The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.17166 of 2025 Mukesh Kumar …. Petitioner Mr.Sambit Rath, Advocate -versus- State of Odisha and others …. Mr.Debasish Tripathy, Addl. Government Advocate Opposite Parties CORAM: HON’BLE THE CHIEF JUSTICE
Decision
ORDER 07.07.2025 Order No. 01. This matter is taken up through hybrid mode. 2. Pursuant to the Detailed Tender Call Notice (“DTCN”), the Petitioner submitted the bid and enclosed several documents which according to the Writ Petitioner was in conformity with the terms and conditions embodied therein. Obviously, the bidders have to pass through two tiers of filtration, namely, the technical bid stage and the financial bid stage. The Committee constituted to take a decision at the technical bid stage found that the document pertaining to the experience of doing the work in terms of Clause-9 of the said DTCN is a wrong experience certificate and in view of Clause-117 of the same, the bid is liable to be rejected, meaning thereby the bidder is disqualified for being considered at the financial bid stage. 3. The Petitioner took us to the certificate appended with the tender document issued by the Superintending Engineer Page 1 of 5 (Civil), R & B Division-1, Sambalpur (opposite party No.7) in order to corroborate the fact that the conditions enshrined in the said DTCN does not contemplate the work experience relating to a completed work but it also imbibe within itself the work experience certificate for substantial completed work, and, therefore, that certificate cannot be said to be not in conformity with the said conditions. The nomenclature of the said certificate also indicates that the said authority issued the same for a substantial completed work by the Writ Petitioner with full satisfaction. 4. At this juncture, the Writ Petitioner submits that so far as the rejection of the bid at the technical stage is concerned, the same is not a subject-matter of challenge in the instant Writ Petition, but the challenge is basically founded against the decision of the Technical Evaluation Committee dated 27th May, 2025 whereby and whereunder it recommended to take necessary steps for blacklisting and the portal blocking of the Writ Petitioner on the ground of submission of a wrong document for consideration of a tender as per the DTCN, Clause No.121 and Appendix-XXXIV of OPWD Code, Volume-II upon obtaining approval of the Technical Committee recommendation proposal by the government in the Works Department. Clause-121 of the DTCN postulates the followings: “121. A contractor may be black listed as per amendment made to Appendix XXXIV to OPWD Code Vol-II on rules for blacklisting of Contractors vide letter no. 3365 dt.01.03.2007 of Works Department Odisha. As per said amendment a Contractor may be blacklisted a. Misbehavior/threatening of Departmental & supervisory officers during execution of work/tendering process. b. Involvement in any sort of tender fixing. Page 2 of 5 important intentional violation of c. Constant non-achievement of milestones on insufficient and imaginary grounds and non-adherence to quality specifications despite being pointed out. d. Persistent and conditions of contract. e. Security consideration of the State i.e., any action that jeopardizes the security of the State. f. Submission of false/fabricated/forged documents for consideration of a tender. g. Non submission of Additional Performance Security (APS) within stipulated period as specified in Clause 28 (iii) as per Works Department Office Memorandum No.14402 dtd. 06.10.2017. h. Keeping Business Relationship with a fraud Company in any manner the contract executed with Government or Government agency as per Works Department Office Memorandum No.10496 dtd. 12.07.2018.” that affects 5. According to the counsel appearing for the State, there is no infirmity in contemplating to initiate a proceeding for blacklisting of the Petitioner for submission of a certificate which comes squarely within the ambit of sub-clause (f) of Clause-121 of the DTCN. 6. We are not impressed with the submissions advanced by the State for the simple reason that the grounds assigned for rejection of a bid at the technical bid stage is not on account of submission of the false/fabricated/forged document, but based upon the wrong submission of a certificate which is not in conformity with Clause-9 of the DTCN. It is trite law that the authorities cannot take a ground which is not incorporated in the DTCN nor should be permitted to transgress the boundaries of the Clauses incorporated in the DTCN or OPWD Code. The stand of the State that the proceeding can be initiated to blacklist the bidder in terms of Clause-121 of the said DTCN does not appear Page 3 of 5 to be correct as the genuinity and authenticity of the work experience certificate for a substantial work completed by the Petitioner has not been questioned by the authority. There is no corroborative evidence forthcoming which would come within the fold of sub-clause (f) of Clause-121 of the DTCN, and, therefore, the action of the authority in recommending the Government to blacklist the Petitioner does not appear to be a decision strictly in conformity with the Clause incorporated for blacklisting of the bidder. Furthermore, the ground which is not assigned at the time of rejecting the bid at the technical stage cannot be changed at the time of making submission before the Court of law nor can be improved upon with the rhetoric of a legal expert. The authority cannot prevaricate their stand at a subsequent stage of litigation. The submission of a genuine and authentic document cannot be termed as a false or fabricated document in absence of any convincing evidence in this regard. There is a gulf of difference between the submission of a certificate which is not in conformity with the conditions embodied in the DTCN and the submission of a forged/ fabricated/false certificate. The blacklisting of the bidder has a larger impact on its commercial viability and its competence to participate in a public work by participating in the tender process. The blacklisting renders a person commercially debt-stricken and takes away right to livelihood because of their conduct in course of the commercial dealings. Such a stringent decision must pass the muster of the provisions of the OPWD Code and conditions stipulated in DTCN and should not be used in a casual manner. Page 4 of 5 7. Since the submission of the wrong certificate does not come within the periphery of sub-clause (f) of Cluase-121 of the DTCN, the decision of the authority recommending to the Government to blacklist the Petitioner cannot be sustained in the eye of law. The portion of the decision pertaining to the recommendation by the said committee is hereby quashed and set aside. Since the Petitioner has not challenged the decision rejecting the bid at the technical bid stage it remains unaltered and uninterfered with and the other portion, i.e., recommending of black listing and forfeiture of the earnest money is set aside. 8. With such observation, the writ petition is disposed of and all the pending Interlocutory Applications, if any, stand disposed of accordingly. Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 09-Jul-2025 17:55:23 (Harish Tandon) Chief Justice (M.S. Raman) Judge Page 5 of 5