Kerala High Court
A.Subhash vs State Of Kerala on 18 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942
WP(C).No.469 OF 2021(G)
PETITIONER:
A.SUBHASH
AGED 42 YEARS
S/O. ARAVINDAKSHAN, ALINGAL HOUSE, KADAMBIDI,
CHITTILANCHERI P.O, PALAKKAD DISTRICT 678 704
BY ADVS.
SRI.JACOB SEBASTIAN
SRI.K.V.WINSTON
SMT.ANU JACOB
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM PIN 695 001
2 THE SUPERINTENDING ENGINEER (ROADS DIVISION)
OFFICE OF THE SUPERINTENDING ENGINEER,
PUBLIC WORKS DEPARTMENT, NORTH ZONE, PWD COMPLEX,
MANANCHIRA, KOZHIKODE, PIN 673 001
3 THE EXECUTIVE ENGINEER,
PWD ROADS DIVISION, PALAKKAD, PIN 678 001
4 THE ADDITIONAL CHIEF SECRETARY,
FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM PIN 695 001
5 THE CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN 695 001
SR.GP.K.V.MANOJ KUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.469 OF 2021(G)
2
J U D G M E N T
Petitioner, who was awarded the work of
improvements & providing BM & BC to Vadakkenada-
Pathanapuram road as per Ext.P1 selection notice
23.12.2020, was directed to deposit the performance
guarantee for a sum of Rs.12,38,100/- out of which 50%
should be offered by way of Treasury Saving Deposits.
Pointing out that a sum of Rs.14,50,441/- is due to
the petitioner towards another work under a pending
bill which is certified in Ext.P2 by the Executive
Engineer, petitioner submitted an application for
adjusting the same towards the Performance Guarantee.
Executive Engineer as per Ext.P2(2) letter informed
the petitioner that bill amount would be accepted as
guarantee for new works being awarded, only for
pending bills and that too only on the basis of
indemnity certificate issued online in EMLI
application. It is also stated that this application
is not available in EMLI till date and pledging
WP(C).No.469 OF 2021(G)
procedure through EMLI cannot be done.
2. Petitioner points out that though the
adjustment of pending bills was permitted by
Government as per Ext.P3 order issued on 23.06.2020,
so far the software is made operational and it would
not be possible to furnish indemnity certificate
issued online through EMLI. Relying on Ext.P5 judgment
petitioner seeks a direction to the respondents to
adjust the bill covered by Ext.P2 towards the
Performance Guarantee.
3. Heard the learned counsel for the petitioner
and the learned Government Pleader.
4. Government has issued Ext.P3 order as early
as on 23.06.2020 permitting adjustment of pending
bills towards the Performance Guarantee for new work.
After granting such a benefit it will not be
appropriate for the respondents to deny the benefit of
the same on the ground that indemnity certificate
cannot be issued online through EMLI when the software
is not made operational, so far. Therefore it would be
WP(C).No.469 OF 2021(G)
incumbent on the respondents to take steps for
granting the benefit manually.
Therefore there shall be a direction to the
respondents to consider the request of petitioner in
Ext.P2(2) for adjustment of the bill covered by Ext.P2
towards Performance Guarantee and to grant the benefit
under Ext.P3 order and to make the adjustment of
pending bill manually within a period of 'two weeks'
from the date of receipt of a copy of the judgment.
Petitioner shall also be granted extension of time for
execution of the agreement by a further period of 'two
weeks'.
The writ petition is disposed of accordingly.
Sd/-
P.V.ASHA, JUDGE
AS
WP(C).No.469 OF 2021(G)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SLECTION NOTICE NO.
DC03-PRICE/2019/2483 DATED 23-12-2020
ISSUED BY THE SECOND RESPONDENT
EXHIBIT P2 A TRUE COPY OF THE CERTIFICATE AND
LETTER DATED 04-01-2021 ISSUED BY THE
THIRD RESPONDENT
EXHIBIT P3 A TRUE COPY OF G.O(RT) NO. 3834/2020
DATED 23-06-2020
EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 28-07-
2020 ISSUED BY THE SECOND RESPONDENT
EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DATED
17-01-2020 IN W.P(C) NO. 53/2020 OF
THIS HONOURABLE COURT
EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED
AUGUST 25, 2020 IN WP(C) NO.17718/2020
AND CONNECTED CASES.
