ORDER :

Sanjay K. Agrawal, J.

1. The petitioner has filed this writ petition calling in question the impugned orders Annexures P-3 & P-4 by which the petitioner’s technical bid was not opened holding that he is not having the requisite technical experience of work for tender Nos.70662 Saja & 70660 Kurud. The petitioner has further questioned the order Annexure P-16 by which the NIT dated 18-1-2021 has been cancelled by the respondent University.

2. It is the case of the petitioner that though the petitioner made representation for opening of its technical bid for the work in question, but it was not considered and the technical bid was not opened nor informed and the tender in question has been arbitrarily cancelled by order dated 27-7-2021. It is the further case of the petitioner that experience of one another firm M/s. Kaushik Enterprises in which Dharmendra Kumar Kaushik & Rajiv Lochan Tiwari, both, are also partners, has also to be taken into account and therefore the petitioner has claimed that while counting technical experience, the experience of firm M/s. Kaushik Enterprises be also reckoned which has not been done and the issue is covered by the decision of the Supreme Court in the matter of New Horizons Limited and another v. Union of India and others, (1995) 1 SCC 478 in which their Lordships of the Supreme Court have held that the experience of partners of earlier firm will be treated as valid experience for the petitioner firm for obtaining any tender work. It is also the case of the petitioner that if the experience of the other firm in which partners are same is taken into consideration, the petitioner will have the requisite experience and will be entitled for tender work of Mahasamund. Prayer has been made for quashing Annexures P-3 & P-4 and Annexure P-16 by granting the writ petition.

3. Return has been filed mainly by respondent No.3 that the petitioner’s subject tender was not opened on the ground that it has submitted the experience certificate of M/s. Kaushik Enterprises instead of the petitioner herein / tenderer M/s. Kaushik Buildcon, which is not as per the terms of the NIT and therefore the tender of the petitioner firm was not accepted. It was further pleaded that as per clause 5 of the tender documents, the University will have full rights to reject or accept any tender and clause 4.5 also provides that the competent authority to accept the tender, reserves right to accept the tender for the whole work or reject the tender as a whole without assigning any reason and such decision shall not be open to challenge in any forum or court of law. Furthermore, the tender in question has already been cancelled in public interest and as such, the writ petition deserves to be dismissed.

4. Mr. Prateek Sharma, learned counsel appearing for the petitioner, relying upon the decision rendered by the Supreme Court in New Horizons Limited (supra), would submit that experience of M/s. Kaushik Enterprises in which Dharmendra Kumar Kaushik & Rajiv Lochan Tiwari, both, are partners, has to be taken into account for the purpose of experience and if their experience is considered, then the petitioner's firm would be eligible to participate in the tender and its technical bid has to be opened and, therefore, the writ petition deserves to be allowed by setting aside the impugned rejection and cancellation of tender as well.

5. Mr. D.N. Prajapati, learned counsel appearing for respondent No.3 – University, would submit that the petitioner has submitted tender in the name of M/s. Kaushik Buildcon and it has not been submitted in the name of joint venture company, in the name of partnership firm or it has not been stated that the petitioner firm is having any partner, consortium or joint venture, therefore, it cannot rely upon the technical qualifications of any third firm for its technical qualification. Furthermore, in public interest, the tender in question has already been cancelled, therefore, in light of the decision of the