Himachal Pradesh High Court
Reserved On: 30.01.2025 vs The Directorate Of Medical Education & … on 31 January, 2025
2025:HHC:3016
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMP No. 1911 of 2025 in
CWP No. 1676 of 2025
Reserved on: 30.01.2025
Date of decision 31.01.2025.
Sudhir Srivastava Innovations Pvt Ltd.
… Applicant/Petitioner
Versus
The Directorate of Medical Education & Ors.
…Non-applicants/Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla, Vacation Judge.
Whether approved for reporting? Yes
For the applicant : Mr. Ankur Khandelwal, Advocate.
For the Non-applicants : Mr. Pranay Pratap Singh, Additional
Advocate General with Mr. Sanjay
Dutt Vasudeva, Deputy Advocate for
General for non-applicants No.1 to 4.
: Mr. Ashok Aggarwal, Senior
Advocatewith M/s. Dr. Sanjay Kumar,
ZoebCuterywala, Arpita Sawhney,
Rahul Tyagi Advocates through V.C.
and Mr. Ankit Thakur, Advocate,
present the Court for non-applicant
No.5.
2
2025:HHC:3016
Rakesh Kainthla, Judge
The non-applicant No.1 issued a tender for the installation
of machinery for Robotic Surgery at Atal Institute of Medical Super
Specialty Chamiana, Shimla H.P. (Non-applicant No.2) and Dr
Rajender Prashad Medical Collage, Tanda, Kangra, Himachal Pradesh
(Non-applicant No.3). The present applicant participated in the tender
by submitting a bid. The Technical Committee conducted an
inspection and found that the Robotic System shown by the applicant
at Rajiv Gandhi Cancer Institute did not demonstrate the use of the
staplers,the applicant demonstarted only one stapler at its factory in
Gurugram, which was still in the developmental stage and lacked
articulation upto 120˚, as mandated by tender specification point No.
23 & A2. The stapler was demonstrated on animal tissues and its use in
humans was not exhibited. Therefore, it was not advisable to approve
the system in its current state.
2. The applicant sent an email dated 31.12.2024
(Annexure P-13), raising its concerns about the evaluation process. It
requested the recall of the evaluation process and conducting a fair
evaluation process. Non-applicant No.1 sent a reply on 4th December
2024, attaching a letter written by it to the applicant in November
2024 about the visit of the Committee to observe the compliance of
3
2025:HHC:3016
the technical specifications and quality of the product. The applicant
responded by sending another e-mail dated 07.01.2025 stating that it
was making arrangements for Technical Committee visit for the
demonstration of the Surgical Robotic System. Non-applicant No.1, in
the meantime, opened the financial bid and rejected the technical bid.
3. Feeling aggrieved from the action of non-applicant No.1,
the petitioner/applicant has filed a writ petition seeking a direction to
consider the representation of the petitioner/applicant and evaluate
the bid of the applicant after allowing the applicant to demonstrate
the Surgical Robotic Unit. The petitioner/applicant also filed an
interim application seeking direction to the non-applicants/
respondents not to proceed with the award of the contract during the
pendency of the petition.
4. I have heard Mr Ankur Khandelwal, learned counsel for the
applicant, Mr. Pranay Pratap Singh, learned Additional Advocate
General with Mr Sanjay Dutt Vasudeva, learned Deputy Advocate
General forn on-applicant/respondents No.1 to 4, and Mr. Ashok
Aggarwal, learned Senior Advocate with M/s. Dr Sanjay Kumar, Zoeb
Cuterywala, Arpita Sawhney, Rahul Tyagi, and Ankit Thakur learned
counsel for non-applicant/respondent No.5.
4
2025:HHC:3016
5. Mr Ankur Khandelwal, learned counsel for the
applicant/petitioner submitted that the applicant demonstrated the use
of the machine in the Rajiv Gandhi Cancer Institute where a
gynecological procedure was being carried out which did require the use
of the staplers. The use of the staplers was demonstrated to the
Committee on animal tissues in the laboratory. The applicant submitted
a representation dated 31.12.2024 against the rejection of the technical
bid and a response was sent by the non-applicant No.1 regarding the
technical evaluation of the machine by the Technical Committee. The
non-applicant No.1 could not have opened the financial bid without
allowing the applicant to demonstrate the use of the machine. The whole
process adopted by non-applicant No.1 is arbitrary. Hence, it was prayed
that direction be issued to non-applicant No.1 to permit the applicant to
demonstrate the use of the machine to the Technical Committee. He
relied upon the judgment of the High Court of Delhi in Macpower CNC
Machines Limited vs Union of India, WP (C) 3942/2020decided on
24.12.2020 and the judgment ofHigh Court of Patna in Samanta Security
and Intelligence Services Pvt. Ltd. vs State of Bihar 2023 SCC Online Pat
3186 in support of his submission.
6. Mr.Parnay Partap Singh, learned Additional Advocate General
for the non-applicant/respondents No.1 to 4, submitted that the scope of
5
2025:HHC:3016
judicial review in the award of tender is quite limited. The Court cannot
examine the merit of the decision taken by the State and is only
concerned with the decision-making process. In the present case, the
decision was taken by a team of highly qualified doctors, and the Court
should not sit in appeal over their decision. The letter issued in
November was not served upon the petitioner/applicant, and non-
applicant No.1 sent the same by way of an email. This action of applicant
No.1 should not be construed as providing an opportunity for the
applicant to demonstrate the use of the machines to the Committee
again. The principle of natural justice does not apply to the tender
process. He relied upon judgments of Hon’ble Supreme Court passed in
Jagdish Mandal vs State of Orissa & others (2007) 14 SCC 517, Municipal
Corporation, Ujjain and another vs BVG India Limited and others (2018) 5
Supreme Court Cases 462, Uflex Limited vs Government of Tamil Nadu &
others (2022) 1 SCC 165, N.G. Projects Limited vs Vinod Kumar Jain &
others (2022) 6 Supreme Court Cases 127 and Omsairam Steels & Alloys
Private Limited vs State of Odisha (2024) 9 Supreme Court cases 697 in
support of his submission.
7. Mr. Ashok Aggarwal, learned Senior Counsel for
respondent/non-applicant No.5, submitted that the jurisdiction of the
Court in the tender process is quite limited. The Court examines the
6
2025:HHC:3016
process and not the merit of the decision. The applicant was allowed to
demonstrate the use of the machine to the Technical Committee, which
found that the machine did not comply with the tender specification.
This Court should not substitute its view in place of the view of the
Technical Committee. He relied upon the judgment of Hon’ble Supreme
Court in Tata Cellular vs Union of India (1994) 6 SCC 651, B.S. N Joshi &
Sons Ltd. vs Nair Coal Services Ltd and others (2006) 11 Supreme Court
Cases 548, Balaji Ventures Pvt. Ltd. vs Maharashtra State Power
Generation Company Ltd. &another 2022 SCC OnLine SC 1967, M/S N.G.
Projects (supra )and Jagdish Mandal (supra) in support of his submission.
8. I have given a considerable thought to the submission
made at the bar and have gone through the record carefully.
9. The Hon’ble Supreme Court exhaustively dealt with the
scope of judicial review in Tata Cellular v. Union of India, (1994) 6 SCC
651and observedat page 687: –
“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.
(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
7
2025:HHC:3016substituting 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 the 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, 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 the Wednesbury principle of
reasonableness (including its other facts pointed out
above) but must be free from arbitrariness and not
affected by bias or actuated by mala fides.
(6) Quashing decisions may impose a heavy
administrative burden on the administration and lead
to increased and unbudgeted expenditures.”
10. It was held in Jagdish Mandal v. State of Orissa (2007) 14
SCC 517: 2006 SCC OnLine SC 1373 that while undertaking the judicial
review, the Court has to ask the question whether the process adopted
was mala fide or arbitrary and whether the public interest is affected,
if the answer is in the negative, the Court should not interfere with the
action taken by the authority. It was observed at page 531:
“22. Judicial review of administrative action is intended to
prevent arbitrariness, irrationality, unreasonableness, bias and
mala fides. Its purpose is to check whether a choice or decision
is made “lawfully” and not to check whether a choice or
decision is “sound”. When the power of judicial review is
8
2025:HHC:3016invoked in matters relating to tenders or the award of contracts,
certain special features should be borne in mind. A contract is a
commercial transaction. Evaluating tenders and awarding
contracts are essentially commercial functions. Principles of
equity and natural justice stay at a distance. If the decision
relating to the award of the contract is bona fide and is in the
public interest, courts will not, in the exercise of the power of
judicial review, interfere even if a procedural aberration or error
in assessment or prejudice to a tenderer, is made out. The
power of judicial review will not be permitted to be invoked to
protect private interest at the cost of public interest or to decide
contractual disputes. The tenderer or contractor with a
grievance can always seek damages in a civil court. Attempts by
unsuccessful tenderers with imaginary grievances, wounded
pride and business rivalry to make mountains out of molehills
of some technical/procedural violation or some prejudice to self
and persuade courts to interfere by exercising the power of
judicial review should be resisted. Such interferences, either
interim or final, may hold up public works for years or delay
relief and succour to thousands and millions and may increase
the project cost manifold. Therefore, a court, before interfering
in tender or contractual matters in the exercise of the power of
judicial review, should pose to itself the following questions:
(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
9
2025:HHC:3016
footing as they may require a higher degree of fairness in
action.”
11. This position was reiterated in Municipal Corpn., Ujjain v.
BVG India Ltd., (2018) 5 SCC 462: (2018) 3 SCC (Civ) 291: 2018 SCC
OnLineSC 278, and it was held that when the decision-making process
is so arbitrary or irrational that no responsible authority proceeding
reasonably or lawfully could have arrived at such a decision, the power
of judicial review can be exercised. It was observed at page 477:
“27. Thus, only when a decision-making process is so arbitrary
or irrational that no responsible authority proceeding
reasonably or lawfully could have arrived at such decisions, the
power of judicial review can be exercised. However, if it is bona
fide and in the public interest, the court will not interfere in the
exercise of the power of judicial review even if there is a
procedural lacuna. The principles of equity and natural justice
do not operate in the field of commercial transactions.
Wherever a decision has been taken appropriately in the public
interest, the court ordinarily should exercise judicial restraint.
When a decision is taken by the authority concerned upon due
consideration of the tender document submitted by all
tenderers on their own merits and it is ultimately found that the
successful bidder had in fact substantially complied with the
purpose and object for which the essential conditions were laid
down, the same may not ordinarily be interfered with.”
12. It was held in Uflex Ltd. v. State of T.N., (2022) 1 SCC 165:
2021 SCC OnLine SC 738 that the tenderer can always seek damages in
a Civil Court and the Writ Court should resist the temptation to
interfere by exercising the power of judicial review on imaginary
10
2025:HHC:3016grievances, wounded pride and business rivalry. It was observed at
page 173:
“The enlarged role of the Government in economic activity and
its corresponding ability to give economic “largesse” was the
bedrock of creating what is commonly called the “tender
jurisdiction”. The objective was to have greater transparency
and the consequent right of an aggrieved party to invoke the
jurisdiction of the High Court under Article 226 of the
Constitution of India (hereinafter referred to as “the
Constitution”), beyond the issue of strict enforcement of
contractual rights under the civil jurisdiction. However, the
ground reality today is that almost no tender remains
unchallenged. Unsuccessful parties or parties not even
participating in the tender seek to invoke the jurisdiction of the
High Court under Article 226 of the Constitution. The public
interest litigation (“PIL”) jurisdiction is also invoked towards
the same objective, an aspect normally deterred by the Court
because this causes proxy litigation in purely contractual
matters.
2. The judicial review of such contractual matters has its own
limitations. It is in this context of judicial review of
administrative actions that this Court has opined that it is
intended to prevent arbitrariness, irrationality,
unreasonableness, bias and mala fides. The purpose is to check
whether the choice of decision is made lawfully and not to check
whether the choice of decision is sound. In evaluating tenders
and awarding contracts, the parties are to be governed by
principles of commercial prudence. To that extent, principles of
equity and natural justice have to stay at a distance. [Jagdish
Mandal v. State of Orissa, (2007) 14 SCC 517]
3. We cannot lose sight of the fact that a tenderer or contractor
with a grievance can always seek damages in a civil court and
thus, “attempts by unsuccessful tenderers with imaginary
grievances, wounded pride and business rivalry, to make
mountains out of molehills of some technical/procedural
violation or some prejudice to self, and persuade courts to
11
2025:HHC:3016interfere by exercising the power of judicial review, should be
resisted”. [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517]
13. It was held in Omsairam Steels & Alloys (P) Ltd. v. State of
Odisha, (2024) 9 SCC 697: 2024 SCC OnLine SC 1711 that the Court has
to strike a fair balance between the interests of the Government and
the private entities. It was observed at page 704:
“21. It is well settled that, normally, the courts would be loath to
interfere in commercial matters, especially when such
interference has the effect of delaying the execution of mega
projects of national importance.
22. This Court in Silppi Constructions Contractors v. Union of
India [Silppi Constructions Contractors v. Union of India, (2020)
16 SCC 489]held: (SCC p. 501, para 19)
“19. 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 in all
the aforesaid decisions [Ed. : The reference appears to be
to Tata Cellular v. Union of India, (1994) 6 SCC 651; Raunaq
International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC
492; Air India Ltd. v. Cochin International Airport Ltd., (2000)
2 SCC 617; Ksidc Ltd. v. Cavalet India Ltd., (2005) 4 SCC
456; Master Marine Services (P) Ltd. v. Metcalfe &
Hodgkinson (P) Ltd., (2005) 6 SCC 138; B.S.N. Joshi & Sons
Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548; Jagdish
Mandal v. State of Orissa, (2007) 14 SCC 517; Michigan Rubber
(India) Ltd. v. State of Karnataka, (2012) 8 SCC 216; Afcons
Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16
SCC 818; Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC
272; Municipal Corpn., Ujjain v. BVG India Ltd., (2018) 5 SCC
462: (2018) 3 SCC (Civ) 291; Caretel Infotech Ltd. v. Hindustan
Petroleum Corpn. Ltd., (2019) 14 SCC 81] 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
12
2025:HHC:3016interfere in contractual matters unless a clear-cut case of
arbitrariness or mala fides bias or irrationality is made out. …
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. As laid down in the
judgments [Ed. : The reference appears to be to Tata
Cellular v. Union of India, (1994) 6 SCC 651; Raunaq
International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC
492; Air India Ltd. v. Cochin International Airport Ltd., (2000)
2 SCC 617; Ksidc Ltd. v. Cavalet India Ltd., (2005) 4 SCC
456; Master Marine Services (P) Ltd. v. Metcalfe &
Hodgkinson (P) Ltd., (2005) 6 SCC 138; B.S.N. Joshi & Sons
Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548; Jagdish
Mandal v. State of Orissa, (2007) 14 SCC 517; Michigan Rubber
(India) Ltd. v. State of Karnataka, (2012) 8 SCC 216; Afcons
Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16
SCC 818; Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC
272; Municipal Corpn., Ujjain v. BVG India Ltd., (2018) 5 SCC
462: (2018) 3 SCC (Civ) 291; Caretel Infotech Ltd. v. Hindustan
Petroleum Corpn. Ltd., (2019) 14 SCC 81] cited above, 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 public sector undertakings in
matters of contract. Courts must also not interfere where
such interference will cause unnecessary loss to the public
exchequer.”(emphasis supplied)
23. Thus, it is evident that while undertaking the exercise of
judicial review of matters relating to tenders, the court has to
strike a fair balance between the interests of the Government,
which is always expected to advance the financial interests of
the State and private entities. As observed by this Court, not
every small mistake must be perceived through the lens of a
magnifying glass and blown up unreasonably….”
13
2025:HHC:3016
14. Therefore, it is apparent from the judgments of the
Hon’ble Supreme Court that the Courts cannot interfere with the
tender process unless the same is arbitrary, mala fide, unreasonable
or biased.
15. The other judgments cited at the Bar have taken more or
less a similar view.
16. In the present case, the Technical Committee conducted
the inspection and issued a report stating that the machine of the
applicant did not meet the tender specifications point No. 23 and A2.
The Stapler was not demonstrated on humans but was demonstrated
on animal tissues and it was not advisable to approve this system in
its present State.
17. The applicant wrote a letter dated 31.12.2024 admitting
that the use of the Stapler was not demonstrated to the Committee. It
explained that the Committee was present for one surgery
(Gynecology), which did not require the use of the Stapler. This letter
further mentioned that Technical Committe was invited to visit the
laboratory to observe Stapler’s functionality on animal tissues. Thus,
the findings of the Technical Committee are not in dispute. The
Committee was in the best position to know about the suitability of
14
2025:HHC:3016
the machine on humans, and this Court cannot supersede the view of
the Technical Committee while exercising the jurisdiction under
Article 226 of the Constitution of India.
18. It was submitted that the applicant had sent the objections
to the report of the Technical Committee in response to which non-
applicant No.1 sent a letter (Annexure P-6) regarding the visit of the
Technical Evaluation Committee, which showed that an opportunity
was given to the applicant to demonstrate the Robotic Surgery and the
applicant was prevented from availing this opportunity. This amounts
to a violation of natural justice, making the opening of the financial
bid bad. Reliance was placed upon the judgment of Samanta Security
(supra) in support of this submission. The High Court of Patna held
that the normal course of the tender process is informing such a
person about the technical bid and providing an opportunity to file an
objection or suggestion, and thereafter,the opening of the financial
bid is required to be processed. Hon’ble Supreme Court specifically
held in Tata Motors Ltd. v. Brihan Mumbai Electric Supply & Transport
Undertaking (BEST), 2023 SCC OnLine SC 671 that the principle of
equity and natural justice have to stay at a distance in evaluating the
tenders. It was observed:
15
2025:HHC:3016
“54. As observed by this Court in Jagdish Mandal v. State of
Orissa, reported in (2007) 14 SCC 517, that while invoking the
power of judicial review in matters as to tenders or award of
contracts, certain special features should be borne in mind that
evaluations of tenders and awarding of contracts are essentially
commercial functions and principles of equity and natural
justice stay at a distance in such matters. If the decision relating
to the award of the contract is bona fide and is in the public
interest, courts will not interfere by exercising powers of
judicial review, even if a procedural aberration or error in
assessment or prejudice to a tenderer, is made out. The power
of judicial review will not be invoked to protect private interest
at the cost of public interest or to decide contractual disputes.”
(Emphasis supplied)
19. In view of the judgments of the Hon’ble Supreme Court,
the judgment of the High Court of Patna incorporating the principle of
natural justice in the evaluation of the tender cannot be followed.
20. A reliance was also placed upon the judgment of the High
Court of Delhi in Macpower CNC Machines (supra).However, the facts
show that the tender document empowered the purchaser to seek
clarification of the bid and to rectify non-material non-conformities.
It was laid down by the Delhi High Court that the purchaser had acted
on assumptions, and the decision was arbitrary and whimsical. It was
further found out that the purchaser had sought clarification from the
other bidders but not from the writ petitioner, which amounted to
discrimination. It was held that uniformity is to be adopted, and
opportunity could not have been provided selectively.
16
2025:HHC:3016
21. In the present case, it was not shown that any assumptions
were made or an opportunity was given to any bidder to make the
representation, and the applicant was discriminated against by
denying this opportunity. Hence, no advantage can be derived from
the judgment cited by the applicant.
22. It was submitted that no action was taken on the
representation of the applicant. This is not correct. The instructions
filed by the non-applicants/State show that the Member Secretary of
Technical Committee had responded to the objections raised by the
applicant vide letter dated 06.01.2025 stating that a straight stapler
with no movement at the hinge was demonstrated. One stapler was
fired on animal tissue. The applicant did not have any other stapler,
and the opportunity to use the stapling device did not arise. Therefore,
non-applicants No.1 to 4 had taken the version of the Technical
Committee and found that objections raised by the applicant to the
report of the Technical Committee were not correct.
23. It was submitted that the letter of rejection was not
communicated to the applicant. Mr. Parnay Partap Singh, Additional
Advocate General for respondents No.1 to 4 has rightly submitted that
the documents were to be uploaded on the official website as per the
17
2025:HHC:3016
terms and conditions of the tender and the applicant was to check the
website to know about the progress/status of the tender process. Even
otherwise, the applicant was aware of the rejection by the Technical
Committee, which is evident from the fact that it had sent a letter to
the non-applicant no. 1 on the same day. Hence, this submission will
not assist the applicant.
24. In the present case, the non-applicants took action based
on the report of the Technical Committee, which consisted of experts
in the field. The Committee concluded that the applicant’s machine
did not fulfill the requisite standard. Hence, the action of the
respondents cannot be said to be arbitrary, justifying the invocation of
the jurisdiction under Article 226 of the Constitution of India.
25. In view of the above, there is no ground for grant of
interim relief. Hence, the application fails, and the same is dismissed.
The order passed on 27.01.2025 shall stand vacated.
26. The observation made hereinabove shall remain confined
to the disposal of the applicant and will have no bearing, whatsoever,
on the merits of the case.
(Rakesh Kainthla)
31 January, 2025
st
Vacation Judge
(ravinder)
