JUDGMENT : P.V.KUNHIKRISHNAN, J. There are a catena of decisions of this Court and Apex Court about the jurisdiction of this Court under Article 226 of the Constitution of India to interfere in contractual matters. The normal rule is that the jurisdiction of this Court to interfere in contractual matters is very limited. But, the parties to the contract are approaching this court in almost all contractual matters contending that their case will come within the sphere of this limited jurisdiction under Article 226 of the Constitution of India. Therefore, now the constitutional courts are forced to consider each and every contractual matter that comes before it and determine whether the same will come within the four corners of the limited jurisdiction of this Court under Article 226 of the Constitution to warrant the Court’s interference. 2. The main contention of the petitioners in these batch of cases is regarding the applicability of certain office memorandums issued by the Government of India by which the payment of the performance guarantee and additional performance guarantee to be paid by contractors as per the Notice Inviting Tender (NIT) were relaxed due to the Covid 19 pandemic economic slow down. In tune with some of the Government of India orders, the State of Kerala issued certain orders reducing the performance guarantee to be paid and also granting exemption regarding the payment of additional performance guarantee, while executing agreements for the contract works. 3. The petitioners in these batch cases are contractors working under the Public Works Department and also under the Kerala Water Authority. The points raised in these batch cases were actually considered by this Court in detail as per judgment dated 21.03.2023 in WP(C)No.14051/2022 and connected cases. After the disposal of the above cases, a writ appeal was filed in one of the cases and an interim order was passed in the writ appeal. Thereafter these batch of cases are filed. Contentions almost similar to the contentions which were previously decided by this Court in the judgment dated 21.03.2023 in WP(C) No.14051/2022 and connected cases are raised in these writ petitions also. 4. The arguments were advanced in these writ petitions mainly by Adv. Babu Joseph Kuruvathazha, Adv. V. Premchand and Adv. George Mathew. All other lawyers also endorse the arguments of the above lawyers. Therefore, I will take WP(C) No.22727/2023 filed by Adv. 4. The arguments were advanced in these writ petitions mainly by Adv. Babu Joseph Kuruvathazha, Adv. V. Premchand and Adv. George Mathew. All other lawyers also endorse the arguments of the above lawyers. Therefore, I will take WP(C) No.22727/2023 filed by Adv. Babu Joseph Kuruvathazha, WP(C) No.19229/2023 filed by Adv. V. Premchand and WP(C) No.13012/2023 filed by Adv. George Mathew as leading cases. I will narrate the brief facts in the above three cases which will be sufficient for understanding the pleadings and contentions of all the petitioners in these batch cases. 5. WP(C) No.22727/2023 is filed by a contractor having an A Class registration. In response to the tenders issued by the Kerala Water Authority, the petitioner in that case submitted the tender and he was issued with a letter of acceptance dated 04.07.2023 as evidenced by Ext.P1 in that writ petition. In Ext.P1 letter of acceptance, it is stated that the petitioner was directed to furnish 5% of the contract value towards the performance guarantee and to pay an amount of Rs.3,93,12,431/-towards additional performance guarantee. It is submitted that as per Ext.P2 Office Memorandum No.F.9/4/2020-PPD dated 12.11.2020 (for short OM dated 12.11.2020 regarding the performance guarantee) issued by the Government of India it is ordered that the performance guarantee would be restricted to 3% of the value of the work and there would be no subsequent increase in the performance guarantee even beyond 31.12.2021. 6. Ext.P3 is the Office Memorandum No.F.9/4/2020-PPD dated 12.11.2020 regarding the additional performance guarantee (for short OM 12.11.2020 regarding additional performance guarantee). Exts.P2 and P3 are on the same date. In the OM dated 12.11.2020, regarding additional performance guarantee, it is stated that no provision should be kept in the bid document regarding the additional guarantee deposit / bank guarantee in case of abnormally low bids. Based on Exts.P2 and P3 in this writ petition, the Government of Kerala issued G.O.(P) No.7/2021/FIN dated 07.01.2021 as evidenced by Ext.P4, in which the additional performance guarantee is waived and the performance guarantee is restricted to 3% of the value of the work. Ext. P4 is issued after referring to Exts.P2 and P3. Subsequently, as per Ext.P5 Office Memorandum No.F./9/4/2020-PPD dated 30.12.2021 (for short OM dated 30.12.2021), the Government of India extended the benefit conferred as per Ext.P2 up to 31.03.2023. Ext. P4 is issued after referring to Exts.P2 and P3. Subsequently, as per Ext.P5 Office Memorandum No.F./9/4/2020-PPD dated 30.12.2021 (for short OM dated 30.12.2021), the Government of India extended the benefit conferred as per Ext.P2 up to 31.03.2023. Subsequent to Ext.P5, Government of Kerala issued G.O.(P) No.32/2022/FIN dated 15.03.2022 as evidenced by Ext.P6 extending the time limit for providing performance guarantee in terms of Exts.P2 and P5 up to 31.03.2023. It is the case of the petitioner that in Ext.P6 there was no direction regarding the additional performance guarantee and therefore it is contented that since there is no cut-off date in the matter of additional performance guarantee in Ext.P3 OM dated 12.11.2020, the said OM is in force and binding upon the 2nd respondent Water Authority is the contention. Hence, it is contented that the additional performance guarantee as insisted by the 2nd respondent in Ext.P1 is erroneous, arbitrary and illegal. It is also submitted that, as per Ext.P7 order dated 04.05.2023 the performance guarantee is reduced to 3% of the contract value. 7. Therefore, the very insistence of additional performance guarantee in Ext. P1 is arbitrary and the insistence of 5% of the contract value towards the performance guarantee, instead of 3% is also erroneous is the contention. 8. W.P.(C) No.19229/2023 is filed by an A-class Contractor mainly involved in executing various works inclusive of laying pipes for Kerala Water Authority, the 1st respondent in this case. Ext.P1 produced in that case is the selection notice issued by the Kerala Water Authority. This writ petition is filed for quashing Ext.P1 to the extent it stipulates to furnish additional performance guarantee and to declare that Ext.P1 to the extent it directs to furnish additional performance guarantee @Rs.3,84,288/-is against Ext.P4 Government Order dated 10.01.2019. It is contended that, Ext.P4 Government Order is to the effect that if the quoted amount of lowest bidder is X% below estimated PAC, the additional performance guarantee amount shall be (X-10)% of the estimated PAC. Therefore, additional performance guarantee can be fixed only in terms of equation given in Ext.P4 G.O, which forms part of the NIT. The other prayer in this writ petition is to issue direction to the respondents to demand only 3% of the contract value as performance guarantee based on Ext.P2 Government Order produced in this writ petition. Therefore, additional performance guarantee can be fixed only in terms of equation given in Ext.P4 G.O, which forms part of the NIT. The other prayer in this writ petition is to issue direction to the respondents to demand only 3% of the contract value as performance guarantee based on Ext.P2 Government Order produced in this writ petition. The prayers in this writ petition are extracted hereunder: “i) Call for records leading to Ext.P1 quash the same to the extent it stipulates to furnish Additional Performance Guarantee @3,84,288/-by a writ of certiorari or any other appropriate writ direction or order. ii) Declare that Ext.P1 to the extent it stipulates the direction to furnish Additional Performance Guarantee @ 3,84,288/-is against Ext.P4 Government Order and that the petitioner is liable to deposit only 3% of the contract value as Performance Guarantee since Ext.P1 being a new tender as envisaged in Ext.P2 Government Order. iii) Issue a writ of mandamus or any other appropriate writ, direction or order directing respondents to demand only 3% of the contract value as Performance Guarantee since Ext.P1 being a new tender as envisaged in Ext.P2 Government Order. vi) The petitioner also prays that this Hon’ble Court may be pleased to dispense with the translation of the documents produced in the vernacular language. v) Any other reliefs this Hon’ble Court deems fit.” 9. W.P.(C)No.13012/2023 is filed by various Contractors under the Kerala Water Authority. The prayers are extracted hereunder: “i) To call for the records which lead to the issuance of Ext.P2 and to issue writ in the nature of certiorari or any other appropriate writ, order or direction quashing the direction therein to remit additional performance guarantee as it is against Exts.P3 to P5. ii) To declare that petitioner is not liable to make deposit of additional performance guarantee as per Ext.P3 – G.O.(P)No.429/2015/FIN dated 28.09.2015, Ext.P4 – G.O(P) No.19/2016/FIN dated 03.02.2016 and Ext.P5 G.O(P) No.1/2019/FIN dated 10.01.2019 and Ext.P5 – G.O. (P) No.168/2019/FIN dated 07.12.2019 issued by Finance Department (Industries & Public Works-B) as agreed rates are 9.16% above tendered PAC; iii) To grant such other reliefs and costs as this Hon’ble Court deems fit in the facts and circumstances of the case; iv) The Petitioner also prays that this Hon’ble Court may be pleased to dispense with production of translated copies exhibits and documents produced in the case and are in vernacular language.” 10. Ext.P2 in that case is the work order issued by the 2nd respondent to the petitioners. The petitioners are relying on Ext.P3 to P5 which are the Government Orders dated 28.09.2015, 03.02.2016 and 10.01.2019 respectively. It is also stated that the petitioner is not liable to make deposit of additional performance guarantee. 11. Heard Adv.Babu Joseph Kuruvathazha, Adv.George Mathew, Adv.V.Premchand and other lawyers appearing in these cases. I also heard senior Government Pleader Adv.K.V.Manoj Kumar and learned Government Pleader Smt.Vidya Kuriakose for the respondents. I also heard learned Standing Counsels appearing for the Kerala Water Authority. The Deputy Solicitor General of India argued the case on behalf of Union of India. Both sides submitted argument notes and also raised their contentions before the Court. 12. The main contention of the petitioners in this writ petition is against the demand for payment of the performance guarantee at the rate of 5% instead of 3% and the direction to furnish the additional performance guarantee as per the NIT. All the petitioners are mainly relying on the orders passed by the Government of India issued by way of Office Memorandum on different dates. The Office Memorandum dated 12.11.2020 regarding the performance guarantee states that it is an Office Memorandum issued as per Rule 171 of the General Financial Rules 2017. Similarly, the Office Memorandum dated 12.11.2020 regarding the additional performance guarantee and also OM dated 30.12.2021 extending the validity of O.M. dated 12.11.2020 regarding the performance guarantee till 31.03.2023 are all issued as per the Rules in the General Financial Rules. 13. The Deputy Solicitor General of India filed notes of argument in W.P(C).No.22727/2023, in which, the relevant portion of the General Financial Rules is produced. Rule (1) of General Financial Rules is extracted hereunder: ‘Rule 1 Short Title and Commencement: These rules may be called General Financial Rules, 2017 and they shall come into force at once and shall be applicable to all Central Government Ministries/Departments, attached and subordinate bodies. The provisions contained in GFRs are deemed to be applicable to Autonomous Bodies except to the extent the bye-laws of an Autonomous Body provides for separate Financial Rules which have been approved by the Government.’ 14. From Rule (1), it is clear that the Rules are applicable to all Central Government Ministries/Departments, attached and subordinate bodies. The provisions contained in GFRs are deemed to be applicable to Autonomous Bodies except to the extent the bye-laws of an Autonomous Body provides for separate Financial Rules which have been approved by the Government.’ 14. From Rule (1), it is clear that the Rules are applicable to all Central Government Ministries/Departments, attached and subordinate bodies. The provisions contained in GFRs are deemed to be applicable to Autonomous Bodies except to the extent the bylaws of an Autonomous Body provides for separate Financial Rules which have been approved by the Government. Similarly, Rule 116 of the GFR deals with the principles governing transaction in connection with the agency functions entrusted to State Government. Rule 232 deals with the general principles for award of grants-in-aid for centrally sponsored schemes. A perusal of O.M. dated 12.11.2020 regarding the performance guarantee and the O.M. dated 12.11.2020 regarding the additional performance guarantee would show that these are Office Memorandums issued by the Government of India invoking the powers of Rule 171 of General Financial Rules, 2017. The Government issued such Office Memorandums based on the receipt of many representations on account of the economic slow down due to the pandemic. It is stated in the Office Memorandum that there is an acute financial crunch among many commercial entities and Contractors which in turn is affecting timely execution of the contracts. It has been represented that this may affect the ability of the Contractors to bid in tenders and hence reduce competition. A bare perusal of O.M. dated 12.11.2020 regarding the performance guarantee and the O.M. dated 12.11.2020 regarding the additional performance guarantee would show that these Office Memorandums are not binding on the State Governments. But, in tune with the O.M. dated 12.11.2020 regarding the performance guarantee and O.M. dated 12.11.2020 regarding the additional performance guarantee, the Government of Kerala also issued G.O.(P) 7/2021/FIN dated 07.01.2021 adopting the Office Memorandum of the Government of India. As per G.O. dated 07.01.2021, the performance security/performance deposits to be submitted at the time of executing the agreement is reduced from the existing rate of 5% to 3% of the contract value. The additional performance guarantee is waived for the low quoted items on the condition that the bidder shall furnish an undertaking to execute all low quoted items in full as per the contract terms. The additional performance guarantee is waived for the low quoted items on the condition that the bidder shall furnish an undertaking to execute all low quoted items in full as per the contract terms. A bare perusal of G.O. dated 07.01.2021 of the Government of Kerala would show that such a Government order is not issued because of the mandate from the Government of India. In this G.O., the State Government has clearly stated that, since the State Governments were requested by the Government of India to consider issuing similar instructions in respect of procurement by the State Government, by State Government under public undertakings, local bodies and all other agencies controlled by them, the Government examined the matter and issued the G.O. dated 07.01.2021. There is no compulsion from the Government of India requiring the State Governments to issue such an order. But, the State Government considering the COVID – 19 pandemic situation, adopted the Office Memorandums issued by the Government of India and issued G.O(P).No. 7/2021/FIN dated 07.01.2021. Therefore, the Contractors of public works department are entitled to the benefit of GO(P) 7/2021/FIN dated 07.01.2021. Similarly, by virtue of Regulation 5(3) of the Kerala Water Authority (Authentication of Orders, Assurance of Property and Execution of Contracts) Regulations, 1992, the PWD Code has been made applicable to the contracts entered into by and between the Kerala Water Authority. The PWD manual, stipulates that in case of item wise contracts, the schedule shall contain only the specifications for items and quantities. Therefore the Kerala Water Authority is bound to adhere to the stipulations contained in PWD manual. Hence the Government Order is applicable to the contractors under the Kerala Water Authority. 15. Therefore, the contractors under the Public Works Department and the Contractors under the Kerala Water Authority can take the benefit of the Government Order dated 07.01.2021 and not the Government of India Office Memorandums dated 12.11.2020 as far as the performance guarantee and the additional performance guarantee are concerned. After the Government Order dated 07.01.2021 of the Government of Kerala, the Government of India as per the Office Memorandum dated 30.12.2021 extended the validity of the Office Memorandum dated 12.11.2020 regarding the performance guarantee till 31.03.2023. After the Government Order dated 07.01.2021 of the Government of Kerala, the Government of India as per the Office Memorandum dated 30.12.2021 extended the validity of the Office Memorandum dated 12.11.2020 regarding the performance guarantee till 31.03.2023. Based on the Office Memorandum dated 30.12.2021, the Government of Kerala again issued G.O.(P) No.32/2022/FIN dated 15.03.2022 by which Government of Kerala examined the matter and was pleased to extend the relaxation in performance guarantee ordered as per Government Order dated 07.01.2021 for a further period up to 31.03.2023. Therefore, the Contractors under the Public Works Department and the Contractors under the Kerala Water Authority are entitled to the benefits of G.O. (P) No.07/2021/FIN dated 07.01.2021 and G.O.(P) No.32/2022/FIN dated 15.03.2022. As per G.O.(P) No.07/2021/FIN dated 07.01.2021, the additional performance guarantee 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 contract terms. It is also stated in this Government Order that performance guarantee/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. But, in this Government Order, it is clearly stated that the above relaxations on account of Covid-19 pandemic are made applicable for works initially for one year and would be reviewed post that date. It is also stated in this government order that it is made applicable to all new tenders as well as works which have been tendered and awarded but agreements have not been signed by the winning bidder. But, in the G.O.(P) No.32/2022/FIN dated 15.03.2022, Government of Kerala extended the relaxation in performance guarantee alone ordered as per G.O.(P) No.7/2021/FIN dated 07.01.2021. There is no relaxation given to the contractors regarding additional performance guarantee as per G.O.(P) No.32/2022/FIN dated 15.03.2022. Therefore, after the period mentioned in the G.O. (P).No.07/2021/FIN dated 07.01.2021, the contractors are bound to pay additional performance security. Similarly, as per G.O.(P) No.32/2022/FIN dated 15.03.2022, the performance guarantee at the rate of 3% of the contract amount is extended up to 31.03.2023. Only these two orders are applicable to the contractors under the Public Works Department and to the contractors under the Kerala Water Authority. 16. Similarly, as per G.O.(P) No.32/2022/FIN dated 15.03.2022, the performance guarantee at the rate of 3% of the contract amount is extended up to 31.03.2023. Only these two orders are applicable to the contractors under the Public Works Department and to the contractors under the Kerala Water Authority. 16. Adv.Babu Joseph Kuruvathazha argued that the office memorandum dated 12.11.2020 regarding the additional performance guarantee is in force even now and binds upon all States and Union Territory including State of Kerala. Learned counsel relied on Article 254 of the Constitution of India to contend that the office memorandums issued by the Government of India are binding on the State Governments. It would be better to extract Article 254 of the Constitution of India. “254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.—(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament, which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. " 17. " 17. A bare perusal of Article 254 of the Constitution of India would show that it is applicable to provisions of law made by the State Legislature which is repugnant to any provisions of a law made by the Parliament, which the Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List. Petitioners in these cases are relying on office memorandums issued by the Government of India. Admittedly, those office memorandums are issued based on General Financial Rules, 2017 in which it is clearly stated that the same is applicable only to Central Government Ministries/Departments attached and subordinate bodies. It is also stated that the provisions contained in General Financial Rules are deemed to be applicable to autonomous bodies except to the extent the bye-laws of an Autonomous body provides for separate financial rules which have been approved by the Government. Office memorandums issued by the Government of India are not law made by the Parliament. Therefore, Article 254 of the Constitution of India has no application in the facts and circumstances of this case. 18. Adv.Babu Joseph Kuruvathazha relied on the judgment dated 21.10.2022 in S.L.P (C) No.21108-21109 of 2021 to support his contention. I am of the considered opinion that the above decision is not at all applicable to the facts and circumstances of the cases. In that decision, Apex Court observed that being a subordinate legislation, UGC Regulations become part of the Act. In case of any conflict between the State legislation and Central legislation, Central legislation should prevail by applying the principle of repugnancy under Article 254 of the Constitution of India. Office memorandums issued by the Government of India based on General Financial Rules of 2017 is not a law made by the Parliament and therefore, Article 254 of the Constitution has no application at all. 19. Furthermore, this point was considered by this Court in the earlier litigation on the same issue. In the judgment dated 21.03.2023 in W.P.(C) No.14051/2022 and connected cases, this Court considered this issue in detail after referring to the facts and concluded like this in paragraphs 24 to 28. It will be better to extract paragraphs 24 to 28 in the common judgment dated 21.03.2023 in W.P.(C) No.14051/2022 and connected cases. “24. In the judgment dated 21.03.2023 in W.P.(C) No.14051/2022 and connected cases, this Court considered this issue in detail after referring to the facts and concluded like this in paragraphs 24 to 28. It will be better to extract paragraphs 24 to 28 in the common judgment dated 21.03.2023 in W.P.(C) No.14051/2022 and connected cases. “24. In the Statement filed for and on behalf of the Government of India, it is unequivocally stated that the memoranda issued by it would not bind the State Government, rather they apply only to the Central Ministries, its Departments and Central Public Sector Undertakings. It is also specified that the said aspect is clearly stated in the referred memorandums. 25. The elaborate discussion of facts made above would make it clear that the prime contention advanced by the petitioners is that the Office memoranda issued by the Government of India in respect of various kinds of contracts during the pandemic Covid-19 is binding on the State Government. In my considered opinion, the same cannot be sustained under law. 26. As I have pointed out above, on an analysis of the Office Memoranda successively issued by the Government of India with respect to different kinds of contract, it is categoric and clear that they are intended for the use of the Central Government Departments and Public Sector Undertakings. It is true, the State Government, taking into account the pandemic Covid-19 situation, has risen to the occasion and granted relaxations in the matter of Performance Guarantee, Additional Performance Guarantee and other Bid Securities. But, in the subsequent extension order dated 15.03.2022, the relaxation granted was only in respect of the Performance Guarantee to the extent mentioned in the State Government Notification dated 07.01.2021 and nothing else. 27. It is relevant and important to note that the tenders were invited by the Kerala Water Authority clearly specifying the requirements in the Notice Inviting Tender and the Government Orders referred to therein. Therefore, I am of the view that after participating in the tender with open eyes, the petitioners cannot turn around and contend that they are not liable to furnish Additional Performance Guarantee in terms of the provisions of the Notice Inviting Tender and the applicable State Government orders. 28. Therefore, I am of the view that after participating in the tender with open eyes, the petitioners cannot turn around and contend that they are not liable to furnish Additional Performance Guarantee in terms of the provisions of the Notice Inviting Tender and the applicable State Government orders. 28. I am of the considered opinion that when tenders are invited taking into consideration the manner in which the item wise rates of contract are to be tackled by the Government Departments and other Public Sector Undertakings, the Kerala Water Authority was entitled to insist the successful bidders to execute the agreement in terms of the Notice Inviting Tenders and other Government orders. Even though in some writ petitions, the petitioners have a contention that in the Notice Inviting Tender, the item wise rate schedule was not incorporated, it is clear that the State Government have issued notification dated 28.09.2015 in that regard, which was later modified by the Government Orders dated 07.12.2019, by which the manner in which the Additional Performance Guarantee is to be required for the work quoted below the estimate rate, and quoted, between 11% to 25% below the estimate rate, is prescribed." After the above findings by the learned Single Judge of this Court, these writ petitions are filed relying on the same office memorandum of the Government of India. I am in perfect agreement with the observation of the learned Single Judge in paragraphs 24 to 28 in the common judgment dated 21.03.2023 in W.P.(C) No.14051/2022 and connected cases. 20. Then, it is contended that Writ Appeal is filed against one of the judgments and the Division Bench in W.A.No.725/2023 passed an interim order. It will be beneficial to extract the order dated 05.04.2023 in W.A.No.725/2023. “Admit. 2. Respondents entered appearance. 3. The point involved in the matter is whether an additional performance guarantee can be required to be furnished by the writ petitioner with reference to the Government Order, not mentioned in the NIT based on subsequent Government Orders modifying the method of calculation of additional performance guarantee mentioned in the Government Order mentioned in the NIT. 4. 3. The point involved in the matter is whether an additional performance guarantee can be required to be furnished by the writ petitioner with reference to the Government Order, not mentioned in the NIT based on subsequent Government Orders modifying the method of calculation of additional performance guarantee mentioned in the Government Order mentioned in the NIT. 4. Having considered the question as above and taking note of the fact that the writ petitioner has already been engaged by the Kerala Water Authority, we are of the view that the additional performance guarantee shall be insisted only with reference to the manner referred to in the Government Order referred to in the NIT. The interim order passed by the learned Single Judge in the matter will continue, subject to the further condition that the final bill need not be released to the appellant-contractor. Post on 01.06.2023." 21. Division Bench of this Court only observed that the additional performance guarantee shall be insisted only with reference to the manner as laid down in the government order referred to in the NIT. It is also observed that the impugned order passed by the learned Single Judge in the matter will continue subject to the further condition that the final bill need not be released to the appellant contractor. There was a dispute regarding the interim order passed by the learned Single Judge in W.P.(C) No.4845/2023 which is refered in the above order of Division Bench. Hence this Court called for the Judge's paper in W.P.(C) No.4845/2023. The interim order passed in the above case on 06.03.2023 is extracted hereunder. “Pendency of this writ petition will not stand in the way of the Kerala Water Authority drawing up bills on the basis of the works carried out by the petitioner. The same shall be released after securing further orders from this Court. Learned Standing Counsel is directed to file a statement within ten days. Post on 21.03.2023.” 22. In the light of the above interim order passed by the Division Bench and also the interim order passed by the learned Single Judge in W.P.(C) No.4845/2023, it is clear that, in effect, there is no stay of the common judgment dated 21.03.2023 in W.P.(C) No.14051/2022. Moreover, the interim order passed by the Division Bench is not a binding precedent. 23. Moreover, the interim order passed by the Division Bench is not a binding precedent. 23. In State of Assam v. Barak Upatyaka D. U. Karmachari Sanstha [2009 KHC 4621 : AIR 2009 SC 2249 ], the Apex Court observed like this in paragraph 10. “10. A precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The observations and directions in Kapil Hingorani (I) and (II) being interim directions based on tentative reasons, restricted to the peculiar facts of that case involving an extraordinary situation of human rights violation resulting in starvation deaths and suicides by reason of non-payment of salaries to the employees of a large number of public sector undertakings for several years, have no value as precedents. The interim directions were also clearly in exercise of extra-ordinary power under Article 142 of the Constitution. It is not possible to read such tentative reasons, as final conclusions, as contended by the respondent. If those observations are taken to be a final decision, it may lead to every disadvantaged group or every citizen or every unemployed person, facing extreme hardship, approaching this Court or the High Court alleging human right violations and seeking a mandamus requiring the state, to provide him or them an allowance for meeting food, shelter, clothing, salary, medical treatment, and education, if not more. Surely that was not the intention of Kapila Hingorani (I) and (II)." 24. In Travancore Devaswom Board and others. v. D.Sreekumar [ 2021 (3) KLJ 800 ], this Court observed that even when a decision of the Division Bench of High Court is stayed by the Supreme Court, the Single Judge is bound to follow the decisions of the Division Bench as it continues to be a binding precedent for them. It will be better to extract the relevant portion of the above judgment. “21. It will be better to extract the relevant portion of the above judgment. “21. So it can be seen that the stay order granted by the Apex Court in the above case confined to the limited extent as against the enforcement and implementation of the directions and orders passed by the Full Bench of this Court in the said judgment in Chandran's case supra. It is by now well established by series of rulings including that rendered by the Division Bench of this Court in Abdu Rahiman v. District Collector, Malappuram [ 2009 (4) KHC 283 : 2009 (4) KLT 485 : ILR 2009 (4) Ker. 513] that wherein it has been held in para No.5 & 8 thereof that the learned Single Judge of the High Court should not have ignored the two decisions rendered by the Division Bench of the High Court on the ground that appeal has been filed against one of the said decisions of the Division Bench before the Apex Court and there was a stay against him and that even when a decision of Division Bench of the High Court is stayed by the Apex Court, the learned Single Judge is bound to follow the decision of the Division Bench, as it continues to be a binding precedent for them. The interim order of stay only relieves the parties concerned from the liability to obey and comply the directions in the judgment under appeal. It has also been further held therein that when the Court declares a law, many people will be regulating their affairs according to it and unless there is a compelling ground, a precedent should not be upset so lightly and in hierarchical system of Courts as held by the Apex Court, there should be someone who should say the last word and when the last word is said, the same should be followed by everyone in the lower tiers and that in view of the abovesaid position the learned Single Judge in that case should have followed the decisions of the Division Bench cited therein, etc.” 25. From the above, it is clear that, unless the operation of the judgment is stayed by the Division Bench, the dictum laid down by the Single Judge which is impugned before the Division Bench will be in force. From the above, it is clear that, unless the operation of the judgment is stayed by the Division Bench, the dictum laid down by the Single Judge which is impugned before the Division Bench will be in force. Therefore, the findings in the judgment dated 21.03.2023 in W.P.(C.) No. 14051/2022 and connected cases is in force as long as the same is not set aside by the Division Bench in the pending appeal. 26. Adv.Premchand also submitted a hearing note and the main contention raised by the counsel in the hearing note is extracted hereunder : 1. “Whether the demand of Kerala Water Authority (KWA) in directing performance guarantee to be paid at 5% for works which were tendered before 31.03.2023 as mentioned in GO dated 15.03.2022 (Exhibit P3 in WPC No. 19229/2023) is justified in law? 2. Whether KWA is entitled to demand additional performance guarantee for the work if the rate quoted by the contractor comes below 10% of the estimated Probable Amount of Contract PAC.” 27. As far as the 1st point is concerned, there may not be any dispute that if any of the petitioners who will come within the purview of Ext.P3 Government Order (GO(P) No. 32/2022/FIN dated 15.03.2022), they are entitled for relaxation in performance guarantee. The 2nd point is whether the Kerala Water Authority is entitled to demand additional performance guarantee for the work if the rate quoted by the contractor comes below 10% of the estimated probable amount of contract (PAC). Some other points are also raised by Advocate Premchand. A perusal of the judgment dated 21.03.2023 in W.P.(C.) No. 14051/2022 and connected cases, it is clear that all these points were considered by this court in detail. As I said earlier, I am in perfect agreement with all the finding in the judgment dated 21.03.2023 in W.P.(C.) No. 14051/2022 and connected cases. Therefore, I am not discussing those points once again. Moreover, I am of the considered opinion that this Court cannot interfere with conditions in the NIT issued by the Water Authority. The Apex Court in PGCCPL & Aryacon Consortium v. Kerala State Electricity Board Ltd. [ 2023 (3) KHC 499 ] observed that the terms of invitation to tender are not open to judicial scrutiny and the Court cannot whittle down the terms of the tender unless they are wholly arbitrary, discriminatory or actuated by malafides. The Apex Court in PGCCPL & Aryacon Consortium v. Kerala State Electricity Board Ltd. [ 2023 (3) KHC 499 ] observed that the terms of invitation to tender are not open to judicial scrutiny and the Court cannot whittle down the terms of the tender unless they are wholly arbitrary, discriminatory or actuated by malafides. Similarly, in Airport Authority of India v. Centre for Aviation Policy, Safety and Research (CAPSR) and others [ AIR 2022 SC 4749 ], it was held that while exercising the powers under Article 226 of the Constitution of India, the terms and conditions of the invitation to tender cannot be set aside or interfered. It was further held that as per the settled position of law, the terms and conditions of invitation to tender are within the domain of the tenderer/tender making authority and are not open to judicial scrutiny unless they are arbitrary, discriminatory or malafide. Therefore, the Apex Court observed that the bidders participating in the tender process cannot insist that their tenders should be accepted simply because the given tender is highest or lowest depending upon whether the contract is for sale of public property or for execution of work on behalf of the Government. In Michigan Rubber (India) Ltd v. State of Karnataka and others [ 2012 (8) SCC 216 ] the Apex Court held that in the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State Authorities, unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted. Therefore, while interfering in contractual matters invoking the powers under Article 226 of the Constitution, the court should find out whether there is any arbitrariness. 28. When is an act to be treated as arbitrary? The Apex Court in MP Power Management Company Ltd., Jabalpur v. Skypower Southeast Solar India Pvt. Ltd. and others [ 2023 (2) SCC 703 ] observed like this : “75. We would, therefore, sum up as to when an act is to be treated as arbitrary. The Court must carefully attend to the facts and the circumstances of the case. It should find out whether the impugned decision is based on any principle. If not, it may unerringly point to arbitrariness. We would, therefore, sum up as to when an act is to be treated as arbitrary. The Court must carefully attend to the facts and the circumstances of the case. It should find out whether the impugned decision is based on any principle. If not, it may unerringly point to arbitrariness. If the act betrays caprice or the mere exhibition of the whim of the authority it would sufficiently bear the insignia of arbitrariness. In this regard supporting an order with a rationale which in the circumstances is found to be reasonable will go a long way to repel a challenge to State action. No doubt the reasons need not in every case be part of the order as such. If there is absence of good faith and the action is actuated with an oblique motive, it could be characterised as being arbitrary. A total non-application of mind without due regard to the rights of the parties and public interest may be a clear indicator of arbitrary action. A wholly unreasonable decision which is little different from a perverse decision under the Wednesbury doctrine would qualify as an arbitrary decision under Article 14. Ordinarily visiting a party with the consequences of its breach under a contract may not be an arbitrary decision.” 29. From the above dictum laid down by the Apex Court, I am of the considered opinion that the contentions of the petitioners regarding the demand for additional performance guarantee for the work if the rate quoted by contractor come below 10% of the estimated probable amount of contract (PAC) cannot be decided in a writ petition under Article 226 of the Constitution of India. 30. Moreover, the Standing Counsel appearing for the Water Authority filed an argument note, in which it is stated like this : “The challenge against deposit of and additional performance guarantee, is liable to be rejected on account of the fact that no vested/ contractual right is accrued to the Petitioners. In Notice Inviting Tender, it was specifically stated that the bidders are liable to submit additional performance guarantee for all the low quoted items. Additional Performance Guarantee is the additional amount to be deposited for works quoted below estimate rate. Two terms are used in the Notice Inviting Tender with specific meanings attached viz., Probable Amount of Contract (PAC) and quoted rates, which means, the rate quoted against each item. Additional Performance Guarantee is the additional amount to be deposited for works quoted below estimate rate. Two terms are used in the Notice Inviting Tender with specific meanings attached viz., Probable Amount of Contract (PAC) and quoted rates, which means, the rate quoted against each item. The rates quoted by the Petitioner against each item is applied against the rates used to work out the total PAC of the amount, and the additional PAC has been worked out. Accordingly, it was found that the Petitioners quoted very low rates for a number of items, predominantly that are to be executed towards the end of the project and therefore, the bids are front loaded and in order to secure assurance measure with respect to the performance, and complete the project executing all the items mentioned in the agreement, additional performance guarantee was insisted upon There is a general tendency for front loading the work so as to attract the rates quoted by the contractors and in order to avoid such tendencies alone, additional security is insisted upon, under the invitation to bid. If the quoted rate is seriously imbalanced, front loaded, or substantially below updated estimates in the opinion of the Employer the Employer may require the Bidder to produce detailed price analysis for any or all items of the Bill of Quantities, to demonstrate the internal consistency of those prices with the construction methods and schedule proposed, and if it is convinced that the schedule of estimated contract payments is front loaded, the performance security can be increased at the expense of the Bidder to a level sufficient to protect the Employer against financial loss in the event of default of the successful Bidder under the Contract. There is no whisper in the entire Writ Petitions that there has been unconscionable bargaining in the matter of entering into the agreement in question. Since even the petitioner does not have a case there is an unconscionable bargain, the petitioners are bound by the promise made by them in the form of bid and the letter of acceptance.” 31. Adv. Babu Joseph Kuruvathazha relied on Ext.P7 order produced in W.P.(C.) No. 21935/2023 also. Since even the petitioner does not have a case there is an unconscionable bargain, the petitioners are bound by the promise made by them in the form of bid and the letter of acceptance.” 31. Adv. Babu Joseph Kuruvathazha relied on Ext.P7 order produced in W.P.(C.) No. 21935/2023 also. But that order is passed by the Government of India, Ministry of Road Transport and Highways dated 04.05.2023, in which it is clearly stated that it is applicable only to the Public Works Department, Road Construction Department, Highways Department (dealing with National Highways and other centrally sponsored schemes). Therefore, Ext.P7 produced in W.P.(C.) no. 21935/2023 has no application at all in these cases. In some of the writ petitions, the claim based on orders passed in favour of MSME’s are raised. The calculation of the additional performance guarantee based on percentage rate contract and item rates contracts were also challenged. These points are also considered by this court in judgment dated 21.03.2023 in W.P.(C.) No. 14051/2022 in detail and rejected. I am in perfect agreement with those findings. 32. The Deputy Solicitor General also submitted a note before this Court stating that the Government of India orders are applicable only to the Central Government Ministries/Departments attached and subordinate bodies including autonomous bodies except to the extent the bye-laws of autonomous bodies provide for separate financial rules. In such circumstances, I am of the considered opinion that the Government of India office memorandums produced and relied on by the petitioners in these case are not binding on the State Government and the Kerala Water Authority. The State Government merely adopted the office memorandums of the Government of India in GO(P) No. 7/2021/FIN dated 07.01.2021 and GO(P) No. 32/2022/FIN dated 15.03.2022. If any of the petitioners will come within the purview of these Government Orders, they are entitled to the benefits in respect of the performance guarantee and additional performance guarantee mentioned in the above two Government Orders. 33. These batch of writ petitions are filed subsequent to the judgment dated 21.03.2023 in W.P.(C.) No. 14051/2022 and connected cases. In most of these writ petitions, this Court passed interim order allowing the contractors to execute the agreement. Probably, the work might have already been started by the contractors based on the interim orders after executing the agreement. 33. These batch of writ petitions are filed subsequent to the judgment dated 21.03.2023 in W.P.(C.) No. 14051/2022 and connected cases. In most of these writ petitions, this Court passed interim order allowing the contractors to execute the agreement. Probably, the work might have already been started by the contractors based on the interim orders after executing the agreement. In such circumstances, I am of the considered opinion that the certain benefits given to the contractors in the judgment dated 21.03.2023 in W.P.(C.) No. 14051/2022 and connected cases based on the completion of the work can be extended to the petitioners in these cases also. With those observations, these writ petitions can be disposed of. 34. Therefore, these writ petitions are disposed of with the following directions : 1) It is declared that the OM No. F.9/4/2020-PPD dated 12.11.2020 regarding the performance guarantee, OM No. F.9/4/2020-PPD dated 12.11.2020 regarding the additional performance guarantee and the other Office Memorandums issued by the Government of India are not binding to the State Government and consequently to the Kerala State Water Authority. 2) If the contract of any of the petitioners fall within the purview of GO(P) No. 7/2021/FIN dated 07.01.2021 and GO(P) No. 32/2022/FIN dated 15.03.2022, then they are entitled to the benefit of those Government Orders. 3) If any work in accordance with the agreement executed based on the interim order passed by this Court in any of these cases is completed by any of the contractors, no Additional Performance Guarantee shall be insisted from those contractors. If the work has progressed to a level exceeding 80%, the tendering authority is left with the liberty to take a decision as to whether any Additional Performance Guarantee is to be insisted upon, taking into account the efficiency, reputation, men and machinery engaged, and other positive factors of the respective contractors. If the work has exceeded 30% of the total work, then the tendering authority is directed to secure Additional Performance Guarantee proportionate to the balance work. 4) In all other cases, the contractors/petitioners are directed to furnish an Additional Performance Guarantee to the tendering authority as specified in the tender documents within three weeks from the date of receipt of a copy of this judgment. 4) In all other cases, the contractors/petitioners are directed to furnish an Additional Performance Guarantee to the tendering authority as specified in the tender documents within three weeks from the date of receipt of a copy of this judgment. 5) In cases where a Performance guarantee is furnished by the contractors in spite of its relaxation up to 31.03.2023, the said amounts can be adjusted against the Additional Performance guarantee required in the circumstances specified above. 6) If the tenders are invited on the basis of the Percentage Rate Contracts, then the contractors are liable to furnish the Additional Performance Guarantee on the basis of (X-10)% of the estimated PAC. 7) If the tenders are invited on the basis of Items Rates Contract, then the contractors are liable to furnish Additional Performance Guarantee for each item of work on the basis of (X-10)% of the estimated amount for each item of work. I make it clear that the directions are issued as above taking into account the peculiar facts, features and circumstances involved in these cases consequent to the interim orders granted; and it shall not be treated as a precedent, except in regard to the writ petitions pending in the above context.