Rajasthan High Court - Jodhpur

M/S Dara Engineering And ... vs State Of Rajasthan on 29 August, 2025

[2025:RJ-JD:38393]                   (1 of 13)                         [CW-12222/2025]


      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Writ Petition No. 12222/2025

M/s Dara Engineering And Infrastructure Pvt. Ltd., Having Its
Registered Office Situated At 42-A, Ajeet Colony, Opp. Balniketan
School, Ratanada, Jodhpur - 342001, Represented Through Its
Authorised Signatory Shri Daulat Singh S/o Shri Jagdish Singh,
Aged 37, Resident Of 29, Shekhawat House, Sangariya, Jodhpur
- 342013.
                                                                       ----Petitioner
                                     Versus
1.       State Of Rajasthan, Through Its Principal Secretary, Indra
         Gandhi Nahar Department, Jaipur.
2.       State Of Rajasthan, Through Its Chief Secretary (Budget),
         Department Of Finance.
3.       State Of Rajasthan, Through                     Its      Secretary,   Water
         Resources Department, Jaipur.
4.       Chief Engineer, Indra Gandhi Nahar Project, Bikaner, Sri
         Ganganagar Road, Ignp Colony, Bikaner - 334001.
5.       Additional Chief    Secretary,                Indra        Gandhi     Nahar
         Department, Jaipur.
6.       M/s Babu Lal And Company, Situated At C-202, M D Vyas
         Nagar, Bikaner, Rajasthan.
                                                                   ----Respondents


 For Petitioner(s)           :    Mr. Sharad Kothari.
                                  Mr. Pranjul Mehta.
 For Respondent(s)           :    Mr. N.S. Rathore, AAG with
                                  Mr. Ram Avtar Sikhwal, AGC and
                                  Mr. Arpit Samariya, AAAG
                                  Mr. Anand Purohit, Sr. Advocate
                                  assisted by Mr. Mayank Roy.

             HON'BLE MR. JUSTICE SUNIL BENIWAL

Order

Reserved on : 26/08/2025 Pronounced on : 29/08/2025

1. The petitioner has preferred the present writ petition with

the following prayers :-

"i- By an appropriate writ, order or direction the impugned order dated 18.06.2025 (Annex.14) passed by the Respondent No.2 be quashed and set-aside.

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ii- By an appropriate writ, order or direction the Petitioner's technical bid may be approved in light of the conditions enshrined in the NIT No.01/2024-25 (Bid No.5) and the Petitioner company may be declared as a responsive bidder.

iii- By an appropriate writ, order or direction it may also be declared that according to the conditions of bidding documents, pressurized water pumping for house hold is similar in nature work experience to the pressure irrigation system.

iv- By an appropriate writ, order or direction, during the pendency of this Writ Petition, if any work order is issued in favour of any participant bidder, the same may kindly be stayed.

v- Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstance of the case may kindly be passed in favour of the petitioner.

vi- Costs of the writ petition may kindly be awarded to the petitioner."

2. The facts as stated in the writ petition in nut-shell are that

the respondent No.4 floated a notice inviting bid dated 29.11.2024

(Annexure-2). The bid was invited for development of pressure

irrigation system in the remaining area of 18250 Htr. of Guru

Jambheshwar Lift Canal System of Indira Gandhi Nahar Project

Stage-II ('instant tender').

2.1 The petitioner along with two other persons being qualified

and interested in the instant tender participated in pre-bidding

meeting dated 06.12.2024, whereby clarification was sought with

regard to certain tender conditions. The clarification was issued on

06.12.2024 (Annexure-3). Later, vide communication dated

15.01.2025 (Annexure-4), the petitioner's bid was declared to be

non-responsive.

2.2 The petitioner being aggrieved by rejection of his technical

bid, preferred first appeal under the Rajasthan Transparency in

Public Procurement Act, 2012 on 16.01.2025 (Annexure-6) before

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the Principal Secretary, IGNP Department, Jaipur, which was

rejected vide order dated 16.04.2025 (Annexure-9).

2.3 The petitioner thereafter preferred second appeal on

28.04.2025 (Annexure-10) while challenging the order dated

16.04.2025, however, the second appeal too came to be rejected

by the Second Appellate Authority vide order dated 18.06.2025

(Annexure-14).

2.4 Being aggrieved by the rejection of the second appeal vide

order dated 18.06.2025, the petitioner preferred the present writ

petition.

3. Learned counsel appearing on behalf of the petitioner has

made the following submissions:-

(i)- The technical bid of the petitioner has been declared as non-

responsive on 15.01.2025 due to lack of experience for operation

& maintenance of pressure irrigation system despite the petitioner

having provided relevant experience certificate of operation &

maintenance of water supply system.

(ii)- The first appellate authority has dismissed the appeal vide

order dated 16.04.2025 while giving incorrect interpretation to

tender conditions and has relied on the clarification given pursuant

to the pre-bid meeting dated 06.12.2024.

(iii)- While pointing out Sr. No.2 & 5 of the clarification given on

06.12.2024 (Annexure-3), it is submitted that the query was

sought on some other aspect, whereas a clarification stating that

"operation & maintenance of pressure irrigation system is must

and operation & maintenance of water supply system will not be

considered, change in criteria is not admitted." has been added as

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an afterthought to accommodate private respondent, who has

apparently bid much higher than the petitioner.

(iv)- The requirement of operation & maintenance of pressure

irrigation system cannot be considered as key component as any

specified item will be considered as key component only if its cost

is at least 10% value of the whole work and as per the BOQ (Bills

of Quantity), the operation & maintenance of pressure irrigation

system is less than 10%.

In view of the above fact situation, the operation &

maintenance of pressure irrigation system cannot come in way of

the petitioner and the respondents have wrongly declared the

petitioner as non-responsive.

(v)- Note No.7 appended to Condition no.3 of Section 3 of the

NIB document, which clarifies as to what is work of similar nature

states that for pressure distribution pipe network, experience of

pressure distribution network in both irrigation and water supply

work shall be considered. In view of such explanation, it is stated

that the petitioner's bid was required to be considered as he is

having requisite experience in pressure water supply system.

(vi)- The clarification dated 06.12.2024 does not opine operation

& maintenance of pressurized house water supply system as being

not similar to operation & maintenance of pressure irrigation

system.

(vii)- The Second Appellate Authority has passed the impugned

order without application of mind and without considering the

submissions made by the petitioner in his memo of appeal so also

in his written submissions. The said Authority has assigned two

reasons and out of these two reasons, the reason No.1 is rather

[2025:RJ-JD:38393] (5 of 13) [CW-12222/2025]

supporting the submission made by the petitioner and the reason

No.2 has no relevance with the present controversy. While

elaborating the submission, it is stated that the first reason is

simply referring to the NIT conditions and the foot-note, which

even petitioner is not disputing and the second reason, which

relates to BOQ is having no relevance to the present controversy

as BOQ simply provides detail about the costing of different

segments of work. It is stated that as a matter of fact, the order

passed by the Second Appellate Authority is totally non-speaking

and unreasoned order.

(viii)- The Second Appellate Authority has neither considered the

submissions made by the petitioner nor has assigned any reason

as to on what basis the decision of the appellate authority is

justified.

3.1. In support of the submissions, the learned counsel for the

petitioner relied on the judgment passed by the Division Bench of

this Court in D.B. Spl. Appl. Writ No. 127/2022; LRs of Manphool

Ram Vs. The State of Rajasthan & Ors. (decided on 24.04.2024)

and submits that the Division Bench of this Court has disposed of

the appeal while observing that if the order of the appellate

authority is passed without considering the grounds and without

examining the memo of appeal, the order is nothing but only

amounts to performing of rituals. The Second Appellate Authority

has given no reason as to why Note No.7 appended to Condition

no.3 of Section 3 of the NIB document was not applicable in the

present case. As a matter of fact, Note No.7 clarifies the fact that

the operation & maintenance experience in pressure water supply

system would also be considered as a requisite experience for the

[2025:RJ-JD:38393] (6 of 13) [CW-12222/2025]

purpose of the present tender. That being so, the order passed by

the Second Appellate authority is non-speaking and deserves to be

quashed and set-aside.

3.2. In view of the submissions made above, learned counsel for

the petitioner submits that the experience as possessed by the

petitioner in operation & maintenance of the pressure water

supply system, as per the NIT conditions was required to be

considered in assessing the eligibility of the petitioner.

4. Per contra, learned counsel appearing for the respondent-

State makes the following submissions:-

(i)- Learned counsel submits that there are concurrent findings

of the First Appellate Authority so also the Second Appellate

Authority and therefore, no indulgence is required to be granted in

the present writ petition.

(ii)- The contract is, in fact, in two parts i.e. first with regard to

development pressure irrigation system and second with regard to

operation & maintenance. Learned counsel refers to point

No.6.1.1, which provides that if the tender conditions are not

fulfilled, the same is required to be rejected.

(iii)- It is the wisdom of the authority who has to decide the terms

and conditions of the contract. Therefore, petitioner cannot

question terms and conditions of the tender.

(iv)- The First Appellate Authority as well as Second Appellate

Authority has considered all the submissions made by the

appellant and thereafter passed a reasoned order which requires

no interference.

Learned counsel for the respondent-State relied on the

judgment passed by the Apex Court in the case of TATA Cellular

[2025:RJ-JD:38393] (7 of 13) [CW-12222/2025]

Vs. UOI, reported in AIR 1996 SC 11, which says that unless

there is perversity or illegality, the Court should not interfere in

contractual matters. He further relied on judgment passed by the

Apex Court in the case of Galaxy Transport Agencies,

Contractors, Traders, Transports & Suppliers Vs. New J.K.

Roadways, Fleet Owners and Transport Contractors & Ors.,

reported in (2021) 16 SCC 808 so also in Jagdish Mandal Vs.

State of Orrisa & Ors., reported in (2007) 14 SCC 517 while

highlighting that the scope of judicial review in such cases is very

limited and in view of the concurrent findings given by the two

authorities below, the discretionary remedy could not be exercised

in the present case and the petition, therefore, deserves to be

dismissed.

4.1 Learned Senior counsel Mr. Anand Purohit appearing on

behalf of the private respondent makes the following

submissions :-

(i)- Petitioner submitted two bids and both were rejected on the

same ground, however, the appeal was preferred only in relation

to one tender.

(ii)- The private respondent has fulfilled all the conditions and

therefore, respondents rightly proceeded to award the contract in

favour of the respondent. The petitioner sought clarification in the

pre-bid meeting and the issue as raised in the present writ petition

was also discussed there and it was made clear that the

experience required in pressure irrigation system is must.

(iii)- Petitioner is not having experience in pressure irrigation

system and therefore, his bid was rightly declared as non-

responsive.

[2025:RJ-JD:38393] (8 of 13) [CW-12222/2025]

(iv)- If the petitioner was eligible as per NIT conditions then there

was no occasion to seek clarification in the pre-bid meeting.

(v)- Petitioner has not alleged malafides and therefore, the

decision taken by the authorities in accepting the bid of private

respondent cannot be allowed to be questioned by the petitioner.

5. In rejoinder to the reply submitted by respective

respondents, learned counsel for the petitioner makes following

submissions:-

(i)- There is no question of alleging malafide as petitioner has

challenged the order of the Second Appellate Authority on the

ground that the impugned order is short of reasons and as a

matter of fact, the order impugned shows no application of mind.

(ii)- The second reason in dismissing the appeal as quoted in the

impugned order relates to BOQ, which defines the budgetary

provisions of the tender in question and as a matter of fact, BOQ

relates to allocation of budget under various heads and therefore,

second reason in the impugned order has no relevancy with the

issue as raised before the said Authority so also in the present writ

petition.

(iii)- The petitioner has given full details while submitting his first

appeal, second appeal and so also in the written submission

explaining as to how the pressure distribution system in water

supply is identical to that of operation & maintenance of pressure

irrigation system, however, no reason has been assigned as to

how the said explanation submitted by the petitioner is not

acceptable.

(iv)- Though the petitioner was eligible as per NIT conditions,

however, since there was anomaly in interpreting the tender

[2025:RJ-JD:38393] (9 of 13) [CW-12222/2025]

condition, for enhancement of the scope of the experience, the

clarification was sought in the pre-bid meeting. Whatever

clarification is given in the pre-bid meeting is not material rather

the present case is required to be considered in light of the tender

condition and if based on the tender condition, the petitioner is

found eligible then in that event the petitioner is required to be

treated as eligible.

6. Heard learned counsel for the parties and perused the

material available on record.

7. Before considering the submissions made by the respective

counsels on merits, it would be appropriate to first examine the

correctness of the order passed by the Second Appellate Authority.

7.1 A perusal of the second appeal indicates that the petitioner

has made his submission so as to justify his claim that experience

possessed by him for operation & maintenance of pressure water

supply system is similar to operation & maintenance of pressure

irrigation system. The petitioner has also submitted written

submissions and stated that in view of conditions No.7 & 8, the

experience possessed by him for operation & maintenance of

pressure water supply work is required to be treated similar and

sufficient enough to make him eligible for the bid in question.

7.2 The Second Appellate Authority in its order dated 18.06.2025

has recorded the submission made by the representative of

petitioner as point No.1, 2 & 3. It was specifically stated in point

No.2 that in view of Conditions No.7 & 8, the experience in

operation & maintenance of water supply is required to be treated

as similar and sufficient experience to make him eligible.

[2025:RJ-JD:38393] (10 of 13) [CW-12222/2025]

Another submission was made to the effect that the

petitioner submitted three experience certificates of pressure

distribution in water supply and elaborately explained as how

experience irrigation and water supply are similar. The

representative of the Department also made submissions

countering the submissions made by the representative of the

petitioner. The representative of the Department relied on the

foot-note of Condition 3(ii)(c). The representative of the

Department tried to justify that the experience in pressure

irrigation system is different from the experience in water

distribution system.

7.3 In view of the submissions made by the petitioner and the

representative of the Department, the Second Appellate Authority

was required to deal with the submissions made by the parties

before it.

7.4 Before proceeding further it would be appropriate to

reproduce the operative part of the order passed by the second

appellate authority :-

"mHk; i{kksa dks lquk x;k rFkk fcM nLrkostksa ,oa izLrqr

vfHkys[kksa dk esjs }kjk /;kuiwoZd voyksdu ds mijkar fuEu fu'd'kZ ij igqaprk gwWaw a%& 1- mikiu laLFkk }kjk fufonk dh "krksZa esa Operation &

Maintenance dh "krZ flapkbZ O;oLFkk ls lacaf/kr leku

izd`fr ds dk;Z ds fy, fu/kkZfjr dh xbZ gSA fufonk izi= ds

DykWt&lh ds QqVuksV esa mDr dk Li'V mYys[k fd;k x;k

gSA

[2025:RJ-JD:38393] (11 of 13) [CW-12222/2025]

2- BOQ ds fcUnq la[;k 3 esa Hkh mYys[k fd;k x;k gS fd

"maintaining equipment and records according to

RFPIM 2000 and imparting three season of training

in one year to members of WUA for operation and

maintenance of sprinklers systems and various

records."

mijksDr rF;ksa ds vk/kkj ij vihykFkhZ;ksa }kjk izLrqr

f}rh; vihy dks eSa [kkfjt djrk gwWa D;ksafd mikiu

laLFkk }kjk jktLFkku yksd mikiu esa ikjnf"kZrk fu;e 2013

ds fu;e 36 (2) (d) ,oa 38 (a) (ii) ds vuqlkj ,oa fufonk

izi= esa Li'V :i ls mYysf[kr "krksZa dh ikyuk djrs gq,

vihykFkhZ dks v;ksX; ?kksf'kr fd;k x;k gSA vr% izFke

vihyh; vf/kdkjh }kjk fn, x, fu.kZ; fnukad 16-04-2025 ls

eSa lger gwWaA

mHk; i{k lwfpr gksosa A"

A perusal of the finding given by the Second Appellate

Authority leaves no iota of doubt that it has not at all considered

the submissions made by the petitioner or by the Department. The

two reasons assigned while deciding the second appeal do not

indicate as to how the submissions made by the petitioner are not

acceptable and how submissions made by Department are

justified. In fact, the first reason appears to support the

contention made on behalf of the petitioner, as it states that the

tender conditions concerning operation and maintenance in

irrigation works relate to similar types of work. It further refers to

[2025:RJ-JD:38393] (12 of 13) [CW-12222/2025]

the footnote attached to clause (c), which clearly reinforces this

interpretation.

The second reason, wherein it refers to condition No.3 of

BOQ is a reason which is beyond comprehension as to how the

same is applicable while adjudicating the present dispute. The

BOQ is an estimated price schedule of different items of work

contract and also provides different works to be performed by the

successful bidder and therefore, the same has no relevancy to the

issue in hand.

8. Based on the above reasons, the Second Appellate Authority

proceed to observe that the authorities have complied with Rule

36(2)(d) & 38(a)(ii) of the Rules of 2013 and therefore, the

petitioner has rightly been declared as ineligible.

9. In opinion of this Court, the impugned order dated

18.06.2025 passed by the Second Appellate Authority is totally

non-speaking and shows total non-application of mind on the

submissions advanced by the respective parties. This Court does

not deem it appropriate to examine the submissions made by

respective parties on merits as any adjudication made on the

merits would certainly have impact on the adjudication to be made

by the Second Appellate Authority.