SRINAGAR: The High Court of Jammu Kashmir and Ladakh has dismissed an intra-court appeal filed by a Jammu-based trading firm against an order allowing the Army to proceed with and finalise a defence tender for realignment works along stretches in the Naushera-Jhanger sector, holding that the challenged order was an interim direction and not a “judgment” appealable under Clause 12 of the Letters Patent.
A Division Bench comprising Justice Shahzad Azeem and Justice Sindhu Sharma, in its judgment pronounced on September 17, said the writ petition filed by M/s Jai Sukrala Trading Co. against its technical disqualification remains pending and that the court had not examined the merits of the allegations concerning the tender process.
The Bench made it clear that it had expressed no opinion on the merits of the writ petition and that all contentions of the parties would remain open for adjudication.
The dispute arose from nine parallel open tender enquiries floated by the 59 Engineer Regiment on June 17, 2026, for “Realignment of IAIOS/AOIS” at multiple stretches, including Naushera, Jhangar and Shiv Shakti to Cheetah, along with eight connected tenders.
Twelve bidders, including Jai Sukrala Trading Co., participated in the process.
The original bid submission and opening date was July 8. A corrigendum dated July 6, uploaded on July 7, subsequently altered certain tender conditions and required bidders to physically submit a sample of the “Solar Cube Generator-cum-Invertor” during technical evaluation. Failure to do so could result in rejection of the bid.
The deadline was subsequently extended.
Jai Sukrala Trading Co., a proprietorship concern engaged in supplying fencing, electrification, solar and allied structural stores and works to Army units functioning under 25 Infantry Division and 16 Corps, claimed that it had complied with the requirements within the extended period and appeared for the scheduled sample evaluation with representations from the original equipment manufacturer.
The firm alleged that no Technical Evaluation Committee was present on the relevant date, that no other bidder produced a sample in its presence and that its sample was examined by the Commanding Officer.
On July 29, however, the company was declared technically rejected in all nine tenders. The reasons cited included non-submission of BIS/ISO certificates, non-submission of the sample within the prescribed time, non-conformity of the sample and failure to establish that the offered product did not infringe the patent of a similar product.
The company subsequently submitted a representation on July 30, alleging, among other things, that the Technical Evaluation Committee had not been present on July 23 and that eight competing bidders had been cleared through a formulaic process.
It also raised allegations concerning one of the successful bidders and referred to an FIR and chargesheet relating to an alleged forged Army supply order involving the 107 Engineer Regiment.
The firm then approached the High Court through a writ petition seeking quashing of its rejection and the July 6 corrigendum, besides re-evaluation of its bid by a duly constituted Technical Evaluation Committee and opening of its financial bid.
On August 3, the Single Judge directed that opening of the financial bids be deferred until the next hearing.
The respondents subsequently informed the writ court that the financial bids had already been opened on July 29, that rate analysis was underway and that the appellant had itself withdrawn an offer after emerging as the lowest bidder in the 2024-25 financial year, which, according to the respondents, had caused operational delay and administrative difficulties.
On August 13, the Single Judge modified the earlier interim order and permitted the respondents to proceed with and finalise the tender process. However, the finalisation was made subject to the outcome of the writ petition, with a specific direction that the successful bidder would not claim equity merely on account of action taken pursuant to the order.
Jai Sukrala Trading Co. challenged that modification through the present Letters Patent Appeal.
The company argued that it was duly qualified and that its allegations concerning the tender process had not been rebutted. It also alleged irregularities in the clearance of the other eight bidders, including alleged use of a pooled sample, absence of independent BIS certification and other alleged deficiencies.
The appellant further alleged that two of the cleared bidders were husband and wife and that one faced a chargesheet. It characterised the July corrigendum, which altered the tender specifications shortly before the original bid deadline, as a tailored measure and alleged mala fides.
The Union of India and Army authorities opposed the appeal, maintaining that the financial bids had already been opened before the interim order of August 3 and that the appellant had been found technically non-responsive after evaluation against the tender conditions.
The respondents told the court that Clause 5.12 of Chapter 5 of the Defence Procurement Manual-2025 permits sample-evaluation criteria in justified cases with approval of the Competent Financial Authority. They maintained that the requirement had been followed and that the appellant had failed to submit the sample by the stipulated time of 9 am on July 23 and had also failed to meet mandatory sample parameters and standards.
The Division Bench noted that the Single Judge had treated the challenge to the technical evaluation as a serious but disputed issue that could not be conclusively determined at the interlocutory stage.
The Bench also took note of the operational nature of the work. The tender concerned realignment of IAIOS/AIOS on the Naushera-Jhanger border in the Area of Responsibility of 25 Infantry Division, following directions for operational readiness after “OP Sindoor”.
The Single Judge had recorded that 22.15 kilometres of the work had been executed during the preceding year and that another 6.20 kilometres in the Naushera sector along the Line of Control was planned for the current year.
The Division Bench agreed that the operational character of the procurement was relevant while considering whether the tender process should be halted at the interim stage.
It observed that the writ court had neither upheld nor quashed the July 29 rejection order or the July 6 corrigendum. Nor had it finally determined whether the appellant was technically qualified or disqualified.
The Bench said allegations regarding cartelisation, tailor-made specifications, absence of the Technical Evaluation Committee and discrimination among bidders had also not been finally determined.
According to the judgment, the Single Judge had only modified the earlier deferment order while expressly making finalisation of the tender subject to the outcome of the writ petition and preventing the successful bidder from claiming equity.
The Division Bench held that such an order did not finally determine any substantive right of the parties and therefore could not be treated as a “judgment” for the purpose of Clause 12 of the Letters Patent.
It said modification of an interim restraint was an ordinary part of interlocutory jurisdiction and that treating every such modification as an appealable judgment would effectively turn the Division Bench into a forum against every interim direction issued by the writ court.
The court also reiterated that judicial review of tender matters concerns the decision-making process rather than a re-evaluation of technical bids by the court. It held that courts do not sit as appellate authorities over Technical Evaluation Committees, particularly in contracts involving technical issues.
The Bench further observed that the private commercial interest of a bidder has to be considered against public interest in cases involving operational defence works.
Concluding that the August 13 order was a discretionary modification of an interim direction and not a judgment within the meaning of Clause 12, the Division Bench held the Letters Patent Appeal to be not maintainable and dismissed it.
The connected applications were also disposed of. The court directed that the record produced by the Deputy Solicitor General of India be returned.
The judgment, however, expressly leaves the substantive challenge by Jai Sukrala Trading Co. to its technical disqualification and the tender process open for determination in the pending writ petition.
