The judgment established that the presence of a photograph on the forwarding letter was a non-essential condition for the technical bid, and the rejection of the bid was not in public interest due to the substantial difference in financial bids.

B.R. Gavai, J.

Civil Application No. 1964 of 2016 for intervention is allowed. The applicant is permitted to intervene.

2. Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel appearing for the parties.

3. The petitioner has approached this Court being aggrieved by the rejection of the technical bid of the petitioner.

4. Respondent Nos. 1 and 2 have published a tender notice for appointment of Regular Handling & Transport Contractor at FCI, FSD Wardha for the period of two years. In response to the said tender notice, the petitioner submitted his tender online. The tender was to be in two parts. Part one contains the technical bid regarding the financial and experience qualification of the tenderer and the second part contains the price bid. The petitioner was communicated on 3.8.2016 that the technical bid of the petitioner was rejected. The reason given for rejection of the technical bid of the petitioner was that the petitioner had not affixed his photograph on a forwarding letter. Being aggrieved thereby, the petitioner has approached this Court.

5. Heard Mr. R.S. Parsodkar, learned counsel for the petitioner, Mr. C.S. Samudra, learned counsel for respondent nos. 1 and 2 and Mr. R.R. Dawada, learned counsel for the intervenor lowest bidder.

6. Mr. Parsodkar, learned counsel for the petitioner submits that the petitioner's bid is rejected on a hyper technical ground that he had not affixed the photograph on a forwarding letter. He submits that on the very next page i.e. an undertaking, the petitioner had very much affixed his photograph. Relying on the judgments of the Apex Court in the case of G.J. Fernandez v. State of Karnataka and others reported in (1990) 2 SCC 488 and in the case of Poddar Steel Corporation v. M/s Ganesh Engineering Works reported in AIR 1991 SC 1579, the learned counsel submits that the condition of affixing a photograph on a forwarding letter cannot be construed to be an essential condition. He, therefore, submits that the rejection of the petitioner's bid on a hyper technical ground is not sustainable.

7. Mr. Parsodkar further submits that the petitioner's bid is 40% above schedule of rates (hereinafter referred to as "ASOR" for short) or even lesser than that, whereas the intervenor's bid is 89% ASOR. It is, therefore, submitted that a huge financial burden would be put on respondent nos. 1 and 2 if the bid of the intervenor is accepted and the petitioner is kept out of fray.

8. Mr. Samudra, learned counsel appearing on behalf of respondent nos. 1 and 2, relying on the recent judgment of the Apex Court in the case of Central Coalfields Limited & Anr v. SLL-SML (Joint Venture Consortium) & ors (decided on 17.08.2016) submits that as to whether the tender condition was an essential or not, has to be viewed from the angle of the employer. He submits that from the view point of the employer, affixing a photograph on the forwarding letter is an essential condition and the rejection of the tender on such ground cannot be faulted with. On a specific query as to whether the petitioner's technical bid is rejected on any other ground also, the learned counsel fairly concedes that it is rejected only on the said ground and that the petitioner is otherwise qualified in the technical bid.

9. Mr. Dawada, learned counsel appearing on behalf of the intervenor submits that the petitioner is also disqualified in view of sub-clauses (ii) and (iii) of Clause 4 of the tender document inasmuch as the tender awarded to him by the Collector, Nagpur for supply of sugar was terminated by the Additional Collector, Nagpur on 19.1.2011 for the tender period between 2010 and 2013 and that his earnest money deposit was also forfeited. The learned counsel submits that since the said tender was to expire in 2013, disqualification would start from 2013. He, therefore, submits that on this ground also the petitioner is not permitted to participate in the tender.

10. For appreciating rival submissions, i