Malabar Tech v. the Project Director

Kerala HC11 Apr 2024WP(C)/23696/2023

Case brief

AI extract

What is this about?

Section bench upheld Government of Kerala orders granting price preference (up to 10%) to Uralungal Labour Contract Co-operative Society in tenders. Holding citizens have no fundamental right to demand contracts, the court ruled the policy aims at distributive justice and welfare under Article 39, absolving the executive of arbitrariness regarding revenue loss.

What did the court decide?

Writ appeals allowed; writ petitions dismissed upholding the validity of the Government orders granting preference to the labour society.

What the court decided

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

¶4

¶5

THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

¶6

THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946

¶7

WA NO. 44 OF 2021

¶8

AGAINST THE JUDGMENT DATED IN WP(C) NO.3760 OF 2020 OF HIGH

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COURT OF KERALA

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APPELLANT/S:

¶11

1 CHERIAN VARKEY CONSTRUCTION COMPANY (PVT) LTD. ENGINEERS AND CONTRACTORS, VTH FLOOR, ALFA PLAZA, K.P.VALLON ROAD, KADAVANTHRA, KOCHI - 682 020 REPRESENTED BY ITS DIRECTOR, REJI M.CHERIAN.

¶12

Malabar Tech Vs the Project Director — Service and Employment | Kerala HC (2024)

¶31

ALLD.R9ELETHINKARA LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD
NO. 1020, REPRESENTED BY ITS PRESIDENT SABY. P.V ,
ELETHINKARA (ADDL.R9 IMPLEADED AS PER ORDER ON IA
1/2023 DTD.11/4/2024)
BY ADVS.
SRI.K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL
SHRI K.V.MANOJ, SR.GP
SRI.M.SASINDRAN
SRI.ATHUL SHAJI
V.M.KRISHNAKUMAR
SHRI S.SHYAM KUMAR
RENJITH THAMPAN (SR.)
SHRI.ANWIN JOHN ANTONY

¶45

BY ADVS.
SANTHOSH MATHEW
SRI.ARUN THOMAS
SRI.JENNIS STEPHEN
SRI.VIJAY V. PAUL
SMT.KARTHIKA MARIA
SRI.ANIL SEBASTIAN PULICKEL
SMT.DIVYA SARA GEORGE
SMT.JAISY ELZA JOE
SHRI.ABI BENNY AREECKAL
SMT.LEAH RACHEL NINAN

¶65

1AF INFRASTRUCTURE PRIVATE LIMITED
2ND FLOOR, ROYAL PLAZA, BRIDGE ROAD, ALUVA, ERNAKULAM,
KERALA - 683101 REPRESENTED BY ITS MANAGING DIRECTOR
SHRI. ABDUL FAIZY, PIN - 683101
2P.K. SULPHEEKER & COMPANY
BUILDING NO.3/447 E GF. PADMINI APARTMENT, BEHIND
NADAKKAVU POST OFFICE, NADAKKAVU, KOZHIKODE, KERALA -
673011 REPRESENTED BY ITS MANAGING PARTNER SHRI. SUNAS
P.K., PIN – 673011
BY ADVS.
SANTHOSH MATHEW
ARUN THOMAS
KARTHIKA MARIA
ANIL SEBASTIAN PULICKEL
VEENA RAVEENDRAN
MATHEW NEVIN THOMAS
ABI BENNY AREECKAL
KURIAN ANTONY MATHEW
MANASA BENNY GEORGE
KARTHIK RAJAGOPAL

¶88

203, 177/33, VICTORY TOWER, KACHERIPADI, MANJERI,
MALAPPURAM, KERALA REPRESENTED BY MANAGING PARTNER,
ABDUL RAFEEQUE.N, AGE 50 YEARS, S/O ABDURAHIMAN
HAJIRESIDING AT NOORENGAL HOUSE MELMURI POST,
MALAPPURAM DT, PIN - 676121

¶109

1BUILDERS ASSOCIATION OF INDIA
AGED 50 YEARS
G-1/G-20, COMMERCE CENTRE, J. DADAJEE ROAD, TARDEO,
MUMBAI, REPRESENTED BY ITS AUTHORISED SIGNATORY, SHRI.
SABU THOMAS, PIN - 400034
2SABU THOMAS
AGED 50 YEARS
S/O. C.V. THOMAS, KOTTISSERI KUDIYARI, KOTHAMANGALAM,
ERNAKULAM DISTRICT., PIN - 686691
3MANU J NAIR
AGED 38 YEARS
S/O. V.K. JANARDHANAN NAIR, VADAKKEPUTHANPURA,
VARAPETTY P.O., KOTHAMANANGALAM, ERNAKULAM., PIN –
686691
BY ADVS.
SANTHOSH MATHEW
ARUN THOMAS
KARTHIKA MARIA
ANIL SEBASTIAN PULICKEL
SHINTO MATHEW ABRAHAM
ABI BENNY AREECKAL
MATHEW NEVIN THOMAS
KURIAN ANTONY MATHEW

¶131

grant preference to labour contract societies up to 10% over the
quoted amount of the lowest bidder. These matters are at the
instance of private contractors and are arising from writ petitions

¶134

and consequential stipulations in the notice inviting tenders.
Since the questions to be considered in all these matters are the
same, it is appropriate that all these cases are disposed of by a
common judgment.

¶140

lakhs. The labour society will have a preference for the award of
the work if their tender is up to 10% of the lowest tender. It
outlined eligibility conditions such as a minimum 50 labourers as
actual members of society and sympathisers up to 10% of the actual
membership. Subsequently, through another order dated 19/3/2004,
the Government stated that labour societies are not eligible for
any price preference for the contract administered by the Public
Works Department (PWD). Thereafter, another order of the Government
dated 2/8/2008 restored the priority benefits of the Government
order dated 13/11/1997 to the Uralungal Labour Contract Co-
operative Society Ltd. (hereinafter referred to as “ULCCS”) without

¶141

any restriction on financial limits. Furthermore, the PWD
Department issued another order dated 19/3/2020 allowing labour
contract societies subject to class of registration, to participate
in tenders floated by the Government with eligibility for price
preference up to 10% over the quoted amount of the lowest bidder.

¶144

On 4/11/2020, the Co-operative Department of the Government issued
another order on a request from the Managing Director of ULCCS to
undertake all types of work on preferential treatment. Accordingly,
the Government granted sanction to ULCCS to have preference of work
in the light of government order dated 13/11/1997. The Government
by an order dated 13/6/2023 exempted ULCCS from producing
eligibility certificates, in the light of the fact that the above
society has been recognised as an accredited agency by the
Government.

¶145

3. In the matters pertaining to writ appeals, the challenges
were raised against these orders. The learned Single Judge negated
the challenge, holding that the preference is given to the ULCCS
as a matter of State policy and does not involve any infringement
of fundamental rights in this matter. Some of the writ petitions
raising similar challenges have also been tagged. These writ
petitions raised additional challenges to the subsequent government
orders that modified the PWD manual to ensure preference for labour
societies, especially ULCCS.

¶150

Haris Beeran, who appeared for the writ petitioner in W.P (C)
23696/2023. We also heard the learned Advocate General Shri
K.Gopalakrishna Kurup and Shri M.Sasindran who appeared for ULCCS.
While the writ petitions and appeals pertain to certain awarded
and proposed contracts, we will not delve into the specifics of
each contract, as they all hinge on the substantial challenge
raised against the government order giving price preference to
ULCCS in the government order.

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the government orders are arbitrary and illegal. Firstly, on the
ground that the fundamental rights of private contractors have been
violated by executive orders. According to him, fundamental rights
cannot be violated through executive orders as executive orders
are not law as prescribed under Articles 13(2), 13(3), 14, 15(5)
and 19(6) of the Constitution. Expanding on his argument, he
highlighted the spoils system and submitted that State policy to
extend the benefit to a particular labour society, namely, ULCCS

¶157

price preference would drain the public exchequer without
benefiting the public at large. He also emphasized that granting
such preferential treatment to a labor society compromises public
interest. He also relied on the provisions of the Essential
Commodities Act and argued that executive instructions issued under
the Essential Commodities Act to secure an equitable distribution
of goods at fair prices are based on the plenary power issued under
the Act and in the absence of any legislative mandate, executive
instructions cannot regulate or prohibit the production and supply
of goods and services. The learned counsel further pointed out to
the various provisions of the Kerala Co-operative Societies Act
and submitted that provisions under the Co-operative Society do
not allow any unlimited price preference but only contemplate
providing financial assistance for deserving individuals after
taking into account their financial weakness through loans and
advances. We shall advert to the various precedents cited by the
learned counsel at appropriate stages. The learned counsel for one
of the writ petitioners, Shri Haris Beeran argued that government
orders contravene Articles 19(1)(g) and 19(6) of the Constitution.

¶161

the same class disparately constitutesunfair treatment and is
against the public interest, and thus violative of Article 14.
According to him, a responsible Government is bound to create a
level playing field for all builders, ensuring principles of
fairness and equity in competition. The learned Advocate General
submitted that the Government policy cannot be subjected to
judicial review. It is submitted that no one has a fundamental
right to obtain a contract from the Government. The Government is
like any other awarder of the contract and can award the contract

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based on sound policies to advance common interest. The learned
counsel Shri M.Sasindran appearing for ULCCS submitted that the
above society was established in the year 1925. It is contended
that the labourers are the members of the society and also submitted

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that the Government holds 84.7% shares of the society. According
to the learned counsel, price is not a determining factor in
assessing the fairness of the award of the contract; rather the
broader interest of the State plays a crucial role as a decisive
factor to determine fairness. He elaborated on the premise of
socialist ideology as proclaimed in the Constitution, and submitted

¶166

that fair distribution of assets and wealth of the State to reach
out to a large section of the Society is the basis for preferential
treatment given to labour society. He emphasized that members of
the labour society are the real beneficiaries of the price
preference, benefiting a large number of workers engaged by them.
The learned counsel highlighted that nearly 14,000 labourers and
staff are the direct beneficiaries of the work undertaken by the
labour society. It is argued that unlike the individual benefits
accrued to private contractors, the benefits of work undertaken by
the labour society are distributed among labourers, who constitute
the primary members of the society.

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entities, individuals, co-operative society, etc. Normally the
Government cannot carry out its functions of undertaking works
which are done by private parties. The Government will have to
entrust a range of the work undertaken by them through private
hands while scheming the public function. Instead of public

¶174

outsourcing its work to private players often faces legal
challenges, as the process itself may be flawed for any reasons
sustainable under the Constitutional parameters. Although the
Constitution stipulates that all contracts made in the exercise of
executive power shall be executed on behalf of the President or
Governor, it does not specify the manner in which this power should
be exercised by the executive. Generally, the legality of public-
private arrangements through contracts made by an executive is
ensured through the principles of executive accountability to the
public and the Constitution. The relationship between the public
and private sectors is normally assessed through the scale of
accountability, premised to eschew arbitrariness. However, in this
case, an argument has been raised that the executive has no power

¶175

to curtail the fundamental right to engage in contract through
executive orders, except through the plenary power of the
legislation. Shri Santhosh Mathew, learned counsel for the
appellants and for some of the petitioners relied on the following
judgments: Bijoe Emmanuel v. State of Kerala [(1986) 3 SCC 615]
paras.9 to 14, 16 and 17; K.S. Puttaswamy v. Union of India, [(2019)

¶178

1 SCC 1] para.270.6, 498-504; Raju Sebastian and Others v. Union of
India and Others [2019 (4) KHC 615] para.12 and 13 and 20; and
Bishambar Dayal Chandra Mohan v. State of UP[(1982) 1 SCC 39]; to
argue that executive instructions or order cannot curtail
fundamental rights. He submitted that in the absence of law enacted
by the Legislature, such restrictions cannot be imposed on
fundamental rights.

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7. This argument proceeds on the premise that the freedom
to carry out any occupation or trade under Article 19(i)(g) of the
Constitution also extends to obtaining a contract from the
Government. This, according to us is a wrong notion on fundamental
rights. The freedom to pursue any occupation or business does not
automatically grant the right to demand the award of a contract.
The right to demand a contract is distinct from the right to remove
barriers to engage in trade or business. A right presupposes legal
interest with a corresponding duty on the Government. The jural
postulates as mentioned above are imminent in a claim based on
fundamental rights as well. The Constitution nowhere acknowledges

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freedom emanates from executive power. However, this freedom is
circumscribed by constitutional accountability, preventing
arbitrary actions. The steer of this restriction of choice is
founded on Article 14, making the executive accountable to the
Constitution and the public. Nonetheless, this accountability
should not be misconstrued as implying that citizens have a
fundamental right to demand a contract from the State. Article
19(6) of the Constitution contemplates law imposing restrictions
on fundamental rights conferred upon the citizen. The freedom to
carry out trade or business is not synonymous with demand for the
award of contract as a matter of right to claim from the Government.
In every right, there exists a corresponding relationship, which
in turn brings forth the axis of rights and duties. The process of
awarding contracts is intertwined with the State's authority,
granting it the legal capacity to undertake certain actions, such
as awarding contracts in this context. Article 19(6) is regarding
curtailing the freedom of the citizen rather than curtailing the
power of the executive, as latter’s freedom is curtailed only
within the sphere of accountability. Therefore, the law as
understood in Article 19(6) is the law relating to the law imposing
restrictions on the fundamental rights of the citizen and not

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Apex Court held that no one has a fundamental right to claim a
contract from the State and it is entirely permissible for the
State to enter into contracts, much like a private party, to select
individuals of their choice to fulfill the contracts they wish to
undertake. Not being awarded a contract should not be seen as a
denial of the right to engage in trade or business. In Krishan v.
Government of Kerala[1997 KHC 76], also it was held that although
a citizen has a fundamental right to carry on trade and business,
he has no right to insist upon the Government or other individuals
for doing business with them.

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8. Citizens do not have any fundamental right to demand a
contract from the State. Fundamental rights are acknowledged rights
of citizens to express their will in a sphere of their choice. The
State’s sphere of activity is limited by the Constitution including
its engagement in trade, commerce, and award of contract. The
State's freedom to contract and to award the contract is not the

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the freedom of citizens. It is only subjected to those limitations
as prescribed under the Constitution. That would become more
restrictive when the State engages private entities to carry out
its functions, as it must treat all such entities without
discrimination. Article 14 of the Constitution does not contemplate
equality of unequals. The labourers who lack the resources to
compete with affluent individual contractors, forming a co-
operative society to compete with such contractors who have all
wherewithal, cannot be considered as belonging to the same
category. Article 14 acts as a safeguard against arbitrary power
and discrimination, thereby holding the executive accountable to
both the Constitution and the public. Whether the State has any
justifiable reason to treat labour society differently will also
have to be discussed here.

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society would result in economic loss to the State. Highlighting
such apparent arbitrariness in such a decision and underscoring
the discrimination by treating private entities differently, the
learned counsel for the appellants-writ petitioners (contractors)
argued that equality of law would imply the absence of any special
privilege in favour of any individual. It is their argument that
Article 14 forbids discrimination between persons who are
substantially in similar circumstances and conditions. According
to them all contractors, as far as the Government stand on the same
footing, require equal protection from the State while considering
the award of the contract. It is further argued that by State
policy, a monopoly will be created in favour of one society at the
cost of exchequer. It was submitted that when all other factors
are equal and competing parties are also equal, the standard rule
is that the lowest bid should be accepted. Placing reliance on

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their argument and submitted that level playing field is important
to consider under Article 19(i)(g) therefore, co-operative
societies as well as private contractors have to be treated
equally. Also placing reliance on Karnataka State Industrial
Investment & Development Corpn. Ltd. v. Cavalet India Ltd., [(2005)
4 SCC 456] it is submitted that fairness and reasonableness are

¶207

the dominant consideration for the Government while awarding the
contract. The learned counsel Santhosh Mathew also placed reliance
on the judgment of the Apex Court in Raunaq International Ltd. v.

¶209

O. Janardhan Reddy v. Spl. Dy. Collector, [(1994) 6 SCC 456] to
hold the argument that the decision-making process of the executive
must be reasonable, and any relaxation must be bona fide to actuate
public interest. The learned counsel for the appellants-writ
petitioners also relied upon the judgment of the Apex Court in
Assn. of Registration Plates v. Union of India, [(2004) 5 SCC 364];

¶214

11. The concept of the welfare State, as envisioned by the
Indian Constitution, places the responsibility on the State to
ensure the welfare of its citizens. This is possible only by
providing adequate means of livelihood. The preamble ensures its
citizens not only political and socialist justice but also economic
justice.

¶215

12. During the discussions in the Constituent Assembly
regarding the economic order of the country, Shri Brajeshwar Prasad
suggested that the future of India must be secured in socialism.
According to the learned member, he believed in a socialist order

¶217

is a mere shibboleth. Though the expression "socialist" was not
initially included in the preamble, it was introduced through the
Constitution 42nd Amendment in 1976. The concept of socialism is
not explicitly defined in the Constitution, but these principles

¶221

“Shri Brajeshwar Prasad: I have laid stress on another word. I refer to
the Word 'Socialist'. I believe that the future of India is in Socialism.
I believe in a Socialist order. When I say that I believe in a socialist
order. I do not mean that I accept the Marxian interpretation of History.
I do not believe in class war nor in the materialist Philosophy which is
so widely prevalent among the socialist circles. By socialism I mean an
equalitarian social order. Equality of opportunity without equality of
income is a mere shibboleth. I believe that in India we have to evolve a
new type of socialism consistent with the tradition and history of this
land. The theory of materialism is a well-knit dogma. I think that we
people in India have not to learn anything from Germany on philosophical
speculation.”

¶224

"The principle aim of socialist State is to eliminate inequality and
status and standards of life. The basic frame work of socialism is to
provide a decent standard of life to the working people and specially
provide security from cradle to grave. This amongst others on economic
side envisaged economic equality and equitable distribution of income.
This is a blend of Marxism and Gandhism leaning heavily towards Gandhian
socialism."

¶225

14. The welfare State canalises its function to fulfill the
aspiration of the citizen in accordance with Constitutional
principles and philosophy. L. C. Golak Nath and Others v. State of
Punjaband Another [1967 KHC 740] the Apex Court spoke about the
preamble:

¶229

15. Article 39(c) outlines the guiding principles for the
State to prevent wealth concentration and promote means of
production for the common good. Additionally, Article 43A
emphasizes worker participation in industrial management, while
Article 43B refers to the promotion of co-operative society by the
State. These constitutional provisions aim to shape the economic
structure by enhancing production capabilities and ensuring
equitable wealth distribution. Another aspect of economic policy
aims to alleviate the sense of injustice, as those at a disadvantage
would fear that in the economic structure of the State, those who

¶230

are having an advantage alone would benefit from the State. When
formulating economic or social policies, the State's primary
concern is the pursuit of justice. This concept of justice hinges
on balancing advantages and disadvantages within society. John

¶234

●Each person has an equal claim to fully adequate scheme
of equal basic rights and liberties, which scheme is
compatible with the same scheme for all; and in this
scheme the equal political liberties, and only those
liberties, are to be guaranteed their fair value.

¶236

This gave rise to the idea of distributive justice, which focuses
on the equitable distribution of resources across diverse groups.
This idea is against the concentration of wealth on individuals.
It promotes the distribution of wealth to impact community
interest.

¶241

“Pure egalitarianism is concerned with the purely comparative
concern of giving people equal shares, whereas prioritarianism is
concerned with making people's lives go better, with greater importance
assigned to lives that are going less well.”

¶243

“Turning now to distributive justice in my preferred sense and beginning
with the stage of basic concept, I take this as requiring a fair sharing
out of community benefits and burdens among members. When a group of
individuals composes a communion, properly speak- ing, (cf., a labor union
and a crowd at an accident), certain common goods and charges arise, and
distributive justice calls for equivalence between what is due to or from
each and what is received or contributed. In the modern state what are
primarily in question in the economic domain are public and merit goods
and the means of financing them. At bottom, distributive justice is a form
of virtue, of course, concerned with human behavior, even if, as in all
talk about justice, we tend to focus in a natural way on the reflection
in practical affairs of behaviour. Accordingly, the obligation to ensure
distributive justice falls primarily on those in authority; citizens for
their part have the duty in social justice (its origin as "legal" justice
makes the point clearer) of complying with the just decisions of the
government and its executive arm.”

¶249

the values of social change. American economist Kennath J. Arrow
explored social choice theory. This theory is related to
translating individual preferences into the preferences of the
group. Our Constitution prioritizes collective transformation over
individual preferences. This group transformation is not only
confined to the transformation of socially and economically
marginalized communities on social indices butalso empowering
economically disadvantaged groups. Economic justice is rooted not
in social criteria but rather in addressing economic disadvantages.
Amartya Sen, an Indian economist, in his article “Social Choice
and Social Welfare” reflected on Arrows view and states about
social choice theory for welfare economics as follows:

¶250

“The study of social choice as a formal discipline first came into its
own in the late eighteenth century, when the subject was pioneered by
French mathematicians, particularly J. C. Borda and Marquis de
Condorcet. The intellectual climate of the time was greatly influenced
by the European Enlightenment, with its interest in reasoned
construction of a social order, and its commitment to the creation of a
society responsive to people’s preferences.”

¶253

 19. There may be various ideals to comprehend justice and
while the Courts are not experts in defining ideals, they are
experts in holding that the Constitution recognizes such ideals in
defining justice. Another aspect of justice is the dimension of
the welfare State. The concept of the welfare State itself embodies
economic justice. Article 39, Directive Principles of State Policy
are considered fundamental in the governance of the Country.
Article 39B specifies that the ownership and control of material
resources of the community are distributed to subserve the common
good. Rawls' concept of justice as fairness revolves around
regulating social institutions for collective benefit and for the
advantage of all for cooperation. Rawls' argument is that “a just
system must generate its own support. This means that it must be
arranged so as to bring about its members the corresponding sense
of justice, an effective desire to act in accordance with rules
for the reasons of justice3”

¶259

11. The Preamble of the Constitution is the epitome of the basic
structure built in the Constitution guaranteeing justice — social,
economic and political — equality of status and of opportunity with
dignity of person and fraternity. To establish an egalitarian social
order, the trinity, the Preamble, the Fundamental Rights in Part III and
Directive Principles of State Policy (for short, ‘Directives’) in Chapter
IV of the Constitution delineated the socio-economic justice. The word
‘justice’ envisioned in the Preamble is used in a broad spectrum to
harmonise individual right with the general welfare of the society. The
Constitution is the supreme law. The purpose of law is realisation of
justice whose content and scope vary depending upon the prevailing social
environment. Every social and economic change causes change in the law.
In a democracy governed by rule of law, it is not possible to change the
legal basis of socio-economic life of the community without bringing
about any corresponding change in the law. In interpretation of the
Constitution and the law, endeavour needs to be made to harmonise the
individual interest with the paramount interest of the community keeping
pace with the realities of ever-changing social and economic life of the
community envisaged in the Constitution. Justice in the Preamble implies
equality consistent with the competing demands between distributive
justice with those of cumulative justice. Justice aims to promote the
general well-being of the community as well as individual's excellence.
The principal end of society is to protect the enjoyment of the rights
of the individuals subject to social order, well-being and morality.
Establishment of priorities of liberties is a political judgment.

¶260

13. Social justice is the comprehensive form to remove social
imbalances by law harmonising the rival claims or the interests of
different groups and/or sections in the social structure or individuals
by means of which alone it would be possible to build up a welfare State.
The ideal of economic justice is to make equality of status meaningful

¶266

113. Finally, reading auction as a constitutional mandate would be
impermissible because such an approach may distort another constitutional
principle embodied in Article 39(b). The said Article enumerating certain
principles of policy, to be followed by the State, reads as follows:

¶270

The disposal of natural resources is a facet of the use and
distribution of such resources. Article 39(b) mandates that the ownership
and control of natural resources should be so distributed so as to best
subserve the common good. Article 37 provides that the provisions of Part
IV shall not be enforceable by any court, but the principles laid down
therein are nevertheless fundamental in the governance of the country
and it shall be the duty of the State to apply these principles in making
laws. Therefore, this Article, in a sense, is a restriction on
“distribution” built into the Constitution. But the restriction is
imposed on the object and not the means. The overarching and underlying
principle governing “distribution” is furtherance of common good. But
for the achievement of that objective, the Constitution uses the generic
word “distribution”. Distribution has broad contours and cannot be
limited to meaning only one method i.e. auction. It envisages all such
methods available for distribution/allocation of natural resources which
ultimately subserve the “common good”.

¶273

“119. The norm of “common good” has to be understood and appreciated
in a holistic manner. It is obvious that the manner in which the common
good is best subserved is not a matter that can be measured by any
constitutional yardstick—it would depend on the economic and political
philosophy of the Government. Revenue maximisation is not the only way
in which the common good can be subserved. Where revenue maximisation is
the object of a policy, being considered qua that resource at that point
of time to be the best way to subserve the common good, auction would be
one of the preferable methods, though not the only method. Where revenue
maximisation is not the object of a policy of distribution, the question
of auction would not arise. Revenue considerations may assume secondary
consideration to developmental considerations.”

¶274

22. It is in this background the role of the co-operative
societies and their importance in the distribution of ownership
and control of material resources preventing concentration of
wealth have to be understood.

¶277

the world how ordinary people could become powerful through co-
operative movement. The labourers who organized the Rochdale
Pioneers, 150 years ago, were people suffering from the social
dislocations of the industrial revolution. They struggled to
survive periodic unemployment, low pay, unhealthy cities, and
dangerous workplaces. They had no social benefits—no insurance or

¶280

health care or pensions from their employers or from the state.
They were dependent on merchants who were sometimes unscrupulous,
who exploited the helplessness of the poor by selling at high
prices, by adulterating goods, or by trapping them with offers of
credit. And the Rochdale labourers faced these challenges in a time
and place when they had no vote, no democratically elected
government to represent them, no interventionist state to protect
them. Their answer to daunting social problems was a special kind
of self-help: mutual self-help, in which they would help themselves
by helping each other. It was a small start to a large international
movement4

¶281

24. The Co-operative movement embodies a community endeavor.
Part IX B of the Constitution, introduced by the 97th amendment,
embodies the realization of an economic model aimed at regulating
the distribution of wealth. The principles of co-operative movement
encompass self-help, self-responsibility, democracy, equality,

¶286

‘Subject to the provisions of this Part, the Legislature of
a State may, by law, make provisions with respect to the
incorporation, regulation and winding up of co-operative
societies based on the principles of voluntary formation,
democratic member-control, member-economic participation and
autonomous functioning.’

¶287

These principles ensure shared community benefit. In the post-
independence era, cooperative development received a boost, with
cooperatives being given a vital role in the various plans
formulated by the Planning Commission. The First Five Year Plan
(1951-56), outlined in detail the vision of the cooperative
movement in India and the rationale for emphasizing cooperatives

¶288

and panchayats as preferred organizations for economic and
political development. The Plan emphasized the adoption of the
cooperative method of organization to cover all aspects of
community development. It provided for the setting up of urban
cooperative banks, industrial cooperatives of workers, consumer
cooperatives, housing cooperatives, diffusion of knowledge through
cooperative training and education and recommended that every

¶293

principles and economic policies of the Government, with the
backing of the Constitution. Its validity is not tested on the
basis of loss or gain to the public exchequer. The Court is not
the master of governance but rather the State is responsible for
shaping its policy in line with constitutional objectives. If the
distribution of assets and wealth is intended to benefit a co-
operative society, any monopoly created thereon cannot be said to
be a disadvantage to the group left out, as the group was left out
based on a fair dealing on the anvil of economic policy of the
State. The revenue gain or revenue loss is not the criteria upon
which a policy should be tested. The court cannot interfere with
the policy except in cases where it results in manifest
arbitrariness. If the State has adhered to economic policies
consistent with constitutional objectives, it cannot be questioned

¶298

contractor belonged to the advantageous distinct group. Although
both groups may share the same subject in pursuing business goals,
if the State can identify distinction, not related to the subject,
but differentiation on a larger goal; they become distinct in the
eyes of the Constitution. There cannot be any symmetrical claim
based on the subject of the contract awarded as claimants are
asymmetrically placed in terms of state policy. State policy aims
to foster co-operative society (rather it is used as a means) while
prioritising the collective interest of the community. The learned
author Michelle Maisese in his article on distributive justice6
refers as follows: "some suggest a system of competition that
includes safety nets for those who cannot compete. This sort of
system combines the principle of equity with that of need. It
attempts to reward people for their productivity at the same time
that it ensures their basic needs are met”.7The focus of the
executive order, though ultimately related to the award of the
contract, is essentially a focus to promote community interest
consistent with the policies of the welfare State. Therefore,
individual contractors cannot claim parity of treatment with co-

¶304

of the community. In the absence of any fundamental right that can
be claimed by the individual contractors, the rest is a matter of
State policy and where no parity can be claimed as the object of
differentiation is not in recognising individual interest but
rather the larger community interest.

¶319

`PETITIONER EXHIBITS`
`Exhibit P1`	`A TRUE COPY` `DATED 13.04.`	`OF THE` `2023`	`2ND RESPONDENT'S NIT`
`Exhibit P2`	`A TRUE COPY` `WORK DATED N`	`OF THE` `IL.`	`BID DOCUMENT FOR THE`
`Exhibit P3`	`A TRUE COPY` `DATED 19.03.`	`OF G.O.` `2020`	`(MS) NO. 41/2020/PWD`
`Exhibit P4`	`A TRUE COPY` `CONFIRMATION`	`OF THE` `DATED`	`BID SUBMISSION` `03.05.2023`
`Exhibit P5`	`A TRUE COPY` `FOR THE WORK`	`OF THE` `DATED`	`TENDER SUMMARY REPORT` `18.05.2023`
`Exhibit P6`	`A TRUE COPY` `DATED 18.05.` `DETAILS UPLO`	`OF THE` `2023 AN` `ADED WI`	`COMPARATIVE BOQ CHART` `D THE BOQ SUMMARY` `TH EXT. P5`
`Exhibit P7`	`A TRUE COPY` `DATED 13.11.`	`OF G.O.` `1997`	`(MS.) NO. 135/97/CO-OP`
`Exhibit P8`	`A TRUE COPY` `19.03.2004`	`OF G.O(`	`MS) NO. 44/04/PWD DATED`
`Exhibit P9`	`A TRUE COPY` `DATED 02.08.`	`OF G.O.` `2008.`	`(MS) NO. 181/08/CO-OP`
`Exhibit P10`	`A TRUE COPY` `30.07.2014`	`OF G.O.`	`(P) NO. 311/14/FIN DATED`
`Exhibit P11`	`A TRUE COPY` `30.07/2014`	`OF G.O.`	`(MS) NO.423/14/FIN DATED`
`Exhibit P12`	`A TRUE COPY` `DATED 08.01.`	`OF G.O.` `2015`	`(P) NO.11/2015/FIN.`
`Exhibit P13`	`A TRUE COPY` `DATED 07.08.`	`OF G.O.` `2015`	`(P) NO. 339/2015/FIN`
`Exhibit P14`	`A TRUE COPY` `DATED 04.11.`	`OF G.O.` `2020`	`(RT) NO. 568/2020/CO-OP`
`Exhibit P15`	`A TRUE COPY` `14.05.2020`	`OF G.O.`	`(MS.) NO. 44/2020 DATED`
`Exhibit P16`	`A TRUE COPY` `IN W.P.(C) N` `COURT`	`OF THE` `O. 1678`	`ORDER DATED 26.05.2023` `0/2023 OF THIS HON'BLE`
`RESPONDENT EXHIBITS`
`Exhibit R3(a)`	`A true copy` `2020 in W.P.`	`of the` `(C) No.`	`judgment dated 17-11-` `3760 of 2020`

¶322

Exhibit R3(b)True copy of the G.O.(MS) No.284/74 AD.
dated 28-10-1974
Exhibit R3(c)True copy of the G.O.MS 136/78/AD. Dated
12-05-1978
PETITIONER EXHIBITS
Exhibit P17A TRUE COPY OF THE FINANCIALS OF THE 3RD
RESPONDENT FOR THE FINANCIAL YEAR 2021-2022
Exhibit P18A TRUE COPY OF THE GOVERNMENT ORDER BEARING
NUMBER 10/2023/CO-OP DATED 13.06.2023
Exhibit P19A TRUE COPY OF CIRCULAR NUMBER 31/10/09
DATED 09.11.2009 OF THE CENTRAL VIGILANCE
COMMISSION
RESPONDENT EXHIBITS
Exhibit R1(b)True copy of GO(P) No.58/12/PWD dated
04.08.2012
Exhibit R1(a)Relevant pages of the clause 1913 of PWD
Manual

¶326

`PETITIONER EXHIBITS` `Exhibit P1`	`TRUE COPY OF THE` `PETITIONER DURING`	`MAJOR WORKS EXECUTED BY` `PREVIOUS 5 YEARS`
`Exhibit P2`	`TRUE COPY OF THE` `PUBLISHED BY THE` `01/06/2023`	`NOTICE INVITING TENDER` `FIRST RESPONDENT DATED`
`Exhibit P3`	`A TRUE COPY OF TH` `THE TECHNICAL STA`	`E TENDER SUMMARY REPORT AT` `GE DATED 21/06/2023`
`Exhibit P4`	`TRUE COPY OF THE`	`FINANCIAL BID SUMMARY`
`Exhibit P5`	`TRUE COPY OF G.O` `DATED 13.11.1997` `G.O (MS.)`	`(MS.) NO. 135/97/CO-OP` `ALONG WITH TYPED COPY OF`
`Exhibit P6`	`TRUE COPY OF G.O` `DATED 02.09.2008` `G.O (MS.)`	`(MS.) NO. 181/08/ CO-OP` `ALONG WITH TYPED COPY OF`
`Exhibit P7`	`TRUE COPY OF G.O` `27.12.2019`	`(MS) NO.60/2019/PWD DATED`
`Exhibit P8`	`TRUE COPY OF THE` `GO(MS).NO.41/2020`	`GOVERNMENT ORDER` `/PWD DATED 19/03/2020`
`Exhibit P9`	`TRUE COPY OF THE` `NO. 4/2021 /CO-OP`	`GOVERNMENT ORDER G.O.(MS)` `; DATED 09/02/2021`
`Exhibit P10`	`TRUE COPY OF THE` `DATED 19.02.2022`	`G.O (MS.) NO.6/2022/PWD`
`Exhibit P11`	`TRUE COPY OF COMM` `24162 OF 2022 DAT`	`ON JUDGMENT IN W.PÂ© NO.` `ED 23.11.2022`
`Exhibit P12`	`TRUE COPY OF THE` `DIVISION BENCH OF` `NO.132/2023 DATED`	`JUDGMENT RENDERED BY THE` `THIS HON'BLE COURT IN W.A` `31/01/2023`
`Exhibit P13`	`TRUE COPY OF THE` `HON'BLE SUPREME C` `DATED 17/02/2023`	`INTERIM ORDER OF THE` `OURT IN SLP NO. 3033/2023`
`Exhibit P14`	`TRUE COPY OF G.O` `DATED 29.07.2022`	`(MS.) NO. 21/2022/PWD`
`Exhibit P15`	`TRUE COPY OF THE` `DATED 13.06.2023`	`G.O NO. 10/2023/CO-OP`
`Exhibit P16`	`TRUE COPY OF TEND` `TENDER ID. 2019-K`	`ER SUMMARY REPORT OF` `FRB-306706-1`

¶329

`Exhibit P17`	`TRUE COPY OF THE TENDER SUMMARY REPORT OF` `TENDER ID. 2018- KFRB -214255-1`
`Exhibit P18`	`TRUE COPY OF THE REGISTRATION CERTIFICATE` `PRODUCED BY THE SECOND RESPONDENT ALONG` `WITH THE BID SUBMITTED BY THEM IN THE` `SUBJECT WORK DATED 13/02/1925`
`Exhibit P19`	`TRUE COPY OF THE BOQ SUMMARY DETAILS OF` `CENTRALLY SPONSORED FUNDS IN TENDER ID:` `2023- MORTH-746499-1 AND TENDER ID: 2023-` `MORTH- 74769-1 DATED NIL`
`Exhibit P20`	`TRUE COPY OF MINUTES OF 44TH TENDER` `APPROVAL COMMITTEE MEETING HELD ON` `01.07.2023 IN THE CHAMBER OF SECRETARY TO` `GOVERNMENT, PWD`
`Exhibit P21`	`TRUE COPY OF THE INTERIM ORDER IN WP Â©` `16780 OF 2023 DATED 26.05.2023`
`Exhibit P22`	`A TRUE COPY OF THE DATA OF BOARD OF` `DIRECTOR OF 2ND RESPONDENT SOCIETY` `EXTRACTED FROM THE WEBSITE OF ULCCS LTD`
`Exhibit P23`	`A TRUE COPY OF THE DATA EXTRACTED FROM THE` `WEBSITE OF THE MINISTRY OF CORPORATE` `AFFAIRS`
`Exhibit P24`	`TRUE COPY JUDGMENT IN WP(C) 29442 OF 2022` `DATED 03.01.2023`
`Exhibit P25`	`A TRUE COPY OF THE LETTER OF ACCEPTANCE` `DATED 22.07.2023`
`Exhibit P26`	`A TRUE COPY OF THE E-MAIL COMMUNICATION` `DATED 20.07.2023 SEND BY THE PETITIONER`
`RESPONDENT EXHIBITS`
`Exhibit R2(a)`	`A true copy of the certificate dated 06-10-` `2023 issued by the Assistant Registrar of` `Co-operative Society, Vatakara`
`Exhibit R2(b)`	`A true copy of the G.O.(MS) No.44/01/PWD` `dated 19-03-2004`
`Exhibit R2(e)`	`A true copy of the PWD registration` `certificate of the 2nd respondent`
`Exhibit R2(c )`	`A true copy of the G.O.(Rt)NO.568 2020 Co-` `op dated 04-11-2020`
`Exhibit R2(d)` `PETITIONER EXHIBITS`	`A true copy of the judgment dated 17-11-` `2020 in W.P.(C) No.3760 of 2020`

¶332

`Exhibit P27`	`TRUE COPY OF THE REPLY SUBMITTED BY THE`
	`HON'BLE MINISTER BEFORE THE LEGISATIVE`
	`ASSEMBLY OF KERALA DATED 09.08.2023`
`Exhibit P28`	`TRUE COPY OF THE ENGLISH TRANSLATION OF`
	`REPLY SUBMITTED BY THE HON'BLE MINISTER`
	`BEFORE THE LEGISLATIVE ASSEMBLY OF KERALA`
	`09.08.2023`
`Exhibit P29`	`TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY` `THE THIRD RESPONDENT IN WP Â© 29442 OF 2022`

¶336

`PETITIONER EXHIBITS` `Exhibit P1`	`TRUE COPY OF THE GOVERNMENT ORDER VIDE NO.` `G.O.(MS.) NO. 135/97/CO-OP DATED 13.11.1997`
`Exhibit P2`	`TRUE COPY OF THE GOVERNMENT ORDER VIDE` `NO.(B) G.O.(MS.) NO. 44/04/PWD DATED` `19.03.2004`
`Exhibit P3`	`TRUE COPY OF THE GOVERNMENT ORDER VIDE` `NO.(C) G.O.(MS.) NO. 181/08/CO-OP DATED` `02.08.2008`
`Exhibit P4`	`TRUE COPY OF THE GOVERNMENT ORDER VIDE` `NO.(D) G.O.(MS.) NO. 41/2020/PWD DATED` `19/03/2020`
`Exhibit P5`	`TRUE COPY OF THE GOVERNMENT ORDER VIDE` `NO.(E) G.O.(RT.) NO. 568/2020/CO-OP. DATED` `14.11.2020`
`Exhibit P6`	`TRUE COPY OF THE GOVERNMENT ORDER VIDE NO.` `(F) G.O.(MS.) NO. 10/2023/CO-OP DATED` `13.06.2023`
`Exhibit P7`	`A TRUE COPY OF THE FINANCIALS OF THE 3RD` `RESPONDENT FOR THE FINANCIAL YEAR 2021-2022`
`Exhibit P8`	`A TRUE COPY OF THE GOVERNMENT ORDER VIDE` `NO.G.O. (MS.) NO. 44/2020 DATED 14.05.2020`
`Exhibit P9`	`A TRUE COPY OF CIRCULAR NUMBER 31/10/09` `DATED 09.11.2009 OF THE CENTRAL VIGILANCE` `COMMISSION.`
`Exhibit P10`	`TRUE COPY OF THE GOVERNMENT ORDER VIDE` `NO.G.O.(P) NO. 311/14/FIN DATED 30.07.2014`
`Exhibit P11`	`A TRUE COPY OF THE GOVERNMENT ORDER VIDE` `NO. G.O (MS) NO.423/14/FIN DATED 26.09.2014`
`Exhibit P12`	`A TRUE COPY OF THE GOVERNMENT ORDER VIDE` `NO.G.O.(P) NO.11/2015/FIN. DATED 08.01.2015`
`Exhibit P13`	`A TRUE COPY OF THE GOVERNMENT ORDER VIDE` `NO.G.O.(P) NO. 339/2015/FIN., DATED` `07.08.2015`
`Exhibit P14`	`A TRUE COPY OF THE LETTER ISSUED BY CVCC` `DATED 05.12.2020 TO THE PROJECT DIRECTOR,` `KRFB`

¶339

Exhibit P15A TRUE COPY OF FILE NO.PWD-D1/462/2017-PWD
OF THE PWD.
Exhibit P16A TRUE COPY OF A LIST PERTAINING TO MEMBERS
1ST PETITIONERS ASSOCIATION .
Exhibit P17A TRUE COPY OF THE CERTIFICATE OF
REGISTRATION OF THE 1ST PETITIONER
ASSOCIATION DATED 11.01.1983.
Exhibit P18A TRUE COPY OF THE AUTHORISATION ISSUED BY
THE STATE CHAIRMAN OF THE 1ST PETITIONER
FOR FILING THIS WRIT PETITION.
RESPONDENT EXHIBITS
EXHIBIT R4(b)True copy of the Government Letter No.PWD-
H3/2/2019/PWD dated 3.12.2019
EXHIBIT R4(a)True copy of the judgment in WP(C).No.3189
and 3760/2020 dated 17.11.2020
EXHIBIT R4(C)True copy of the G.O.(MS)NO.4/2021/Co-op
DATED 09.02.2021
Exhibit R3(a)A true copy of the share certificate dated
06.10.2023 issued by the Assistant
Registrar (General) of Co-operative
Societies, Vadakara
Exhibit R3(b)A true copy of the judgment dated 17-11-
2020 in W.P.(c) No. 3760 of 2020
Exhibit R3(c)A true copy of the G.O.(MS) No.284/74 AD.
dated 28-10-1974
Exhibit R3(d)A true copy of the G.O.MS 136/78/AD dated
12-05-1978
Exhibit R3(e)A true copy of the relevant extracts of the
bye laws approved by the Co-operative
Department
Exhibit R3(f)A true copy of the details of the benefits
provided by the society to the labourers

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