JUDGMENT :

S.V. GANGAPURWALA, J.

1. Rule. Rule made returnable forthwith. With the consent of the parties, matter is taken up for final disposal at admission stage.

2. The respondents issued composite tender calling upon the prospective contractors for execution of different K.T. Weirs, Khadakwadi, Waranwadi, Taluka Parner, District Ahmednagar.

3. Seven tenderers participated in the process. Upon opening the technical bid, six including petitioner were disqualified. Respondent no. 5 was held to be qualified in the technical bid. The petitioner assails its disqualification and also the act of the respondents - authorities declaring respondent no. 5 as technically qualified.

4. Under order dated 19.9.2019, we had directed that if the work order is not issued, the same shall not be issued till next date.

5. It is submitted that the work order is issued to respondent no. 5 on 9.9.2019. According to the learned Counsel for the petitioner the work order alleged to have been issued to respondent no. 5 is not yet uploaded on website. The learned A.G.P. on instructions of the Officer present in the Court accepts that the issuance of work order to respondent no. 5 is not yet uploaded on the website.

6. The petitioner is disqualified on two grounds: (i) not possessing the certificate of Registration under Clause (5), Sub-Clause (1) of Maharashtra State Professional Tax Rules 1975 and (ii) not submitting copy of letter of Employees Provident Fund Organisation allotting code number under EPF and Miscellaneous Provision Act 1952 with updated clearance/No due certificate. The petitioner is assailing the qualification of respondent no. 5 on the ground that respondent no. 5 does not possess the registration certificate of the contractor with Public Works Department, Government of Maharashtra.

7. Mr. Gawali, learned Advocate for the petitioner submits that PTE and PTR Registration Certificate is possessed by the petitioner, however, could not upload the same along with the tender document. He further submits that the petitioner has only four employees, as such does not require registration under EPF. The learned Counsel further submits that the conditions of submitting PTE and PTR Registration Certificate, EPF are ancillary conditions and not mandatory. The respondents could have sought clarification from the petitioner as is provided under the tender document under the head “Opening of online tenders Technical bid (Envelope no. 1).” The learned Counsel submits that the petitioner is disqualified on the ground that the petitioner has not submitted the aforesaid certificate. However, respondent no. 5 though on the relevant date was not possessing the registration certificate with Public Works Department is held to be eligible. Different yardstick is applied to the petitioner and respondent no. 5. Learned Counsel also relies on Clause 12.3 of Government Resolution dated 30.11.2018 to contend that if single person is technically qualified and if his bid is more than the estimated cost, then the second tender is to be issued. The bid of respondent no. 5 was 4.90% above the estimated cost. The respondents had no option but to go for fresh tender process.

8. The learned A.G.P. submits that the submission of registration certificate is mandatory. The clause in the tender is clear. He relies on Clause 14 (d) of the tender document. The learned A.G.P. further submits that after negotiations, respondent no. 5 reduced his rate to that of the estimated cost and as such was allotted the tender. Negotiation is permissible under Clause 21 of Government Resolution dated 30.11.2018.

9. Mr. Sapkal, learned Counsel for respondent no. 5 submits that the respondent no. 5 possessed the registration certificate of the Contractor with Public Works Department. The certificate was valid up to 25.2.2019. As per the Government Resolution dated 20.4.1998, the same was extended up to 24.8.1999 and application for renewal of registration is given on 2.6.2019. On the date of submission