Calcutta High Court (Appellete Side)
United Order And Supply Co-Operative … vs The State Of West Bengal And Others on 27 August, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Ajay Kumar Gupta
WPA 18675 of 2019
With
CAN 1/2020 & CAN 2/2025
United Order and Supply Co-Operative Society Ltd.
Versus
The State of West Bengal and Others
For the Petitioner : Mr. Satrajit Sinha Roy, Adv.
For the Respondent No. 17 : Mr. Sagar Bandyopadhyay, Ld. Sr. Adv.
Ms. Soma Kar Ghosh, Adv.
Ms. Suparna Paul, Adv.
Mr. Arabinda Pathak, Adv.
Ms. Shilpi Ghosh, Adv.
For the State Respondents : Mr. Saikat Chatterjee, Adv.
Ms. Amrita Panja Mallick, Adv.
Heard on : 20.08.2025
Judgment on : 27.08.2025
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Ajay Kumar Gupta, J:
1. The writ petitioner approached this Court praying
for direction upon the respondent authorities to admit the
technical bid of the Petitioner and to reject the technical
bids of respondent nos. 15 to 17 in connection with the
tender process initiated in NIT No. 3542 dated 27.05.2019
for supply of cooked diet for indoor patients at Bankura
Sammilani Medical College & Hospital, Bankura along with
other consequential reliefs.
2. The sum and substance of this case is that the
petitioner is a society duly registered under the Co-
operative Societies Act, 1983 and engaged, inter alia, in the
business of supplying cooked diet to various Government
Hospitals across different districts of the State of West
Bengal.
3. Pursuant to NIT No. 3542 dated 27.05.2019, issued
by respondent no. 7 invited E-Tender for supply of cooked
diet to the indoor patients of Bankura Sammilani Medical
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College & Hospital. The petitioner participated in the said
tender process by submitting all requisite documents.
4. The technical bid of the petitioner was opened and
duly admitted on 19.06.2019. A comparative statement of
technical bid was uploaded on the tender web portal
bearing the signatures of concerned respondents, wherein
it was reflected that all the documents has been submitted
by the petitioner, was “Not Approved By The Swasthya
Bhavan” without any reason being assigned.
5. According to the petitioner, upon scrutiny of the
documents furnished by the other participants/bidders, it
transpired that several deficiencies were present in their
bids. Nevertheless, the respondent authorities, in an
arbitrary, discriminatory and collusive manner, approved
such bids, while rejecting that of petitioner. It is alleged
that respondent nos. 16 and 17 did not ever posses the
requisite credentials to qualify, yet their bids were
entertained, whereas the petitioner’s bid was rejected
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dehors the terms of tender. In view of clause 18.3 of the
tender conditions, the bids of respondent no. 16 to 18 were
liable to be rejected.
6. Learned counsel appearing on behalf of the
petitioner contended that the petitioner’s technical bid was
effected without due consideratation of the documents and
credentials furnished by the petitioner, which were, in fact,
better to those of private respondents.
7. It was further submitted that respondent no. 18 has
failed to submit the tender application form, the bidders
undertaking, the bank solvency certificate and the
performance certificate duly authenticated by the Notary
Public as mandatory requirement under tender conditions.
Despite such deficiency in the documents submitted in the
tender, his bid was accepted, which vitiates the entire
process. Hence, the bids of the respondent nos. 16 to 18
are liable to be rejected and fresh tender should be issued.
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8. Learned counsel submitted the work order issued in
favour of the respondent no. 17 beyond the expiry of the
maximum period of 120 days as prescribed under E-Tender
is illegal. The respondent authority did not comply with the
clause 6 of the tender dated 27.05.2019. Therefore, the
respondent authority acted arbitrarily and whimsically and
rejected the technical bid of the petitioner.
9. Learned counsel finally argued that when the
respondent authority violates its own tender process with
mala fide intention, arbitrarily or for collateral purpose, in
such case, the Court is not powerless to cancel the tender
process and directed for issuance of fresh tender.
10. Learned counsel has placed reliance of the three
judgments in support of his contention that the writ court
can invoke power of judicial review even in the matter of
Government Contracts and commercial tender, when it
involves mala fide or intended to favour someone and it
affects the public interest, as under: –
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i. Jagdish Mandal Vs. State of Orissa and
Ors.1 Particularly paragraph nos. 21 and 22
thereof;
ii. M/s Dwarkadas Marfatia and Sons Vs.
Board of Trustees of the Port of Bombay2
particularly paragraph nos. 31, 34 and 35
thereof;
iii. Sterling Computers Limited Vs. M/s M &
N Publications Limited & Ors. WITH United
Database (India) Pvt. Ltd. Vs. M/s M & N
Publications Limited & Ors. AND United India
Periodicals Pvt. Ltd. Vs. M/s M & N Publications
Ltd. And Ors.3.
11. Per contra, learned counsel appearing on behalf of
the State respondent No.7 vehemently opposed the prayer
of the learned counsel appearing on behalf of the petitioner
and further submitted that the writ petition is not at all
maintainable in law. The petitioner’s technical bid was
rejected by the authority considering his credentials and
1
(2007) 14 SCC 517;
2
(1989) 3 SCC 293;
3
(1993) 1 SCC 445.
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documents and other requisite eligibility criteria comparing
with other bidders. The financial credentials of all the
bidders were forwarded to the State Government for
verification as the data pertaining to financial capacity is
monitored centrally at Swasthya Bhawan on the basis of
information furnished by concerned hospitals and districts.
The purpose of issuing tender was for supply of cooked diet
for indoor patients at Bankura Sammilani Medical College
& Hospital, Bankura. Out of six bidders, finally three were
selected after verifying their financial credentials and other
essential requirements.
12. Respondent no. 17 was finally selected after a
lottery process and emerged as the lowest L1 bidder and
finally work order was issued in favour of the respondent
no. 17 in the year 2023. The delay was caused due to filing
of several writ petitions by different parties like Petitioner
and Sonar Bangla Caterer etc. After issuing work order in
favour of the respondent no. 17, the writ petition being
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WPA 878 of 2020 has been dismissed as infructuous vide
order dated 25.06.2025 passed by this court.
13. The writ petitioner has not challenged the said work
order issued in favour of the respondent no. 17 in
appropriate form as yet. by filing an application in the
present writ petition is not maintainable in the eye of law,
when the cause of action arose later after final selection.
Such prayer cannot be entertained in this Writ Petition.
14. The Petitioner should have challenged the said work
order issued in favour of the respondent no. 17 in separate
form, hence this writ petition should be dismissed because
tender process has already been completed and work order
has been issued in favour of the respondent no. 17.
15. The challenge with regard to rejection of the
petitioner in the technical bid become infructuous, when
final work order was issued in 2023. The respondent No. 7
selected respondent No.17 comparing several documents
like their credentials, goodwill, financial capacity and other
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eligibility criteria. Rejection order of technical bid was
published in the website. Therefore, question of assigning
reasons does not arise. It is sole discretionary power of the
respondent authorities to consider or reject the technical
bid considering their credentials, goodwill, financial
capacity and other eligibility criteria and the nature of
service and public interest and under such situation,
interference by way of judicial review under Article 226 of
the Constitution is not desirable.
16. The Hon’ble Supreme Court time and again
reiterated that the Courts should exercise a lot of restraint
while exercising power of judicial review under contractual
or commercial matters, interference should be made only
on clear- cut cases or arbitrariness or mala fide or bias or
irrationality.
17. Mr. Bandyopadhyay, learned senior counsel
appearing on behalf of the respondent no. 17 supported the
submissions made by the learned counsel appearing on
10
behalf of the State respondent and further submitted that
respondent no. 17’s credentials were/are better than the
petitioner herein. Respondent no. 17 has already received
work order in the year 2023 and from then, the respondent
no. 17 supplying cooked diet for indoor patients at Bankura
Sammilani Medical College & Hospital, Bankura without
any complaint or any disturbance. Even while admitting
the writ petition on initial stage, this Court has not granted
any interim order in favour of the petitioner. Therefore,
there was no bar to issue work order in favour of the
respondent no. 17.
18. Even some delay is caused due to pendency of writ
petitions and same is condonable otherwise a fresh tender,
if issued, it would be further make delay as the service was
very essential to supply cooked diet for indoor patients at
Bankura Sammilani Medical College & Hospital, Bankura
and the Respondent no.17 has been supplying cooked diet
since 2023 almost tender period is about to complete.
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19. The fresh cause of action arose when work order
was issued in favour of the respondent no. 17 in the year
2023 but even knowing the facts, the petitioner has not
challenged the said order. Therefore, the instant writ
petition become infructuous and the same should be
dismissed.
To support of his contentions, he has placed reliance of the
following judgments as under:
i. Nicco Corporation Ltd. Vs. Cable
Corporation of India Limited & Ors. WITH Metro
Railway, Calcutta & Anr. Vs. Cable Corporation
of India Limited & Ors.4;
ii. Jagdish Mandal Vs. State of Orissa and
Others WITH Laxman Sharma Vs. State of
Orissa & Ors.5;
iii. Afcons Infrastructure Limited Vs. Nagpur
Metro Rail Corporation Limited & Anr.6;
iv. Silppi Constructions Contractors Vs.
Union of India & Another7.
4
2007 SCC OnLine Cal 652 : (2008) 1 CHN 567 : (2008) 61 AIC (Sum 12) 6;
5
(2007) 14 SCC 517;
6
(2016) 16 SCC 818 : 2016 SCC OnLine SC 940;
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2019 SCC OnLine SC 1133.
12
20. This Court has heard the learned advocates
appearing for respective parties, upon perusal of the writ
petition, application, affidavit-in-opposition and reply
thereto, this Court finds the writ petitioner had challenged
the rejection of his technical bid and prayer for a direction
permitting him to participate in the tender process and/or
for issuance of fresh tender. The petitioner challenged with
regard to selection in technical bid.
21. Evaluation of a contingent technical bid is upon
multiple parameters such as credentials, financial capacity,
goodwill and past performances and other allied factors. All
these factors required to be considered at the threshold
stage of tendered process after comparing with others
participants. On such evaluation, the petitioner was found
deficient in fulfilling the requisite criteria essential for
supply of cooked diet to the indoor patients at Bankura
Sammilani Medical College & Hospital, Bankura.
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22. Out of six bidders only three bidders were found
technically qualified. Thereafter, on 27.09.2019 at 4 PM, a
lottery was conducted amongst three lowest bidders whose
financial bids were tied in connection with the aforesaid
tender.
23. The respondent No.17 and other two selected
contractors had better parameters than the writ petitioner.
The lottery process of selection was conducted in the
presence of the three selected parties. The respondent
No.17 was declared as L-1 in the lottery selection process
and, accordingly, awarded the contract. A work order was
issued in favour of the respondent no.17 in 2003 and the
same is continuing till date. Hence, prayer sought for in the
writ petition without any valid ground at this present stage,
when already work order has been issued in favour of
Respondent no.17, cannot be interfered with by the judicial
review.
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24. The judgment relied upon by the learned counsel for
both the sides primarily deal with the contours of judicial
review in matters relating to Government contracts and
tenders. The legal position is well settled that although the
Court can exercise its writ jurisdiction in cases of
arbitrariness, mala fides, bids or irrationality, the scope of
interference at the stage of technical evaluation is extremely
limited. Technical evaluation involves assessment of several
factors, which are essentially factual and comparative in
nature and Courts, not being experts in field, ordinarily
refrain from substituting their own view for that of the
tendering authority.
25. The respondent authority is the authority to select
best tenderer in field of service provider, particularly supply
of services like cooked diet for indoor patients at Bankura
Sammilani Medical College & Hospital, Bankura as it
involves public interest. When public interest is involved, a
Court should refrain from interfering with the tender
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process particularly when the petitioner failed to success
even at the technical bid stage.
26. The Hon’ble Supreme Court in the case of Silppi
Constructions Contractors Vs. Union of India and Anr. 8
held in paragraph no. 19 as under:-
“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 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 limitations8
2019 SCC OnLine SC 1133.
16
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 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.”
27. The challenge of issuing final work order in favour
of respondent no. 17 at this belated stage is not justified
and also not sustainable in law. Filing an application with a
prayer to set aside or cancel the work order issued in
connection with the tender notice being no.3542 dated 27 th
May, 2019 in favour of the respondent no.17 after expiry of
long period of issuance of work order without any valid or
sufficient ground does not call for interreference when the
period of supply of cooked diet is verge of completion.
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Therefore, it is not a fit case to allow such prayer.
Therefore, the writ petition is liable to be dismissed.
28. Accordingly, WPA 18675 of 2019 stands dismissed
without order as to costs.
29. Consequently, CAN 1/2020 and CAN 2/2025 and
all connected applications, if any, are also, thus, disposed
of.
30. Interim order, if any, stands vacated.
31. Parties shall act on the server copies of this
Judgment downloaded from the official website of the High
Court at Calcutta.
32. Urgent Photostat certified copies of this Judgment,
if applied for, be supplied to the parties upon compliance of
all the necessary and legal formalities.
(Ajay Kumar Gupta, J)
P.A.
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