The central legal point established in the judgment is the interpretation of prequalification criteria and essential conditions in a tender process, emphasizing the limited scope available to interpret the terms and conditions of a contract.

B.P. Dharmadhikari, J.

1. Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties.

2. The second tender floated by respondent no.1 Nagpur University for pre and post examination work (hereinafter mentioned as “EMS Work”) on 13.07.2016 forms the subject matter of present petition. There was earlier tender in June-2016, in which the petitioner did not participate. Respondent no.5 in the present matter, did participate in it. On 04.11.2016, there has been the third tender process and respondent no.5 responded even thereto. The petitioner did not find it proper to participate in it because the second tender process and his exclusion therefrom is questioned by him in the present petition.

3. In the present petition, on 30.11.2016, this Court has subjected the tender process initiated in pursuance of tender notice dated 04.11.2016 to result of this petition. This Court at that juncture has used the words “second tender” as, July-2016 tender has been treated as first tender. The June-2016 tender was then not before the Court.

4. The submission of Mr. Shrivastava, learned Advocate for the petitioner is, as the petitioner was the only eligible bidder for allotment of work in tender dated 13.7.2016, he has been eliminated by giving incorrect or wrong reason. He points out that respondent no.5 had also then participated, but his tender was submitted to entirely different University and advertisement/tender number mentioned in the tender form was also different. Hence, under the guise of no 'proper response', the tender process was cancelled and then third tender process was initiated on 04.11.2016. He submits that if there was no proper response to July-2016 tender, the tender conditions would have been relaxed to attract more bidders, but then with a view to eliminate the petitioner, the condition was made more stringent. Number of students handled by such bidder was increased to see that only respondent no.5 qualifies.

5. In this background, learned Advocate for the petitioner invited our attention to Clause 1.4 of NIT to show that there even self-declaration of the bidder is found sufficient. The petitioner met with all requirements. He had implemented similar EMS work for three Universities in last three years put together and also did satisfy requirement of service to at least 5 lakh students during said period. Two experience certificates, issued by two Universities, were with him. Those certificates with self-declaration were already submitted. He states that the third experience certificate from one University has been received later on and it has been filed along with the present petition. He invites our attention to the Certificate dated 14.12.2016, issued by Maharaja Chhatrasal Bundelkhand University, Chhattarpur (M.P.).

6. By placing reliance upon the judgments of the Hon'ble Apex Court, reported in (2013) 10 SCC 95 in the case of Rashmi Metaliks Limited and another .vs. Kolkata Metropolitan Development Authority and others ; (2009) 1 SCC 589 in the case of Ganpati RV-Travellers Alegria Track Pvt. Ltd. .vs. Union of India and another ; and (1990) 2 SCC 488 in the case of G.J. Fernandez .vs. State of Karnataka and others, the learned Advocate for the petitioner submits that the requirement of third experience certificate could not have been treated as an essential condition. He argues that therefore, as the petitioner was the only eligible bidder in response to July-2016 tender, his bid could be accepted and the work should be awarded to the petitioner.

7. Mr. Patil, learned Advocate for respondent nos.1 to 4 and Mr. Naik, learned Advocate for respondent no.5 are opposing the petition. Mr. Patil, learned Advocate relied upon the reply affidavit.

8. Mr. Patil, learned Advocate submits that Clause 1.4 in NIT is about prequalification criteria and only those bidders, who fulfilled the same, were eligible to participate further. As the petitioner did not produce