Tamil Nadu Ex-Servicemen's Corporation Limited (in short, the TEXCO), Government of Tamil Nadu Undertaking) rep. By its General Manager, Maj Parameswaran Memorial, No.2, West Mada Street, Srinagar Colony, Saidapet, Chennai 600 015.
... Petitioner in W.P.No.21788 of 2008 Vs.
1.The Union of India, rep. By its Secretary, Ministry of Finance, New Delhi.
2.The Director General of Resettlement, West Block 4, R.K.Puram, New Delhi 110 066.
3.The Bharath Sanchar Nigam Limited, rep. By its Deputy General Manager, (Admin.,) No.89, Millers Road, Chennai 600 010.
4.Brigadier Kurana, representing * EATS, 1/44, Sriram Main Road, Mugalivakkam Main Road, Porur, Chennai 600 116.
5.Colonel Malaiappan (Retd.,), * Proprietor M/s.Malli Security & Detective Services, Green Gardens, 389/2, L- Block, Anna Nagar East, Chennai 600 102.
6.Wing Commander Hariprasad (Retd.,) * Proprietor, M/s.Bharateeyam Security Services, Jal Vayu Vihar, Housing Board, Madambakkam, Tambaram, Chennai 600 073.
7.Lt. Colonel C.R.Sundar (Retd.,), * Proprietor Star Security Services, Plot No.43, 23rd Cross Road, Padmavathi Nagar, Selaiyur, Chennai 600 073.
* cause title amended as per Court order dated 06.02.2009 in M.P.No.1 of 2009 ... Respondents in W.P.No.21788 of 2008 The Tamil Nadu Ex-Servicemen's Corporation Ltd., (TEXCO), Government of Tamil Nadu Undertaking, 2, West Mada Street, Sri Nagar Colony, Saidapet, Chennai 600 015.
... Petitioner in W.P.No.23934 of 2008 Vs.
1.The Bharat Sanchar Nigam Ltd., (BSNL), rep. By its Chief General Manager, Anna Salai, Chennai 600 002.
2.The General manager (BSNL), Gandhiji Road, Erode, 640 011.
3.The Government of India, rep. By its Secretary to Government, Department of Ex-Servicemen Welfare, Ministry of Defence, New Delhi-1.
4.The Directorate General of Resettlement, Government of India, Ministry of Defence, West Block IV, R.K.Puram, New Delhi-1.
5.Brig. Mr.Velu Proprietor, M/s.Vajraa Security and Allied Services, No.39, R.V.Layout, Ondipudur, Coimbatore-16.
6.Brig. Mr.Veera Pradap, No.6/158, South Alagapuram, Salem-14.
... Respondents in W.P.No.23934 of 2008 Prayer in W.P.No.21489 of 2008:-
Petition filed under
Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus calling for the entire records pertaining to the Tender awarded by the 4th respondent in his proceedings in OP/Security Arrangements/07-08/33 dated at Coimbatore the 28.07.2008 and quash the same and to direct the respondents 3 & 4 to continue the contract with the petitioner Corporation (TEXCO) in Coimbatore Circle from time to time on such terms and conditions.
Prayer in W.P.No.21788 of 2008:-
Petition filed under
Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, directing the 3rd respondent herein to allot the entire work order pursuant to the tender proceedings No: APR/TENDERS/S-G/2007-08, Vol.2/Part/14, dated 06.03.2008, in favour of the petitioner Corporation i.e. Tamil Nadu Ex-Servicemen's Corporation Limited (TEXCO) in accordance with DGR Guidelines Para 20(j) and to continue the employment of the members of the Tamil Nadu Ex-Servicemen's Corporation Limited (TEXCO).
Prayer in W.P.No.23934 of 2008:-
Petition filed under
Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, calling for the entire records and proceedings of 2nd respondent, in its impugned letters (i) Nos.G180/Security Guard/LimitedTender/Vol.II/08-09/34/dt: 08.09.2008, (ii) Nos.G180/Security Guard/Limited Tender/Vol.II/08-09/34/dt: 08.09.2008, awarding of contract for supply of security personnel numbering to 89 in Zone B and 86 in zone A to the respondents 5 and 6 respectively in pursuance to the allotment made on02.09.2008 and considering the legality and proprietary thereof quash the same and consequently direct the respondents 1 and 2 to award the entire contract to the petitioner as per the petitioner's representation dated 28.07.2008 For Petitioner in W.P.No.21489 of 2008 :
Mr.P.S.Raman, Additional Advocate General for Mr.Sathish Rajan For Petitioner in W.P.No.21788 of 2008 M/s.G.Bala & Daisy For Petitioner in W.P.No.23934 of 2008 :
Mr.P.S.Raman, Additional Advocate General for M/s.Pushpa Menon For Respondents 1 & 2 in W.P.Nos.21489 and 21788 of 2008 and Respondents 3 and 4 in W.P.No.23934 of 2008 :
Mr.S.Veerabagu, Additional Central Government Standing Counsel For Respondents 3 & 4 in W.P.No.21489 :
Mr.K.R.Ramesh Kumar For Respondents 5 to 7 in W.P.No.21489 and 5th Respondent in W.P.No.23934 of 2008 :
Mr.K.F.Manavalan For 3rd Respondent in W.P.No.21788 of 2008 :
Mr.Manoj Sreevatsan For Respondents 4 & 6 in W.P.No.21788 of 2008 :
Mr.J.Thilagaraj For 5th Respondent in W.P.No.21788 of 2008 :
5th Respondent appeared in person For 7th Respondent in W.P.No.21788 of 2008 :
No Appearance For Respondents 1 and 2 in W.P.No.23934 of 2008 :
Mr.S.Udayakumar For 6th Respondent in W.P.No.23934 of 2008 :
No Appearance COMMON ORDER The Tamil Nadu Ex-serviceman's Corporation Limited ( in short "TEXCO") is the petitioner in all the three writ petitions. TEXCO is a State owned Corporation of the Government of Tamil Nadu engaged in the business of providing employment to Ex-servicemen by sponsoring them to various Central/State Government Departments / Public Sector Undertakings, Corporations, Boards and Co-operative Societies etc.,. Admittedly, TEXCO has been registered as a Company under the Companies Act and the same is owned by the Government of Tamil Nadu. It has got 8 Directors, when 3 are serving defence personnel, one is a retired Navy Officer. An Officer from Indian Administrative Service has been appointed by the State Government as its Chairman-cum-Managing Director. Its General Manager, is a District Revenue Officer from the Revenue Department, Government of Tamil Nadu.
3. The Director General of Re-settlement ( in short "the DGR") who is one of the respondents in all the writ petitions was established for providing employment and self employment opportunities for Ex-servicemen of Army, Navy and Air Force in all Public Sector Undertaking and Corporate Sectors, sponsoring the security agencies. The DGR has issued Instructions for operating /running and sponsoring of security agencies that are empanelled with it. Individual partnership / private limited companies run by retired service officers of Armed Forces and the State Government Organisations run and manned by retired service personnel viz., Ex-servicemen are eligible for empanelment with DGR. The monthly salary for the security guards has been fixed by the DGR.
4. In the year 1998, TEXCO entered into a service contract with BSNL for sponsoring Ex-servicemen to Security Guard Services to BSNL for Coimbatore Region. The contract was extended time and again without any dispute. While so, for awarding security services contract, the General Manager, BSNL, Coimbatore invited tenders. The respondents 5 to 7 were sponsored by DGR. TEXCO submitted the tender directly without being sponsored by the DGR. On opening the tenders, it was found that TEXCO and the respondents 5 to 7 had quoted the same price. Therefore, by lot, the General Manager of BSNL divided the work among the petitioner corporation (TEXCO) and the respondents 5 to 7 by proceedings in OP/Security Arrangements/07-08/33 dated at Coimbatore the 28.07.2008 . Challenging the same, TEXCO has filed W.P.No.21489 of 2008.
5. Similarly, the BSNL, the 3rd respondent in W.P.No.21788 of 2008 invited tenders on 05.03.2008 to award contract for engaging security guards for Chennai Region. The petitioner TEXCO submitted its tender directly. The respondents 4 to 7 in W.P.No.21788 of 2008 submitted their tenders and they had also quoted same price. Therefore, the BSNL decided to divide the security service contract among the five participants. Accordingly, the work was split up and by lot, it was allotted to all the five participants by work order dated 26.06.2008. In W.P.No.21788 of 2008, the petitioner TEXCO prays for a mandamus to the BSNL to allot the entire work to the petitioner TEXCO.
6. Similarly, the General Manager, BSNL, Erode, invited tenders on 30.06.2008 for awarding contract for engaging security services for Erode Region. The petitioner TEXCO submitted its tender directly. The respondents 5 & 6 in W.P.No.23934 of 2008 had also submitted their tenders as they were sponsored by the DGR. On opening the tenders, it was found that all the participants had quoted same price and therefore, the General Manager, BSNL, Erode, decided to split up the security service contract and allot the same to all the participants. The work order was accordingly issued. The petitioner TEXCO is aggrieved by the same and therefore, it has come forward with W.P.No.23934 of 2008, challenging the proceedings of the General Manager, BSNL, Erode in (1) G180/Security Guard/Limited Tender/Vol.II/08-09/34/dated 08.09.2008 and (2) G180/Security Guard /Limited Tender/Vol.II/08-0935/dated 08.09.2008 and for further direction to the respondents 1 and 2 in W.P.No.23934 of 2008 to award the entire contract to the petitioner TEXCO as per their representation dated 28.07.2008.
7. The grounds raised in all these Writ Petitions can be summed up as under:-
(1) The BSNL has got no power to recruit fresh Ex-servicemen sponsored by Private Security Agencies in the place of Ex-servicemen sponsored by the petitioner TEXCO.
(2) The BSNL has no power to split up the security service contract and to allot the same to all the tenderers, who had quoted same price.
(3) As per the Instructions issued by the DGR in Para 20(j), the petitioner TEXCO is entitled to have security service contract in entirety.
(4) As per the Instructions of the DGR, the petitioner TEXCO being the senior most among all the participants in the tender process, it should have been given preference since the rate quoted in the tender by all the participants was the same.
(5) The petitioner TEXCO is at present having around 9600 registered Ex-servicemen and if the Private Security Agencies are permitted to do security service contracts to statutory bodies, like the BSNL, not only the benefits of the Ex-servicemen will be deprived of, but it will lead to exploitation of the rights of the Ex-servicemen also.
(6) The other Instructions such as Para 20(i) of the Instructions of the DGR have not been complied with by the BSNL.
8. In the counter affidavit filed by BSNL, the following are the main objections:-
(1) Since the tenderers participated in each tender had quoted the same price, in order to extract the work in expeditious and efficient manner, it was decided to split up the work among all the participants. For the said course, there was no objection raised by the petitioner TEXCO and having not raised any such objection in respect of splitting up the work, now, it is not open for the petitioner TEXCO to challenge the same.
(B) There is no violation of any Instructions issued by the DGR and as a matter of fact, the DGR Instructions have been strictly complied with.
(C) The other respondents in whose favour the security service contracts have been awarded were duly sponsored by the DGR and so there is nothing illegal on the part of the BSNL in awarding the Security Service Contract to them. It is not as though they are purely Private Security Service Agencies with no empanelment with DGR.
(D) It is not mandatory as per the Instructions of the DGR, that BSNL should engage only the State Government owned Corporation for Security Service.
9. In the counter affidavit filed by the DGR, the following are the objections:
(A) The DGR is empowered only to empanel the Private Security Agencies, who satisfy the norms and to sponsor such Private Security Agencies as per the roster maintained by the DGR. In the case on hand, the Private Security Service Agencies, in whose favour security service contracts have been awarded are all empanelled Private Security Agencies and they were duly sponsored as per their seniority and rotation.
(B) In respect of awarding of contract, such Agencies, including the petitioner TEXCO, DGR has no role to play. Such sponsorship is not required insofar as the State Government owned Ex-servicemen Corporations are concerned, as per Office Memorandum No. 6/22/93/GL-15/DPE[SC/ST], dated 1st February 1999.
(C) The contention of the petitioner TEXCO that contract should be awarded only in favour of the petitioner TEXCO is untenable. It is open for BSNL to invite tender from any Security Agency that has been empanelled with DGR and the BSNL cannot be precluded from inviting tenders for this purpose.
(D) It is absolutely within the domain of the BSNL to award the contract in favour of any Agency, who satisfies the requirement and neither the State Government Owned Corporation nor any Private Security Agency has a right to compel BSNL to award contract only in his/its favour.
10.1. The respondents 6 & 7 in W.P.No.21489 of 2008 have filed a separate counter, wherein, inter alia, it is stated that these respondents had been duly empanelled by the DGR and so the the said Agencies are eligible for awarding of contract by BSNL.
10.2. The Instructions of the DGR speak only of sponsorship of Private Security Agencies/Public Sector Undertakings for the purpose of awarding contract. If, once such a sponsorship is completed, thereafter, it is absolutely within the domain of the Public Sector Undertakings, like, the BSNL to award contract. The BSNL is free to invite tender for security service contract and select the best. The petitioner TEXCO cannot compel the BSNL to award the contract only in their favour.
11. The 5th respondent in W.P.No.21489 of 2008 has filed a separate counter affidavit, wherein he has raised similar contentions. Besides, it is stated that the respondents 5, 6 & 7 in W.P.No.21489 of 2008 have already taken over the job of providing security services by employing their men insofar as the Coimbatore Region is concerned and as a mater of fact, they have been doing it from the Month of October 2008 onwards. The prayer in the Writ Petition that the BSNL should be compelled to continue the contract only with the petitioner TEXCO is not at all maintainable.
12. The 6th respondent in W.P.No.21788 of 2008 has filed a separate counter, wherein he has also raised similar contentions. It is further stated that it is open for the BSNL to award the contract to any Agency that is empanelled with the DGR and the petitioner TEXCO cannot compel the BSNL to award the entire contract only to them.
13. The 5th respondent in W.P.No.21788 of 2008 has filed a separate counter affidavit, wherein, he has taken the plea that the petitioner TEXCO is not a State Government owned Ex-Servicemen Corporation in terms of Para 12.g of the Instructions of the DGR. The petitioner TEXCO is not manned by an Officer as defined in the Instructions of the DGR and it is manned by an Officer from Indian Administrative Service and a retired District Revenue Officer from the Revenue Department and thus, the petitioner TEXCO does not satisfy the DGR Instructions. Therefore, it cannot claim any privilege or preference as State Government Owned Ex-Servicemen Corporation. He has referred to Instruction 12 (b) of the Policy Instructions which states that only a retired Commissioned Officer of Armed Forces shall be the Chairman and other functionaries. But, since the said Instructions have not been complied with by the petitioner TEXCO, it cannot claim to be the State Government Owned Ex-servicemen Corporation. Under no circumstances, will the Corporation be allowed to continue beyond 8 years as per Para 10 (g) of the Policy Instructions of the DGR. Therefore, the petitioner TEXCO, even assuming that it is a State Government Owned Corporation, cannot be allowed to have the contract for more than 8 years. The 5th respondent and others, in whose favour the contracts were awarded, are the DGR sponsored Ex-servicemen Security Agencies and therefore, they cannot be termed as "Private Security Agencies" as alleged by the petitioner TEXCO, it is contended.
14. I have heard the learned Additional Advocate General appearing for the petitioner in W.P.No.21489 and 23934 of 2008 and the respective counsel appearing for the petitioner and the respective respondents in the rest of the writ petitions and also the the 5th respondent in W.P.No.21788 of 2008, who appeared in person.
15. I have carefully considered the rival submissions and thoroughly perused the available records.
16. Before going into the facts of the case, let me first analyse the Scheme of Re-settlement of Ex-Servicemen. The Director General of Re-settlement (DGR) provides employment and self-employment for Ex-servicemen of Armed Forces. One such Scheme available to the Ex-commissioned Officers is provision of Security Services to various establishments. To ensure the second career for the Ex-Servicemen, the DGR begun sponsoring security agencies since 1992. The Scheme has showed remarkable growth. In the prevailing security scenario and the realisation for the need of effective security by major organisations (Government, Public & Private), the requirement has increased manifolds. Therefore, instructions were given by the DGR giving effect from 01.02.2006 in this regard.
17. The Government of India by Office Memorandum No.6/22/03-GL-15-DPE (SC/ST), dated 01.02.1994 has instructed all Central Government Public Sector Undertakings (CPSUs) to take security cover from security agencies sponsored by Directorate General Resettlement. In order to regulate the functioning of Ex-servicemen Agencies of retired armed forces, commissioned officers, who are empanelled with the DGR, certain Instructions ( in short, "the Instructions") have been formulated.
18.1. As per Instruction 5 of the DGR Instructions, there are three categories of security agencies viz., (a) Individual Proprietorship, (b) ESM Private Limited Company, and (c) State Government Owned ESM Corporations, who are eligible for empanelment. The qualifications, other legal requirements and the mode of empanelment are unnecessary for these writ petitions and therefore, narration about the same is avoided.
18.2. As per Instruction 12 (g) of the DGR Instructions , "ESM Corporation will be sponsored to a PSU for a period of two years initially which can be further extended by another two years based on satisfactory performance. At the end of the four years, DGR at its discretion may allow state ESM Corporations for another four years at that location, if there is a bulk requirement of security. Under no circumstances, will the Corporation be allowed to continue beyond eight years at that location. Following this three other Security Agencies in waiting on the roster will be sponsored."
18.3. Instruction 12 (b) of the DGR Instructions states " "The Chairman and all other functionaries of the corporation should ONLY be retired commissioned officers of Armed Forces, who qualify to be ESM (O). There should be a minimum of three Directors".
18.4 Instruction 12 (h) of the DGR Instructions states "Persons employed in other Government / Semi-Government Departments cannot hold any execute appointment including the the Board of Directors of the ESM Corporation. Secretary/Director of the concern State RSB cannot concurrently hold any Office in the State ESM Corporation and vice versa.
18.5 Instruction 12 (j) of the DGR Instructions states "Any dispensation on any of the above issues will be on the DGR's approval/concurrence only"
18.6. Instruction 20 of the DGR Instructions speaks of sponsorship. Instruction 20 (d) of the DGR Instructions states "The Sponsorship of Security Agency to the Principal Employer will be done in the order of their seniority of registration at DGR for the State against demand received from the State.
18.7. Instruction 20 (l) of the DGR Instructions states, "In case all agencies sponsored to an employer quote same rates in their tender, then the employer should award the contract to the senior most agencies. However, the principal employer may refer this case to the DGR for advice if required".
19. Subsequently, the Government of India, Ministry of Defence (Department of Ex-servicemen Welfare) by its Official Memorandum No. 496/I/2003/D(Res), dated has directed as follows:
"The matter has been reconsidered and it has been decided with the approval of Raksha Mantri that in partial modification of the DEP OM quoted above, State Ex-servicemen Corporations be allowed to apply for security services directly before the Central PSUs or their units located in their respective states without the sponsorship of DGR, it is requested that necessary instructions may kindly be issued urgently in this regard to all administrative Ministries/Departments and Chief Executives of PSUs."
20. A close analysis of all the above Instructions of the Central Government and DGR would make it manifestly clear that all Public Sector Undertakings are obliged to enter into Security Service Contracts only with the empanelled Security Agencies with DGR or State Government Owned ESM Corporations. Insofar as the State Government Owned ESM Corporations are concerned, as per the directions of the Central Government dated 15.09.2005, to participate in the tender and to enter into security service contract with Public Sector Undertakings, the said Corporations need not be sponsored by the DGR. To put it otherwise, the State Government Owned Corporation can directly make tender applications to the Public Sector Undertakings and enter into contract with them to provide security service. But, insofar as the other agencies are concerned, they should have been empanelled by the DGR and they should be sponsored to a particular PSU as per the further Instructions of the DGR issued in this regard such as seniority, etc.,.
21. In all these Writ Petitions, it is claimed by the petitioner TEXCO that it is a State Government Owned ESM Corporation. But, it is disputed by the 5th respondent in W.P.No.21788 of 2008 in his counter, wherein he has stated that since it is manned by an Officer from Indian Administrative Service a District Revenue Officer, it cannot claim to be the State Government Owned ESM Corporation, as it does not satisfy the requirements of Instructions 12 (b) and 12 (h) of the DGR Instructions. Though there appears to be some force in the said contention of the 5th respondent in W.P.No.21788 of 2008, on that ground this court cannot hold that the petitioner is not a State Government Owned ESM Corporation. According to Instruction 12 (a) of the DGR Instructions, a Corporation to become a State run ESM Corporation, should be approved by respective State Government / Union Territory Government and a approval certificate duly singed by the Chief Secretary of the State will be necessary for the ESM Corporation to be empanelled as DGR security agency, based on which the ESM Corporation will be eligible for DGR sponsorship all over the country. There are two aspects in this matter. First of all, it is not the case of the 5th respondent that the petitioner TEXCO has not been approved by the Government of Tamil Nadu. If once, it is found that it has been approved by the State Government, then it is a State Government Owned ESM Corporation for all practical purposes. Of course, it is true that the Chairman should only be a retired Commissioned Officer, who is qualified to be ESM (O) and persons employed in other Government / Central Government Departments cannot hold executive appointment including the Board of Directors of ESM Corporation. In the case on hand, it is true that the petitioner TEXCO is manned by the Chairman-cum-Managing Director, who is an officer from Indian Administrative Service and the General manger of the petitioner TEXCO is a District Revenue Officer from Revenue Department. Thus holding of these two vital posts by non-commissioned officers of Armed Forces is against Instruction 12 (b) of the DGR Instructions. But, that will not make the entire Corporation as a non Governmental Organisation. If the 5th respondent, feels aggrieved in any manner, because of holding of these two vital posts by the non-commissioned officers, his remedy lies elsewhere and not in these writ petitions.
22. There is no controversy that the participants in the tender process in all the writ petitions baring the petitioner TEXCO, are all empanelled security agencies and they were duly sponsored by the DGR to the BSNL for the purposes of awarding security service contracts. As rightly stated in the counter affidavit filed by the DGR, the job of the DGR is over, as soon as the sponsorship of security service agencies to PSUs is made. In respect of the tender notice, tender conditions and awarding of contract, the DGR has no role to play at all.
23. As per the directions of the Central Government, all PSUs have to award contracts to Ex-servicemen Security Agencies indicating all other tender conditions. The only prohibition is that no PSU can not enter into any contract with any Ex-servicemen Security Agency for security service purpose, unless the said agency has been sponsored by the DGR or the same is the State Government Owned/Run ESM Corporation.
24. Admittedly, the participants in the tenders in all the writ petitions quoted the same price respectively. Therefore, it had to be decided by the BSNL in each case as to how to allot the work. The BSNL had therefore, decided to split the work, so as to give the same to all the participants equally. Admittedly, there was no objection raised by the petitioner TEXCO instead, in one of the Writ Petitions, the Official of the Petitioner TEXCO participated in the proceedings in which it was decided by the BSNL to split up the work and to allot the same equally among all the participants.
25. Now the contention of the learned Additional Advocate General is that the petitioner TEXCO, being the State Government run Corporation, is entitled for preference in the matter of awarding of contract as per Instruction 20 (l) of the DGR Instructions which states that in case all the agencies sponsored to the employer quote same rates, then, the employer should award the contract to a senior most agency. According to the learned Additional Advocate General, the petitioner Corporation is the senior most agency and therefore, the security service contract should have been awarded only to the petitioner TEXCO.
26. Per contra, the learned counsel appearing for some of the respondents would submit that this Instruction is not applicable to the petitioner TEXCO. This guideline is applicable only in respect of the agencies, which are sponsored by the DGR to the employer. The learned counsel would further contend that in the case on hand, since the petitioner TEXCO was not sponsored by the DGR, such Instruction viz., 20 (l) of the DGR Instructions is not applicable. Further it is contended that the term "seniority" relates only to the security agencies run by Individual Partnership or ESM Private Limited Companies and not to the State Government Owned Corporation.
27. I have carefully considered the above submissions and I am not convinced by the argument of the learned Additional Advocate General in this regard. Admittedly, the petitioner TEXCO has not been sponsored by the DGR. A plain reading of Instruction 20 (l) of the DGR Instructions, as it is contended by the learned counsel appearing for some of the respondents, would go to show that it speaks of the seniority of the agencies sponsored by the DGR. If this Instruction is read along with the other DGR Instructions, the same would go to show that the term "seniority" only refers to the age of the Proprietor / Director of an agency. Therefore, the seniority as referred to in Instruction 20 (i) of the DGR Instructions cannot have any application to a State Government Owned Corporation. For these two reasons viz., (1) this Instruction applies only to agencies sponsored by the DGR and (2) the term "Seniority" refers only to the agencies other than the State Government run Corporations, I am of the view that the State Government Owned Corporation cannot have any preferential right over the other agencies, who were sponsored by the DGR.
28. It is the contention of the Additional Advocate General that the State Government Owned Corporation has been established for the welfare and resettlement of Ex-servicemen and their dependants and the members of the Corporation or share-holders of the Corporation and therefore, the petitioner TEXCO should have been given preference by BSNL over the Private Security Agencies. This argument may appear to be attractive, but it does not persuade the Court for the reasons which follow.
29. As I have already recorded in the earlier paragraphs of this order, the DGR has formulated the Scheme available to the Ex-commissioned Officers of the three services to provide security service to various establishments. It is not as though the private agencies are run outside the scope of the Scheme formulated by the DGR. The aim of the Scheme is not only to provide employment to Ex-servicemen , but also to provide opportunity for Ex-commissioned Officers of Armed Forces to run security service agencies. Thus, this Scheme provides benefits to the Ex-commissioned Officers as well as the Ex-servicemen and it serves duel purpose. Only with a view to keep a complete control over these agencies which are run by the Ex-Commissioned Officers, several measures have been taken by way of instructions to empanel the agencies to sponsor the same. At the time of empanelling the agencies run by the Ex-Commissioned Officers, there are various formalities, which are to be followed and there are various legal requirements, which are to be satisfied by the said Ex-commissioned Officers of Armed Forces. If once, the said agency is empanelled by the DGR, it becomes fully eligible to appoint Ex-servicemen as its members and then to enter into contracts with PSUs for providing security services by employing Ex-servicemen.
30. There may be several such agencies run by Ex-Commissioned Officers and if all are allowed to directly participate in the tenders and enter into contract with PSUs, some may get opportunity very frequently and some may not get opportunity for ever. That is one of the reasons, why, there is a requirement that such agency should be sponsored by the DGR. To provide equal opportunity for all and to distribute the work to various agencies in a fair manner, further instructions have been issued by the DGR to sponsor the agencies on the basis of rotation and on the basis of seniority. Thus, it is ensured that every agency, which is run by the Ex-Commissioned Officers get some opportunity to provide security service to PSUs. Thus the interest of the empanelled agency run by the Ex-Commissioned Officers is also protected.
32. While participating in the tender, suppose, all such sponsored agencies quote the same price then, as per the Instructions of the DGR, the senior most agency that is, in terms of the age of the Ex-commissioned Officer, who is either sole Proprietor or the Director of the agency should be given preference. Therefore, the Instruction 20 (l) of the DGR Instructions can be applied only in the above manner and not in any other manner, so as to give preference to a State Government Owned Corporation.
33. The contention of the learned Additional Advocate General that if the contract is given to the State Government Owned Corporation that will be in the interest of the Ex-servicemen, whereas if the contract is given to the Private Agencies, it will not be in the interest of the Ex-servicemen, can not be accepted, as the same has no basis at all.
33. In all these cases, since all the participants had quoted same price, in order to provide equal opportunity for all the agencies including the State Government Owned Corporation, the BSNL has rightly split up the work and allotted the same to all the agencies including the State Government Owned Corporation equally. The petitioner TEXCO did not challenge the same by raising any objection when the decision to split up was taken. The petitioner TEXCO has come to the Court only after the work order was issued after splitting up of the work. In the matter of contract, the BSNL should have freedom to contract, of course, subject to the condition that such contract should be entered only with State Government Owned Corporation or DGR sponsored Agencies. No one can compel the BSNL to award the contract only in his favour. Unless, the act of the BSNL is shown to be highly arbitrary, this Court cannot interfere with the decision of the BSNL in splitting the work. But, I am unable to find any reason to hold that in all these cases, the action of the BSNL to split up the work and to allot the same to all the participants equally is arbitrary or unreasonable in any manner.
34. In W.P.No.21489 of 2008, the prayer is, to quash the contract awarded on 28.07.2008 in respect of Coimbatore Region and to continue the earlier contract issued in favour of the Petitioner TEXCO. In my considered opinion, the said prayer is highly misconceived. When the petitioner TEXCO has participated in the tender, it is not now open for them to insist the BSNL to continue the earlier contract under which the petitioner had been providing the Security Services. As I have already stated supra, I do not find any reason to interfere with the award of the contract in favour of the respondents 4 to 7 in W.P.No.21489 of 2008 and the petitioner. Therefore, W.P.No.21489 of 2008 must fail.
35. In W.P.No.21788 of 2008, the prayer is only for a mandamus to direct the BSNL to allot the entire contract for providing security services in respect of Chennai Region to the petitioner TEXCO. Here, the petitioner TEXCO has not chosen to challenge the award of contract in favour of the respondents 4 to 7 in W.P.No.21788 of 2008. Therefore, without challenging the same, it is not open for them to seek for a mandamus to direct the BSNL to award the entire contract to them. Assuming that the petitioner TEXCO has challenged the award of contract in favour of the respondents 4 to 7, still in my considered opinion, for the conclusions arrived at earlier, this writ petition must fail.
36. In respect of W.P.No.23934 of 2008, the petitioner TEXCO has challenged the award of contract in favour of the respondents 5 & 6. As I have already concluded supra, I do not find anything irregular or illegal in the same and therefore, this writ petition also must fail.
37. In the result, W.P.Nos.21489, 21788 and 23934 of 2008 fail and they are accordingly dismissed. No costs. Consequently, M.P.Nos.1 of 2008 are also dismissed.
Index : yes 22. 04.2009 Internet : yes kmk To
1.The General Manager, Tamil Nadu Ex-serviceman's Corporation Ltd.,(TEXCO"), Government of Tamil Nadu Undertaking, Major Parameswaran Memorial Building, No.2K, West Mada Street, Sri Nagar Colony, Saidapet, Chennai 600 015.
2.The Secretary to Govt. of India, Ministry of Information & Telecommunication, New Delhi.
3.The Director General Resettlement, Ministry of Defence, West Block IV, R.K.Puram, New Delhi 110 066.
4.The Chief General Manager, BSNL (Tamil Nadu Circle), Anna Salai, Chennai.
5.The Principal General Manager, BSNL, Coimbatore 641 011.
6.The Dy. General Manager, (Admin.,) Bharath Sanchar Nigam Limited, No.89, Millers Road, Chennai 600 010.
7.The Chief General manager, Bharat Sanchar Nigam Ltd., (BSNL), Anna Salai, Chennai 600 002.
8.The General manager (BSNL), Gandhiji Road, Erode, 640 011.
S.NAGAMUTHU. J., kmk Writ Petition Nos.21489, 21788 and 23934 of 2008
22..04..2009