Jammu & Kashmir High Court – Srinagar Bench
M/S Gousia Fayaz vs Union Territory Of J And K And on 4 August, 2026
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
Serial No. 122
Supplementary Cause list
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 1534/2026 CM(3996/2026)
C/W
WP(C) 1217/2023
M/S GOUSIA FAYAZ ...Appellant(s)/Petitioner(s)
Through: Mr. Aasif Maqbool, Advocate
Vs.
UNION TERRITORY OF J AND K AND
...Respondent(s)
OTHERS (HEALTH AND MEDICAL
EDUCATION)
Through: Mr. Faheem Nisar Shah, GA
CORAM:
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE.
JUDGMENT (ORAL)
04.08.2026
1. Since both the writ petitions have been instituted by the same petitioner
and involve substantially identical questions of fact and law, arising out of
the same set of circumstances, they are being taken up together
adjudication.
WP(C) 1217/2023:
2. By way of the instant petition, the petitioner has prayed for the following
reliefs:
I. Issue a writ in the nature of certiorari, quashing the
impugned bid document bearing No.
GEM/2023/B/3415527 dated 06.05.2023.
II. Issue a writ in the nature of mandamus, directing the
respondents to allow the petitioner to continue and
complete the contract time frame of two years as
envisaged by NIT dated 10.09.2020 from the date of
execution of contract pursuant to letter of allotment
bearing No. SIMS 325 31/2019-822-32 dated 28.04.2022.
3. Vide order dated 19.05.2023, this Court has ordered as under:
“In the meantime, subject to objections and till next date
of hearing before the Bench, there shall be order of statusWP(C) 1534/2026 C/W Page 1 of 16
WP(C) 1217/2023
quo with regard to the petitioner providing sanitation
services to the SKIMS”.
4. Learned counsel for the petitioner submits that, pursuant to the e-NIT
dated 10.09.2020, an allotment order was issued in favour of the petitioner
for a period of one year vide allotment letter dated 28.04.2022. It is further
submitted that, in terms thereof, the petitioner was permitted to execute
the contract till the year 2024.
5. Mr. Faheem Nisar Shah, learned Government Advocate appearing for the
respondents submits that the petitioner has executed the work beyond the
stipulated period of allotment dated 24.08.2022 and is still continuing to
provide sanitation services at SKIMS, Soura, Srinagar. It is, therefore,
contended that the grievance projected by the petitioner no longer survives
for consideration and, consequently, the instant writ petition has rendered
infructuous.
6. Learned counsel for the petitioner admits that the writ petition has
rendered infructuous, but the interim order dated 19.05.2023, whereby the
respondents were directed to maintain status quo with regard to the
petitioner to continue to provide sanitation services at SKIMS, is still in
operation. It is contended that, in terms of the said interim order, the
respondents are under an obligation to seek leave of this Court before
issuing any fresh tender notice.
7. In view of the foregoing discussion and in light of the submissions made
by learned counsel for the parties, the instant writ petition is dismissed as
having been rendered infructuous.
WP(C) 1534/2026 C/W Page 2 of 16
WP(C) 1217/2023
WP(C) 1534/2026:
8. By way of the present petition, the petitioner has prayed for the following
reliefs:
I. By issuance of writ, order or direction one in the nature of
Certiorari quashing e-Tender bearing eNIT No. 03 (P-II) of
2026 dated 19.06.2026, issued by respondent No. 2 for
outsourcing of sanitation and housekeeping services at Sher-i-
Kashmir Institute of Medical Sciences (SKIMS), Soura Srinagar.
II. By issuance of writ, order or direction one in the nature of
mandamus commanding the respondents to take the GeM tender
process initiated vide Bid No. GEM/2024/B/5565055 dated
07.11.2024, culminating in Reverse Auction No.
GEM/2025/R/540868, wherein the petitioner emerged as the L-1
bidder, to its logical conclusion by finalizing and
operationalizing the same in accordance with law.
III. By issuance of writ, order or direction one in the nature of
mandamus commanding the respondents to permit the petitioner
to continue rendering sanitation and housekeeping services at
Sher-i-kashmir Institute of Medical Sciences (SKIMS), Soura,
Srinagar till the GeM tender process referred to hereinabove is
finalized and operationalized in accordance with law.
IV. Pending disposal of the present writ petition, direct the
respondents to maintain status quo with regard to the sanitation
and housekeeping services presently being rendered by the
petitioner and restrain them from disengaging the petitioner or
replacing him by any other agency pursuant to the impugned e-
Tender.
V. Pass any other writ, order or direction which this Hon‟ble Court
may deem fit and proper in the facts and circumstances of the
case.
9. Petitioner is aggrieved of the e-NIT No. 03 (P-II) of 2026 dated
19.06.2026 issued by respondent No. 2, whereby bids have been invited
for “Outsourcing of sanitation and housekeeping service at Sher-i-
Kashmir Institute of Medical Sciences (SKIMS), Soura, Srinagar
[hereinafter referred to “SKIMS”] on quality cum cost basis”.
10.It is stated that the petitioner is a civil contractor having expertise in
providing outsourced sanitation services. In the year 2020, respondent No.
2 issued e-NIT dated 10.09.2020, inviting bids for outsourcing sanitation
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WP(C) 1217/2023
services at SKIMS, Srinagar. The petitioner, along with other bidders,
participated in the tendering process and was declared the successful
bidder. Consequently, the work was allotted to the petitioner vide
allotment order dated 28.04.2022. It is further stated that, in terms of
Clause 2 of the NIT, the contract was to remain in force for a period of
two years. However, the respondents restricted the tenure of the
petitioner’s contract to one year, thereby compelling the petitioner to
approach this Court by filing WP(C) No. 1217/2023, challenging Bid
Document No. GEM/2023/B/3415527 dated 06.05.2023 and also to seek a
direction to the respondents to permit the petitioner to continue and
complete the contractual period of two years as envisaged under the e-NIT
dated 10.09.2020.
11.This court vide order dated 19.05.2023 in WP(C) 1217/2023 has directed
as under:
“In the meantime, subject to objections and till next date
of hearing before the Bench, there shall be order of status
quo with regard to the petitioner providing sanitation
services to the SKIMS”.
12.Upon the expiry of the contractual period of two years, the respondents
floated a GeM Bid bearing No. GEM/2024/B/5565055 dated 07.11.2024
for outsourcing sanitation and housekeeping services at SKIMS, Soura.
The petitioner, being fully eligible, also participated in the said tendering
process. Upon the conclusion of the Reverse Auction bearing RA No.
GEM/2025/R/540868, the petitioner emerged as the L-1 bidder, however,
despite the petitioner having been declared the lowest successful bidder,
the respondents neither finalized nor operationalized the said GeM tender
till date. Respondents, however, have allowed the petitioner to continue to
execute the said work till date.
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WP(C) 1217/2023
13.It is further stated that, vide communication dated 18.11.2025, the
respondents granted an extension in favour of the petitioner for providing
sanitation and housekeeping services up to 31.10.2025 or till a fresh
arrangement is finalized by SKIMS, Srinagar, whichever is earlier.
14.The petitioner has challenged the impugned e-NIT No. 03 (P-II) of 2026
dated 19.06.2026 primarily on the ground that, having participated in the
tendering process initiated vide GeM Bid No. GEM/2024/B/5565055
dated 07.11.2024 and having been declared the L-1 bidder, the
respondents were under a legal obligation either to finalize and allot the
contract in favour of the petitioner or to cancel the said tender in
accordance with law. It is contended that the respondents have neither
cancelled the tender notification dated 07.11.2024 nor have taken any
decision with regard to the award of the contract thereunder, and, in the
meantime, have proceeded to issue the impugned e-NIT dated 19.06.2026.
15.Learned counsel for the petitioner has vehemently argued that the
respondents have issued the impugned e-NIT dated 19.06.2026 without
taking any decision with respect to the GeM Bid dated 07.11.2024,
wherein the petitioner was declared the L-1 bidder. He has relied upon the
judgment delivered in case titled “Subodh Kumar Singh Rathour Vs Chief
Executive Officer & Ors.“, reported as AIR 2024 SC 3784.
16.Per contra, learned counsel for the respondents has filed an affidavit in
terms of order dated 06.07.2026, wherein it is stated:
“3. That it is respectfully submitted that pursuant to the earlier
GeM bid No. GEM/2024/B/5565055 dated 07.11.2024, fifty-
one 51 bids were received under the prescribed two-cover
system. Upon technical evaluation, only two bidders, including
the petitioner, were found technically responsive. Thereafter,
the financial bids were opened on 04.09.2025 and the reverse
auction concluded on 08.09.2025.
WP(C) 1534/2026 C/W Page 5 of 16
WP(C) 1217/2023
4.That it is respectfully submitted that during the intervening
period, SKIMS undertook a comprehensive review of its
sanitation and housekeeping requirements. Upon detailed
deliberations at various administrative levels and after
examining the sanitation management practices followed in
reputed tertiary care hospitals of similar stature, a conscious
administrative and policy decision was taken to shift from the
conventional Least Cost (L-1) procurement system to the
Quality-cum-Cost Based Selection (QCBS) model. The
decision was taken solely in the larger public interest with the
objective of improving sanitation standards, strengthening
hospital infection control measures, ensuring scientific
cleaning protocols, proper biomedical waste segregation,
deployment of trained manpower, and provision of cleaning
agents, disinfectants and other hygiene-related consumables,
thereby enhancing patient care and hospital hygiene.
5. That it is respectfully submitted that for implementation of
the aforesaid policy decision, the competent authority
constituted a Committee comprising senior officers to examine
the feasibility, specifications, financial implications and
operational modalities relating to High-Tech Sanitation
Services. The decision to adopt the QCBS model was thus
founded entirely upon administrative necessity and public
interest and not upon any extraneous consideration.
6. That it is respectfully submitted that pursuant to the
aforesaid policy decision, SKIMS initially floated e-NIT No.
SIMS 07 (P-II) of 2025 dated 06.10.2025 under the QCBS
model. Although five bidders participated, the tender could not
be finalized due to technical reasons. Significantly, the
petitioner neither questioned nor challenged the said tender at
any stage.
7. That it is respectfully submitted that thereafter the impugned
e-NIT No.03 (P-II) of 2026 dated 19.06.2026 came to be
issued. The petitioner participated in the pre-bid meeting held
on 25.06.2026, signed the attendance register and did not
raise any objection whatsoever regarding the tender
conditions, evaluation methodology or adoption of the QCBS
model.
8. That it is respectfully submitted that in response to the
impugned tender, eleven (11) agencies, including the
petitioner, submitted their bids. The petitioner voluntarily
submitted his bid vide Bid ID No. 2834447 after accepting all
the terms and conditions of the tender document. The technical
bids were opened on 09.07.2026.
9. That it is respectfully submitted that having voluntarily
participated in the pre-bid meeting and thereafter submittedWP(C) 1534/2026 C/W Page 6 of 16
WP(C) 1217/2023
his bid with full knowledge of the terms and conditions of the
impugned tender, the petitioner is estopped from challenging
the very same tender process. The petitioner cannot be
permitted to approbate and reprobate simultaneously or blow
hot and cold by participating in the tender process while
simultaneously questioning its legality before this Hon’ble
Court. Such conduct disentitles the petitioner from invoking
the discretionary writ jurisdiction of this Hon’ble Court.
10. That it is respectfully submitted that pending finalization of
the revised procurement model, it was considered
administratively necessary to continue the petitioner’s existing
contract purely as an interim arrangement so as to avoid
disruption of essential sanitation services in the Institute. Such
continuation was only on the existing terms, conditions and
rates and did not confer any vested or enforceable right upon
the petitioner for award of any future contract.
11. That it is respectfully submitted that mere emergence as
the lowest bidder in a reverse auction in the earlier bid dated
07.11.2024 does not create any vested or enforceable right to
claim award of contract. The competent authority always
retains the power to review, modify cancel or re-tender a
procurement process in larger public interest. The petitioner’s
claim that the earlier tender necessarily ought to have
culminated in award of contract is wholly misconceived. …
12. That it is respectfully submitted that SKIMS had earlier
floated e-NIT No. SIMS 20 (P-II) of 2020 dated 10.09.2020
under the conventional L-l procurement system wherein the
petitioner emerged as the successful bidder and was awarded
the contract vide Allotment Order No. SIMS-325 dated
28.04.2022 for a period of one year, valid up to 27.04.2023.
13. That it is respectfully submitted that before expiry of the
said contract, SKIMS initiated a fresh procurement process
through GeM Bid No. GEM/2023/B/3415527 dated
06.05.2023.
14. That it is respectfully submitted that before the said tender
could be finalized, the petitioner filed WP(C) No.1217/2023
seeking continuation of the contract for the entire period of
two years contemplated under the original tender. This
Hon’ble Court vide order dated 19.05.2023 directed
maintenance of status quo, which was duly complied with by
SKIMS. Consequently, the GeM tender dated 06.05.2023 could
not proceed further and the bid validity expired during
pendency of the proceedings.
15. That it is respectfully submitted that after the petitioner
had already availed the relief sought by him by completing the
contractual period of two years and even thereafter continuedWP(C) 1534/2026 C/W Page 7 of 16
WP(C) 1217/2023
under administrative extensions, the matter was examined by
the Additional Secretary (Law), SKIMS, who vide legal
opinion dated 08.06.2024 observed that the petitioner had
already availed the relief claimed in the writ petition and that
no legal embargo existed for issuance of a fresh Notice
Inviting Tender. The said opinion was thereafter referred to
the Department of Law, Justice and Parliamentary Affairs,
Government of Jammu and Kashmir, which endorsed the said
opinion and advised SKIMS to proceed with issuance of a
fresh tender in accordance with law.
16. That it is respectfully submitted that accordingly, the
present procurement process has been initiated pursuant to an
independent administrative policy decision to introduce a
QCBS-based sanitation system in the larger public interest
and has absolutely no nexus with the issues involved in WP(C)
1217/2023.
17. That it is respectfully submitted that the petitioner’s
contract was extended from time to time purely as an interim
administrative arrangement to ensure continuity of essential
sanitation services till finalization of the revised procurement
process. Every extension order specifically stipulated that it
would remain operative only till finalization and
operationalization of the fresh arrangement or until
further orders, whichever was earlier. Such extensions neither
constituted a fresh contract nor created any legitimate
expectation or vested right in favour of the petitioner.
18. That it is respectfully submitted that no assurance, promise
or commitment was ever extended by SKIMS that the contract
would necessarily be awarded to the petitioner. The
continuation orders merely permitted continuation of services
in public interest and cannot be construed as any assurance
regarding future allotment.
19. That it is respectfully submitted that the allegations of
mala fides, arbitrariness, favoritism, bias or colourable
exercise of power are wholly false, vague and unsupported by
any material whatsoever. The petitioner has not disclosed the
identity of any alleged beneficiary nor placed any material on
record to substantiate such allegations. On the contrary, the
petitioner himself continues to provide sanitation services
under interim extensions and has never been displaced by any
other agency.
20. That it is respectfully submitted that the petitioner has
failed to establish violation of any statutory, contractual or
constitutional right. The entire writ petition proceeds on the
erroneous assumption that mere emergence as an L-1 bidder
confers an indefeasible right to award of contract, whichWP(C) 1534/2026 C/W Page 8 of 16
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proposition is contrary to the settled principles governing
public procurement.
21. That it is respectfully submitted that the petitioner has also
suppressed material facts from this Hon‟ble Court by
concealing that he participated in the pre-bid meeting,
accepted the terms and conditions of the impugned tender,
voluntarily submitted his bid without any protest and never
challenged the earlier QCBS tender floated by SKIMS.
17.Learned counsel for the respondents has relied upon judgment dated
15.12.2023 passed in WP(C) 2108/2022 titled “Ghulam Qadir Bhat &
Anr. Vs. UT of J&K & Ors.“, wherein it has been held that the tender is
only an invitation to offer and the other party makes an offer pursuant to
the invitation to offer, as such, it is not obligatory to the authority issuing
tender to accept the offer and no right is created on the basis of merely
being L-1. He submits that the respondents were well within their right to
cancel the tender before the acceptance was made and a right would only
be arisen when a contract comes into existence. He further submits that
the invitation to offer merely invites the other party to make negotiations.
This offer was yet to be accepted by the respondents for a contract to
come into existence which could be enforceable for the parties. It is a well
settled position of law that merely by participating in the tender, no right
is created in favour of the bidder and the tenderer cannot be precluded
from its option to cancel the tendering process on any grounds. The
tendering process, thus, can be cancelled at any stage before finalization
and issuance of letter of acceptance as there was no concluded contract
between the parties. Thus, the legitimate expectations on the petitioners
having altered their positions on the basis of being declared L1 has no
significance as there was no contract between the parties.
18.Mr. Faheem Nisar Shah, learned Government Advocate has submitted that
the petitioner had approached this Court by way of WP(C) 1217/2023,
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wherein this Court on 19.05.2023, had directed to maintain status quo
with regard to the petitioner providing sanitation services to the SKIMS
and resultantly bid document bearing No. GEM/2023/B/3415527 dated
06.05.2023 was put on hold and another tender notification bearing No.
GEM/2024/B/5565055 dated 07.11.2024 was issued by the respondents,
wherein the petitioner participated and was declared as L-1, however on
the basis of detailed deliberations on various administrative levels and
after examining the sanitation practices, decision was taken by the
respondent authorities to shift from the conventional Least Cost (L-1)
procurement system to the Quality-cum-Cost Based Selection (QCBS)
model to strengthen the quality control with respect to the sanitation
services. Resultantly, tender bid notification bearing No.
GEM/2024/B/5565055 dated 07.11.2024 was put on hold. He further
submits that respondents had also issued tender bid notification dated
06.10.2025 under QCBS model, in which the petitioner never participated,
however the same could not be finalized due to technical reasons. He has
further submitted that the petitioner is continuously executing the
sanitation works since 2022 till date and pursuant to the impugned tender
notification dated 19.06.2026, petitioner has not only participated in pre-
bid meeting on 25.06.2026 but has also uploaded the requisite documents
on 07.07.2026. Moreover, the petitioner has concealed the fact of
participating in the pre-bid meeting at the time of filing this petition.
19.Mr. Aasif Maqbool, learned counsel for the petitioner submits that the
documents in terms of the impugned eNIT dated 19.06.2026 have been
uploaded after approaching this Court.
20.Heard learned counsel for the parties, considered the submissions and
perused the material on record.
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21.The main grievance of the petitioner is to the extent that the petitioner had
participated in the notification bearing No. GEM/2024/B/5565055 dated
07.11.2024, wherein he was declared as L-1, however, despite that neither
the said notification dated 07.11.2024 has been cancelled nor any decision
has been taken by the authority till date. The respondents were under an
obligation to allot the contract to the petitioner in terms of notification
bearing No. GEM/2024/B/5565055 dated 07.11.2024. Respondents have
stated in their affidavit that in order to improve and strengthen the quality
control of the sanitation services, the tender notification dated 07.11.2024
was done away with and another tender dated 06.10.2025 was issued,
wherein neither the petitioner participated nor has shown any grievance
with respect to the same. In the impugned tender notification dated
19.06.2026, petitioner has not only participated in the pre-bid meeting on
25.06.2026 but also uploaded the requisite documents on 07.07.2026, as
such, the petitioner has no right to approach this Court, when he has
already participated in the tendering process. Perusal of the record reveals
that the petitioner has not only participated in pre-bid meeting on
25.06.2026, but also uploaded the requisite documents on 07.07.2026.
22.The petitioner had earlier approached this Court by filing a writ petition
seeking extension of the contract for a further period of two years, i.e., up
to the year 2024. Pursuant to the interim order directing maintenance of
status quo, the petitioner continued to provide sanitation and
housekeeping services. It is an admitted position that the petitioner not
only executed the contract up to the year 2024 but has, in fact, continued
to render the said services even thereafter till date. Thus, the petitioner has
already availed the benefit flowing from the interim protection granted by
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this Court far beyond the period originally claimed in the earlier writ
petition.
23.Scope of the judicial review in tender matters has been considered by
Hon’ble Supreme Court in its various decisions. Hon’ble Supreme Court
in the case of “Tata Cellular Vs Union of India” reported as 1994 6 SCC
651, while considering the scope of judicial review in tender matters,
elucidated the following principles:
94. The principles deducible from the above are:
1) The modern trend points to judicial restraint in
administrative actions.
2) The Court does not sit as a court of appeal but merely
reviews the decision-making process.
3) The Court lacks the expertise to correct administrative
decisions. If a review is permitted, it would be
substituting its decision, which may be fallible.
4) The terms of the invitation to tender cannot be open to
judicial scrutiny as they are in the realm of contract.
Decisions to accept or award contracts are reached
through several tiers and are qualitative, often made by
experts.
5) The Government must have the freedom of contract.
Fair play in administrative actions is necessary, but
decisions must be free from arbitrariness, bias, or mala
fides.
6) Quashing decisions can impose heavy administrative
burdens and unbudgeted expenditures on the
administration and lead to increase and unbudgeted
expenditure.
24.After Tata cellular (supra), there is a long series of judgments of the
Supreme Court on the scope of judicial review in tender matters, some of
them are Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517,
Midhigan Rubber v. State of Karnataka, (2012) 8 SCC 216, Afcons
Infrastructure Ltd. v. Nagpul Metro Rail Corporation Ltd., (2016) 16 SCC
818, M/s Agmatel India Pvt. Ltd. v. M/s Resoursys Telecom, 2022 Legal
WP(C) 1534/2026 C/W Page 12 of 16
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Eagle (SC) 98, Airport Authority of India v. Centre for Aviation Policy,
Safety & Research (CAPSR), (2022) SCC Online SC 1334.
25.The Supreme Court in the case of Balaji Ventures Pvt. Ltd. V.
Maharashtra State Power Generation Company Ltd., 2022 LiveLaw (SC)
295 has observed that “the eligibility criteria in the tender document
applied to all bidders. The owner has the freedom to set criteria unless
they are arbitrary or mala fide. Bidders cannot challenge criteria that do
not suit them. Courts have limited roles in reviewing tender conditions, as
it is an offer to compete”. In Airport Authority of India (supra), it has been
observed by the Supreme Court that “tender terms are within the domain
of the tenderer and not open to judicial scrutiny unless arbitrary,
discriminatory, or mala fide. The Government must have a free hand in
setting terms.”
26.This Court further finds that the respondents have satisfactorily explained
the circumstances under which the GeM Bid dated 07.11.2024 was not
taken to its logical conclusion and a fresh tender process came to be
initiated. Significantly, the petitioner neither challenged the decision of
the respondents in abandoning the said bidding process nor questioned the
issuance of the subsequent tender notification of the year 2025. Having
consciously accepted the respondents’ action and continued to execute the
contract by virtue of the earlier interim order, thereby enjoying the fruits
of the tender process initiated in the year 2022 not only for its stipulated
tenure but for an additional period of more than two years, the petitioner
cannot now be permitted to invoke the extraordinary writ jurisdiction of
this Court to assail the subsequent tender process.
27.The principles which emerge from a series of decisions of the Supreme
Court are as under:
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i. The tender inviting authority is free to set eligibility criteria
and conditions unless they are arbitrary, discriminatory, or mala
fide.
ii. The author of the tender document is best suited to understand
and interpret its requirements.
iii. If two interpretations are possible, the author‟s interpretation
must be accepted.
iv. If the tender authority follows healthy standards and norms,
court interference is limited.
v. Courts reviewing the decision-making process, not act as
courts of appeal.
vi. There should be no cancellation of awards due to procedural
errors or wrongful exclusion; unsuccessful bidders can seek
damages in civil court.
vii. Courts have no role in imposing fair, wiser, or logical
decisions on tender authorities.
viii. In most cases, the Supreme Court upholds the views of the
tender inviting authority unless the terms are arbitrary,
discriminatory, or mala fide.
28.The Hon’ble Supreme Court in Silppi Constructions Contractors v. Union
of India and others, (2020) 16 SCC 489, has held thus:
19. This Court being the guardian of fundamental rights is duty
bound to interfere when there is arbitrariness, irrationality, mala
fides and bias. However, this Court in all the aforesaid decisions
has cautioned time and again that courts should exercise a lot of
restraint while exercising their powers of judicial review in
contractual or commercial matters. This Court is normally loathe
to interfere in contractual matters unless a clear-cut case of
arbitrariness or mala fides or bias or irrationality is made out.
The Courts must realize their limitations and the havoc which
needless interference in commercial matters can cause. In
contracts involving technical issues the courts should be even
more reluctant because most of us in judges’ robes do not have
the necessary expertise to adjudicate upon technical issues
beyond our domain. As laid down in the judgments cited above
the courts should not use a magnifying glass while scanning the
tenders and make every small mistake appear like a big blunder.
In fact, the courts must give „fair play in the joints‟ to the
government and public sector undertakings in matters of
contract. Courts must also not interfere where such interference
will cause unnecessary loss to the public exchequer.
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29.This Court is also of the considered opinion that the conduct of the
petitioner attracts the principle of estoppel. In context of a tender
participation, the legal principle established is that a party who
participates in a tender process cannot subsequently challenge the terms
and conditions of that tender. This principle is rooted in the idea that the
participation implies acceptance of the terms and conditions laid out in the
tender documents. If a party has participated without protest, then they are
generally estopped from raising the objections later on. The principle is
based on the legal doctrine of estoppel, which prevents a party from
asserting a claim or a right that contradicts what they have previously
stated or agreed to by their actions. This legal framework ensures fairness
and predictability in the tender process, preventing parties from
opportunistically challenging terms and conditions, after engaging and
participating in the process. The record reveals that the petitioner has
participated voluntarily in the pre-bid meeting and has also submitted his
documents in the impugned tender process bearing eNIT No. 03 (P-II) of
2026 dated 19.06.2026, issued by respondent No. 2 for outsourcing of
sanitation and housekeeping services at SKIMS, Soura Srinagar and,
having subjected himself thereto, cannot simultaneously challenge the
very tender process in the present writ petition.
30.This Court is fortified with the judgment of the Hon’ble Apex Court
rendered in the case titled “New Bihar Biri Leaves co. Vs State of Bihar”
reported as (1981) 1 SCC 537. In paragraph 48 of the Judgement supra,
the Apex Court has been pleased to observe as follows:-
“It is a fundamental principle of general application that if a
person of his own accord, accepts a contract on a certain terms
and works out the contract, he cannot be allowed to adhere to
and abide by some of the terms and conditions which provedWP(C) 1534/2026 C/W Page 15 of 16
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advantageous to him and repudiate the other terms of the same
contract which might be disadvantageous to him. The maxim is
qui approbate and non reprobate (one who approbates cannot
reprobate). This principle, though originally borrowed from
Scots Law, is now firmly embodied in English Common Law.
According to it, a party to an instrument or transaction cannot
take advantage of one part of a document or transaction and
reject the rest. This is to say, no party can accept and reject the
same instruments or transactions.‟‟
31.The petitioner herein has suppressed material facts from this Court by
deliberately omitting/strategically avoiding to disclose that he had
participated in the pre-bid meeting held on 25.06.2026, as well as
uploaded the documents on 07.07.2026 after filing of this petiton. Such
suppression of material facts disentitles the petitioner to any discretionary
relief under Article 226 of the Constitution.
32.In view of what has been discussed herein above, the instant petition,
being devoid of any merit, is dismissed along with the connected
application(s).
(MOKSHA KHAJURIA KAZMI)
JUDGE
SRINAGAR:
04.08.2026
“Adil Ismail”
Whether the Judgment is Speaking? Yes
Whether the Judgment is Reportable? No
WP(C) 1534/2026 C/W Page 16 of 16
WP(C) 1217/2023
