Government order prevails over government circular: HC

NT Correspondent

Bengaluru: Censuring the State Government for issuing an Order and a Circular contrary to each other, the High Court of Karnataka has said that a Government Order prevails over a Government Circular.

The Government had issued an Order on January 14, 2022 fixing a minimum value for tenders at Rs.1 crore.

Subsequently after the Chief Minister discussing with the President and the office bearers of the Karnataka State Contractors’ Association, the Finance Department issued a circular on May 11, 2022 where it was decided that all contractual works shall be below a sum of Rs.1 crore on the ground that it will not benefit small time contractors.

This was challenged before the High Court in a batch of petitions by several Contractors’ associations.

Blaming the Government, the HC in its judgement said, “The conduct of the State in the entire proceedings cannot be appreciated and requires censure.”

Directing the Government not to issue contradictory orders, Justice MI Arun in his recent judgement said, “Taking policy decisions by issuance of Government orders and implementing the same is within the purview of the executive and they are required to make a policy in a manner that there is no confusion and for the benefit of the society. The State Government is hereby advised to make policies which do not conflict with one another and benefit the people at large.”

The issue started in JulyAugust, 2022 when various tender notifications were issued by the State under Amrutha Nagarothana Scheme, wherein various works were clubbed together and the value of each tender was more than Rs.1 crore.

Small-time civil contractors who were not in a position to compete for tender works for more than Rs.1 crore, contending that the said issuance of tender work valued more than Rs.1 crore is in violation of the Government circular dated 11.05.2022 approached the HC.

The HC, after hearing the petitions said, “Thus, there is conflict between the Government order dated 14.01.2022 and the circular dated 11.05.2022. Thus, the question that arises for consideration in the instant case is firstly whether courts can interfere in the contractual works being assigned by the Government and secondly, when there is conflict between the Government order and circular, which prevails.”

The HC said that it was the prerogative of the State to fix the tender value.

“It has to be kept in mind that fixation of the value of the tender is entirely within a purview of the executive and the courts hardly have any role to play in this process except for striking down such actions of the executive if the same are proved to be arbitrary or unreasonable and in violation of any law.”

However Government order issued under Article 162 of the Constitution of India is issued in the name of the Governor of the State.

The Government circular issued by the Finance Department of the State Government “cannot take away the effect of the Government order issued under Article 162 of the Constitution of India and in case of any conflict, the Government order prevails over the circular,” the HC held. (WP 103437/2022)