K.M.Shaju vs The Chief General Manager Telecom
2021 Latest Caselaw 19 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

           THE HONOURABLE MR.JUSTICE N.NAGARESH

  MONDAY,THE 4TH DAY OF JANUARY 2021/14TH POUSHA, 1942

                WP(C).No.16547 OF 2020(P)


PETITIONERS:

     1      K.M.SHAJU, AGED 52 YEARS,
            S/O. K.P. MOHAMMED SALI,
            PROPRIETOR, M/S. VOLTAMP,
            NEAR GOVERNMENT HIGH SCHOOL,
            KARUNAGAPPALLY, KOLLAM DISTRICT-690 518.

     2      MOHAMMED ILLYAS, AGED 48 YEARS,
            S/O. LATE K. MOHAMMED SAHIB,
            M/S. HAJEE, K. MOHAMMED SAHIB,
            KMS COMMUNICATIONS, KMS BUILDING,
            NEAR SBI, PUNALUR, KOLLAM DISTRICT-691 305.

     3      RAJESH BABU, AGED 44 YEARS,
            S/O. M.V. BABU, PROPRIETOR,
            UNIVERSAL TELESERVICES,
            ST. GEORGE BUILDING, PULAMON P.O.,
            KOTTARAKKARA, KOLLAM DISTRICT-691 531.

            BY ADVS.
            SRI.M.V.THAMBAN
            SRI.R.REJI
            SMT.THARA THAMBAN
            SRI.B.BIPIN

RESPONDENTS:

     1      THE CHIEF GENERAL MANAGER TELECOM,
            BHARAT SANCHAR NIGAL LIMITED,
            KERALA CIRCLE, DOORSANCHAR BHAVAN,
            PMG JUNCTION, THIRUVANANTHAPURAM-695 033.

     2      THE PRINCIPAL GENERAL MANAGER TELECOM,
            BHARAT SANCHAR NIGAL LIMITED, KOLLAM,
            BSNL SANCHAR BHAVAN, KOLLAM-691 001.
 WPC No.16547/2020
                            :2:


      3     THE ASSISTANT GENERAL MANAGER (MARKETING),
            OFFICE OF THE GENERAL MANAGER TELECOM
            BHARAT SANCHAR NIGAM LIMITED, KOLLAM,
            BSNL SANCHAR BHAVAN, KOLLAM-691 001.

      4     ZAREENA SHAMSUDEEN,
            PROPRIETOR IMPERIAL SYSTEMS,
            EMBRAYIL, PAZHAKULAM P.O., ADOOR,
            PATHANAMTHITTA DISTRICT-691 523.

      5     SHAMSUDEEN, EMPRAYIL, PAZHAKULAM P.O.,
            ADOOR, APTHANAMTHITTA DISTRICT, PIN-691 523.

            R1-R3 BY SRI.MATHEWS K.PHILIP, SC, BSNL

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 04-01-2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 WPC No.16547/2020
                                       :3:




                           N. NAGARESH, J.

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                      W.P.(C) No.16547 of 2020

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               Dated this the 4th day of January, 2021

                            JUDGMENT

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The petitioners are aggrieved by the action of the

3rd respondent in granting time for participation in tender and

for furnishing mutual non-disclosure agreement on stamp

paper, after opening the bid. The petitioners therefore pray

that Ext.P1 tender notice and all further proceedings

pursuant thereto, be quashed.

2. The petitioners state that the 3 rd respondent-

Assistant General Manager (Marketing), BSNL invited sealed

Expression of Interest for the operation and maintenance of

BSNL CSCs in Kollam. The bids were to be submitted before

1.30 pm, 23.07.2020 and opening of bids was scheduled at

14.00 Hrs, 23.07.2020.

WPC No.16547/2020

3. The petitioners submitted their bids and the 3 rd

respondent opened the bids on 23.07.2020. According to the

petitioners, none of the participants had submitted mutual

non-disclosure agreements on stamp paper. As bids were

opened, in the absence of non-disclosure agreements of the

participants, the 3rd respondent ought to have re-tendered

the work. However, the 3rd respondent issued letters to all the

participants granting time to produce non-disclosure

agreements on stamp papers and certain other documents,

as per Ext.P2.

4. Learned counsel for the petitioner would submit

that in Ext.P1, the participants were directed to produce

certain documents along with the Expression of Interest.

After opening the sealed tenders and after the secrecy of the

tender has become public, the 3 rd respondent ought not have

provided opportunity to the participants to produce the

documents insisted in the tender notice. The action was a

calculated attempt to support the 4th respondent.

5. Learned counsel for the petitioner argued that WPC No.16547/2020

once sealed tenders are opened, the secrecy of the tenders

is lost and hence there is no question of providing

opportunity to participants to produce documents which

ought to have been produced along with Expression of

Interest. Opportunity to produce the documents was given at

the instance of the 5th respondent. The said action of the 3 rd

respondent is to help respondents 4 and 5 out of the way and

hence cannot be sustained.

6. Respondents 1 to 3 filed a statement and

contested the writ petition. Respondents 1 to 3 pointed out

that participants or their authorised representatives were free

to attend the tender opening session. None of the petitioners

attended the bid opening session. Such opportunity was

given to raise objections, if any. The Tender Opening

Committee opened the tender through e-tender portal and

the report of the Tender Opening Committee was submitted

to the Tender Evaluation Committee.

7. The Tender Evaluation Committee, while

evaluating the technical bids, observed that some documents WPC No.16547/2020

including the mutual non-disclosure agreement were not

submitted by all the bidders. In fact, none of the bidders had

submitted all documents. Since it is for the Evaluation

Committee to decide on the documents, a decision was

taken to permit all participants to submit requisite documents

within seven days.

8. The learned Standing Counsel for respondents 1

to 3 pointed out that the mutual non-disclosure agreement

has nothing to do with the competitiveness of bids. All the

participants were given opportunity to produce documents

including non-disclosure agreement. In all tenders,

evaluation is concluded primarily on the basis of most

advantageous "by price". The Evaluation Committee is at

liberty to call for documents if the Committee considers it

necessary.

9. The petitioners are already franchisees of BSNL

and their offers need to be evaluated further, before a

decision is taken on awarding the tender. It is not correct to

say that the decision of respondents 1 to 3 is intended to WPC No.16547/2020

help the 4th respondent alone. In the absence of submission

of requisite documents, even the bids made by the

petitioners were defective. None including the petitioners

objected to grant of opportunity to the participants to produce

relevant documents, when the bid was opened on

23.07.2020. Delay in finalising the Expression of Interest will

adversely affect the services of the BSNL, contended the

learned Standing Counsel.

10. I have heard the learned counsel for the

petitioners and the learned Standing Counsel appearing for

respondents 1 to 3.

11. The learned counsel for the petitioners relied on

the judgment of this Court in Thomas P.C. and Co. v.

Executive Engineer, Central Public Works Department

[2013 KHC 47] to contend that in the absence of provision in

the tender notification, a disqualified tenderer cannot rectify

the mistake at a later stage after opening the tender. A

reading of the said judgment shows that the disqualified

tenderer in that case, failed to remit requisite tender WPC No.16547/2020

processing fee, along with the tender. The said deficiency

was sought to be regularised by paying the requisite amount

subsequently. Under the circumstances this court held that

such a mistake cannot be permitted to be rectified at a later

stage. The facts involved in the said decision and the facts

of this case are entirely different. The judgment in Thomas

P.C. and Co. (supra) therefore cannot be of any help to the

petitioners.

12. The learned counsel for the petitioners also relied

on the judgment of the Apex Court in Mr. B.S.N. Joshi and

Sons Ltd. v. Nair Coal Services Ltd. and Others [(2006)

11 SCC 548] to contend that if there are essential conditions,

the same must be adhered to and if there is no power of

general relaxation, ordinarily the same shall not be exercised

by the tendering authority. A reading of the said judgment of

the Apex Court would reveal that it was a case where one of

the bidders did not satisfy the essential qualifications laid

down for technical bid and was hence ineligible for award of

the contract. The Hon'ble Apex Court, in such circumstances, WPC No.16547/2020

held that such essential conditions cannot be made good at

a later date. The said judgment therefore is also

distinguishable on facts.

13. The prime grievance of the petitioners is as

regards Ext.P2 letter issued to the participants in the bid,

requiring them to make available mutual nondisclosure

agreement and audited results of financial year 2016-'17.

The argument of the petitioner is that such opportunity was

given after opening of the bids. Once the bids are opened

and the secrecy of the bids are lost, the 3 rd respondent

cannot permit the participants to make good the defect. The

3rd respondent under such circumstances had no option than

to re-tender the work.

14. It has to be noted that none of the participants

submitted mutual non-disclosure agreement on stamp

papers along with their Expression of Interest. Some of the

participants did not attach audited results of the financial

year 2016-'17. When these shortcomings were noted at the

time of opening of the bids, the Tender Evaluation WPC No.16547/2020

Committee decided to give opportunity to all the participants

to provide necessary documents. The petitioners did not

object to the decision at that point of time. In fact, neither the

petitioners nor their representatives were present at the time

of opening of the bids, though they could have themselves or

through their representatives raised objections.

15. This Court is of the definite opinion that the action

of respondents 1 to 3 in giving opportunity to the participants

in the bid to produce necessary documents, has not vitiated

the tender process. Opportunity was given to produce non-

disclosure agreement on stamp papers and financial

statements. When an essential condition of tender is not

complied with, it is open to the Tender Inviting Authority to

reject the same. Whether a condition is essential or

collateral, it could be ascertained by reference to the

consequence of non-compliance thereto. The documents

sought for by the respondents in this case, though are

important for deciding eligibility for final award of tender, they

have no direct impact over the competitiveness of the bids. WPC No.16547/2020

16. The Hon'ble Apex Court has held in the judgment

in Air India Ltd. v. Cochin International Airport Ltd. and

others [(2000) 2 SCC 617] that even when some defect is

found in the decision making process, the Court must

exercise its discretionary power under Article 226 with great

caution and should exercise it only in furtherance of public

interest and not merely on the making of a legal point. The

Court should always keep the larger public interest in mind in

order to decide whether its intervention is called for or not.

Only when it comes to a conclusion that overwhelming public

interest requires interference, the Court should intervene.

17. Opportunities to produce documents were given to

all the participants. The petitioners could have also submitted

documents. The petitioners, instead of doing so, have

approached this Court seeking re-tender. Since this Court is

of the definite opinion that the action of respondents 1 to 3 in

giving opportunity to all the participants in the tender to

produce requisite documents, is neither illegal or arbitrary,

respondents 1 to 3 cannot be forced to re-tender the work WPC No.16547/2020

again.

In the circumstances, this Court finds that the writ

petition filed by the petitioners is without any merit and is

liable to be dismissed. It is ordered accordingly.

Sd/-

N. NAGARESH, JUDGE aks/28.12.2020 WPC No.16547/2020

APPENDIX PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE EXTRACT OF TENDER NOTIFICATION EOI NO.KLM/AGM MKTG/ EOI/CSC OUTSOURCING/ 2020-21/3 DATED 18/06/2020.

EXHIBIT P2 TRUE COPY OF THE LETTER SIGNED BY THE THIRD RESPONDENT ON 06/08/2020.

EXHIBIT P3 TRUE COPY OF THE LETTER SENT TO THE 3RD RESPONDENT DATED 01/08/2020.

EXHIBIT P4 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 06/08/2020.