Orissa High Court
Konkan Railway Corporation Ltd vs East Coast Railway on 31 March, 2026
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.22483 of 2025
In the matter of an Application under Articles 226 & 227
of the Constitution of India, 1950
***
Konkan Railway Corporation Ltd.
(A Government of India Undertaking)
Corporate Office: Belapur Bhavan
Plot No.6, Sector 11, CBD, Belapur
Navi Mumbai – 400 614
Represented through
Sri Upendra Shridhar Shendye
Aged about 57 years
Son of Shridhar Vinayak Shendye
the Authorised Signatory for the petitioner
presently working as
Chief Project Manager-Mechanical
in the Petitioner company. … Petitioner
-VERSUS-
1. East Coast Railway
Represented by
General Manager
At: Samanta Vihar
Bhubaneswar – 751 017
Odisha.
2. Chief Administrative Officer (Con)
East Coast Railway
At: Samanta Vihar
Bhubaneswar – 751 017, Odisha.
3. Chief Engineer (Con)/II/BBS
Office of Chief Administrative Officer (Con)
W.P.(C) No.22483 of 2025 Page 1 of 62
East Coast Railway
At: Samanta Vihar
Bhubaneswar – 751 017
Odisha.
4. M/s. IRCON-JPWIPL JV (JV)
Bid submitted by Authorised Signatory
IRCON International Ltd.
At: C-4, District Centre, Saket
New Delhi – 110 017.
5. M/s. URC – Taikisha JV (JV)
Bid Submitted by Authorised Signatory
URC Construction Pvt Ltd.
At: 119, Power House Road, Erode
Tamil Nadu – 638 001. … Opposite Parties
Counsel appeared for the parties:
For the Petitioner : Mr. Rudra Prasad Kar,
Senior Advocate
Assisted by
M/s. Ipsit Aurobindo Acharya and
C.K. Rout, Advocates.
For the Opposite Party : Mr. Prasanna Kumar Parhi,
Nos.1 to 3 Deputy Solicitor General of India
for High Court of Orissa
Assisted by
Mr. Satya Sindhu Kashyap
Senior Panel Counsel.
For the Opposite Party : Mr. Bijoy Krushna Mahanty,
No.4 Senior Advocate
Assisted by
M/s. Abinash Barik and
Adhiraj Mohanty, Advocates.
W.P.(C) No.22483 of 2025 Page 2 of 62
P R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. HARISH TANDON
AND
HONOURABLE JUSTICE
MR. MURAHARI SRI RAMAN
Dates of Hearing : 20.02.2026 and 23.02.2026
::
Date of Judgment: 31.03.2026
J UDGMENT
MURAHARI SRI RAMAN, J.–
Questioning the propriety in declaring IRCON-JPWIPL
(JV), the opposite party No.4, a successful bidder upon
evaluating the Financial Bid on 08.08.2025 vide
Tabulation Statement of Financial Bids (Annexure-5)
and assailing the legality of action of the Authority
concerned (hereinafter be referred to as ―Tendering
Authority‖) in rejecting the Bid of the petitioner on
08.08.2025 (Annexure-4) on the ground ―Extract of
Board Resolution not attached‖ at the technical
evaluation stage, the instant writ petition beseeching to
invoke power of judicial review under Article 226 of the
Constitution of India, reliefs are claimed with the
following prayers:
―In the circumstances stated above, it is humbly prayed
that this Hon’ble Court may graciously be pleased toW.P.(C) No.22483 of 2025 Page 3 of 62
issue a Rule NISI in the nature of mandamus and/or any
other appropriate writ/writs, call for the records, call upon
the opposite parties to show cause as to why–
(1) The rejection dated 08.08.2025 vide Annexure-4 of
the petitioner’s technical bid shall not be quashed;
(2) The status assigned to the opposite party Nos.4 & 5
as L-1 and L-2 respectively pursuant to opening of
financial bids vide Annexure-5 shall not be quashed;
(3) The petitioner shall not be declared the L-1 bidder
for awarding the work under RfP dated 18.01.2025.
And if the opposite parties fail to show cause or show
insufficient cause, make the said Rule Nisi absolute;
And further be pleased to pass any other appropriate
order/orders as may be deemed fit and proper;
And allow this Writ Petition;
And for this act of kindness, the Petitioner shall as in duty
bound ever pray.‖
Facts:
2. The petitioner, a Government of India Undertaking
functioning under the Ministry of Railways having
excellent track record in executing railway works,
participated in Request for Proposal (―RfP‖, for brevity)
dated 18.01.2025 issued by the opposite party Nos.1 to
3, East Coast Railway (Construction Organisation),
inviting prospective bids for ‗Setting up of Infrastructure
facilities for Vande Bharat Express Major MaintenanceW.P.(C) No.22483 of 2025 Page 4 of 62
Depot at Malatipatpur of Khurda Road Division of East
Coast Railway’2.1. Though the documents as per specifications and
requirements in the RfP the Bid was submitted, without
any further intimation seeking clarification from the
petitioner the same has been rejected on the ground that
―Extract of Board Resolution not attached‖ vide Rejection
Status uploaded on 08.08.2025.
2.2. It is affirmed by the petitioner that to furnish extract of
Board Resolution is not at all a document asked for as
essential condition of the RfP, dated 18.01.2025, i.e.
documents comprising Technical and Financial Bids.
The petitioner asserted that Clause 2.11(b) of the RfP
requires a person having Power of Attorney for signing
the Bid in the format given at Appendix-II to upload. The
said Clause 2.11(b) refers to Appendix-II, which provides
that the Power of Attorney should be executed by the
person authorised by the Board Resolution of the
Company. However, there is no mention that such Board
Resolution should also be annexed along with the tender
documents of the bidder. Therefore, the petitioner alleges
that rejection of the Bid on 08.08.2025 is untenable,
illogical and illegal and the basis of rejection on the
ground/the reason stated above is not available in the
RfP dated 18.01.2025.
W.P.(C) No.22483 of 2025 Page 5 of 62
2.3. It is submitted that in absence of any notice or grant of
opportunity to explain, gross illegality as well as
violation of principles of natural justice has been
committed by the Tendering Authority in rejecting the
Bid on the ground other than the tender conditions. It is
further affirmed that the Tendering Authority never
called upon the petitioner to supply the Board
Resolution before rejecting the techno-commercial bid on
08.08.2025. The petitioner submitted that the Power of
Attorney submitted by the petitioner-Company in its Bid
has been executed by the Chairman and Managing
Director of the petitioner-Company, who is authorised as
per the Meeting dated 29.05.2024 of the Board of
Directors of the petitioner-Company approving the
Delegation of Power to the Chairman and Managing
Director vide Board Resolution Item No.23/181/2024 to
execute the said Power of Attorney.
2.4. The price bids of the two technically qualified bidders
were opened on 08.08.2025, wherein the L-1 price came
out at Rs.375.49 Crore against the estimated cost of
work at Rs.291.78 Crore, whereas the price quoted by
the petitioner-Company is Rs.333.15 Crore, which is
much less compared to the present L-1 price of
Rs.375.49 Crore as also the estimated price.
2.5. Albeit a request for review was placed on 10.08.2025
before the Chief Engineer (Con)/II/BBS in the Office of
W.P.(C) No.22483 of 2025 Page 6 of 62
Chief Administrative Officer (Con), East Coast Railway,
Rail Sadan, Samanta Vihar, Bhubaneswar via e-mail
from Upendra Shendye [email protected] to
―cecon2econrbbs‖ [email protected], indicating
frivolous reason ascribed to for rejecting the Bid of the
petitioner, nothing tangible came to fore. Hence, laying
challenge against such arbitrary and illegal rejection of
the petitioner’s Bid on 08.08.2025 (Annexure-4) and also
against the assignment of L-1 status in favour of the
opposite party No.4 (Annexure-5), thereby causing huge
revenue loss to the exchequer, the petitioner has
approached this Court for showing indulgence in the
decision making process of the Tendering Authority.
Counter affidavit filed by the opposite parties:
3. The opposite party Nos. 1 to 3 filed counter affidavit
putting forth their stand justifying the ground for
rejection of the Bid at technical evaluation stage.
3.1. The process of tender involved two-stage mechanism.
The first stage is the technical bid which was finalized on
07.08.2025 i.e. strictly in accordance with the terms and
conditions stipulated in the RfP dated 18.01.2025,
issued by the East Coast Railway under Tender Notice
No. EPCCECONIIBBS2024041. The second-stage, i.e.,
financial bid was opened on 08.08.2025 with respect to
those bidders who were qualified in the technical bid as
W.P.(C) No.22483 of 2025 Page 7 of 62
per the terms and conditions set forth in the RfP dated
18.01.2025. As per Clause 3.1.6.1 of the RfP, the bidder
is mandatorily required to furnish a list of documents,
inter alia, including a duly executed Power of Attorney,
failing which the bid would be treated as non-
responsive. This requirement is further reiterated under
Clause 2.11 of the RfP, which categorically emphasized
the necessity of submitting the requisite documents for
both the Technical and the Financial Bids. Paragraph 2
of Clause 2.11.1 explicitly provides that the bidder shall
apply for the RfP through the portal https://ireps.gov.in
by uploading the specified documents along with
―supporting documents‖, which collectively constitute
the Technical Bid. The prescribed format under
Appendix-II specifically requires the Power of Attorney to
be executed by a person duly authorized by a Board
Resolution (in the case of a Firm/Company). It is,
therefore, concomitant condition for the bidder to
establish that the person executing the Power of
Attorney is duly authorized to do so. It is mandatory
requirement under Clause 2.1.4 and Clause 2.1.5 that
proper procedure was to be followed and necessary
documents were to be filed as per format specified in
Appendix-II and as per Clause 2.1.7, ―any condition or
qualification or any other stipulation contained in the Bid
W.P.(C) No.22483 of 2025 Page 8 of 62
shall render the Bid liable to rejection as a non-responsive
Bid1‖.
3.2. The Notes appended to for specified at Appendix-II
stipulated that ―wherever required‖ the Bidder should
submit for verification the charter documents evidencing
the authority vested in the signatory of the Bid.
Therefore, as in the present case the petitioner has not
submitted Board Resolution from which it would have
been verified the delegation of authority being granted in
favour of the executant of the Bid on behalf of the
company-bidder.
3.3. It is affirmed by way of the counter affidavit that Board
Resolution is a supporting document to establish the
validity of execution of the Power of Attorney in
conformity with the format given at Appendix-II. It
1 Relevant portion of Section 3 dealing with ―EVALUATION OF TECHNICAL BIDS AND
OPENING AND EVALUATION OF FINANCIAL BIDS‖ reads thus:
―3.1. Evaluation of Technical Bids.–
***
3.1.6. Tests of responsiveness:
3.1.6.1 As a first step towards evaluation of Technical Bids, the Authority shall
determine whether each Technical Bid is responsive to the requirements of
this RFP. A Technical Bid shall be considered responsive only if:
(a) The Bid is received online as per the format at Appendix-IA
including Annexure I, II, III, IV, V, VI, VII and Appendix-IB;
(b) All Documents listed at clause 2.11.2 are received physically
within time as mentioned in clause 1.3;
(c) Technical Bid is accompanied by the Bid Security as specified in
Clause 1.2.4 and 2.20;
(d) The Power of Attorney is uploaded on e-procurement portal as
specified in Clauses 2.1.5;
(e) Technical Bid is accompanied by Power of Attorney for Lead
Member of Consortium/Joint Venture and the Joint Bidding
Agreement as specified in Clause 2.1.6, if so required;
(f) Technical Bid contains all the information (complete in all respects);
(g) Technical Bid does not contain any condition or qualification.‖
W.P.(C) No.22483 of 2025 Page 9 of 62
would, therefore, be necessary to verify the sanctity of
the document with respect to delegation of power or sub-
delegation, if any. The petitioner by furnishing
documents along with Bid was required to establish the
sanctity of such document being executed as per Article
of Association.
3.4. Such vital omission(s) while filing the Bid, being
perceived as fatal and found to be non-responsive, there
was justification in rejecting the Bid of the petitioner.
Counter affidavit filed by the opposite party No.4:
4. The opposite party No.4, a Joint venture (JV) of IRCON
International Limited and JPW Infratech Private Limited,
collectively referred to as IRCON-JPWIPL (JV)/opposite
party No.4, being found eligible in the technical
evaluation of the Bid stage, its Financial Bid was
qualified for evaluation along with others, namely the
opposite party No.5. This opposite party-IRCON-JPWIPL
(JV) having quoted the less price as against the opposite
party No.5, with the lowest bid it was declared as L-1.
4.1. The writ petition is not maintainable inasmuch as the
petitioner had the occasion to avail the benefit of the
Administrative Mechanism for Resolution of Disputes
(AMRD) formulated vide Office Memorandum dated
31.03.2020 issued by the Department of Legal Affairs,
Ministry of Law and Justice, Government of India, which
W.P.(C) No.22483 of 2025 Page 10 of 62
governs inter-ministerial and Central Public Sector
Enterprises-related disputes.
4.2. Failure to submit the mandatory document, specifically
the extract of the Board Resolution authorizing the
individual executing the Power of Attorney on behalf of
the Bidder, as expressly required under the terms of RfP
entailed rejection of the Bid of the petitioner at technical
round of evaluation. The eligibility of bidders for further
consideration could be available to be examined only if
bidder is found technically qualified and its bid would
proceed to the next stage of the tender process. The
decision-making process being just and proper does not
warrant intervention of this Court in the garb of judicial
review.
4.3. The opposite party No.4 submitted that the bid
evaluation process was carried out in a transparent
manner in two stages: technical and financial. Only
those applicants/bidders found to be qualified in the
first stage (Technical Bid Evaluation), they were
considered eligible for being considered for evaluation of
the Financial Bid. The petitioner’s bid was rejected in the
technical evaluation round, as it failed to meet the
requisite eligibility, and therefore, its Financial Bid
remained unopened, which is consistent with the tender
conditions. The opposite party No.4 was considered as L-
1 based on merit evaluation in both the Technical
W.P.(C) No.22483 of 2025 Page 11 of 62
Evaluation of the Bid and the Financial Evaluation of the
Bid. Being adjudged successful in terms of its eligibility
at the technical evaluation stage, and being the Lowest
Bidder at the stage of opening of the Financial Bid
Evaluation, no arbitrariness or bias or mala fide could
be attributed to the Tendering Authority as the process
was transparent and fair.
Hearing:
5. As the pleadings are completed, the matter was taken up
for final hearing on different dates on the consent of the
counsel for the respective parties.
5.1. Heard Sri Rudra Prasad Kar, learned Senior Advocate
being assisted by Sri Ipsit Aurobindo Acharya, learned
Advocate for the petitioner; Sri Prasanna Kumar Parhi,
learned Deputy Solicitor General of India along with Sri
Satya Sindhu Kashyap, learned Senior Panel Counsel for
the opposite party Nos.1 to 3; and Sri Bijoy Krushna
Mahanty, learned Senior Advocate assisted by M/s.
Abinash Barik and Adhiraj Mohanty, learned Advocates
for the opposite party No.4.
5.2. Hearing being concluded, the matter was reserved for
preparation and pronouncement of Judgment.
Consideration of arguments on the plea of alternative
remedy:
W.P.(C) No.22483 of 2025 Page 12 of 62
6. At the outset it is felt prudent to take up the issue of
objection as to maintainability of the writ petition as
raised by the opposite parties on the plea of non-availing
of the mechanism for settlement of disputes provided in
the Office Memorandum dated 31.03.2020.
6.1. The Office Memorandum dated 31.03.2020 enclosed as
Annexure-B/1 with the counter affidavit of the opposite
party Nos.1 to 3 reads as follows:
―No.334774/DoLA/AMRD/2019
Government of India
Ministry of Law & Justice
Department of Legal Affairs***
Shastri Bhawan,
Rajendra Prasad Road,
New Deihi – 110 001.
Dated the 31st March, 2020
OFFICE MEMORANDUM
Subject: Settlement of disputes other than taxation
between Government Ministries/Departments inter
se and between Government Ministries/
Departments and other Ministries/Departments/
Organisation(s)– Administrative Mechanism for
Resolution of Disputes (AMRD).
Instructions have been issued to Ministries /
Departments of the Governments of India, in the
past to avoid inter-departmental litigations in any
Court of law, including by allW.P.(C) No.22483 of 2025 Page 13 of 62
CPSEs/Boards/Authorities, etc., under their
Administrative control and to resolve the same
amicably or through Arbitration.
2. In order to provide for an institutionalized
mechanism for resolution of such disputes.
Secretary, Department of Legal Affairs has vide DO
letter No. 332619/338367/LS/2019 dated 28th
February, 2020 (copy enclosed) advised all
Secretaries to the Government of India that the
existing Administrative Mechanism for Resolution of
Commercial Disputes(AMRCD), currently applicable
to commercial disputes between CPSEs inter se and
also between CPSEs and Government Departments/
Organisations, shall stand extended for resolution of
disputes other than taxation, between
Ministries/Departments inter se and between
Ministries/Departments and other Government
Ministries/Departments/Subordinate/Attached
Offices/Autonomous and Statutory Bodies under
their administrative supervision/control. Details of
the new mechanism, namely. Administrative
Mechanism for Resolution of Disputes (AMRD), are
hereby outlined for guidance.
3. Applicability
AMRD shall apply to any/all dispute(s), other than
those related to taxation, between Central
Government Ministries/Departments inter se and
between Central Government Ministries/
Departments and other Ministries/
Departments/Organisation(s)/Subordinate/
Attached Offices/Autonomous and Statutory Bodies,
etc., under their administrative supervision/control.
W.P.(C) No.22483 of 2025 Page 14 of 62
4. Structure
(i) Disputes, other than taxation, shall be referred at
the First level (tier), to a Committee comprising of
Secretaries of the Administrative Ministries/
Departments to which the disputing Parties belong
and Secretary, D/o Legal Affairs;
(ii) The Joint Secretaries (JSs)/Financial Advisors (FAs)
(for commercial disputes) of the two concemed
Administrative Ministries/Departments may
represent the issues, related to the dispute in
question, before the Committee.
(iii) In case the two disputing parties belong to the same
Ministry/Department, the above Committee may
comprise of the Secretary of the administrative
Ministry/Department concerned and Secretary, D/o
Legal Affairs. Secretary, Department of Public
Enterprises may be invited in case the dispute
pertains to a CPSE.
(iv) The resolution of such disputes shall be by
unanimous decision of the Committee.
(v) In case the dispute remains unresolved after
consideration by the Committee, it will be referred at
the Second level (tier), to the Cabinet Secretary,
whose decision will be final and binding on all
concerned.
5. Procedure
(i) At the First level (tier), the claiming party (Claimant)
may be represented, before the Committee, by the
JS/FA of the administrative Ministry/Department.
The Secretary of administrative Ministry/
W.P.(C) No.22483 of 2025 Page 15 of 62
Department of claiming party will inform in writing
the details of the dispute, to the Secretary of
administrative Ministry/Department of responding
party (Respondent) and Secretary, D/o Legal Affairs
and request for convening a meeting. Thereafter
meetings may be held to examine the facts and
resolve the dispute on merit. The JSs/FAs of the
concerned administrative Ministries/Departments
will represent the issues, related to the dispute in
question, before the above Committee. After the
Committee arrives at a decision, it shall be signed by
the members of the Committee. A copy of the
decision will be communicated by the Secretary of
the administrative Ministry/Department of the
claiming party to members of the Committee ^d to
each party to the dispute for implementation.
(ii) The Committee of Secretaries at the First level (tier)
shall finalise its decision within 3 months after
having received the reference/notice in writing
regarding the dispute from the concerned aggrieved
party.
6. Appeal
Any party aggrieved with the decision of the
Committee at the First level (tier) may prefer an
appeal before the Cabinet Secretary at the Second
level (tier) within 15 days from the date of receipt of
decision of the Committee at the First level, whose
decision will be final and binding on all concerned.
7. All administrative Ministries/Departments are
requested to bring these guidelines to the notice of
all Authorities/Boards/Subordinate/Attached
Offices/Autonomous and Statutory Bodies, etc.,
W.P.(C) No.22483 of 2025 Page 16 of 62
under their administrative supervision/control for
strict compliance.
8. This issues with the approval of the Competent
Authority.
(DR. Rajiv Mani)
Joint Secretary & Legal Adviser
Tel. 23384836
***
Anoop Kumar Mendiratta, Secretary
Department of Legal Affairs
Ministry of Law and Justice
Government of India
No. 332619/338367/LS/2019
Dated 28th February 2020
Dear Secretary,
In a meeting of Committee of Secretaries (CoS)
chaired by Cabinet Secretary on 23.01 2020 the
issues relating to instruction to all Government
Ministries/Departments for the effective
implementation of the existing Administrative
Mechanism for Resolution of CPSES Disputes
(AMRCD) and extension of its applicability to all the
Government Departments/Ministries and CPSES for
resolution of disputes, other than taxation disputes
were discussed The CoS inter-alia recommended
that the existing AMRCD mechanism be made
applicable to disputes other than those related to
taxation, and extended to all
Ministries/Departments.
2. It has been the constant efforts of this Department to
reduce Government litigation in courts so that
W.P.(C) No.22483 of 2025 Page 17 of 62
valuable court time is spent in resolving other
pending cases It has also been endeavour of the
Government to see that disputes between various
Ministries/Departments/CPSEs/Boards/Authorities
under the administrative control of the various
Ministries/Departments do not go to the Court. In
that direction, presently AMRCD is functioning
through the Department of Public Enterprises which
deals with the dispute resolution of CPSEs but
excludes its applicability to the disputes relating to
Railways, Income Tax Customs and Excise
Departments Similarly, in-house mechanism is
working in some other Departments of the
Government mechanism includes Arbitration and
other Alternate Dispute Resolutions Mechanism. In
spite of these instructions, Departments/CPSEs still
resort to court proceedings for settlement of disputes
either with the Government Departments or with
other PSUs.
3. To give effect to the decision taken at the CoS
meeting as per minutes dated 27.01.2020, all the
Ministries/Departments are requested to resolve the
inter-se disputes of various Ministries/Departments/
CPSEs other than those related to taxation, through
existing AMRCD mechanism The Ministries/
Departments are also requested that when any such
dispute is referred for resolution through AMRCD
mechanism, a copy of the same shall also be
endorsed to this Department and further updates
shall be intimated immediately. Ministries/
Departments shall accordingly issue necessary
instructions in this regard, to all CPSEs/Boards/
Authorities under their administrative control.
W.P.(C) No.22483 of 2025 Page 18 of 62
Further, the timelines in the laid down process of
AMRCD be also adhered to and complied with.
Warm regards
Yours sincerely,
Sd/-
(Anoop Kumar Mendiratta)‖
6.2. The opposite party Nos.1 to 3 in counter affidavit at
paragraph 18 have raised an issue with respect to
approaching Alternative Mechanism for Resolution of
Disputes (―AMRD‖, for short) by highlighting Office
Memorandum dated 31.03.2020 issued by the
Government of India. Sri Rudra Prasad Kar, learned
Senior Advocate strongly opposing such a proposition as
emphasised by Sri Prasanna Kumar Parhi, learned
Deputy Solicitor General of India submitted that the said
opposite parties having not disposed of representation of
the petitioner though the same was filed before the
appropriate authority on 10.08.2025, it is inconceivable
that taking recourse to the AMRD would stop them from
proceeding with the award of the work in favour of the
alleged successful bidder (L-1). It is submitted that the
power of judicial review can pervade to put fetter on the
injustice and unfairness in the process of decision
making in rejecting the Bid of the petitioner.
6.3. To fortify his stand, Sri Rudra Prasad Kar, learned
Senior Advocate referred to Revised Guidelines dated
14.12.2022 issued by Government of India, Ministry of
W.P.(C) No.22483 of 2025 Page 19 of 62
Finance, Department of Public Enterprises (Annexure-7
enclosed with the rejoinder affidavit of the petitioner),
relevant portion of which reads as follows:
―No.05/0003/2019/FTS/10937
Government of India
Ministry of Finance
Department of Public Enterprises***
Public Enterprises Bhawan,
Block No.14, CGO Complex,
Lodhi Road, New Deihi – 110 003.
Dated the 14th December, 2022
OFFICE MEMORANDUM
Subject: Settlement of commercial disputes between
Central Public Sector Enterprises (CPSEs) inter se
and CPSE(s) and Government Department(s)/
Organisation(s)– Administrative Mechanism for
Resolution of CPSEs Disputes (AMRCD).
Whereas guidelines for resolution of commercial
disputes between Central Public Sector Enterprises
(CPSEs) inter se and also between CPSES and
Government Departments/Organizations were
issued vide DPE OM No.4(1)/2013-DPE(GM)/FTS-
1835 dated 22nd May, 2018 followed by
clarification dated 4th July, 2018 and 11th July,
2018. These guidelines were further amended vide
DPE OM No. DPE-GM-05/0003/2019-FTS-10937
dated 20.02.2020.
W.P.(C) No.22483 of 2025 Page 20 of 62
2. And whereas a need has been felt to streamline the
existing guidelines with a view to consolidate them
and institutionalise a better monitoring mechanism
for faster resolution of disputes.
Now therefore the Revised Guidelines (in
supersession of the aforesaid notifications/Office
Memoranda) shall be as follows:
3. Replacement of PMA and Applicability:
3.1 Permanent Machinery of Arbitration (PMA) stands
wound up from the date of issue of DPE OM dated
22-05-2018. All pending cases with Sole Arbitrator,
PMA and Appellate Authority stand transferred to
concerned administrative Ministries/Departments.
3.2 A decentralised ‘Administrative Mechanism for
Resolution of CPSES Disputes’ (AMRCD) having two
level (tier) structures shall replace the erstwhile
Permanent Machinery of Arbitration (PMA)
mechanism of DPE.
3.3 Any dispute or difference relating to the
interpretation and application of the provisions of
commercial contract(s) between Central Public Sector
Enterprises (CPSEs)/Port Trusts inter se and also
between CPSEs and Government Departments/
Organizations (excluding disputes relating to
Railways, Income Tax, Customs & Excise
Departments), shall be taken up by either party for
its resolution through AMRCD only.
3.4 No appeals are to be made to Cabinet Secretary in
such matters, including those in which Sole
Arbitrator has passed order before the date of
notification of AMRCD, unless the resolution of theW.P.(C) No.22483 of 2025 Page 21 of 62
disputes has been considered at the level of
Administrative Ministry/Department as per
procedure prescribed below.
***‖
6.4. It may also be noteworthy that the counsel for the
opposite party No.4 has furnished copy of Office
Memorandum bearing No.DPE-05/0002/2023–
AMRCD, dated 25.07.2024 issued by the Government of
India, Ministry of Finance, Department of Public
Enterprises under the caption ―Settlement of commercial
disputes between Central Public Sector Enterprises
(CPSEs) inter se CPSE(s) and Government Departments/
Organisation(s)– Administrative Mechanism for
Resolution of CPSE’s Disputes (AMRCD)‖, which indicates
as follows:
―Para 3.3 of the said OM specified the applicability of
AMRCD Guidelines and stated that any disputes or
difference relating to interpretation and application of the
provisions of commercial contract(s) between Central
Public Sector Enterprises (CPSEs)/Port Trusts inter se and
also between CPSE(s) and Government Department(s)/
Organisation(s) (excluding disputes relating to
Railways, Income Tax, Customs and Excise
Departments) shall be taken up by either party for its
resolution through AMRCDS only.‖6.5. The above paragraph is also reflected in the Office
Memorandum bearing No.DPE-02/0001/2023–
AMRCD/FTS-13578, dated 17.12.2024 issued by the
W.P.(C) No.22483 of 2025 Page 22 of 62
Government of India, Ministry of Finance, Department of
Public Enterprises. Vide Office Memorandum No.
2024/RS(G)/ 779/5, dated 03.01.2025 issued by the
Government of India, Ministry of Railways (Railway
Board) it has been clarified as follows:
―The AMRCD mechanism was further streamlined through
the OM dated 14.12.2022 [ref.(iii)], which consolidated the
existing guidelines and introduced an enhanced
monitoring system to expedite dispute resolution. This OM
superseded previous instructions and reiterated the
exclusion of disputes involving Railways, Income Tax,
Customs, or Excise Departments. This exclusion was
further affirmed in the OM dated 25.07.2024 [ref. (v)] and
17.12.2024 [ref.(vi)].‖6.6. Notwithstanding such Office Memorandum specifying
exclusion of Railways from AMRCD mechanism, Sri
Abinash Barik, learned Advocate attempted to misguide
this Court by placing reliance on an Order dated
01.02.2023 passed by the Hon’ble Supreme Court of
India in the pending case being Civil Appeal No.1400-
1438 of 2017 [Rashtriya Ispat Nigam Ltd. Vrs. Union of
India], wherein it has been observed that:
―Having heard learned senior counsel for the petitioner as
also learned Additional Solicitor General appearing on
behalf of the Union of India, we find it appropriate that in
a matter of the present nature where the petitioner is a
Public Sector Undertaking and the respondent is Wester
Railways is under the Union of India, we expect that a
situation of this nature should be discussed amongstW.P.(C) No.22483 of 2025 Page 23 of 62
themselves and a procedure be laid down so that the
matter could be resolved and disputes in future also could
be avoided. For doing so, they may also discuss with
regard to the present claim which has been made and for
an amicable settlement. To know the initiation made in
this regard, list after four weeks.‖6.7. Visiting the web-portal of the Hon’ble Gujarat High
Court in order to verify the genesis of the said case
relating to above civil appeal before the Hon’ble Supreme
Court of India, it could be noticed that in the case of
Rashtriya Ispat Nigam Ltd. Vrs. Union of India, First
Appeal No.3658 of 2014 to First Appeal No.3696 of 2014,
the Hon’ble Gujarat High Court rendered a Judgment on
06.07.2015, wherein the first paragraph reflects that the
case emanates from rejection of claims for refund of
undercharges recovered by the Western Railway for
consignments loaded as Steel (Rounds) booked from
Visakhapatnam to Kankaria, Ahmedabad under Section
16 of the Railway Claims Tribunal Act, 1987. There is no
semblance of parity of facts so as to consider
applicability of the observation of the Hon’ble Supreme
Court of India vide Order dated 01.02.2023, cited by Sri
Abinash Barik, learned Advocate, to the present set of
factual matrix.
6.8. Nevertheless, no reply could be given with respect to
exclusion of ―Railway‖ from the purview of the Office
Memorandum dated 31.03.2020 read with Letter datedW.P.(C) No.22483 of 2025 Page 24 of 62
28.02.2020 and Revised Guidelines of the Ministry of
Finance vide Office Memorandum dated 14.12.2022 and
also subsequent clarificatory letters. The counsel for the
opposite party No.4 could not even explain whether the
petitioner would come within the fold of Letter bearing
No.2024/RS(G)/709/25, date 17.03.2025 issued by the
Government of India, Ministry of Railways (Railway
Board).
6.9. This Court is reminded of the principle enunciated by
the Hon’ble Supreme Court in Union of India Vrs.
Arulmozhi Iniarasu, (2011) 7 SCC 397 with respect to
application of a decision cited or relied upon in
particular fact-situation. It may be pertinent to quote the
following observation contained in the said reported
judgment:
―14. Before examining the first limb of the question,
formulated above, it would be instructive to note, as
a preface, the well-settled principle of law in the
matter of applying precedents that the Court should
not place reliance on decisions without discussing as
to how the fact situation of the case before it fits in
with the fact situation of the decision on which
reliance is placed. The observations of the courts are
neither to be read as Euclid’s theorems nor as
provisions of statute and that too taken out of their
context. These observations must be read in the
context in which they appear to have been stated.
Disposal of cases by blindly placing reliance on a
decision is not proper because one additional orW.P.(C) No.22483 of 2025 Page 25 of 62
different fact may make a world of difference
between conclusions in two cases. [Ref. Bharat
Petroleum Corpn. Ltd. Vrs. N.R. Vairamani, (2004) 8
SCC 579; Sarva Shramik Sanghatana (KV) Vrs.
State of Maharashtra, (2008) 1 SCC 494 and
Bhuwalka Steel Industries Ltd. Vrs. Bombay Iron &
Steel Labour Board, (2010) 2 SCC 273.]‖6.10. Examining the document relating to AMRD as
reproduced hereinabove, it is vividly indicated in the
Office Memorandum dated 31.03.2020 at paragraph 2
that it is formulated in tune with DO Letter
No.332619/338367/LS/2019, dated 28.02.2020. Said
Letter dated 28.02.2020 clearly envisaged that―In that direction, presently AMRCD [Alternative
Mechanism for Resolution of Central Public Sector
Enterprises] but excludes its applicability to the disputes
relating to Railways, Income Tax, Customs and Excise
Departments of the Government‖.
6.11. From a reading of the contents of Paragraph 3 of the
Office Memorandum dated 31.03.2020 dealing with
―Applicability‖ read in juxtaposition with the Letter dated
28.02.2020 it is evident that AMRD is applicable in
connection with any disputes between the Central
Government Ministries/Departments inter se and
between Central Government Ministries/Departments or
other Ministries/Departments/Organisations/
Subordinate/Attached Offices/Authorities and Statutory
Bodies, etc. ―under their administrativeW.P.(C) No.22483 of 2025 Page 26 of 62
supervision/control‖. The dispute as sought to be
agitated here in this case by the petitioner-Konkan
Railway Corporation Limited does not come within the
purview of said Office Memorandum read with the Letter.
Such being the position, it is misconceived and
misdirected on the part of the learned Deputy Solicitor
General of India as also the learned Senior Advocate for
the opposite parties to contend that the petitioner
should not have knocked the doors of the writ Court
directly instead of approaching the authorities to avail
remedy under the AMRCD/AMRD mechanism.
6.12. Since in terms of the Revised Guidelines dated
14.12.2022 of the Ministry of Finance disputes relating
to ―Railway‖ is kept out of the purview of the AMRD/
AMRCD, the objection as to maintainability of writ
petition questioning the decision making process of the
Tendering Authority is overruled.
6.13. With respect to entertainment of the writ petition
involving contractual matters, this Court in Jalaram
Transport Vrs. Mahanadi Coalfields Limited, W.P.(C)
No.37718 of 2023, vide Judgment dated 04.02.2026
made the following observation holding that judicial
review is maintainable:
―A plea of demur was taken that the writ petition raising
an issue in relation to a contract is not maintainable
which does not appear to be an absolute fetter in view ofW.P.(C) No.22483 of 2025 Page 27 of 62
the judgment rendered by the apex Court in M.P. Power
Management Company Limited Vrs. Sky Power Southeast
Solar India Private Limited, (2023) 2 SCC 703 in the
following:
―82. We may cull out our conclusions in regard to the
points, which we have framed:
82.1. It is, undoubtedly, true that the writ jurisdiction is a
public law remedy. A matter, which lies entirely
within a private realm of affairs of public body, may
not lend itself for being dealt with under the writ
jurisdiction of the Court.
82.2. The principle laid down in Bareilly Development
Authority Vrs. Ajai Pal Singh, (1989) 2 SCC 116 that
in the case of a non-statutory contract the rights are
governed only by the terms of the contract and the
decisions, which are purported to be followed,
including Radhakrishna Agarwal Vrs. State of Bihar,
(1977) 3 SCC 457] , may not continue to hold good,
in the light of what has been laid down in ABL
International Ltd. Vrs. Export Credit Guarantee
Corpn. Of India Ltd., (2004) 3 SCC 553 and as
followed in the recent judgment in State of U.P. Vrs.
Sudhir Kumar Singh, (2021) 19 SCC 706 = 2020
SCC OnLine SC 847.
82.3. The mere fact that relief is sought under a
contract which is not statutory, will not entitle
the respondent State in a case by itself to ward
off scrutiny of its action or inaction under the
contract, if the complaining party is able to
establish that the action/inaction is, per se,
arbitrary.
W.P.(C) No.22483 of 2025 Page 28 of 62
82.4. An action will lie, undoubtedly, when the State
purports to award any largesse and, undoubtedly,
this relates to the stage prior to the contract being
entered into (see Ramana Dayaram Shetty [Ramana
Dayaram Shetty Vrs. International Airport Authority
of India, (1979) 3 SCC 489). This scrutiny, no doubt,
would be undertaken within the nature of the
judicial review, which has been declared in the
decision in Tata Cellular Vrs. Union of India, (1994)
6 SCC 651.
82.5. After the contract is entered into, there can be a
variety of circumstances, which may provide a cause
of action to a party to the contract with the State, to
seek relief by filing a writ petition.
82.6. Without intending to be exhaustive, it may include
the relief of seeking payment of amounts due to the
aggrieved party from the State. The State can,
indeed, be called upon to honour its obligations of
making payment, unless it be that there is a serious
and genuine dispute raised relating to the liability of
the State to make the payment. Such dispute,
ordinarily, would include the contention that the
aggrieved party has not fulfilled its obligations and
the Court finds that such a contention by the State is
not a mere ruse or a pretence.
82.7. The existence of an alternate remedy, is,
undoubtedly, a matter to be borne in mind in
declining relief in a writ petition in a contractual
matter. Again, the question as to whether the writ
petitioner must be told off the gates, would depend
upon the nature of the claim and relief sought by the
petitioner, the questions, which would have to be
decided, and, most importantly, whether there are
W.P.(C) No.22483 of 2025 Page 29 of 62
disputed questions of fact, resolution of which is
necessary, as an indispensable prelude to the grant
of the relief sought. Undoubtedly, while there is no
prohibition, in the writ court even deciding disputed
questions of fact, particularly when the dispute
surrounds demystifying of documents only, the
Court may relegate the party to the remedy by way
of a civil suit.
82.8. The existence of a provision for arbitration, which is
a forum intended to quicken the pace of dispute
resolution, is viewed as a near bar to the
entertainment of a writ petition [see in this regard,
the view of this Court even in ABL International Ltd.
Vrs. Export Credit Guarantee Corpn. of India Ltd.,
(2004) 3 SCC 553 explaining how it distinguished
the decision of this Court in State of U.P. Vrs. Bridge
& Roof Co. (India) Ltd., (1996) 6 SCC 22, by its
observations in SCC para 14 in ABL International
Ltd. Vrs. Export Credit Guarantee Corpn. Of India
Ltd., (2004) 3 SCC 553].
82.9. The need to deal with disputed questions of fact,
cannot be made a smokescreen to guillotine a
genuine claim raised in a writ petition, when
actually the resolution of a disputed question of fact
is unnecessary to grant relief to a writ applicant.
82.10. The reach of Article 14 enables a writ
court to deal with arbitrary State action even
after a contract is entered into by the State. A
wide variety of circumstances can generate
causes of action for invoking Article 14. The
Court’s approach in dealing with the same,
would be guided by, undoubtedly, the
overwhelming need to obviate arbitrary State
W.P.(C) No.22483 of 2025 Page 30 of 62
action, in cases where the writ remedy provides
an effective and fair means of preventing
miscarriage of justice arising from palpably
unreasonable action by the State.
82.11. Termination of contract can again arise in a
wide variety of situations. If for instance, a contract
is terminated, by a person, who is demonstrated,
without any need for any argument, to be the
person, who is completely unauthorised to cancel the
contract, there may not be any necessity to drive the
party to the unnecessary ordeal of a prolix and
avoidable round of litigation. The intervention by the
High Court, in such a case, where there is no dispute
to be resolved, would also be conducive in public
interest, apart from ensuring the fundamental right
of the petitioner under Article 14 of the Constitution
of India. When it comes to a challenge to the
termination of a contract by the State, which is a
non-statutory body, which is acting in purported
exercise of the powers/rights under such a contract,
it would be over simplifying a complex issue to lay
down any inflexible rule in favour of the Court
turning away the petitioner to alternate fora.
Ordinarily, the cases of termination of contract by
the State, acting within its contractual domain, may
not lend itself for appropriate redress by the writ
court. This is, undoubtedly, so if the Court is duty
bound to arrive at findings, which involve untying
knots, which are presented by disputed questions of
facts. Undoubtedly, in view of ABL International Ltd.
Vrs. Export Credit Guarantee Corpn. of India Ltd.,
(2004) 3 SCC 553, if resolving the dispute, in a case
of repudiation of a contract, involves only
appreciating the true scope of documentary material
W.P.(C) No.22483 of 2025 Page 31 of 62
in the light of pleadings, the Court may still grant
relief to an applicant. We must enter a caveat. The
Courts are today reeling under the weight of a
docket explosion, which is truly alarming. If a case
involves a large body of documents and the Court is
called upon to enter upon findings of facts and
involves merely the construction of the document, it
may not be an unsound discretion to relegate the
party to the alternate remedy. This is not to deprive
the Court of its constitutional power as laid down in
ABL International Ltd. Vrs. Export Credit Guarantee
Corpn. of India Ltd., (2004) 3 SCC 553. It all
depends upon the facts of each case as to whether,
having regard to the scope of the dispute to be
resolved, whether the Court will still entertain the
petition.
82.12. In a case the State is a party to the contract
and a breach of a contract is alleged against the
State, a civil action in the appropriate forum is,
undoubtedly, maintainable. But this is not the end of
the matter. Having regard to the position of the State
and its duty to act fairly and to eschew arbitrariness
in all its actions, resort to the constitutional remedy
on the cause of action, that the action is arbitrary, is
permissible (see in this regard Shrilekha Vidyarthi
Vrs. State of U.P., (1991) 1 SCC 212). However, it
must be made clear that every case involving breach
of contract by the State, cannot be dressed up and
disguised as a case of arbitrary State action. While
the concept of an arbitrary action or inaction cannot
be cribbed or confined to any immutable mantra,
and must be laid bare, with reference to the facts of
each case, it cannot be a mere allegation of breach of
contract that would suffice. What must be involved
W.P.(C) No.22483 of 2025 Page 32 of 62
in the case must be action/inaction, which must be
palpably unreasonable or absolutely irrational and
bereft of any principle. An action, which is
completely mala fide, can hardly be described as a
fair action and may, depending on the facts, amount
to arbitrary action. The question must be posed and
answered by the Court and all we intend to lay
down is that there is a discretion available to the
Court to grant relief in appropriate cases.
82.13. A lodestar, which may illumine the path of the
Court, would be the dimension of public interest
subserved by the Court interfering in the matter,
rather than relegating the matter to the alternate
forum.
82.14. Another relevant criteria is, if the Court has
entertained the matter, then, while it is not tabooed
that the Court should not relegate the party at a
later stage, ordinarily, it would be a germane
consideration, which may persuade the Court to
complete what it had started, provided it is
otherwise a sound exercise of jurisdiction to decide
the matter on merits in the writ petition itself.
82.15. Violation of natural justice has been recognised
as a ground signifying the presence of a public law
element and can found a cause of action premised
on breach of Article 14. (See State of U.P. Vrs. Sudhir
Kumar Singh, (2021) 19 SCC 706).‖
6.14. Having referred to said reported case in N.P. Power
Management Company Ltd. (Supra) and many other case
laws on the scope of exercise of power of judicial review
in contractual matters, the Hon’ble Supreme Court of
W.P.(C) No.22483 of 2025 Page 33 of 62
India in the case of Subodh Kumar Singh Rathour Vs. The
Chief Executive Officer, (2024) 7 SCR 532 stated that:
―58. Thus, the demarcation between a private law
element and public law element in the context of
contractual disputes if any, may be assessed by
ascertaining whether the dispute or the controversy
pertains to the consensual aspect of the contract or
tender in question or not. Judicial review is
permissible to prevent arbitrariness of public
authorities and to ensure that they do not exceed or
abuse their powers in contractual transactions and
requires overseeing the administrative power of
public authorities to award or cancel contracts or
any of its stipulations.
59. Therefore, what can be culled out from the
above is that although disputes arising purely
out of contracts are not amenable to writ
jurisdiction yet keeping in mind the obligation
of the State to act fairly and not arbitrarily or
capriciously, it is now well settled that when
contractual power is being used for public
purpose, it is certainly amenable to judicial
review.‖6.15. The Office Memorandum dated 31.03.2020 read with
Letter dated 28.02.2020 juxtaposed with the Revised
Guidelines contained in the Office Memorandum dated
14.12.2022 as referred to above along with subsequent
Office Memoranda without any ambiguity reveals that
the disputes qua Railway vis-Ã -vis the present nature is
sought be kept outside the purview of ―AdministrativeW.P.(C) No.22483 of 2025 Page 34 of 62
Mechanism for Resolution of Disputes‖. Therefore, the
present writ petition questioning the decision making
process in assigning arbitrary reason is maintainable. In
such view of the matter, this Court is convinced that the
writ petition is maintainable in the instant case to
consider whether the rejection of the Bid of the petitioner
by the Tendering Authority is tainted with arbitrariness
and unfairness.
Consideration of arguments advanced with respect to
authorisation of the petitioner to submit Bid on behalf of
the company:
7. In paragraphs 7 and 8 of the counter affidavit filed by
the opposite party Nos.1 to 3, it is pleaded that the
petitioner having failed to submit the ―supporting
document‖ evincing that the executant of the Power of
Attorney was duly authorised by a valid Board
Resolution, the decision for rejection of the Bid of the
petitioner cannot be faulted with. Quoad ultra, it is
argued by Sri Rudra Prasad Kar, learned Senior
Advocate that there is no requirement to submit the said
document along with the Bid, unless the same is asked
for at a subsequent date if need be.
7.1. ―Extract of Board Resolution not attached‖ is the
impugned reason for rejection of the Bid of the petitioner
as is manifested from Annexure-4.
W.P.(C) No.22483 of 2025 Page 35 of 62
7.2. Upon scrutiny of papers enclosed to the writ petition it is
transpired that:
a. Board of Directors of Konkan Railway Corporation
Ltd., a Government of India Undertaking under
Section 2(45) of the Companies Act, 2013, in its
Meeting held on 29.05.2024 (Annexure-3) delegated
powers to Sri Santosh Kumar Jha, Chairman and
Managing Director, which inter alia reflects as
follows:
―31. Lastly the Corporation hereby expressly
declares that this Power of Attorney and the
powers and authorities hereby given shall
remain in full force and effect until notice of the
revocation of these presents shall be received
by the Attorney.
The Board of Directors unanimously given
authority to the Chairman to decide the matters
out of the above matters that could be
delegated to the Managing Director and the
Chairman will convey the decision at the
earliest to the Managing Director and the same
would be placed for information of the directors
in the forthcoming Board meeting. Further the
Board of Directors authorized Managing
Director to sub-delegate any of the powers
so entrusted to him to any officer or
officers of the company as per the article
68(2) of the Articles of Association.‖W.P.(C) No.22483 of 2025 Page 36 of 62
b. Having thus vested with the power of sub-
delegation, ―Power of Attorney for signing of Bid‖
was executed by said Chairman and Managing
Director, Konkan Railway Corporation Ltd., in
favour of Sri Upendra Shridhar Shendye on
21.02.2025, which is available with the Bid
document at Annexure-2.
c. Being thus authorised Sri Upendra Shridhar
Shendye is stated to have signed the Bid and
submitted for and on behalf of the petitioner-
Company.
7.3. To examine whether there was any necessity to furnish
the ―Extract of Board Resolution‖ along with the Bid
document, reference can be had to relevant clause of
Section 2 of the RfP dealing with ―Instructions to
Bidders‖, which reads as follows:
―Section 2
Instructions to BiddersA. GENERAL
2.1. General terms of Bidding
***
2.1.4 The Bid shall be furnished in the format
exactly as per Appendix-IA & IB i.e. Technical
Bid as per Appendix IA and Financial Bid as
per Appendix IB and it shall be signed by the
Bidder’s authorised signatory. The Bid Price shall
W.P.(C) No.22483 of 2025 Page 37 of 62
be quoted online at the e-procurement platform of the
Authority at [https://www.ireps.gov.in (the ‗IREPS
Website’)]. In the event of any difference between
figures and words, the amount indicated in words
shall be taken into account.
2.1.5 The Bidder should submit a Power of Attorney
as per the format at Appendix-II, authorising
the signatory of the Bid to commit the Bidder.
2.1.6 In case the Bidder is a Consortium/Joint Venture,
the Members thereof should furnish a Power of
Attorney in favour of the Lead Member in the format
at Appendix III and Joint Bidding Agreement in the
format at Appendix-IV.
2.1.7 Any condition or qualification or any other
stipulation contained in the Bid shall render the Bid
liable to rejection as a non-responsive Bid.
2.1.8 The Bid and all communications in relation to or
concerning the Bidding Documents and the Bid shall
be in English language.‖7.4. It is not disputed by the opposite parties that as per
Clause 2.1.5 as stated above, the petitioner submitted
Power of Attorney as specified in the format given at
Appendix-II, authorising the signatory of the Bid to
commit the Bidder. The format of Power of Attorney for
signing the Bid vide Appendix-II is as follows:
―Appendix-II
Format for Power of Attorney for signing of Bid
(Refer Clause 2.1.5)Know all men by these presents,
W.P.(C) No.22483 of 2025 Page 38 of 62
We ………………………… (name of the firm and address of
the registered office) do hereby irrevocably constitute,
nominate, appoint and authorize Mr./Ms. (name),
…………………… son/daughter/wife of ……………………
and presently residing at …………………, who is presently
employed with us/the Lead Member of our
{Consortium/Joint Venture} and holding the position of
…………………, as our true and lawful attorney
(hereinafter referred to as the “Attorney”) to do in our
name and on our behalf, all such acts, deeds and things
as are necessary or required in connection with or
incidental to submission of our Bid for the Project
proposed or being developed by the [Railways] (the
‗Authority’) including but not limited to signing and
submission of all Bids and other documents and writings,
participate in Pre-Bid and other conferences and providing
information/responses to the Authority, representing us in
all matters before the Authority, signing and execution of
all contracts including the EPC agreement and
undertakings consequent to acceptance of our Bid, and
generally dealing with the Authority in all matters in
connection with or relating to or arising out of our Bid for
the said Project and/or upon award thereof to us and/or
until the entering into of the EPC Contract with the
Authority.
AND we hereby agree to ratify and confirm and do hereby
ratify and confirm all acts, deeds and things done or
caused to be done by our said Attorney pursuant to and
in exercise of the powers conferred by this Power of
Attorney and that all acts, deeds and things done by our
said Attorney in exercise of the powers hereby conferred
shall and shall always be deemed to have been done by
us.
W.P.(C) No.22483 of 2025 Page 39 of 62
IN WITNESS WHEREOF we, ……………….. the above named
principal have executed this Power of Attorney on this
day of ……2…………
For ………………………………
(Signature, name, designation and address)
of person authorized by Board Resolution
(in case of Firm/Company)/
partner in case of Partnership FirmWitnesses:
1.
2.
Accepted
…………………
(Signature)
(Name, Title and Address of the Attorney)
(Notarized)
Person identified by me/
personally appeared before me/
Attested/ Authenticated*
(*Notary to specify as applicable)
(Signature Name and Address of the Notary)
Seal of the Notary
Registration No. of the Notary
Date: …………………
Notes:
• The mode of execution of the Power of Attorney
should be in accordance with the procedure, if any,W.P.(C) No.22483 of 2025 Page 40 of 62
laid down by the applicable law and the charter
documents of the executant(s) and when it is so
required, the same should be under common seal
affixed in accordance with the required procedure.
• Wherever required, the Bidder should submit
for verification the extract of the charter
documents and documents such as a board or
shareholders’ resolution/power of attorney in
favour of the person executing this Power of
Attorney for the delegation of power hereunder
on behalf of the Bidder.
• For a Power of Attorney executed and issued
overseas, the document will also have to be
legalized by the Indian Embassy and notarized in
the jurisdiction where the Power of Attorney is being
issued. However, the Power of Attorney provided by
Bidders from countries that have signed the Hague
Legislation Convention 1961 are not required to be
legalized by the Indian Embassy if it carries a
conforming Appostille certificate.
Note: Paragraphs in curly parenthesis may be omitted by
the Bidder, if not applicable to it, and ‘Deleted’ may
be indicated there.‖7.5. It may be highlighted that second point of Note
appended to said Appendix-II employed the words
―Wherever required‖ which is of significance. Black’s Law
Dictionary, Revised Fourth Edition, 1968, St. Paul,
Minn., West Publishing Co. gives the meaning of
―wherever‖ as ―As often as. Moore Vrs. Johnson, 85‖. InW.P.(C) No.22483 of 2025 Page 41 of 62
the said dictionary, the word ―required‖ is given to
understand as follows:
―To direct, order, demand, instruct, command, claim,
compel, request, need, exact. Beakey Vrs. Knutson, 90 Or.
574, 174 P. 1149, 1150. Union Mut. Ins. Co. Vrs. Page, 65
Okl. 101, 164 P. 116, 117, L.R.A.1918C, 1; State ex rel.
Frohmiller Vrs. Hendrix, 59 Ariz. 184, 124 P.2d 768, 773.‖7.6. The expression ―wherever required‖ in the context of Bid
document is, thus, a conditional one. In the above
perspective, said expression would mean as a
―contingency clause‖; implying thereby that the
submission of charter documents, Board Resolution or
Powers of Attorney is not a sine qua non for uploading
along with the submission of Bid, but the same would be
required to be furnished at the time of demand or
request being made for its production if it is required for
verification.
7.7. Such a perception is fortified by looking at other clauses
forming part of the RfP. In Section 2 of the RfP the
following are the requirements:
―2.11 Documents comprising Technical and Financial
Bid.–
2.11.1 The Bidder shall first upload all the project
details including Technical Capacity, Financial
Capacity, Net Worth details, turnover details, and all
other details required in this RFP for technical
qualification. The Bidder shall ensure that all theW.P.(C) No.22483 of 2025 Page 42 of 62
details are updated as on the due date of
submission of this Bid.
The Bidder shall then apply for the RfP on the
website https:// ireos.gov.in by submitting the
documents mentioned below along with the
supporting documents which shall comprise of the
Technical Bid on the e-portal:
(a) Appendix-IA including Annexure I-VII and
supporting certificates/documents.
(b) Power of Attorney for signing the Bid as
per the format at Appendix-II;
(c) if applicable, Power of Attorney for Lead
Member of Consortium/Joint Venture as per
the format at Appendix-III;
(d) if applicable. Joint Bidding Agreement for
Consortium/Joint Venture as per the format at
Appendix-IV;
(e) An undertaking from the person having
Power of Attorney referred to in sub-clause
(b) above that they agree and abide by the
Bid Documents uploaded by Authority and
amendments uploaded, if any; and
(f) copy of Memorandum and Articles of
Association, if the Bidder is a body corporate,
and if a partnership then a copy of its
partnership deed.
(g) Copies of duly audited complete annual
accounts of the Bidder or of each member (in
case of Joint Venture/Consortium) for
preceding 5 years.
W.P.(C) No.22483 of 2025 Page 43 of 62
(h) Appendix-IB shall be submitted online through
e-procurement portal on or before 12:00.hrs
1ST on ………………..
2.11.2 The Bidder shall submit the following
documents physically within time as mentioned in
Clause 1.3:
(a) Original Power of Attorney for signing the Bid
as per format at Appendix-II;
(b) if applicable, Original Power of Attorney for
Lead Member of Consortium/Joint Venture as
per the format at Appendix-III;
(c) if applicable, Original Joint Bidding Agreement
for Consortium/Joint Venture as per the format
at Appendix-IV;
(d) Bid Security, if submitted as Bank Guarantee,
in the format at Appendix-VII from a Bank.‖7.8. It is patent from the above clauses that ―supporting
certificates/documents‖ of Appendix-IA including
Annexure-I-VII are required to be submitted while
uploading the Bid document. However, the same does
not include furnishing of extract of Board Resolution
relating to the Power of Attorney for signing the Bid. The
bidder is supposed to furnish ―an undertaking from the
person having Power of Attorney referred to in sub-clause
(b) above that they agree and abide by the Bid Documents
uploaded by Authority and amendments uploaded‖. In
addition to this, Power of Attorney for signing the Bid ―as
per the format at Appendix-II‖ is only the requirement
W.P.(C) No.22483 of 2025 Page 44 of 62
for submission, which the petitioner had enclosed to the
Bid. The Bidder is required to submit document
―physically‖ ―within the time as mentioned in clause
1.3‖. This clause read along side Note appended to the
Appendix-II gives impression that in the event it is
required/demanded/requested/ordered/directed the
document is required to be submitted. Hence, save and
except Power of Attorney for signing the Bid ―as per the
format at Appendix-II‖ there is no requirement anywhere
to attach the Board Resolution to the Bid document.
7.9. From the discussion made in the foregoing paragraphs,
it is, therefore, perceived that the Bid document being
signed by the duly authorised person, the same could
not have been rejected on the specious plea assigned at
Annexure-4. Hence the reason that ―Extract of Board
Resolution not attached‖ is de hors tender condition and
the Tendering Authority transgressed its power in taking
decision to reject the Bid of the petitioner at technical
evaluation stage.
7.10. The learned Deputy Solicitor General of India and the
learned Senior Advocate and the learned Advocate for
the respective opposite parties made valiant attempt to
justify the rejection of the Bid of the petitioner by
referring to paragraphs 7 and 14 of the counter affidavit
that ―the bidder should submit for verification the extract
of the charter documents and documents such as a Board
W.P.(C) No.22483 of 2025 Page 45 of 62
or Shareholders’ Resolution/Power of Attorney in favour
of the person executing this Power of Attorney for the
delegation of power hereunder on behalf of the Bidder,
evidencing the authority vested in the signatory of the
said Power of Attorney‖. From the narration of factual
matrix of the case in the foregoing paragraphs it is
discernible that the signatory of the Bid documents had
the competence to sign and he was duly authorised to
sign the Bid document. However, such is not the reason
assigned for rejection of Bid. Only reason which is
assigned is ―Extract of Board Resolution not attached‖. It
is strenuously argued by Sri Rudra Prasad Kar, learned
Senior Advocate, to which this Court subscribes, that
additional grounds/reasons not specified in the RfP
cannot be subsequently pressed into service to justify
rejection of Bid. A new objection has been set out to
justify the action for rejection of the Bid, which is
impermissible in the eye of law.
7.11. In this regard, regard may be had to a Judgment dated
04.02.2026 rendered by this Court in Jalaram Transport
Vrs. Mahanadi Coalfields Limited, W.P.(C) No.37718 of
2023, wherein at paragraph 8.4 the following is stated:
―Apart from the same, we notice that the impugned
demand does not reflect any grounds while imposing the
penalty except the shortfall amount required to be
recovered. It has been highlighted in the Constitution
Bench decision rendered in Mohinder Singh Gill Vrs. The
W.P.(C) No.22483 of 2025 Page 46 of 62
Chief Election Commissioner, New Delhi, (1978) 1 SCC
405 that it is not open to the authorities to take a different
route, to what has not been taken in the administrative
order nor can be improved by filing a counter affidavit
before Court. The authority cannot wriggle out of the
grounds taken in the impugned action and ultimately
taking a different route to justify such action was
deprecated.‖7.12. In Kimberley Club Vrs. Krishi Utpadan Mandi Parishad,
2025 SCC OnLine SC 2323, it is stated thus:
―Given these circumstances, we are loathe to permit the
1st respondent-Mandi Parishad to justify the rejection of
appellant’s technical bid on such additional ground
belatedly taken in the counter affidavit. There is no cavil
that an order of rejection must be sustained on grounds
stated therein and additional grounds cannot be
subsequently pressed into service to justify such rejection.
Mohinder Singh Gill Vrs. The Chief Election Commissioner,
New Delhi, (1978) 1 SCC 405 [Para 8]‖7.13. Apart from the above, in the case of Gayatri-DLF
Consortium Vrs. National Highways Authority, 2011 SCC
OnLine Del 1247 it is held as follows:
―8. In the aforesaid factual matrix two questions arise
for consideration:
i. Whether the Power of Attorney submitted by
the petitioners was defective and/or alleged
defect was of such a nature which could be
termed as a technical irregularity or was it
fatal to the bid?; andW.P.(C) No.22483 of 2025 Page 47 of 62
ii. Whether respondent No. 1 were entitled to
encash the bank guarantee for the bid security
amount treating the bid of the petitioner as
non-responsive and/or whether the clauses
contained in the RFP in this behalf can be said
to be unconscionable or penal?
***
16. The Power of Attorney submitted with the bid of the
petitioners has been placed on record. There is no
dispute that it is in the proper format as per
Appendix IV. It is also relevant to note that as
per Clause 2.1.10 if the bidder is a consortium
the members thereof are required to furnish a
Power of Attorney “in favour of the Lead
Member” as per Appendix-IV. The manner of
wording of the Power of Attorney also shows that
other members of the consortium whose description
are given and are collectively called as the
‗Principals’ irrevocably designate, nominate,
constitute, appoint and authorize one of the
members of the consortium whose description is
given therein as the Lead Member to be true and
lawful attorney. Thus, it is in the nature of a
unilateral document by one set of consortium
members in favour of the Lead Member. In the
present case the Lead Member is petitioner No. 2.
The Power of Attorney was executed by petitioner
No. 3 in favour of petitioner No. 2, there being only
two members of the consortium. At the designated
place where Executants have to sign the expression
used is ―(Executants) (To be executed by all the
Members of the Consortium)‖.
***
W.P.(C) No.22483 of 2025 Page 48 of 62
24. We have to also keep in mind the notes given at
the base of the format of the Power of Attorney
which prescribe that the mode of execution of
the Power of Attorney should be in accordance
with the procedure, if any, laid down by the
applicable law. It is in this context that the
Power of Attorney Act has been referred to
aforesaid.
***
28. We may notice that in Poddar Steel Corporation Vrs.
Ganesh Engineering Works, (1991) 3 SCC 273 it was
held that deviations from non-essential or
ancillary/ subsidiary requirement being a
minor technical irregularity can be waived. In
the present case, however, there is not even a minor
technical irregularity which can be stated to arise.
29. The declaration of the bid of the petitioners as non-
responsive on the aforesaid ground is, thus,
completely illegal and set aside. However, the
petitioners did not claim a right to award of the
contract on the first date of hearing itself. Thus, the
only question is the ramification of the same on the
demand of 5 per cent of the Bid Security Amount on
account of the bid of the petitioners having been
declared as non-responsive which would certainly
not arise in view of our finding that the bid is
responsive.‖
7.14. Since it is held that there was no necessity to attach
―Extract of Board Resolution‖ to the Bid, this Court
desists from addressing the additional ground by way of
contention set out by the opposite parties that ―the
W.P.(C) No.22483 of 2025 Page 49 of 62
petitioner failed to submit any supporting document
evidencing that the executant of Power of Attorney
submitted under Appendix-II was duly authorised by a
valid Board Resolution‖ and there was failure ―to
establish that the executant of the Power of Attorney
possessed the requisite authority to execute the same‖.
7.15. The reason that failure to attach the ―Extract of Board
Resolution‖ cannot be fatal for consideration of the
technical bid of the petitioner inasmuch as the signatory
to the Bid had furnished the Power of Attorney as per
the format specified in Appendix-II. It is not the
requirement to attach such document. The Bid of the
petitioner, therefore, cannot be said to be non-
responsive.
7.16. Clause 2.16 of Section 2 of the RfP (Instructions to
Bidders) deals with ―Rejection of Bids‖ in the following
terms:
―2.16 Rejection of Bids.--
2.16.1 Notwithstanding anything contained in this
RFP, the Authority reserves the right to reject
any Bid and to annul the Bidding Process and
reject all Bids at any time without any liability
or any obligation for such acceptance, rejection
or annulment, and without assigning any
reasons thereof. In the event that the Authority
rejects or annuls all the Bids, it may, in its
W.P.(C) No.22483 of 2025 Page 50 of 62
discretion, invite all eligible Bidders to submit
fresh Bids hereunder.
2.16.2 The Authority reserves the right not to proceed
with the Bidding Process at any time, without
notice or liability, and to reject any Bid without
assigning any reasons.
2.17 ***
2.18 ***
2.19 Correspondence with the Bidder.–
Save and except as provided in this RFP, the
Authority shall not entertain any
correspondence with any Bidder in relation to
acceptance or rejection of any Bid.‖
7.17. Clause 2.1.7 read with Clause 2.16 makes it abundantly
clear that in the event of non-furnishing of ―supporting
documents‖ and the Power of Attorney is not in specified
format as given at Appendix-II, in terms of Clause 2.15,
it would invite the Bid to be declared non-responsive and
thereby it would entail rejection of the Bid. Nevertheless,
it is not the case of the opposite party Nos.1 to 3 that the
petitioner did not furnish the Power of Attorney in the
format specified at Appendix-II.
7.18. Referring to Clause 2.19 extracted supra Sri Rudra
Prasad Kar, learned Senior Advocate submitted that it
would not be in the imagination of any bidder to assume
what was in the minds of the Tendering Authority.
W.P.(C) No.22483 of 2025 Page 51 of 62
Having submitted the requisite documents as required
under the conditions stipulated in the RfP, such a clause
would not come to assist the case of the opposite parties;
rather had the case been improper documents being
detected, such a clause could be invoked by the
authority concerned. Requirement to submit ―supporting
documents‖ is restricted to Appendix-IA and Annexures-
I-VII, but it cannot be said to have extended to a
document submitted in consonance with format
specified in Appendix-II. This Court, as discussed above,
finds force in such submission and would wish to have
regard to the following observation of the Hon’ble
Supreme Court of India rendered in the case of Maha
Mineral Mining & Beneficiation Pvt. Ltd. Vrs. Madhya
Pradesh Power Generating Co. Ltd., (2025) 9 SCR 528:
―3. As NN Global Mercantile Pvt. Ltd. could not furnish
earnest money deposit, only the appellant and the
2nd respondent remained in the fray. On
04.07.2024, the Tender Evaluation Committee while
referring to Clause 5(D)2 of the NIT rejected the
appellant’s technical bid holding as follows-
2 Clause 5(D):
―Past Experience: Copies of successfully executed orders (including part executed)
in the name of bidder for same or similar work {similar work means coal lifting
from mines of CIL subsidiaries or SCCL area, coal beneficiation (through wet
process), movement of washed coal by road from washery to railway siding and
movement of washed coal through Railways with experience in liaisoning with
Railways/ CIL subsidiaries or SCCL area, i.e., arranging rakes, dispatches coal
from own or leased Private siding or Goods shed Railways siding by loading of
washed coal into railway wagons through own arrangement with monitoring the
rake movement etc. up to the destination Power house}. Bidder is allowed to use
past experience of their previous Consortium or JV (proportionate to its share in
that consortium if defined in the Consortium Agreement, otherwise, lead partner if
W.P.(C) No.22483 of 2025 Page 52 of 62
‗As per Clause No. 5(D) ―Past experience criteria‖ of
NIT, bidder is allowed to use past experience of their
previous Consortium or JV (proportionate to its share
in that consortium if defined in the Consortium
Agreement, otherwise, lead partner if not defined in
the Consortium) to meet out the past experience
criteria of the tender. The firm has used the
credentials of their consortium M/s Hind-Maha-
Mineral LLP for meeting out the past experience
criteria. However, Agreement of the Consortium/ JV
is not submitted to substantiate the share of the
bidder in that consortium. Bidder is disqualified due
to non-submission of credentials as per Clause No.
(5)D of the NIT.’***
14. First, let us consider whether the decision of the
High Court to uphold the appellant’s disqualification
under Clause 5(D) for not furnishing JV agreement is
justified or not?
15. Clause 5(D) of the NIT required the bidders to furnish
documents relating to past-experience in similar
work. The clause further provided that ―bidder is
allowed to use past experience of their previousnot defined in the Consortium) to meet out the past experience criteria of the
tender. The order copies should indicate the above w/ork for 4 Lakh MT (4,00,000
MT) quantity or more in stale Owned Power Generating Companies or Other
Captive Power Utilities of PSU or NTPC or Govt. Industries / Departments or Semi
Govt. Industries / Departments or PSUs or Nodal Agency of any PSUs in India
executed in last five years ending with initial date of opening of bid are to be
uploaded. This order execution should be within a period of twelve (12) months. It
may be through single or multiple orders (in parallel), but in case of multiple
orders; these should be within a single span of time period of twelve (12) months.
1. The work execution certificate by the customers along-with self-attested
un-priced copies of aforesaid work order(s) should be submitted.
2. For Past performance certificates – If worked with MPEB/ MPSEB/
MPPGCL in past for similar work, then it is mandatory to provide
Satisfactory Performance Certificate for the same. Failing this, the offer
shall not be considered.‖
W.P.(C) No.22483 of 2025 Page 53 of 62
Consortium or JV (proportionate to its share in that
consortium if defined in the Consortium Agreement,
otherwise, lead partner if not defined in the
Consortium) to meet out the past experience criteria
of the tender.‖ Sub-clause 1 and 2 of the said clause
stated the following documents are to be submitted:
‗1. The work execution certificate by the customers
along-with self-attested un-priced copies of
aforesaid work order(s) should be submitted.
2. For Past performance certificates – If worked
with MPEB/ MPSEB/ MPPGCL in past for
similar work, then it is mandatory to provide
Satisfactory Performance Certificate for the
same. Failing this, the offer shall not be
considered.’Appellants had submitted a work execution
certificate from MSMC along with its bid to support
its past-experience as a 45% proportionate member
of a consortium/JV for similar work executed at
WCL in the last five years. The relevant portion of
the certificate reads as follows:***
16. The aforesaid certificate clearly demonstrates that
the appellant had 45% share in a JV consortium
namely M/s Hind Maha Mineral LLP and had
successfully executed work of similar nature as
required by Clause 5(D) of the NIT***
18. Though the submission of a JV agreement has not
been expressly stated in the aforesaid clause, the
respondents argue that the proportionate share of a
bidder in a consortium/JV can only be establishedW.P.(C) No.22483 of 2025 Page 54 of 62
through production of the JV agreement itself and
the words used in the contract/tender document
must be read in a purposive manner so that no part
of the document is rendered superfluous.
Respondents further contend appellant had
submitted its bid on the last day and it was open to
the appellant during the previous calls to seek
clarification whether submission of JV agreement
was mandatory. Appellant did not do so and
intentionally suppressed the JV agreement while
submitting its bid to avoid disclosure of inconvenient
clauses in the JV agreement. This is evident from the
appellant’s conduct as it had after submission of
bid, emailed a purported JV agreement dated
06.09.2019, whereas the JV agreement mentioned
in the certificate was a different one. Be that as it
may, the subsequent submission of a JV agreement
could not have been considered in light of Clause 8.1
read with circular dated 29.11.2023.
19. We are unable to accept such arguments for the
following reasons:
(i) Clause 5(D) merely states the appellant would
be entitled to use the past-experience of a
previous consortium/JV in the event its
proportionate share is defined in the JV
agreement failing which the past-experience
shall be attributed to the lead partner. The
clause does not mandate the submission of the
JV agreement itself to satisfy such criteria.
Appellant had relied on the work execution
certificate issued by MSMC which in no
uncertain terms states the appellant had 45%
share in the JV consortium named M/s Hind
Maha Mineral LLP and successfully executed
W.P.(C) No.22483 of 2025 Page 55 of 62
similar work of a volume larger than required
under the clause. The certificate also
mentioned the JV agreement had been
submitted and was in the custody of MSMC.
(ii) It is nobody’s case that the 1st respondent had
doubted the authenticity of the certificate but
had disqualified the appellant on the ground
that Clause 5(D) mandated furnishing of the JV
agreement alone and nothing else to prove
proportionate share in a previous JV in order to
use such experience.
(iii) Conditions in a NIT must be clear and
unambiguous. In the event the tendering
authority insisted on furnishing of the JV
agreement alone and no other document as
proof of the proportionate share of the bidder to
avail previous JV experience as prior
qualification, it should have been spelt out
clearly in the NIT. Having not done so, the 1st
respondent cannot thrust the responsibility on
the appellant to seek clarification and submit
such document. As Clause 5(D) does not
require submission of JV agreement itself to
establish proportionate share in the JV whose
past-experience the bidder is seeking to use,
nonsubmission of such JV cannot be a ground
to disqualify the bidder for submission of
incomplete documents in terms of Clause 8.1 of
NIT. Admittedly, the appellant had submitted
the work execution certificate, as required
under clause 5(D), which also unequivocally
sets out its proportionate share in the JV
agreement whose prior experience it had relied
on.
W.P.(C) No.22483 of 2025 Page 56 of 62
***
20. In these circumstances, we are inclined to hold the
1st respondent acted contrary to the terms of the NIT
and unfairly rejected the appellant’s bid for non-
production of JV agreement although Clause 5(D) did
not prescribe production of such agreement as
mandatory to rely on past-experience of such
consortium in which the bidder had a defined
proportionate share.
21. Accordingly, decision of the Committee, upheld by
the High Court as per Clause 5(D) is liable to be set
aside.‖
7.19. The Hon’ble Supreme Court of India having followed
above decision in Kimberley Club Vrs. Krishi Utpadan
Mandi Parishad, 2025 SCC OnLine SC 2323, the
argument of learned Senior Advocate proceeded further
to indicate that if the authority wanted any document(s)
to be uploaded or furnished/submitted, it ought to have
said so in unequivocal terms.
7.20. Conjoint reading of above clauses with Clause 2.11.1,
Clause 2.11.2 and Clause 1.3 would unambiguously
lead to conclude that except Appendix-IA including
Annexure-I-VII, nothing is forthcoming to suggest that
―supporting document‖ showing ―Power of Attorney for
signing the Bid‖ is to be submitted while uploading the
Bid; nonetheless, said document is to be submitted in
the specified format as given at Appendix-II. It remained
uncontroverted by the opposite parties that the
W.P.(C) No.22483 of 2025 Page 57 of 62
petitioner has submitted such Power of Attorney in the
specified format. Had the document like Board
Resolution been required for ―verification‖ by the
Tendering Authority, the same could have been asked for
production ―physically within the time as mentioned in
Clause 1.3‖ by adhering to Clause 2.11.2 of the RfP. The
―Original Power of Attorney for signing the Bid as per
format at Appendix-II‖ is to be submitted ―physically
within the time as mentioned in Clause 1.3‖. Clear
intention of the authority is ex facie manifest from the
Notes appended to the Appendix-II. The words ―wherever
required‖ used therein is to be understood in the said
context. Save and except such manner of presenting the
documents, nowhere it is made mandatory for
attachment of ―Extract of Board Resolution‖ to the Bid.
The decision of the authority is inexplicable and the
rejection of Bid at technical evaluation stage on the
ground stated at Annexure-4 cannot withstand judicial
scrutiny. The contention of learned Senior Advocate for
the petitioner that submission of Resolution of Board is
not a sine qua non condition deserves to be acceded to.
Revenue loss:
8. Much stress is laid by the opposite party Nos.1 to 3 on
the contents of paragraph 28 of counter affidavit. It is
submitted that delay is caused for commencement of the
work on account of the petitioner, a Government of India
W.P.(C) No.22483 of 2025 Page 58 of 62
Undertaking, in pursuing the matter before this Court;
thereby heavy revenue loss would ensue. Apropos such
contention Sri Rudra Prasad Kar, learned Senior
Advocate would submit that the arbitrary decision and
illogical reason assigning non-attachment of ―Extract of
Board Resolution‖ which is not contemplated under the
RfP are the causes for the delay attributable to the
Tendering Authority. In furtherance to such plea, he
would urge that the petitioner has quoted around Rs.42
crores less than the estimated cost of around Rs.291
crores. He has taken this Court to have a glance at
Tabulation Statement of Financial Bids (Annexure-5
enclosed with writ petition).
8.1. A bare perusal of said document would reveal that the
opposite party No.4-IRCON-JPWIPL JV (declared as ―L-
1‖) quoted the Bid Amount at Rs.375,49,16,820.00. In
the representation dated 10.08.2025 (Annexure-6) the
petitioner while requesting the authority to review the
decision of rejecting its Technical Bid on 07.08.2025,
clarified that it quoted Bid value at Rs.333.15 crores. It
is thus emphasised that having expertise in the field,
and quoted much less price than the estimated cost as
well as the price quoted by L-1 bidder, the contention of
the learned Deputy Solicitor General of India would be
contrary to material on record. By not considering the
Financial Bid of the petitioner and rejecting the Bid on a
W.P.(C) No.22483 of 2025 Page 59 of 62
non-existing ground at technical evaluation stage would
demonstrate that the revenue loss has been caused by
such arbitrary action and unsolicited decision of the
Tendering Authority.
Conclusion:
9. Having discussed the gamut of the factual matrix
obtained in the case coupled with legal perspective on
the subject-matter, it is held that:
i. The writ Court is not prevented or interdicted from
exercising the power of judicial review in the
matters relating to tenders qua Government and
Public Sector Undertakings/Government of India
Enterprises.
ii. To require a document to be furnished as a
supporting evidence, the Tendering Authority is
required to spell out the same in specific
unequivocal terms; in absence of which failure to
enclose such document would not entail rejection
of Bid;
iii. Mandatory conditions are required to be explicitly
specified in the RfP;
iv. The reason assigned to reject the Bid cannot
supported with the additional explanation by the
opposite parties;
W.P.(C) No.22483 of 2025 Page 60 of 62
v. The reason ascribed for rejection of the Bid should
be a ground mentioned in the RfP. While examining
the propriety of decision making process of the
Tendering Authority, it is impermissible to travel
beyond the reasons given to disqualify the bidder
(petitioner).
9.1. In the instant case there is no iota of evidence to suggest
that in absence of non-furnishing of Extract of Board
Resolution would lead to rejection of the Bid at technical
evaluation stage. Since there is nothing placed on record
by the opposite party Nos.1 to 3 to demonstrate that the
petitioner failed to furnish Power of Attorney authorising
him to sign the Bid in the format specified in Appendix-II
with reference to Clause 2.1.5 of RfP, the reason for
rejection of Bid that ―Extract of Board Resolution not
attached‖ cannot be sustained.
9.2. Having adverted to each point of argument advanced by
the counsel for the respective parties, this Court is of the
considered view that the decision making process of the
Tendering Authority is tainted with arbitrariness and
without due application of conscientious mind.
Therefore, the decision of the Tendering Authority
concerned on 08.08.2025 (Annexure-4) rejecting the Bid
of the petitioner at technical evaluation stage is set
aside.
W.P.(C) No.22483 of 2025 Page 61 of 62
9.3. Having set aside the decision to reject the Bid of the
petitioner (Annexure-4), the matter is, therefore,
remitted to the Tendering Authority by restoring it to
technical evaluation stage and the process shall now
continue from there.
9.4. The authority considering the Bid of the petitioner shall
evaluate the Bid along with others and take a decision
thereon within a period of six weeks from date.
10. With the aforesaid observations and directions, this writ
petition is disposed of and pending interlocutory
application(s), if any, is disposed of accordingly, but in
the circumstances, there shall be no order as to costs.
I agree.
(HARISH TANDON) (MURAHARI SRI RAMAN)
CHIEF JUSTICE JUDGE
Signature Not
Verified
Digitally Signed
Signed by: ASWINI KUMAR SETHY
Designation: Personal Assistant
(Secretary-in-charge) High Court of Orissa, Cuttack
Reason: Authentication
Location: ORISSA HIGH COURT, The 31st March, 2026/Bichi/MRS
CUTTACK
Date: 31-Mar-2026 19:56:15
W.P.(C) No.22483 of 2025 Page 62 of 62
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