Per SHREE CHANDRASHEKHAR, J.

Aggrieved by rejection of the bid submitted by SLL-SML Joint Venture Consortium, the petitioners have challenged communication dated 11.09.2015 whereby, rejection of the bid on the ground of ‘incomplete document’ was communicated.

2. The petitioner no.1 is a Joint Venture Consortium in which M/s Sical Logistics Limited–petitioner no.2 is lead partner. In response to e-Tender Notice dated 05.08.2015, petitioner no.1-JVC submitted its bid including, a Bank Guarantee for Rs. one crore as Earnest Money Deposit. On 11.09.2015, the offer of the petitioner-Joint Venture Consortium was summarily rejected on the ground of ‘documents incomplete’ and the Joint Venture Consortium was not allowed to participate in the reverse bidding. Immediately, through email the respondents were requested to disclose the details of incomplete documents submitted by the Joint Venture Consortium. On 15.09.2015, the respondent no. 3 disclosed that the BG was not in the prescribed format. A legal notice was issued to the respondent-CCL and M/s mjunction Services Pvt. Ltd. however, the respondents did not respond to the same. Constrained, the petitioners approached this Court.

3. Heard the learned counsel for the parties.

4. Mr. Ajit Kumar Sinha, the learned Senior Counsel for the petitioners raised two fold contentions; (i) NIT dated 05.08.2015 does not prescribe a format for BG. Moreover, the Bank Guarantee proforma for earnest money deposit/bid security in the general terms and conditions is almost similar to the Bank Guarantee furnished by the petitioners and therefore, the bid submitted by the Joint Venture Consortium has wrongly been rejected by the respondent-CCL and, (ii) the Bank Guarantee format and the condition at Clause 3 in e-Tender Notice dated 05.08.2015 mandate that the Bank Guarantee should be an irrevocable Bank Guarantee payable at Ranchi and the minimum validity period should be beyond 90 days. Since the BG submitted by petitioner no.1 fulfills the aforesaid three conditions, the bid submitted by it should not have been rejected on a hypertechnical plea. The respondent-CCL has asserted that the guideline dated 31.12.2007 issued by the Central Vigilance Commission has been followed by M/s CCL, and besides that, it is just in law to insist upon adherence to the conditions in NIT as well as the terms and conditions which formed integral part of NIT. It is pleaded that it is factually wrong to contend that no format for Bank Guarantee was provided.

5. Clause 3 of e-Tender Notice dated 05.08.2015 provides that, “EMD can also be deposited in the form of irrevocable Bank Guarantee (BG) from any Scheduled Bank in the format given in the bid document”. The General Terms and Conditions Governing Hiring of Equipment for Removal of Overburden, Extraction of Coal, Transportation and Loading in the areas of Central Coalfields Limited provides that the bid shall comprise of two parts. The part I bid should contain the Bid Security/Earnest Money Deposit in appropriate form. It is not in dispute that the proforma of Bank Guarantee in lieu of Bid Security/Earnest Money is given in the general terms and conditions. In their legal notice dated 16.09.2015 the petitioners admit that, “if any format is given, it is given in the general terms and conditions.” Referring to a decision in “Jalmahal Resources Pvt. Ltd. Vs. K. P. Sharma & Ors.” (2014) 8 SCC 804, the learned Senior Counsel for the petitioners submitted that if there is compliance of the essential terms of the tender, the Employer can waive a nonessential condition. It is contended that submission of Bank Guarantee is not an essential condition.

6. In “Jalmahal Resources Pvt. Ltd.” case, the Project was to be executed through a SPV and the appellant was a SPV. The objection that the lead partner must be a Company was rejected by the Hon’ble Supreme Court holding that it was not violation of a substantial condition of the tender. The petitioners have relied on th