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2009 DIGILAW 490 (JK)

Everest Agencies v. Union Of India

2009-10-14

VIRENDER SINGH

body2009
1. M/s Everest Agencies (hereinafter to be referred to as petitioner-agency) is the sole proprietorship concern. It is providing telecom facilities to the customers, which include landline telephones, internet facilities and mobile services etc. 2. Bharat Sanchar Nigam Limited (hereinafter to be referred to as Nigam) has divided the entire State of J&K in various areas/circles for the purposes of appointment of franchisee. In this regard, the Nigam had issued Notice Inviting Expression of Interest (for brevity EOI, Annexure-B) under No. 786-43/05-06/Tender/06/coll.II/23 dated 01-12-2007 for Doda, Ramban and Kishtwar areas. It contained not only the selection criteria but all other terms and conditions also. In total 100 marks were fixed and these were further divided into following five heads: - A. Experience (Total marks=30) B. Size and location of showroom (Total marks=25) C. Turnover (Total marks= 15) D. Place (Total marks= 15) E. Interview/presentation before the Selection Committee (Total marks=15) 3. The petitioner and respondent No. 7 jumped into the arena of consideration for Ramban and Kishtwar areas by putting forth their claims whereas, respondent No. 7 applied for Doda area also but it could not make it and ultimately it was allotted in favour of one M/s Allied Sales Agencies whereas, Ramban and Kishtwar areas were allotted to respondent No. 7 on the strength of the following break-up of the marks in each of the case: RAMBAN (i) M/s Pankaj Enterprises : 70+14=84 (ii) M/s Everest Agencies : 63+14=77 KISHTWAR (i) M/s Pankaj Enterprises : 70+13=83 (ii) M/s Everest Agencies : 65+13=78 4. The petitioner being aggrieved of the allotment of the franchisee in favour of respondent No. 7 has questioned the same through the medium of the instant petition. 5. Record reveals that notice was issued to respondents No. 5 and 7 only and during the pendency of the petition, status quo has been ordered to be maintained. Admittedly the aforesaid allotment is for two years only. The pleadings are complete. 6. Heard Mr. Gupta, learned Senior Advocate assisted by Mr. Aditya Gupta, Advocate for the petitioner, Mr. Ravinder Gupta, Advocate for respondent No. 5 and Mr. Sunil Sethi, Sr. Advocate assisted by Mr. Ravi Abrol, Advocate for respondent No. 7. Perused the record. 7. Mr. Admittedly the aforesaid allotment is for two years only. The pleadings are complete. 6. Heard Mr. Gupta, learned Senior Advocate assisted by Mr. Aditya Gupta, Advocate for the petitioner, Mr. Ravinder Gupta, Advocate for respondent No. 5 and Mr. Sunil Sethi, Sr. Advocate assisted by Mr. Ravi Abrol, Advocate for respondent No. 7. Perused the record. 7. Mr. Gupta learned Senior Advocate while questioning the allotment of franchisee in favour of private respondent (respondent No. 7) qua the aforesaid two areas submits that it smacks of arbitrariness on the face of it, inasmuch as for Ramban, fourteen marks each have been allotted to the petitioner and the private respondent by the panel in interview whereas, for Kishtwar, both got thirteen marks each and for both the areas, there was a single interview by the same panel. Therefore, interview was just an eye wash. According to him, for Doda area also, which is otherwise not the subject matter of dispute herein, thirteen marks have been given for interview to both the applicants as is the position for Kishtwar. Therefore, it is not the difference of marks, which matters, but it reflects the unfairness on the part of the panel constituted. Therefore, the entire selection process is bad. 8. Mr. Gupta then submits that even otherwise the petitioner was also deserving marks for his having experience as sub-franchisee dealing in the same field, but no additional marks have been given to him on that count, whereas, the private respondent gets another ten additional marks under this head. He states that in case for both the areas viz Ramban and Kishtwar, had the petitioner-agency been given additional ten marks as per the criterion laid down by the Nigam, it would have got edge over the private respondent and in that eventuality, in the case of the petitioner, the total marks would have been 87 for Ramban area and 88 for Kishtwar area. 9. Mr. Gupta in his wisdom, primarily on the aforesaid two flaws, attacks the allotment in favour of the private respondent qua the aforesaid two areas and seeks its quashment. 10. Per contra Mr. Sethi, learned Senior Advocate submits that the petitioner has no legs to stand in this case on either of the grounds. 9. Mr. Gupta in his wisdom, primarily on the aforesaid two flaws, attacks the allotment in favour of the private respondent qua the aforesaid two areas and seeks its quashment. 10. Per contra Mr. Sethi, learned Senior Advocate submits that the petitioner has no legs to stand in this case on either of the grounds. Dwelling upon his arguments, he submits that so far as allocation of marks under the head `Interview is concerned, it was not based on the interview of an individual person/proprietorship concern but it was with regard to the particular area/location only and, therefore, the marks in this regard could vary even before the same panel. He submits that for Doda area, the private respondent has been given thirteen marks and so is the position for Kishtwar also. This all depends upon the interview. He then submits that even if one mark is reduced in case of the petitioner and the private respondent also with regard to the Ramban area, the position of the total marks would not change and even in that eventuality also the case of the private respondent will be on a better footing. 11. To meet the second limb of argument advanced by Mr. Gupta, Mr. Sethi submits that allocation of additional ten marks, to the private respondent was strictly in accordance with the criteria mentioned in E.O.I. It was having the dealership experience of BSNL only for one-two year and, therefore, his case fell in clause-e of the head `Experience for getting ten additional marks. This is the reason that for both the areas, the private respondent could get this additional advantage, whereas the petitioner could not have it. On other count, the position of the petitioner and the private respondent by obtaining fifteen marks each under this head is the same. Learned counsel then submits that the petitioner was a sub-franchisee and for this, he could not be put to any advantageous position as is clear from terms and conditions of E.O.I or the criteria. Therefore, no grievance can be put forth on this count. 12. On the basis of the aforesaid submissions, Mr. Sethi submits that the petitioner has no case and as such, the instant petition deserves to be dismissed. 13. Mr. Ravinder Gupta, learned counsel for the Nigam while picking up the thread where it is left by Mr. Therefore, no grievance can be put forth on this count. 12. On the basis of the aforesaid submissions, Mr. Sethi submits that the petitioner has no case and as such, the instant petition deserves to be dismissed. 13. Mr. Ravinder Gupta, learned counsel for the Nigam while picking up the thread where it is left by Mr. Sethi, has drawn my attention to the mark sheet (Annexure-R6) of which Evaluation Committee Report also forms part of. This indicates the entire status of the petitioner and the private respondent. He then submits that the panel of the Nigam, which had interviewed the participants, in fact consisted of three members viz one Chairman and two members, and it had deeply gone into all the aspects after interviewing both the sides and keeping in consideration the entire documentary record placed before it, allotted both the franchisees to the private respondent. There is no arbitrariness in it apparent on record and, therefore, according to Mr. Ravinder Gupta, the instant petition merits dismissal. 14. One factual aspect, which needs to be noted at the very outset is that the petitioner had not challenged the policy framed by the Nigam or the criteria laid down for the allotment of the franchisee before his participation before the panel and when could not succeed, has now questioned the said allotment pointing out certain flaws. Be that as it may, even on those grounds also, in my considered view, the petitioner has no case. 15. Much has been said by Mr. Gupta, learned senior Advocate with regard to arbitrariness in the selection process but I do not find any substance in that argument at all. Certainly, the interview in the present case was not of an individual in particular but with regard to particular area/location. It was for fifteen marks. The petitioner and the private respondent got equal marks for both the locations. It is quite possible that while answering to certain questions vis-a-vis the different sub-locations falling under one basic area i.e., Ramban or Kishtwar, both the parties could reply satisfactorily. One can comfortably make out from the preamble of E.O.I that the aim of the Nigam was to multiply the channel of delivery of its products and services and apart from their own outlets, it had thought of-allotting franchisees for selling their services. One can comfortably make out from the preamble of E.O.I that the aim of the Nigam was to multiply the channel of delivery of its products and services and apart from their own outlets, it had thought of-allotting franchisees for selling their services. Therefore, it can be inferred that the interview, which was held in this case, was primarily with regard to topographical aspect of the main area. Therefore, under this head incidentally, the marks could be obtained equally by the participants and it so happened in the present case. There can be a situation that a particular participant/ agency appears before the panel conducting interview, knowing very little about the different locations falling under a particular main area, certainly that petitioner-agency has to be given less marks. Therefore, the arguments advanced by learned counsel for the petitioner in this regard projecting arbitrariness, are without any force and deserve to be rejected. 16. Taking this aspect, yet from another angle as submitted by Mr. Sethi, learned Senior Advocate, that even if one mark is reduced by bringing it to thirteen in case of petitioner and the private respondent, the position of the petitioner would not improve and he still fails. Therefore, the petitioner cannot be put to any advantageous position. 17. The other attack launched by Mr. Gupta learned Senior Advocate with regard to allotting no marks to the petitioner-agency for being sub-franchisee is again of no force. If one scans the criteria minutely, head `Experience is further divided into following six parts: A. EXPERIENCE Marks Allotment a. Fulfillment of Minimum Criteria and up to 1 year in excess 05 b. Greater than 1 year in excess but less than 2 years in excess 10 c. Greater than 2 years in excess 15 d. Franchisee/Dealer/Distributor experience in BSNL for 1 year or less 05 e. Franchisee/Dealer/Distributor experience in BSNL for 1-2 year 10 f. Franchisee/Dealer/Distributor experience in BSNL for more than 2 years. 15 18. For better understanding, A, B and C are to be bracketed in one part and this consists of thirty marks. D, E and F are to be bracketed in the second part and this also consists of thirty marks. If we add all these six different columns/conditions, the total marks would be sixty. 15 18. For better understanding, A, B and C are to be bracketed in one part and this consists of thirty marks. D, E and F are to be bracketed in the second part and this also consists of thirty marks. If we add all these six different columns/conditions, the total marks would be sixty. On the face of it, it appears to be a confusing state of affairs but when understood in its right direction, it makes it very clear that if a case falls in the first bracket, one can either get five or ten or fifteen marks but not thirty as whole. So would be the position vis-a-vis the second bracket also. The same procedure has been adopted in the present case. The petitioner and the private respondent obtained fifteen marks each falling within the first bracket as is clear from the Evaluation Chart (Annexure-R6) annexed by the Nigam to its reply. Now, we are left with the second bracket and for this, the private respondent was, allocated ten additional marks for having experience of dealership in BSNL for one-two year. The petitioner-agency could not get these ten marks as it was not having any dealership experience of BSNL for this much period. 19. The next controversy for consideration is, whether the petitioner could get any additional mark for being sub-franchisee of any other company, the answer would be in negative, as this position is very clear from E.O.I itself. The Nigam on its, own does not recognize any sub-franchisee at all and this position has been made clear at 3.5 of E.O.I under the head, `Sales and Distribution Policy, which reads thus: "3.5 Franchise will have to appoint at least 10 (ten) sub-franchisees at locations specified by BSNL. Sub-franchisee can do the same work as done by franchisee and need not be exclusive to BSNL like Franchisees. Sub-Franchisee network made by Franchisee will not only act as retain network but also help franchisee in serving at their premises the retail network set up by them. BSNL should be part of selection process for Sub-franchisees. However, franchisee is free to appoint more than 10 Sub-franchisee." 20. To make it more clear, under the head `Franchisee at 1.2, E.O.I makes its position more clear and it reads as follows: "1.2 Sub franchisees: Sub franchisees may be selected by appointed franchisee in consultation with BSNL. BSNL should be part of selection process for Sub-franchisees. However, franchisee is free to appoint more than 10 Sub-franchisee." 20. To make it more clear, under the head `Franchisee at 1.2, E.O.I makes its position more clear and it reads as follows: "1.2 Sub franchisees: Sub franchisees may be selected by appointed franchisee in consultation with BSNL. BSNL may also specify locations where appointment of sub franchisee will be mandatory for franchisee. Sub franchisee will perform all works on behalf of franchisee as per 2.1 (Annex.B) above. Compensation to sub franchisee will be provided by the franchisee and BSNL will not be a party directly/indirectly between franchisee and sub franchisee at any point of time." 21. Plain reading of the aforesaid conditions of the policy as contained in EOI, there remains no doubt that while appointing franchisee for the aforesaid areas, the Nigam had not to give any weightage for allocation of additional marks to the sub-franchisee. This position is made very clear in the criteria for allocation of marks under the head `Experience falling within the second bracket where additional marks were to be given only for the experience in BSNL franchisee/dealership/distributorship for different period. The petitioner-agency, therefore, in-my view, cannot ask for any additional mark under this head and rightly so, it was also not allocated any mark for it by the panel while finalizing the list. 22. As a sequel to the aforesaid discussion, taking the case on hand from any angle, the petitioner has not been able to make out any ground in his favour for quashment of the allotment of the franchisees in favour of the private respondent qua Ramban and Kishtwar areas. The instant petition, thus, deserves to be dismissed. Ordered accordingly. 23. CMP No. 1004/2008 also stands disposed of accordingly. Interim direction passed on 12th of September, 2008 shall now stand vacated. No order as to costs.