IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6272 of 2026 Sri Rajesh Kumar Swain …. Petitioner Represented by Adv.– Mr. Prabodh Chandra Nayak, Advocate -Versus- State of Odisha and another …. Opposite Parties Represented by Adv.– Mr. Debasish Tripathy, Addl. Government Advocate CORAM: HON’ BLE THE CHIEF JUSTICE AND HON’BLE MR. JUSTICE MURAHARI SRI RAMAN Order No. ORDER 15.05.2026 01. 1. The petitioner appears to have been beleaguered between the obligation to submit the Additional Performance Security and the finalization of a tender, which was admittedly floated prior to the date of an amendment and/or a subsequent circular issued by the Government. 2. The challenge is made to Annexure-4 i.e. a letter dated 27th January, 2026 issued by the Project Administrator, ITDA, Keonjhar calling upon the petitioner to deposit 2% Initial Security Deposit i.e. NIL and 150% Additional Performance Security money in terms of an Office Memorandum dated 5th April, 2021. 3. It is not in dispute that at the time of floating the tender inviting bids from the intending participants, the said Office Memorandum dated 5th April, 2021 was invoked. Even the said Office Memorandum remained operative on the last date of the submission of the bid, but was subsequently superseded by an Office Memorandum dated 3rd January, 2026, where the categorization for Additional Performance Security is vividly and lucidly mentioned in relation to the percentage below the estimated cost. The petitioner took a plea that since the letter of acceptance was issued subsequent to the said Office Memorandum dated 3rd January, 2026, it is improper that the authority would insist the petitioner to submit the Additional Performance Security in terms of the earlier Office Memorandum dated 5th April, 2021. 4. A distinction is sought to be made between the Additional Performance Security and the percentage below the estimated cost, which according to the petitioner, are distinct exercise and in the event, the final decision has been taken, the Office Memorandum dated 3rd January, 2026 has to be construed in such manner. 5. We have meticulously gone into the Office Memorandum dated 3rd January, 2026 in order to understand the submissions advanced by the petitioner and the language used therein whether are suggestive of the perception derived by the petitioner therefrom. As indicated above, it is undisputed that on the date of floating the tender as well as the last date of submission of the bid, the Office Memorandum dated 5th April, 2021 was operative and, therefore, the petitioner was aware that in the event he is adjudged as the successful bidder therefrom, he is obligated to comply the conditions and/or impositions in terms of the said Office Memorandum dated 5th April, 2021. However, a subsequent Office Memorandum intervened in the interregnum where the quantification of the Additional Performance Security is segregated on a different compartment on the basis of the percentage below the estimated cost, which according to the petitioner, should have been applied by the authority while issuing the said Annexure-4 and not on the basis of an earlier Office Memorandum, which is superseded by the said Office Memorandum dated 3rd January, 2026. Page 4 of 7 6. It is no doubt true that the Government decided to adopt new mechanism of furnishing the Additional Performance Security on the percentage basis i.e., the percentage less than the estimated cost which was not the same in an earlier Office Memorandum dated 5th April, 2021 where a fixed percentage of the Additional Performance Security was an imperative obligation of the successful bidder. Paragraph-2 of the said Office Memorandum dated 3rd January, 2026 conveys a laudable massage that the said circular by which certain amendments have been made shall take effect from the date of the issue of the said Office Memorandum i.e. 3rd January, 2026 and, therefore, what has already been done or steps which have been taken prior to the said Office Memorandum shall not get automatically obliterated by the authorities. The moment the Office Memorandum is intended to operate prospectively, any action and/or things done by the authorities prior in time shall not automatically get efface and/or evaporated. The act and/or the thing, which is done, gets saved by a prospective operation of the Office Memorandum and, therefore, the things which have been done prior thereto shall be completed on the basis of the earlier Office Memorandum. Page 5 of 7 7. The rule of the game cannot be changed in the midst of a game as the person participating in the tender was aware that in the event he is declared successful, he has to comply the conditions enshrined in the Office Memorandum dated 5th April, 2021 and, therefore, he cannot revolve around the circumference of the subsequent Office Memorandum dated 3rd January, 2026 and seek a mandamus upon the authority to adhere thereto. In the event the stand of the petitioner is accepted, it would invite an anomalous situation and a circumstance may come where the person who was otherwise eligible would become ineligible and the fairness and the transparency and/or the equity principles would get eroded. 8. So far as the concept of quoting the percentage below the estimated cost and the Additional Performance Security are concerned, though manifestly it is a distinct exercise, but intertwined with each other. The percentage being the benchmark for declaring the intending participants as successful tenderers, the Additional Performance Security is the consequential effect thereof and, therefore, cannot be separated or put on a different pedestal as argued by the petitioner. The obligations fortify on the date of the submission of the bid and, therefore, we do not find any change in the pattern of submitting the Additional Performance Security before the finalization or an acceptance of the bid would have any manner of application. 9. In the instant case, the authorities were conscious of the anomalies that may arise and issued a further Office Memorandum dated 9th January, 2026 saving the biding process already floated before the issuance of the said Office Memorandum dated 3rd January, 2026 to the effect that it would be finalized as per the provision of Appendix-IX Clause 36 of the OPWD Code Volume-II. Though there is no express indication on the Additional Performance Security, but the intention and the tenet of the said Office Memorandum is indicative of the fact that the authorities never intended the ongoing tender process to be effected by the said Office Memorandum dated 3rd January, 2026 and therefore, we do not find any illegality and/or infirmity in Annexure-4 to the writ petition. 10. The writ petition is, thus, dismissed. 11. However, it is submitted that because of the bona fide impression having created into the petitioner on the applicability of the conditions enshrined in the Office Memorandum dated 3rd January, 2026, the writ petition was filed and the time within which the Additional Performance Security is to be submitted is lapsed in the meantime and, therefore, the Court must apply the equity principles to save right accrued to the petitioner. We, therefore, extend the period of furnishing the Additional Performance Security within seven days from date. (Harish Tandon) Chief Justice (M.S. Raman) Judge S.K. Guin/PA