and Medical Education, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nava Raipur, District - Raipur (C.G.) 2 - Directorate of Medical Education North Block, Sector-19, Swasthya Bhawan, 2nd Floor, Atal Nagar, Nava Raipur, District - Raipur (C.G.) 3 - Dean Chhattisgarh Institute of Medical Science, Bilaspur (C.G.) 4 - Joint Director and Medical Superintendent Chhattisgarh Institute of Medical Sciences, Bilaspur (C.G.) 5 - M/s. Shree Sai Services Pvt. Ltd. (Claiming as M/s. Shree Sai Services- A Proprietorship Firm in Legal Documents), through Himanshu Dev Sahani (Claiming as Proprietor of the Firm) Shop No. 435, Golden Trade Centre, New Rajendra Nagar, Raipur (C.G.) ... Respondents For Petitioner(s) : Mr. Jitendra Nath Nande, Advocate For Respondents/ State : Mr. Shashank Thakur, Dy. Adv. General Hon'ble Shri Hon'ble Shri Ramesh Sinha, Bibhu Datta Guru Chief Justice , Judge Order on Board Per Ramesh Sinha , Chief Justice 24 . 07 .202 5 1. Heard Mr. Jitendra Nath Nande, learned counsel for the petitioner as well as Mr. Shashank Thakur, learned Deputy Advocate General, appearing for the State/respondent Nos. 1 to 4. 2 2. The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India with the following prayers:- “10.1 That, the Hon'ble Court may kindly be pleased to allow the instant writ petition and issue appropriate writ of mandamus and set-aside/quashing the Contract dated 09/06/2025 (ANNEXURE-P/3) and award the Patient Dietary Service Tender of the
Facts
CIMS Bilaspur to the Petitioner Firm, in the furtherance of justice. 10.2. That, the Hon'ble Court may kindly be pleased to issue appropriate writ of mandamus and set-aside the Work Completion Notice dated 09/06/2025 (ANNEXURE-P/1), in the interest of justice. 10.3 That, the Hon'ble Court may kindly be pleased to issue appropriate writ and directed the Respondent authorities to issue patient dietary services tender to the eligible bidder as per the valid documents and following the terms & conditions of the NIT dated 10/04/2025 and cancel the bid of incompetent bidder's, in the interest of justice. 10.4 That, the Hon'ble Court may kindly be pleased to issue appropriate writ and directed the Respondent authorities to revaluate the Tender Bid documents and issue fresh Tender Allotment Order by quashing the ANNEXURE-P/2 in the interest of justice. 10.5 Any other relief/relief's which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may kindly be please granted to the Petitioner, in the interest of justice.” 3. By way of the instant writ petition, the Petitioner firm seeks to challenge the impugned order dated 09/06/2025 issued by the 3 Respondent No. 04 whereby it has been informed that the Respondent Authorities have completed the new Tender process and allotted the patient dietary services bid for CIMS Hospital Bilaspur to a different firm, therefore the Petitioner Firm needs to end its functioning of dietary services in CIMS Hospital by the night of 15/06/2025 without considering any objection of the Petitioner Firm whereas the Petitioner Firm has already qualified in all Technical & Financial Parameters but all of a sudden the NIT Bid has been awarded to the Respondent No. 05 who has neither possessed the valid Food License for the State of Chhattisgarh nor he submitted the living Gomasta License and EMD (Earnest Money Deposit) Exemption Eligibility Certificate issued by the MSME. Furthermore, the Petitioner Firm herein also challenges the Award dated 06/06/2025 informed through the GEM Bidding Portal of the Notice Inviting Tender GEM/2025/B/6129623 dated 10/04/2025 whereby the Respondent No. 05 has been awarded the Work Contract Order rejecting the bid of the Petitioner Firm whereas the Petitioner Firm has been awarded 37 points out of 40 points in QBS System in the Tender process and declared as Rank 2 and held rejected. The Petitioner Firm also challenges the Contract dated 09/06/2025 executed between the Respondent Authorities & Respondent No. 05 on the NIT dated 10/04/2025 by the way of the GEM Bidding Portal. 4.
Legal Reasoning
many ground it is prima facie evident that the Respondent No. 05 did not possess the necessary qualifications to get the Tender allotment neither it held genuine documents to being able to allotted the Tender nor is clear about its status of being a Proprietorship firm or a private limited company. He further contended that Respondent No. 05 possesses two different MSME Certificate one is related to Shree Sai Services MSME No. UDYAM-CG-14-0010630 and second is related to Shree Sai Services Pvt. Limited MSME No. UDYAM-CG-14-0073475. Pertinently there exists no proof that the Respondent No. 05 have either submitted eligible certificate issued by the UDYAM (MSME) related to dietary services or any certificate for exemption to deposit the Ernest Money of Rs. 5,00,000/-. 6. It has been submitted by Mr. Nande that Respondent No. 05 has not registered in the Hospital Services Category (86100) as per the National Industrial Classification Code(s) in the Micro, Small and Medium Enterprises UDYAM Registration Certificate which is a necessary requirement in the Tender allotment, as the Tender dated 10/04/2025 is not for general Food & Beverages Services which in general includes the canteen services but is specific for the Patient Dietary Services. He further submitted that the 6 Proprietorship firm named M/s. Shree Sai Services participated in the NIT dated 17/01/2023 for providing patient dietary services in CIMS Hospital Bilaspur wherein the firm was disqualified and the Respondent Nos. 03 & 04 have rejected the Bid of the Respondent No. 05 on basis of forged documents issued in the year 2020 & 2023 of experience certificate of the Respondent No. 05 from the tender process and on several documents the Respondent Authorities have remarked that the documents are "NOT ORIGINAL". But this time the same documents are being accepted by the Respondent Authorities which shows their duality and shows how the Respondent Authorities are prima facie involved in providing and benefiting the Respondent No. 05. 7. Mr. Nande argued that the dietary experience for working in more hospitals are countless whereas only two hospital works are being considerable and rating in points which is unfair and illegal because experience comes from working in dietary work not for the size of the hospital. The Petitioner Firm submitted objection and requesting to revaluate the Tender Allotment, but the same has not been considered by the Respondent Authorities to follow the terms and condition of the Tender dated 10/04/2025 and as per the Hon'ble Court's intervention for fair and justifiable patient dietary services. 8. On the other hand, Mr. Shashank Thakur, learned Deputy Advocate General, appearing for the State/respondent Nos. 1 to 4 opposes the aforesaid submission and submitted that the tender 7 in question was floated by the CIMS, Bilaspur in the Government- E-Marketplace (GeM portal) for a Pan India level inviting applications / bids from the interested bidders for providing the Healthcare Kitchen and Dietary Services at the CIMS, Bilaspur and as many as 08 tenderers have participated in the said tender process. It is submitted that the QBS evaluation criteria is provided in Annexure V of the terms and conditions of the tender (Annexure P/4 filed at page no. 85 of the instant writ petition) and as per which total marks to be awarded under the QBS head were 40 and in the tendering process, the petitioner has scored 37 marks whereas the respondent no. 5 has scored 38 marks. Hence, the tender has rightly been allotted to the respondent no. 5 being the eligible and qualified bidder. He also submitted that the petitioner has raised a specific ground that the respondent no. 5 does not possess the food license from the FSSAI for the State of Chhattisgarh. At this juncture, it is necessary to mention that in the terms and conditions of the tender (Annexure P/4 filed at page no.
Arguments
Mr. Jitendra Nath Nande, learned counsel for the petitioner would submit that the impugned orders issued by the Respondent 4 Authorities whereby allotting the Work Contract Order to the Respondent No. 05 is arbitrary, unreasonable, unjust, issued without application of mind, and is in direct contravention of the NIT Corrigendum and the Chhattisgarh Store Purchase Rules, 2002 and the same not only violates the principles of natural justice but also suffers from the vice of arbitrariness and contravenes the doctrine of legitimate expectation and henceforth the impugned Tender Allotment to the Respondent No. 05 deserves to be set-aside in the interest of justice. He would further submit that the allotment of the tender is done to the Respondent No. 05 who has neither possessed the valid Food License for the State of Chhattisgarh nor he submitted the living Gomasta License and EMD (Earnest Money Deposit) Exemption Eligibility Certificate issued by the MSME as a mandatory parameter issued in the Chhattisgarh Store Purchase Rules, 2002 in the Tender Bid Document. He would also submit that the Respondent No. 05 submitted the Technical & Financial Bid in the name of M/s. Shree Sai Services Pvt. Ltd. but in experience certificate used the name of the Proprietorship firm named M/s. Shree Sai Services. Pertinently as per now both the Proprietorship firm and the Company is living and posses MSME Certificate individually & differently. 5. Mr. Nande contended that the Respondent No. 05 did not even submitted the Financial Turnover related to dietary services of the last year i.e. 2024-25 in the Bid Document as was prescribed in 5 the Tender Corrigendum Number (2) dated 02/05/2025 which was done after the intervention of this Hon'ble Court on 01/05/2025 in W.P.(C) No. 2165/2025. The Respondent Authorities have provided undue advantage to the Respondent No. 05 and on
Decision
44 of the writ petition) in point no. 6, it has been clearly mandated that the signed and self certified copy of the valid FSSAI License under Food Safety and Standard Regulation Act, 2006 issued by the Food and Administration Department is to be submitted in the technical bid and the respondent no. 5 in the technical bid had annexed the requisite license as per the terms and conditions of the tender. From the plain reading of point no. 6 filed at page no. 44 of the writ petition, it would be clear that there was not precondition that the Food License issued for the State of 8 Chhattisgarh is only required to be submitted. In the case in hand, the respondent no. 5 submitted the FSSAI Food License in technical bid issued by the Government of Maharashtra, as such, the issue raised by the petitioner does not hold the ground because the Licensing Authority under the Act, 2006 has issued a license and hence, the same cannot be doubted. It is also submitted that after allotment of the work, the concerned agency has to apply for the Food License specifically for the CIMS, Bilaspur and in the present case, after award of the work, the same has been done by the respondent no. 5. 9. Mr. Thakur submitted that as far as the allegation of the petitioner with respect to the fact that the respondent no. 5 does not possess the living Gumasta License and hence it ought to have been disqualified, is concerned, the same is also vague and unfounded allegation. It is submitted that at page no. 44 of annexure P/4 of the instant petition which is the list of documents needed to be submitted in the technical bid, the living Gumasta License is not included. Hence, it is clear that there is no precondition to submit the living Gumasta license alongwith the technical documents. It is also submitted that at point no. 3 of document filed at page no. 44, it is provided that a firm should submit the signed and self certified of valid registration / incorporation certificate and in the present case, the respondent no. 5 has duly submitted a certificate of incorporation issued by the Ministry of Cooperate Affairs, Government of India. 10. It is also submitted by Mr. Thakur that the petitioner has raised a 9 ground that the respondent authorities have failed to consider that the respondent no.5 does not possess the requisite MSME certificate and have wrongly granted the exemption in submission of MSME certificate, the said grounds of the petitioner is purely unfounded and baseless as the necessity of submitting the MSME Udyam Certificate was only for those bidders who wishes to avail the benefit of EMD exemption. It is submitted that the petitioner has raised a point that the respondent no. 5 does not have requisite MSME certificate bearing National Industrial Classification Code No. 86100- (Hospital Activities) and rather the respondent no. 5 has the National Industrial Classification Code No. 56292. In this regard, it is respectfully submitted that as per the list pertaining to the National Industrial Classification 2008 provided by the Central Statistical Organisation, Ministry of Statistics and Programme Implementation, Government of India, the NIC Code No. 86100 deals with Hospital Activities and the same does not pertain to Food Catering at hospitals, whereas, the MSME certificate bearing NIC Code No. 56292 submitted by the respondent no. 5 specifically pertains to Operation of canteens or (for factories, offices, Hospitals or Schools) on a concessional basis and the respondent authorities taking into consideration the NIC Code no. 56292 issued as per the National Industrial Classification Code to the respondent no. 5 in the MSME certificate, have rightly granted the respondent no. 5 proper marks for the same. 11. Mr. Thakur contended that that the petitioner has also raised a 10 ground that there is some discrepancy in the annual turnover of the respondent no. 5 as a Company and hence, the bid should not have been accepted. In this regard, it is respectfully submitted that in the light of the Corrigendum regarding providing the annual financial turnover in dietary services for last 3 years, the respondent no. 5 has duly submitted the same in light of the amendment and as per which the average annual financial turnover of respondent no. 5 in dietary services during last 3 financial year was found to be Rs. 11.16 Crores. The authorities have not committed wrong in awarding the higher marks to the respondent no. 5 firm on the above mentioned criteria as the respondent no. 5 has the higher turnover than the petitioner firm. 12. It is further contended by Mr. Thakur that so far as the allegation of the petitioner regarding discrepancy in turnover of respondent no. 5 Company which is incorporated on 2021 and its sister concern proprietorship is different and whereas the respondent no. 5 in the instant tender has used financial statement and experience of the firm is concerned, it is submitted that the petitioner has failed to take into consideration that it has been clearly provided in the CA certificate dated 31/08/2024 at point no. 3 & 4 that the firm respondent No.5 i.e. Shree Sai Services Pvt. Ltd. (Pvt. Ltd. Company) has taken over the proprietorship firm-M/s Shree Sai Services with effect from 01/04/2024 and the same has been done in accordance with the Companies Act [Annexure P/10 Colly @ 11 pg. no. 173 of Petition], therefore, as a corollary the merger has taken place in the year 2024 and accordingly the financial statements and accounts of the two entities would merge accordingly yet the previous record of the Company would remain as provided. The allegation raised is vague, omnibus and wrong and the same has been done to create confusion over the aspect of the taking over/merger of respondent no. 5 Company and its proprietorship concern, whereas, there is no bar as such over participation in the instant tender by a Company which has taken over/merged with a proprietorship firm as per the tender terms and conditions. 13. Mr. Thakur lastly submitted that in the matter at hand after due evaluation and consideration by the tender Committee, the Petitioner had obtained 37/40 marks as per the QBS criteria at Annexure V of Tender terms and conditions whereas the respondent no. 5 had secured 38 out of 40 marks in QBS criteria having a higher average annual financial turnover in dietary services in last 3 years, hence only then the respondent no. 5 had been duly selected after proper vetting as the qualified bidder in the instant tender which has commenced its work as on 16/06/2025 and is duly providing the essential service to CIMS vis- à-vis the critical dietary services to the patients at CIMS, Hospital, Bilaspur, CG. and in light of the same the instant tender has been awarded in favour of the respondent no. 5 in a just, fair and proper manner as per the criteria laid down and the instant tender merits 12 no interference merely at the behest of Petitioner. It is also submitted that the representations of the petitioner alongwith other bidders have duly been considered and decided objectively by the Tender Committee in light of the decision taken on 06/06/2025, hence, the entire writ petition is devoid of merit and substance and deserves to be dismissed. 14. We have heard learned counsel for the parties and perused the impugned orders and the material available on record. 15. From perusal of the impugned orders and materials available on record, it transpires that there is no precondition to submit the living Gumasta license alongwith the technical documents, it further transpires that there was no precondition that the Food License issued for the State of Chhattisgarh is only required to be submitted. In the case in hand, the respondent no. 5 submitted the FSSAI Food License in technical bid issued by the Government of Maharashtra, as such, the issue raised by the petitioner does not hold the ground because the Licensing Authority under the Act, 2006 has issued a license and hence, the same cannot be doubted. It is apparent that the MSME certificate bearing NIC Code No. 56292 submitted by the respondent no. 5 specifically pertains to Operation of canteens or (for factories, offices, Hospitals or Schools) on a concessional basis and the respondent authorities taking into consideration the NIC Code no. 56292 issued as per the National Industrial Classification Code to the respondent no. 5 in the MSME certificate, have rightly granted 13 the respondent no. 5 proper marks for the same. It is further apparent that in the light of the Corrigendum regarding providing the annual financial turnover in dietary services for last 3 years, the respondent no. 5 has duly submitted the same in light of the amendment and as per which the average annual financial turnover of respondent no. 5 in dietary services during last 3 financial year was found to be Rs. 11.16 Crores. The authorities have not committed wrong in awarding the higher marks to the respondent no. 5 firm on the above mentioned criteria as the respondent no. 5 has the higher turnover than the petitioner firm. 16. It is also apparent that after due evaluation and consideration by the tender Committee, the Petitioner had obtained 37/40 marks as per the QBS criteria at Annexure V of Tender terms and conditions whereas the respondent no. 5 had secured 38 out of 40 marks in QBS criteria having a higher average annual financial turnover in dietary services in last 3 years, hence only then the respondent no. 5 had been duly selected after proper vetting as the qualified bidder in the instant tender which has commenced its work as on 16/06/2025 and is duly providing the essential service to CIMS vis-à-vis the critical dietary services to the patients at CIMS, Hospital, Bilaspur, CG. and in light of the same the instant tender has been awarded in favour of the respondent no. 5 in a just, fair and proper manner as per the criteria laid down and the instant tender merits no interference merely at the behest of Petitioner. The representations of the petitioner alongwith other bidders have 14 duly been considered and decided objectively by the Tender Committee in light of the decision taken on 06/06/2025. 17. The law with respect to interference in tender matters is limited to certain extent as has been considered by the Hon'ble Supreme Court in large number of cases including in the case of Tata Motors Limited vs Brihan Mumbai Electric Supply & Transport Undertaking (BEST) and others1 wherein the Hon’ble Supreme Court has considered the factum of interference in the tender matters and has held as under: "48. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless 1 2023 SCC OnLine SC 671 15 interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and ublic sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer." 18. Recently, the Hon’ble Supreme Court, in the matter of Banshidhar Construction Pvt. Ltd. v. Bharat Coking Coal Ltd. & Others, {Civil Appeal No. 11005 OF 2024, decided on 04.10.2024}, taking note of the decisions rendered in various other celebrated judgments, observed as under: “21. There cannot be any disagreement to the legal proposition propounded in catena of decisions of this Court relied upon by the learned counsels for the Respondents to the effect that the Court does not sit as a Court of Appeal in the matter of award of contracts and it merely reviews the manner in which the decision was made; and that the Government and its instrumentalities must have a freedom of entering into the contracts. However, it is equally well settled that the decision of the government/ its instrumentalities must be free from arbitrariness and must not be affected by any bias or actuated by malafides. Government bodies being public authorities are expected to uphold fairness, equality and public interest even while dealing with contractual matters. Right to equality under Article 14 abhors arbitrariness. Public authorities have to ensure that no bias, favouritism or arbitrariness are shown during the 16 bidding process and that the entire bidding process is carried out in absolutely transparent manner. 19. 22. At this juncture, we may reiterate the well- established tenets of law pertaining to the scope of judicial intervention in Government Contracts. 23. In Sterling Computers Limited vs. M/s. M & N Publications Limited and Others2, this Court while dealing with the scope of judicial review of award of contracts held: - “18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the “decision making process”. In this connection reference may be made to the case of Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141] where it was said that: (p. 144a) “The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court.” By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry. But at the same time as was said by the House of Lords in the aforesaid case, Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141] the courts can certainly examine whether “decision-making process” was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.” 24. In Tata Cellular vs. Union of India3, this Court had laid down certain priniciples for the judicial review of administrative action. “94. The principles deducible from the above are: 2 3 (1993) 1 SCC 445 (1994) 6 SCC 651 17 (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. Based on these principles we will examine the facts of this case since they commend to us as the correct principles.” 25. It has also been held in ABL International Limited and Another vs. Export Credit Guarantee Corporation of India Limited and Others4, as under: - “53. From the above, it is clear that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations, it really acts contrary to the 4 (2004) 3 SCC 553 18 constitutional guarantee found in Article 14 of the Constitution.” 26. In Jagdish Mandal vs. State of Orissa and Others5, this Court after discussing number of judgments laid down two tests to determine the extent of judicial interference in tender matters. They are: - “22. (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached;” (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.” 27. In Mihan India Ltd. vs. GMR Airports Ltd. and Others6, while observing that the government contracts granted by the government bodies must uphold fairness, equality and rule of law while dealing with the contractual matters, it was observed in Para 50 as under: - “50. In view of the above, it is apparent that in government contracts, if granted by the government bodies, it is expected to uphold fairness, equality and rule of law while dealing with contractual matters. Right to equality under Article 14 of the Constitution of India abhors arbitrariness. The transparent bidding process is favoured by the Court to ensure that constitutional requirements are satisfied. It is said that the constitutional guarantee as provided under Article 14 of the Constitution of India demands the State to act in a fair and reasonable manner unless public interest demands otherwise. It is expedient that the degree of 5 6 (2007) 14 SCC 517 (2022) SCC OnLine SC 574 19 compromise of any private legitimate interest must correspond proportionately to the public interest.” 28. It was sought to be submitted by the learned Counsels for the Respondents relying upon the observations made in Central Coalfields Limited and Another vs. SLL-SML (Joint Venture Consortium) and Others7, that whether a term of NIT is essential or not is a decision taken by the employer which should be respected. However, in the said judgment also it is observed that if the employer has exercised the inherent authority to deviate from the essential term, such deviation has to be made applicable to all the bidders and potential bidders. It was observed in Para 47 and 48 as under:- “47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but alsofrom the point of view of the employer. As held in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651] there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision-making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision “that no responsible authority acting reasonably and in accordance with relevant law could have reached” as held in Jagdish Mandal [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] followed in Michigan Rubber [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216]. 48. Therefore, whether a term of NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the 7 (2016) 8 SCC 622 20 employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana [Ramana Dayaram Shetty Dayaram Shetty v.International Airport Authority of India, (1979) 3 SCC 489] . However, if the term is held by the employer to be ancillary or subsidiary, even thatdecision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot.” 20. Considering the submissions made by learned counsel appearing for the parties and the aforesaid facts and circumstances of case and further applying the principle of law laid down by the Hon’ble Supreme Court in the above-stated judgments (supra), we do not find any scope for interference in this writ petition. 21. Accordingly, the writ petition being devoid of merit is liable to be and is hereby dismissed. No cost(s). Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Chandra