Kerala High Court
Jose Thomas M vs State Of Kerala on 17 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TH
TUESDAY, THE 17 DAY OF JANUARY 2023 / 27TH POUSHA, 1944
W.A.NO.1531 OF 2022
AGAINST THE ORDER DATED 10.10.2022 IN I.A.NO.5 OF 2022 IN WP(C)
9445/2022 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
JOSE THOMAS M, AGED 59 YEARS
GOVERNMENT CONTRACTOR,
JOSE BUNGALOW, PIDAVOOR.P.O,
PATHANAPURAM, KOLLAM-689 695.
BY ADVS.K.BABU THOMAS
SANTHOSH MATHEW
ARUN THOMAS
KARTHIKA MARIA
ANIL SEBASTIAN PULICKEL
ABI BENNY AREECKAL
MATHEW NEVIN THOMAS
KURIAN ANTONY MATHEW
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE
GOVERNMENT, PUBLIC WORKS DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE SECRETARY TO THE GOVERNMENT,
FINANCE( INDUSTRIES & PUBLIC WORKS (B) DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
3 THE SUPERINTENDING ENGINEER, PWD BRIDGES, SOUTH
CIRCLE, MEDICAL COLLEGE.P.O, AMBALAPUZHA,
ALAPUZHA-688 561.
K V MANOJ KUMAR, SR. G.P.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.01.2023,
ALONG WITH WP(C).9445/2022 AND 1533/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.A.Nos.1531/2022, 1533/2022 &
W.P.(C)No.9445/2022
:: 2 ::
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TH
TUESDAY, THE 17 DAY OF JANUARY 2023 / 27TH POUSHA, 1944
WA NO. 1533 OF 2022
AGAINST THE JUDGMENT IN WP(C) 27170/2022 OF HIGH COURT OF KERALA DATED 10.10.2022
APPELLANT/PETITIONER:
JOSE THOMAS M, AGED 59 YEARS
GOVERNMENT CONTRACTOR, JOSE BUNGALOW,
PIDAVOOR P.O., PATHANAPURAM, KOLLAM 689 695.
BY ADVS.SANTHOSH MATHEW
ARUN THOMAS
KARTHIKA MARIA
ANIL SEBASTIAN PULICKEL
ABI BENNY AREECKAL
LEAH RACHEL NINAN
MATHEW NEVIN THOMAS
KURIAN ANTONY MATHEW
RESPONDENTS/RESPONDENTS:
1 THE STATE OF KERALA, REPRESENTED BY THE
SECRETARY TO THE GOVERNMENT, PUBLIC WORKS
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM -
695 001
2 THE CHIEF ENGINEER, PWD BRIDGES, PUBLIC OFFICE
BUILDINGS, THIRUVANANTHAPURAM - 695 033
3 THE SUPERINTENDING ENGINEER, PWD BRIDGES, SOUTH
CIRCLE, MEDICAL COLLEGE P.O., AMBALAPUZHA,
ALAPUZHA - 688 561.
K V MANOJ KUMAR, SR. G.P.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
17.01.2023, ALONG WITH WA.1531/2022 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.1531/2022, 1533/2022 &
W.P.(C)No.9445/2022
:: 3 ::
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TH
TUESDAY, THE 17 DAY OF JANUARY 2023 / 27TH POUSHA, 1944
WP(C) NO. 9445 OF 2022
PETITIONER:
JOSE THOMAS M, AGED 59 YEARS, GOVERNMENT
CONTRACTOR, JOSE BUNGALOW, PIDAVOOR P.O,
PATHANAPURAM, KOLLAM 689 695.
BY ADVS.K.BABU THOMAS
MARYKUTTY BABU
AMBIKA C.
Santhosh Mathew Mathew
ABI BENNY AREECKAL(K/001482/2019)
KURIAN ANTONY MATHEW(K/1812/2020)
MATHEW NEVIN THOMAS(K/000936/2019)
ARUN THOMAS(K/844/2007)
ANIL SEBASTIAN PULICKEL(K/000278/2018)
RESPONDENTS:
1 STATE OF KERALA, REP. BY THE SECRETARY TO THE
GOVERNMENT, PUBLIC WORKS DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM 695 001.
2 THE SECRETARY TO THE GOVERNMENT, FINANCE
(INDUSTRIES AND PUBLIC WORKS (B) DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001
3 THE SUPERINTENDING ENGINEER, PWD BRIDGES, SOUTH
CIRCLE, MEDICAL COLLEGE P.O, AMBALAPPUZHA,
ALAPPUZHA 688 561.
K V MANOJ KUMAR, SR. G.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 17.01.2023, ALONG WITH WA.1531/2022 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.1531/2022, 1533/2022 &
W.P.(C)No.9445/2022
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JUDGMENT
[W.A.Nos.1531/2022, 1533/2022 &
W.P.(C)No.9445/2022]
Dated this the 17th day of January 2023
Shaji P Chaly, J.
The writ appeals and the writ petition are filed by one
and the same person with respect to a tender notice, and
letter of acceptance vis-a-vis whether the security to be
submitted at the time of executing the agreement is 5% or
3% of the contract amount, and waiving the additional
performance guarantee for low rate quoted items on
condition that the bidder shall furnish an undertaking to
execute all low rate quoted articles in full as per the
contract terms.
2. Writ Appeal No.1531 of 2022 is filed against an
interim order passed in I.A.No.5/2022 in W.P.
(C)No.9445/2022 by which, the learned Single Judge
refused to modify the interim order dated 30.3.2022
whereby, the petitioner was directed to deposit 3%
performance guarantee on 30.3.2022 itself along with
additional security. However, the additional guarantee was
W.A.Nos.1531/2022, 1533/2022 &
W.P.(C)No.9445/2022
:: 5 ::
not furnished but sought modification of the interim order,
after five months, when the petitioner was served with
Ext.P6 order dated 4th August 2022 directing to execute the
agreement by remitting the additional performance
guarantee within seven days from the date of receipt of the
letter and start the work without delay failing which, it was
threatened that the work will be rearranged at the risk and
cost of the petitioner.
3. Writ Appeal No.1533/2022 is filed against the
judgment of the learned Single Judge in W.P.(C)No.27170 of
2022 dated 10th October 2022 whereby, Ext.P10 termination
order dated 16.8.2022 was challenged for not providing the
additional performance guarantee as per the interim order
passed as specified above.
4. Since we found that the contentions raised in the
writ appeals and the writ petition are materially and
intrinsically woven, the writ petition was called for to be
considered together.
5. Whatever that be, learned Special Government
Pleader Sri.K.V.Manoj Kumar fairly submitted that the issue
W.A.Nos.1531/2022, 1533/2022 &
W.P.(C)No.9445/2022
:: 6 ::
with respect to the additional performance guarantee and
the reduced security deposit from 5% to 3% as per the
Government order in question at the time of invitation of a
tender was considered by this court in the judgment in
W.A.No.615/2022 and connected cases dated 22 nd
November 2022 and held against the Government, and the
same situation remains in W.A.No.1533/22 and W.P.
(C)No.9445/2022. Therefore it is submitted that in view of
the findings rendered in the common judgment in
W.A.No.615/2022 and connected cases, W.A.No.1533/22
and W.P.(C)No.9445/2022 may be allowed.
6. The findings rendered in W.A.No.615/2022 and
connected cases were rendered taking into account the
order issued by the Government of India, Ministry of
Finance, Department of Expenditure, New Delhi, dated 12 th
November 2020, in respect of performance security
considering the adverse situation prevailing in the
community during pandemic, and the order of the
Government of Kerala dated 7.1.2021; the relevant portion
of the judgment reads thus:
W.A.Nos.1531/2022, 1533/2022 &
W.P.(C)No.9445/2022
:: 7 ::
"23. The question emerges for consideration is,
as to whether any interference is required to the
judgments of the learned single Judge.
24. Admittedly, as per the notification dated
7.1.2021, the performance security/security deposit,
to be submitted at the time of executing the
agreement is reduced from the existing rate of 5% to
3% of the contract amount and correspondingly bid
security/earnest money deposit is reduced from 2.50%
to 1.50% of the estimate amount. Further, additional
performance guarantee, for the execution of public
works in the State, is waived for the low quoted items
on condition that the bidder shall furnish an
undertaking to execute all low quoted items in full as
per the contract terms. In fact, the benefit of Ext-P14
notification dated 7.1.2021 was extended to the
contractors, who have not executed any agreement.
25. The case projected by the appellants is that
no classification need be made between the
contractors, who have already executed the
agreement, and the contractors, who have not, after
the bid was accepted. In our considered opinion, the
benefit of Performance Security/Security deposit, Bid
Security/Earnest Money Deposit and Additional
Performance Guarantee was extended by the
Government only to those persons who have not
executed the agreement, apparently for the reason
that there was a slow down in economy and acute
financial crunch among the contractors, due to
COVID-19 Pandemic.
26. It was taking into account the abovesaid
situation, Government of India have issued the
guidelines as per the memorandums referred to in
Exhibit-P14 order dated 7.1.2021 and State
Governments were requested to consider issuing
similar instructions in respect of procurement of the
W.A.Nos.1531/2022, 1533/2022 &
W.P.(C)No.9445/2022
:: 8 ::
State Government, by State Government Public
Undertakings, Local Bodies and all the agencies
controlled by them.
27. Evidently, from the persons who have already
executed the contract, Government have secured the
Performance Security, Bid Security and additional
Performance Guarantee, and therefore, the contract
obligations for performance of the contract was acted
upon by the parties in its entirety. Government
thought it fit not to re-open the same by re-paying or
adjusting the Performance Security, Bid Security and
additional Performance Guarantee, given on higher
terms and conditions. Moreover, the contractors, who
have already executed the agreement, cannot turn
around and say that they are entitled to get the
benefit of the notification subsequently issued by the
State Government, in order to deal with the economic
crunch.
28. Therefore, it can be deduced that there is no
discrimination between the contractors for the basic
reason that the persons, who have executed the
agreement and paid the Performance Security, Bid
Security and executed the additional Performance
Guarantee have to be treated as a separate class from
the contractors whose bids were accepted, but
agreements were not executed. Material on record
also discloses that the Government was of the clear
opinion that such a benefit can be extended to such
persons for the reason that they are yet to execute an
agreement and carry out the obligations in terms of
the notice inviting tenders, after the outbreak of
Covid-19 Pandemic, lock down's, and consequential
adverse situations, prevailed in the community.
29. Taking into consideration the above aspects,
we are of the considered view that there is no
discrimination or unreasonable classification by and
W.A.Nos.1531/2022, 1533/2022 &
W.P.(C)No.9445/2022
:: 9 ::
between the contractors, who have executed the
agreement, and the contractors who were yet to
execute the agreement, entitling to secure the
benefits as per the Government order dated 7.1.2021.
Therefore, we do not find any reason to interfere with
the judgment passed by the learned single Judge in
W.P.(C) Nos. 23679, 26212 and 26762 of 2021 dated
22.04.2022.
30. Insofar as the writ appeal filed by the State
and its instrumentalities against the judgment dated
8.4.2022 in W.P.(C) No.4140 of 2022 is concerned, it is
categoric and clear that in the said judgment, which is
impugned therein, learned single Judge has taken
note of the order dated 7.1.2021 (Exhibit-P4) and
arrived at the conclusion that the term "all new
tenders" recited in the G.O. dated 7.1.2021 would
mean tenders floated on or after 7.1.2021. Writ court
also entered into a finding that works which have
been tendered and awarded but agreements have not
been signed, would be entitled to get all the benefits
on account of the tenders floated and works awarded
prior to 7.1.2021, but agreements have not been
signed before 7.1.2021.
31. However, in the impugned judgment, the
learned single Judge has clearly found that the bids in
respect of the petitioner in W.P.(C) No.4140 of 2022
were invited on 22.12.2021, which is after the
issuance of Government order dated 7.1.2021, and
therefore, the petitioner therein is entitled to get the
benefit of the said Government Order. It was
accordingly, in the judgment leading to W.A. No.941 of
2022 dated 8.4.2022, learned single Judge held that
the respondents are not justified in demanding 5%
performance security, 2.5% EMD and additional
performance guarantee.
W.A.Nos.1531/2022, 1533/2022 &
W.P.(C)No.9445/2022
:: 10 ::
32. It is also to be taken note of, that before
execution of the agreement, the validity period of the
Government order dated 7.1.2021 expired on 6.1.2022
and thereupon, Government have issued a new order
dated 15.3.2022, wherein clause (3) specifies that the
Government have examined the matter in detail and
are pleased to extend the relaxations in the
Performance Guarantee ordered as per Government
order dated 7.1.2021, for a further period up to
31.03.2023. But the fact remain, even assuming that
the Government order dated 15.03.2022 provides for
relaxation of the Performance Security alone, the
tenders floated by the Government and the offer made
by the writ petitioner therein were governed by the
G.O. dated 7.1.2021, which was in force till 6.1.2022.
33. Considering the above aspects, we are of the
view that the learned single Judge was right in
arriving at the conclusions discussed above.
Moreover, State Government have not made out a
case of any jurisdictional error or other legal
infirmities, susceptible to be interfered with the
judgment dated 8.4.2022 in W.P.(C) No.4140 of 2022,
in exercise W.As. 615, 713, 726 & 941 of 2022 -:31:- of
the powers conferred under Section 5 of the Kerala
High Court Act.
Resultantly, the writ appeals have no sustenance
and accordingly, they are dismissed. No costs."
7. In that view of the matter, we do not think that a
separate adjudication in the instant appeals and writ
petition are required. W.A.No.1533/22 and W.P.
(C)No.9445/2022 can be allowed in terms of the common
W.A.Nos.1531/2022, 1533/2022 &
W.P.(C)No.9445/2022
:: 11 ::
judgment in W.A.No.615/2022 and connected cases.
Accordingly, they are allowed. It is also made clear that the
preposition of law laid down in W.A.615/2022 and connected
cases would squarely apply to the aforesaid writ petition
and writ appeal.
In view of the Judgment allowing W.A.No.1533/22 and
W.P.(C)No.9445/2022, we do not think W.A.No.1531/2022,
challenging interim order passed by the learned Single
Judge dated 10.10.2022 in W.P.(C)No.9445/2022 has any
sustenance. Accordingly it is dismissed.
sd/-
S.MANIKUMAR
CHIEF JUSTICE
sd/-
SHAJI P. CHALY
JUDGE
jes
W.A.Nos.1531/2022, 1533/2022 &
W.P.(C)No.9445/2022
:: 12 ::
APPENDIX OF WP(C) 9445/2022
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF G.O (P) NO. 7/2021/FIN.
Exhibit P2 TRUE COPY OF THE RELEVANT PORTION OF THE
TENDER NOTICE.
Exhibit P3 TRUE COPY OF LETTER OF ACCEPTANCE.
Exhibit P4 TRUE COPY OF REPRESENTATION OF THE
PETITIONER.
Exhibit P5 TRUE COPY OF THE COVERING LETTER
PRODUCING DOCUMENTS
Exhibit P5(A) TRUE COPY OF THE TREASURY SAVINGS BANK
FIXED DEPOSIT FOR RS.12,52,000/-
Exhibit P5(B) TRUE COPY OF THE BANK GUARANTEE FOR
RS.12,50,924/- ISSUED BY M/S. FEDERAL BANK
LIMITED, PATHANAPURAM
Exhibit P6 TRUE COPY OF THE LETTER ISSUED BY THE 3RD
RESPONDENT TO THE PETITIONER
Exhibit P7 TRUE COPY OF THE REPLY OF THE PETITIONER
TO EXHIBIT-P6
Exhibit P8 TRUE COPY OF ORDER NO.SEBRSC/4633/2022
ISSUED BY THE 3RD RESPONDENT.
RESPONDENTS' EXHIBITS:
EXHIBIT R3(A) TRUE COPY OF G.O.(P) NO.32/2022/FIN DATED 15-03-
EXHIBIT R3(B) TRUE COPY OF THE LETTER DATED 25-03-2022 SENT
TO THE BIDDER BY SUPERINTENDING ENGINEER
OFFICE ALONG WITH ENGLISH TRANSLATION.
EXHIBIT R3(C) TRUE COPY OF THE NOTICE DATED 12-04-2022
ISSUED TO THE BIDDER BY SUPERINTENDING
ENGINEER OFFICE.
EXHIBIT R3(D) TRUE COPY OF LETTER DATED 25-04-2022 ISSUED TO
THE PETITIONER BY SUPERINTENDING ENGINEER
OFFICE.
EXHIBIT R3(E) TRUE COPY OF LETTER DATED 04-08-2022 ISSUED TO
THE PETITIONER BY SUPERINTENDING ENGINEER
OFFICE
// true copy //
P.S. to Judge
