JUDGMENT : Shaji P. Chaly, J. 1. Petitioner is a P.W.D. contractor. E-tenders were invited by the Government for construction of Chediyalakkadavu bridge across Mayyazhipuzha in Kozhikode District, on 20.05.2016. Altogether 4 tenders were submitted inclusive of the petitioner and the 5th respondent. Petitioner is the lowest tenderer and the 5th respondent is the 2nd lowest. Even though the 5th respondent is a society, the tender was submitted through the President, the 4th respondent. The tenders submitted by the petitioner and the 5th respondent are produced as Exts.P1 and P2 respectively. It is the contention of the petitioner that, the tender submitted by the 5th respondent is incomplete. So also, as per Ext.P3 Government Order, exemption is granted to the Labour Contract Societies in furnishing EMD and security deposit and so also, award of contract under certain contingencies mentioned there under overlooking the bid submitted by the lowest tenderer. Further, benefits are granted to the 5th respondent as per Ext.P4. According to the petitioner, in view of the incomplete tender and other aspects, the tender submitted by the 5th respondent ought to have been rejected. However, in view of the exemption granted in Exts.P3 and P4 Government Orders, the work will be awarded to the 5th respondent. It is in this background, this writ petition is filed by the petitioner. 2. The 5th respondent has filed a detailed statement, refuting the claims and allegations raised by the petitioner. According to the 5th respondent, in Ext.P1 tender document, it is clearly mentioned that, “all other existing conditions related to PQ tender of Kerala PWD will be applicable in this tender also.” Therefore, the contention with regard to price preference to the 5th respondent, which is being followed by the Public Works Department while awarding a contract work shall be followed strictly with regard to Ext.P1 tender proceedings. That apart, it is stated that, Ext.P3 is a time tested document and this Court in several decisions upheld the legality and constitutionality of the very same Government Order. Ext.P3 Government Order is known to the petitioner and other contractors who are engaged in the field. But, nowhere in the writ petition or in the pleadings made before this Court, petitioner has taken a contention that Ext.P3 Government Order is not known to him. Ext.P3 Government Order is known to the petitioner and other contractors who are engaged in the field. But, nowhere in the writ petition or in the pleadings made before this Court, petitioner has taken a contention that Ext.P3 Government Order is not known to him. However, it is submitted that, petitioner in the writ petition is very much aware of Ext.P3 order, and therefore, the defence that the Government Order is not published in the official Gazette is absolutely unsustainable and impermissible. 3. In several earlier occasions, petitioner and the 5th respondent society had participated in the tender proceedings and even after the petitioner became the lowest bidder, the work was awarded to the 5th respondent on the strength of Ext.P3 Government Order and the subsequent modified Government Orders. Exts.R5(a) and R5(b) are produced in order to establish the case so put forth by the 5th respondent. Therefore, according to the 5th respondent, the case put forth by the petitioner that the benefits likely to be provided to the 5th respondent are not in accordance with law, is not a legally sustainable ground. 4. Third respondent has also filed a statement, wherein it is admitted that the lowest rate is quoted by the petitioner at 3.01% below the estimate rate, and that the second lowest bidder is the 5th respondent, which has quoted 4% above estimate rate. It is also stated that the 4th respondent has participated in the tender for and on behalf of the 5th respondent society and as per the Government Order dated 19.03.2004, some benefits can be provided to the 5th respondent, and thereupon, the 5th respondent is entitled to be awarded with the tender. It is also stated that the minor defects in the tender can be condoned by the officer inviting tender and therefore, the minor defects pointed out by the petitioner in respect of the tender submitted by the 4th and 5th respondents is not a sustainable argument. 5. A counter affidavit is filed by the 4th respondent also raising similar contentions as that of the 5th respondent, wherein, it is admitted that the 4th respondent has submitted the tender for and on behalf of the 5th respondent society. The contentions raised by the petitioner with respect to the incompleteness of the tender submitted by the 4th respondent for and on behalf of the 5th respondent are all denied. 6. The contentions raised by the petitioner with respect to the incompleteness of the tender submitted by the 4th respondent for and on behalf of the 5th respondent are all denied. 6. I have heard learned counsel for the petitioner, learned Senior Government Pleader as well as the learned counsel appearing for respondents 4 and 5. Perused the documents on record and the pleadings put forth by the respective parties. 7. The discussions made above would make it clear that, it is an admitted fact that the petitioner is the lowest tenderer. There are no defects pointed out in respect of the tender submitted by the petitioner. It is also admitted that the 4th respondent who submitted tender for and on behalf of the 5th respondent is the second lowest bidder. However, in view of Ext.P3 Government Order, the society is entitled to get certain benefits and thereupon the tender is to be confirmed in favour of the 5th respondent. The relevant clause in Ext.P3 conferring exemption on the 5th respondent society read thus: “When the lowest tender is from a private contractor, Labour Contract Co-operative Society will be awarded the work at 10% above the lowest tender, if the Society is willing to do the work, the work awarding Authority should ascertain the willingness of the Labour Contract Society in writing.” 8. Therefore, even though the tender submitted by the 5th respondent was 4% above estimate rate of contract, and the petitioner has submitted the tender 3.01% below the estimate rate of the contract, the 5th respondent society is entitled to secure the contract at 10% above the tender submitted by the petitioner. The contention put forth by the petitioner is that, in Ext.P1 Notice Inviting Tender, there is no mention or stipulation with respect to the extension of benefits provided to a society as per Exts.P3 and P4. Without elaborating on the same, it is an admitted fact that there is no stipulation in Ext.P1 Notice Inviting Tender in that regard. However, according to the respondents, in Ext.P1, it is stated as follows: “All other existing conditions related to P.Q. tender of Kerala PWD will be applicable in this tender also. Without elaborating on the same, it is an admitted fact that there is no stipulation in Ext.P1 Notice Inviting Tender in that regard. However, according to the respondents, in Ext.P1, it is stated as follows: “All other existing conditions related to P.Q. tender of Kerala PWD will be applicable in this tender also. The Public Works Department will not be responsible for any error like missing of schedule data while downloading by the Bidder.” Relying upon the aforesaid condition, it is contended on behalf of 4th and 5th respondents that, it is explicitly made clear in Ext.P1 that the tender conditions applicable to Public Works Department will be applicable to the tender proceedings. 9. On the contrary, the case put forth by the petitioner is that, Ext.P3 is not a validly constituted Government Order, since the same is not published in the official Gazette and in that circumstances, without a stipulation contained in Ext.P1, Ext.P3 cannot have any legal force. However, the 4th and 5th respondents have a case that, petitioner and 5th respondent had participated in various tenders earlier and the petitioner is well aware that, if and when, a Labour Contract Society participates in the tender, it is entitled to get the benefits of Ext.P3 notification. 10. Having evaluated the situations, the sole question to be considered is, in the absence of a specific stipulation/condition in Ext.P1, whether Ext.P3 can be made applicable to the tender proceedings, and extend the benefit to the 5th respondent as per Ext.P3 Government Order. In my considered opinion, in order to have accountability, accessibility, awareness and efficacy to any Government Order, generally, the same should have been published in the Gazette. Once it is published in the Gazette, there is a presumption available under law that it is made known to the public. Furthermore, a notification issued by the Government is not a subject matter of discussion anywhere, much less in the Assembly or any other such legal forum. Therefore, it cannot be presumed that the notifications issued by the Government are known to the public in order to take notice of the same and act accordingly. True, to transact the business of the Government, without any public involvement, such notifications may be useful. Therefore, it cannot be presumed that the notifications issued by the Government are known to the public in order to take notice of the same and act accordingly. True, to transact the business of the Government, without any public involvement, such notifications may be useful. So also, in the absence of publication of the notification in the Gazette, it could be made useful by making a proper condition or stipulation in the notice inviting tender. Such a course of action is vital to sustain the democratic principles, avoid arbitrariness and comply with the principles of natural justice. It is also true, the contract is not a statutory one, but even then, when the State Government is venturing in commercial transactions, transparency should be reflected in order to avoid adverse legal consequences and to sustain well established principles of law and thus uphold the rule of law. No manner of prejudice will be caused to any one if the conditions of a tender are clearly reflected in the notice inviting bid, but if it is otherwise, serious prejudice will be caused to the participants. 11. Normally, when such notifications are issued and not published in the Gazette, whenever a tender is invited, it should have been pointed out in the tender itself that the benefit of Ext.P3 notification would be extended to any Labour Co-operative Society. In the absence of such a stipulation in Ext.P1, I am of the considered opinion that, the same is in utter violation of the principles of natural justice, and thereupon, it becomes arbitrary and illegal. It is a well-settled proposition in law that a Notice Inviting Tender is the rule of the game by and between the participants in the tender and the tender inviting authority. Merely because the petitioner had participated in earlier tenders wherein the benefits of Ext.P3 were provided to the 5th respondent, is not an enabling circumstance for the petitioner to think and visualise that the same criteria is applicable in Ext.P1 tender also. 12. In this regard, I have come across a judgment of the apex court in Harla vs. The State of Rajasthan, AIR 1951 SC 467 , in which a similar issue with respect to promulgation and publication of law and its necessity was discussed. 12. In this regard, I have come across a judgment of the apex court in Harla vs. The State of Rajasthan, AIR 1951 SC 467 , in which a similar issue with respect to promulgation and publication of law and its necessity was discussed. Therein, it is held that, in the absence of any special law or custom, it would be against the principles of natural justice to permit the subject of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Paragraph 8 of the said judgment would be relevant to the context, which read thus: “8. We do not know what laws were operative in Jaipur regarding the coming into force of an enactment in that State. We were not shown any, nor was our attention drawn to any custom which could be said to govern the matter. In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before the law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential.” 13. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential.” 13. Taking into account the factual and legal circumstances and reckoning the principles of law laid down by the apex court in Harla (supra), I am of the considered opinion that, petitioner is entitled to succeed in this writ petition. Accordingly, I allow the writ petition and direct the respondents to process the tender submitted by the petitioner, being the lowest tendered, and proceed in accordance with law. I am informed by the learned counsel for the petitioner that, petitioner is prepared to execute the work in accordance with the financial stipulations as per Ext.P1 tender notification and as per the bid submitted by the petitioner. 14. When this writ petition was admitted to the files of this Court, status quo was directed to be maintained on and with effect from 10.08.2016 and the said order is still in force. There will be a direction to the respondents to finalize the proceedings at the earliest possible time, in accordance with the directions contained above and at any rate, within one month from the date of receipt of a copy of this judgment. 15. The writ petition is allowed accordingly.