Page No.# 1/17 GAHC010040772026 2026:GAU-AS:8571 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1189/2026 SRI DEBEN DAS S/O- LATE JAMUNA DAS, R/O.- L.N.B. ROAD, WARD NO. 6, P.O.- NALBARI, P.S.- NALBARI, DISTRICT- NALBARI, ASSAM PROPRIETOR OF M/S SHIV ENTERPRISE, HAVING OFFICE AT L.N.B. ROAD, WARD NO. 6, NALBARI VERSUS THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, HEALTH AND FAMILY WELFARE DEPARTMENT, DISPUR, GUWAHATI-06. 2:THE DIRECTORATE OF MEDICAL EDUCATION REPRESENTED BY THE DIRECTOR SIX MILE JAYA NAGAR KHANAPARA GUWAHATI-22 ASSAM. 3:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-6. PIN-781006. 4:THE PRINCIPAL CUM CHIEF SUPERINTENDENT OF KOKRAJHAR MEDICAL COLLEGE AND HOSPITAL RANGALIKHATA PART-1 KOKRAJHAR ASSAM. PIN-783370 Page No.# 2/17 5:M/S SHREE GANESH TRADERS ADDRESS- BRINDABANHATI WARD NO. 9 P.O.- AND P.S.-BARPETA DISTRICT- BARPETA ASSAM. PIN-78130 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH For the Petitioner(s) : Mr. S.K. Goswami, Advocate For the Respondent(s) : Mr. H.K. Das, Sr. Advocate Mr. B. Gogoi, Addl. A.G. Mr. B. Deka, Advocate · Date on which Judgment was reserved : N/A · Date of Pronouncement of Judgment : 15.06.2026 · Whether the pronouncement is of the Operative Part of the Judgment : Yes · Whether the full Judgment has been Pronounced : NA JUDGMENT AND ORDER (ORAL) Heard Mr. S.K. Goswami, the learned counsel appearing on behalf of the Petitioner. Mr. B. Gogoi, the learned Additional Advocate General as well as the Standing Counsel for the Health and Family Welfare Department appears on behalf of the Respondent Nos. 1 to 4 and Mr. H.K. Das, the learned Senior Counsel assisted by Mr. B. Deka, the learned counsel appears on behalf of the Respondent No. 5. 2. The Petitioner herein has approached this Court challenging Page No.# 3/17 the decision of the Technical Evaluation Committee whereby the Petitioner's bid was held to be technically non-responsive. CONSPECTUS OF FACTS 3. The brief facts which led to the filing of the instant writ petition are that a Notice Inviting E-Tender dated 25.01.2026 was issued by the Principal, Kokrajhar Medical College and Hospital through the GeM Portal inviting bids for Annual Rate Contract on providing Healthcare Kitchen and Dietary Service. 4. The Petitioner, being interested, submitted his bid along with two other bidders. Out of the three bidders, the bids of two bidders were rejected, while the bid of the Respondent No. 5 was held to be technically responsive. Consequently, the financial evaluation was carried out, wherein the Respondent No. 5 was found to be the lowest bidder. It is under such circumstances, the Petitioner has approached this Court by filing the present writ petition. 5. The record reveals that this Court vide order dated 27.02.2026 issued notice and further observed that the Respondent Authorities shall not issue work order in favour of the Respondent No. 5 till the returnable date, if the work order had not already been issued. The interim order passed therein has subsequently been extended from Page No.# 4/17 time to time. 6. The Respondent No. 4 has filed an affidavit-in-opposition. In the said affidavit-in-opposition, justification has been provided as to why the Petitioner's bid was held to be technically non- responsive and why the bid of the Respondent No. 5 was held to be technically responsive. Annexure-G to the said affidavit-in- opposition is relevant, being the work order/contract issued on 24.02.2026, i.e., prior to the passing of the interim order dated 27.02.2026 by the learned Coordinate Bench of this Court. 7. The Respondent No. 5 has also filed an affidavit-in-opposition wherein it was averred that a formal GeM contract/work order dated 24.02.2026 was issued in its favour and that, subsequent thereto, the Respondent No. 5 paid the requisite fees. It was further mentioned that the Respondent No. 5 has been providing Healthcare Kitchen and Dietary Services at Kokrajhar Medical College and Hospital since March, 2026 in terms with the GeM contract dated 24.02.2026. 8. In the backdrop of the above facts as well as the pleadings, let this Court now consider the respective submissions made on behalf of the parties. Page No.# 5/17 SUBMISSIONS MADE BY THE LEARNED COUNSELS ON BEHALF OF THE PARTIES 9. Mr. S.K. Goswami, the learned counsel appearing on behalf of the Petitioner submitted that the Petitioner is a micro enterprise and had been providing similar services in various medical institutions, as would be apparent from the certificates collectively enclosed to the writ petition as Annexure-II. The learned counsel drew the attention of this Court to the Bid Document dated 25.01.2026, annexed to the writ petition as Annexure-V and submitted that the documents which were required to be submitted by a bidder have been specifically mentioned, i.e., the Experience Criteria, Bidder Turnover Certificate (Requested in ATC) and Additional Doc. 1 (Requested in ATC). The learned counsel further referred to Clause 4 of the Terms and Conditions of the Bid Document, which specifically deals with “Past Experience of Similar Services”. For appreciating the contention, Clause 4 is reproduced hereinbelow: “4. Past Experience of Similar Services: The bidder must have successfully executed/completed similar Services over the last three years i.e. the current financial year and the last three financial years (ending month of March prior to the bid opening):- 1. Three similar completed services costing not less than the amount Page No.# 6/17 equal to 40% (forty percent) of the estimated cost; or 2. Two similar completed services costing not less than the amount equal to 50% (fifty percent) of the estimated const; or 3. One similar completed service consting not less than the amount equal to 80% (eighty percent) of the estimated cost.” 10. It is the specific contention of the Petitioner that in terms with the above quoted Clause 4 of the Terms and Conditions of the Bid Document, a bidder must have successfully executed/completed similar Services over the last three years i.e. the current financial year and the last three financial years, (ending month of March prior to the bid opening). 11. Mr. S.K. Goswami, the learned counsel, therefore, submitted by drawing the attention of this Court to Annexure-II to the writ petition that the Petitioner satisfies the said eligibility criteria. The learned counsel further submitted that different criteria were subsequently evolved to hold the Petitioner's technical bid to be non-responsive, which is apparent from the Technical Evaluation carried out for the Petitioner with the following comments: “(i) Experience of 5 years in a 500 bedded health facility not found. Page No.# 7/17 (ii) Non-litigation certificate notarized not found.” 12. The learned counsel for the Petitioner submitted that the notarized non-litigation certificate not found is not an issue, inasmuch as the Respondent Authorities duly acknowledge that there was such a certificate. It is, therefore, the specific submission of the learned counsel appearing on behalf of the Petitioner that a different yardstick from what has been mentioned in the Bid Document, and more particularly at Clause 4, was employed to oust the Petitioner from the bidding process and as such, the action on the part of the respondents to hold that the Petitioner's bid was technically non-responsive is required to be interfered with. 13. The learned counsel for the Petitioner further referred to page No. 49 of the writ petition and submitted that three bidders had participated in the bidding process, out of whom two were held to be technically non-responsive. It is, therefore, the submission of the learned counsel that under such circumstances, the Respondent Authorities ought to have gone for a fresh bid, inasmuch as it lacked competitiveness. In that regard, the learned counsel drew the attention of this Court to Rule 24(20) of the Assam Public Procurement Rules, 2020 and submitted that the Page No.# 8/17 contract could have been awarded to the Respondent No. 5 only by providing necessary justification, which, apparently is not the case in the present proceedings. The learned counsel therefore submitted that the present case is a fit one for exercise of the jurisdiction of this Court under Article 226 of the Constitution of India. 14. Mr. S.K. Goswami, the learned counsel for the Petitioner further submitted that the illegality in the entire tender process is writ large from the fact that while the Bid Document required submission of bids only through the online mode, the bid of the Respondent No. 5 was accepted offline. 15. Per contra, Mr. B. Gogoi, the learned Additional Advocate General appearing on behalf of the Respondent Nos. 1 to 4 submitted that the Petitioner had not enclosed the Bid Document in its entirety inasmuch as without the Additional Terms and Conditions (ATC), this Court cannot decide as to what are the contents of the Bid Document. The learned Additional Advocate General submitted that the list of documents required as per the Bid Document specifically refers to the ATC. The learned Additional Advocate General further submitted that Clause 9 of the Bid Document categorically mentions that a bidder's offer is liable to be Page No.# 9/17 rejected if the bidder does not upload any certificates/documents sought in the Bid Document, ATC and Corrigendum, if any. 16. The learned Additional Advocate General referring to Annexure-E to the affidavit-in-opposition filed by the Respondent No. 4 submitted that the bidder eligibility and experience criteria have been categorically mentioned under Clause 2 of the ATC. Insofar as the experience, the learned Additional Advocate General referred to Clause 2A of the ATC and submitted that a bidder must have at least five years of experience in providing similar hospital diet services to any Central/State Government organization or PSU with minimum 500 bedded capacity. Documentary evidence, such as completion certificates or ongoing contracts, were required to be provided for each referenced year. The learned Additional Advocate General, therefore, submitted that Clause 2A of the ATC has to be read conjointly with Clause 9 of the Bid Document, which postulates that these documents are required to be submitted. 17. The learned Additional Advocate General further submitted that the Petitioner's experience has been duly mentioned in the table contained in paragraph No. 5 of the affidavit-in-opposition filed by the Respondent No. 4. The learned Additional Advocate General submitted that the Petitioner's experience in respect to a Page No.# 10/17 500 bedded hospital is only from February, 2023 till 20.12.2025, which is approximately two years and ten months, whereas the requirement was five years. Under such circumstances, the Petitioner was not technically eligible, for which, the Petitioner’s bid was rejected. The learned Additional Advocate General therefore submitted that it is a well settled principle of law that if the bidder is technically non-responsive, the bidder cannot question the legality of the tender process and as such, the instant writ petition ought to be dismissed. 18. Mr. H.K. Das, the learned Senior Counsel appearing on behalf of Respondent No. 5 submitted that the instant writ petition ought not to be entertained by this Court on the ground that the instant writ petition suffers from suppression of material facts. The learned Senior Counsel submitted that the Bid Document enclosed as Annexure-V to the writ petition categorically mentions the ATC. However, for reasons other than bona fide, the Petitioner did not enclose the ATC along with the writ petition. The learned Senior Counsel further submitted that had the ATC been enclosed, this Court would not have even issued notice in the present proceedings as well as pass any interim order. 19. The learned Senior Counsel for the Respondent No. 5 Page No.# 11/17 submitted that Clause 2A of the ATC was absolutely clear that there was a requirement of having minimum of five years' experience, that too, in a 500 bedded hospital which was the eligibility criteria. The learned Senior Counsel further submitted that the statement made that the Respondent No. 5 had submitted the bid offline is absolutely false, taking into account that the bid was duly submitted online. However, the Earnest Money Deposit (EMD), by way of demand draft, the same was submitted offline as well as online inasmuch as a scanned copy of the Demand Draft cannot be put to use by the Respondent Authorities. ANALYSIS AND DETERMINATION 20. A perusal of the Bid Document, which is Annexure-V to the writ petition categorically, refers to the ATC in respect to the experience criteria. Fairness, demands that the Petitioner ought to have enclosed the ATC. The question arises whether there was any suppression of material facts by the Petitioner. 21. Clause 4 of the Bid Document refers to the past experience of similar services. The said Clause, in the opinion of this Court, cannot be read in isolation without the ATC as would appear from the analysis made herein under. Page No.# 12/17 22. Clause 7 of the Bid Document categorically mentions that the Respondent No. 4, who is the buyer, had uploaded the ATC and the said document could be viewed by clicking on the hyperlink. 23. Clause 9 of the Bid Document clearly mentions what certificates are required to be submitted. The said Clause clearly refers to the ATC. 24. In the said perspective, this Court now finds it relevant to take note of, as to whether the terms of the ATC of the Bid Document, were material for the purpose of the present determination inasmuch as if the same was material, it would amount to suppression of material facts. 25. The ATC had been enclosed as Annexure-E to the affidavit-in- opposition filed by the Respondent No. 4. This Court had duly perused the contents of the said ATC and, more particularly, Clause 2, which is with the heading “Bidder Eligibility and Experience Criteria”. 26. The reason why the Petitioner's bid was held to be technically non-responsive was on account of the Petitioner not having five years experience in providing similar hospital diet services to any Central/State Government Organization or PSU with minimum 500 Page No.# 13/17 bedded capacities. The said requirement was specifically incorporated in Clause 2A of the ATC. 27. Under such circumstances, it is the opinion of this Court that the Petitioner was duly bound while approaching this Court by the present writ petition to have enclosed the ATC. The act on the part of the Petitioner not to enclose the ATC which the Petitioner knew was the reason for the Petitioner’s technical bid to be non- responsive, amount to suppression of material facts and further making an attempt to mislead this Court. At this stage, it is also relevant to observe that a perusal of the order dated 27.02.2026 passed by this Court would show that the Petitioner insisted that the Petitioner had the requisite qualification, that too, without bringing on record the ATC. 28. Under such circumstances, it is the opinion of this Court that the act on the part of the Petitioner not to enclose the ATC is a case coming strictly within the ambit of suppression of material facts. The settled principles of law stipulate that the jurisdiction exercised by the Court under Article 226 of the Constitution is an equitable jurisdiction, which requires that a litigant must approach the Court not only with clean hands but also with a clean heart. Page No.# 14/17 29. In the instant case, the non-enclosing of the ATC to the writ petition as well as not placing the same on the date when notice was issued by this Court on 27.02.2026, in the opinion of this Court, is a case of gross suppression of material facts. On this ground alone, the instant writ petition should be dismissed with exemplary costs. 30. Be that as it may, this Court now finds it relevant to take note of the reasons so assigned by the Respondent No. 4 as to why the Petitioner's bid was held to be technically non-responsive. Clause 2A of the ATC being relevant is reproduced herein under: “A. Years of Experience -The bidder must have at least Five (5) years of experience in providing similar hospital diet services to any Central/State Government Organization or PSU with minimum 500 bedded capacity. Documentary evidence, such as completion certificates or ongoing contracts, shall need to be provided for each referenced year.” 31. From a perusal of the above quoted Clause, it is apparent that a bidder must have at least 5 years of experience in providing similar hospital diet services to any Central/State Government Organization or PSU with minimum 500 bedded capacities. There was a requirement for the bidder to submit the documentary Page No.# 15/17 evidence such as completion certificates or ongoing contracts. 32. This Court has duly taken note of Annexure-II of the writ petition which forms the basis of the credentials of the Petitioner in respect to the years of experience, as well as the affidavit so filed by the Respondent No. 4, wherein it is categorically mentioned that insofar as the Petitioner is concerned that the Petitioner had experience in various hospitals, i.e., 100, 200, etc. bedded hospitals, but the experience in a 500 bedded hospital was only for the period from February 2023 to 20.12.2025, which was 2 years, 10 months approximately. 33. Considering the above, the Petitioner herein was not eligible as per Clause 2A of the ATC. 34. This Court also finds it very pertinent to take note of the settled principle of law as held by the Supreme Court in the case of Raunaq International Ltd. Vs. I.V.R. Construction Ltd. & Others reported in (1999) 1 SCC 492 wherein the Supreme Court categorically observed in paragraph No. 27 that no judicial relief can be granted at the instance of a party who does not fulfill the requisite criteria. Under such circumstances, it is the opinion of this Court that the instant writ petition lacks merit apart from the fact that the Petitioner had suppressed material facts. Page No.# 16/17 35. This Court had also taken note of the affidavit filed by the Respondent No. 4 and more particularly to Annexure-E which would clearly show that all the bidders including the Respondent No. 5 have submitted their bids online. This aspect the Petitioner duly had knowledge as the said aspect was available in the GeM portal itself. However, the Petitioner in order to mislead this Court stated on oath that the Respondent No. 5's bid was not submitted online. 36. The above discussion therefore makes it clear that the Petitioner, who did not have the requisite qualification, approached this Court by suppressing material facts as well as misleading this Court to pass the order dated 27.02.2026. Such an act on the part of a litigant cannot be condoned as it would send a wrong signal to all litigants that they can approach the Court by suppressing material facts and go scot free with impunity. Under such circumstances, it is the opinion of this Court that the Petitioner should be imposed costs. It is the further opinion of this Court that costs of Rs 50,000/- would be reasonable. 37. Accordingly, the writ petition stands disposed of with the following observations and directions: Page No.# 17/17 (A) The writ petition stands dismissed. (B) This Court imposes a cost of Rs 50,000/- upon the Petitioner. The said cost to be deposited by the Petitioner before the Registry of this Court within 01.08.2026 and file an affidavit of compliance by the Petitioner. (C) It is further observed and directed that upon deposit of the cost of Rs 50,000/-, the Registry of the Gauhati High Court shall remit the said amount to Assam State Legal Services Authority. The Assam State Legal Services Authority upon receipt of the said amount shall remit the same to Sonapur Government Old Age Home. (D) It is further observed and directed that if the amount of cost is not deposited by the Petitioner as directed above, the Registry of this Court shall take steps before the Bakijai Officer, Nalbari to recover the said amount from the Petitioner or his firm “M/s Shiv Enterprise” as arrears of land revenue. JUDGE Comparing Assistant Digitally signed by Satyam Sharma Date: 2026.06.22 22:16:31 +05'30'