IN THE HIGH COURT AT CALCUTTA

(Constitutional Writ Jurisdiction)

APPELLATE SIDE

Present:

The Hon’ble Justice Krishna Rao

W.P.A. No. 22551 of 2026

Shrimanta Das

Vs.

The State of West Bengal & Ors.

Mr. Soumya Majumder, Sr. Adv.

Mr. Abhinab Sinha

Mr. Satrojit Sinha Roy

....For the petitioner.

Mr. Surojit Nath Mitra, Ld. AG.

Mr. Srijib Chakraborty

Mr. Atreya Chakraborty

….For the State.

Mr. Saptansu Basu, Sr. Adv.

Mr. Swarup Paul

Mr. Guru Saday Dutta

….For the respondent nos. 11 and 13.

2

Md. T.M. Siddiqui, Sr. Adv.

Mr. Suman Banerjee

….For the respondent no. 12.

Mr. Anish Roy

….For the respondent no. 14.

WITH

W.P.A. No. 23264 of 2026

Sandip Halder

Vs.

The State of West Bengal & Ors.

Mr. Arabinda Chatterjee, Sr. Adv.

Mr. Surya Maity

....For the petitioner.

Mr. Surojit Nath Mitra, Ld. AG.

Mr. Srijib Chakraborty

Mr. Sunny Nandy

Mr. Atreya Chakraborty

….For the State.

Mr. Jaydip Kar, Sr. Adv.

Ms. Jyoti Rauth

….For the respondent no. 13.

3

Hearing Concluded On : 01.09.2026

Judgment Delivered On : 03.09.2026

Judgment Uploaded On : 03.09.2026

Krishna Rao, J.:

1. In WPA No. 22551 of 2026, the petitioner has challenged the Notice

Inviting Tender for supply of the cooked diet in the ESI Hospitals of the

State of West Bengal, directing the respondent authorities for the

evolution of the bids afresh submitted in the Notice Inviting Tenders for

supply of the cooked diet and to set aside the Award of Contracts

issued in favour of the private respondent for supply of the cooked diet

in the ESI Hospitals of the State of West Bengal.

2. In WPA No. 23264 of 2026, the petitioner has challenged the Award of

Contract dated 20

th August, 2026, for supply of the cooked diet to the

indoor patients admitted in ESI Hospital, Durgapur, issued in favour of

the private respondent and prayed for direction for issuance of the work

order in favour of the petitioner being the actual L1 bidder in terms of

Memorandum No. 2320-F(Y) dated 7

th June, 2022.

3. The Director, E.S.I. (M.B.) Scheme, West Bengal, has issued e-Tender

notices for supply of the cooked diet to the indoor patients at different

ESI Hospitals in the State of West Bengal. The petitioner in WPA No.

22551 of 2026 has participated in all the tender process of seven ESI

Hospitals. The petitioner in WPA No. 23264 of 2026 has participated in

the tender process of ESI Hospital, Durgapur.

4

4. After opening of the financial evaluation bid, it was found that all the

15 bidders have quoted Rs. 173.65 and all bidders were declared as L1

bidders. The Tender Inviting Authority (hereinafter referred to as “TIA”)

has conducted a meeting along with all bidders in connection with

financial bid evaluation on 29

th July, 2026. In the meeting, it was

decided that as per Clause 17 (iv) of the Notice Inviting Tender and

following the Memorandum No. 2320-F(Y) dated 7

th

June, 2022 of

Finance Department, Audit Branch, Group-T, Government of West

Bengal, all 14 qualified bidders should submit their sealed bids within

7 working days from the date of uploading of Financial-Fid evaluation

in the particular drop box and the participating bidders may remain

present at the time of opening of sealed envelope. The Tender Inviting

Authority has already fixed the minimum accepting rate which will be

informed to all the present bidders before opening of sealed bids and all

qualified bidders were requested to quote consolidated revised rates in

percentage.

5. The Tender Inviting Authority has fixed the different percentage of

different ESI Hospitals. As regard the Durgapur ESI Hospital, the

Tender Inviting Authority has decided that the consolidated reduced

rate upto 8.44% below L-1 Ceiling rate. Likewise the Tender Inviting

Authority has fixed the different reduced rate of different hospitals.

6. After opening of the revised sealed bid, the respondent authorities have

issued Award of Contracts by taking into consideration, the revised

5

quoted rate in terms of the proceedings of the Financial-Bid evaluation

dated 29

th July, 2026.

7. Mr. Arabinda Nath Chatterjee, Learned Senior Advocate, appearing for

the petitioner in WPA No. 23264 of 2026 submits that in Clause 17(iv)

of the Notice Inviting Tender, it is provided that when there is a tie

among the L1 bidders, keeping the discovered L1 rate as ceiling, sealed

bid will be invited from all the L1 bidders and out of those the lowest

one will be selected but in the present case, the respondent authorities

without selecting the lowest one have fixed the minimum rate by

violating the terms and conditions of the Notice Inviting Tender and

issued the work order to the private respondent.

8. Mr. Chatterjee submits that in WPA No. 4479 of 2024, the Coordinate

Bench of this Court has held that the all the Government departments

and its undertakings who will be floating tenders in future will be liable

to take steps in terms of the Memorandum No. 2320-F(Y) dated 7

th

June, 2022, and not otherwise. After the order passed by the

Coordinate Bench of this Court, the Director (HA & Planning),

Government of West Bengal, has issued a Circular dated 21

st

February,

2025, to all concerned authorities with the request to take steps in

terms of the aforesaid memorandum for floating tenders in future and

strictly maintained the stages which are to be followed in case of a tie

bid as indicated in the memorandum.

6

9. Mr. Chatterjee submits that inspite of the order passed by this Court

which was duly accepted by the respondent authorities, the respondent

authorities have not followed the said memorandum in the present case

and have fixed their own reduced rate instead of selecting the lowest

bidder by violating the terms and conditions of Notice Inviting Tender.

10. Mr. Chatterjee submits that the respondent authorities have accepted

the bid of the private respondent at the reduced rate upto 8.44% below

the L1 Ceiling rate instead of accepting the lowest rate quoted by the

bidders. He submits that from the impugned Award of Contract, it

reveals that the petitioner has quoted the revised rate at 9% and if 9%

is taken into consideration of the L1 Ceiling rate, the petitioner would

be the lowest bidder than the private respondent who has quoted 8.42

%.

11. Mr. Chatterjee submits that by fixing the consolidated reduced rate

instead of accepting the lowest rate, the respondent authorities have

changed the game in the mid of the tender process which is contrary to

law. In support of his submission, he has relied upon the unreported

judgment passed by the Coordinate Bench of this Court in the case of

Saheli Nandy vs. Union of India & Ors. passed in WPA No. 25906

of 2023 dated 12

th

December, 2023, wherein the Coordinate Bench of

this Court has held that the goal posts cannot be changed once the

game has begun. By referring the said judgment, Mr. Chatterjee

submits that in the present case, the respondent authorities have

7

altered the condition of the tender by fixing the consolidated reduced

rate instead of awarding the contract to the lowest bidder.

12. Mr. Chatterjee has further relied upon the judgment in the case of

Dutta Associates Pvt. Ltd. vs. Indo Merchantiles Pvt. Ltd. & Ors.

reported in 1996 Supreme (SC) 1921 and submits that the tender

notice did not prescribed for fixing of consolidated reduced rate but as

per the tender condition, the respondents have to select the lowest one

bidder instead of fixing the reduced rate.

13. Mr. Soumya Majumder, Learned Senior Advocate, representing the

petitioner in WPA No. 22551 of 2026, submits that all the ESI hospitals

are in West Bengal but the respondent authorities have fixed different

reduced consolidated rates of different hospitals without assigning any

reason and without any notice to the petitioner. He submits that as per

the revised rate in percentage of ESI hospitals, several bidders

including the petitioner have quoted much higher percentage which

would be lowest rate but the respondent authorities have fixed the

lowest reduced consolidated rate in violation of the terms and

conditions of the Notice Inviting Tender document.

14. Mr. Majumder submits that as per Annexure “X” of the NIT document,

the respondents have fixed the different rates of different categories i.e.

general non-veg diet, admission diet, diet for cardio vascular disorder,

diabetic diet, renal failure diet, boiled diet, full fluid diet and veg diet

but while fixing the reduced consolidated rate, the respondent

8

authorities have not considered the rate prescribed by the authorities

as Annexure “X” of the tender document.

15. Mr. Majumder submits that the respondent authorities have not

implemented Clause 17(iv) read with the Memorandum dated 7

th June,

2022. He submits that as per Clause 17(iv) and the Memorandum

dated 7

th

June, 2022, the respondent authorities are required to accept

the bidder who has offered the lowest rate but the respondent

authorities instead of accepting the lowest rate have fixed the reduced

consolidated rate in violation of the terms and conditions of the NIT

document.

16. Mr. Majumder by way of a supplementary affidavit has disclosed the

Award of Contracts issued to the various bidders and by referring the

said Award of Contracts, submits that the respondent authorities

instead of accepting the bid of the lowest bidder have issued the Award

of Contract to the bidder who has not quoted the lowest percentage of

the L1 Ceiling rate.

17. Mr. Surojit Nath Mitra, Learned Advocate General, submits that after

opening of the financial bid, it was found that all the 15 bidders have

quoted 173.65 and all have been declared as L1 bidders and

accordingly, a meeting was held with all the bidders by the Tender

Inviting Authority on 29

th

July, 2026. In presence of all the bidders

including the petitioners herein it was decided that all bidders should

submit their sealed bids within 7 working days from the date of

9

uploading Financial-Bid evaluation in the particular drop box and the

participating bidder may remain present at the time of the opening of

the sealed envelope. The Tender Inviting Authority has already fixed the

minimum accepting rate which will be informed to all the present

bidders before opening of the bids. It was also decided that all qualified

bidders should quote consolidated revised rates in percentage.

18. Learned Advocate General submits that after the said decision, the

petitioner in WPA No. 22551 of 2026 has participated with respect to

the tender of all ESI hospitals and the petitioner in WPA No. 23264 of

2026 has participated with respect to the ESI Hospital, Durgapur and

quoted their respective consolidated reduced revised rates in

percentage and after being unsuccessful in the bid process, have filed

present writ petitions.

19. Learned Advocate General submits that the meeting was held on 29

th

July, 2026, and on 12

th August, 2026 the, consolidated reduced rate

below the L1 Ceiling rate was declared by the Tender Inviting Authority

but the petitioners have not challenged the said decision of the Tender

Inviting Authority and waited till the opening of the bid and after

opening of the bid when the petitioners were found unsuccessful have

filed the present writ petitions.

20. Mr. Mitra submits that the petitioner in W.P.A No. 22551 of 2026 has

filed the writ petition by suppressing the facts that the petitioner has

appeared in the meeting of the Tender Inviting Authority on 29

th June,

10

2026 and after attending the meeting, the petitioner has participated in

the revised tender process. He submits that in the said meeting, all the

qualified bidders were requested to quote consolidated revised rate in

percentage and the petitioner has quoted the rate in percentage.

21. Mr. Mitra submits that the work orders have already been issued to the

successful bidders and from 1

st

September, 2026, the successful

bidders have started their work and at this stage, if this Court will

interfere with the tender process, the patients of all ESI hospitals will

suffer very badly.

22. Learned Advocates representing the private respondents submits that

the writ petitions filed by the petitioners is not maintainable as both the

petitioners after participating in the meeting of the Tender Inviting

Authority and after participating in the tender process when they were

declared as unsuccessful bidders have filed the present writ petitions.

23. They submit that in the meeting, it was decided that the Tender Inviting

Authority already fixed the minimum accepting rate which will be

informed to all the present bidders before opening of the sealed bids

and all qualified bidders were requested to quote consolidated rate in

percentage and the petitioners were accordingly quoted their rates by

submitting sealed cover and now the petitioners cannot challenged the

tender process.

24. They submit that the Tender Inviting Authority has fixed the rate of the

respective ESI hospitals and the petitioners have also quoted their

11

different rates of different hospitals and now they cannot claim why the

respondents have fixed different rates for the different hospitals.

25. Md. T.M. Siddiqui, Learned Senior Advocate, appearing on behalf of one

of the private respondent submits the power of judicial review will not

be permitted to be invoked to protect private interest at the cost of

public interest, or to decide contractual disputes. In support of his

submissions, he has relied upon the judgment in the case of Bharat

Coking Coal Limited & Ors. vs. AMR Dev Prabha & Ors. reported in

(2020) 16 SCC 759.

26. Mr. Siddiqui submits that the petitioner by suppressing all the material

facts has filed the present writ petition. In support of his submissions,

he has relied upon the judgment in the case of K.D. Sharma Vs. Steel

Authority of India Limited reported in (2008) 12 SCC 481 and

submits that the petitioner approaching the writ court must come with

clean hands, put forward all the material facts before the Court without

concealing or suppressing anything and seek an appropriate relief. If

there is no candid disclosure of relevant and material facts or the

petitioner is guilty of misleading the Court, his petition may be

dismissed at the threshold without considering the merits of the claim.

27. After Financial-Bid evaluation was opened, it was found that all 15

bidders have quoted similar rate i.e. Rs. 173.65/- and all have been

declared as L1 bidders. Clause 17 (iv) of the Notice Inviting e-Tender

provided as follows:

12

“17. Evaluation of Financial Bid and

Award of Contract: -

(iv) When there is a tie among the L-1 bidders,

the following procedure shall be followed:----

Keeping the discovered L-1 rate as ceiling, sealed

bids will be invited (which will be informed all the

L-1 bidder vide http://www.wbtenders.gov.in

portal) from all the L-1 bidders and out of those the

lowest one will be selected.

If none of the L-1 bidders is ready to offer further

reduced rates:

A. For items divisible in nature-----

(i) The work may be distributed equally

among the consenting L-1 bidders.

(ii) If none of the L-1 bidders is ready to

accept reduced quantity, the bidder with

higher credential based on the following

parameters may be selected among L-1

bidders in the following manner:

(a) In case of supply of goods, last three years

average turnover of the bidder shall be

considered.

(b) In case of execution of work/supply of

service, value of single work/service of similar

nature completed during last three years shall

be considered.

(c) In case of supply of man power, number of

personnel supplied in a single contract during

the last 3 years shall be considered.

B. For items non divisible in nature—

(i) If none of the L-1 bidder is ready to offer

further reduction of rates, the bidder with

higher credential based on parameters, as

mentioned in A (ii) above may be selected

among L-1 bidders.”

13

28. When the respondent authorities have finds that all the participating

bidders have quoted similar rates, a meeting was conveyed by the

Tender Inviting Authority along with all the bidders who have quoted

similar rate on 29

th July, 2026. All bidders have attended the said

meeting including the petitioners herein. In the said meeting out of 15

bidders, a bidder, namely, M/s Bimal Chatterjee was declared L2, as

the said bidder did not quoted gas rate against the Diet No. 7 and he

was declared disqualified. In the said meeting, the following decision

was taken by the Tender Inviting Authority in presence of all the

bidders:

“Now, as per Clause no. 17(iv) of NIT and following the

Memorandum No. 2320-F(Y) dated: 07.06.2022 of Finance

Department, Audit Branch, Group-T, Govt. of West Bengal. TIA

decided to invite sealed bid from all the fourteen (14) qualified

bidders in the following manner:

i. All the Bidders should submit their sealed bids within 7

working days from the date of uploading Financial-Bid

evaluation in the particular drop-box which will be kept at

the chamber of Additional Director, ESI (MB) Scheme, W.B.

(Room No. 204)

ii. The drop-box will be opened on the next working day

12:00 P.M. after completion of the above said 7 days.

iii. The participating bidders may remain present at the time

of opening of sealed envelope, TIA has already fixed the

minimum accepting rate which will be informed to all the

present bidders before opening of the sealed bids

iv. All the qualified bidders are requested to quote

consolidated revised rate in percentage

There being no further points for discussion the meeting ended

with vote of thanks from and to the chair,

MOSD-II

ESI (MB) Scheme, W.B.

Assistant Director

(Accounts) ESI (MB)

Assistant Director

(Audit) ESI (MB)

14

Scheme, W. B

Scheme, W.B

Deputy Director

(Planning) ESI (MB)

Scheme, W.B.

Additional Director ESI

(MB) Scheme, W.B.

Additional Director

(Admin) ESI (MB)

Scheme, W.B.”

29. After the said meeting, the petitioner in WPA No. 22551 of 2026 has

submitted his sealed bids with respect to all ESI Hospitals and the

petitioner in WPA No. 23264 of 2026 has submitted his sealed bid with

respect to ESI Hospital, Durgapur. On 12

th August, 2026, the Tender

Inviting Authority has declared the consolidated different reduced rates

for different ESI Hospitals. After declaration of revised reduced rates, on

17

th August, 2026, the sealed bids were opened in respect of e-Tender

for selection of agency to supply of the cooked diet to indoor patients of

different ESI Hospitals in the State of West Bengal. After evaluating the

revised rates quoted by the bidders in percentage, the authorities have

issued work orders to the respective bidders who have quoted revised

rates in percentage nearer to the consolidated reduced revised rate

fixed by the Tender Inviting Authority.

30. The petitioner in WPA No. 23264 of 2026 quoted the revised reduced

rate as 9% of the L1 Ceiling rate in respect of ESI Hospital, Durgapur.

The Tender Inviting Authority fixed the consolidated reduced revised

rate up to 8.44% below L1 Ceiling rate of ESI Hospital, Durgapur. The

private respondent has quoted revised reduced rate in percentage as

8.42% which is nearer to the consolidated reduced rate fixed by the

Tender Inviting Authority and accordingly, work is awarded to the

private respondent.

15

31. The petitioner in WPA No. 22551 of 2026 has quoted 6.5% of Belur ESI

Hospital but the Tender Inviting Authority has fixed the consolidated

revised reduced percentage as 6.8% and the private respondent has

quoted 6.75% which is nearer to 6.8%. The petitioner has quoted 6.15%

of Sealdah ESI Hospital, but the Tender Inviting Authority has fixed the

consolidated revised reduced percentage as 4.25% and the private

respondent has quoted 4.248 % which is nearer of 4.25%. The

petitioner has quoted 6.88% of Gourhati ESI Hospital but the Tender

Inviting Authority has fixed the consolidated revised reduced

percentage as 7.14% and the private respondent has quoted 7.11%

which is nearer of 7.14%. The petitioner has quoted 6.4% of Baltikuri

ESI Hospital but the Tender Inviting Authority has fixed the

consolidated revised reduced percentage as 6.79% and the private

respondent has quoted 6.77% which is nearer of 6.79%. The petitioner

has quoted 7% of Budge Budge ESI Hospital but the Tender Inviting

Authority has fixed the consolidated revised reduced percentage as

6.68% and the private respondent has quoted 6.66% which is nearer of

6.68%. The petitioner has quoted 6.75 % of Durgapur ESI Hospital but

the Tender Inviting Authority has fixed the consolidated revised

reduced percentage as 8.44% and the private respondent has quoted

8.42% which is nearer of 8.44% and the petitioner has quoted 6.9% of

Serampore ESI Hospital but the Tender Inviting Authority has fixed the

consolidated revised reduced percentage as 7.19% and the private

respondent has quoted 7.1% which is nearer of 7.19%. Though the

petitioner has disclosed revised rates in percentage quoted by each

16

bidder including the petitioner but the petitioner has not disclosed his

rate quoted with respect to Budge Budge ESI Hospital and Durgapur

ESI Hospital as the petitioner was supplying the cooked diet to the

indoor patient of the said two ESI Hospitals before awarding contract in

the present tender process to the private respondents.

32. In Clause 17(i) of the NIT, it is prescribed that the Technically qualified

agency who offered L1 rate in the financial bid as per BOQ shall be

Awarded the Contract but in the present case all bidders have quoted

similar rates and declared L1 bidders. To resolve the issue in terms of

Clause 17(iv), a meeting was conducted by the Tender Inviting

Authority along with all bidders and a conscious decision was taken

that all the bidders will submit their sealed bids within seven working

days and the Tender Inviting Authority has already fixed the minimum

accepting rates which will be informed to all bidders before opening the

sealed bids and the bidders should quote their revised consolidated

revised rates in percentage. Both the petitioners without any agitation

have submitted their respective sealed bids by quoting consolidated

revised rate in percentage and thus the petitioners cannot say that the

respondents have violated Clause 17(iv) of the Notice Inviting Tender.

33. As regards not following the Memorandum No. 2320-F(Y) dated 7

th

June, 2022, the Circular issued by the Director (HA & Planning), West

Bengal and the order passed by the Coordinate Bench of this Court,

this Court finds that the petitioners in the meeting dated 29

th July,

2026, accepted that they will submit sealed bids by quoting

17

consolidated revised rates in percentage and have acted upon, thus the

petitioners cannot raised the said issue after participating in the

revised bid process and after being unsuccessful in the bid process.

34. The judgment relied by the petitioner in WPA No. 23264 of 2026 in the

case of Saheli Nandi (supra), is distinguishable from the facts and

circumstances of the present case. In the case in hand, the petitioners

have acted upon the decision taken in the meeting dated 29

th

July,

2026 wherein all the bidders have been given liberty to submit sealed

bids by quoting consolidated revised rate in percentage and the

petitioner has acted upon.

35. The petitioner in WPA No. 22551 of 2026 has disclosed the rate chart

wherein it reveals that what percentage is fixed by the Tender Inviting

Authority and what rates in percentage has been quoted by the bidders

but the petitioner has not disclosed the rate quoted with respect to ESI

Hospital Budge Budge and Durgapur wherein the petitioner was supply

the cooked diet to the indoor patients of the said hospitals. The

petitioner has also suppressed the fact that the petitioner attended the

meeting held on 29

th

July, 2026 with the Tender Inviting Authority and

after the said meeting, the petitioner has submits his sealed bid by

quoting reduced rate of L1 Ceiling rate in percentage. Thus the

petitioner has suppressed the material facts. In the case of K.D.

Sharma (supra), the Hon’ble Supreme Court held that:

“38. The above principles have been accepted

in our legal system also. As per settled law, the

18

party who invokes the extraordinary jurisdiction of

this Court under Article 32 or of a High Court under

Article 226 of the Constitution is supposed to be

truthful, frank and open. He must disclose all

material facts without any reservation even if they

are against him. He cannot be allowed to play

“hide and seek” or to “pick and choose” the facts

he likes to disclose and to suppress (keep back) or

not to disclose (conceal) other facts. The very basis

of the writ jurisdiction rests in disclosure of true

and complete (correct) facts. If material facts are

suppressed or distorted, the very functioning of

writ courts and exercise would become impossible.

The petitioner must disclose all the facts having a

bearing on the relief sought without any

qualification. This is because “the court knows law

but not facts”.

39. If the primary object as highlighted

in Kensington Income Tax Commrs is kept in mind,

an applicant who does not come with candid facts

and “clean breast” cannot hold a writ of the court

with “soiled hands”. Suppression or concealment of

material facts is not an advocacy. It is a jugglery,

manipulation, manoeuvring or misrepresentation,

which has no place in equitable and prerogative

jurisdiction. If the applicant does not disclose all

the material facts fairly and truly but states them

in a distorted manner and misleads the court, the

court has inherent power in order to protect itself

and to prevent an abuse of its process to discharge

the rule nisi and refuse to proceed further with the

examination of the case on merits. If the court does

not reject the petition on that ground, the court

would be failing in its duty. In fact, such an

applicant requires to be dealt with for contempt of

court for abusing the process of the court.”

36. Considering the above, this Court did not find any illegality in the

tender process and Awarding Contracts to the private respondents.

Accordingly, WPA No. 22551 of 2026 and WPA No. 23264 of 2026

are dismissed.

19

Parties shall be entitled to act on the basis of a server copy of the

Judgment placed on the official website of the Court.

Urgent Xerox certified photocopies of this judgment, if applied for,

be given to the parties upon compliance of the requisite formalities.

(Krishna Rao, J.)