ORDER

1. The petitioner is a proprietorship firm run by its proprietor Smt. Varsha w/o Shri Pushpendra Jain, a citizen of India and a permanent resident of Indore. The respondent No. 1 is the Mahtama Gandhi Memorial Medical College, Indore, established and run by the Government of Madhya Pradesh is being represented by its Dean, while the respondent No. 2 is the Superintendent of respondent no. 1 Medical College.

2. Respondents M.G.M. Medical College issued an NIT on 26.6.2020 for purchase and supply of kits, chemicals, and other items for the use in laboratory and pathology of the hospital associated with the college for a period of one year. As per clause-4 of the NIT, the bidder has to submit the earnest money (EMD) to the tune of Rs.50,000/- in the form of FDR of any nationalized bank with a validity period of one year.

3. In pursuant to the aforesaid NIT, the petitioner also submitted its bid along with a bankers cheque of Rs.50,000/- as EMD. The tender scrutiny committee after examining clause-4 of the NIT has found that the petitioner did not comply with the condition of deposit of EMD by way of FDR and accordingly declared the petitioner ineligible vide impugned letter dated 14.7.2020, hence the present petition before this Court.

4. Shri A.K.Sethi, learned Senior Counsel for the petitioner submits that although the NIT specifically provides for submission of EMD by way of FDR but the said condition is not mandatory because the said EMD is liable to be returned to the unsuccessful bidder after opening the financial bid. The banker's cheque is valid for three months and the same is liable to be returned if the tender is rejected. He submits that every tender contains two types of conditions, some of them are mandatory, some are directory in nature. Looking to the nature of the tender clause-4 of the NIT is not a mandatory condition because the earnest money is secured even if given by way of banker's cheque. The submission of a banker’s cheque by the petitioner was a substantial compliance of the terms of the tender and that the respondents were not entitled to disqualify the petitioner from participating in the tender process in the absence of any disqualification clause in the tender document. He further submits that the respondents have issued the impugned communication without even considering that a banker’s cheque furnishes a higher level of security vis-a-vis FDR and that in such circumstances the submission of a banker's cheque by the petitioner could not have entailed in disqualification of the petitioner for participating in the tender process. In support of his contention, he has placed reliance over the judgment passed by the apex Court in the case of M/s Poddar Steel Corporation v. M/s Ganesh Engineering Works and others reported in AIR 1991 SC 1579. Shri Sethi learned Senior counsel further submits that as per the tender document the technical bid opening date was 10.7.2020 and the financial bid opening date was 13.7.2020 however, on 15.7.2020 the petitioner was served by a communication No. 12624/kray-vibhag/2020 dated 14.7.2020 informing that the petitioner has been declared ineligible for participating in the tender process on the ground of submission of a banker’s cheque instead of fixed deposit receipt (FDR) towards the earnest money/EMD.

5. Shri Pushyamitra Bhargava, learned Additional Advocate General appearing for the respondents submits that there is no ambiguity in clause-4 of the NIT which specifically provides that EMD is liable to be submitted by way of FDR with a validity period of one year because the tender is for one year. The EMD is liable to be forfeited if the successful bidder commits any default during the contract period. The condition is mandatory in nature and since the petitioner admittedly has not submitted the EMD by way of FDR with one-year validity, therefore, no fault can be found in the impugned action of the respondents. He further submits that in pursuant to the NIT the respond