ORDER :

1. Petitioner has preferred the instant petition with a prayer to quash the report of Technical Evaluation Committee dated 15.07.2021 and order dated 24.07.2021 whereby, the e-tender dated 03.03.2021 has been cancelled and recalled by the respondents. Subsequent notice inviting tender dated 29.07.2021 issued by respondent No. 2 is also sought to be quashed. Further prayer has been made to direct respondent No. 2 to open the financial bid of petitioner in pursuance to notice inviting tender dated 03.03.2021.

2. On 03.12.2020, Chief Engineer National Highways, Public Works Department, Himachal Pradesh (for short the “Employer”) issued Notice Inviting Tender (for short, “NIT”) for work of improvement of road safety from km 200/00 to 219/350 of NH-22 (New NH-05) Kalka-Shimla-Wangtoo Road in selected stretches in the State of Himachal Pradesh on EPC mode.

3. In pursuance to issuance of NIT, total six tenderers submitted their bids but none of the bids were found technically responsive. The Technical Evaluation Committee decided to cancel and recall the tender.

4. On 03.03.2021, second NIT was issued by the employer for the above noted work. The estimated cost of the work was Rs. 8.04 crores. Total five bids were received by the employer including that of petitioner.

5. Except for the bid of petitioner, all other bids were found technically non-responsive. The Technical Evaluation Committee, however, on 15.07.2021 decided that since a single bid was successful in technical evaluation, it was necessary to recall and cancel the NIT in order to promote healthy competition in the similar nature of works.

6. Aggrieved against the cancellation of NIT, petitioner preferred representations to the employer on 18.07.2021 and 24.07.2021 but without any result.

7. Petitioner having failed to get redressal of his grievance from respondents has approached this Court by filing instant petition. The action of respondents is alleged to be reflective of discriminatory and pick and choose policy. It has been averred that in identical circumstances respondent No. 2 has awarded the work in the case of Thalout- Thachi-Somgad Road. Further case of the petitioner is that when the tender process is initiated second time, the respondents were under a mandate to consider the opening of financial bid even of a single successful bidder in terms of the instructions dated 27.04.2008 issued by Ministry of Road Transport and Highways, Government of India (for short “MoRTH”) to the Secretaries of State PWDs dealing with National Highways, Engineer-in-Chief/Chief Engineer of State PWDs dealing with National Highways besides others. As per the case of petitioner, the bid in question could not be termed to be a single bid only because out of five bidders only one had been found technically responsive. The action of the respondent has been accused of being against public interest.

8. Per contra, respondents in their reply have defended their action on the ground that there was only single bid and their being no competition, the recalling of tender was necessitated to ensure the healthy competition amongst bidders.

9. We have heard learned counsel for the petitioner as also learned Advocate General for the respondents.

10. The work involved in the NIT pertains to improvement of Road Safety by provision of crash barriers on certain portions of NH-22 Kalka-Shimla-Wangtoo Road under EPC Mode. The NIT was issued by the office of Chief Engineer National Highways HPPWD for MoRTH.

11. The relevant extract of decision dated 15.07.2021 of the Technical Evaluation Committee (for short “TEC”) whereby the NIT was cancelled and recalled reads as under:

“4. From the above summary it is evident that total five no bidders participated in this tender, out of which four bidders were found technically non-responsive and only one bidder was found technically responsive in this 2nd call for opening of financial bid. The above detail clearly imply that after the four bidders have been found techn