S.R. BRAHMBHATT, J.

1. Rule. Learned counsel Ms.Vishen, waives service of notice of Rule on behalf of respondent no.1, Shri Dayani, learned counsel waives service of Rule on behalf of respondent no.2 and as the issue is in narrow compass and learned counsels were heard extensively at their requests, rule is fixed forthwith.

2. The petitioner, a registered Partnership Firm having AA class registration with Executive Engineer, (R&D) Division, Mehsana, has taken out this petition under Articles 226 of the Constitution of India with following prayers:

“(A) Your Lordships may be pleased to admit present petition;

(B) Your Lordships may be pleased to issue writ of mandamus or any other appropriate order or direction by quashing and setting aside the action of Respondent inJob No. 54/2017-18 (ROB) Bridge-2), Tender ID-280713 for Construction of Railway Over bridge-cum- Flyover Bridge at L.C.No. 10X on SP Ring Road of AUDA Near Ranasan.

(C) Your Lordships may be pleased to issue appropriate writ of mandamus or any other appropriate writ, order or direction by directing the Respondent to qualify the petitioner for Tender Notice Job No. 54/2017-18 (ROB) Bridge-2), Tender ID-280713 for Construction of Railway Over bridge-cum-Flyover Bridge at L.C.No. 10X on SP Ring Road of AUDA Near Ranasan.

(CC) Your Lordships may be pleased to quash and set aside the award of contract for construction of Flyover (ROB) on S.P. Ring Road at Ranasan Junction in AUDA area (Job. No. 54/2017-18) to respondent No. 2”

(D) By way of interim relief, restrain the Respondent from issuing the Work Order to any other tenderer for Tender Notice Job No. 54/2-17-18 (ROB Bridge-2), Tender ID 280713 for Construction of Railway Over bridge-cum-Flyover Bridge at L.C.No. 10X on SP Ring Road of AUDA Near Ranasan

(E) Such other and further reliefs as may be deemed fit in view of the facts and circumstances of the case be granted.”

Thus, essentially what is under challenge is the action of respondent no. 1 in disqualifying the petitioner for non submission of Earnest Money Deposit in prescribed mode i.e. either by Demand Draft /Bankers’ Cheque/pay-order of approved Bank and instead thereof furnishing it by way of Fixed Deposit Receipt (FDR for short) in the name of the respondent no.1. while submitting his offer pursuant to Tender Notice Job No. 54/2017-18 (ROB) Bridge-2), Tender ID-280713 for Construction of Railway Over bridge-cum-Flyover Bridge at L.C.No. 10X on SP Ring Road of AUDA Near Ranasan (hereinafter in this judgment and order referred to as 'tender notice for work in question'), award of contract to Respondent No.2 and has sought appropriate order and direction to respondent no. 1 for qualifying the petitioner for said tender notice and work in question.

3. Facts in brief leading to filing this petition as could be gathered from the memo of petition, annexures and documents, deserve to be set out as under in order to appreciate the real controversy between the parties.

4. The respondent no. 1, through approved agency invited On-line tenders (E-tender) vide tender notice for site in question. The last date of on-line submission was 12.10.2017. The pre-bid meeting was to be held on 03.10.2017 / 15:00 hrs at AUDA Office Building. The respondent no. 1 fixed 13.10.2017 / 18:10 hrs for preliminary verification of documents.

The technical bids were to be opened on 13.10.2017 / 18:10 hrs and price bid were to be opened on 13.10.2017 / 18:15 hrs. For both these dates, it was mentioned as “if possible”.

5. The respondent no. 1 has fixed estimated cost of work at Rs.55,20,05,940/- and earnest money deposit (EMD hereafter) of Rs.55,20,059/-,being 10% of the estimated cost, was required to be submitted. As per say of petitioner and as per tender document available on record, the EMD was required to be furnished from Nationalized Bank and as per government of Gujarat approved