B.P. Katakey, J.

1. A notice inviting tenders, in two bid system i.e. technical bid and financial bid, for shifting of Assam State Electricity Board (ASEB) "line and sub-station including dismantling of existing circuit at different locations under the jurisdiction of SESD, SESD-I, SESD-II, SESD-III & UESD of CAEDCL to facilitate the construction work of Silchar by-pass road (Package No. NH(Elect)/SIL/2010-11/04) with approximate value of Rs. 605.22 lakh, was issued by the Chief Engineer, PWD (NH Works), Assam, on behalf of Governor of Assam, pursuant to which 3(three) bidders, namely, Shri Kamal Singh Dugar (writ petitioner), M/r. Dutta Electricals (respondent No. 5) and M/s. Assam Electricals submitted their bids. The technical evaluation committee having found the bids of the writ petitioner and the respondent No. 5 being responsive, the Addl. Chief Engineer, PWD (Electrical), Govt. of Assam, vide communication dated 09.05.2011 informed the writ petitioner and the respondent No. 5 about the same and requested them to attend the office at the time of opening of the financial bids. The writ petitioner has challenged the decision of the technical evaluation committee as well as the decision of the respondent authority as communicated by the aforesaid communication dated 09.05.2011 to open the financial bid of the respondent No. 5, on the ground that the bid of the said respondent being violative of the instruction to bidders (ITB), laying down the qualification, the decision to open its financial bid is illegal. I have heard Mr. N. Dutta, learned Sr. counsel for the petitioner, Mr. U. Rajbangshi, learned standing counsel appearing for the respondent Nos. 1 and 2 and Mr. D.K. Misra, learned Sr. counsel appearing for the respondent No. 5. None appears for the other respondents.

2. Mr. Dutta, learned Sr. counsel for the petitioner referring to the clauses 4.3(g) of the 'qualification of bidders' and 4.5.3(b) of 'general experience' as stipulated in the ITB, has submitted that to become technically responsive, a bidder must have experience of completion of similar nature of single work in any single year during last 5(five) years, value of which shall not be less than 40% of the total tender value. According to the learned Sr. counsel the experience of the bidders must relate to the completion of similar nature of single work in any single year during the last financial year of not less than 40% of the total tender value, as stipulated in clause 4.3(g) and the respondent No. 5 having not completed the similar nature of single work in any single year, the value of which is 40% of the total tender value, they cannot be held to be technically responsive. It has also been submitted that since the project, which was shown as experience by the respondent No. 5, was executed by a joint venture, of which the respondent No. 5 was a member, the weightage towards experience of the said respondent in respect of the said project is to be given in proportion to his participation in the joint venture, which is being 33.33%, it did not have the required experience of executing similar nature of electrical work of the value of at least 40% of the value of the proposed contract. According to the learned Sr. counsel, the respondent authorities while scrutinizing the technical bid of the respondent No. 5, relating to the experience, did not consider the fact of completion of the project shown as experience by a joint venture vis-a-vis the respondent No. 5's proportionate participation in the joint venture. Referring to the proceeding of the technical evaluation committee dated 13.04.2011, which is available on record, it has also been submitted by the learned counsel that it is evident therefrom that the respondent No. 5 do not have the experience in the similar nature of electrical work as required by clauses 4.3(g) and 4.5.3(b), as in the remark column of such evaluation, the technical evaluation committee mentioned that the respondent No. 5