ORDER : Heard learned counsel for the petitioner and learned counsels for the State and for the respondent no.7. 2. The petitioner seeks a direction upon the respondents for consideration of the technical bid of the petitioner after setting aside the order rejecting its technical bid without assigning any reason and for consequential relief. 3. Pursuant to a tender notice published by the Executive Engineer, Road Construction Division, Gopalganj on 13.2.2014 for construction/improvement-cum-output and performance based Road assets maintenance work for Mairwa- Kuchaikote Road in 1st Kilometer to 12th Kilometer and 34th Kilometer to 42nd Kilometer under Works Division, Gopalganj the petitioner and respondent no. 7, which was in a joint venture with J.P. Construction, applied and there were only two bidders. Although the date of opening the technical bid was fixed for 24.2.2014 but admittedly the technical bid was opened on 1.3.2014 and the petitioner was declared disqualified. 4. It is the stand of the petitioner that the place for opening the technical bid was deliberately not mentioned in the notice inviting tender so as to assist the respondent no. 7 and reject the technical bid of the other tenderers. For the said reason the petitioner was unable to attend the opening of technical bid but subsequently learnt that the same had been rejected. 5. In the counter affidavit the ground for disqualifying the petitioner has been stated to be the petitioner’s poor performance and delay in progress of ongoing works under the Road Division No.1, Muzaffarpur for which the Superintending Engineer (Monitoring) RCD had also provided the time weighted percentage of the works being executed by the petitioner in the said Road Division by his letter dated 7.2.2014, which was reported to be between 39.69% and 50.22% only. Accordingly, the financial bid of the respondent no. 7 was opened and it has been awarded the tender. 6. Learned counsel for the petitioner submits that the stand of the respondents, as taken in the counter affidavit with regard to the poor performance of the petitioner as per the chart enclosed, is a completely one sided picture and the same is factually inaccurate and it is not based upon the correct state of affairs. It is submitted that barring the work at Sl. It is submitted that barring the work at Sl. No. 1, all the other five works were to conclude under the contract much after the date on which the tender had been opened and there was still sufficient time for the petitioner to make substantial progress in those works. It is further submitted that the progress shown with respect to the works are also not correct and all the figures have been taken behind the back of the petitioner. In this regard learned counsel relies upon the letter dated 29.1.2014 issued by the Executive Engineer, Road Construction Department, Road Division, Gopalganj by which the petitioner was communicated that since construction of the Bhore-Pagra Road has been completed as per the report of the Junior Engineer and the Assistant Engineer, therefore, the petitioner has been released from the order of debar issued in letter dated 5.9.2013. With regard to other five works also it is submitted by learned counsel that the petitioner had made much more progress in the works than shown in the said chart and the statements made in the said chart are totally false and denied. Thus, with regard to one of the items, Meenapur-Tengraha road, it is stated that the report reveals that till 31.1.2014 only 57.86% work was done by the petitioner but the petitioner had completed the work in time except a bridge which was not constructed because of litigation at the site for which the authorities were duly informed; the said bridge was to be constructed on the raiyati land and the land holder was protesting the construction and thus no fault can be laid at the door of the petitioner. It is thus the stand of the petitioner that the progress made in each of those works would be substantial and in some of the cases even 80% and there being no order of debarment of the petitioner by following proper procedure and, in case the fault is of the respondentauthorities then upon adjudication by independent authority, it was not open to the respondents to have relied upon such report behind back of the petitioner declaring the petitioner as technically disqualified. 7. It is urged that the same is a unique method adopted so that the respondents may favour their blue eyed boys among the contractors. 8. 7. It is urged that the same is a unique method adopted so that the respondents may favour their blue eyed boys among the contractors. 8. Learned counsel for the State relies upon Clause 4.7 of the Construction with Maintenance Bid Document (CMBD) which states that even though the bidders meet the above qualifying criteria, they are subject to be disqualified if they have record of poor performance such as abandoning the works, not properly completing the contract, inordinate delays in completion, litigation history, or financial failures, etc. Learned counsel emphasizes that the petitioner has a record of poor performance as well as made inordinate delays in completion of works which have been taken into consideration on the basis of the report received for disqualifying the petitioner. 9. Learned counsel for the respondent no.7 apart from adopting the submission of learned counsel for the State has sought to rely upon two decisions of a Division Bench of this Court in the case of M/s. Madras Securities Printers Pvt. Ltd. Vs. The State of Bihar & Ors: 2014(1) PLJR 227 and in M/s. G.L.R. Traders Vs. The State of Bihar & Ors.: 2014(1) PLJR 350 . In paras 16 and 17 of the first case it has been held as follows:- “16. Before we proceed further, let us examine the terms and conditions of the tender notice. So far as it is relevant for the present matter, the tender notice required the offerer to give an undertaking to submit technical and financial proposals and to submit with technical proposal “self-attested undertaking that company has not been debarred/ blacklisted by any Government or Government Organization.” It is not in dispute that the UIDAI is a Government Organization. Although the UIDAI did not consider it expedient or desirable to continue the appellant on its panel of enrolled agencies, it neither debarred nor blacklisted the appellant. We do agree with Mr. Vinod Kumar Kanth that mere non-renewal of empanelment of the appellant by the UIDAI as an enrolled agency would not amount to debarment or blacklisting. We are also of the opinion that it was not sufficient for the State Government to rely upon the materials available on the official website of the UIDAI without making proper enquiry about such materials; more particularly, when such materials were brought to the notice of the State Government by the rival bidders. We are also of the opinion that it was not sufficient for the State Government to rely upon the materials available on the official website of the UIDAI without making proper enquiry about such materials; more particularly, when such materials were brought to the notice of the State Government by the rival bidders. We are, therefore, of the view that the State Government ought to have made further enquiry with the UIDAI or to have sought clarification from the appellant in respect of such materials. Mere non-renewal of its empanelment as an enrolled agency would not non-suit the appellant from competing in the selection process. 17. Nevertheless, we are not inclined to interfere in the present proceedings. As recorded hereinabove, the contract has already been awarded to the Firm and the Firm has been supplying the materials as agreed. The nonselection of the appellant or non-consideration of the appellant on comparative merits has no relevance to the public interest. On the contrary, the public interest demands that the process of issuance of the Unique Identification Number to the citizens is completed at the earliest without any interruption. In view of the materials before us; particularly, the above referred clarification dated 12th September, 2012 submitted by the UIDAI, nobody can give any certificate of good conduct to the appellant. No prejudice can be said to have been caused to the people at large because the appellant was not allowed to participate in the selection process. Further, in view of the above referred information contained in the letter dated 19th September, 2012 and considering the credibility of the appellant, no fruitful purpose shall be served by allowing the appellant to participate in the selection process at this stage. The Court exercising power of judicial review under Article 226 of the Constitution will refrain from issuing such futile directions.” 11. The same proposition has been laid down in the second case also. 12. It is urged by learned counsel that in the present matter also no public interest is involved and the respondent no. 7 has already proceeded with the work and has made substantial investments in the meantime and thus both on the ground of public interest as also equity no interference should be made with the action of the respondents. 13. It is urged by learned counsel that in the present matter also no public interest is involved and the respondent no. 7 has already proceeded with the work and has made substantial investments in the meantime and thus both on the ground of public interest as also equity no interference should be made with the action of the respondents. 13. In my view, in the present matter, the issue is not merely of the comparative merits of the petitioner and the respondent no. 7, rather the principal issue is as to whether it is open to the respondents to rely upon facts and materials behind the back of the petitioner, which shows that the petitioner has had no opportunity to show that the facts are not correct, and then reject the technical bid and disqualify the petitioner on the ground of poor progress and inordinate delay in completion of work. 14. In view of the statements made in the supplementary affidavit filed by the petitioner in reply to the counter affidavit, it is evident that the very authenticity of the report is under serious dispute and it was not open to the respondents to have acted upon it behind the back of the petitioner. The non-consideration of a tender by the respondents in a transparent and open manner would itself involve the principle of public interest and this Court in such circumstances would definitely interfere and the decision cited by learned counsel for the respondent no. 7 cannot apply in such circumstances. 15. In the present matter, apart from the allegation that the place of opening the technical bid was not given, the respondents have tried to act in a secret and even suspicious manner and the fact that there were only two tenders, cast a greater responsibility on the respondents to not reject the technical bid of any of the parties on the grounds given except on a clear and admitted ground, as it would lead to grant of tender to the other bidder irrespective of the rates quoted by the said bidder. In such circumstances the allegations of collusion cannot be easily brushed aside. The moment such allegation having some substance is made then public interest definitely comes into the picture. In such circumstances the allegations of collusion cannot be easily brushed aside. The moment such allegation having some substance is made then public interest definitely comes into the picture. In such circumstances, the question of equitable considerations having arisen in favour of the private respondent also ought not to be looked into, as it would amount to encouraging such malpractice in the decision on tenders. 16. Learned counsel for the petitioner has rightly pointed out that it appears to be the first case in which such type of criteria has been applied. It is at least the first matter which appears to have been brought to my notice, considering the manner in which the petitioner has been sought to be disqualified without there being any proper finding in that regard. Thus, the question is not that there is no challenge to Clause 4.7 as has been sought to be argued by learned counsel for respondent no. 7, rather it is a question of proper application of clause 4.7 in accordance with the due process of law which apparently has not been followed in the matter. 17. Thus, in the light of the aforesaid discussions, the writ application is allowed. The award of contract to the respondent no.7 in a joint venture is quashed and it is directed that the respondent shall open the financial bid of the petitioner within a period of two weeks from today and thereafter award the contract in accordance with law.