JUDGMENT K. A. Abdul Gafoor, J. 1. The petitioners have approached this Court challenging Ext. P4 tendernotice dated 14.7.97 and seeking a declaration that they are entitled to beawarded the contract of printing and supply of bus tickets and other allieditems pursuant to the tenders opened on 18.3.97. They also seek direction tofinalise the proceedings relating to the said tender opened on 18.3.1997 dulyreckoning the price preference for small scale industrial units in the State andthus to award the work to them. The First respondent Corporation invitingtenders on 10.7.97 for printing and supply of various items of tickets from thereputed printing presses for a period of 2 years from 1.1.97 to 31.12.98. Thelast date fixed was 22.8.96. The petitioners submitted their tenders. They weredoing the work based on the contract for the last term. The petitioners areconducting small scale industrial units in the State of Kerala. Then the tenderwas opened it was found out that the third respondent quoted the lowest andthe rate quoted by the petitioners were above that. There was price preferencein favour of small scale industrial units in the State to the extent of 15%.Therefore the petitioners contended that as the rate quoted by them werewithin 15% of the rate quoted by the 3rd respondent, they were entitled, interms of the said price preference, to get the contract. They relied onClause.38-A of the Stores Purchase Manual. As per the State Policyenunciated in the Stores Purchase Manual, State Govt. and Public SectorUndertakings shall purchase their stores and accessories from the products ofsmall scale industries within the State, even if their quotation is above 15%from the lowest tenderer. But the second respondent issued a fresh tendernotice dated 17.1.1996. There upon the petitioners filed O.P. 2309/97impugning that tender notice. That Original Petition was disposed of by Ext. P1judgment recording the agreement of the parties, as follows: "But it is agreed by both parties that as stated in the counter affidavit, thebenefit of 15% concession which was originally given to SSI units will continueas per the policy of the Government. Subject to that Ext. P6 may continue andpetitioners can also participate in the tender proceedings. It is stated that thetender will be finalised on 18.3.1997. Subject to that Ext. P6 may continue andpetitioners can also participate in the tender proceedings. It is stated that thetender will be finalised on 18.3.1997. Petitioners as well as 3rd respondent canparticipate in the tender." Thus this Court allowed the first respondent to proceed with fresh tender andrecorded the agreement of the first respondent that while considering thattender 15% concession of price preference would be allowed to the smallscale industries in the State. The fresh tender was opened on 18.3.1997. Thepetitioners quoted Rs.603/- per lakh of tickets, where as the third respondentquoted Rs.546/-. The petitioners thus corns within the 15% limit forconcession. Even then, the tender was not finalised inspite of the undertakinggiven to this Court and recorded in Ext. P1 judgment. While so the first andsecond respondents preferred CMP. 11889 of 1997 seeking clarification toExt. P1 judgment that they are entitled to prefer the lowest price quoted by the3rd respondent. That CMP was dismissed as per Ext. P2 order, making it clearthat the Original Petition had been "disposed of based on the undertaking" andtherefore there was nothing to be clarified further. The first respondent tookthe matter in appeal as W.A.768/97. That was disposed of by Ext. P3judgment. The relevant portion of the judgment reads as follows; "The learned counsel for the KSRTC, the appellants herein, contended thatthere was no such concession and the clarification was sought from thatCourt. The Court further dismissed the application for clarification, Even here,again, it was contended on behalf of the KSRTC that there was no suchstatement in the counter affidavit relating to the benefit of 15% concession asper the policy of the Government. But on reading of Para.6 of the counteraffidavit, it was found that the concession was correctly placed on the basis ofthe statement in the counter affidavit." Accordingly, the. Writ Appeal was dismissed. On the basis of that judgmentthe first and second respondents were liable to carry out Ext. P judgment. Butthe petitioners were issued with a fax message dated 14.7.97 by the firstrespondent corporation disclosing that they have invited tenders for printingand supply of tickets and the tender shall be submitted within two days. That isbefore 4 p.m. on 16.7.97. Ext. P4 is that fax message with the tendernotification. It is stated in Ext. P judgment. Butthe petitioners were issued with a fax message dated 14.7.97 by the firstrespondent corporation disclosing that they have invited tenders for printingand supply of tickets and the tender shall be submitted within two days. That isbefore 4 p.m. on 16.7.97. Ext. P4 is that fax message with the tendernotification. It is stated in Ext. P4 notification that "Government of Kerala VideG.O.(Ms)39/97/PW & T dated 3.4.97 was pleased to accord sanctionexempting KSRTC from the purview of price preference." It is in the abovecircumstances the petitioners have approached this Court challenging Ext. P4. 2. It is contended by the KSRTC that Govt. have issued G O (Ms)/ 39/97/PW& T dated 3.4.97 "exempting KSRTC from the purview of price preferenceenvisaged under Clause.38A of the Kerala Store Purchase Manual". Thusapplication of the said Manual to the Corporation is an admitted fact. If thetender is finalised in favour of the petitioners there will be huge loss to the firstrespondent and therefore Govt. have in order to avert the loss, exemptedKSRTC from allowing price preference to SSI units. Clarification to Ext. P1judgment was sought for bringing the new Govt. order to the notice of thisCourt before finalising the tender. This new order has come into force. Moreover the KSRTC decided to set up a printing press for printing tickets.Therefore there is no necessity to proceed with the tender directed to befinalised in Ext. P1 judgment. Within two months a press can be establishedand there is only a short term requirement for printing tickets and it is in theabove circumstances that Ext. P4 was issued. There is no necessity toproceed with the long term tender no invited earlier and directed to be finalisedin Ext. P1 judgment and as confirmed in Ext. P3 judgment. It is also submittedthat in the tender received pursuant to Ext. P4, the rate quoted by thecontestants were Rs.537 and 539. This is far below the quotation of thepetitioners in the tender which was directed to be finalised by Ext. P1 and thepetitioners have not submitted tender pursuant to Ext. P4. Therefore thecorporation may be allowed to finalise the tender as per Ext. P4. 3. Ext. P1 is the pronouncement of this Court. That had been confirmed inExt. P3. There was a clear undertaking that 15% concession would be grantedto the SSI units in the state. The tender was directed to be finalised on18.3.97. P4. Therefore thecorporation may be allowed to finalise the tender as per Ext. P4. 3. Ext. P1 is the pronouncement of this Court. That had been confirmed inExt. P3. There was a clear undertaking that 15% concession would be grantedto the SSI units in the state. The tender was directed to be finalised on18.3.97. Admittedly by the first respondent, the alleged exemption from pricepreference policy was granted to the first respondent only as per order dated3.4.97. Even if it is a valid order that will be applicable only for the tendersinvited subsequent to that. In this case the tender had to be finalised evenbefore that. Therefore the first respondent cannot on the basis of the allegednew order, exempting from the price preference, avoid the petitioners. The 1stand 2nd respondents are liable to act in terms of Ext. P1 as confirmed in Ext.P3. Therefore invitation of tender as seen from Ext. P4 is illegal. 4. Even if the first respondent set up their own establishment for printingtickets in the near future, in the agreement they enter into with the petitioners,they can incorporate that condition and limit the period of the tender. Thereforethe decision to establish a printing press of their own will not be a newcircumstance to avoid the binding nature of Ext. P1. 5. The further contention by the respondents is that Govt. have issuedG.O.(Ms)39/97/PW & T dated 3.4.97 exempting KSRTC from the purview ofprice preference envisaged in Clause.38-A of the Kerala Stores PurchaseManual. That is reiterated in Ext. P4 that Govt. was "pleased to accordsanction exempting KSRTC from the purview of price preference". Thusapplication of that Manual to the K.S.R.T.C. is an admitted fact. The said Govt.order has been issued by the Secretary, Public Works and TransportDepartment. The Secretary to that Department has no power to issue such anorder in the name of the Governor. 6. It is true that a Govt. Secretary has power to issue executive orders "in thename of the Governor". But exercising that power such Secretary cannot passany order. Art.166 of the Constitution of India provides that all executive actionof the Govt. of a State shall be expressed to be taken in the name of theGovernor and such order shall be authenticated in such manner as may bespecified in the rules to be made by the Governor. But exercising that power such Secretary cannot passany order. Art.166 of the Constitution of India provides that all executive actionof the Govt. of a State shall be expressed to be taken in the name of theGovernor and such order shall be authenticated in such manner as may bespecified in the rules to be made by the Governor. The Governor isempowered to "make rules for the more convenient transaction of the businessof the Government of the State, and for the allocation among Ministers of thesaid business". In exercise of that power Governor of Kerala has issued "Rulesof Business" concerning Allocation and Disposal of Business of Govt. andDepartmental Disposal of Business and such departments of the Secretariathave been classified indicating the business of the Govt. to be transacted inthe departments as appended to the notification issued in terms of R.4 of theRules of Business. R.4 of the Rules of Business provides that business of theGovernment shall be transacted in the Departments specified in the firstschedule and shall be classified and distributed between those departmentsas laid down therein. Each Department of the Secretariat shall have aSecretary to Government with such officers and servants subordinate to him.Every order of instrument of the Govt. of the State shall be signed by theSecretary as defined in R.2(c). But the Council of Ministers shall beresponsible for all executive orders even if such orders are authorised by anindividual Minister on matters pertaining to this portfolio. The Minister incharge of a Department shall be primarily responsible for the disposal ofbusiness appertaining to that Department. So the functions of the Secretarywill be, also, thus confined to that Department alone. The notification issued inG.O(P)No.193/87/GAD dated 18.3.87 under R.4 of the Rules of Business ofthe Govt. of Kerala indicate the business of the Govt. to be transacted invarious departments. A list of such departments is also appended to thatnotification. Apart from that, distribution of business among the Departments ofthe Secretariat also is detailed in that notification. "Public Works and TransportDepartment' is one among such departments. That department is empoweredto deal with the matters relating to roads, bridges, buildings and transportincluding the matters relating to Kerala State Road Transport Corporation. Asmentioned above the G.O.(Ms)39/97/PW &T dated 3.4.97 had been issued bythe Secretary, Public Works and Transport Department as stated in thecounter affidavit exempting KSRTC from the purview of price preferenceenvisaged under Clause.38-A of the Kerala Stores Purchase Manual. Asmentioned above the G.O.(Ms)39/97/PW &T dated 3.4.97 had been issued bythe Secretary, Public Works and Transport Department as stated in thecounter affidavit exempting KSRTC from the purview of price preferenceenvisaged under Clause.38-A of the Kerala Stores Purchase Manual. "StoresPurchase Department' is also one among the several departments, like PublicWorks and Transport Department classified by the Governor. One among thefunctions relating to that Department is "General questions relating to storepurchase like correspondence with Govt. of India and the Director General ofSupplies and Disposals, issue of general instructions and orders on storepurchase (Store Purchase Manual) advise to Administrative Departments onstore purchase and on relaxation of provisions of Store Purchase Manuals" (emphasis supplied). Therefore the entire matter relating to Store PurchaseManual, including relaxation therefrom is the function assigned to the StorePurchase Department by the Governor. Excemption from Clause.38-A of StorePurchase Manual introduced as per G.O(P) No. 16/86/SPD dated 11.1186therefore can be given only by the Secretary of the Store PurchaseDepartment, because that function had been delegated by the Governor onlyto the Secretary of the Store Purchase Department. The Secretary of PublicWorks and Transport Department had never been given authorisation to issuesuch an order in the name of the Governor. Therefore the said order relied onby the Kerala State Road Transport Corporation claiming that, thatCorporation had been exempted from Clause.38-A of Kerala Store PurchaseManual is not at all an order of Government; because it lacks the authoritygranted by the Governor. As per Art.166, all executive action of the Govt. of aState shall be expressed to be taken in the name of Governor. In the Rules ofBusiness Governor had not empowered the Secretary, Public Works andTransport Department to issue orders relaxing any of the provisions in StorePurchase Manual. Therefore that order is not properly authenticated as"specified in the rules made by the Governor in the conduct of the business"as provided in Art.166(2) of the Constitution of India. Therefore in law, it is nota Govt. order. 7. The Secretary, Public Works and Transport Department has exempted theKSRTC from certain provisions in the Store Purchase Manual by issuing thesaid order. On the basis of the Rules of Business, I had found that he had noauthority to issue such an order. Therefore in law, it is nota Govt. order. 7. The Secretary, Public Works and Transport Department has exempted theKSRTC from certain provisions in the Store Purchase Manual by issuing thesaid order. On the basis of the Rules of Business, I had found that he had noauthority to issue such an order. Store purchase Manual 8th edition, 1989contains several orders issued in clarification of the said Manual and evengiving exemption from several provision of the Manual in relation to severaldepartments like Health Service Department, Social Welfare Department,Revenue Department, Industries Department etc. All these orders relating tosuch departments were issued by the Secretary, Store Purchase Department. 8. There is another aspect also. The Corporation in its counter affidavitsubmits that exemption is granted from the price preference envisaged underClause.38-A of the Store Purchase Manual. That was introduced byG.O.16/86/SPD dated 11.11.86. That Govt. order on page 115 of the Manualshows that it was happened to be passed upon recommendation of thecommittee of the legislature namely Public Undertaking Committee. In suchcircumstances exemption from that provision can be granted only by the StorePurchase Department. But G.O.(Ms)39/97/P/N&T dated 3.4.97 shows that theexemption granted is from the provisions in G.O(P) 12/91/SPD dated 6.12.91.That was an amendment to Clause.39-(a) of the Stores Purchase Manualwhich deals with "products of Medium and Large Scale Industries within theState." Ext. P1 judgment as confirmed in Ext. P3 shows that what is to beallowed is a price preference to SSI units available under Clause.38-A of theStores Purchase Manual. Thus G.O.(MS) 39/97/PW & T dated 3.4.97 does notexcempt the KSRTC from Clause.38-A of Stores Purchase Manual. Thereforethe Corporation cannot avoid that concession available to small scaleindustries as contended in the Counter Affidavit. 9. There is one more important aspect also. A Minister is always responsiblefor the functioning of the Department in his charge as per R.9 of the Rules ofBusiness. Matters should be disposed of by or under his authority subject tothe Standing Orders given by him as per R.22. 9. There is one more important aspect also. A Minister is always responsiblefor the functioning of the Department in his charge as per R.9 of the Rules ofBusiness. Matters should be disposed of by or under his authority subject tothe Standing Orders given by him as per R.22. Each Minister shall means ofStanding Orders arrange with the Secretary of the Department, what mattersor classes of matters to be brought to his personal notice as per R.23 thereof.In such circumstances the Minister of Store Purchase Department might haveissued direction to the Secretary of that Department to bring to his noticematters relating to exemption from the Store Purchase Manual, WhenSecretary, Public Works and Transport Department issues an exemptionorder, the Minister of the Store Purchase Department who is entitled to knowsuch matter is deprived of that privilege. That cuts at the root of the democraticset up in Government, as the people's representatives in Govt. who is entitledto know a matter is denied of it. In such circumstances it is imperative, toprotect the democratic form of Government also, that the Secretary of eachdepartment shall confine himself, in passing orders, to his department alone.More over rule 60 of the Rules of Business provides that the Secretary ofeach Department shall be "responsible for the careful observance of these rules''. 10. It is true that the petitioner had not taken up any contention based on theRules of Business or the incompetency in issuing the exemption order. Butwhen glaring unconstitutionality and violation of Rules of Business, affectingthe basic functioning of Govt. is noticed this Court cannot close its eyes, whileexercising the power of judicial review. 11. In such circumstances, the order in GO (MS) 39/97/PW &T dated 3.4,97relied on by the Corporation that they have exemption from Clause.38-A of theKerala Store Purchase Manual has no enforce ability or has no authority ofany Govt. order. On this basis also the first and second respondents cannotdeviate from the Store Purchase Manual, which they themselves contended tobe applicable to them in the Original Petition leading to Ext. P1 judgment andbefore the Division Bench in W.A.768/97 and also in this Original Petition.Ext.P4 tender notice is based on the exemption in that incompetent Govt. Order.So on that reason also Ext. P4 is liable to be quashed. The first and secondrespondents cannot deviate from Ext. P1 judgment as confirmed in Ext. P3, bythe Division Bench of this Court. In the above circumstances. Order.So on that reason also Ext. P4 is liable to be quashed. The first and secondrespondents cannot deviate from Ext. P1 judgment as confirmed in Ext. P3, bythe Division Bench of this Court. In the above circumstances. Original Petition is allowed. No costs.