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Andhra Pradesh High Court – Amravati
Xpert Facility Services vs The State Of Andhra Pradesh on 15 May, 2025
APHC010259752025
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3331]
(Special Original Jurisdiction)
THURSDAY ,THE FIFTEENTH DAY OF MAY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
I.A.Nos.1 of 2025
in
WRIT PETITION NOs: 13005, 13008 and 13012 of 2025
WRIT PETITION NO: 13005/2025
Between:
Xpert Facility Services ...PETITIONER
AND
The State Of Ap and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. VIVEK CHANDRA SEKHAR S
Counsel for the Respondent(S):
1. GP FOR MEDICAL HEALTH FW
WRIT PETITION NO: 13008/2025
Between:
Xpert Facility Services ...PETITIONER
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. VIVEK CHANDRA SEKHAR S
Counsel for the Respondent(S):
1. KALEPU YASHWANTH
2. GP FOR MEDICAL HEALTH FW
WRIT PETITION NO: 13012/2025
Between:
Xpert Facility Services ...PETITIONER
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. VIVEK CHANDRA SEKHAR S
Counsel for the Respondent(S):
1. GP FOR MEDICAL HEALTH FW
The Court made the following COMMON ORDER:
Since the issue involved in the above writ petitions is similar, this Court
intends to deal with these interlocutory applications vide this common order.
2. The Government of Andhra Pradesh issued G.O.Ms.No.138 Health,
Medical and Family Welfare (H2) Department, dated 13.11.2024, calling for
tenders for Sanitation, Security, Pest, and Rodent Control Services for
Hospitals/Institutions under the control of DME and DSH, zone-wise. The
State was divided into three zones.
3. Three separate tenders were floated for providing security services for
hospitals/institutions under the control of Director of Medical Health and
Director of Secondary Health under three packages i.e. I) T.N.No.2-
4/APSMIDC/Technical/2024-2025 dated 24.11.2024, II) T.N.No.2-
5/APSMIDC/Technical/2024-2025 dated 24.11.2024 and III) T.N.No.2-
6/APSMIDC/Technical/2024-2025 dated 24.11.2024. The contract period, as
per the tender document, is three years.
4. The petitioner, one of the bidders, participated in all three packages,
submitted the tender document.
5. In respect of package I, M/s. Karthikeya Security Services stood as L1
and hence, a letter of intent was issued in its favour. (W.P.No. 13008 of 2025).
In respect of package-II, M/s.Rakshak Secutias Pvt. Ltd., was declared as the
successful bidder, and hence a letter of intent was issued in its favour
(W.P.No. 13005 of 2025). In respect of package III, M/s. Eagle Hunter
Solutions Limited was declared as a successful bidder and hence, a letter of
intent was issued in its favour. (W.P.No. 13012 of 2025)
6. The petitioner, an unsuccessful participant, filed the above three writ
petitions.
7. Heard Sri P. Veera Reddy, learned Senior Counsel, assisted by
Sri S. Vivek Chandrasekhar, learned counsel for the petitioner; learned
Advocate General for respondents 1 to 4 in all three writ petitions, and
Sri G. Vidhya Sagar, learned Senior Counsel for respondent No.5 in
W.P.No.13008 of 2025.
8. Learned Senior Counsel for the petitioner made the following
submissions:
1. Respondent No.5 in W.P.No.13005 of 2025 is involved in litigation
against the Central Government/State Government/PSUs. The
petitioner, vide letter dated 24.03.2025, informed respondents 2 and
3 about the cases pending against respondent No.5. Despite the
same, respondents 2 and 3 have not rejected the bid of respondent
No.5. Further, respondent No.5 submitted a solvency certificate from
a schedule bank and not from a Nationalized Bank, as stipulated in
the tender condition.
2. Respondent No.5 in W.P.No.13008 of 2025 submitted the bid
quoting a lower rate without including the ESI contribution for the
Security Officer Component. Respondent No.5, vide letter dated
17.01.2025 admitted non-inclusion of ESI contribution towards the
Security Officer Component. In the tender conditions, it is stipulated
that the price quoted by the bidder should not be less than the price
prescribed under Annexure 10.
3. Respondent No.5 in W.P.No.13012 of 2025, involved in financial
fraud cases. The petitioner reliably learnt that the Chairman and
other Directors are absconding from the prosecution proceedings
initiated by the Enforcement Department. Respondent No.5
submitted a solvency certificate from a scheduled bank and not from
a nationalised bank. Three cases are pending against respondent
No.5. However, respondent No.5 submitted a declaration that no
criminal cases are pending against respondent No.5 or its
associates. The declaration being a false one, the bid of respondent
No.5 ought to have been rejected.
4. The petitioner made more than one representation informing
respondents 2 and 3 about the violations or disqualifications suffered
by the 5th respondent in each of the writ petitions.
9. Learned Senior Counsel for the petitioner would further contend that
earlier, the petitioner filed W.P.No.8746 of 2025, and the said writ petition was
disposed of on 03.04.2025, directing respondents 2 and 3 therein to consider
the objections of the petitioner, before finalising the tender. Despite the said
direction, the respondent/authority failed to consider the objections regarding
the solvency certificate and involvement of respondent No.5 in litigation and
issued LOA (LOI) to respondent No.5 in the respective writ petitions. On
coming to know about the issuance of a letter of intent in favour of respondent
No.5 in three writ petitions, the petitioner filed W.P.Nos.11599, 11604 and
11605 of 2025. Pending the said writ petitions, respondent No.2
communicated the proceedings dated 01.05.2025, rejecting the objections
raised by the petitioner. Without properly examining the objections from a
proper perspective, the authority passed an order and thus prayed to stay
further process
10. Learned Advocate General, while supporting the decision of the tender
authority, would contend that respondent No.5 in W.P.No.13005 of 2025 has
not been awarded any contract. The letter of intent was awarded in favour of
„M/s. Rakshak Securitas Private Limited‟, and the said company/agency has
not been arrayed as a party respondent. Hence, W.P.No.13005 of 2025 itself
is not maintainable. He would also contend that the objections of the petitioner
were considered, and thereafter, a speaking order was passed. Regarding the
specific contention of the learned counsel for the petitioner about the
blacklisting of respondent No.5, it was contended that the authorities strictly
adhered to the tender condition 6.1.10. He would also submit that M/s.
Rakshak Securitas Private Limited has not been blacklisted and it was
debarred for six months, as per the documents filed by the petitioner, by
proceedings dated 13.08.2018 and the same was completed by 12.02.2019,
before commencement of the financial year.
b) Regarding the contention of the learned counsel for the petitioner,
about the bank guarantee from a Nationalised Bank, it was contended that the
tender condition, 6.1.6, stipulates "submitting solvency certificate for
Rs.12.53 crores, (P-I); Rs.11.63 crores, (P.II); and Rs.12.18 crores (P.III),
in the proforma of Nationalised Banks/Scheduled Banks as per the
guidelines of RBI'. Respondent No.5, as seen from the material, submitted a
solvency certificate of a scheduled bank as per the tender conditions. No
corrigendum was issued to any of the tender conditions. The clarifications in
the pre-bid meeting, in the absence of any corrigendum, the terms and
conditions prescribed in the bid document prevail.
11. In respect of respondent No.5 in W.P.No.13008 of 2025, learned Senior
Counsel for respondent No.5 contended that the bid filed by respondent No.5
aligns with the tender document. No statutory violation has been made while
submitting the price bid and details in Annexure 10. The bidder followed the
legislation scrupulously. The price bid was submitted duly taking into
consideration the statutory payments, not less than the monthly value of
statutory applicable payments, as per the Gazette of India, dated 22.12.2016.
Learned Advocate General supported the action of the respondent authorities.
12. In respect of contentions against the 5th respondent in W.P.No. 13012 of
2025, the learned Advocate General, while supporting the act of the officials,
would contend, as per the material available on record, that the objections
made by the petitioner were considered thoroughly and thereafter a speaking
order was issued. The petitioner could not produce satisfactory material
regarding the involvement of the 5th respondent in criminal cases as alleged,
and the same would reflect from the speaking order. Regarding the solvency
certificate, he would contend that the 5th respondent produced a solvency
certificate from a scheduled bank as per the tender conditions.
13. For the grant of an interim order, the Court must see whether the
petitioner has satisfied a prima facie case, the balance of convenience and
irreparable loss.
14. The disqualifications mentioned by the learned Senior Counsel for the
petitioner, broadly, are 1) respondent No.5, the successful bidder in each of
the writ petitions, failed to submit an insolvency certificate from the
Nationalised Bank; 2) involvement in prior litigation and 3) quoting of a lesser
price.
15. This Court is conscious that while exercising the judicial review in
tender matters, the Court will not act as an appellate authority. The Court must
confine itself to the question of legality as to whether the decision-making
authority exceeded its powers; committed an error of law; committed a breach
of principles of natural justice; reached a decision that no reasonable Tribunal
would have reached, or abused of powers. Keeping the same, let the Court
investigate further as to whether any interim order is needed at this stage.
16. Condition 6.1 of the tender document prescribes eligibility criteria
(Qualification Criteria). Condition No.6.1.6, on which the main emphasis was
laid by the learned Senior Counsel for the petitioner, reads as follows:
"6.1.6 - „The bidder should submit a Solvency certificate for Rs.11.63
Crores in the proforma of Nationalised Banks/Scheduled banks as per the
Guidelines of the RBI (Annexure-9)‟. (The amount in this clause will differ
for each package. Except for the amount, the language in the clause is
similar.)
17. The pre-bid meeting was held on 09.12.2024. S.No.28 deals with clause
2.1, „check-list to accompany the tender‟, at page 12 of the tender, which says
„solvency certificate from Nationalised Bank/Scheduled Banks in their
proforma as per the guidelines of the RBI (Annexure-9)‟. The queries raised
are as follows:
"1. Kindly request you to please accept Solvency certificate from
Nationalized Banks in the proforma as per the Guidelines of RBI
(Annexure-9) and
2. Solvency is required as per annexure-9 whereas Bank will provide
the same in their own format. Can we attach the same?"
The clarification reads as follows:
„The tender condition holds goods.‟
18. Para 2.1 of the tender prescribes a checklist to accompany tender
2.1.12 speaks about the solvency certificate from Nationalised Bank/
Scheduled Banks in their proforma as per the guidelines of the RBI (Annex9).
19. Thus, the fulcrum of the contentions of learned Senior Counsel that
respondent No.5 in W.P.Nos.13005 and 13012 of 2025, failed to submit a
solvency certificate from a Nationalised Bank, this court is not persuaded at
this juncture. This will not satisfy the test of a prima facie case for granting an
interim order. It is a matter for enquiry after a comprehensive counter is filed.
20. The other contention of the learned Senior counsel is about the
litigation, allegedly suffered by respondent No.5 in W.P.Nos.13005 of 2025
and 13012 of 2025. Clause 6.1.10 of the tender document reads as follows:
"The bidder should not have any litigation history and been blacklisted
or involved in criminal cases or not covered by any pending bankruptcy
proceedings by any Central /State Governments/ PSUs in India, during
the last five years (i.e. 2019-2020 to 2023-24)."
21. A plain reading of the above condition, indicates that the author of the
tender document, is clear in its perspective, that the bidder should not have
involved in any litigation and blacklisted or involved in any criminal case or not
covered by any pending bankruptcy proceedings by the Central or State
Governments or any PSUc in India, for the last five years i.e. 2019-2020 to
2023-24. The litigation history or other bar, mentioned in condition No.6.1.10,
should not extend beyond five financial years.
22. In respect of M/s. Rakshak Securitas Private Limited, the writ petitioner,
filed an order dated 22.10.2018 in Civil W.P.No.27090 of 2018 (O & M)
passed by the Punjab and Haryana High Court at Chandigarh. A perusal of
the order would bespeak that a writ petition filed by the company challenging
the proceedings dated 13.08.2018, issued by Municipal Corporation,
Chandigarh, debarring the said company from participating in the tendering
process, for the next six months, was dismissed. As seen from the order, the
civil writ petition filed by M/s. Rakshak Securitas Private Limited was
dismissed on 22.10.2018. Later, a clarification was sought vide CM-10733-
CWP-2023 in CWP-27090-2018, and it was clarified that the Court considered
the issue regarding debarring of the said company, but not its blacklisting.
Thus, debarring M/s. Rakshak Securitas Private Limited, for six months from
13.08.2018, completed by 12.02.2019, before the commencement of the
financial year 2019. Normally, the financial year commences from the first of
April of every calendar year. This objection of the petitioner was, infact,
answered by the authority, in its speaking order.
23. In fact, M/s. Rakshak Securitas Private Limited is not a party
respondent in W.P.No.13005 of 2025. The petitioner arrayed M/s. Rakshak
Security Pvt. Ltd., as the party respondent. The alleged EPF contribution issue
pending before the High Court of Mumbai relates to M/s. Rakshak Security
Pvt. Ltd., but not M/s. Rakshak Securitas Private Limited.
24. The other contention of learned Senior Counsel for the petitioner that
respondent No.5 in W.P.No.13012 of 2025 is involved in criminal cases was
also dealt with by the authorities in their reply. It was specifically mentioned
that the petitioner failed to produce substantial material. In paras 22 and 23 of
the writ affidavit, the petitioner pleaded regarding the criminal cases against
respondent No.5. However, no particulars were furnished in the affidavit. Of
course, a copy of the FIR was filed as Ex P.7. Learned Advocate General,
while supporting the case of the State, would submit that in the charge sheet
relating to Ex P.7 FIR, the name of respondent No.5 is not found in the charge
sheet. Respondent No.5 has not been shown as one of the accused. This
court is conscious that it is not deciding a factual controversy, looking at the
allegations and the material in support of the allegation at this stage. After the
counter affidavit is filed, the Court will be in a better place to adjudicate the
issue while exercising judicial review. This court will discuss the importance of
pleadings at an appropriate stage.
25. At this juncture, it is appropriate to note that clause 6.19 delineates
about disqualifications of the bidder, reads as follows:
"6.19 Disqualification of the bidder
a) Any misrepresentation/improper response may lead to
disqualification of the Bidder.
b) In case it is found during evaluation or at any time before signing of
the Agreement or after its execution and during the period of
subsistence thereof, that one or more of the eligibility conditions
have not been met by the Bidder, or the Bidder has made material
misrepresentation, or has given any materially incorrect or false
information, the Bidder shall be disqualified forthwith if not yet
appointed as the Service Provider either by issue of the LOA or
entering into of the Agreement
c) If the Bidder has already been issued the LOA or has entered into
the Agreement, as the case may be, the same shall,
notwithstanding anything to the contrary contained therein or in this
tender, be liable to be terminated, by a communication in writing by
the Client without the Client being liable in any manner whatsoever
to the Applicant, as the case may be. In such an event, the Client
shall forfeit and appropriate the performance Security and also pre-
estimated compensation and damages payable to the Client as
mutually agreed for, inter alia, time, cost and effort of the Client
without any other right or remedy that may be available to the
Client.
26. Thus, a plain reading of clause 6.19, indicates that the employer or the
authority, at any stage, before signing the agreement or after its execution and
during the period of subsistence, has the right to terminate the contract, due to
any disqualifications.
27. The contention of learned Senior Counsel regarding the alleged
disqualification of respondent No.5 in W.P.No.13008 of 2025 is that
respondent No.5 under-rated the bid. In fact, upon the representation made by
the petitioner, the employer called for remarks from respondent No.5, and
after considering the same, the authority passed a speaking order.
28. Para 6.20.15 of the Tender schedule details that the service provider
shall comply with the provisions of G.O.MS.No.138 dated 13.11.2024.
Annexure 10 of the tender document is drawn up, keeping in view the
statutory liability of the service provider. Respondent No.5 relied upon the
Gazette of India dated 22.12.2016 wherein ESI Contribution does not apply to
the employee drawing more than Rs.21,000/-.
29. It is a settled principle of law that the author or employer of the project,
having authored the tender document, is the best person to understand and
appreciate its requirements. While considering the test of balance of
convenience, the Court must consider the prime understanding of the author
of the document, as well as the importance of the work in the tender.
30. The Hon‟ble Apex Court in Afcons Insfrastrucutre Limited v. Nagpur
Metro Rail Corporation Limited & Anr.1, at paras 13 and 15 observed thus:
13. In other words, a mere disagreement with the decision-making process
or the decision of the administrative authority is no reason for a
constitutional court to interfere. The threshold of mala fides, intention to
favour someone or arbitrariness, irrationality or perversity must be met
before the constitutional court interferes with the decision-making process or
the decision.
...
15. We may add that the owner or the employer of a project, having authored
the tender documents, is the best person to understand and appreciate its
requirements and interpret its documents. The constitutional courts must
defer to this understanding and appreciation of the tender documents, unless
there is mala fide or perversity in the understanding or appreciation or in the
application of the terms of the tender conditions. It is possible that the owner
or employer of a project may give an interpretation to the tender documents
that is not acceptable to the constitutional courts but that by itself is not a
reason for interfering with the interpretation given.
31. It is also a settled principle of law that equity and principles of natural
justice will not apply in tender matters as considered by the Hon‟ble Apex
Court in Galaxy Transport Agencies v. New J.K. Roadways2.
32. In Jagdish Mandal v. State of Orissa3, the Hon‟ble Apex Court again
considered the judicial review vis-à-vis administrative action and interference
in matters relating to tenders observes at para No.22 as follows:
“22. Judicial review of administrative action is intended to prevent
arbitrariness, irrationality, unreasonableness, bias and mala fides. Its
purpose is to check whether choice or decision is made “lawfully” and not to
check whether choice or decision is “sound”. When the power of judicial
1
(2016) 16 SCC 818
2
(2021) 16 SCC 808
3
(2007) 14 SCC 517
review is invoked in matters relating to tenders or 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 award of contract is bona fide and is in
public interest, courts will not, in exercise of 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 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. …”
33. This court is reminded of the observations of the Hon‟ble Apex Court in
Silppi Constructions Contractors v. Union of India and Ors4, wherein it
was held that interference of the courts by exercising judicial review in
commercial matters and contracts involving technical issues „the Courts
should be more reluctant because most of the Judges‟ robes do not have the
necessary expertise to adjudicate upon the technical issues. The courts
should not use a magnifying glass while scanning the tender and make every
small mistake appear like a big blunder. The Court must give “fair play in the
joints” to the government and public sector undertakings in matters of
contract‟.
34. As discussed supra, this Court is not exercising the appeal jurisdiction
at the stage of interlocutory application, except for whether the decision-
making authority exceeded its power or abused the process or committed an
4
(2020) 16 SCC 489
error of law. Thus, this court doesn‟t find the balance of convenience or
irreparable loss to the petitioner, given clause 6.19 in the tender document.
35. At this juncture, it is pertinent to observe that the employer still has the
jurisdiction to deal with any disqualification of the bidder. In fact, the learned
Advocate General would contend that the petitioner canvassed new grounds
in the writ affidavit apart from the objections, and the employer will look into
the petitioner’s grievances. The same is recorded.
36. Thus, in the considered opinion of this Court, the petitioner failed to
prove a prima facie case, the balance of convenience or irreparable loss in its
favour, for the grant of an interim order. In fact, as observed supra, it requires
a comprehensive hearing after the counter-affidavits are filed.
37. At the hearing, learned Senior Counsel for the petitioner would contend,
without a pleading in the writ affidavit, about the rates quoted by each of the
participants. Though the learned Advocate General submitted the minutes of
the meeting, this Court is not going into that aspect at this stage, since there is
no pleading in the writ affidavit to that effect.
38. The Hon‟ble Apex Court, in Bharat Singh and others Vs State of
Haryana and others5, while pointing out the importance of pleadings,
observed as follows:
“13. ….. where a point which is ostensibly a point of law is required to
be substantiated by facts, the party raising the point, if he is the writ
petitioner, must plead and prove such facts by evidence which must
appear from the writ petition and if he is the respondent, from the
counter affidavit. If the facts are not pleaded or the evidence in support
of such facts is not annexed to the writ petition or to the counter
affidavit as the case may be, the Court will not entertain the point.
There is a distinction between a pleading under the Civil procedure
code and a writ petition of a counter affidavit. While in a pleading, that
a point or a written statement, the facts and no evidence are required5
AIR 1988 SC 2181
to be pleaded, in a writ petition or in the counter affidavit not only the
facts but also the evidence in proof of such facts have to be pleaded
and annexed to it.
39. In Narmada Bachao Andolan Vs State of M.P. and another6, the
Hon‟ble Apex Court observed the importance of pleadings as follows:
“9. … pleading in particulars are required to enable the court to
decide the rights of parties in the trial. Thus, the pleadings are more to
help the court in narrowing the controversy involved and to inform the
parties concerned to the questions in issue, so that the parties may
adduce appropriate evidence on said issue. It is settled legal
proposition that “as a rule relief not founded on the pleadings should not
be granted”. Therefore, a decision of a case cannot be based on
grounds outside the pleadings of parties. The object and purpose of
pleadings and issues is to ensure that the litigants come to trial with all
issues clearly defined and to prevent cases from being expanded or
grounds being shifted during trial. If any factual or legal issues, despite
having merit, has not been raised by the parties, the court should not
decide the same as the opposite counsel does not have a fair
opportunity to answer the line of reasoning adopted in that regard. Such
a judgment may be violative of principles of natural justice”
40. Given the discussion supra, this Court is not inclined to grant an interim
order at this stage. Accordingly, the interlocutory applications are hereby
dismissed. The interim direction granted earlier is hereby vacated.
41. It is made clear that observations, if any, made in the order will not
affect the rights of the parties in adjudicating the writ petitions on merits.
SUBBA REDDY SATTI,J
Date : 15.05.2025
IKN
6
AIR 2012 SC 1989
THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
I.A.Nos.1 of 2025
in
WRIT PETITION NOs: 13005, 13008 and 13012 of 2025
Date : 15.05.2025
IKN
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