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Judgment
Petitioner has challenged order dated 23.05.2026 passed by Tender Evaluation Committee whereby his technical bid was rejected. The reason indicated for rejecting petitioner’s technical bid is reproduced below:-
“As per Sec. III, ITB 12.1, 12.2, 12.3 the bidder do not upload the scanned copy of the FDR for EMD.”
Learned Senior Counsel for the petitioner submits that reason indicated for rejecting petitioner’s technical bid is factually incorrect and petitioner, in fact, had uploaded scanned copy of FDR for earnest money deposit.
Learned State Counsel, on instructions, concedes that petitioner uploaded scanned copy of FDR for EMD. He, however, drew attention of this Court to the averment made in para 7 of the supplementary counter affidavit dated 08.07.2026 filed by Mr. Krishan Kumar, Executive Engineer, Temporary Division, Bhowali Public Works Department. Learned Senior Counsel for the petitioner, however, referred to para 10 of the said affidavit. Para 7 and 10 of the said supplementary counter affidavit are reproduced below:
“7- That the petitioner failed to fill out the required checklist, specifically Form Tech 18. In Column 12 of the form, which is meant for the Earnest Money Deposit (EMD), the petitioner wrote "no response" instead of providing submission details. The petitioner failed to provide an index or page numbers for their submitted documents, making verification difficult. For kind perusal of this Hon'ble Court the copy of incomplete form submitted by the petitioner is being annexed herewith and marked as Annexure SCA-1.
Whereas, Respondent No. 6 and 7 successfully completed all formalities. The properly filled Form Tech 18, including a structured index and proper pagination done by Respondents 6 and 7, is submitted as Annexure SCA-2.
10-That the official respondents respectfully submit that if, upon such re-examination, the petitioner's Bank Guarantee is found to be in accordance with the tender conditions, the consequential steps including the technical evaluation, financial bid stage, and the letter of acceptance / work order issued in favour of respondent no.6 shall be reconsidered and shall remain subject to further orders of this Hon'ble Court.”
Learned State Counsel defended rejection of technical bid of the petitioner by contending that there were other deficiencies in petitioner’s technical bid. We, however, are not impressed by said contention, as validity of the impugned rejection order has to be tested based on the reason indicated in that order. New reasons cannot be permitted to be supplied through counter affidavit, as held in the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and others, reported as (1978) 1 SCC 405.
Since employer has taken a stand before us that petitioner had uploaded scanned copy of the FDR for EMD, therefore the reason indicated for rejecting petitioner’s technical bid do not survive.
We, therefore, dispose of the writ petition with a direction to the competent authority to undertake exercise in terms of the assurance given in para 10 of supplementary counter affidavit dated 08.07.2026. This order, however, will not come in the way of the employer examining petitioner’s eligibility as per the terms and conditions set out in notice inviting tender or standard bidding document.
Needful shall be done by the competent authority/employer, as per law, within one week from date of presentation of certified copy of this order.
Interim order dated 11.06.2026 stands vacated.