The judgment emphasized the distinction between essential and non-essential conditions of a contract and the authority's discretion to deviate from the terms of the tender notice.

K.M. Joseph, J.

Appellant is the writ petitioner. Pursuant to an advertisement dated 04.08.2017 issued by the second respondent/Board to settle the right to carry out fishing, the appellant/writ petitioner also made its bid. The advertisement actually contemplated a two stage bid process, namely, the technical bid followed by the financial bid. Only those, who were found to be declared qualified in the technical bid, could have their financial bid opened. The appellant’s/writ petitioner’s technical bid did not pass muster. This was for the reason that he did not produce the security, in respect of the earnest money, in the form of a Bank draft from a nationalized bank as contained in Clause 5 of the advertisement. The said clause reads as follows:

“5. For participating in tender process for the contract of fishing in the Dhaura Reservior, every bidder shall have to annex along with the tender form the advance amount of Rs. 2.349 Lakh (Rs. Two Lakh Thirty Four Thousand and Nine Hundred only) in the form of a bank draft issued by any nationalized Bank. Draft shall be issued in favour of Secretary, Uttarakhand Rajya Matsya Palak Vikas Abhikaran, Dehradun.”

2. The appellant/writ petitioner, it appears, had produced towards the earnest money, a Bank draft issued not by a nationalized Bank but by the Axis Bank, which is a Scheduled Bank. The learned Single Judge did not find favour with the contentions of the appellant/writ petitioner and dismissed the writ petition. Hence, the appellant/writ petitioner is before us.

3. We heard Mr. S.K. Mandal, learned counsel on behalf of the appellant/writ petitioner and Mr. Paresh Tripathi, learned counsel on behalf of respondent no. 2/Board.

4. Mr. S.K. Mandal, learned counsel for the appellant/writ petitioner would submit that the appellant/writ petitioner having produced the Bank draft from the Axis Bank, which is a Scheduled Bank, must be treated as having complied with the condition. What is more, he further drew our attention to the Government Order pursuant to which the entire advertisement was issued, namely, Government Order dated 09.08.2012. Condition No. 2 of the said Government Order reads as follows:

“2. In Fishing Procedures/Management of reservoirs situated in Uttarakhand the compliance of Uttarakhand Procurement Rules, 2008 shall be ensured and contract for fishing will be made through tender process.”

5. Learned counsel for the appellant/writ petitioner further drew our attention to Clause 4 of the Proposed Terms of Contract, which are annexed with the order dated 17.07.2017. The said clause reads as follows:

“4. While submitting the bids it will be necessary to annex along with the bid the advance amount of 10 percent of the reserved value in the form of Bank Draft and the successful bidder have to deposit 25 percent of the tender money immediately. In case of non-deposit of 25 percent money the advance money shall be confiscated. 5 percent security deposit of total contract amount of 5 years through N.C.C. or F.D.R. in favour of Secretary, Uttarakhand Rajya Matsya Palak Vikas Abhikaran shall be deposited along with the agreement in the presence of Secretary, Uttarakhand Rajya Matsya Palak Vikas Abhikaran.”

6. Still further, having made reference to Clause 2 of the Government Order dated 09.08.2012, which, in turn, makes reference to the Uttarakhand Procurement Rules, 2008, learned counsel for the appellant/writ petitioner drew our attention to Clause 20 of the Uttarakhand Procurement Rules, 2008. The same reads as follows:

“Bid Security or 20(1) Earnest Money

To safeguard against a bidder’s withdrawing/altering its bid during the bid validity period in the case of advertised or limited tender enquiry, bid security (also known as earnest money) is to be obtained from the bidders except those who are exempted under specific provisions of law or rules. Amount of bid security should ordinarily range between 2% to 5%. The given percentage will depend on the total cost of the goods a