The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.35634 of 2025 Bibhu Datta Tripathy …. Petitioner Mr. Santosh Kumar Dash, Advocate State of Odisha and others -versus- …. Opposite Parties Mr. Saswat Das, AGA CORAM: THE HON’BLE THE CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE MURAHARI SRI RAMAN Order No. ORDER 23.12.2025 01. 1. The petitioner has filed the instant writ petition assailing Clause-5 and Clause-18 of the Tender document, which are relatable to the eligibility criteria to the extent that the intending bidder must have executed similar nature of works during 2020-21 to 2024-25 duly certified by the concerned Superintendent Engineer / Executive Engineer / Assistant Engineer or equivalent in the prescribed form. Clause-18 relates to the submission of the certificate by the concerned Officer showing “similar work”, i.e., construction of a multistoried RCC framed composite building executed under one agreement for any authority/bodies of State/Central Government. 2. The foundation of the challenge to aforesaid clauses is based upon the registration of the petitioner as ‘A’ class contractor having a requisite educational qualification and all the expertise in executing the said work, for which the said tender is floated. It is averred in the writ petition that the conditions are burdensome, Page 1 of 6 harassive, arbitrary and intended to eradicate the other eligible contractors and therefore, such conditions should be excluded from the said tender document. 2.1. It is submitted by the learned counsel for the petitioner that if such conditions are uniformly incorporated in all the tenders floated by the Government, it will not permit the petitioner to apply at any point of time and, therefore, the same is arbitrary and warrants interference. 3. We are conscious of the proposition of law that the scope and jurisdiction exercised by the writ Court under Article 226 of the Constitution of India in relation to an incorporation of any terms and conditions in the tender call notice is limited and, therefore, the Court must meticulously examine the said clauses keeping in mind the object and the purpose and the character of the work which the Authorities intended to be executed by the participating tenderers. There is no cavil of doubt that incorporation of the terms and conditions in the tender call notice is within the domain of the Authorities floating the tender and such freedom is inhered and ingrained in them as they are the best persons to decide as to what conditions should be incorporated to ensure not only timely execution of the entire work but also the quality of such work. The writ Court should seldom interfere into the terms and conditions embodied in the tender call notice unless such conditions are per se arbitrary, irrational and does not withstand on the test of reasonability. The Court may interfere when such conditions are actuated with malice, embracing favoritism and nepotism and tailored to suit a particular person. Page 2 of 6 3.1. Simply because a particular intending tenderer is not eligible to participate in the said tender because of the eligibility
Legal Reasoning
conditions enshrined therein does not ipso facto invite the action of the authorities arbitrary and/or unreasonable. The reasonability test stands on the Wednesbury principle and to be tested in perspective of the object and the purpose underlying the incorporation of such clauses. 3.2. Even the apex Court in Vinishma Technologies Pvt. Ltd. vs. State of Chhattisgarh and another, reported in (2025) 10 SCR 301=2025 INSC 1182 held that the eligibility criteria enshrined in the tender document must have a nexus with the object sought to be achieved and if any specialized work is required to be undertaken, there is no fetter on the part of the tendering authority to incorporate any conditions. 3.3. There is no quarrel to the proposition with the incorporation of any terms and conditions must ensure the level playing field doctrine and any stringent conditions which creates an unreasonable restriction in participation is always regarded as the action offending the aforementioned doctrine. Therefore, a distinction has to be drawn between the tender floated for supply of material either from the manufacturers or the dealers, which is of a general nature and the construction of a structure requiring particular specification, quality and expertise in this regard. 3.4. In M/s. Utkal Suppliers, Berhampur, Ganjam Vs. Veer Surendra Sai Institute of Medical Sciences and Research, Burla,
Decision
Sambalpur and another, W.P.(C) No.19004 of 2025, disposed of on 18th December, 2025, this Court held as follows:- Page 3 of 6 “13. What could be culled out from the aforementioned reports that the administrative action of the authorities in a contractual field is amenable to be tested in exercise of powers of judicial review, provided such action is arbitrary, unfair, unreasonable, irrational and violates the core fabric of Article 14 of the Constitution of India. The discriminatory action manifested from the administrative action is opposed to the doctrine of “level playing field”. Any terms and conditions incorporated in the tender to restrict its participation amongst the particular class of persons without any discernible rationality in it disturbs the “level playing field” and may be termed as arbitrary. The test of arbitrariness can also be decided when such act betrays, caprice or a mere exhibition of the will of the authority. 14. Thus, the safest course to ascertain the arbitrariness in the action of the administrative authorities is whether the condition imposed in the tender document has any nexus to the object sought to be achieved eradicating the vice of arbitrariness or an unfair treatment amongst the eligible candidates. 15. In the instant case, before the finalization of the terms and conditions to be incorporated in the proposed tender document, Pre-bid meeting was held inviting the suggestions and/or objections. Several intending participants including the petitioner gave their suggestions and the main focus was on the marks allotted on the basis of the turnover. The authority, which is the expert body, Page 4 of 6 justified the fixation of the turnover giving a reason that the nature of the services ordained the seamless supply of the foods to the indoor patients for two or three months in the event the payments are not made, which cannot be said irrational and/or arbitrary. The financial capacity for uninterrupted services to be rendered to the patients is clearly discernible from the decision of the administrative authorities, who are well versed with the realities gained from the past experience, which cannot be said to be arbitrary or disturbs the fabric of “level playing field”.” 3.5. The present tender is floated for construction of 50 seated Hostel building at Kamata, Kumuli and construction of 100 seated Boys/Girls Hostel Building at +2 College, Tarabhata and 100 seated Girls’ Hostel at Kotpad RGHS. Since the construction of the Hostels, which would cater the students invites specialized and experienced contractor, it may impact the lives of the inhabitants therein and, therefore, any conditions which are imposed with an intent to ensure the quality work under the strict supervision of expert cannot be said to be arbitrary or offending the core fabric of level playing field. 3.6. It admits no ambiguity with a freedom to some extent must be given to an authority floating the tender to incorporate the terms and conditions, an interference without any grounds as aforesaid, should be avoided. It is open to the authority floating a tender to incorporate the conditions including the eligibility criteria which must be corelated with the purpose and object sought to be Page 5 of 6 achieved and once the same is discernable from the document, the interference becomes minimal. 4. We, thus, do not find any substance in the stand of the petitioner that such eligibility criteria is arbitrary and opposed to the level playing field doctrine. 5. The writ petition, sans merits, is dismissed. As a result of disposal of the writ petition, pending Interlocutory Application(s), if any, shall stand disposed of. (Harish Tandon) Chief Justice (M.S. Raman) Judge MRS/Laxmikant Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Cuttack Date: 24-Dec-2025 15:18:37 Page 6 of 6