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5.1. Learned counsel for the petitioner contends that in the Tender Call Notice, the requirement for the bidder was to have "executed" similar nature of work, as would be clear from Clause 121.3(b) of the Tender Call Notice, where the word used is "executed" and not "completed". It is further contended that the execution of work included the "work in progress" as well as the "completed work" relating to "Civil Engineering Construction Works", as has been clearly spelt out in Clause 121.3(a) of the Tender Call Notice. It is thus submitted that since the petitioner had work experience of having executed works as required in the Tender Call Notice, he fulfilled all the criteria and was thus rightly found to be technically qualified by the Tender Evaluation Committee on 20.06.2016, after which the financial bid of the petitioner was opened, along with that of the other qualified bidder. 5.2. Mr. B.P. Das, learned counsel for the petitioner further submits that the Tender Evaluation Committee did not have the power to review its own order/recommendation made on 20.06.2016, and that too behind the back of the petitioner, without giving him any opportunity, as has been done in the present case. By the subsequent report of the Tender Evaluation Committee dated 16.09.2016, the petitioner has been held to be technically disqualified on the ground that he has no experience of having "completed" similar nature of works. On such basis, the impugned order is said to have been passed on 28.10.2016, without assigning any reasons. Learned counsel vehemently contends that the petitioner had the technical qualification of having successfully "executed" similar nature of work of "Civil Engineering Construction" as was required by the Tender Call Notice dated 18.03.2016.

6. Per contra, Shri B.P. Pradhan, learned Additional Government Advocate appearing for the State-opposite parties has submitted, that as per the conditions laid down in the Tender Call Notice, the Tendering Authority has the right to cancel the tender without assigning any reason, and as such no interference by this Court is warranted in the present case. He, however, has submitted that though reasons may not have been assigned in the impugned order, but from perusal of the averments in the counter affidavit, it would be clear that there were sufficient reasons for cancellation of the tender as the petitioner, who may have been the lowest bidder, but was later found not to be qualified as he had no experience of having "completed" any "bridge work"", and after enquiry, a fresh report was obtained on 31.08.2016, in which it was opined that the tender of the petitioner should be rejected for not having the pre-requisite qualification of having done any "bridge work". It was on such basis that in the proceeding of the subsequent Tender Evaluation Committee, in its meeting on 16.09.2016 reevaluated the tender of the petitioner at Item no.4 of its report, and recommended for obtaining the approval of the State Government for cancellation of tender and for invitation of fresh tender. Further, the Committee required the Tendering Authority to ensure that henceforth, the work experience of "completed work"

, We are thus of the opinion that reasons given in the counter affidavit are not to be taken into account for considering the correctness of the impugned order of cancellation.

9. However, even if we are to consider the same, then from the counter it is evident that the order of cancellation has been passed on the basis of an enquiry report submitted on 31.08.2016, which was on the complaint made by certain persons on 16.08.2016. It is firstly not understood as to how such complaint could have been entertained after the Tender Evaluation Committee had submitted its report on 20.06.2016, where after the Tendering Authority has accepted the bid of the petitioner and forwarded the same to the State Government for its approval. Admittedly, the complaint was entertained without the petitioner having been given any opportunity, as even the copy of the same was not furnished to the petitioner. Thereafter, an enquiry was conducted, which was also admittedly behind the back of the petitioner and without affording him an opportunity to participate in the enquiry proceedings. As such, in the facts of the case, we are of the view the enquiry proceedings, held behind the back of the petitioner, were not proper, and thus no action could have been taken on the basis of such enquiry report.

13. Further, the subsequent report of the Tender Evaluation Committee dated 16.09.2016, wherein recommendation has been made for cancellation of the Tender Call Notice dated 18.03.2016, also recommends that it should be ensured that henceforth the work experience of "completed work" be taken into account while assessing the experience of "similar nature of works". This would clearly go to show that the work experience, which was required by the Tender Call Notice dated 18.03.2016, was with regard to "executed work" and not "completed work". It is clear from the wordings of the Tender Call Notice that execution of work includes work experience of executed ongoing works, as would be clear from sub-clause (a) of Clause 121.3. If "completed work" is now substituted for "executed work", it would clearly amount to changing the rules of the game, after the game is already in progress or over. It can be presumed that the rules of the game have been changed in this case to suit a particular player. The Tender Evaluation Committee in its meeting held on 20.06.2016, had examined the technical qualification of the bidders and found the petitioner to be qualified and thereafter the financial bid had also been opened, in which the bid of the petitioner was the lowest. The same had also been accepted by the Tendering Authority, which had, on 02.08.2016, recommended to the State Government for acceptance of the bid of the petitioner. Holding of the further enquiry and then cancelling the Tender Call Notice, without there being any valid reason, cannot thus be justified in law.