M.N. Bhandari, J.

1. By this writ petition, challenge is made to the orders dated 14/15.3.2016, 22.3.2016 and 30.3.2016 by which earnest money was forfeited and the petitioner was debarred to participate in the tender for one year. The direction is also sought for refund of earnest money of Rs. 4 lakhs. Learned counsel submits that pursuant to e-tender floated by the respondents, petitioner participated in the bid for supply of approximately 6012 Qunt. TFL (5 kg. cloth packing) Hybrid Muticut Sorghum Sudan Grass (SSG) seeds at various Milk Unions/Farms in the State of Rajasthan for the year 2015-16.

2. After opening technical bid, financial bid was also opened where petitioner stood L-4. The offer given by the lowest bidder (L-1) was accepted but it did not execute the agreement or the work. The same position remains with other lowest bidders L-2 and L-3. The bid of the petitioner was then accepted without a counter offer. As per the procedure given in the Rajasthan Transparency in Public Procurement Rules, 2013, the counter offer is to be given in case lowest bidder fails to perform the work. It is to be given to the next lowest bidder i.e. L-2 and in case of his failure, to give counter offer to L-3 and so on.

3. In the instant case, on failure to execute the agreement and work by lowest bidders, counter offer was not given to L-2 and on its failure, to L-3 and finally, to the petitioner, who was L-4 thus Rule 69 of the Rules of 2013 has not been followed. In absence of compliance of the Rule 69, acceptance of the offer given by the petitioner becomes illegal. It could not have subjected to forfeiture of the earnest money and at the same time, debarration to participate in the tender for a period of one year.

4. It is also stated that the offer given by the bidder needs to be accepted within a period of 20 days but, in the instant case, it took around three months thus procedure therein was also floated by the respondents. It is lastly submitted that earnest money of the contractors L-1 to L-3 was not forfeited but, in a discriminatory manner, it has been forfeited in the case of the petitioner thus for all these reasons, impugned orders deserve to be set aside with a direction to the respondents to refund the earnest money of Rs. 4 lakhs and not to debar him.

5. Learned counsel for respondents have contested the writ petition. It is submitted that after floating e-tender, bids were given by various parties. After opening the technical bid, financial bid was opened for those who remained successful in technical bid. The petitioner was successful in the technical bid thus its financial bid was also opened. He remains L-4. The offer given by the lowest bidder i.e. L-1 was accepted but he did not execute the agreement. The bid of the next bidder i.e. L-2 was accepted and on his failure to execute the agreement, bid of L-3 was accepted and, on his refusal, it was given to the petitioner. The respondents did not take time in acceptance of the offer of the petitioner. It was taken immediately when agreement was not executed by the first three bidders. The acceptance of the bid of the petitioner was on the rates given by him and not at a lower rate so as to send counter offer or to call him for negotiation, rather, it is not even permissible under Rule 69 of the Rules of 2013. When the petitioner refused to perform the work after acceptance of his bid, consequence followed and accordingly, earnest money was forfeited with debarration of the petitioner for a period of one year which expired today i.e. 30.3.2017 thus so far as debarration is concerned, it has already lived its life. Taking into consideration the facts aforesaid, writ petition deserves to be dismissed.

6. An argument of maintainability of the writ petition in reference to clause for arbitration has also been made.

7. I have considered rival submissions of the parties and perused the record.

8. It is not in dispute that after e-tender for supply of approximately 6012 Qu