Jammu & Kashmir High Court
Jatinder Dhingra vs National Highway Authority Of India And … on 22 August, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
2025:JKLHC-JMU:2511
Sr. No. 110
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case: WP (C) No. 2295/2025
CM No. 5310/2025
CAV No. 1913/2025
Jatinder Dhingra .....Petitioner
Through: Mr. Aditya Grover, Advocate
(Through virtual mode)
Vs
National Highway Authority of India and others
..... Respondents
Through: Mr. Vipan Gandotra, Advocate for R-1 to 3.
Mr. D. C. Raina, Sr. Advocate with
Mr. Rohan Nanda, Advocate for R-4.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
22.08.2025
1. The petitioner, through the medium of the present petition,
has challenged the technical evaluation dated 12.08.2025 in
respect of e-NIT No. NHAI/RO-JMU/PIU-SGR/2025-26/1
dated 20.05.2025.
2. Issue notice to the respondents. Mr. Vipan Gandotra,
Advocate accepts notice on behalf of the respondents No. 1
to 3 and Mr. Rohan Nanda, Advocate who is on caveat,
accepts notice on behalf of the respondent No. 4.
3. I have heard learned counsel for the parties and I have also
gone through the record of the case.
4. As per the case of the petitioner, pursuant to e-NIT No.
NHAI/RO-JMU/PIU-SGR/2025-26/1 dated 20.05.2025,
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which pertains to “Supply, Installation and Maintenance of
W-Beam metal crash barrier and anti-glare devices on
Srinagar to Banihal section of NH-44 from Km. 220.700 to
Km. 286.110 in Union Territory of Jammu and Kashmir”,
the petitioner is stated to have submitted his bid within the
stipulated period on 14.06.2025.
5. It has been submitted by the petitioner that the official
respondents carried out technical evaluation of all the bids
and declared the result of technical evaluation on
23.06.2025 whereby the bid of the petitioner was held to be
‘non-responsive’ on the solitary ground of manpower while
terming the said bid as ‘responsive’ in respect of all other
parameters. It has been further submitted that the official
respondents sought clarification from the petitioner and
other non-responsive bidders in respect of the defects
pointed out in the technical evaluation report dated
23.06.2025 to which the petitioner is stated to have
responded vide communication dated 26.06.2025 by
demonstrating that he has already submitted the material in
respect of the manpower parameter at page 86-93 of the bid
document.
6. It has been submitted that the official respondents
conducted another technical evaluation on 12.08.2025 in
which the petitioner has been declared as ‘non-responsive’
on fresh parameters viz that the bidder does not meet the
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minimum eligibility criteria as per Clause 4.4 B (ii) of RFP as
also due to the reason that M/s Utkarsh India Limited has
denied confirmation of OEM authorization letter, hence also
non-responsive under Clause 4.4 B (b) read with Clause 4.4.
B (b) (iii) of Appendix of bid of RFP.
7. The petitioner has challenged the impugned action of the
official respondents on the ground that the official
respondents have conducted two technical evaluations
which is impermissible in law. It has been contended that in
the instant case, the official respondents have conducted
first technical evaluation of the bids on 23.06.2025 and
thereafter conducted fresh technical evaluation on
12.08.2025, which is under challenge in the present writ
petition.
8. It has also been contended that Clause 4.4 B (ii) does not
exist in the RFP at all, as such, reference to the said clause
in the impugned technical evaluation clearly shows non-
application of mind on the part of the official respondents. It
has been contended that once the petitioner was declared as
‘responsive’ in respect of parameters excepting the
parameter of manpower, it was not open to the official
respondents to include another parameter relating to
authorization by OEM in the second round of technical
evaluation. It has been further contended that the official
respondents have rejected most of the bids on the ground of
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non-authorization by OEM M/s Utkarsh India Limited,
which clearly demonstrates malafides at their hands.
9. Before dealing with the merits of the issues raised by the
petitioner, it would be apt to notice the legal position as
regards the scope and power of the Court in interfering with
matters relating to tender. The Supreme Court has, in the
case of ‘Tata Motors Limited Vs. The Brihan Mumbai
Electric Supply and Transport Undertaking (best) and
Ors’, 2023 SCC Online SC 671, analyzed the legal position
in this regard after surveying its previous precedents on the
subject. Paras 50 and 55 to 57 of the judgment are relevant
to the context and the same are reproduced as under:
“50. 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 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 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
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adjudicate upon technical issues beyond our domain. 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. (See: Silppi Constructions Contractors v. Union of
India, (2020) 16 SCC 489).
55. Ordinarily, a writ court should refrain itself from
imposing its decision over the decision of the employer as to
whether or not to accept the bid of a tenderer unless
something very gross or palpable is pointed out. The court
ordinarily should not interfere in matters relating to tender
or contract. To set at naught the entire tender process at the
stage when the contract is well underway, would not be in
public interest. Initiating a fresh tender process at this stage
may consume lot of time and also loss to the public
exchequer to the tune of crores of rupees. The financial
burden/implications on the public exchequer that the State
may have to meet with if the Court directs issue of a fresh
tender notice, should be one of the guiding factors that the
Court should keep in mind. This is evident from a three-
Judge Bench decision of this Court in Association of
Registration Plates v. Union of India and Others, reported in
(2005) 1 SCC 679.
56. The law relating to award of contract by the State and
public sector corporations was reviewed in Air India Ltd. v.
Cochin International Airport Ltd., reported in (2000) 2 SCC
617 and it was held that the award of a contract, whether
by a private party or by a State, is essentially a commercial
transaction. It can choose its own method to arrive at a
decision and it is free to grant any relaxation for bona fide
reasons, if the tender conditions permit such a relaxation. It
was further held that the State, its corporations,
instrumentalities and agencies have the public duty to be
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fair to all concerned. Even when some defect is found in the
decision-making process, the court must exercise its
discretionary powers under Article 226 with great caution
and should exercise it only in furtherance of public interest
and not merely on the making out of a legal point. The court
should always keep the larger public interest in mind in
order to decide whether its intervention is called for or not.
Only when it comes to a conclusion that overwhelming
public interest requires interference, the court should
interfere.
57. As observed by this Court in Jagdish Mandal v. State of
Orissa and Others, reported in (2007) 14 SCC 517, that
while invoking 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 award of
contract is bona fide and is in 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. Power of judicial review will not be
invoked to protect private interest at the cost of public
interest, or to decide contractual disputes.
10. From the foregoing analysis of the legal position on the
subject, it is manifest that ordinarily a court should not
interfere in matters regarding tender or contract. The court
has to exercise its powers under Article 226 of the
Constitution of India with circumspection and even if there
are some procedural lapses, the courts should not interfere
in such matters unless there is manifest arbitrariness or
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irrationality committed by an employer. In such cases, the
courts have to set off its hands from such matters.
11. With the aforesaid legal position in mind, let us now advert
to the contentions raised by learned counsel appearing for
the petitioner for impugning the action of the official
respondents. The first ground urged by learned counsel for
the petitioner is that official respondents have conducted
two technical evaluations which is not permissible in law.
12. In the above context, if we have a look at the technical
evaluation dated 23.06.2025, it is clearly mentioned in the
result pertaining to said evaluation that the same is
preliminary technical evaluation meaning thereby that
technical evaluation of the bids was not finalized by the
official respondents when they declared the result of the
preliminary technical evaluation on 23.06.2025. A plain
reading of the impugned technical evaluation dated
12.08.2025 makes the things more clear. It is clearly
mentioned in the said technical evaluation that the same is
the result of final technical evaluation, which has been
arrived at subsequent to uploading of preliminary result of
evaluation and receipt of representations from the bidders.
Thus, when we take into consideration both the technical
evaluations dated 23.06.2025 and 12.08.2025, one comes to
an irresistible conclusion that the initial technical evaluation
was preliminary in nature wherafter the representations of
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the bidders were considered and final result was arrived at
in terms of impugned final technical evaluation result dated
12.08.2025. The contention of the learned counsel for the
petitioner in this regard is, therefore, misconceived.
13. The other contention that has been raised by learned
counsel for the petitioner is that in the preliminary technical
evaluation, the petitioner was declared ‘responsive’ in
respect of parameters excepting the parameter relating to
manpower, therefore, in the final result of the technical
evaluation, he could not have been declared as ‘non-
responsive’ in respect of a parameter which did not find
mention in the preliminary technical evaluation.
14. The record tends to show that in the preliminary technical
evaluation result, the petitioner was shown ‘responsive’ in
respect of the parameter relating to authorization from OEM
but in the impugned final technical evaluation result, he has
been found ‘non-responsive’ in respect of this parameter as
well.
15. In order to clarify this position, learned counsel for the
official respondents has submitted that during the process
for evaluation of the bids, the certificates of authorization
issued by OEMs were got verified from the relevant OEMs
and upon receipt of report of verification relating to the
authenticity of certificates issued by OEM M/s Utkarsh
India Limited (respondent No. 6), it was conveyed to the
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official respondents through email dated 30.06.2025 that
the said company is presently aligned only with respondents
No. 4, 5 and one M/s Ceigall India Limited. Thus, the said
OEM did not confirm the authenticity of authorization
certificate issued by it in favour of the petitioner. A copy of
the communication has been produced by the learned
counsel, which is taken on record.
16. From the above, it is clear that after holding the preliminary
technical evaluation of the bids and during the process of
scrutinizing the bids for final technical evaluation, the
official respondents received the aforesaid information from
the OEM of the petitioner (respondent No. 6) and this aspect
of the matter has not been disputed by learned counsel for
the petitioner during the course of arguments nor is there
any pleading in the writ petition to contradict this position.
17. As per Clause 4.4 B (b) (iii) of the Bid document, a bidder
has to annex authorization from the OEM as stated in
appendix to ITB. In terms of Clause 4.4B (b) (iii) of appendix
to bid, the bidder has to have authorization letter from OEM
of Supply of W-Beam Metal Crash Barrier from any vendor
whose source approval has been accorded on at least three
NHAI projects. It further provides that bids submitted
without OEM are to be outrightly rejected.
18. Respondent No. 6-M/s Utkarsh India Limited is admittedly a
vendor whose source approval has been accorded in NHAI
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projects and the petitioner had, along with his bid,
submitted authorization letter from respondent No. 6.
However, the authenticity of the same has not been
confirmed by respondent No. 6 in terms of email dated
30.06.2025. Thus, the condition mentioned in clause 4.4
B(b) (iii) of RFP read with Clause 4.4 B (b) (iii) of appendix to
the bid has not been fulfilled by the petitioner which, in
terms of the aforesaid clause, entails outright rejection of the
bid.
19. Another contention which has been raised by learned
counsel for the petitioner is that in the impugned final
technical evaluation, it is mentioned that the petitioner does
not meet the minimum eligibility criteria as per Clause 4.4 B
(ii) of RFP and in fact there is no such clause existing in the
RFP. The learned counsel is correct in his submission that
no such clause exists in RFP but a closer look at the
conditions of RFP reveals that it appears to be a mere
typographical error inasmuch as the official respondents
have referred to Clause 4.4 B(ii) of RFP instead of referring to
Clause 4.4 B (b) (ii) of RFP. The said clause pertains to
availability for the work of personnel with qualification and
experience for the project. The deficiency on account of the
said parameter was pointed out to the petitioner in the
preliminary technical evaluation also.
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20. Merely because there has been a typographical error in
referring to the relevant clause of RFP in the final technical
evaluation result does not make the impugned action of the
official respondents irrational and arbitrary. As has been
already discussed hereinbefore, a mere aberration in the
procedure or some accidental slip or typographical error in
mentioning the relevant clause in the technical evaluation
result cannot form a basis for scrapping the whole tendering
process.
21. Even otherwise, the petitioner had the knowledge of the fact
that there was a deficiency in the parameter of manpower in
his bid. As already stated it was pointed out to the
petitioner vide preliminary technical evaluation result,
whereafter he had responded by making a representation to
the official respondents. The deficiency pointed out by the
official respondents at the time of initial technical evaluation
of the bid was that the petitioner had not annexed
experience certificates of the manpower mentioned in his bid
document. It seems that after pointing out this deficiency,
the petitioner submitted fresh documents with the official
respondents, which could not have been accepted by the
respondents in terms of Clause 20.2 of RFP. So, the
petitioner was already knowing that his bid document was
deficient on this parameter and, therefore, merely because
there was some typographical error in making reference to
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the relevant clause of RFP in the final technical evaluation
result, the same has not caused any serious prejudice to the
petitioner.
22. Lastly, it has been contended by learned counsel for the
petitioner that the act of non-authentication of OEM
certificates by respondent No. 6 smacks of malafides and it
amounts to cartelization. I am afraid the petitioner has not
given any specific details on this aspect of the matter. In
fact, respondent No. 6, vide its email dated 30.05.2025, has
verified the OEM certificate of not only respondent No. 4 but
it has also authenticated certificates issued in favour of two
more tenderers viz respondent No. 5 and one M/s Ceigall
India Limited. Therefore, the contention of the petitioner in
this regard is without any substance.
23. For the foregoing discussion, I do not find any merit in this
petition. The same is, accordingly, dismissed.
(SANJAY DHAR)
JUDGE
JAMMU
22.08.2025
Naresh/Secy.
Whether order is speaking: Yes
Whether order is reportable: Yes
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