Nafr High Court
Case Details
BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.01.14 14:46:27 +0530 1 2025:CGHC:1977-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 30 of 2025 M/s Shri Siddhi Vinayak Security Services, Through Its Proprietor Govind Prasad S/o Shri Durga Prasad Aged About 44 Years R/o Behind Old High Court Near Shiv Mandir Diprapara Bilaspur (C.G.) ... Petitioner versus 1 - State Of Chhattisgarh Through Secretary Urban Administration And Development Mahanadi Bhawan Naya Raipur District - Raipur (C.G.) 2 – Collector, Bilaspur District - Bilaspur (C.G.) 3 - Chief Municipal Officer, Municipal Council Bodri District - Bilaspur (C.G.) 4 - M/s Shree Salasar Traders Through Its Proprietor Pawan Tak Aged 57 Years R/o CB Heights Sarju Bagicha Bilaspur District - Bilaspur (C.G.) ... Respondents For Petitioner : Mr.Rohit Sharma, Advocate For Respondents : Mr.S.S.Baghel, Deputy Government Advocate No.1 and 2 For Respondent No.3 for Respondent : : Mr.Sanghrash Pandey, Advocate Dr.Sudeep Agrawal and Mr.Vikas Dubey, No.4 Advocates 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble
Decision
Order on Board Per Ramesh Sinha , Chief Justice 13.01.2025 1. Heard Mr.Rohit Sharma, learned counsel for the petitioner. Also heard Mr.S.S.Baghel, learned Deputy Government Advocate appearing for respondents No.1 & 2/State, Mr.Sanghrash Pandey, learned counsel appearing for respondent No.3 and Dr.Sudeep Agrawal and Mr.Vikas Dubey, learned counsel appearing for respondents No.4. 2. The present writ petition has been filed by the petitioner with the following prayers: “10.1 That, this Hon’ble Court mayh kindly be pleased to issue an appropriate writ of mandamus or any other appropriate wit directing the respondent authorities to declare that the respondent firm is ineligible to participate in the tender process due to non-compliance with the mandatory conditions. 10.2 That, this Hon’ble Court may kindly be pleased to issue an appropriate writ of mandamus or any other appropriate writ directing the respondent authorities to quash and set aside the declaration of the respondent firm as L1 in the tender process (Annexure P/1) and set aside the impugned missive rejecting the objection of petitioner (Annexure P/9), as it is contrary to the terms and conditions of the tender and the principles of fairness and transparency and direct the respondent authorities to award the contract and issue work order to the petitioner firm. 3 10.3 That this Hon’ble Court may kindly be pleased to hold the declaration of respondent firm as eligible in technical bid and rejecting the objection of petitioner vide Annexure P/9, to be illegal and arbitrary . 10.4 That, this Hon’ble Court may kindly be pleased to grant any other relief(s), which is deemed fit and proper in the aforesaid facts and circumstances of the case.” 3. Brief facts of the case are that notice inviting tender has been floated by the Municipal Council, Bodri in the E Procurement Website for selection of placement agency for supply of labour of different categories (Skilled, Semi Skilled, and Unskilled Municipal Department) on 03.07.2024. however in the said NIT only the petitioner firm has bided for the contract, consequently the said NIT was cancelled and new NIT was issued over same subject on 13.08.2024. The petitioner firm and the firm of the private respondent has participated in the said Notice Inviting Tender and has bided for the contract by submitting their requisite documents as mandated by the terms and conditions of the notice inviting tender. Thereafter, the petitioner duly participated in the said bid in accordance with the online term and condition. The petitioner firm duly submitted documents as mentioned in the notice inviting tender. The said submission has to be in conformity with the terms and conditions for tender as enumerated therein. 4. It is the case of the petitioner that one of the mandatory requisite for participation is expressly provided in Clause 11 of the NIT which is reproduced as under:- 4 “11. नि(cid:2)नि(cid:3)दाकार को ठेके दार पंजीय(cid:2) के साथ ्ቦम नि(cid:3)भाग से जीनि(cid:3)त ्ቚमाण प्ቔ ्ቚस्तुत कर(cid:2)ा होगा, पंजीय(cid:2) ्ቚमाण-प्ቔ, पे(cid:2)का्ቑ(cid:30), नि(cid:31)(cid:2) (cid:2)ंबर, ई.एस.आई.सी. ए(cid:3)ं ई.पी.एफ. का पंजीय(cid:2) हो(cid:2)ा अनि(cid:2)(cid:3)ाय(cid:30) है।" Upon observing the technical bid submitted by the respondent firm, the petitioner duly acknowledged that the respondent firm do not possess the live registration certificate which was mandatory required from the Department of Labour. 5. On 26.09.2024, the petitioner firm, upon reviewing the digitally uploaded documents of the respondent firm, raised an objection. The objection asserted that the respondent firm had failed to comply with the requirement set forth in Clause 11 of the terms and conditions of the notice inviting tender, which mandates that a bidding firm must possess a valid, active registration certificate issued by the Labour Department. The petitioner firm further contended that the respondent firm lacks the requisite work experience of completing projects valued at 50 lakhs in ₹ government, semi-government, or state instrumentalities. Consequently, the petitioner argued that the respondent firm should be disqualified. On 30.09.2024, despite being aware that the respondent firm did not possess the mandatory documents, the respondent authority proceeded to open the financial bid and declared the respondent No.4 as L1. After observing that the respondent firm, despite being ineligible, was declared as L1, the 5 petitioner promptly raised objections on 30.09.2024. The petitioner firm is only successful bidder duly possessing the live registration form the Department of Labour with requisite modalities. 6. Upon acknowledging the approval of the technical bid of respondent which otherwise should have been declared ineligible by the respondent authority, the petitioner herein raised the objection which was brushed aside in the megalomaniac manner where upon again a detailed objection was duly raised which was awfully ignored by the respondent authority to favour the respondent firm. Even the respondent firm is otherwise technically ineligible on account of wrongful consideration and evaluation of last 3 years work completion in reference to supply of man power in government, semi-government or institution of the State as category mentioned in clause 31 of the NIT. Clause 31 of the NIT is reproduced as under :- “31. नि(cid:2)निददा कार के पास अंतितम 03 (cid:3)ኘ᭩* (2021-22 से 2023-24) में योग कर / निकसी भी 01 (cid:3)ኘ᭩(cid:30) में 50 लाख तक निकसी भी शासकीय/ अኚ᭽(cid:30)शासकीय के न््ቖ / राज्य के संस्था(cid:2) में ्ቦनिमक आपूቔኌत का काया(cid:30)(cid:2)ुभ(cid:3) हो(cid:2)ा अनि(cid:2)(cid:3)ाय(cid:30) है।" 7. The price quoted by the respondent firm fails to align with the requisite financial liabilities outlined in the tender requirements, casting serious doubts on the respondent's ability to meet the obligations and perform the work in compliance with the stipulated 6 terms. This significant discrepancy raises a reasonable apprehension regarding the manner in which the respondent intends to fulfil the contractual requirements if allowed to proceed. Granting them the opportunity to perform under such circumstances would not only compromise the integrity of the tender process but also result in the perpetuation of an illegality, undermining the principles of fairness and transparency. In reference to objection raised and subsequent exercise thereto, various missive communications were made therein, reveal the fact that the respondent No.4, admittedly, did not have any live registration certificate, whereupon the respondent authority should have abstained from opening the financial bid of the respondent firm. 8. In light of the aforementioned facts and circumstances, the petitioner firmly believes that the respondent firm has been unjustly favored, in contravention of the clear terms and conditions of the tender. The actions of the respondent authorities in approving the bid of the respondent firm, despite non- compliance with mandatory requirements such as the possession of a live registration certificate from the Department of Labour and proper work experience, are arbitrary, illegal, and mala fide. The petitioner, being the only eligible and technically competent bidder, is entitled to fair consideration as per the principles of transparency and equity enshrined in public procurement processes. Allowing the respondent firm to proceed further in the 7 tender process would not only cause irreparable harm to the petitioner but also undermine the sanctity of the tendering process and public trust. Hence, this writ petition. 9. Learned counsel for the petitioner submits that the petitioner has participated in the NIT and was declared L2, but the L1 who is the respondent No.4 has not fulfilled the mandatory conditions of the NIT issued, hence, the bid which has been issued in favour of the respondent No.4 may be quashed. He further submits that the respondent firm has failed to comply with the mandatory requirements of the tender, specifically Clause 11 of the NIT, which mandates the possession of a live registration certificate issued by the Labour Department. This omission renders the respondent firm ineligible to participate in the bidding process. The respondent firm lacks the mandatory work experience of completing projects valued at 50 lakhs in government, semi- government, or state institutions, as required under the terms and conditions of the tender. This deficiency further disqualifies them from being eligible bidders. Despite being ineligible due to non- compliance with mandatory criteria, the respondent firm was declared L1 by the respondent authorities. This action raises serious concerns about the transparency and fairness of the tender evaluation process. He also submits that the price quoted by the respondent firm does not align with the requisite financial liabilities of the tender. This discrepancy raises reasonable apprehensions about their capability to meet the contractual 8 obligations, casting doubts on the quality and integrity of the work that may be delivered. As such, the writ petition deserves to be allowed and the NIT issued in favour of respondent No.4 declaring L1 is liable to be quashed and the work order may be issued in favour of the petitioner firm. 10. On the other hand, learned counsel appearing for respondent No.3 opposes the submissions made by learned counsel for the petitioner and submits that the tender was issued online and as per the online tender, the type of the tender was "Open Tender" and tender clause was also "Open to all", meaning thereby that the tender is not restricted to a particular category and any person, individual, any contractor, any firm, any NGO, or any Women Self-Help Group, etc. can participate in the tender process. He further submits that the petitioner has raised mainly two objections with respect to the tender or work order issued in favour of the respondent No. 4. First objection is with respect to Clause 11 of the NIT, which states that in case of contractor bidder, it would be mandatory to produce Live Registration Certificate in the Labour Laws along with the documents and the second objection is with respect to Clause 31 of the NIT, which states that, the bidder should have experience of atleast 50 lakh rupees in the last three years from 2021-2022 to 2023-2024 in total or in any one year the experience should be of 50 lakh rupees relating to labour supply in any government/semi- government center/in any institution of State. In other words, the 9 experience should be of atleast 50 lakh rupees by adding the experience of last three years or in any one year. With regard to the above objections, it is respectfully submitted that as far as the first objection relating to Clause 11 of the NIT is concerned, it is submitted that, in the present case the petitioner and the respondent no. 4 both the bidders have enclosed the Gumasta Licence (Registration under Shops and Establishment Act, 1958). He also submits that both the bidders have submitted similar documents with regard to registration under the Shops and Establishment Act, 1958. Since both the bidders were eligible as per the terms and conditions of the NIT, therefore, both were found qualified in the technical bid. The contention of the petitioner that the respondent no. 4 has not submitted any document with respect to registration under labour laws is denied. Moreover, it has been specifically mentioned in the NIT that the successful bidder have to obtain labour licence only after work order as per Clause 30 of the NIT on the basis of the number of employed workers. Therefore, the question with regard to non- possession of labour licence by respondent No. 4 is premature. He contended that as the tender is an open tender and it is open to all, therefore, even an individual, NGO, Women Self-Help Group, should also be eligible to participate in the tender process. Clause 30 of the NIT further clarifies that the concerned firm/contractor shall produce labour license within 30 day of the receipt of the work order. In the instant case, the work order has 10 been issued in favour of respondent No.4 on 13.12.2024, which he received on 17.12.2024. He further contended that the respondent no. 4 can submit the labour license within 30 days of the receipt of the work order i.e. on or before 15.01.2025. In the present case, Clause 11 of the NIT will not be applicable either in the case of the petitioner or in the case of respondent No. 4. He also contended that the Contract Labour (Regulation & Abolition) Act, 1970, has been enacted to regulate the employment of Contractor Labour in certain establishment and to provide for its abolution in certain circumstances and the matters connected therewith. It is submitted that, the said Act is applicable to every establishment in which twenty or more workmen, are employed or were employed on any day of the preceding twelve months as Contract Labour. It is submitted that in the case of respondent No. 4, he was having less than 20 labours and therefore, the Act of 1970 would not apply to the respondent no. 4 and no license can be issued under the Act of 1970, if the workmen, who are employed are less than 20. It is submitted that the letter dated 25.11.2024 issued by the Assistant Labour Commissioner with respect to some other firm also clarifies this fact that, if the workmen employed are less than 20, no license under the Contract Labour (Regulation & Abolition) Act, 1970 can be issued. It is submitted that this is the reason that after issuance of work order, 30 days' time has been granted from the date of acceptance of the work order to submit labour license within 30 11 days. He submitted that with respect to the objection relating to Clause 31 of the NIT, it is submitted that respondent no. 4 has submitted experience of last three years, which comes to more than 50 lakh rupees (in total) amounting to Rs. 53,25,127/-. It is submitted that Clause 31 of the NIT requires that the bidder should have experience of more than 50 lakh rupees either in total of the last three years or in any one year. It is submitted that the bid submitted by the respondent No. 4/ M/S Salasar Traders, is 14.450 above the Collector Rate and the bid submitted by the petitioner/M/S Shri Siddhi Vinayak Security Services, is 22.220 above the Collectorate Rate. It is further submitted that the financial bid comparison of both the parties shows that, the total value of the bid made by the respondent no. 4 comes to Rs. 1,48,78,500/- and the value of the bid made by the petitioner comes to Rs. 1,58,88,600/-. Therefore, the respondent authority is further saving more than 10 lakh rupees in case of acceptance of the tender of the respondent no. 4 and it is in the interest of saving of the public money at large. He further submitted that the respondent authority has accepted the bid of the respondent No. 4 because he was found eligible in all respects and he had satisfied the terms & conditions of the NIT and looking to the fact that bid quoted by the respondent No. 4 was lowest, his bid was accepted and therefore, there is no question of illegality, arbitrariness or malafide in the conclusion of present tender process. He also submitted that the work order has been issued 12 by the respondent No.3 on 13.12.2024 and the respondent No. 4 has started work from 18.12.2024 and the work order dated 13.12.2024 issued in favour of the respondent No.4 has not been challenged by the petitioner in this writ petition and therefore the present petition is liable to be dismissed on this ground alone. 11. We have heard learned counsel appearing for the parties, perused the pleadings made in this writ petition and also perused the documents annexed along with return filed by respondent No.3. 12. From perusal of the documents annexed with this writ petition, it appears that the tender was issued online and as per the online tender, the type of the tender was "Open Tender" and tender clause was also "Open to all", meaning thereby that the tender is not restricted to a particular category and any person, individual, any contractor, any firm, any NGO, or any Women Self-Help Group, etc. can participate in the tender process. It further transpires that the petitioner has raised mainly two objections with respect to the tender or work order issued in favour of the respondent No. 4. First objection is with respect to Clause 11 of the NIT, which states that in case of contractor bidder, it would be mandatory to produce Live Registration Certificate in the Labour Laws along with the documents and the second objection is with respect to Clause 31 of the NIT, which states that the bidder should have experience of atleast 50 lakh rupees in the last three 13 years from 2021-2022 to 2023-2024 in total or in any one year the experience should be of 50 lakh rupees relating to labour supply in any government/semi- government center/in any institution of State. In other words, the experience should be of atleast 50 lakh rupees by adding the experience of last three years or in any one year. In the present case, the petitioner and the respondent no. 4 both the bidders have enclosed the Gumasta Licence (Registration under Shops and Establishment Act, 1958). Both the bidders have submitted similar documents with regard to registration under the Shops and Establishment Act, 1958. Since both the bidders were eligible as per the terms and conditions of the NIT, therefore both were found qualified in the technical bid. Moreover, it has been specifically mentioned in the NIT that the successful bidder have to obtain labour licence only after work order as per Clause 30 of the NIT on the basis of the number of employed workers. As the tender is an open tender and it is open to all, therefore, even an individual, NGO, Women Self-Help Group, should also be eligible to participate in the tender process. Clause 30 of the NIT further clarifies that the concerned firm/contractor shall produce labour license within 30 day of the receipt of the work order. In the instant case, the work order has been issued in favour of respondent No.4 on 13.12.2024, which he received on 17.12.2024 and the respondent No. 4 can submit the labour license within 30 days of the receipt of the work order i.e. on or before 15.01.2025. It also appears that respondent No. 14 4 has submitted experience of last three years, which comes to more than 50 lakh rupees (in total) amounting to Rs. 53,25,127/- and Clause 31 of the NIT provides that the bidder should have experience of more than 50 lakh rupees either in total of the last three years or in any one year. The bid submitted by the respondent No. 4 is 14.450 above the Collector Rate and the bid submitted by the petitioner is 22.220 above the Collectorate Rate and the financial bid comparison of both the parties shows that the total value of the bid made by the respondent No. 4 comes to Rs.1,48,78,500/- and the value of the bid made by the petitioner comes to Rs.1,58,88,600/-. Therefore, the respondent authority has accepted the bid of the respondent No. 4, because he was found eligible in all respects and he had satisfied the terms & conditions of the NIT and looking to the fact that bid quoted by the respondent No. 4 was lowest, his bid was accepted and therefore there is no question of illegality, arbitrariness or malafide in the conclusion of present tender process. It also transpires that the work order has been issued by the respondent No.3 on 13.12.2024 in favour of the respondent No.4 and the respondent No. 4 has started work from 18.12.2024 and the work order dated 13.12.2024 issued in favour of the respondent No.4 has not been challenged by the petitioner in this writ petition. 13. 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 15 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 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 1 2023 SCC OnLine SC 671 16 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." 14. 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 bidding process and that the entire bidding process is carried out in absolutely transparent manner. 22. At this juncture, we may reiterate the well-established tenets of law pertaining to the scope of judicial intervention in Government Contracts. 17 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: (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. 2 3 (1993) 1 SCC 445 (1994) 6 SCC 651 18 (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 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 4 5 (2004) 3 SCC 553 (2007) 14 SCC 517 19 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 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 6 (2022) SCC OnLine SC 574 20 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 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 7 (2016) 8 SCC 622 21 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.” 15. Considering the submissions made by learned counsel appearing for the parties, also considering the return filed by respondent No.3, the fact that respondent No.4 has been declared L1 and work order has been issued by the respondent No.3 in favour of the respondent No.4 on 13.12.2024 and the respondent No.4 has started the work from 18.12.2024, also considering the fact that the work order dated 13.12.2024 issued in favour of the respondent No.4 has not been challenged by the petitioner in this writ petition and 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. 16. Accordingly, the writ petition being devoid of merit is liable to be and is hereby dismissed. No cost(s). 17. Interim relief granted on 7.1.2025 stands vacated. Sd/- Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Bablu