IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 WP(C).No. 10959 of 2011(T) -------------------------- PETITIONER(S): -------------- P.RAJU, DIRECT SALES AGENT CENTRE, BHARAT SANCHAR NIGAM LIMITED, T.C.14/508-1, NANDAVANAM ROAD, PALAYAM, THIRUVANANTHAPURAM-33, RESIDING AT T.C.14/1150, LENIN NAGAR, PALAYAM, THIRUVANANTHAPURAM-695 033. BY ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU RESPONDENT(S): -------------- 1. THE ASSISTANT GENERAL MANAGER, (SALES & PROMOTIONS), CTO BUILDING, BHARAT SANCHAR NIGAM LIMITED, STATUE, THIRUVANANTHAPURAM-695 001. 2. THE CHIEF GENERAL MANAGER, TELECOM, BHARAT SANCHAR NIGAM LIMITED, KERALA TELECOM CIRCLE, THIRUVANANTHAPURAM-695 033. 3. B.ANILKUMAR, M/S.ANIL AGENCIES, WCH ROAD, THYCAUD, THIRUVANANTHAPURAM-695 014. R1 & R2 BY ADV. SRI. K.KESAVANKUTTY, SC, BSNL SRI. MATHEWS K. PHILIP, SC, BSNL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PN WP(C).No. 10959 of 2011 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 - COPY OF THE ORDER NO. PV/KRL/1-20/COMPLAINTS/10-11/39 DATED 24.12.2010 ISSUED BY THE 2ND RESPONDET. EXT. P2 - COPY OF THE COMMUNICATION NO. 31-1/510/94-PHB DATED 3.8.1994 ISSUED BY THE MINISTRY OF COMMUNICATIONS, NEW DELHI. EXT. P3 - COPY OF THE COMMUNICATION NO. TR/93/27-A/08-09 DATED 11.7.2008 ISSUED BY THE 2ND RESPONDENT. EXT. P4 - COPY OF THE EXPERIENCE CERTIFICAE ISSUED BY THE 1ST RESPONDENT. EXT. P5 - COPY OF THE BID DOCUMENT SUBMIITED BY THE PETITIONER. EXT. P6 - COPY OF THE MINUTES OF THE EVALUATION HELD ON 26.3.2010. EXT. P7 - COPY OF THE SUBMISSION DATED 6.5.2010 BEFORE THE 2ND RESPONDENT. EXT. P8 - COPY OF THE INTERIM ORDER DATED 19.5.2010 IN W.P.(C). NO.14832/2010 OF THIS HONOURBLE COURT. EXT. P9 - COPY OF THE COMMUNICATION NO. PV/KRL/1-16/FR.EOI/09- 10/82 DATED 24.5.2010 ISSUED BY THE 2ND RESPONDENT. EXT. P10 - COPY OF THE JUDGMENT IN W.P.(C) NO. 14832/2010 OF THIS HONOURABLE COURT. EXT. P11 - COPY OF THE CERTIFICATE DATED 19.6.2010 ISSUED BY THE CHARTERED ACCOUNTANT. EXT. P12 - COPY OF THE COMMUNICATION NO. ES/98-13/RTI/CO/2010/47 DATED 18.1.2011. EXT. P13 - COPY OF THE EXPERIENCE CERTIFICATE OF M/S. GLOBAL DISTRIBUTORS. EXT. P14 - COPY OF THE EXPERIENCE CERTIFICATE OF M/S. LEE BUILDERS. RESPONDENT'S EXHIBITS : EXT. R1(a) - COPY OF THE LETTER DATED 29.5.2010 SENT BY THE RESPONDENTS TO THE PETITIONER. EXT. R1(b) - COPY OF THE MINUTES DATED 31.5.2010 OF THE INTERVIEW MAINTAINED BY THE RESPONDENT. WP(C).No. 10959 of 2011 EXT. R1(c) - COPY OF THE MINUTES DATED 20.12.2010 IN RESPECT OF THE PERSONAL HEARING OF THE PETITIONER MAINTAINED BY THE RESPONDENTS. EXT. R1(d) - COPY OF THE MINUTES DATED 22.12.2010 OF THE EVALUATION COMMITTEE MAINAINED BY THE RESPONDENTS. EXT. R1(e) - COPY OF THE FRANCHISEE SALES AND DISTRIBUTION POLICY 2009 OF THE RESPONDENTS. EXT. R1(f) - COPY OF THE RELEVANT PAGES OF THE OPENING COMMITTEE REGISTER SIGNED BY THE PETITIONER, MAINTAINED BY THE RESPONDENT. EXT. R1(g) - COPY OF THE LETTER NO. PV/KRL/1-16/FR.EOI/09-10/36 DATED 26.03.2010 REGARDING SUBMISSION OF MISSING DOCUMENTS ISSUED BY THE RESPONDENTS TO B.ANILKUMAR. EXT. R1(h) - COPY OF THE LETTER DATED 09.02.2011 ISSUED BY THE RESPONDENTS TO THE PETITIONER. EXT. R1(i) - COPY OF THE POSTAL ACKNOWLEDGMENT DATED 17.02.2011 OF THE PETITIONER FOR HAVING RECEIVED EXHIBIT R1(h) LETTER DATED 19.02.2011. EXT. R1(j) - COPY OF THE LETTER DATED 18.04.2011 ADDRESSED TO THE RESPONDENTS ENDORSING THE RECEIPT OF BANK GUARANTEE. EXT. R1(k) - COPY OF THE FORMAT OF THE BANK GUARNTEE (ANNEXURE-E) DATED 11.03.2010 EXECUTED BY CORPORATION BANK, VELLAYAMBALAM, THIRUVANANTHAPURAM - 10, IN FAVOUR OF THE RESPONDENTS. /TRUE COPY/ P.A. TO JUDGE PN ANTONY DOMINIC, J. ---------------------------------------------------- W.P.(C) No. 10959 OF 2011 ----------------------------------------------------- Dated this the 18th day of November, 2011 J U D G M E N T In response to Ext.P5 tender notice issued by the respondent inviting applications for appointment as Franchisee ship of BSNL for the Sales, Marketing and Distribution of its services in TVM SSA, the petitioner submitted his tender which was formerly rejected by Ext.P1 order. It is challenging this order this writ petition is filed. 2. Two grounds are relied on by the respondents to reject the tender. One is that the petitioner did not satisfy the experience requirement prescribed in Ext.P5 and the other is that the petitioner did not satisfy the turn over prescribed. 3. In so far as the experience prescribed in Ext.P5 is concerned, the tenderers were required to have three years experience of dealing in the distribution of products W.P.(C) No. 10959 OF 2011 :2 : in telecom or FMCG or Electronic/Electrical goods Industries. Ext.P4 is the certificate produced by the petitioner along with the tender document. This certificate issued by the BNSL itself show that the petitioner had experience of two years and 9 months. Therefore if Ext.P4 is to be accepted petitioner did not have the three years minimum experience. 4. However the contention of the counsel for the petitioner is that the petitioner has more than 15 years of experience of having run a PCO. However this experience according to the respondents is not an experience which will satisfy the requirements of the tender condition. In paragraph 8(1) of their additional counter affidavit, they have stated thus: “Franchisee Sales and distribution policy 2009 stipulates specific conditions for the selection process of W.P.(C) No. 10959 OF 2011 :3 : franchisees in the sales and distribution of BSNL products. It has nothing to do with his experience in running a PCO. The PCO holder is offering a telecoms service to the customer who personally approaches the PCO for making telephone calls. There is no experience in distribution of telecoms products among retailers in the case of person running PCO's where as in franchisee- ship a vast experience in distribution of telecoms products/FMCG/Electronic and Electrical goods among retailers contained in a large area is one of the essential criteria in allotting the franchisee-ship. As far as the petitioner is concerned his PCO experience should not be considered and only the DSA experience can be considered for the selection of franchisee-ship.” 5. Therefore from the above it can be seen that the W.P.(C) No. 10959 OF 2011 :4 : experience acquired by the petitioner in the PCO cannot be treated as an experience in telecom. If that be so, the only experience the petitioner has acquired as per Ext.P4 certificate was for a period of 2 years and 4 months. This itself show that the petitioner did not satisfy the tender conditions. 6. As far as the turn over prescribed in the tender document is concerned, the tenderer should have had at least 75 lakhs of turn over in the previous financial year. Petitioner in the pleadings itself it is stated that along with the tender the petitioner did not produce any document to show that he had necessary turn over. On the other hand, he submitted documents in satisfaction of the requirements of tender notice only when the respondent afforded him an opportunity of hearing pursuant to Ext.P10 judgment. When documents are required to be produced by a tenderer such documents should be produced along W.P.(C) No. 10959 OF 2011 :5 : with the tender and tenderer cannot be allowed to supplement those documents at a later point of time. Therefore on this aspect also the tender submitted by the petitioner was defective. Irrespective of this aspect, since the petitioner did not satisfy the experience required, the tender was defective and its rejection cannot be interfered with. Hence this petition is only to be dismissed and I do so. Sd/- ANTONY DOMINIC, JUDGE ul/- [true copy] P.S. to Judge