JUDGEMENT : 1. The petitioner is aggrieved by rejection of his technical bid in respect of the tender Notice No. Con/2014/Nov/09 by which tender documents in two packet system were called for construction of single line BG tunnel. The last date of submission of tender was fixed as 13/01/2014 and the date of opening was fixed as 16/01/2014. However, it is submitted that the last date of closing was extended upto 13/02/2015. Responding to the tender notice, the petitioner submitted its tender. As stated in the writ petition (para 5) tenders were opened on 13/02/2015 in presence of authorised representatives of the tenderers. 2. In para 6 of the writ petition, the petitioner has stated that while the petitioner was legitimately expecting that they would be called for opening of the financial bid, but they came to learn that the authority declined to accept the earnest money deposited by the petitioner along with its tender. Approach being made, the representative of the petitioner was informed that as the FDR submitted by the petitioner stipulated that the deposit is held at the disposal of the petitioner, the same was not acceptable in terms of clause 4 of the tender documents and accordingly the technical bid of the petitioner was found not acceptable. 3. In para 7 of the writ petition, the petitioner has stated that after such rejection of the technical bid of the petitioner, it approached the bank authority which clarified the matter vide Annexure-IV series letter dated 10/04/2015. The petitioner has also placed reliance on the Annexure-V communication of the particular bank dated 06/07/2015 informing the GM/Con/N.F. Railway about the particular FDR purportedly issued in favour of FA & CAO/Con/ NF Railway, Maligaon. 4. From the above narration of fact, what has emerged is that the last date of opening of tender was 13/02/2015 on which date the tender was opened. As the Annexure-III FDR dated 07/02/2015 would reveal, the same was drawn in favour of the petitioner and not in favour of the authority issuing the tender, Clause-4 of the tender documents deals with earnest money. As the Annexure-III FDR dated 07/02/2015 would reveal, the same was drawn in favour of the petitioner and not in favour of the authority issuing the tender, Clause-4 of the tender documents deals with earnest money. As per the requirement of clause 4 which deals with earnest money, Deposit receipts or pay orders or demand draft from the State Bank of India or from any of the Nationalised Banks or a Schedule Banks should be drawn in favour of “Financial Advisor & Chief Account Officer/CON/N.F. Railway/Maligaon” and endorsed “Account Payee” and valid at least upto the validity of tender offer. No conformation advise from the Reserve Bank of India will be necessary. 5. For a ready reference, clause 4 is reproduced below :- 6. Admittedly, the petitioner did not submit the FDR drawn in favour of the FA & CAO as per the stipulation made in clause 4.4 referred to above. Clause 4.5 provides that a tender not accompanied with the requisite earnest money, in the requisite manner as aforesaid will be summarily rejected. 7. As noted above, Annexure-3 FDR which the petitioner had submitted along with its tender was drawn in favour of the petitioner. Tenders were opened on 13/02/2015 and when it was found that the FDR accompanying the tender documents of the petitioner was not in the manner prescribed under clause 4.4, the earnest money deposit and for that matter, the technical bid of the petitioner was rejected. It was much thereafter, the petitioner addressed the letter dated 10/04/2015 to the respondent authority by way of clarification enclosing therewith the transaction enquiry of the particular bank, so as to contend that the particular FDR was drawn in favour of FA & CAO. However, on a bare perusal of the FDR receipt dated 07/02/2015 reveals that the same was drawn in favour of the petitioner and not in favour of FA & CAO. On the reverse page of the FDR, there is an endorsement (seal, but when put, not specified), which reads as follows :- “At the request of the depositor ABCIIPL P II JV. This deposit is held at the disposal of ABCIIPL P II JV as Security/Earnest Money deposit for the work ................. This deposit will be released only with the written consent of FA & CAO/CON/N.F. Railway, Maligaon.” 8. This deposit is held at the disposal of ABCIIPL P II JV as Security/Earnest Money deposit for the work ................. This deposit will be released only with the written consent of FA & CAO/CON/N.F. Railway, Maligaon.” 8. Above endorsement on the reverse side of the FRD (date not specified) cannot be said to have conformed to the requirement of clause 4.4 referred to above. Apart from the fact that the FDR is not drawn in favour of FA & CAO, the endorsement also does not specify the work. It only certifies release of the deposit with the consent of the FA & CAO, meaning thereby that the FDR even with said endorsement stood in the name of the petitioner. It was never drawn in favour of FA & CAO as required under clause 4.4. Subsequent consent of the Bank obtained by the petitioner after opening of the technical and financial bids cannot help the case of the petitioner. 9. When the matter rested thus, the financial bid was opened on 26/06/2015 and only thereafter the petitioner filed the writ petition on 13/07/2015. In the mean time, the respondent bank addressed the Annexure-V letter dated 06/07/2015 to the Railway authority stating that the FDR was issued in favour of FA & CAO/Con/NF Railway, Maligaon. Such a course of action was adopted by the bank upon insistence of the petitioner. However, the fact of the matter is that the FDR was in the name of the petitioner and not the FA & CAO. Tenders having been opened on 13/02/2015, the authority examined the tender documents submitted by the petitioner and others and when it was found that the FDR was not drawn in reference to the clause 4.4 referred to above, it was within its competence and jurisdiction, not to accept the earnest money and to reject the technical bid of the petitioner. Subsequent clarification after opening of the technical and financial bids cannot help the case of the petitioner. 10. Mr. G.N. Sahewalla, learned senior counsel for the petitioner has placed reliance on two decisions of the Apex Court reported in (2006) 11 SCC 548 (B.S.N. Joshi & Sons Ltd. vs. Nair Coal Services Ltd. and others) and (2013) 10 SCC 95 (Rashmi Metaliks Limited and another Vs. Kolkata Metropolitan Development Authority and others). 10. Mr. G.N. Sahewalla, learned senior counsel for the petitioner has placed reliance on two decisions of the Apex Court reported in (2006) 11 SCC 548 (B.S.N. Joshi & Sons Ltd. vs. Nair Coal Services Ltd. and others) and (2013) 10 SCC 95 (Rashmi Metaliks Limited and another Vs. Kolkata Metropolitan Development Authority and others). He also placed reliance on the decision of this Court reported in 2012 (4) GLT 723 (Megha Electricals Dihang Edutech Infrastructure Private Limited (M/S) & Ors Vs. State of Assam and others). Mr. A.K. Sarkar, learned counsel representing the Railways submits that the earnest money was required to be drawn in the particular manner and the petitioner having failed to do that, cannot fall back on the purported clarification issued by the bank, that too after the technical bids were opened on 13/02/2015 and thereafter financial bids were also opened on 26/06/2015. 11. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have also perused the entire materials on record. There is no dispute that the petitioner submitted the Annexure-III FDR along with its tender. On the face of it, the FDR was drawn in favour of the petitioner and not in favour of the FA & CAO as per the stipulation made in clause 4.4 of the tender documents. If that be so it being not in conformity with clause 4.4 of the tender documents, the authority was within its competence and jurisdiction to reject the earnest money and for that matter the technical bid of the petitioner. 12. I have carefully gone through the decisions on which the learned counsel for the petitioner has placed reliance. Needless to say that the ratio of a decision will have to be understood in the factual background of each and every case. In B.S.N. Joshi (Supra) the Apex Court while holding that if there are essential conditions of contract, the same must be adhered to, also held that if a deviation is made in relation to all the parties in regard to any of the tender conditions, ordinarily the power of relaxation may be held to be existing. In the instant case, clause 4.4 of the tender documents provided for drawing of the FDR in the particular manner. That was an essential condition of the tender document. In the instant case, clause 4.4 of the tender documents provided for drawing of the FDR in the particular manner. That was an essential condition of the tender document. There being failure on the part of the petitioner, the earnest money deposited by it and for that matter the financial bid was rightly rejected. There was no relaxation extended to tenderers. 13. In Rashmi Metaliks Ltd. (Supra), the Apex Court was concerned with the Income Tax return which assumed the character of an essential term. The dispute that arose was in relation to the income tax, whether gross or net. It was in such circumstances, it was held that necessary clarification ought to have been obtained from the bank. Same is not the case in hand. 14. In Megha Electricals (Supra), this Court was concerned with substantial compliance in respect of the earnest money. In the instant case and as noted above, the earnest money was required to be deposited in a particular form which the petitioner failed to do. 15. Above apart, the tenders were opened on 13/02/2015 and thereafter the financial bid was also opened on 26/06/2015. It is only thereafter, the petitioner filed the writ petition on 13/07/2015 agitating the grievance in respect of rejection of technical bid with the opening of the fids on 13/02/2015. 16. For all the aforesaid reasons I do not find any merit in the writ petition and accordingly it is dismissed, leaving the parties to bear their own costs.