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2022 Supreme(Online)(Ker) 80510
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.NAGARESH, J
RAJESH BABU, K.C. JOSEPH, SEBASTIAN THOMAS, G. MANOJ KUMAR, S. ANIL KUMAR – Appellant
Versus
CHAIRMAN AND MANAGING DIRECTOR, BHARAT SANCHAR NIGAM LTD. – Respondent
WP(C) NO. 8370 OF 2022
For the Appellants/Petitioners: ABRAHAM VAKKANAL (SR.), PAUL ABRAHAM VAKKANAL, ROHITH C., VINEETHA SUSAN THOMAS
For the Respondents: K.RAMAKUMAR (SR.), T.RAMPRASAD UNNI
The court upheld the validity of BSNL's unilateral amendment to eligibility criteria for franchisees, emphasizing that such policy decisions are not subject to judicial review unless proved to be mala fide.
Headnote:(A) CM Franchisee Sales and Distribution Policy, 2018 - Section 2B(g) - Amendments to eligibility requirements for franchisees; petitioners sought to quash new conditions added without proper authorization. The court held that the amendments were valid and within jurisdiction. (Paras 2, 11, 17)
(B) Administrative Law - Policy changes by BSNL not open to judicial review absent mala fides. Courts should not substitute their views for the authority's expertise. (Paras 21)
Facts of the case:
Petitioners, existing franchisees of BSNL, challenged newly imposed eligibility requirement related to scoring for EOI, claiming unlawful unilateral amendment by Circle Head of Kerala.
Findings of Court:
Amendments to the eligibility criteria for franchisees are lawful and do not violate the interests of BSNL.
Issues: The court addressed whether the recent changes in eligibility for franchisees and subsequent EOIs were enacted legally and fairly.
Ratio Decidendi: The new criteria imposed by the BSNL Circle Head were deemed valid, and the authority's discretion concerning franchiseeship criteria was upheld.
Result: Writ petition dismissed.
| Table of Content |
|---|
| 1. petitioners are existing franchisees seeking legal relief. (Para 1 , 2) |
| 2. contention of petitioners against section 2b(g) of eoi. (Para 3 , 4 , 5 , 11 , 15) |
| 3. respondents' defense against petitioners' claims. (Para 6 , 7 , 8) |
| 4. eligibility requirements defined by bsnl for franchisees. (Para 9 , 10) |
| 5. court's agreement with bsnl's authority in eligibility decision. (Para 16 , 21) |
| 6. judicial precedents cited by the petitioners do not apply. (Para 17 , 18 , 19 , 20) |
JUDGMENT
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The petitioners, who are existing franchisees of the Bharat Sanchar Nigam Ltd. (BSNL), seek to quash Exts.P2, P3 and P4 Expressions of Interest (EOI) and to declare that Section 2B(g) as contained in Exts.P2, P3 and P4 Notices inviting EOIs is bad in law and unenforceable as the said Section has been added/incorporated illegally.
2. The petitioners state that they are franchisees for sale of BSNL products and services. In Ext.P2 Notification inviting EOIs, the BSNL has made a stipulation that the existing BSNL franchisees have to get minimum average 50% score for the last two quarters of operation as franchisees preceding the EOI floating quarter. This has been made an eligibility requirement in the year 2022. Earlier, such a requirement did not exist. The new condition has been imposed only in Kerala, by the Circle Head.
3. The petitioners would contend that the new criteria introduced as Section 2B(g) of Ext.P2, has been introduced unilaterally by the Circle Head in Kerala in the rules governing franchiseeship “the CM – Franchisee Sales and Distribution Policy – 2018”. The Circle Head cannot change the said Sales and Distribution Policy. Though the respondents have received ex-post facto sanction for the said change made in Ext.P2, it will not cure the illegality committed. Ex-post facto approval is impermissible, contend the petitioners.
4. Exts.P2 to P4 were floated with the newly added Section 2B(g) without approval of the competent authority. Those EOIs were issued on 22.02.2022 and 23.02.2022. The competent authority granted approval only on 25.02.2022 as per Ext.P5. The said ex-post facto approval cannot inject life into the otherwise desolate EOIs. Section 2B(g) on the face of it goes against the terms and conditions contained in the EOI which is based on the CM Franchisee Sales and Distribution Policy , 2018. Section 3A (g) requires that the BSNL SSA shall notify all changes or revisions made to it to the 2018 Policy to the franchisees. The franchisees have a right to object. Section 3A (g) is made a casualty by the introduction of section 2B(g).
5. The petitioners submit that section 2B(g) is detrimental to the interests of BSNL. The BSNL franchisees who are with the BSNL for long, have gained ample experience and grounds in the market. Such experienced franchisees, if excluded from consideration, it will adversely affect BSNL. The modifications to the Policy is at the instance of the Kerala Circle alone. A post-facto approval cannot legalise an otherwise illegal EOI. As per the new addition, the existing franchisees who have displayed 50% average in one territory and 49% in another territory, will not be eligible to apply. At the same time, a raw bidder without any experience would be able to apply and is placed in an advantageous position, contended the petitioners.
6. The respondents resisted the writ petition. The respondents submitted that the petitioners were aware of the conditions of tender which was published on 22.02.2022. The petitioners filed their objections only on 11.03.2022 and moved this Court on the same day. As per the customer scheme involved in the tender conditions, a Circle Office is empowered to make appropriate changes. The changes effected are perfectly within the jurisdiction of the Kerala Circle of BSNL.
7. The respondents submitted that a policy decision of the BSNL is not open to challenge before this Court in view of the Division Bench judgment of this Court reported in Pushkarraj Const
