AI Structured Summary
Not yet generated for this judgment
Judgment
R. Banumathi and T.S. Sivagnanam, JJ.—These appeals are directed against the order made in W.P. No. 1552 of 2010 & 15872 of 2010,
which were dismissed along with two other writ petitions by a common order dated 27.10.2010. The appellants in both the appeals are
associations consisting of Ex-Servicemen as its members. W.P. No. 1552 of 2010, was filed challenging the proceedings issued by the respondent
(BSNL) dated 22.01.2010. By the said proceedings, the BSNL proposed to reduce the quantum of Security Guards in exchanges w.e.f.,
01.02.2010 and they intimated the Tamil Nadu Ex-Servicemen Corporation Limited (TEXCO) to intimate the location wise name list of the
Security Guards for new arrangements on or before 29.01.2010.
In W.P. No. 15872 of 2010, prayer was made to forbear the BSNL from removing the Security staff in the offices of the BSNL under the
control of the respondents.
The point for consideration which was framed for consideration in the writ petitions was whether the decision taken by BSNL to reduce the
strength of security personnel deployed through TEXCO is sustainable. After taking note of the catena of decisions of the Hon''ble Supreme Court
on the question relating to the power of the Court to interfere in policy matters, the learned Single Judge held that it is apparent that a policy
decision taken by the Government or a Government undertaking cannot be faulted, unless it suffers from unreasonableness, arbitrariness, unfairness
or it is beyond the legislative powers of the State or it is beyond Constitutional limits. The learned Single Judge on analysis of the facts and
materials placed before the Court held that nothing credible has been placed to show that inspite of requirements, the strength of security personnel
employed through TEXCO has been deliberately reduced and opined that the action of the BSNL in taking a policy decision to reduce the
deployment of Ex-Servicemen employed through TEXCO is not actuated by any malafides and it is not arbitrary and accordingly, dismissed the
writ petitions. Challenging the same, these appeals have been preferred.
Though two other writ petitions were filed by the same petitioner in W.P. Nos. 4080 & 4081 of 2010, but as against those writ petitions, which
were also dismissed by common order, no separate writ appeals have been preferred.
Mr. N.G.R. Prasad, learned counsel appearing for the appellant submitted that the action of the respondent, BSNL, is only with a view to
circumvent the earlier order passed by the First Bench of this Court in The Tamil Nadu Ex-Servicemen''s Corporation Limited (TEXCO),
Government of Tamil Nadu Vs. The Bharat Sanchar Nigam Limited (BSNL) and Others, and by virtue of the judgment rendered by the Division
Bench, the contract cannot be given to private parties and they have now come forward with a plea of reducing the number of Security personnel
and proposing to redeploy their own group C & D staff for that work. Further, it is submitted that the plea of reducing the security staff engaged
through TEXCO was not bonafide, but intended to defeat the protection given by the Division Bench in the earlier decision. Further, it is
contended that the action of the respondents amounts to privatisation and defeat the rights of TEXCO to retain the contract and the Ex-servicemen
as Security Guards are trained personnel and they cannot be replaced by group C & D staff of BSNL, who are telephone mechanic etc., who
have not been trained and appointed as Security Guards.
Mr. R. Gururaj, learned counsel appearing for the other appellant, submitted that TEXCO has acted against the interest of the Ex-servicemen
and in view of the long employment of the members of the appellant association, they are entitled for regularisation. Further, it is submitted that the
purpose of calling tenders is to disengage the members of the appellant association, who have all among being working in BSNL. The learned
counsel referred to the various proceedings of the Government of India and submitted that the security personnel have to be engaged through
security agencies sponsored by DGR and the respective State Ex-Servicemen Corporation and the expression used is ""and"" therefore, the
engagement of security personnel should be done through the State Ex-Servicemen Corporation only. By referring to the tender notification issued
for Cuddalore region for the year 2010-12, it is submitted that the tenders were invited only from reputed DGR sponsored security agencies
excluding TEXCO. Therefore, it is submitted that the order dismissing the writ petitions has caused great hardship to the Ex-Servicemen and
prayed for interference with the order.
Mr. Vijayanarayanan, learned Senior counsel appearing for Mr. M.S. Velusamy, learned counsel for the BSNL submitted that in the earlier
round of litigation, the First Bench held that BSNL has taken a decision to reduce the security personnel, who are deployed through TEXCO,
since there is surplus staff in BSNL due to the steep fall in the number of landline users and in areas wherever required, the services of Ex-
Servicemen will continue to be utilised and there is no arbitrariness involved in the decision. It is further submitted that in tenders invited for
Cuddalore region, TEXCO did not submit the requisite documents and therefore, the same was rejected. It is further submitted that in the event
this Court upholds the decision of the learned Single Judge fresh tenders would be called for in respect of Cuddalore region and in such event
TEXCO can participate in such fresh tender. So far as Erode region, the learned counsel submitted that there are only 46 Security Guards working
in category 1 station and the details of their place of posting has been placed before this Court.
Mr. P.D. Athikesavalu, learned counsel appearing for the TEXCO submitted that Ex-Servicemen are deployed to various public sector
organisations on need basis and guards are interchanged among various organisations and the eight years time restriction is not applicable to
TEXCO and apart from deployed the Ex-Servicemen various other welfare measures are also extended to them.
We have heard the learned counsels appearing for the parties and perused the materials placed on record.
TEXCO filed a writ petition before this Court in W.P. No. 23934 of 2008 The Tamil Nadu Ex-Servicemen''s Corporation Limited (TEXCO),
Government of Tamil Nadu Vs. The Bharat Sanchar Nigam Limited (BSNL) and Others, challenging the order of the General Manager, BSNL,
Erode, dated 08.09.2008 distributing the work of engaging the Ex-Servicemen amongst TEXCO and two other agencies. The learned Single
Judge dismissed the writ petition and appeal was preferred by TEXCO. The First Bench of this Court allowed the appeal and held that there is
nothing wrong in TEXCO participating in the tender process and challenging their restriction to one zone; their participation was necessary to
examine whether they were giving an equal offer. It was further held that it is necessary for the welfare of ex-servicemen, and it is a material
condition. It was held that if that was not so, their bid could have been rejected, however, once they give an equal offer and if they are being
restricted, there is nothing wrong in their pointing out that the decision is contrary to BSNLs own decision dated 16.05.2007, which is in
consonance with the directives of the Defence Ministry. Since BSNL has itself issued the circular dated 16.05.2007 giving a preferential treatment
to the TEXCO, Clause 7(3) of the tender document will have to be confined only to examine if the appellant is giving equal terms. In the event, it
does not it will get eliminated, but if it gives equal terms, the entire work will have to be given to the TEXCO. It was submitted that as per Note
No. 1, below guideline No. 73, all guidelines/instructions issued on the subject prior to the guidelines stand suspended with effect from
01.02.2006. This note, however, cannot supercede the directives of the Ministry itself nor the circular of BSNL issued thereafter on 16.05.2007.
In the light of the above referred decision, the preferential treatment to TEXCO as per the circular of BSNL dated 16.05.2007, was confined
only to the extent that if TEXCO submits an offer equal to all other competing tenders, the entire work will have to be given to TEXCO.
As noticed above, by proceedings dated 22.01.2010, BSNL Erode informed TEXCO that they proposed to reduce some quantum of
Security Guards in many exchanges from 01.02.2010. This proceedings was challenged by the appellants by filing the aforesaid writ petition
contending that the reduction of Security Guard is a ruse only to circumvent the order passed by the First Bench. BSNL in their counter affidavit
stated that the TEXCO increases or reduces the supply of Security Guards as per the demand made by the BSNL and TEXCO agreed for the
proposal in reducing the number of Security Guards, when they met the Chief General Manager, BSNL on 29.01.2010 and they have inspected
the areas, where the Guards have to be reduced to prepare a final list. Further, their contention was that the action of BSNL is on need basis and
reduction of Security Guards cannot be termed as arbitrary.
It is to be noted that in the earlier round of litigation, TEXCO was the writ petitioner/appellant claiming that they should be granted the
exclusive right to deploy Ex-Servicemen as Security Guard in BSNL. The Division Bench after elaborately considering the matter held that the
restriction that TEXCO who was the contractor for eight years and thereafter not permitted to participate in the tenders was found to be not
tenable and the preferential treatment to TEXCO shall be confined only to examine if TEXCO is giving equal terms compared to the other
participants in the tender. Therefore, the protection granted to TEXCO in the earlier round of litigation was confined to this extent alone.
In the present cases, TEXCO is not the writ petitioner or the appellant and they have been impleaded as respondent in W.A. No. 2532 of
2010 and in W.A. No. 922 of 2011, TEXCO is not a party.
The contention of the appellant is that the present stand taken by the BSNL stating that they proposed to reduce the number of Security
Guards is only with a view to circumvent the order passed by the First Bench of this Court in the earlier writ appeal. We have perused the factual
materials placed before us as well as counter affidavit from which it is clear that the number of Security Guards is sought to be reduced due to
steep fall in the number of landline users on account of the advent of mobile phones and even the private operators are offering landline connections
owing to which BSNL lost its monopoly status and it appears to be a policy decision taken by BSNL to reduce the number of Security Guards in
its efforts to reduce expenditure. Since the landline connections reduced very much and it resulted in large number of employees of Group C and
Group D becoming surplus and their service cannot be dispensed and as a matter of administrative policy as well as administrative exigencies,
BSNL proposed to utilise the services of Group C and Group D employees to man the security points and it is stated that BSNL is taking
bonafide steps relating to the said policy by engaging the said employees in the above said security work, which resulted in the reduction of
strength of servicemen. It is well settled that the Courts in exercise of their power of Judicial review do not ordinarily interfere with the policy
decisions unless such authority could be faulted on the grounds of malafide, unreasonableness, arbitrariness, unfairness, etc., After referring to
various decisions of the Hon''ble Supreme Court viz M.P. Oil Extraction and Another Vs. State of M.P. and Others, ; M/s. Ugar Sugar Works
Ltd. Vs. Delhi Administration and Others, Dhampur Sugar (Kashipur) Ltd. Vs. State of Uttranchal and Others, ; Mohd. Fida Karim and another
Vs. State of Bihar and others, and Sterling Computers Limited and Others Vs. M and N Publications Limited and Others, and other decisions, the
learned single Judge held that the policy taken by BSNL cannot be faulted on any of the above said grounds. We endorse the views of the learned
single Judge.
Admittedly, the Ex-Servicemen are deployed by TEXCO on requisition from BSNL. TEXCO candidly admitted that such deployment is on
need basis and the Security Guards are interchangeable among various public sector undertakings. Therefore, to state that the action of BSNL was
intended to circumvent the order of the First Bench in the earlier round of litigation is not well founded.
As noticed above, the Division Bench did not grant exclusive status to TEXCO for supply of Security Guards, but observed that if the offer
was equal to other tenderers, then they should be preferred. In the light of the above facts, it cannot be stated that the action of BSNL to reduce
the number of Security Guards and retain them only in strategic and sensitive location can hardly be stated to be a malafide exercise of power or an
arbitrary action warranting this Court to interdict in such decision, which prime facie appears to be a policy decision.
Insofar as Cuddalore region, tenders were called for by notification dated 02.06.2010. TEXCO was one of the tenderers, however, their
tender was rejected, as they had not submitted any supporting document as required to be submitted as per the tender conditions. Thus, it is
evident that the TEXCO was given an opportunity to participate in the tender, yet, did not fulfil the conditions resulting in the rejection of their
tender at the threshold. TEXCO has not challenged the rejection of tender, but an association of Ex-Servicemen have filed this writ petition. Before
the writ Court, the appellant in W.A. No. 922 of 2011 owing to internal dispute in the association another person by name Mr. P. Ramalingam
sought to prosecute the appeal, pursuant to order passed in M.P. No. 1 of 2010.
Be that as it may, the appellant in W.A. No. 922 of 2011, had filed an earlier writ petition before this Court in W.P. No. 11528 of 2010,
wherein the appellant challenged the tender notification issued by BSNL and for a direction not to retrench any Ex-Servicemen sponsored by
TEXCO. The said writ petition was dismissed by order dated 24.09.2010 pointing out that the apprehension of the members of the appellant
association of being retrenched and that BSNL was going to recruit other persons in the place of Ex-Servicemen, this Court observed that the
tender notification itself was for deploying Ex-Servicemen as Security Guard in Cuddalore area and therefore, stand of the appellant/writ petitioner
does not survive. The appellant was given liberty to approach the authority by way of representation with a further direction by directing the
second respondent therein to work out the possibility of accommodating the members of the association.
In the light of the order passed in the above writ petition, namely, W.P. No. 11528 of 2010, the appellant cannot now take a different stand
and file a writ petition seeking a prayer forbearing the removal of the Security staff in BSNL and such a prayer is not maintainable, since their
deployment as Security Guards itself was through TEXCO and TEXCO participated in the tender invited for Cuddalore region and their tender
was rejected. Further, in the writ petition in W.P. No. 11528 of 2010, the plea raised by the appellant association for regularisation was negatived
and it was held that the association do not have any right as far as BSNL and their right is only against TEXCO.
In the light of the above discussion, the learned Single Judge was perfectly right in refusing to interfere with the decision taken by BSNL and
furthermore, BSNL have not stated that they do not propose to retain/engage Ex-Servicemen as security staff, but they would do so on need basis
to suit their requirement and the suitability and the requirement is wholly within the realm of BSNL and a writ Court cannot interdict in exercise of
such powers as it is purely a matter of internal administration of BSNL. However, the decision rendered by the First Bench in TEXCO vs. BSNL
(supra) and the direction issued therein is binding upon the BSNL. In the light of the above discussion, we do not find any reason to interfere with
the order of the learned Single Judge and the writ appeals are dismissed with the observations that the directions issued by the First Bench of this
Court in The Tamil Nadu Ex-Servicemen''s Corporation Limited (TEXCO), Government of Tamil Nadu Vs. The Bharat Sanchar Nigam Limited
(BSNL) and Others, are to be strictly complied with and BSNL shall endeavour to comply with the directions issued by Ministry of Defence dated
22.05.2002. If the tenders quoted by TEXCO are higher than the other private agencies, BSNL shall call for TEXCO for pre-tender negotiations
to bring TEXCO on equal terms on par with other private agencies for consideration of their bid. No costs. Consequently, connected
miscellaneous petitions are closed.