Tender conditions are unassailable unless found to be malicious or in violation of law.

Justice Sanjay Karol, J.

The writ petition is filed with the following reliefs:-

“i) That the respondents-department may kindly be directed to cancel the tender process dated 2.4.2011 (annexure P-4) and grant the tender in favour of the petitioner being lowest bidder.

ii) That the tender process dated 2.4.2011 with amended conditions may kindly be quashed and set-aside.

iii) That the record pertaining to this case may kindly be called for, for the kind perusal of this Hon’ble Court.

iv) That the writ petition may kindly be allowed with cost. v) That any other reliefs, which Hon’ble Court deem just and proper in the facts and circumstances of the case may also be passed in favour of the petitioners and against the respondents.”

2. On 14.3.2011 the District Ayurvedic Officer, District Sirmaur at Nahan, H.P. issued notice inviting tenders (Annexure P-3) for the supply of “cooked/prepared diet to the indoor patients of District Ayurvedic Hospital, Nahan for the year 2011-12”. Amongst others, petitioner submitted his offer in terms thereof. Names were short listed but however before the work could be awarded to the successful tenderer a decision was taken not to complete the process and return the earnest money of the tenderers. It was desired to have a re-look into the terms and conditions of the tender. The terms were modified and on 2.4.2011 a fresh process was initiated by inviting tenders (Annexure P-4) on the modified terms and conditions.

3. According to the petitioner condition No. 11 was modified only to give benefit to the private respondent.

4. Clause 11 of both the tenders reads as under:-

Clause 11 of Annexure P-3: It is mandatory for the person submitting tender to annex with the tender a license of selling prepared food or a certificate of experience regarding work/business of supplying prepared food items in the hospital.

Clause 11 of Annexure P-4: A registration certificate regarding running a restaurant/hotel, issued by the Department of Tourism, is required from the person submitting the tender. A photo copy of such certificate has to be annexed with the tender. If any such certificate is not found to be annexed with the tender, such tender/tenders would straightaway be rejected by the Committee.

5. Significantly in the present petition, petitioner has only challenged the tender process initiated on 2.4.2011. There is no challenge to the order dated 1.4.2011 whereby Government took decision to cancel the process initiated in terms of Annexure P-3. Also there is no protest to the refund of the earnest money.

6. In Tata Cellular vs. Union of India,(1994) 6 SCC 651, the Court while deducing certain principles on which the tendering process can be challenged has held that the terms of invitation to tender are not open to judicial scrutiny for the reason that the same is in the realm of a contract. The Government must have freedom of contract. Fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. The decision, however, must be free from arbitrariness, not affected by bias or actuated by mala fides.

7. The principle was further reiterated in Association of Registration Plates vs. Union of India and others, (2005) 1 SCC 679, wherein the Apex Court held that certain preconditions or pre-qualifications for tenders have to be laid down to ensure the capacity and the resources of the contractor to successfully execute the work and unless the action of the tendering authority is found to be malicious and misuse of statutory powers, tender conditions are unassailable. It further held that merely because a party, for want of fulfillment of tender conditions is disqualified, tender conditions cannot be said to be discriminatory.

8. In Shmnit Utsch India Pvt. Limited and another vs. West Bengal Transport Infrastructure Development Corporation Limited and others, (2010) 6 SCC 303, the Apex Court further held that tenderi