Supreme Court upholds Delhi HC order quashing passport, visa service tenders

The Supreme Court on Monday refused to interfere with a Delhi High Court judgment that quashed tenders for outsourcing Consular, Passport and Visa (CPV) services at Indian missions in Abu Dhabi, Kuwait, Singapore and Canberra [Union Of India v. E Trav Tech].

A Bench of Chief Justice of India (CJI) Surya Kant and Justices Joymalya Bagchi and V Mohana dismissed the Union government's plea challenging the High Court ruling but issued directions to prevent any disruption of services at the concerned Indian missions.

"Having heard learned counsel for the parties, and taking note of the submissions before us, we are of the view that no impediment should be caused to the day-to-day functioning of the concerned establishments pending the completion of the fresh tender process," the Court observed.

The interim arrangements so permitted include engaging the existing successful L-1 bidders or any other agency, to ensure uninterrupted services while a fresh tender process is completed. 

"It shall be open to Engineers India Limited (EIL) and the Ministry of External Affairs (MEA) to make suitable interim arrangements for continuation of the subject services. Such interim arrangements may include engagement of the successful L-1 bidders whose performance has been found satisfactory, or any other agency, in such manner as EIL and the MEA may consider appropriate," the Court said.

It clarified that the interim arrangement would be purely temporary, create no special equities in favour of any party, and remain subject to the outcome of the fresh Request for Proposal (RFP) process. 

The Court also directed the Union Ministry of External Affairs (MEA) to complete the fresh tender exercise as expeditiously as possible, and preferably within three months.

The matter concerned the Delhi High Court's July 15 judgment which quased the technical evaluation process and the consequent award of the tender for CPV services at the four Indian missions.

The High Court had found that the evaluation suffered from arbitrariness, irrationality and lack of transparency. It, therefore, ordered the Central government to issue a fresh tender for CPV services at the four Indian missions within one month. In the meantime, it permitted the existing service providers to continue operating at the four missions until the fresh tender process is concluded.

The Central government challenged this ruling before the top court. Representing the Centre, Solicitor General Tushar Mehta today argued that the quashing of the tenders had disrupted embassy operations, forcing diplomatic staff to divert from their regular duties.

He defended the evaluation process, contending that bidders were assessed independently on their merits rather than through a rigid comparative marking formula.

However, the Bench questioned the government's departure from the tender conditions. CJI Kant remarked that the authorities had invited the High Court's July 15 order by not giving grounds.

Justice Bagchi added that the government could not have changed the terms of a tender document after the tender process had started.

"The High Court says that the terms governing the assessment of bids were not clearly reflected and that they created an unworkable situation. If that is so, then as per the law declared by this Court, you cannot change the terms of a tender document after the tender process has commenced," he observed.

SG Mehta went on to assert that there were reasons justifying the MEA's decision. He urged the top court to grant the government liberty to furnish these reasons before the High Court.

"We have reasons now we can show to the High Court. Please let us approach High Court and please give me liberty to come back here if not satisfied," SG Mehta said.

The Court, meanwhile, suggested that it could allow the continuation of interim arrangements at the four missions for now, until a new tender is floated and finalised.

"You (Centre) want to hire someone in the interim till you comply with HC order. (In) 1-2 months...," the Court said.

Representing certain bidders, Senior Advocates Kapil Sibal and Shyam Divan, said that they have no objection to such interim arrangements to ensure continuity of services.

The Court proceeded to uphold the Delhi High Court's decision to quash the outsourcing tenders, but ordered that interim arrangements can continue until a fresh tender process is concluded.

A team from Luthra and Luthra Law Offices led by partner Nakul Sachdeva and senior associate Shreyansh Rathi appeared for E Trav Tech.

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