JUDGMENT :

1. Heard Sri Arun Kumar Gupta, learned counsel for the petitioners, learned Standing Counsel for the respondent no.1 and Sri Pranjal Mehrotra, learned counsel for the respondents no. 2 & 3. By means of the present writ petition, the petitioners have prayed for issuance of writ of mandamus directing the respondents to accept and include E-Tender of the petitioners and consider the same at the time of finalizing the Bid, which is likely to be done on 28th February, 2019 or 1st March, 2019. Brief facts of the case are that the respondent no. 4 had invited E-Tender in the news paper (Hindustan) on 27.12.2018 for the construction of under ground two level parking in front of Varansi Kachehri between Circuit House and Commissioners Sabhagar. The date of opening of technical Bid was 28.01.2019 at 02.00 PM and finalization of Bid was 30.01.2019 at 12.00 noon. Clause 1 and 5 of the E-Tender is relevant, which reads as under:

**1- fufonk izi= dks mijksDrkuqlkj fu/kkZfjr ewY; o okafNr /kjksgj /kujkf'k dk Hkqxrku R.T.G.S. ds ek/;e ls ifj;kstuk izcU/kd LdkbZ&okjk.klh ds i{k esa vyx&vyx dk;kZsa gsrq fuEu fooj.k ds vuqlkj fufonk [kqyus dh frfFk ls ,d fnu iwoZ rd fd;k tk lds mijksDr dh LdSu izfr rduhdh fcM ds lkFk viyksM fd;k tkuk vfuok;Z gSA

Name of Holder :-Project Manager, Construction Unit-Varanasi, Uttar Pradesh Avas Evam Vikas Parishad A/C No. :-037001000030999

IFSC Code :- IOBA0000370

Name of Bank:-Indian Oversees Bank, Lahurabeer, Varanasi

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5- fufonknkrk dks fufonk Lohd`fr dh n'kk esa vuqcU/k iwoZ fufonk ds vuqlkj dk;Z dh dqy ykxr dk 10 izfr'kr ¼nl izfr'kr½ flQZ Hkkjrh; jk"Vªh;d`r cSad ,Q0Mh0vkj0@lh0Mh0vkj0 ds :i esa ifj;kstuk izcU/kd] fuekZ.k bdkbZ&okjk.klh] m0iz0 vkokl ,oa fodkl okjk.klh dsi{k esa cU/kd cukdj tek djuh gksxhA**

2. On 16.01.2019 the aforesaid notice of E-tendering was amended by the respondent no. 4 to the extent that only contractors of Clause A+ of U.P. Awas Evam Vikas Parishad would participate in the said E-Tender and date of technical Bid has been extended to 19th February, 2019 and the same was to be opened on 20.02.2019. The petitioners, after depositing tender fee of Rs. 17,700/-through RTGS (Real Time Gross Settlement) net banking, submitted its Bid on 19.02.2019 at 12.55 PM. On 18th February, 2019 the petitioners tried to make payment of Rs. 30 Lac through RTGS from Allahabad Bank but as the server of Allahabad Bank was down, no payment of Rs. 30 Lac towards earnest money could be made through RTGS. Then the petitioners prepared FDR of Rs. 30 Lac in favour of respondent no. 4 and pledged the same in the account of respondent no. 4 and annexed the certificate issued by the Allahabad Bank dated 18.02.2019 stating therein that the amount of Rs. 30 Lac has been pledged in the account of respondent no. 4, namely, Project Manager, U.P. Awas Evam Vikas Parishad, asAnnexure-10 to the writ petition.

3. On 20th February, 2019 technical Bid was opened but the Tender of petitioners was not included on the ground that earnest money of Rs. 30 Lac was not deposited through RTGS in terms of clause-1 of the NIT. It is this action, which is impugned in the writ petition.

4. The sole contention of learned counsel for the petitioners is that the server of Allahabad Bank was down and due to this technical fault the earnest money of Rs. 30 Lac was not deposited through RTGS but the same was deposited in the shape of FDR and thus, the necessary compliance of terms and conditions of NIT was made. The respondent Authority has committed an error in not opening the tender of petitioners along with intended bidders and therefore, the impugned action of the respondents is arbitrary and violative of Article 14 of the Constitution of India.

5. On the first date when the matter was listed for admission, we directed Sri Pranjal Mehrotra, learned counsel for the respondents to take instructions in the matter and to point out as to why tender of the petitioner was excluded from t