India’s Supreme Court has dismissed the Union Government’s challenge to a Delhi High Court ruling that cancelled the tender process for outsourced consular, passport and visa services at Indian missions in Australia and three other countries.
A bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana refused to interfere with the High Court judgment covering the Indian missions in Canberra, Abu Dhabi, Kuwait and Singapore. The court directed the Ministry of External Affairs to conduct a fresh tender process as quickly as possible, preferably within three months.
The Supreme Court, however, modified the High Court’s directions to give the ministry greater flexibility to maintain services during the new tender process.
The MEA and Engineers India Limited may temporarily engage the successful L-1 contractors whose awards were set aside, provided their performance is satisfactory, continue with suitable existing arrangements, or appoint another agency considered capable of providing the services. An L-1 bidder is generally the lowest-priced bidder among those that have qualified through the technical assessment.
The court said any interim appointment would be temporary, would not create special rights in favour of the service provider and would remain subject to the result of the fresh tender process.
The ruling is potentially important for Australians and Indian Australians who have been unable to access routine outsourced Indian passport, visa and consular services since VFS Global announced a temporary suspension from July 1.
The court has now provided a clear legal pathway for the Indian government to appoint an interim operator and restore services without waiting for the entire tender process to be completed.
However, the judgment does not by itself reopen an application centre, restore cancelled appointments or confirm when passport, visa, OCI and other applications will again be accepted in Australia.
That will require an operational decision and public announcement from the Ministry of External Affairs, the High Commission of India in Canberra, India’s consulates or the agency selected to provide interim services.
Applicants should therefore not treat the court ruling as confirmation that normal services have already resumed. In practical terms, the legal obstacle to a temporary arrangement has been removed, but the responsibility now sits with the MEA to implement the order and tell the public where and when applications can be lodged.
During the Supreme Court hearing, Solicitor General Tushar Mehta, appearing for the Union Government, argued that the Delhi High Court had wrongly interfered with the tender evaluation.
He said the bids had been assessed according to the individual competence of each bidder and the different operational requirements of the four overseas missions. The government also offered to produce the original tender records that it said had previously been placed before the High Court in a sealed cover.
The Solicitor General argued that the cancellation had affected the functioning of Indian diplomatic missions, with officials being required to divert attention from their normal responsibilities to manage passport and visa services.
He sought permission to return to the Delhi High Court with additional reasons supporting the assessment process and indicated the government may again approach the Supreme Court if it remained dissatisfied.
The Supreme Court was not persuaded.
Chief Justice Surya Kant told the government:
“But you invited the High Court order by not giving grounds.”
Justice Bagchi also questioned whether the government was attempting to introduce an interpretation of the tender conditions after the assessment had already taken place. He observed that tender requirements could not be changed after the procurement process had commenced.
The case followed a July 15 judgment by Delhi High Court Justices Anil Kshetrapal and Shail Jain in seven petitions brought by unsuccessful bidders E Trav Tech Limited and Verasys Limited.
The companies had participated in tenders for outsourcing Consular, Passport and Visa services at the four Indian missions but were eliminated during the technical assessment because they failed to obtain the minimum qualifying score of 70 per cent.
E Trav received 62.2 marks for its Australian proposal, while Verasys received 61.25. Their financial bids were consequently excluded from the final assessment.
The companies challenged the scoring after the MEA disclosed a parameter-by-parameter breakdown of the marks following an earlier Supreme Court direction.
They argued that marks had been deducted without proper explanations, undisclosed comparative standards had been applied, and substantially similar proposals received different scores in different countries.
The Delhi High Court found that merely supplying numerical marks without explaining the reasons for deductions did not demonstrate proper consideration of the proposals or allow bidders to understand why they had been found deficient.
The High Court also rejected the argument that deficiencies may have been explained during oral presentations to the technical committees.
It said any shortcomings identified during presentations should have been recorded in the assessment documents, finding that the absence of contemporaneous reasons made the evaluation opaque and prevented meaningful scrutiny.
The judges found the process breached transparency requirements under India’s General Financial Rules and provisions of the tender requiring unsuccessful bidders to be informed why they had been disqualified.
The court concluded that the marks were affected by “arbitrariness, irrationality and lack of transparency”, making the evaluations unsustainable under Article 14 of the Indian Constitution. It cancelled the technical evaluations and the resulting contract awards.
The financial difference between the bids was also raised as a public-interest issue.
Court documents show E Trav said it had quoted a service fee of AUD 38 for the Australian contract, compared with the successful bid of AUD 114. Its proposed fees were also lower than the successful bids for Abu Dhabi, Kuwait and Singapore.
The High Court did not rule that E Trav was entitled to the contract simply because its price was lower. The company had still been required to pass the technical assessment.
The court instead found that excluding a lower-priced bidder through an arbitrary or unexplained technical evaluation could affect public finances and was therefore not merely a private commercial dispute between competing companies.
The High Court initially ordered the MEA to issue fresh requests for proposals within one month and permitted the existing incumbent providers to continue so the public would not face disruption.
The Supreme Court has maintained the requirement for a fresh and lawful procurement process but expanded the range of temporary arrangements available to the government. It has also given the MEA a broader three-month period to complete the process.
Senior advocates representing private parties told the Supreme Court they did not object to temporary arrangements being made to prevent interruptions to consular services.
The bench consequently placed continuity of public services at the centre of its modified order while ensuring that no interim provider gains an advantage in the new tender.
For applicants in Australia, the ruling is more useful than the earlier legal developments because it expressly empowers the ministry to act immediately.
The MEA does not need to wait three months before restoring services. It may engage an interim provider while the new tender is prepared, advertised, assessed and awarded.
But the court has given the government an option—not implemented the option on its behalf.
Until the High Commission, the consulates or an authorised service provider confirms that applications and appointments have resumed, Indian citizens needing passport renewals and Australians requiring regular visa services may continue to face uncertainty.
The Supreme Court has now settled the central legal dispute by allowing the Delhi High Court judgment to stand. The tender awards remain cancelled, the assessment must be conducted again, and the government cannot rely on unexplained scoring to preserve the earlier outcome.
The immediate test is no longer what the courts will decide. It is how quickly the Ministry of External Affairs uses the flexibility granted by the Supreme Court to restore accessible passport, visa and consular services in Australia.
Note: The Australia Today has reached out to both MEA and the High Commission of India; we will update the story as soon as we get a response.
Support our Journalism
No-nonsense journalism. No paywalls. Whether you’re in Australia, the UK, Canada, the USA, or India, you can support The Australia Today by taking a paid subscription via Patreon or donating via PayPal — and help keep honest, fearless journalism alive.
