JUDGMENT M.N. Bhandari, J. - By this writ petition, a challenge is made to the tender notice dated 16th December, 2016 and to the order dated 15th March, 2017. A further challenge is made to the technical specifications incorporated in the bidding document apart from reliefs pertaining to NIT. 2. A tender notice was floated by the respondents for procurement of Nuclear Acid Testing System (Rental Basis) at SMS Hospital Blood Bank, Jaipur on rate contract basis for a period of 24 months. The bidding document was issued incorporating technical specifications. The petitioner-company sent a letter to the respondents for re-consideration of technical specifications. When the request was not accepted, a reminder was sent but when no heed was paid to it, the petitioner-company preferred an appeal on 13th February, 2017 before the Special Secretary, Department of Medical and Health, (MD) NHM. In the meanwhile, bid of the respondent No.3 was declared to be responsive. The financial bid was thereupon opened on 15th March, 2017. 3. The first appeal was dismissed ignoring the specifications, limiting the participation. The petitioner-company could not submit bid due to specifications. The technology possessed by the petitioner-company is known as Minipool, whereas, specifications given by the respondents were only for ID Net. The allegations have been made for adopting the brochure of the respondent No.3 to limit the bid for ID Net instead of procuring Nuclear Acid Testing System with both the technologies i.e. Minipool and ID Net. 4. The action of the respondents is violative of Section 6 of the Rajasthan Transparency in Public Procurement Act, 2012 (for short "the Act of 2012"). The respondents could not have eliminated other technology of Nuclear Acid Testing System save with the procedure given under Section 6 of the Act of 2012. 5. Learned counsel has further stated that no appeal was maintainable in reference to the issue raised by the petitioner- company in view of Section 40(b) of the Act of 2012. Accordingly, the petitioner-company was left with no option but to maintain this writ petition. The prayer is to grant reliefs. 6. Learned counsel for respondents have opposed the petition. It is submitted that while issuing tender notice, specifications were given in detail and it was pursuant to the recommendation of the expert committee. The comparative studies between Minipool and ID Net was given. The prayer is to grant reliefs. 6. Learned counsel for respondents have opposed the petition. It is submitted that while issuing tender notice, specifications were given in detail and it was pursuant to the recommendation of the expert committee. The comparative studies between Minipool and ID Net was given. It was found that ID Net is an advanced technology for testing of the blood, whereas, Minipool is the old one. The details of both the systems were elaborately given. Prior to issuance of the tender notice, a decision was taken in consonance to Section 6 to adopt technology of ID Net instead of Minipool. The petitioner-company was knowing about specifications and is having technology of ID Net yet did not apply or participate in the bidding process though they have given ID Net to other procuring agencies. Taking into consideration the aforesaid, act of the petitioner-company cannot be said to be bonafide. There was no reason for the petitioner-company not to participate in the tender when they are also having ID Net technology. In view of the above, challenge to the process of tender or any other conditions mentioned therein may not be accepted as litigant cannot be said to be bonafide. 7. A reference of technical report prior to issuance of the tender notice has also been given and explained by Dr. Raja Ram, Expert, present in the court. He submitted that a comparative studies of two technologies namely, PCR and TMA exist. The technology of PCR is used generally by the petitioner-company, whereas, TMA by the private respondent No.3. The committee decided to avoid pooling of sample. In the light of aforesaid, challenge to the tender and finalisation of bid in favour of the respondent No.3 may not be accepted. 8. Learned counsel for respondent No.2 has raised objection about maintainability of the writ petition. He submits that having filed first appeal by the petitioner-company, second appeal was maintainable as per Section 38 of the Act of 2012. A reference of pleading of the writ petition has been given where the petitioner- company has admitted remedy of appeal. The prayer is accordingly to dismiss the writ petition as it is not maintainable due to availability of alternative remedy. 9. I have considered the rival submissions made by learned counsel for the parties and perused the record. 10. A reference of pleading of the writ petition has been given where the petitioner- company has admitted remedy of appeal. The prayer is accordingly to dismiss the writ petition as it is not maintainable due to availability of alternative remedy. 9. I have considered the rival submissions made by learned counsel for the parties and perused the record. 10. The challenge to the tender notice is made in reference to Section 6 of the Act of 2012. For ready reference, the provision aforesaid is quoted hereunder: "6. Participation of bidders.- (1) The procuring entity shall not establish any requirement aimed at limiting participation of bidders in the procurement process that discriminates against or among bidders or against any category thereof, except when authorised or required to do so by this Act or the rules or guidelines made thereunder or by the provisions of any other law for the time being in force. (2) The State Government may, by notification in this behalf, provide for mandatory procurement of any subject matter of procurement from any category of bidders, and purchase or price preference in procurement from any category of bidders, on the following grounds, namely:- (a) the promotion of domestic industry; (b) socio-economic policy of the Central Government or the State Government; (c) any other consideration in public interest in furtherance of a duly notified policy of the Central Government or the State Government: Provided that any such notification shall contain a reasoned justification for such mandatory or preferential procurement, the category of suppliers chosen and the nature of preference provided. (3) The procuring entity, when inviting the participation of bidders in the procurement process, shall declare whether participation of bidders is limited pursuant to this section and on what ground and any such declaration may not ordinarily be later altered. (4) Nothing in this section shall be construed as preventing the State Government or any procuring entity from imposing or enforcing measures limiting participation on account of the need - (a) to protect public order, morality or safety; (b) to protect human, animal or plant life or their health; (c) to protect intellectual property;(d) to protect the essential security and strategic interest of India." 11. The provision quoted above is for participation of bidders. The provision quoted above is for participation of bidders. As per Section 6(1), the procuring entity shall not establish any requirement aimed at limiting participation of bidders in the procurement process that discriminates against or among bidders or against any category thereof except when authorised or required to do by this Act or Rules or the guidelines, etc. In view of the above, the respondents could not have limited participation of the bidders in the process of procurement. If the tender notice is looked into, it has limited the participation for those using technology of ID Net and not for those using Minipool though procurement is for Nuclear Acid Testing System. The Act or guideline does not provide for limiting the participation. 12. The procurement can be limited with compliance of subsection (2) or sub-section (4) of Section 6 of the Act of 2012. The State Government may issue a Notification but it does not exist in the present case. Learned counsel for respondents have referred clause (b) of sub-section (4) of Section 6 to show that ID Net system is required to protect a human. Accordingly, entity has rightly limited the procurement for Nuclear Acid Testing System by ID Net technology. 13. The original record was called to see as to whether opinion was given to take only ID Net as it would be required to protect human. The record does not show the aforesaid. 14. At this stage, learned counsel for respondent No.2 submits that ID Net technology is the best for Nuclear Acid Testing System. The aforesaid ground does not fit to invoke Section 6(4) of the Act of 2012. The limited tender for procurement of Nuclear Acid Testing System cannot be accepted in violation of Section 6 of the Act of 2012. The respondents could have done it by applying Section 6(2) and (4) of the Act of 2012 but it does not exist. 15. Learned counsel for respondents raised objection about maintainability of the writ petition in reference to Section 38 of the Act of 2012. For ready reference, the provision aforesaid is quoted hereunder: "38. The respondents could have done it by applying Section 6(2) and (4) of the Act of 2012 but it does not exist. 15. Learned counsel for respondents raised objection about maintainability of the writ petition in reference to Section 38 of the Act of 2012. For ready reference, the provision aforesaid is quoted hereunder: "38. Appeals.- (1) Subject to section 40, if any bidder or prospective bidder is aggrieved that any decision, action or omission of the procuring entity is in contravention to the provisions of this Act or the rules or guidelines issued thereunder, he may file an appeal to such officer of the procuring entity, as may be designated by it for the purpose, within a period of ten days or such other period as may be specified in the pre-qualification documents, bidder registration documents or bidding documents, as the case may be, from the date of such decision or action, omission, as the case may be, clearly giving the specific ground or grounds on which he feels aggrieved: Provided that after the declaration of a bidder as successful in terms of section 27, the appeal may be filed only by a bidder who has participated in procurement proceedings: Provided further that in case a procuring entity evaluates the technical bid before the opening of the financial bid, an appeal related to the matter of financial bid may be filed only by a bidder whose technical bid is found to be acceptable. (2) On receipt of an appeal under sub-section (1), the officer designated under that sub-section shall, after affording a reasonable opportunity of being heard to the parties, determine as to whether or not the procuring entity has complied with the provisions of this Act, the rules and guidelines made thereunder and the terms of the pre-qualification documents, bidder registration documents or bidding documents, as the case may be, and pass an order accordingly which shall, subject to the order passed under sub-section (5) , be final and binding on the parties to the appeal. (3) The officer to whom an appeal is filed under subsection (1) shall deal with the appeal as expeditiously as possible and shall endeavour to dispose it of within thirty days from the date of filing of the appeal. (3) The officer to whom an appeal is filed under subsection (1) shall deal with the appeal as expeditiously as possible and shall endeavour to dispose it of within thirty days from the date of filing of the appeal. (4) If the officer designated under sub-section (1) fails to dispose of the appeal filed under that sub-section within the period specified in sub-section (3), or if the bidder or prospective bidder or the procuring entity is aggrieved by the order passed under subsection (2), the bidder or prospective bidder or the procuring entity, as the case may be, may file a second appeal to an officer or authority designated by the State Government in this behalf within fifteen days from the expiry of the period specified in sub-section (3) or of the date of receipt of the order passed under subsection (2), as the case may be. (5) On receipt of an appeal under sub-section (4), the officer or authority designated under that sub-section shall, after affording a reasonable opportunity of being heard to the parties, determine as to whether or not the procuring entity has complied with the provisions of this Act, the rules and guidelines made thereunder and the terms of the pre-qualification documents, bidder registration documents or bidding documents, as the case may be, and pass an order accordingly which shall be final and binding on the parties to the appeal. (6) The officer or authority to which an appeal is filed under sub-section (4) shall deal with the appeal as expeditiously as possible and shall endeavour to dispose it of within thirty days from the date of filing of the appeal: Provided that if the officer or authority to which an appeal is filed under sub-section (4) is unable to dispose of the appeal within the aforesaid period, he shall record reason for the same. (7) The officer or authority to which an appeal may be filed under sub-section (1) or (4) shall be indicated in the pre-qualification documents, bidder registration documents or bidding documents, as the case may be. (8) Every appeal under sub-sections (1) and (4) shall be filed in such form and manner and shall be accompanied by such fee as may be prescribed.(9) While hearing an appeal under this section, the officer or authority concerned shall follow such rules of procedure as may be prescribed. (8) Every appeal under sub-sections (1) and (4) shall be filed in such form and manner and shall be accompanied by such fee as may be prescribed.(9) While hearing an appeal under this section, the officer or authority concerned shall follow such rules of procedure as may be prescribed. (10) No information which would impair the protection of essential security interests of India, or impede the enforcement of law or fair competition, or prejudice the legitimate commercial interests of the bidder or the procuring entity, shall be disclosed in a proceeding under this section." 16. Learned counsel for respondents has referred Section 40 of the Act of 2012 to show that an appeal is not maintainable when it is for challenge to limiting the participation. For ready reference, Section 40 of the Act of 2012 is also quoted hereunder: "40. Appeal not to lie in certain cases.- No appeal under section 38 shall lie against any decision of the procuring entity relating to the following matters, namely:- (a) determination of need of procurement in terms of section 5; (b) provisions limiting participation of bidders in the bid process in terms of the provisions of section 6; (c) the decision of whether or not to enter into negotiations in terms of section 15; (d) cancellation of a procurement process in terms of section 26; (e) applicability of the provisions of confidentiality under section 49." 17. The perusal of Section 40(b) of the Act of 2012 shows that no appeal would be maintainable under Section 38 if it is to challenge the limiting participation of the bidder in the bid process in terms of Section 6 of the Act of 2012. In view of the above, I am unable to accept the objection raised by the respondents regarding maintainability of the writ petition. 18. Learned counsel further states that petitioner-company itself is using ID Net yet did not quote or participate in the bid. Learned counsel for respondents clarified that in India, they are not using ID Net, rather, only Minipool is used for Nuclear Acid Testing System. I am not going into the aforesaid aspect for the reason that tender limiting the participation has been issued in violation of Section 6 of the Act of 2012, thus whether the petitioner- company is using 'A' or 'B' technology is not material. I am not going into the aforesaid aspect for the reason that tender limiting the participation has been issued in violation of Section 6 of the Act of 2012, thus whether the petitioner- company is using 'A' or 'B' technology is not material. The question is as to whether without compliance of Section 6 of the Act of 2012, the participation could have been limited by the respondents. It has been answered against the respondents. 19. In the light of the discussion made aforesaid, the tender issued by the respondents cannot be allowed to stand as it has been issued in violation of Section 6 of the Act of 2012, accordingly, it is quashed with all consequences. 20. The writ petition is allowed with the aforesaid. The respondents would however be at liberty to come out with fresh tender after applying the process to avoid further litigation in the matter.