IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18642 of 2009 1. HITECH HEALTH CARE THROUGH ITS PROPRIETOR SRI BISHNUDEO THAKUR AYACHINAGAR, BENTA, P.S.LAHERIASARAI,P.O.D.M.C., DISTT-DARBHANGA Versus 1. THE STATE OF BIHAR THROUGH ITS SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT GOVT. OF BIHAR,NEW SECRETARIAT, PATNA 2. THE REGIONAL DEPUTY DIRECTOR , HEALTH SERVICES DARBHANGA DIVISION , DARBHANGA 3. THE DISTRICT COLLECTOR SAMASTIPUR 4. THE COMMISSIONER DARBHANGA DIVISION , DARBHANGA 5. CIVIL SURGEON - CUM- CHIEF MEDICAL OFFICER SAMASTIPUR 6. DISRICT PURCHASE COMMITTEE SAMASTIPUR ----------- For the petitioner :- Mr. S. S. Dwivedi, Sr. Advocate & Mr. Vinay Kirti Singh. For the State :- Mrs. Binita Singh, J.C. to AAG III ------- 4 23/02/2010 Notice inviting tender was published in Hindi paper “Hindustan” on 1.7.2009. The said notice is annexure-2 to the writ application. This notice has been issued on behalf of the Civil Surgeon-cum-Chief Medical Officer, Samastipur. The tender invited is for supply of various medical equipments, medicines etc. for which terms and conditions have been laid down in so many words. The petitioner was one of the - 2 - persons who filed his tender papers along with 15 others. His technical bid on scrutiny was rejected and reason thereof was communicated vide letter dated 2.12.2009 (Annexure-1). This communication has become the subject matter of challenge in the present writ application. From perusal of the said communication, reason for disqualification of the petitioner is that he did not file an affidavit sworn before the Executive Magistrate in spite of the conditions laid down in clause 5 of the notice inviting tender. Learned Senior Counsel representing the petitioner submits that the reason held out against the petitioner is not fatal. It is not an illegality but an irregularity and for a conduct of such kind, even though it will be an omission, consequence should not be rejection of the technical bid. The stand of the respondents State based on the counter affidavit which has been filed on their behalf is that it is not only the case of the petitioner where the technical bid has been rejected on such a ground, there are 11 other tenderers also who had filed affidavit sworn before the Notary Public and not before the Executive Magistrate. The Committee, therefore, decided to reject the technical bid of all - 3 - those 11 persons including this petitioner on the ground of breach of clause 5 of the notice inviting tender. Only four persons have filed affidavit sworn before the Executive Magistrate and they are ones whose technical bid has been found to be in order. When the terms and conditions inviting tender are laid down in clear terms then non fulfillment of such requirement generally is fatal for the person who has committed the breach. Even on the face of it, the breach may sound a little innocuous but the fact is that when there was a clear clause in the notice inviting tender that the affidavit must be duly sworn before the “DANDADHIKARI’, then filing of an affidavit duly sworn before a notarised public is not a compliance. It is also not the case of the petitioner that similar people have not been treated similarly. If 11 people stands disqualified for similar reason and the petitioner is one of them, then there is no special reason why the order in favour of the petitioner to accept his technical bid had to be entertained. If the petitioner has failed to understand the terms of the notice inviting tender, the failure is on his part - 4 - and not in the decision making process of the respondents. This writ application has no merit. It is dismissed. AMIN (Ajay Kumar Tripathi, J.)