W.P.(C) Nos.23881,26062 & 24162 of 2022

1 **W.P.(C) Nos.23881,26062 & 24162 of 2022** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944** **WP(C) NO. 24162 OF 2022** ## **PETITIONER/S:** URALUNGAL LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD. NO.10957 MADAPPALLY COLLEGE P.O. - 673 102, VADAKARA, KOZHIKODE DISTRICT, REPRESENTED BY ITS CHAIRMAN. BY ADVS. M.SASINDRAN S.SHYAM KUMAR ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2 KERALA ROAD FUND BOARD T.C. 27/287, SPORTS COMPLEX, CHANDRASEKHARAN NAIR STADIUM, PALAYAM, THIRUVANANTHAPURAM - 695 033, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. 3 THE PROJECT DIRECTOR KERALA ROAD FUND BOARD, T.C.27/287, SPORTS COMPLEX, CHANDRASEKHARAN NAIR STADIUM, PALAYAM, THIRUVANANTHAPURAM - 695 033. 4 ADDL.R4 P.T.S. HITECH PROJECTS INDIA PRIVATE LIMITED 17/1187 SREENIVAS LODGE P.O. PUTHIYARA KOZHIKODE - 673 004. 5 ADDL.R5 ASSMAS CONSTRUCTIONS PVT. LTD. MOLAR CORLIM GOA, PIN - 403 110. 6 ADDL.R6 AHAMMED HARIS.B, CHERAKADAVU HOUSE, CHENGALA P.O. - 671 541 KASARAGOD DISTRICT. 7 ADDL.R7 K.V.JOSEPH AND SONS PRIVATE LIMITED KURIEKAL BUILDING, EDAPPALLY P.O. COCHIN - 682 024. 8 ADDL.R8 RAJI MATHEW AND CO., PAMPLANIYIL BHARANANGANAM, PALA, PIN - 686 578 [ADDL.R4 TO R8 ARE IMPLEADED AS PER ORDER DATED 2 **W.P.(C) Nos.23881,26062 & 24162 of 2022** 01.09.2022 IN I.A:1/22 IN WP(C) 24162/2022] BY ADVS. ADVOCATE GENERAL OFFICE KERALA ROY CHACKO JOMY GEORGE GEORGE Deepu Thankan SANTHOSH MATHEW R.PADMARAJ(K/191/1989) R.AJITH KUMAR [V.K.EDOM](K/000629/2016) CHITRA N. DAS(K/001228/2018) RISHAB S.(K/000757/2019) FATHIMA AFEEDA P.(K/001993/2022) RONA ANN SIBY(K/002751/2022) ARUN THOMAS KARTHIKA MARIA ANIL SEBASTIAN PULICKEL ABI BENNY AREECKAL MATHEW NEVIN THOMAS KURIAN ANTONY MATHEW SC ADV.K.V.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2022, ALONG WITH WP(C).23881/2022, 26062/2022, THE COURT ON THE 23/11/2022 DELIVERED THE FOLLOWING: 3 **W.P.(C) Nos.23881,26062 & 24162 of 2022** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944 WP(C) NO. 23881 OF 2022** ## **PETITIONER/S:** URALUNGAL LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD., NO.10957, MADAPPALLY COLLEGE P.O. - 673 102, DAKARA, KOZHIKODE DISTRICT, PRESENTED BY ITS CHAIRMAN. BY ADVS. M.SASINDRAN S.SHYAM KUMAR ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY PUBLIC WORKS DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2 KERALA ROAD FUND BOARD T.C.27/287, SPORTS COMPLEX, CHANDRASEKHARAN NAIR STADIUM, PALAYAM, THIRUVANANTHAPURAM - 695 033. REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. 3 THE PROJECT DIRECTOR KERALA ROAD FUND BOARD, T.C.27/287, SPORTS COMPLEX, CHANDRASEKHARAN NAIR STADIUM, PALAYAM, THIRUVANANTHAPURAM-695 033. 4 ADDL.R4: THERUVATH BUILDERS, REPRESENTED BY ITS EXECUTIVE PARTNER, THERUVATH BUILDING, UZHAVOOR POST - 686 634, KOTTAYAM DISTRICT (ADDL.R4 IMPLEADED AS PER ORDER DATED 01-09-2022 IN IA 1/2022) 5 ADDL.R6:K. MUHAMMED HAJI , AGED 72 YEARS, S/O MOIDEEN KUTTY, M.P.K. MANZIL, THERUR, EDAYANNUR POST, KANNUR -670 595 (IS IMPLEADED AS PER ORDER DATED 08-11-2022 IN IA 3/2022) 6 ADDL.R6:MALABAR PLUS CONSTRUCTION PVT. LTD BUILDING NO.XVIII/166, KUTTIPRA,PAYYANAD (P. O.), MANJERI, MALAPPURAM, PIN - 676 122 REPRESENTED BY ITS 4 **W.P.(C) Nos.23881,26062 & 24162 of 2022** MANAGING DIRECTOR (IS IMPLADED AS PER ORDER DATED 0811-2022 IN IA 4/2022) BY ADVS. P.K.VIJAYAMOHANAN C.P.UDAYABHANU P.LAKSHMI AISWARYA V.S. BABU KARUKAPADATH M.A.VAHEEDA BABU P.U.VINOD KUMAR ARYA RAGHUNATH VAISAKHI V. T.M.MUHAMMED MUSTHAQ AJWIN P LALSON KARUKAPADATH WAZIM BABU AYSHA E.M. NAVANEETH.N.NATH SC ADV.K.V.MANOJ KUMAR FOR R2 & R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2022, ALONG WITH WP(C).24162/2022 AND CONNECTED CASES, THE COURT ON 23/11/2022 DELIVERED THE FOLLOWING: 5 **W.P.(C) Nos.23881,26062 & 24162 of 2022** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944** **WP(C) NO. 26062 OF 2022** ## **PETITIONER/S:** URALUNGAL LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD, NO.10957, MADAPPALLY COLLEGE P.O. - 673 102, VADAKARA, KOZHIKODE DISTRICT, REPRESENTED BY ITS CHAIRMAN. BY ADVS. M.SASINDRAN S.SHYAM KUMAR ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY PUBLIC WORKS DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2 KERALA ROAD FUND BOARD T.C.27/287, SPORTS COMPLEX, CHANDRASEKHARAN NAIR STADIUM, PALAYAM, THIRUVANANTHAPURAM - 695 033. REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. 3 THE PROJECT DIRECTOR KERALA ROAD FUND BOARD, T.C.27/287, SPORTS COMPLEX, CHANDRASEKHARAN NAIR STADIUM, PALAYAM, THIRUVANANTHAPURAM - 695 033. M.SREEKANTAN NAIR, LOTUS, NEAR L.V.TEMPLE KANHANGAD KASARAGOD - 671 315. S.C.K.V.MANOJ KUMAR **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2022, ALONG WITH WP(C).24162/2022 AND CONNECTED CASES, THE COURT ON 23/11/2022 DELIVERED THE FOLLOWING:** 6 **W.P.(C) Nos.23881,26062 & 24162 of 2022** ## **V.G.ARUN (J)** **--------------------------------W.P.(C) Nos.23881,26062 & 24162 of 2022 --------------------------------Dated this the 23[rd] day of November, 2022** ## **JUDGMENT** The petitioner is a Labour Contract Co-operative Society(LCCS for short) registered in accordance with the provisions of the Kerala Cooperative Societies Act and Rules. The Government has granted several privileges to the LCCS in the State. The exhibits in W.P.(C) No.24162/2022, as described in that writ petition, are referred here under for convenience. 2. By Ext.P1 Government Order, LCCS participating in tender proceedings, became eligible for 10% price preference. Thus, even if the amount quoted by the LCCS is up to 10% higher than the amount quoted by the lowest bidder, the work will be awarded to the LCCS. By Ext.P2 Government order, the petitioner society was exempted from the financial cap mentioned in Ext.P1 Government Order. By Ext.P3 Government Order, the petitioner society became entitled for price preference for all kinds of work. In Ext.P5 judgment, this court upheld the validity of Ext.P1 and consequent Government Orders. The petitioner's grievance is that, in spite of the privileges granted under 7 **W.P.(C) Nos.23881,26062 & 24162 of 2022** Exts.P1 to P3 and other Government Orders, the petitioner's bid for the works covered by Ext.P6 to P12 notices inviting tender were rejected as non-responsive, evidenced by Exts.P13 to P19 tender summary reports. According to the petitioner, the reason for rejecting its tender as technically non-responsive is the issuance of Ext.P20 Government Order dated 19/2/2022. Aggrieved by the rejection of their tenders, the petitioners have approached this court seeking the following reliefs; _i). issue a writ of certiorari or any other writ or order to call for the records leading to issuance of Ext.P13, Ext.P14, Ext.P15, Ext.P16 Ext.P17, Ext.P18 and Ext.P19 and quash the same._ _ii). Declare that the technical bid submitted by the petitioner cannot be rejected in the light of Ext.P20 Government Order and without assigning any valid reasons;_ _iii).Declare that the Ext.P20 Government order does not disentitle a Co-operative Society registered with the PWD as contractor, to get the benefit of Ext.P1 and other Government orders granting preference and privilege to the Co-operative Societies;_ _iv). In the alternative, to set aside Ext.P20 in so far as it is interpreted to have denied the benefits of Ext.P1 and other Co-operative societies granting price preference and privilege to_ 8 **W.P.(C) Nos.23881,26062 & 24162 of 2022** _Co-operative Societies once it is registered with the PWD as a Contractor._ _v). issue a writ of mandamus or any other writ, order or direction to the respondents to award the work notified in Exts.P6 to P12 to the petitioner._ _vi). declare the petitioner society is entitled to get contract of the work notified in Exts.P6 to P12 applying the Ext.P1 Government order._ _Vii). declare that when the Government formulates policy to grant benefits to the Labour Contract Co-operative Societies including that is price preference, the same would not be arbitrarily taken away through digital discrimination;_ _viii).award cost to the contractor;_ 3. Adv.M.Sasindran, learned Counsel for the petitioners, put forth the following arguments, assailing rejection of the petitioner's bid as technically non responsive; The privileges granted to the Cooperative Societies like the petitioner cannot be nullified by reason of a technical glitch in the software of the Public Works Department. The petitioner society is already registered with the Public Works Department and its registration is valid upto 31/3/2023 evidenced by Ext.P4. Therefore, the issuance of Ext.P20 Government Order cannot have any impact on the bids submitted by the petitioner, as discernible 9 **W.P.(C) Nos.23881,26062 & 24162 of 2022** from the second condition imposed through Ext.P20. In order to tackle the anomalous situation brought about through Ext.P20, a meeting was convened by the Chief Secretary and a decision was taken to withdraw Ext.P20. A close perusal of the minutes of the meeting produced as Ext.P21 clearly shows that the intention is not to oust LCCS from the bidding process. The ambiguity was remedied by issuing Ext.P22 Government order dated 29/7/2022. Ext.P22 being a clarificatory order, is retrospective in operation. Therefore, rejection of petitioner's bid as technically non- responsive is liable to be interfered with. 4. Adv.K.V.Manoj Kumar, learned Senior Government Pleader appearing for the official respondents, put forth the following arguments; Ext.P20 Government Order permitted participation of LCCS like any other PWD contractor, without the privileges conferred under Exts.P1 to P3 and other Government Orders. The petitioner being a contractor registered under Clause 1900 of the PWD Manual, Ext.P20 Government Order is clearly applicable as it has the effect of superseding the earlier Government Orders. Exts.P20 was in vogue on the date of submission of bids and the date of opening the tenders and therefore, the parties are governed by the terms of Exts.P20. From the pleadings in the writ petitions and the reliefs sought, it is evident that the petitioner has also understood Ext.P20 to be creating an embargo in 10 **W.P.(C) Nos.23881,26062 & 24162 of 2022** LCCSs participating in the tenders, with the privileges granted to them under Exts.P1 to P3 and other Government Orders. The attempt of the learned Counsel for the petitioner to interpret Ext.P20 to mean that Societies like the petitioner can participate in the tenders floated as per Exts.P6 to P12 without registration and with the privileges available to them,is liable to be rejected in the light of the specific averments, grounds and reliefs sought in the writ petition. As per Clause 1901 of the PWD Manual only persons/association of persons registered as contractors are eligible to participate in PWD tenders. Admittedly, the petitioner is registered like every other contract, as stipulated in Clause 1901. As per Clause 3.2.2 of the Standard Bidding Document, the PWD Manual is applicable and as per Clause 3.6.1, the bidders are bound to furnish bid security. Clause 3.7 mandates furnishing of bid submission fee for e-tenders. Clause 3.7.2 provides for rejection of bids not accompanied by the tender fee. The petitioner is bound by the conditions in the Standard Bid Document irrespective of Clause 1913 of PWD Manual, which provides to LCCS' exemption only from the rules of registration applicable to PWD contractors. Referring to the date on which notice inviting tenders were published, the bid opening dates and the date on which Ext.P22 was issued, it is contended that the employer as well as the bidders are governed by Ext.P20 order and as such, rejection of the petitioner's tender as technically non -responsive 11 **W.P.(C) Nos.23881,26062 & 24162 of 2022** is fully justified.Relying on the judgment in **W.P.(C) No.15277/2022,** it is contended that this court should not venture to interpret the tender conditions and arrive at a conclusion different from the employer. Further, even if such conclusion is reached, that will not justify interference in contractual matters in exercise of the power of judicial review. 5. The learned counsel for the contractors to whom the works under Exts.P6 to P12 notice inviting tenders are awarded, put forth elaborate arguments in opposition to the contentions urged by the learned counsel for the petitioner. The arguments were led by Adv.Roy Chacko and ably supplemented by Advs. Vijayamohan, Sathyanatha Menon, Jomy George, Santhosh Mathew and Waheeda Babu, are as under ; 6. The scope of interference by writ courts in contractual matters is extremely limited. The legal position is well settled by a series of decisions, including the decisions in **Silppi Constructions Contractors v. Union of India and another [(2020) 16 SCC 489]** , **Montecarlo Limited v. National Thermal Power Corporation Ltd. [(2016) 15 SCC 272]** and **Balaji Ventures Pvt.Ltd. v. Maharashtra State Power Generation Company Ltd. & Anr. [2022 LiveLaw (SC) 295]** . Similar view is expressed by a Division Bench of this Court in **M/s.Pushkarraj Constructions Pvt.Ltd. v. Silppi Constructions and** 12 **W.P.(C) Nos.23881,26062 & 24162 of 2022** **Contractors & Ors. [2019 (3) KLJ 353]** . The Bombay High Court also had occasion to consider the question in **Champabai Rathod Shramik Mahila Prathisathan Ahmednagar and Others v. State of Maharashtra and Others (2021 KHC OnLine 2811)** . 7. The petitioner's contention that Ext.P22 being a clarificatory order has retrospective effect is refuted by placing reliance on **IncomeTax Officer Alleppey v. M.C.Ponnoose & Others [1965 KLT 713]** , wherein, referring to the decision in **India Sugars and Refineries Ltd. v. State of Mysore** ( **AIR 1960 Mysore 326),** a Division Bench of this Court held that subordinate legislation, be it a rule, a bye-law or a notification, could not be made retrospective in operation and to that extent, the rule, bye-law or notification would be ultra vires and will have to be struck down. 8. Strong exception is made against the manner in which the writ petitions were filed and interim orders obtained without making the affected persons parties to the writ petitions. It is contended that the writ petitions are liable to be rejected on that ground alone. There absence of prayer to quash Ext.P20 and the vague manner in which Ext.P20 is sought to be challenged are also urged as grounds for dismissing the writ petitions. Further, the notice inviting tenders contain only the first condition in Ext.P20 and the petitioner cannot therefore rely on the second condition to support its claim. Moreover, after having 13 **W.P.(C) Nos.23881,26062 & 24162 of 2022** participated in the tender without demur, the petitioner cannot seek to challenge the award of tender on finding that its tender was rejected as technically non-responsive. In support of this argument, reliance is placed on the decision in **Moksh Innovations Inc. v. State of U.P. and Others [2021 KHC 3405].** I am not venturing into the arguments advanced, since they are not necessary for deciding the dispute involved. 9. The disputes in this writ petition centers around the interpretation of Ext.P20 Government Order. Before considering as to whether this Court should venture to decide the dispute, it will be apposite to consider the petitioner's own understanding of the conditions in Ext.P20. For this one need only look into the averments in paragraph 16 of W.P.(C) NO.24162 of 2022 extracted here under for easy reference. _**“** 16. Through Ext.P20, now a situation has been created that for participating in a tender proceedings, a Labour Contract Co-operative Society has to register with the portal being maintained by the first respondent. On the occasion the Labour Contract Co-operative Society does not register with the PWD portal, the Labour Contract Cooperative Society would not be eligible for participate in the tender proceedings. On the other hand, when the Labour_ 14 **W.P.(C) Nos.23881,26062 & 24162 of 2022** _Contract Co-operative Society registers with the Online portal, being maintained by the first respondent, due to the nonsupportive software of the first respondent, the Labour Contract Co-operative Societies would not get the benefits of various Government orders including that of price preference. That being so, Ext.P20 is absolutely arbitrary and illegal and has issued with no vision and proper consideration._ ” 10 **.** From the above it is clear that even the petitioner's understanding is that Ext.P20 prohibits LCCS from participating in tenders, without registering in the PWD portal. The petitioner has also understood that when LCCS register through the PWD portal, they would not get the benefits of the previous Government Orders. That being the case, there is substantial merit in the contention that the relief sought in the writ petitions cannot be granted, in the absence of a direct challenge against Ext.P20. 11. Moving on to the question as to whether the interpretation of the employer or that of the tenderer is to be accepted, I am guided by precedents which have unequivocally held that precedence should be given to the opinion of the employer, unless the interpretation/decision is totally arbitrary or unreasonable. This is so, since the authority inviting tender is the best judge of its requirements. In _**Silppi Constructions Contractors**_ , the Apex Court, after carefully analysing a plethora of 15 **W.P.(C) Nos.23881,26062 & 24162 of 2022** ## precedents, held as under; “ _19_ _**.** This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector_ 16 **W.P.(C) Nos.23881,26062 & 24162 of 2022** _undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer._ _20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.”_ ## In **Afcons Infrastructure Ltd. v Nagpur Metro Rail Corpn. Ltd** **[(2016) 16 SCC 818]** _**,**_ it is held that, even if the interpretation to a tender document given by the owner or employer of the project is not acceptable to the constitutional courts, that by itself is not a ground for 17 **W.P.(C) Nos.23881,26062 & 24162 of 2022** interference. It is also held that the threshold of _mala fides_ , _viz_ ; the intention to favour someone or arbitrariness, irrationality or perversity, must be met before the constitutional court interferes with the decisionmaking process or the decision itself. Paragraph 15 of _**Afcons**_ ## _**Infrastructure Ltd**_ reads as under; **“** _**15.** We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.”_ ## Recently, in _**N.G. Projects Ltd v Vinod Kumar Jain [ (2022) 6 SCC**_ ## _**127]**_ , the legal position is reiterated in the following words; “ _**23.** In view of the above judgments of this Court, the writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms_ 18 **W.P.(C) Nos.23881,26062 & 24162 of 2022** _and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present day Governments are expected to work.”_ ## _**-**_ 12. In _**Central Coalfields Limited and another v. SLL SML**_ ## _**(Joint Venture Consortium) and others [(2016) 8 SCC 622]**_ , the Apex Court went one step ahead and held that, even if an administrative decision is taken in deviation of the terms of NIT, the court will not judicially review the decision unless such direction is found to be 19 **W.P.(C) Nos.23881,26062 & 24162 of 2022** arbitrary, irrational, unreasonable, _mala fide_ or biased. 13. The indisputable position emanating from the above decision is that the employer's interpretation ought to be accepted even if a different view is possible. As such, there is no reason to interfere with the rejection of petitioner's tender based on the employer's understanding of the conditions in Ext.P20. Yet another crucial aspect is that in the notices inviting tender only the first condition in Ext.P20 is incorporated. That condition only permits the LCCS to participate in the tender, like any other PWD contractor, without the benefits granted to them. Hence, the argument based on the interpretation of the second condition in Ext.P20 cannot be countenanced. The above discussion leads to the definite conclusion that as on the date of opening of the technical bids, Ext.P20 was in vogue and therefore, rejection of the petitioner's bid as technically non-responsive, warrants no interference. 14. The contention that Ext.P22 is clarificatory in nature cannot be accepted for the reason that Ext.P22 is an executive order. Even otherwise, what has been done by Ext.P22 is to cancel Ext.P20 order. For the aforementioned reasons the writ petitions are dismissed. ## **Sd/-** **V.G.ARUN JUDGE** dpk 20 **W.P.(C) Nos.23881,26062 & 24162 of 2022** ## **APPENDIX OF WP(C) 23881/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE G.O.(MS.)NO.135/97/CO-OP.| ||DATED 13.11.1997.| |Exhibit P2|TRUE COPY OF THE G.O.(MS.)NO.181/08/CO-OP.| ||DATED 02.08.2008.| |Exhibit P3|TRUE COPY OF THE G.O.(MS.)NO.568/2020/CO-OP.| ||DATED 04.11.2020.| |Exhibit P4|TRUE COPY OF THE REGISTRATION CERTIFICATE| ||ISSUED TO THE PETITIONER SOCIETY.| |Exhibit P5|TRUE COPY OF THE JUDGMENT DATED 17-11-2020 IN| ||W.P.(C).NO.3760 OF 2020.| |Exhibit P6|TRUE COPY OF THE NOTICE INVITING TENDER DATED| ||05.02.2022 FOR KIIFB-VALIYAPALAM BRIDGE AND| ||APPROACH ROAD AT PUTHIYAPALAM-PWD016-01| ||CONSTRUCTION OF VALIYAPALAM BRIDGE AT| ||PUTHIYAPALAM ACROSS CANOLI CANAL IN KOZHIKODE| ||DISTRICT-GENERAL CIVIL WORK| |Exhibit P7|TRUE COPY OF THE NOTICE INVITING TENDER DATED| ||05.02.2022 FOR KIIFB-THORAYI KADAV BRIDGE-| ||KIIFB CONSTRUCTION OF BRIDGE ACROSS| ||AKALAPUZHA-GENERAL CIVIL WORK.| |Exhibit P8|TRUE COPY OF THE NOTICE INVITING TENDER DATED| ||24.12.2021 FOR KIIFB-2017-2018 IMPROVEMENTS TO| ||AMMANAPPARA| ||PACHENITHIRUVATTOORTHERANDICHAPPARAPPADAVU| ||ROAD K.0/000 TO 14/000 (FIRST REACH)-WORK-| ||GENERAL CIVIL WORK.| |Exhibit P9|TRUE COPY OF THE NOTICE INVITING TENDER DATED| ||28.02.2022 FOR KIIFB-DEVELOPMENT OF HILL| ||HIGHWAY(SH 59) IMPROVEMENTS FROM| ||VELLIKULANGARA TO VETTILAPPARA BRIDGE GENERAL| ||CIVIL WORK.| |Exhibit P10|TRUE COPY OF THE NOTICE INVITING TENDER DATED| ||08.03.2022 FOR KIIFB 2017 - 18 IMPROVEMENTS TO| ||KAKKAVAYAL - KOLAVAYAL-KARYAMBADI - KENICHIRA| ||PULPALLY ROAD IN WAYANAD DISTRICT - WORK| ||GENERAL CIVIL WORK.| |Exhibit P11|TRUE COPY OF THE NOTICE INVITING TENDER DATED| ||28.4.2022 FOR KIIFB-HILL HIGHWAY-IMPROVEMENTS| 21 **W.P.(C) Nos.23881,26062 & 24162 of 2022** ||TO THALAYAD-MALAPPURAM-KODENCHERY (18KM) ROAD| |---|---| ||IN KOZHIKODE DISTRICT.| |Exhibit P12|TRUE COPY OF THE BOQ SUMMARY DETAILS OF EXT.P6| ||TENDER.| |Exhibit P12 A|TRUE COPY OF THE BOQ SUMMARY DETAILS OF EXT.P7| ||TENDER.| |Exhibit P12 B|TRUE COPY OF THE BOQ SUMMARY DETAILS OF EXT.P8| ||TENDER.| |Exhibit P12 C|TRUE COPY OF THE BOQ SUMMARY DETAILS OF EXT.P9| ||TENDER.| |Exhibit P12 D|TRUE COPY OF THE BOQ SUMMARY DETAILS OF| ||EXT.P10 TENDER.| |Exhibit P12 E|TRUE COPY OF THE TRUE COPY OF THE BOQ SUMMARY| ||DETAILS OF EXT.P11 TENDER.| |Exhibit P13|TRUE COPY OF THE ORDER NO.49/PD/PMUKRFB/2017| ||DATED 14.07.2022 ISSUED BY THE 3RD RESPONDENT.| |Exhibit P14|TRUE COPY OF THE G.O.(MS) NO.6/2022/PWD DATED| ||19-02-2022 ISSUED BY THE 1ST RESPONDENT.| |Exhibit P15|TRUE COPY OF THE MINUTES OF MEETING HELD BY| ||CHIEF SECRETARY ON 07.07.2022.| |Exhibit P16|A TRUE COPY OF THE G.O.(MS) NO.21/2022/PWD| ||DATED 29.07.2022.| |RESPONDENT EXHIBITS|| |Exhibit R4(a)|TRUE COPY OF THE G.O.(MS)NO.41/2020/PWD DATED| ||19.03.2020 OF THE 1ST RESPONDENT.| |Exhibit R4(b)|TRUE COPY OF THE LETTER NO.01/TB/VVROAD/2022-| ||23 ADDRESSED TO THE 3RD RESPONDENT, DATED 30-| ||05-2022| |PETITIONER EXHIBITS|| |Exhibit P17|TRUE COPY OF THE RELEVANT EXTRACTS OF PWD| ||MANUAL| |Exhibit P18|TRUE COPY OF THE G.O(MS) 60/2019/PWED DATED| ||27/12/2019 ISSUED BY THE GOVERNMENT OF KERALA| |Exhibit P19|TRUE COPY OF THE G.O(MS) 50/2020/PWD DATED| ||05/06/2020 ISSUED BY THE GOVERNMENT OF KERALA| 22 **W.P.(C) Nos.23881,26062 & 24162 of 2022** ## **APPENDIX OF WP(C) 26062/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE G.O.(MS.)NO.135/97/CO-OP.| ||DATED 13.11.1997.| |Exhibit P2|TRUE COPY OF THE G.O.(MS.)NO.181/08/CO-OP.| ||DATED 02.08.2008.| |Exhibit P3|TRUE COPY OF THE G.O.(MS.)NO.568/2020/CO-OP.| ||DATED 04.11.2020.| |Exhibit P4|TRUE COPY OF THE REGISTRATION CERTIFICATE| ||ISSUED TO THE PETITIONER SOCIETY.| |Exhibit P5|TRUE COPY OF THE JUDGMENT DATED 17-11-2020 IN| ||W.P.(C).NO.3760 OF 2020.| |Exhibit P6|TRUE COPY OF THE NOTICE INVITING TENDER DATED| ||02.06.2022 FOR KIIFB-KRFB KASRAGOD RAMANCHIRA| ||BRIDGE-CONSTRUCTION OF RAMANCHIRA BRIDGE| ||ACROSS MUTTOLI RIVER IN KASARAGOD GENERAL| ||CIVIL WORK - I.| |Exhibit P7|TRUE COPY OF THE TENDER SUMMARY REPORT DATED| ||04.08.2022 IN CONNECTION WITH EXT.P6 NIT| ||ISSUED BY THE 3RD RESPONDENT.| |Exhibit P8|TRUE COPY OF THE G.O.(MS) NO.6/2022/PWD DATED| ||19-02-2022 ISSUED BY THE 1ST RESPONDENT.| |Exhibit P9|TRUE COPY OF THE MINUTES OF MEETING HELD BY| ||CHIEF SECRETARY ON 07.07.2022.| |Exhibit P10|TRUE COPY OF THE G.O.(MS).NO.21/2022/PWD| ||DATED 29.07.2022.| |Exhibit P11|TRUE COPY OF THE INTERIM ORDER DATED| ||03.08.2022 IN W.P.(C).NO.24162/2022 BEFORE| ||THIS HON'BLE COURT.| 23 **W.P.(C) Nos.23881,26062 & 24162 of 2022** ## **APPENDIX OF WP(C) 24162/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE G.O.(MS.)NO.135/97/CO-OP.| ||DATED 13.11.1997.| |Exhibit P2|TRUE COPY OF THE G.O.(MS.)NO.181/08/CO-OP.| ||DATED 02.08.2008.| |Exhibit P3|TRUE COPY OF THE G.O.(MS.)NO.568/2020/CO-OP.| ||DATED 04.11.2020.| |Exhibit P4|TRUE COPY OF THE REGISTRATION CERTIFICATE| ||ISSUED TO THE PETITIONER SOCIETY.| |Exhibit P5|TRUE COPY OF THE JUDGMENT DATED 17-11-2020 IN| ||W.P.(C).NO.3760 OF 2020.| |Exhibit P6|TRUE COPY OF THE NOTICE INVITING TENDER DATED| ||23.06.2022 FOR KIIFB-IMPROVEMENTS TO| ||KALLANTHODU KOOLIMADU ROAD KM 0/000 TO 7/000| ||-BALANCE WORK-GENERAL CIVIL WORK.| |Exhibit P7|TRUE COPY OF THE RELEVANT EXTRACT OF NOTICE| ||INVITING TENDER DATED 04.06.2022 FOR KIIFB| ||2016-17 CONSTRUCTION OF CHERIKKAL KOTTAM| ||BRIDGE ACROSS ANJARAKKANDY RIVER IN KANNUR| ||DISTRICT-WORK-GENERAL CIVIL WORK.| |Exhibit P8|TRUE COPY OF THE NOTICE INVITING TENDER DATED| ||31.05.2022 FOR KIIFB-PWD013-29- HILL HIGHWAY| ||IMPROVEMENTS TO THOTTILPALAM - THALAYAD-(FROM| ||28TH MILE TO THALAYAD TOWN) ROAD IN KOZHIKODE| ||DISTRICT -GENERAL CIVIL WORK.| |Exhibit P9|TRUE COPY OF THE NOTICE INVITING TENDER DATED| ||06.06.2022 FOR KIIFB IMPROVEMENT WORKS TO| ||MANNARKKAD CHINNATHADAKAM ROAD BETWEEN KM| ||0/000 - 8/000 (PHASE 1) -PART TS-2-WORK-| ||GENERAL CIVIL WORK.| |Exhibit P10|TRUE COPY OF THE NOTICE INVITING TENDER DATED| ||30.05.2022 FOR KIIFB-BUDGET SPEECH 2017-18-| ||HILL HIGHWAY WIDENING AND PROVIDING BM AND BC| ||TO POOKOTTUMPADAM MOOLEPADAM BRIDGE ROAD IN| ||NILAMBUR AND ERANAD LAC IN MALAPPURAM| ||DISTRICT (REACH 1- KM 0/00 TO KM 10/900,| ||POOKOTTUMPADAM TO MYLADI BRIDGE)-GENERAL| ||CIVIL WORK.| |Exhibit P11|TRUE COPY OF THE RELEVANT EXTRACTS OF NOTICE| ||INVITING TENDER DATED 09.06.2022 FOR KIIFB-| ||IMPROVEMENTS PROVIDING DGBM AND BC TO| 24 **W.P.(C) Nos.23881,26062 & 24162 of 2022** ||EZHAMKULAM KAIPPATTOOR ROAD IN PATHANAMTHITTA| |---|---| ||DISTRICT-GENERAL CIVIL WORK.| |Exhibit P12|TRUE COPY OF THE NOTICE INVITING TENDER DATED| ||30.05.2022 FOR KIIFB-BUDGET SPEECH 2017-18| ||KIIFB CONSTRUCTION OF HILL HIGHWAY| ||POOKKOTTUMPADAM - KALIKAVU KERALA ESTATE| ||KIZHAKKETHALA (KARUVARAKUNDU) CHIRAKKAL -KM| ||47/890 TO 68/900 (PHASE-2 WORKING CHAINAGE| ||47/890 TO 60/200) - PART TS II. GENERAL CIVIL| ||WORK.| |Exhibit P13|TRUE COPY OF THE TENDER SUMMARY REPORT DATED| ||22.07.2022 IN CONNECTION WITH EXT.P6 NIT| ||ISSUED BY THE 3RD RESPONDENT.| |Exhibit P14|TRUE COPY OF THE TENDER SUMMARY REPORT DATED| ||22.07.2022 IN CONNECTION WITH EXT.P7 NIT| ||ISSUED BY THE 3RD RESPONDENT.| |Exhibit P15|TRUE COPY OF THE TENDER SUMMARY REPORT DATED| ||22.07.2022 IN CONNECTION WITH EXT.P8 NIT| ||ISSUED BY THE 3RD RESPONDENT.| |Exhibit P16|TRUE COPY OF THE TENDER SUMMARY REPORT DATED| ||22.07.2022 IN CONNECTION WITH EXT.P9 NIT| ||ISSUED BY THE 3RD RESPONDENT.| |Exhibit P17|TRUE COPY OF THE TENDER SUMMARY REPORT DATED| ||22.07.2022 IN CONNECTION WITH EXT. P10 NIT| ||ISSUED BY THE 3RD RESPONDENT.| |Exhibit P18|TRUE COPY OF THE TENDER SUMMARY REPORT DATED| ||22.07.2022 IN CONNECTION WITH EXT.P11 NIT| ||ISSUED BY THE 3RD RESPONDENT.| |Exhibit P19|TRUE COPY OF THE TENDER SUMMARY REPORT DATED| ||22.07.2022 IN CONNECTION WITH EXT.P12 NIT| ||ISSUED BY THE 3RD RESPONDENT.| |Exhibit P20|TRUE COPY OF THE G.O.(MS) NO.6/2022/PWD DATED| ||19-02-2022 ISSUED BY THE 1ST RESPONDENT.| |Exhibit P21|TRUE COPY OF THE MINUTES OF MEETING HELD BY| ||CHIEF SECRETARY ON 07.07.2022.| |RESPONDENT EXHIBITS|| |Exhibit R4 A|TRUE COPY OF THE INSTRUCTIONS TO THE BIDDERS| ||OF ''KIIFB - IMPROVEMENTS TO KALLANTHODU| ||KOOLIMADU ROAD K, 0/000 TO 7/000- BALANCE| ||WORK - GENERAL CIVIL WORK''.| |Exhibit R6A|TRUE COPY OF THE TENDER SUMMARY REPORT WITH| ||REGARD TO THE WORK OF KIIFB-KIIFB| 25 **W.P.(C) Nos.23881,26062 & 24162 of 2022** -IMPROVEMENT WORKS TO MANNARKKAD CHINNATHADAKAM ROAD BETWEEN KM 0/0008/000 (PHASE I)- PART TS-2 - WORK -GENERAL CIVIL WORK. PETITIONER EXHIBITS Exhibit P22 A TRUE COPY OF THE G.O(MS) NO. 21/2022/PWD DATED 29.07.2022.