2025:HHC:21753 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 10817/2025 Decided on: 7.7.2025 Sandeep Ohri …..Petitioner Versus State of Himachal Pradesh & anr. ….Respondents Coram: The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon’ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?1Yes For the Petitioner: Mr. K. S. Banyal, Sr. Advocate with Mr. Uday Singh Banyal, Advocate. For the Respondent: Mr. Anup Rattan, A.G. with Mr. Navlesh Verma, Ms. Sharmila Patial, Mr. Sushant Kaprate, Addl.A.Gs. and Mr. Raj Negi, Dy.A.G. ____________________________________________________________ Justice Tarlok Singh Chauhan, Judge (oral) The instant petition has been filed for grant of the following substantive relief: “Allow the present writ petition by quashing and setting aside the impugned notice inviting tender (NIT) dated 17.6.2025, Annexure P-2 and corrigendum dated 26.6.2025 Annexure P-4 in the ends of justice and fair play.” 2 The facts giving rise to the filing of the instant petition are that the Medical Superintendent-cum-Member Secretary, RKS, Pt. Jawaharlal Nehru, Govt. Medical College 1Whether reporters of the local papers may be allowed to see the judgment? Yes. 2025:HHC:21753 2 and Hospital, District Chamba issued an e-tender dated 2.12.2024 inviting for outsourcing the supply of cooked diet to indoor patients of the aforesaid Hospital and its Sarol campus having strength of about 580 beds. In the e-tender, the financial eligibility criteria for bidders was prescribed as a minimum annual turnover of Rs. 1 crore for each of the preceding three financial years i.e. 2021-22, 2022-23 & 2023- 24. Under the terms and conditions relating to the documents required to be uploaded for pre-qualification, the bidder was required to possess a minimum of three years of experience in providing cooked diet services in a government or private hospital having a bed strength of at least 300 and was also required to be duly empanelled by the State of Himachal Pradesh and located within the territorial limits of Himachal Pradesh. 3 According to the petitioner, the conditions prescribed in the tender were not in consonance with the established norms, guidelines and regulatory framework and after recognizing the shortcomings, the respondents withdrew the tender citing “administrative reasons”. 4 After the withdrawal of the earlier tender, respondent No.2 thereafter re-floated an e-tender dated 2025:HHC:21753 3 17.6.2025 for the same purpose i.e. for providing cooked diet services to the indoor patients in the hospital. 5 It is averred by the petitioner that as per tender schedule, the bidding process is though slated to be opened on 8.7.2025, but the respondent-State instead of rectifying the earlier deficiencies in line with the binding policy framework, further dilutes the eligibility criteria in the revised tender in the following manner:- (i) The financial qualification requirement has now been inexplicably reduce from Rs.1 crore annual turnover for the past three years to merely Rs.50 lacs. (ii) Technical criteria mandating three years of experience in providing cooked diet services to a minimum 300 bedded hospital introduced in the previous tender has been completely waived off. 6 The petitioner being aggrieved by the dilution of eligibility criteria, submitted representation dated 21.6.2025, which according to the petitioner, was duly considered and it was on the basis thereof that a corrigendum dated 17.6.2025 was issued wherein financial eligibility requirements have been revised from the previously stipulated Rs.50 lacs to Rs.1.5 crore annual turnover for each of the last three financial years. Further, the bidder now must possess a minimum of three 2025:HHC:21753 4 years of experience in providing cooked diet services in government or private institutions duly empanelled by the State of Himachal Pradesh. However, the petitioner is still aggrieved by the terms and conditions of the tender and has filed the instant writ petition for the relief, as quoted above. 7 Mr. K. S. Banyal, learned Senior Advocate assisted by Mr. Uday Singh Banyal, Advocate, would argue that the terms and conditions of the tender in question are arbitrary and need to be rectified because the tender issued by a similarly situated hospital i.e. Dr. Y.S. Parmar Government Medical College, Nahan, for cooked diet services, specifically mandates- (i) Minimum experience of three years in providing cooked diet services to hospitals having 300 or more indoor beds (ii) Minimum average annual turnover of Rs.5 crores in the last three financial years. He has further relied upon judgment rendered by this Court in CWP No. 424/2019, titled as Rakesh Kumar vs. State of H.P., decided on 6.3.2019, wherein this Court has upheld the validity of Rs.5 crore turnover requirement for cooked diet tenders in a government medical college. 2025:HHC:21753 5 8 We have heard the learned counsel for the petitioner and are of the considered view that this writ petition on the face of it questioning the eligibility criteria is not maintainable. 9 It is more than settled that the terms of tender prescribing eligibility criteria are not open to interference merely because the Court feels that some other terms would have been preferable unless the Court comes to the conclusion that the terms are arbitrary, discriminatory or biased. 10 Fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as if the same is proved to be arbitrary or unreasonable. 11 Equally settled is the proposition that in the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted. 12 The legal position is well explained in the judgment rendered by the Hon’ble Supreme court in Michigan Rubber (India) Ltd. vs. State of Karnataka, (2012) 8 SCC 216 and 2025:HHC:21753 6 it shall be apt to reproduce para 23 of the judgment, which reads as under:- “23. From the above decisions, the following principles emerge: (a) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and 2025:HHC:21753 7 (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government.” 13 Normally, the terms of the invitation to tender are not open to judicial scrutiny, the same being in the realm of contract. The Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide, which is not the fact situation obtaining in the present case. 14 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, 2025:HHC:21753 8 irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision. 15 The constitutional Court cannot sit in appeal over the soundness of the decision made by the competent authority and the Court can only examine whether the decision making process was fair, reasonable, transparent and bona fide with no perceptible injury to public interest. 16 From the decisions rendered by the Hon’ble Supreme Court from time to time on the question of tender, award of the contract/tender etc. following legal principles can conveniently be summarized as under:- (i) The procedure adopted by 'State' under Article 12 while awarding contract can be adjudged and tested on the touchstone of Article 14 of the Constitution of India. (ii) The Government cannot act in a manner which would benefit a private party at the expense of the State as the same would be unreasonable and contrary to public interest. (iii) While exercising power of judicial review the Court will not examine the details of contract but only are concerned with decision making process and whether the same was reasonable, rational and arbitrary or is violative of Article 14 of the Constitution of India. 2025:HHC:21753 9 (iv) The State while inviting tenders cannot take into account the factors which are irrelevant and detrimental to public interest. (v) An administrative action is subject to control by judicial review on the grounds of illegality, irrationality and procedural impropriety. (vi) The power of judicial review is available in cases where it is established that terms of invitation to tender are tailor-made to suit the convenience of any particular person with a view to eliminate all others from participating in the bidding process, unless the tender conditions are wholly arbitrary, discriminatory or actuated by malice, the terms of tender notice are not subject to judicial review. vii) Level Playing Field is an important concept while construing Article 19(1)(g) of the Constitution of India, which confers fundamental right to carry on business. However, the aforesaid doctrine is subject to public interest. (viii) The power of judicial review is also available in a case where the action of the respondent is not only arbitrary, unreasonable and curtails public participation which vitally affects public interest and if permitted would result in causing loss to public exchequer for want of adequate competition. The Court would intervene if tender conditions give rise to formation of cartel which is against public policy. (ix) The Government while entering into contract or issuing quotas is expected not to act like a private individual but should act in conformity with certain 2025:HHC:21753 10 healthy standards and norms which are not arbitrary, irrational or irrelevant. (x) The terms of invitation to tender are not subject to judicial scrutiny and more often than not such decisions are made by experts and it is not open for the Courts, whenever there are different alternatives, to suggest that particular alternative is more justified. Greater latitude is to be conceded to State authorities in the matter of formulating conditions of tender and awarding contracts. (xi) The Government has freedom of contract and Court cannot strike down terms of tender merely because it feels that some other conditions in the tender would have been fairer, wiser or more logical. The Courts can interfere only when conditions of tender are arbitrary, discriminatory and actuated by malice. (xii) The award of contract, whether it is by a private party or a public body or the State, is essentially a commercial transaction. The State can chose its own method to arrive at its decision and can fix its own terms of invitation of tender and that is not open to judicial scrutiny. Even when some defect is found in decision making process, the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely of making out a legal point. (xiii) No person can claim a fundamental right to carry on business with the Government. All that he 2025:HHC:21753 11 can claim is that, in competing for the contract, he should not be unfairly treated and discriminated to the detriment of public interest. (xiv) The Government is the guardian of State finances and is expected to protect it. The right to choose cannot be considered as arbitrary as long as it complies with requirement of principles of Article 14 of the Constitution of India. (xv) The test to be adopted is whether something has gone wrong of a nature and degree which requires Court's intervention. 17 Adverting to the present case, the petitioner, in substance, wants the Court to go into the soundness of the decision rendered by the respondents, which course is not open to this Court as it is more than settled that 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”. 18 As regards the reliance placed on the judgment rendered in M/s Rakesh Kumar’s case (supra), we really wonder how this judgment is relevant and applies to the instant case. The petitioner therein had laid challenged to the tender notices dated 13.2.2019 and 18.2.2019 pertaining to 2025:HHC:21753 12 catering services to be provided in Pandit Jawahar Lal Nehru Government Medical College and Hospital at Chamba, as involved in the instant case and Shri Lal Bahadur Shastri Government Medical College and Hospital, Mandi at Nerchowk, District Mandi. It was contended that the tender conditions more particularly requirement of an average turnover of Rs.500 lacs for the last three financial years was illegal and arbitrary. This Court dismissed the writ petition by observing as under:- “6. The fact that the petitioners do not have an average turnover of ₹ 500 Lacs for the last three Financial Years or that they do not have an experience of providing Cooked Diet Services to the indoor patients in a minimum 500 bedded Hospital for the last five consecutive years and consequently, they are ineligible to give bid for Shri Lal Bahadur Shastri Government Medical College and Hospital, Mandi at Nerchowk, District Mandi, would not render these conditions per se illegal and arbitrary, more so when such conditions are prescribed in public interest and to ensure best facilities and care to the indoor patients.” 19 As regards Pandit Jawahar Lal Nehru Government Medical College and Hospital at Chamba, the petition was dismissed as the petitioner had no locus standi. 20. The mere fact that the condition of an average turnover of Rs.5 crores for the last three financial years has been upheld in the case of Shri Lal Bahadur Shastri 2025:HHC:21753 13 Government Medical College and Hospital, Mandi at Nerchowk does not mean that such condition would ipso facto be applicable to Pandit Jawahar Lal Nehru Government Medical College and Hospital at Chamba. 21 It is more than settled that observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. In taking this view, we are duly supported by judgment rendered by three-Judge bench of Hon’ble Supreme Court in Haryana Financial Corporation and another versus Jagdamba Oil Mills and another (2002) 3 SCC 496, relevant portion whereof reads as under: “19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a 2025:HHC:21753 14 statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (1951 AC 737 at P. 761), Lord Mac Dermot observed: (All ER p. 14C-D) "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge." 20. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, (at All ER p. 297g-h) "Lord Atkin's speech..is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board, (1972) 2 WLR 537 Lord Morris said: (All ER p. 761c) "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case." 21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.” 2025:HHC:21753 15 22 In view of aforesaid discussions, we find no merit in the instant petition and the same is dismissed in limine, so also the pending application(s), if any, leaving the parties to bear their own costs. (Tarlok Singh Chauhan) Judge (Sushil Kukreja) 7.7.2025 Judge (pankaj)