APHC010102442025

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3328]

TUESDAY ,THE SIXTH DAY OF MAY

TWO THOUSAND AND TWENTY FIVE

PRESENT

THE HONOURABLE SRI JUSTICE GANNAMANENI RAMAKRISHNA

PRASAD

WRIT PETITION NO: 5435 OF 2025

Between:

1. VIKRAM BOOK LINKS PRIVATE LIMITED, REP.BY. ITS

AUTHORISED REPRESENTATIVE, CIN. U22219AP2008PTC057907,

PLOT.NO.1-12, RAMASWAMY TOWERS, YSR INNER RING ROAD,

0PP. AJITHSINGH NAGAR AREA, VIJAYAWADA, NTR DISTRICT, AP

- 520015.

2. .R.SRINIVAS VIKRAM, , S/O. RAVIKRINDI RAMASWAMY, AGE 45

YEARS, OCC AUTHORISED REPRESENTATIVE - CUM -

CHIEFEXECUTIVE OFFICER. M/S. VIKRAM BOOK LINKS PRIVATE

LIMITED, OFFICE AT PLOT.NO.1-12, RAMASWAMY TOWERS, YSR

INNER RING ROAD, 0PP. AJITHSINGH NAGAR AR EA,

VIJAYAWADA, NTR DISTRICT, AP - 520015.

...PETITIONER(S)

AND

1. THE STATE OF AP, REP.BY ITS PRINCIPAL SECRETARY,

DEPARTMENT OF SCHOOL EDUCATION, SECRETARIAT

BUILDINGS, VELAGAPUDI VILLAGE, TULLUR MANDAL -GUNTUR

DISTRIC ANDHRA PRADESH.

2. THE COMMISSIONER OF SCHOOL EDUCATION, DEPARTMENT OF

SCHOOL EDUCATION, ANDHRA PRADESH, D.NO.398/3, VIDYA

BHAVAN, VENKATADIRI TOWERS, ATMAKUR(V) MANGALAGIRI(M),

GUNTUR DISTRICT -522503.

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3. THE DIRECTOR, ANDHRA PRADESH GOVERNMENT TEXTBOOK

PRESS, DEPARTMENT O F SCHOOL EDUCATION, ANDHRA

PRADESH 5TH FLOOR, VIDHYA BHAVAN, ATMAKURU,

MANGALAGIRI, GUNTUR DISRICT, ANDHRA PRADESH.

4. EPROCUREMENT DEPARTMENT, IT, E AND C, DEPARTMENT,

REPRESENTED BY ITS DIRECTOR, SECRETARIAT BUILDINGS,

VELAGAPUDI, AMARAVATI GUNTUR DISTRICT.

...RESPONDENT(S):

Counsel for the Petitioner(S):

1. TAGORE YADAV YARAGORLA

Counsel for the Respondent(S):

1

.

GP FOR SCHOOL EDUCATION

The Court made the following ORDER:

Heard Sri Y. Tagore Yadav, Ld. Counsel for the Writ Petitioners and Sri

G. Rama Chandra Rao, Ld. Government Pleader for Education for the

Responents.

2. The present Writ Petition is filed seeking the following relief:

“It is humbly prayed that this Hon‟ble Court may

be pleased to issue a Writ or order or direction

more particularly one in the nature of Writ of

Mandamus:

i. Declaring the impugned Tender

Notification Rc.No.109/T2/2025 dated

18.02.2025 issued by the

Respondent/s herein is illegal,

Arbitrary, violative of principles of

natural justice, Contrary to the A.P.

Financial Code and General Financial

Rules (GFR), 2017 apart from Article

14, 19 (1)(g) and 21 of the Constitution

of India, 1950 and Consequently, to

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set-aside/quash the Notification

Rc.No.109/T2/2025 dated 18.02.2025;

ii. Declaring that the failure to conduct

a pre-bid meeting in the impugned

tender notification Rc.No.109/T2/2025

dated 18.02.2025 is violation of the

principles of natural justice,

transparency and fair competition in

public procurement and consequently,

direct the respondents to hold a pre-bid

meeting;

iii. and allow bidders to submit revised

bids after addressing their concerns.

AND consequently direct the Respondent

Authorities to ensure to have wider participation

at par with the neighbouring states while having

sufficient securities in place in order to achieve

affordable education and fair and transparent

policy to keep majority of the serious publishers

within the zone of eligibility so as to have timely

and effective supply of books to the needy

students AND/OR to pass such other order or

orders as this Hon‟ble court may deem fit and

proper in the interest of justice.”

The facts as presented by the Writ Petitioner are that:

3. The Writ Petitioners are the Printers and Suppliers of the Textbooks to

various State Governments. The Writ Petitioner No.1, through Writ Petitioner

No.2, had been printing and supplying the Textbooks to the Department of

Education for supply of Textbooks to the schools in the state.

4. The Director, Andhra Pradesh Government Textbooks Press

(Respondent No.3) has issued a Tender Notification bearing Notification vide

Rc.No.109/T2/2025, dated 18.02.2025 (Ex.P.1) calling for “Expression of

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Interest (EoI)” for Empanelment of Printers/Publishers/Book Distributors of

Andhra Pradesh for printing and distribution of school textbooks/workbooks

(with paper) for sale component to the students studying in private schools for

the Academic Years 2025-2026 & 2026-2027. The notable tender conditions

would include Clause-5 in Section-I dealing with the „Scope of Work‟. Clauses

8 and 9 of Section-II of the Tender Notification dated 18.02.2025 (Ex.P.1)

deals with supply of sample copies at the earliest point of time so that the

textbooks should be made available and also with regard to „Annual Turnover‟.

5. In the original Tender Notification that was issued on 18.02.2025,

Clause 9 of Section-II read as under:

“9. ANNUAL TURNOVER : The annual turnover

for submission of Expression of Interest (EoI) for

Empanelment of the printers/publishers/Book

distributors is Rs.10.00 crores for each year for the

last three financial years i.e., 2022-23, 2023-24 and

2024-25. In support of this they have to submit the

necessary documentary evidence (i.e., Xerox copies

of the annual accounts) and audited statements

certified by Charted Accountant with a valid UDIN

Number etc.,”

6. In the original Tender Notification that was issued on 18.02.2025,

Clause 14 of Section-II read as under:

“14. The bidder who wish to participate in

this tender should have an experience of

minimum of two years in last three years i.e.,

2022-23, 2023-24 and 2024-25 in printing and

publication of school books in Andhra Pradesh.”

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7. Within three days thereafter, a Corrigendum was issued on 20.02.2025

amending the Clause-9 of Section-II. The Corrigendum that was issued on

20.02.2025 by amending the clause-9 reads as under:

“9. Annual Turnover: As per Tender Condition

to point No.9. The annual turnover for submission of

expression of Interest (EoI) for empanelment of the

printers/ publishers/book distributors is Rs.10 crores

for each year for the last 3 financial years i.e. 2021-

22, 2022-23 and 2023-24 for annual turnover and

Income tax returns.”

8. Another Corrigendum was also issued on 21.02.2025 by amending

Clause-14 of Section-II in the original Tender Notification. Amended Clause-

14 of Section-II reads as under:

“The bidder who wishes to participate in this

tender should have an experience of minimum of two

years in last five years i.e., 2020-2021, 2021-2022,

2022-23, 2023-24 and 2024 -25 in printing,

publication and distribution of school textbooks and

workbooks in Andhra Pradesh”

SUBMISSIONS OF THE LD. COUNSEL FOR THE WRIT PETITIONERS:

9. Sri Y. Tagore Yadav, Ld. Counsel for the Writ Petitioners has made the

following submissions:

9.1. That the tender conditions as laid down by the Government of Andhra

Pradesh during the yesteryears had fixed a minimum turnover of five crores

during the last three financial years. Whereas, Clause-9 of the Section-II

Tender Notification had doubled the minimum turnover and made it as ten

crores for the last three financial years i.e., 2022-2023, 2023-2024 and 2024-

2025.

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9.2. Prior to the issue of the Tender Notification on 18.02.2025, the Writ

Petitioner No.1 had addressed a Letter dated 05.02.2025 (Ex.P.2) to the

Director of School Education informing the Government that the price of the

paper has got significantly reduced in the market from Rs.115 per kg to Rs.80

per kg leading to a substantial decrease in the overall production cost. It is

also stated in the said Letter that considering this reduction, the per-page rate

can be adjusted by 15% lower than the previously fixed rate, which would

directly benefit the students by making the subject textbooks more affordable.

It was also requested by the Writ Petitioners that this development of reduced

cost of the paper may be factored-in while issuing the Tender Notification.

9.3. The Writ Petitioner No.1 has also addressed another Letter on

24.02.2025 i.e., after the Tender Notification was issued on 18.02.2025 stating

that the Writ Petitioners were not invited for any discussion despite informing

the Government about the reduced cost of the paper.

9.4 . That up to the previous academic year (2024-2025) the eligibility criteria

for the bidders to participate in the Tender notification for supply of text books

was „five crores‟ turnover per annum; whereas, the present Tender Notification

has fixed minimum turnover per annum as „ten crores‟ atleast for two financial

years in the three previous financial years. Ld. Counsel would submit that this

condition is not only arbitrary, but has been tailor-made so as to exclude

certain bidders and to reduce the competition with a view to provide benefit to

certain bidders.

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9.5. That the case of the Writ Petitioners may be considered for

empanelment for the purpose of encouraging micro and small scale industries

which are registered with the National Small Industries Corporation Ltd

(NSIC). Since the Writ Petitioner No.1 is also a small scale industry, which is

registered with the NSIC, the Ld. Counsel for the Writ Petitioners would submit

that the modification of the condition that was prevailing during the

yesteryears i.e., the increase of the turnover from five crores to ten crores, is

highly arbitrary. Ld. Counsel for the Writ Petitioners has also taken this Court

through various clauses of the Tender Notification issued by the Government

of Telangana for the academic year 2024-2025. He has also drawn the

attention of this Court to the Tender Notification issued by the Government of

Andhra Pradesh for the academic years 2023-2024, 2024-2025 (Ex.P.4). He

has drawn the attention of this Court to clause 19 of the Tender Condition of

the earlier Tender issued on 09-03-2023 for the academic years (2023-2024 &

2024-2025) to state that the five crores turnover was the minimum threshold

that was fixed.

9.6. He would submit that the thresholds have been raised only with a view

to accommodate M/s. Vyjayanti Printers. However, M/s. Vyjayanti printers

have not been impleaded as a party Respondent in the present Writ Petition.

9.7. The reason for increase of the turnover threshold from five crores to ten

crores was justified by the Official Respondents by stating that the suppliers

have defaulted in payment of Royalty in the earlier Tender Notifications for the

academic years 2023-2024 & 2024-2025. It is stated by the Ld. Counsel for

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the Writ Petitioners that the reason shown by the Government of Andhra

Pradesh for increase of the turnover from five crores to ten crores due to the

defaults by the suppliers in payment of the Royalty to the Government is

factually incorrect. He would submit that several publishers were empanelled

during the academic years 2023-2024, 2024-2025, but not a single supplier

has defaulted the payment of Royalty to the Government of Andhra Pradesh.

COUNTER-AFFIDAVIT OF RESPONDENTS:

10. The Official Respondents have filed Counter-Affidavit. They have

contended in the Counter-Affidavit that fixation of the threshold of turnover by

increasing from five crores to ten crores is not arbitrary and inasmuch as the

Government has the right to fix the thresholds depending on the previous

experiences as well as to ensure seamless supply of Textbooks. The

Government has also contended that no favoritism is shown to any one nor

are the Tender conditions tailor-made to favour some firms and to discriminate

certain other firms. It was also stated in the Counter-Affidavit that the

threshold was raised for avoiding default in payment of royalty in the future.

SUBMISSIONS OF LD. GOVERNMENT PLEADER FOR EDUCATION:

11. Sri Gurram Ramachandra Rao, Ld. Government Pleader for Education

would submit that the total number of bidders who had bidded in the present

Tender Notification are „13‟ in number. He would submit that out of the „13‟

bidders, „8‟ bidders were qualified in the technical bid. Amongst the five

bidders who were not qualified in the technical bid, two bidders were not

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qualified on account of lack of turnover of ten crores and the other three

bidders were disqualified for other reasons.

11.1. He would also submit that not only the Writ Petitioners but also all the

other bidders were registered with NSIC and they all possess NSIC

Certificates, either under Micro Industries or Small Industries. He would also

submit that the Corrigendum dated 21.02.2025 is not arbitrary. He would

submit that out of the 13 bidders, 12 bidders are qualified even without

applying the Corrigendum dated 21.02.2025.

11.2. Ld. Government Pleader for Education would also submit that while the

bidders are expected to have a minimum turnover of ten crores for 2 years out

of the last five years (as per the Corrigendum dated 21.02.2025), the Writ

Petitioners herein has a turnover of ten crores for the academic year 2023-

2024, but the Writ Petitioners does not have the ten crores turnover for the

financial years 2020-2021, 2021-2022, 2022-2023 and 2024-2025.

12. Ld. Counsel for the Writ Petitioners has placed on record the following

judgments:

(1) Tata Cellular Vs. Union of India; (1994) 6 Supreme

Court Cases 651. (Para Nos. 77, 79 and 80).

(2) Small Scale Industrial Manufactures Association

(Registered) Vs. Union of India and Others; (2021) 8

SCC 511. (Para Nos. 73, 75, 81, 103).

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(3) Reliance Energy Ltd. and another Vs. Maharashtra

State Road Development Corpn. Ltd. And o thers;

(2007) 8 SCC 1. (Para No.36)

(4) Meerut Development Authority Vs. Association of

Management Studies and Another; (2009) 6 SCC 171.

(Para No.36).

(5) New Horizons Limited and another Vs. Union of

India and others; (1995) 1 SCC 478. (Para No.17)

(6) Raunaq International Ltd. Vs. I.V.R. Construction

Ltd. and others;(1999) 1 SCC 492. (Para Nos.19 & 22)

13. Sri Gurram Ramachandra Rao, Ld. Government Pleader has relied on

certain decisions and would contend that the aspects relating to the technical

bid cannot be judicially reviewed inasmuch as the Government has the

absolute right to fix its‟ own criteria. He has also cited certain judgments

relating to the turnover to say that the employer has the right to fix the

turnover basing on its‟ past experiences and the smooth supply of the

goods/products in the future.

14. Sri Gurram Ramachandra Rao, Ld. Government Pleader for Education

has referred to the following Judgments:

(1) Banshidhar Construction Private Limited Vs.

Bharat Coking Coal Limited and Others; (2024) 10 SCC

273.

(2) Tata Motors Limited Vs. Brihan Mumbai Electric

Supply & Transport Undertaking (BEST) and Others;

2023 SCC Online SC 671.

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(3) Galaxy Transport Agencies, Contractors, Traders,

Transports and Suppliers Vs. New J.K. Roadways,

Fleet Owners and Transport Contractors and Others;

(2021) 16 SCC 808.

(4) Central Coalfields Limited and another Vs. Sll-SML

(Joint Venture Consortium) and others; (2016) 8 SCC

622.

(5) Director of Education and Ors., Vs. Educomp

Datamatics Ltd., and Ors.,;(2004) 4 SCC 19.

(6) Michigan Rubber (India) Ltd., Vs. State of Karnataka

and Ors.,; (2012) 8 SCC 216.

15. Insofar as the issue of technical bid is concerned, this Court is of the

opinion that issue is squarely covered by the judgment of the Hon‟ble Apex

Court in Galaxy Transport Agencies, Contractors, Traders, Transports

and Suppliers Vs. New J.K. Roadways, Fleet Owners and Transport

Contractors and Others; (2021) 16 SCC 808. In Para Nos. 14 to 19 the

Hon‟ble Apex court had analysed the nature of tender document and the

dominant position of the Authority in prescribing the „conditions‟ in the tender

document. Para Nos. 14 to 19 are usefully extracted hereunder:

14. In a series of judgments, this Court has held that

the authority that authors the tender document is

the best person to understand and appreciate its

requirements, and thus, its interpretation should

not be second-guessed by a court in judicial

review proceedings. In Afcons Infrastructure

Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons

Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd.,

(2016) 16 SCC 818] , this Court held : (SCC p. 825,

para 15)

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“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.”

(emphasis supplied)

15. In the judgment in Bharat Coking Coal

Ltd. v. AMR Dev Prabha [Bharat Coking Coal

Ltd. v. AMR Dev Prabha, (2020) 16 SCC 759] , under

the heading “Deference to authority's interpretation”,

this Court stated : (SCC p. 776, paras 50-52)

“50. Lastly, we deem it necessary to deal

with another fundamental problem. It is

obvious that Respondent 1 seeks to only

enforce terms of the NIT. Inherent in such

exercise is interpretation of contractual

terms. However, it must be noted that

judicial interpretation of contracts in

the sphere of commerce stands on a

distinct footing than while interpreting

statutes.

51. In the present facts, it is clear that

BCCL and C1-India have laid recourse to

clauses of the NIT, whether it be to justify

condonation of delay of Respondent 6 in

submitting performance bank guarantees

or their decision to resume auction on

grounds of technical failure. BCCL having

authored these documents, is better

placed to appreciate their requirements

and interpret them. (Afcons Infrastructure

Ltd. v. Nagpur Metro Rail Corpn.

Ltd. [Afcons Infrastructure Ltd. v. Nagpur

Metro Rail Corpn. Ltd., (2016) 16 SCC

818] , SCC para 15)

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52. The High Court [ Amr-Dev

Prabha v. Union of India, 2018 SCC

OnLine Jhar 2708] ought to have deferred

to this understanding, unless it was

patently perverse or mala fide. Given how

BCCL's interpretation of these clauses

was plausible and not absurd, solely

differences in opinion of contractual

interpretation ought not to have been

grounds for the High Court to come to

a finding that the appellant committed

illegality.”

(emphasis supplied)

16. Further, in the recent judgment in Silppi

Constructions Contractors v. Union of India [Silppi

Constructions Contractors v. Union of India, (2020)

16 SCC 489] , this Court held as follows : (SCC pp.

502-503, para 20)

“20. The essence of the law laid down

in the judgments referred to above is

the exercise of restraint and caution;

the need for overwhelming public

interest to justify judicial intervention

in matters of contract involving the

State instrumentalities; the courts

should give way to the opinion of the

experts unless the decision is totally

arbitrary or unreasonable; the court

does not sit like a court of appeal over

the appropriate authority; the court

must realise that the authority floating

the tender is the best judge of its

requirements and, therefore, the

court's interference should be

minimal. The authority which floats the

contract or tender, and has authored

the tender documents is the best judge

as to how the documents have to be

interpreted. If two interpretations are

possible then the interpretation of the

author must be accepted. The courts

will only interfere to prevent

arbitrariness, irrationality, bias, mala

fides or perversity. With this approach

in mind we shall deal with the present

case.”

(emphasis supplied)

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17. In accordance with these judgments and noting

that the interpretation of the tendering authority in

this case cannot be said to be a perverse one, the

Division Bench ought not to have interfered with it by

giving its own interpretation and not giving proper

credence to the word “both” appearing in Condition

31 of the NIT. For this reason, the Division Bench's

[New J.K. Roadways v. State (UT of J&K), 2020 SCC

OnLine J&K 733] conclusion that J.K. Roadways was

wrongly declared to be ineligible, is set aside.

18. Insofar as Condition 27 of the NIT prescribing

work experience of at least 5 years of not less than

the value of Rs 2 crores is concerned, suffice it to

say that the expert body, being the Tender Opening

Committee, consisting of four members, clearly found

that this eligibility condition had been satisfied by the

appellant before us. Without therefore going into the

assessment of the documents that have been

supplied to this Court, it is well settled that unless

arbitrariness or mala fide on the part of the tendering

authority is alleged, the expert evaluation of a

particular tender, particularly when it comes to

technical evaluation, is not to be second-guessed by

a writ court. Thus, in Jagdish Mandal v. State of

Orissa [Jagdish Mandal v. State of Orissa, (2007) 14

SCC 517] , this Court noted : (SCC pp. 531-32, para

22)

“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 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

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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. Therefore, a court before

interfering in tender or contractual matters

in exercise of power of judicial review,

should pose to itself the following

questions:

(i) Whether the process adopted or

decision made by the authority is mala fide

or intended to favour someone;

OR

Whether the process adopted or decision

made is so arbitrary and irrational that the

court can say:„the decision is such that no

responsible authority acting reasonably

and in accordance with relevant law could

have reached‟;

(ii) Whether public interest is affected.

If the answers are in the negative, there

should be no interference under Article

226. Cases involving blacklisting or

imposition of penal consequences on a

tenderer/contractor or distribution of State

largesse (allotment of sites/shops, grant of

licences, dealerships and franchises)

stand on a different footing as they may

require a higher degree of fairness in

action.”

(emphasis supplied)

19. Similarly, in Montecarlo Ltd. v. NTPC [Montecarlo

Ltd. v. NTPC, (2016) 15 SCC 272] , this Court stated

as follows : (SCC p. 288, para 26)

“26. We respectfully concur with the

aforesaid statement of law. We have

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reasons to do so. In the present scenario,

tenders are floated and offers are invited

for highly complex technical subjects. It

requires understanding and appreciation

of the nature of work and the purpose it is

going to serve. It is common knowledge in

the competitive commercial field that

technical bids pursuant to the notice

inviting tenders are scrutinised by the

technical experts and sometimes third-

party assistance from those unconnected

with the owner's organisation is taken.

This ensures objectivity. Bidder's expertise

and technical capability and capacity must

be assessed by the experts. In the matters

of financial assessment, consultants are

appointed. It is because to check and

ascertain that technical ability and the

financial feasibility have sanguinity and

are workable and realistic. There is a

multi-prong complex approach; highly

technical in nature. The tenders where

public largesse is put to auction stand on

a different compartment. Tender with

which we are concerned, is not

comparable to any scheme for allotment.

This arena which we have referred

requires technical expertise. Parameters

applied are different. Its aim is to achieve

high degree of perfection in execution and

adherence to the time schedule. But, that

does not mean, these tenders will escape

scrutiny of judicial review. Exercise of

power of judicial review would be called

for if the approach is arbitrary or mala fide

or procedure adopted is meant to favour

one. The decision-making process should

clearly show that the said maladies are

kept at bay. But where a decision is taken

that is manifestly in consonance with the

language of the tender document or

subserves the purpose for which the

tender is floated, the court should follow

the principle of restraint. Technical

evaluation or comparison by the court

would be impermissible. The principle that

is applied to scan and understand an

ordinary instrument relatable to contract in

other spheres has to be treated differently

than interpreting and appreciating tender

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documents relating to technical works and

projects requiring special skills. The owner

should be allowed to carry out the purpose

and there has to be allowance of free play

in the joints.”

16. In Director of Education and Ors., Vs. Educomp Datamatics Ltd.,

and Ors.,;(2004) 4 SCC 19, the Hon‟ble Apex Court had with the fixation of

thresholds with regard to the turnover in public contracts. Para Nos. 9 to 13 of

the judgment is usefully extracted hereunder:

“9. It is well settled now that the courts can

scrutinise the award of the contracts by the

Government or its agencies in exercise of their

powers of judicial review to prevent arbitrariness or

favouritism. However, there are inherent limitations in

the exercise of the power of judicial review in such

matters. The point as to the extent of judicial review

permissible in contractual matters while inviting bids

by issuing tenders has been examined in depth by

this Court in Tata Cellular v. Union of India [(1994) 6

SCC 651] .After examining the entire case-law the

following principles have been deduced: (SCC pp.

687-88, para 94)

“94. The principles deducible from the

above are:

(1) The modern trend points to judicial

restraint in administrative action.

(2) The court does not sit as a court of

appeal but merely reviews the manner in

which the decision was made.

(3) The court does not have the expertise

to correct the administrative decision. If a

review of the administrative decision is

permitted it will be substituting its own

decision, without the necessary expertise

which itself may be fallible.

(4) The terms of the invitation to tender

cannot be open to judicial scrutiny

because the invitation to tender is in the

realm of contract. Normally speaking, the

decision to accept the tender or award the

contract is reached by process of

negotiations through several tiers. More

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often than not, such decisions are made

qualitatively by experts.

(5) The Government must have freedom

of contract. In other words, a fair play in

the joints is a necessary concomitant for

an administrative body functioning in an

administrative sphere or quasi -

administrative sphere. However, the

decision must not only be tested by the

application of Wednesbury principle of

reasonableness (including its other facts

pointed out above) but must be free from

arbitrariness not affected by bias or

actuated by mala fides.

(6) Quashing decisions may impose heavy

administrative burden on the

administration and lead to increased and

unbudgeted expenditure.”

(emphasis supplied)

10. In Air India Ltd. v. Cochin International Airport

Ltd. [(2000) 2 SCC 617] this Court observed: (SCC p.

623, para 7)

“The award of a contract, whether it is by a

private party or by a public body or the

State, is essentially a commercial

transaction. In arriving at a commercial

decision considerations which are

paramount are commercial

considerations. The State can choose its

own method to arrive at a decision. It can

fix its own terms of invitation to tender and

that is not open to judicial scrutiny. It can

enter into negotiations before finally

deciding to accept one of the offers made

to it. Price need not always be the sole

criterion for awarding a contract. It is free

to grant any relaxation, for bona fide

reasons, if the tender conditions permit

such a relaxation. It may not accept the

offer even though it happens to be the

highest or the lowest. But the State, its

corporations, instrumentalities and

agencies are bound to adhere to the

norms, standards and procedure laid

down by them and cannot depart from

them arbitrarily. Though that decision is

not amenable to judicial review, the court

can examine the decision-making process

19

and interfere if it is found vitiated by mala

fides, unreasonableness and

arbitrariness.”

(emphasis supplied)

11. This principle was again restated by this Court

in Monarch Infrastructure (P) Lt d. v. Commr.,

Ulhasnagar Municipal Corpn. [(2000) 5 SCC 287] It

was held that the terms and conditions in the tender

are prescribed by the Government bearing in mind

the nature of contract and in such matters the

authority calling for the tender is the best judge to

prescribe the terms and conditions of the tender. It is

not for the courts to say whether the conditions

prescribed in the tender under consideration were

better than the ones prescribed in the earlier tender

invitations.

12. It has clearly been held in these decisions that

the terms of the invitation to tender are not open to

judicial scrutiny, the same being in the realm of

contract. That 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.

13. Directorate of Education, Government of NCT

of Delhi had invited open tender with prescribed

eligibility criteria in general terms and conditions

under tender document for leasing of supply,

installation and commissioning of computer systems,

peripherals and provision of computer education

services in various government/government-aided

senior secondary, secondary and middle schools

under the Directorate of Education, Delhi. In the year

2002-03, 748 schools were to be covered. Since the

expenditure involved per annum was to the tune of

Rs. 100 crores, the competent authority took a

decision after consulting the Technical Advisory

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Committee for finalisation of the terms and conditions

of the tender documents providing therein that

tenders be invited from firms having a turnover of

more than Rs. 20 crores over the last three years.

The hardware cost itself was to be Rs. 40-45 crores.

The Government introduced the criterion of turnover

of Rs. 20 crores to enable the companies with real

competence having financial stability and capacity to

participate in the tender, particularly in view of the

past experience. We do not agree with the view

taken by the High Court that the term providing a

turnover of at least Rs. 20 crores did not have a

nexus with either the increase in the number of

schools or the quality of education to be provided.

Because of the increase in the number of schools the

hardware cost itself went up to Rs. 40-50 crores. The

total cost of the project was more than Rs. 100

crores. A company having a turnover of Rs. 2 crores

may not have the financial viability to implement such

a project. As a matter of policy the Government took

a conscious decision to deal with one firm having

financial capacity to take up such a big project

instead of dealing with multiple small companies

which is a relevant consideration while awarding

such a big project. Moreover, it was for the authority

to set the terms of the tender. The courts would not

interfere with the terms of the tender notice unless it

was shown to be either arbitrary or discriminatory or

actuated by malice. While exercising the power of

judicial review of the terms of the tender notice the

court cannot say that the terms of the earlier tender

notice would serve the purpose sought to be

achieved better than the terms of tender notice under

consideration and order change in them, unless it is

of the opinion that the terms were either arbitrary or

discriminatory or actuated by malice. The provision of

the terms inviting tenders from firms having a

turnover of more than Rs. 20 crores has not been

shown to be either arbitrary or discriminatory or

actuated by malice.”

ANALYSIS:

17. Although, Ld. Counsel for the Writ Petitioners has placed heavy reliance

on the Tender conditions in various Tender Notifications of the State of

Telangana as well as the State of Andhra Pradesh, particularly with regard to

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the academic years 2023-2024, 2024-2025, this Court is of the view that

reference to such Tender conditions has no relevance inasmuch as every

individual Authority has always right to either prescribe or to modify the

Tender conditions „at will‟. One idiomatic expression states that „Monkeys

cannot decide the affairs of the forest‟ likewise, a bidder can never dictate the

employer or the Government Authority with regard to the fixation of tender

conditions or the parameters. Even with regard to the offer made by the Writ

Petitioners through their Letter dated 05.02.2025 (Ex.P.2), by which the Writ

Petitioners had acted like a whistle-blower to the Government informing the

Government that the price of the paper has significantly reduced from

Rs.150/- per Kg to Rs.80/- per Kg with a request to the Government to factor-

in this reduction in price in the Tender document which is likely to be issued in

the near future, the said intimation may not enure to the benefit of the Writ

Petitioners. It can always be reasonably assumed that the Government and

its Authorities are also keeping themselves abreast of the changes in the

market price with regard to the cost of paper from time to time. Therefore, no

benefit can be attached to the Writ Petitioners in informing the Government

with regard to the reduction of price of paper.

18. In the ultimate analysis, this Court is of the opinion that the increase of

the threshold with regard to the turnover from five crores per annum to ten

crores per annum is neither unreasonable nor arbitrary. This Court is also of

the opinion that giving latitude to the bidders to show the minimum turnover of

ten crores for two years period during the last five financial years is also not

22

arbitrary. The facts in the present case would also indicate that out of the 13

bidders, 8 bidders have reached the threshold of turnover of ten crores.

Therefore, it cannot be said that fixation of the 10 crores threshold is arbitrary

in nature nor is it discriminative in any manner because out of the 13 bidders,

8 bidders were qualified in the technical bid.

19. At this stage, the Court is also reminded of the fact that about 12

bidders got qualified even without the Corrigendum dated 21.02.2025 and

therefore, it cannot be said that the Corrigendum that was issued within three

days of the earlier Tender Notification is bad in law.

20. In the above premise, this Court is of the opinion that the Writ Petition is

devoid of any merit. Accordingly, this Writ Petition is dismissed. No order as

to costs.

21. Interlocutory Applications, if any, stand closed in terms of this order.

__________________________________________

GANNAMANENIRAMAKRISHNA PRASAD, J

Dt: 06.05.2025

Mnr/JKS

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03

HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD

WRIT PETITION No.5435 OF 2025

Dt: 06.05.2025

Mnr/JKS

24