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SOCIAL WELFARE MEASUREMENTS OF APEX COURT – twelve directions:- 6 (i) The aspect of sanctioning 14 lakhs AWCS and increase of norm of rupee one to rupees two per child per day would be considered by this Court after two weeks. (ii) The efforts shall be made that all SC/ST hamlets/habitations in the country have AWCS as early as possible. (iii) The contractors shall not be used for supply of nutrition in Anganwadis and preferably ICDS funds shall be spent by making use of village communities, self-help groups and Mahila Mandals for buying of grains and preparation of meals. (iv) All State Governments/Union Territories shall put on their website full data for the ICDS schemes including where AWCS are operational, the number of beneficiaries category-wise, the funds allocated and used and other related matters. 7 (v) All State Governments/Union Territories shall use the Pradhanmantri Gramodaya Yojna fund (PMGY) in addition to the state allocation and not as a substitute for State funding. (vi) As far as possible, the children under PMGY shall be provided with good food at the Centre itself. (vii) All the State Governments/Union Territories shall allocate funds for ICDS on the basis of norms of one rupee per child per day, 100 beneficiaries per AWC and 300 days feeding in a year, i.e., on the same basis on which the Centre make the allocation. (viii) BPL shall not be used as an eligibility criteria for ICDS. (ix) All sanctioned projects shall be operationalised and provided food as per these norms and wherever utensils have not been provided, the same shall be provided (Instance of Jharkhand State has been noticed in the Report where 8 utensils have not been provided). The vacancies for the operational ICDS shall be filled forthwith. (Instance of Uttar Pradesh where vacancies have not been filled up is quite alarming though in the affidavit it has been stated that a drive has been initiated to fill up the vacancies). (x) All the State Governments/Union Territories shall utilize the entire State and Central allocation under ICDS/PMGY and under no circumstances, the same shall be diverted and preferably also not returned to the Centre and, if returned, a detailed explanation for non-utilisation shall be filed in this Court. (xi) All State/Union Territories shall make earnest effort to cover the slums under ICDS. (xii) The Central Government and the States/Union Territories shall ensure that all amounts allocated are sanctioned in time so that there 9 is no disruption whatsoever in the feeding of children.

The Indian Constitution preamble

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                                                                                1

                                                              REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.7104 OF 2011

            [Arising out of SLP (Civil) No. 29363 of 2010] 

      Shagun Mahila Udyogik 

      Sahakari Sanstha Maryadit                       .. Appellant

      VERSUS

      State of Maharashtra & Ors.                                 ..Respondents

                                   J U D G M E N T

      SURINDER SINGH NIJJAR, J.

      1.     Leave granted.

      2.     The   instant   appeal   is   directed   against   the   final 

             judgment and order of the High Court of judicature 

             at         Bombay,         Nagpur         Bench         at         Nagpur 

             dated 9th September, 2010, in Writ Petition No. 4210 

             of   2010   vide   which   the   Division   Bench   of   the   High 

             Court   dismissed   the   petition   of   the   appellant 

             thereby   affirming   the   decision   of   awarding   the 

             contract to the respondent Nos. 4 to 6. 

                                                              2

3.    We may notice here the essential facts, which would 

      have   a   bearing   on   the   determination   of   the   issues 

      raised in this appeal. 

4.    The   appellant   is   a   society   registered   under   the 

      Maharashtra   Co-operative   Societies   Act,   1960.   The 

      appellant   has   several   years   of   experience   in 

      supplying   hot   cooked   meal   (ready   to   eat   food)   for 

      children   and   other   beneficiaries   of   Anganwadi 

      Centres   (in   short   `AWCS')   in   the   State   of 

      Maharashtra. 

5.    In the year 1975, the Central Government floated a 

      scheme   termed   as   "Integrated   Child   Development 

      Scheme"   (in   short   `ICDS')   in   order   to   improve   the 

      health and nutrition status of the children (between 

      the age group   of 0-6 years); pregnant and lactating 

      women,   by   providing   them   with   supplementary 

      food.     Under   the   said   Scheme,   certain   kind   of 

                                                                3

      specified food was proposed to be supplied through 

      AWCS.          Accordingly,   around   fourteen   lakhs 

      Anganwadi Centres were proposed to be set up.

6.    It   appears   that   the   lack   of   progress   made   in   the 

      implementation   of   the   aforesaid   Scheme   prompted 

      the Peoples Union for Civil Liberties (in short `PUCL) 

      to   move   this  Court   by   way  of  a  Writ   Petition  (Civil) 

      No. 196 of 2001 under Article 32 of the Constitution 

      of   India,   seeking   necessary   directions   for 

      implementation of the Scheme. By a series of orders 

      passed in the aforesaid writ proceedings, this Court 

      issued   the   necessary   directions.   On   8th  May,   2002, 

      this   Court   gave   detailed   directions   with   regard   to 

      implementation   of   various   Schemes,   which   have 

      been   floated   for   giving   relief   to   the   poor, 

      impoverished   and   the   hungry.     At   the   same   time, 

      this Court appointed Dr. N.C. Saxena and Shri S.R. 

      Sankaran as Commissioners of the Court, inter-alia, 

      for   the   purpose   of   looking   into   the   grievances   that 

                                                                      4

      may   persist   after   the   grievance   resolution 

      procedure,   laid   down   in   the   said   order   was 

      exhausted.  Scope of the work of the Commissioners 

      also   included   monitoring   of   the   implementation   of 

      the   Court's   orders   as   well   as   monitoring   and 

      reporting to this Court of the implementation by the 

      respondents   of   various   welfare   measures   and 

      schemes.  

7.    Again on 29th October, 2002, this Court directed the 

      respective         State         Governments         to         appoint 

      Government   Officials   as   Assistants   to   the 

      Commissioners.     The   Commissioners   submitted   a 

      very detailed report to this Court, salient features of 

      which   have   been   noticed   by   the   order   dated   7th 

      April, 2004.   This Court appreciated the work done 

      by   the   Commissioners.     It   was   also   noticed   that 

      although   fourteen   lakhs   AWCS   were   directed   to   be 

      established,   only   six   lakhs   centres   had   been 

      sanctioned.       It   was   also   noticed   that   many   of   the 

                                                                 5

      sanctioned   centres   were   not   operational.   In   some 

      States,   the   problem   seemed  to   be   more   acute   than 

      the others.  Upon consideration of the entire matter, 

      directions were issued for the sanction of remaining 

      AWCS and for increase of norm for the food value to 

      be supplied to these beneficiaries from rupee one to 

      rupee two per day.   This Court also noticed that on 

      an   average,   forty   two   paisa   as   against   the   norm   of 

      rupee   one   was   being   allocated   per   beneficiary   per 

      day   by   the   State   of   Jharkhand.     The   position   in 

      Bihar   and   Uttar   Pradesh   was   also   no   better. 

      Therefore,   necessary   directions   were   issued   to   the 

      State   Governments   to   make   operational   all 

      sanctioned AWCS by 30th November, 2004. 

8.    Taking   into   consideration   all   the   facts   and 

      circumstances   placed   on   record   by   the   two   Court 

      Commissioners   and   through   various   affidavits   filed 

      by the respondents, this Court issued the following 

      twelve directions:-

                                                              6

(i)      The aspect of sanctioning 14 lakhs AWCS and 

         increase   of   norm   of   rupee   one   to   rupees   two 

         per child per day would be considered by this 

         Court after two weeks.

(ii)     The   efforts   shall   be   made   that   all   SC/ST 

         hamlets/habitations   in   the   country   have 

         AWCS as early as possible.

(iii)    The contractors shall not be used for supply of 

         nutrition   in   Anganwadis   and   preferably   ICDS 

         funds   shall   be   spent   by   making   use   of   village 

         communities,   self-help   groups   and   Mahila 

         Mandals   for   buying   of   grains   and   preparation 

         of meals.

(iv)     All   State   Governments/Union   Territories   shall 

         put   on   their   website   full   data   for   the   ICDS 

         schemes           including         where         AWCS         are 

         operational,   the   number   of   beneficiaries 

         category-wise,   the   funds   allocated   and   used 

         and other related matters.

                                                              7

(v)      All   State   Governments/Union   Territories   shall 

         use the Pradhanmantri Gramodaya Yojna fund 

         (PMGY)  in addition  to the  state  allocation and 

         not as a substitute for State funding. 

(vi)     As   far   as   possible,   the   children   under   PMGY 

         shall be provided with good food at the Centre 

         itself.

(vii)    All   the   State   Governments/Union   Territories 

         shall   allocate   funds   for   ICDS   on   the   basis   of 

         norms   of   one   rupee   per   child   per   day, 

         100   beneficiaries   per   AWC   and   300   days 

         feeding   in   a   year,   i.e.,   on   the   same   basis   on 

         which the Centre make the allocation. 

(viii) BPL shall  not be used  as an eligibility criteria 

         for ICDS.

(ix)     All sanctioned projects shall be operationalised 

         and   provided   food   as   per   these   norms   and 

         wherever utensils have not been provided, the 

         same shall be provided (Instance of Jharkhand 

         State   has   been   noticed   in   the   Report   where 

                                                             8

         utensils   have   not   been   provided).   The 

         vacancies   for   the   operational   ICDS   shall   be 

         filled   forthwith.   (Instance   of   Uttar   Pradesh 

         where   vacancies   have   not   been   filled   up   is 

         quite   alarming   though   in   the   affidavit   it   has 

         been   stated   that   a   drive   has   been   initiated   to 

         fill up the vacancies).

(x)      All   the   State   Governments/Union   Territories 

         shall   utilize   the   entire   State   and   Central 

         allocation   under   ICDS/PMGY   and   under   no 

         circumstances, the same shall be diverted and 

         preferably also not returned to the Centre and, 

         if   returned,   a   detailed   explanation   for 

         non-utilisation shall be filed in this Court.

(xi)     All State/Union Territories shall make earnest 

         effort to cover the slums under ICDS.

(xii)    The Central Government and the States/Union 

         Territories   shall   ensure   that   all   amounts 

         allocated   are   sanctioned   in   time   so   that   there 

                                                                           9

             is   no   disruption   whatsoever   in   the   feeding   of 

             children.           

9.    Pursuant   to   the   aforesaid   directions,   respondent 

      Nos.   1   and   2   passed   a   resolution   on   28th  October, 

      2005.     The   resolution   provided   for   a   detailed 

      procedure of making available "Ready to Eat" (`RTE') 

      food   targeted   to   beneficiaries   through   Anganwadis. 

      The   food   was   to   be   supplied   by   Mahila   Mandal, 

      Mahila   Sanstha,   Women   Self   Helping   Saving 

      Groups,   Sale   Assistant   Saving   Group   for 

      Anganwadis,   registered   under   the   provisions   of 

      either           (i)   Public   Trust   Act,   1950,   (ii)     Societies 

      Registration           Act,         1860,         (iii)         Maharashtra 

      Cooperative   Societies   Act,   and       (iv)   Company 

      registered   under   the   Companies   Act,   1956.     The 

      resolution further required that every member of the 

      Group should be a woman. 

                                                             10

10.    In   the   meantime,   this   Court   had   passed  a  number 

       of   other   orders   providing   for   Supplementary 

       Nutrition   to   the   beneficiaries,   particular   attention 

       was directed to be paid to the following:-

       (i)      Children   falling   within   the   age   group 

                of 6 months to 3 years,

       (ii)     Pregnant and lactating women and

       (iii)    Severely   underweight   children   within   the 

                age group of 6 months to 3 years. 

11.    The   Central   Government   found   that   the   original 

       ICDS   scheme   was   insufficient   to   cater   to   the 

       nutritional   demands   of   the   categories   of   children 

       and   women   noticed   above.                The   Central 

       Government,   therefore,   conducted   further   surveys 

       through   experts   which   recommended   that   the   gap 

       in   the   calories   norms   between   the   Recommended 

       Dietary   Allowance   (in   short   `RDA')   and   the   Actual 

       Dietary Intake (in short `ADI') be filled.     Therefore, 

       the   Central   Government,   in   consultation   with   its 

                                                                 11

       experts, published a revised nutritional and feeding 

       norm   for   supplementary   nutrition   in   ICDS   Scheme 

       on 24th February, 2009.  The revised norms required 

       that   the   supplementary   food   may   be   fortified   with 

       essential micro nutrients with 50% of RDA level per 

       beneficiary per day. 

12.    These   revised   norms   were   filed   before   this   Court 

       alongwith an affidavit dated 2nd  March, 2009 by the 

       Central Government highlighting the various factors 

       including   the   recommendations   received   from   the 

       Task Force constituted by the Central Government. 

       Upon   consideration   of   the   affidavit   of   the   Central 

       Government,   this   Court   passed   a   further   order   on 

       22nd  April,   2009.     In   Paragraph   5   and   6,   it   was 

       observed as follows:-

          "5.    The   Revised   Nutritional   and   Feeding 

          Norms   for   SNP   in   ICDS   Scheme   circulated 

          vide   letter   no.5-9/2005/ND/Tech.(Vol.   I) 

          dated 24.02.2009 states that children in the 

          age   group   of   6   months   to   3   years   must   be 

          entitled to food supplement of 500 calorie of 

          energy   and   12-15   gm.   of   protein   per   child 

          per   day   in   the   form   of   take   home   ration 

                                                                       12

          (THR).   For   the   age   group   of  3-6  years,   food 

          supplement   of   500   calories   of   energy   and 

          12-15 gm of protein per child must be made 

          available   at   the   Anganwadi   Centers   in   the 

          form   of   a   hot   cooked   meal   and   a   morning 

          snack   for   severely   underweight   children   in 

          the   age   group   of   6   months   to   6   years,   an 

          additional   300   calories   of   energy   and   8-10 

          gm   of   protein   would   be   given   as   THR.   For 

          pregnant   and   lactating   mothers,   a   food 

          supplement   of   600   calories   of   energy   and 

          18-20 gm of protein per beneficiary per day 

          would be provided as THR.

          6.            The letter dated 24.02.2009 No.5-

          9/2005/NO/Tech (Vol. II) has been annexed 

          to   the   affidavit   dated   2nd  March,   2009   filed 

          by   the   Union   of   India.   It   is   directed   that 

          norms indicated in the said letter addressed 

          to   all   the   State   Government   sand   Union 

          Territories have to be implemented forthwith 

          and   the   respective   States/UTS   would   make 

          requisite financial allocation  and undertake 

          necessary arrangements to comply with the 

          stipulation contained in the said letter."      

13.    This   Court   noticed   the   statement   made   by   the 

       learned         Additional         Solicitor         General          that 

       Supplementary Nutrition Food (in short `SNF') in the 

       form  of Take  Home  Ration  (in short  `THR')   shall be 

       provided   to   all   children   in   the   age   group   of   6 

       months   to   3   years   and   additional   300   calories   to 

       severely underweight children in the age group of 3 

                                                                  13

     to   6  years,   pregnant   women   and   lactating   mothers 

     as   per   norms   laid   down   in   the   letter   dated   24th 

     February,   2009.     Accordingly,   all   Union   Territories 

     and   State   Governments   were   directed   to   ensure 

     compliance   with   the   aforementioned   stipulations 

     without   fail.     A   further   direction   was   issued   to   all 

     the   States   and   Union   Territories   to   provide 

     supplementary   nutrition   in   the   form   of   a   morning 

     snack and a hot cooked meal to the children in the 

     age   group   of   3   to   6   years,   in   accordance   with   the 

     guidelines   contained   in   the   letter   dated   24th 

     February, 2009 preferably  by 31st  December, 2009. 

     Provision   was   also   made   for   continuance   of   the 

     Nutritional   Programme   for   Adolescent   Girls   and 

     Kishori   Shakti   Yojana   till   such   time   as   a 

     comprehensive             universal         scheme         for         the 

     empowerment   of   adolescent   girls   called   the   Rajiv 

     Gandhi Scheme for the Empowerment of Adolescent 

     Girls is implemented. 

                                                                  14

14.    The   Central   Government,   through   the   Ministry   of 

       Women   and   Child   Development   and   Food   and 

       Nutrition Board Office vide its letter dated 28th July, 

       2009, circulated the Recipe to the State Government 

       (respondent   No.   1)   as   per   new   norms   of   ICDS   for 

       preparation   of   the   food.     It   was   provided   that   the 

       feeding norms ought to have two components in it, 

       to   be   provided   as   supplementary   nutrition   to   the 

       beneficiaries   at   Anganwadis   namely:-   Hot   Cooked 

       Meal   (HCM)   and   Take   Home   Ration   (THR). 

       Directions   were   issued   that   HCM   and   THR   should 

       be   given  in  the  form   of "energy  dense   food  / micro 

       nutrient   fortified   food"   and   should   conform   to   the 

       standards   laid   by   the   Prevention   of   Food 

       Adulteration   Act,   Integrated   Food   Law,   Infant   and 

       Young Child Practices.   The micro nutrient fortified 

       food   was   defined   to   be   the   food   in   which   essential 

       mineral   and   vitamins   are   added   separately   to 

       ensure that minimum dietary requirements are met. 

       It   was   emphasised   that   to   attain   the   required 

                                                               15

       protein content in the food proposed to be supplied, 

       the only source was Soyabean.   The food was to be 

       processed   by   using   Extrusion   Technology   to   draw 

       maximum   results   by   use   of   Soyabean.     The 

       guidelines in the aforesaid letter further emphasised 

       that   since   the   revised   guidelines   laid   major   stress 

       on   micro   nutrient   fortification   of   the   THR,   it 

       required   "expert   technical   supervision"   and   that   it 

       can   be   achieved   by   using   accurate   machines   with 

       precision in measuring the quantity in milligrams. 

15.      It was in response to the directions issued by this 

       Court   from   time   to   time   and   to   implement   the 

       revised   norms   set   by   the   Central   Government   that 

       respondent No. 1, Maharashtra Government passed 

       a resolution           on 24th  August, 2009.   Under  this 

       resolution, the Government not only prescribed the 

       procedure   for   implementing   the   revised   norms   but 

       also   revised   the   rates   in   all   the   categories   of 

       beneficiaries. 

                                                                     16

16.    Based   on   the   above,   an   Expression   of   Interest 

       (in short `EOI')  was taken out by respondent No. 2, 

       the         Commissioner,         i.e.,         Integrated         Child 

       Development Services Scheme, Maharashtra, on 7th 

       December, 2009 for supply of fortified blended food 

       manufactured   through   process   of   extrusion.     In 

       response   to   the   aforesaid   EOI,   the   State 

       Government received 351 applications            for 34 

       districts across the State of Maharashtra. 

17.      The   aforesaid   EOI   was   challenged   by   one   Smt. 

       Nanda   Chandrabhan   Thakur   in   Writ   Petition   No. 

       2588   of   2009   before   a   Division   Bench   of   the 

       Bombay   High   Court.     Primary   challenge   of   that 

       petitioner was to condition No.6 which required the 

       applicant to possess a turn over of     Rs. 1 crore for 

       the   last   three   consecutive   financial   years. 

       Condition No. 6 of the EOI provided as under:-

       "6.   The   eligible   Mahila   Mandal,   Mahila  

       Sanstha,   self   helping   saving   group,   should  

                                                                 17

       attach  a certificate  about producing of the Food  

       or equivalent like Fortified Blended Premix and  

       supplying   the   same   upto   the   Anganwadi   in  

       ICDS   for  the   last   3   consecutive   financial   years  

       having a turn  over of Rs. 1.00 crores. The said  

       certificate   should   be   certified   by   the   Chartered  

       Accountant.   (Year   2006-2007,   2007-2008,  

       2008-2009)."

18.    Upon   consideration   of   the   matter,   the   Division 

       Bench observed that plain language of the condition 

       indicates that only Mahila Mandal, Mahila Sanstha 

       and Self helping Saving Group can participate in the 

       tender   process,   provided   they   qualify   other 

       requirements  in  Clause   6.     It   was   further   observed 

       that one of the requirements of this clause was that 

       the   tenderer   should   attach   a   certificate   about 

       producing   the   specified   food   for   three   consecutive 

       financial   years   (2006-2007,   2007-2008   and   2008-

       2009)   having   a   turnover   of   atleast   one   crore.   The 

       said   certificate   should   be   certified   by   a   Chartered 

       Accountant. 

                                                                 18

19.    The   writ   petition   was   dismissed   with   the 

       observations   that   since   the   petitioners   were   not 

       espousing   the   case   of   Mahila   Mandal   or   Mahila 

       Sanstha or Self helping Saving Group, they were not 

       eligible as per the tender document at all.  Secondly, 

       even if the petitioners were held to be eligible, they 

       did not have a turn over of Rs. 1 crore as required 

       under Clause 6.  The petitioners had also sought to 

       argue   that   the   condition   of   Rs.   1   crore   would 

       deprive   small   time   traders   and   business   persons 

       from   participating   in   the   tender   process.     This 

       submission was also negated by the Division Bench 

       with   the   observation   that   the   criteria   fixed   by   the 

       respondent   is   a   policy   matter   and   is   keeping   in 

       mind all other factors to further the implementation 

       of   child   development   service   scheme.     The   clause 

       was found to be not arbitrary in any manner.  

20.    It appears that the EOI had also given rise to certain 

       agitations   by   some   of   the   Mahila   Bachat   Gats. 

                                                            19

       During   the   pendency   of   these   complaints,   the 

       Government   decided   not   to   proceed   further   and 

       stayed the process under  the EOI on 16th  January, 

       2010.     A   Committee   was   constituted   on   19th 

       January,   2010   to   go   into   the   complaints.     Upon 

       examination   of   the   entire   material,   the   Committee 

       concluded   that   the   Extrusion   Technology   was 

       necessary to produce the food as required under the 

       directions   of   the   Central   Government.     On   5th 

       February,   2010,   the   Committee,   therefore, 

       recommended   that   the   stay   granted   by   the   State 

       Government   may   be   vacated.     The   decision   was 

       communicated   by   respondent   No.   1   to   respondent 

       No. 2 through letter dated 22nd February, 2010.  The 

       tender submitted by the petitioner was rejected.  

21.    This led to the appellant herein filing a Writ Petition 

       No.   1311   of   2010,   seeking   a   direction   that   the 

       appellant be also considered in respect of supply of 

       extruded fortified blended food / energy food under 

                                                                 20

       ICDS Scheme.   However, the aforesaid writ petition 

       was   withdrawn               on   17th  February,   2010   with 

       liberty to approach the Government. 

22.     It is the claim of the appellant that the writ petition 

       was   withdrawn   as   respondent   No.   1   had   itself 

       stayed   the   decision   of   respondent   No.   2   to   award 

       the contract and was reviewing the condition Nos. 6, 

       7 and 8.  Not knowing that the stay order dated 16th 

       July, 2010 had been recommended to be vacated on 

       5th     February,   2010,   the   appellant   made   a 

       representation   to   respondent           Nos.   1   and   2   for 

       consideration   to   supply   the   food   under   the   ICDS 

       Scheme.   As noticed earlier, in view of the vacation 

       of   the   stay   on   22nd  February,   2010,   condition   Nos. 

       6, 7 and 8 remained intact.   We may further notice 

       here   that   in   the   order   dated   22nd  February,   2010, 

       respondent No. 1 had decided as under:-

                                                                       21

       (i)     That   5%   of   the   tender   work   be   reserved   for 

               Mahila Mandal / Mahila Bachat Gat etc., who 

               do not have the Extrusion Technology.

       (ii)    For   this   5%   work   so   reserved,   the   Extrusion 

               Technology is not required.  

23.    However, on 23rd February, 2010, the decision taken 

       in   the   letter   dated   22nd  February,   2010,   was 

       withdrawn.     It   was,   however,   further   provided   that 

       "in   future,   if   some   Mahila   Bachat   Gat   /   Mahila 

       Sanstha   /   Mahila   Mandal   made   production 

       machinery,   set   up   unit   and   shown   their   ability   of 

       making products, then the Commissioner, Ekatmik 

       Bal Vikas Seva Yojana, Navi Mumbai will give them 

       an   opportunity   and   will   purchase   THR   production 

       made by them."  

24.    Thereafter,          the         appellant         submitted          three 

       representations on  26th  February,  2010, 2nd  March, 

       2010   and   4th  March,   2010   requesting   respondent 

                                                                22

       Nos. 1 and 2 to consider them for supply of the food 

       under ICDS Scheme.   It is the case of the appellant 

       that  without considering  these  representations,  the 

       respondent        Nos. 1 and 2 signed an agreement, 

       awarding the contract to respondent Nos. 4 to 6 for 

       a period of one year, with a clause for extension  of 

       two   years.        Ultimately,   in   spite   of   further 

       representations of the appellant, the work order was 

       awarded   to   respondent   Nos.   4   to   6   to   support   the 

       supply of food material forthwith in accordance with 

       the agreement signed on 28th April, 2010.  

25.    Aggrieved by the action of respondent Nos. 1 and 2 

       in awarding the contract to respondent Nos. 4 to 6, 

       the appellant filed a writ Petition No. 4210 of 2010 

       on   25th  August,   2010.     The   High   Court   initially 

       passed   an   order   on   30th  August,   2010   granting 

       interim   relief.     Respondent   Nos.   1   and   2   filed   an 

       application for vacation of stay, the appellant in the 

       reply   to   the   aforesaid   application   stated   that   the 

                                                                   23

       respondent Nos. 4 to 6 have not fulfilled one of the 

       conditions   in   the   original   application   form   namely 

       that   of   applicants   should   submit   the   copies   of   the 

       documents   signed   by   the   notary,   which   included 

       VAT   Clearance   Certificate   as   on   31st  March,   2009. 

       It   was   also   stated   that   the   respondent   Nos.   4   to   6 

       had   wrongly   stated   that   no   tax   was   due   and 

       payable.     Upon   consideration   of   the   entire   matter, 

       the   High   Court   dismissed   the   writ   petition   filed   by 

       the   appellant.     Hence   the   present   Special   Leave 

       Petition. 

26.    We have heard the learned counsel for the parties at 

       length.   Although, very elaborate submissions have 

       been made by the learned counsel for the parties, it 

       would   be   appropriate   to   summarize   the 

       submissions. 

27.    Mr.   Mukul   Rohtagi,   learned   senior   counsel, 

       appearing   for   the   appellant,   submitted   that   the 

                                                            24

condition   Nos.   6,   7,   8   and   9   in   the   EOI   are 

arbitrary.   He further submits that the Government 

order permitted the grant of contract for a period of 

one year.  However, the agreement entered into with 

respondent Nos. 4 to 6 provides that the agreement 

will   remain   valid   for   one   year   and   extendable   for 

next   24   months   from   the   date   of   allotment   of   the 

first dispatch advice  by  the  Commissioner  with the 

same   terms   and   conditions.     Learned   counsel 

submitted   that   since   the   period   of   one   year   has 

expired,   it   would   be   appropriate   to   invite   fresh 

tenders.     Learned   counsel   invited   our   attention   to 

the   Government   Resolution   dated   24th  August, 

2009,   which   clearly   provided   that   as   per   existing 

practice,   the   period   of   supplying   supplementary 

nutrition   food,                             Mahila   Mandal,   Women 

Institutions,   Self   Assistance   Saving   Group   will   be 

for   the   period   of   one   year   only.           Mr.   Rohtagi 

further   invited   our   attention   to   the   Minutes   of   the 

meeting   held   on   5th  February,   2010,   in   view   of   the 

                                                               25

Government   Circular   dated   19th  January,   2010 

regarding   selection   of   tenders.     In   Paragraph   7   of 

the Minutes, it is mentioned that "the agreement for 

the   supply   of   THR   will   be   for   one   year   and   the 

orders   for   supply   will   be   given   for   one   year   only." 

On   the   basis   of   the   above,   it   is   submitted   that 

permitting   the   extension   of   the   contract   for   three 

years   is   contrary   to   the   decisions   taken   by   the 

Competent Authority.   Hence, the contract is liable 

to   be   declared   illegal.     Learned   senior   counsel, 

thereafter,   submitted   that   the   entire   selection 

process   was   suspect.     Having   stayed   the   selection 

process,   it   was  vacated  only  to   show   undue   favour 

to respondent Nos. 4 to 6.  According to the learned 

senior   counsel,   it   would   have   been   much   more 

transparent   if   the   tender   process   was   conducted 

afresh.  Mr. Rohtagi then submitted that even if the 

appellant   is   not   successful   on   the   one   year   issue, 

respondent                   Nos.   4   to   6   still   could   not   be 

selected   as   they   are   not   qualified.     Learned   senior 

                                                          26

counsel   made   a   reference   to   Clause   17   of   the   EOI, 

which reads as under:-

    "All   applicants   should   submit   the   copies   of   the 

     following documents signed by the Notary.

    Certificate   of   District   Industry   Centre,   VAT 

     Registration/CST Registration certificate.

    Validity   Certificate   as   per   Food   Adulteration 

     Prohibition Act, 1954.

    PAN Card.

    ISO   9001   :   2000   Certificate,   H.A.C.C.P. 

     Certificate   for   preparing   extruded   fortified 

     blended/energy food.

    Income tax returns

    VAT clearance certificate (as on 31.3.2009)

    Evidence/proof   to   the   effect   that   production 

     centre   having   permanent   structure   which   is 

     owned   public   acquired   on   agreement   is   in   the 

     possession of the Institution." 

                                                                   27

28.        Mr.   Rohtagi   submits   that   the   VAT   Clearance 

       Certificate   given   by   respondent   Nos.   4,   5   and   6 

       depict the details of tax dues from 1st April, 2006 to 

       31st  March,   2009   as   "Nil".     The   statement   made   is 

       that amount of tax dues is given as per return.  The 

       aforesaid   declaration,   according   to   the   learned 

       senior   counsel   is   not   correct.     It   is   submitted   that 

       the   information   given   by   the   Tax   Department   in 

       response to an enquiry made by the appellant under 

       the   Right   to   Information   shows   that   respondent 

       Nos.   4,   5  and   6  owe   lakhs  of   rupees.     It  is   further 

       submitted   by   Mr.   Rohtagi   that   not   only   the 

       statements made by respondent No. 4 are incorrect 

       but   there   is   concealment   of   the   fact   that   the 

       aforesaid   respondents   were  black   listed  by   the   Tax 

       Department.     Mr.   Rohtagi   submits   that   cumulative 

       effect   of   all   the   aforesaid   facts   would   clearly   show 

       that   the   respondent   Nos.   4   to   6   have   been   shown 

       undue favour by respondent Nos. 1 and 2.  Learned 

       senior   counsel   buttressed   this   submission   on   the 

                                                                   28

       ground   that   conditions   are   clearly   tailor-made   for 

       respondent   Nos.   4   to   6,   to   the   exclusion   of 

       everybody else.  

29.    In   response   to   these   submissions,   Mr.   C.U.   Singh, 

       learned   senior   counsel,   appearing   for   respondent 

       Nos.   1   and   2   submitted   that   there   is   no   condition 

       limiting   the   contract   to   one   year.     In   fact,   it   has 

       always   been   one   year   extendable   by   two   years. 

       Learned   senior   counsel   drew   our   attention   to   the 

       events   leading   to   the   passing   of   the   order   by   this 

       Court   on   22nd  April,   2009.     Mr.   Singh   has   pointed 

       out that the appellant admittedly does not fulfill any 

       of the conditions, i.e., 6, 7, 8 and 9.   The appellant 

       does not have the turn over of over Rs. 1 crore each 

       year   for   the   last   continuous   three   financial   years. 

       This   condition   has   already   been   upheld   by   the 

       Bombay   High   Court   in   Writ   Petition   No.   2588   of 

       2009.     The   appellant   also   does   not  fulfill   condition 

       No. 9 as admittedly, it does  not have a functioning 

                                                         29

unit   for   preparation   of   fortified   blended   nourishing 

food   (premix)   prepared   by   extruded   system. 

Learned  senior  counsel  pointed  out  that  initially  in 

Writ   Petition   No.   1311   of   2010,   the   appellant   had 

challenged   condition   Nos.   6,   8,   13   and   14   of   the 

EOI.     This   writ   petition   was   withdrawn   on   17th 

February,   2010   with   liberty   to   represent   to   the 

Government.     The   present   writ   petition   was   filed 

on 24th  August, 2010 before the Nagpur bench.   In 

this writ petition, none of the tender conditions were 

challenged.     The   appellant   merely   prayed   for   a 

declaration   that   condition   No.   6   be   deemed   to   be 

waived.     Learned   senior   counsel   submits   that   the 

points   urged   by   Mr.   Rohtagi   in   this   Court   were 

never   argued   before   the   High   Court.     Therefore, 

according   to   the   learned   senior   counsel,   the 

submissions of the appellant need to be shut out at 

the   threshold.     It   is   further   submitted   that   the 

representations   submitted   by   the   appellant   and 

others   were   duly   considered.     The   appellant   was 

                                                          30

duly heard.   The contract was given initially for one 

year,   which   was   extendable   for   three   years,   on 

satisfactory   performance   in   the   twelve   months. 

Therefore, the agreement clearly stipulated that the 

work  order   shall   be  for   one   year,   extendable   by   24 

months.     According   to   the   learned   senior   counsel, 

there is no justification for saying that the contract 

was to be limited only to one year.   Learned senior 

counsel   further   submitted   that   under   any 

circumstances, appellant by its own showing has no 

locus   standi   to   challenge   the   grant   of   contract   to 

respondent Nos. 4 to 6.  Mr. Singh points out to the 

submission   made   by   the   appellant   in   I.A.   No.   1   of 

2010   seeking   permission   for   filing   additional 

documents.   In Paragraph 1, the appellant submits 

that   it   had   submitted   the   application   for   supply   of 

ICDS food for all 34 districts of Maharashtra.   It is 

further submitted that all documents as required by 

the   Notice   dated   7th  December,   2010   were   also 

submitted.   The appellant further states that it had 

                                                                                 31

                       complied   with   all   conditions   mentioned   in   the 

                       application,   excepting   conditions   6,   7   and   8   of   the 

                       application form. Mr. Singh submits that in the face 

                       of this admission, the appellant does not deserve to 

                       be heard at all.   He has relied on two judgments of 

                       this   Court   in   the   case   of  Glodyne   Technoserve 

                       Limited      Vs.    State
                                                      of   Madhya   Pradesh   &   Ors.1

                       and Larsen and Toubro Limited & Anr. Vs.  Union 

                       of
                           India & Ors.2
                                            , in support of the submissions that 

                       the   tender   conditions   have   to   be   strictly   complied 

                       with by all the candidates.   

                30.    Mr. P.S. Patwalia, learned senior counsel, appearing 

                       for respondent Nos. 4 to 6, submitted that it was on 

                       the   representations   made   by   various   associations 

                       and   the   appellant   that   the   tender   process   was 

                       stayed.     Upon   consideration   of   the   entire   material, 

                       the two letters    dated 22nd February, 2010 and 23rd 

                       February,   2010   were   issued.     Learned   senior 

1 (2011)  5 SCC 103

2 (2011)  5 SCC 430

                                                                         32

counsel   further   submitted   that   although   in   the 

letter dated 22nd  February, 2010, it was stated that 

the   period   of   the   tender   would   be   one   year,   the 

same was withdrawn the next date.   Thereafter, the 

respondent   Government   reverted   back   to   the   EOI. 

It is further  submitted  that respondent  Nos. 4  to 6 

had already been supplying hot meals for a number 

of   years.     The   condition   with   regard   to   supply   of 

THR   was   added   pursuant   to   the   orders   passed   by 

this   Court,   as   noticed   earlier.     In   any   event,   it   is 

submitted   by   the   learned   senior   counsel   that   the 

condition of one year relates only to hot food, it has 

no connection to the supply of THR. The respondent 

Nos.   4   to   6   are   supplying   only   THR.     It   is   further 

submitted that the Sales Tax objection raised by the 

appellant          is         wholly         without         any          basis. 

On 31st  March, 2009, there was no Sales Tax dues. 

This is evident from the assessment made in favour 

of  the   respondents,   which   was   much  later   in   point 

of time.           As on 31st  March, 2009, the statement 

                                                           33

made   by   the   respondents   was   in   accordance   with 

the   return   filed.     Learned   senior   counsel   also 

submitted   that   these   arguments   were   not   raised 

before   the   High   Court.     On   the   question   of   black 

listing, it is submitted that the recommendation for 

black   listing   was   based   on   an   incident   in   the   year 

2004.     This   was   subsequently   explained   and   there 

was no black listing.  Mr. Patwalia also emphasised 

that the appellant is even otherwise ineligible.   It is 

not in possession of a unit.   A reference is made in 

this connection to the Lease Agreement executed by 

the   appellant   on   24th  December,   2009.     In   this 

agreement,   the   appellant   would   be   permitted   to 

lease   out   an   existing   manufacturing   facility. 

Therefore,                on 7th December, 2009, relevant 

for the purpose of EOI, the appellant did not have a 

manufacturing   unit.     Again   referring   to   the   Joint 

Venture   Agreement,   entered   into   by   the   appellant 

with a third party, it is pointed out that it is without 

any definite terms and conditions, no consideration 

                                                                 34

       was   so   ever   provided   for   the   Joint   Venture 

       Agreement.     Mr.   Patwalia   further   submits   that   the 

       appellant   is   trying   to   mislead   the   Court   by   relying 

       on   an   Analysis   Certificate   dated   25th  December, 

       2009,   which   shows   that   the   appellant   had 

       manufactured   fortified   blended   sukhadi   premix   on 

       12th  December,   2009.     Since   the   appellant   did   not 

       have a manufacturing unit, the certificate is clearly 

       procured   for   the   purposes   of   this   case.     Learned 

       senior   counsel,   therefore,   submits   that   the   High 

       Court rightly dismissed the writ petition filed by the 

       appellant   herein.     In   reply   to   the   submissions, 

       Mr.   Rohtagi   submitted   that   the   appellant   is 

       concerned   only   with   transparency   which   must   be 

       observed   in   any   tender   process.     The   appellant   is 

       only   desirous   of   getting   an   opportunity   to 

       participate in the tender process. 

31.    We   have   considered   the   submissions   made   by   the 

       learned   counsel   for   the   parties.     We   are   of   the 

                                                                35

considered   opinion   that   the   writ   petition   has   been 

rightly   dismissed   by   the   High   Court   after 

examination   of   the   entire   issue.     The   High   Court 

concluded   that   the   appellant   failed   to   satisfy   the 

eligibility   criteria   as   contained   in   Clause   6,   as 

noticed   earlier.     The   aforesaid   clause   requires   that 

the   tenderer   should   have   produced   the   specified 

food   for   the   last   three   consecutive   years   and 

supplied   the   same   to   Anganwadi's   in   ICDS.   Since 

the   appellant   did   not   possess   a   suitable 

manufacturing   unit,   the   appellant   would   be 

rendered   ineligible   on   this   score   alone.   As   pointed 

out   by   Mr.   C.U.   Singh,   the   appellant   admitted   in 

terms   in   its   pleadings   in   I.A.   No.   1   of   2010   that   it 

does   not   satisfy   conditions   6,   7   and   8.     We   could 

have,   therefore,   dismissed   the   appeal   solely   on   the 

ground   that   the   appellant   had   made   a   voluntary 

admission   by   which   it   was   bound.     However, 

keeping   in   view   the   importance   of   the   issues 

involved, i.e., the provision of supplementary diet to 

                                                                  36

       a segment of the Indian population, which is either 

       severely undernourished or in need of extra calories, 

       we   have   chosen   to   examine   the   entire   matter   to 

       ensure that the Scheme is being implemented in its 

       letter and spirit by all the participating agencies. 

32.    In our view, the High Court also correctly observed 

       that   the   validity   of   the   eligibility   criteria   contained 

       in Clause 6 of the tender dated 7th  December, 2009 

       has   already   been   upheld   by   the   Division   Bench 

       whilst   dismissing   the   Writ   Petition   No.   2588   of 

       2009.     The   High   Court   also   correctly   negated   the 

       submissions   of   the   appellant   that   in   spite   of   not 

       having  a  unit of its own, the appellant  ought to  be 

       declared eligible.  The High Court also found that in 

       the facts and circumstances of the case, it was only 

       respondent Nos. 4 to 6, who were suitable for grant 

       of contract.  

                                                                       37

33.    We   are   also   unable   to   accept   the   submission   of 

       Mr.   Rohtagi   that   the   original   Government   decision 

       had   limited   the   period   of   contract   to   one   year.     In 

       fact, as demonstrated by the learned senior counsel 

       for   the   respondents,   the   Government   decision   as 

       well   as   tender   condition   clearly   stipulated   that   the 

       contract   would   be   initially   for   one   year.     Upon 

       completion   of   one   year,   the   work   of   the   successful 

       candidate would be reassessed. In case, it is found 

       that   the   performance   has   been   satisfactory,   the 

       tender   shall   be   extended   for   a   period   of   two   more 

       years. 

34.    We are also of the considered opinion that the food, 

       which is to be supplied to the recipients as a part of 

       the   supplementary   nutrition   programme   has   to   be 

       prepared   in   the   manner   prescribed   by   the 

       Government   for   safety   and   nutrient   composition   of 

       the   food.     It   can   not   be   left   to   uncertainties   of   the 

       machinery available with individual manufacturers. 

                                                                 38

       The successful supplier is duty bound to necessarily 

       comply   with   all  the   specifications   laid  down  by   the 

       Government in its norms.   Mr. C.U. Singh and Mr. 

       Patwalia, in our opinion, by referring to the various 

       documents,   have   clearly   demonstrated   that   the 

       appellant is not eligible at all to be even considered 

       in the tender process.   It has also been pointed out 

       that   all   the   objections   raised   by   the   appellant   and 

       other      Mahila Mandal / Mahila Sanstha / Mahila 

       Bachat   Gat   etc.   etc.     were   duly   considered   by   the 

       Government.   This is evident from the letters dated 

       22nd February, 2010 and           23rd February, 2010. 

35.    We   are   also   not   impressed   by   the   submission   of 

       Mr. Rohtagi that the condition of having Rs. 1 crore 

       over   the   three   previous   consecutive   years,   is   either 

       arbitrary   or   whimsical.     Mr.   C.U.   Singh   by   making 

       detailed reference to the counter affidavit has shown 

       that   in   the   State   of   Maharashtra,   there   are   34 

       districts having an annual value in terms of at-least 

                                                                   39

       Rs. 1.7 crores per district.   Therefore, the condition 

       of asking for minimum Rs. 1 crore turn over for the 

       last three years can not be said to be arbitrary.   In 

       fact, the condition would be of utmost importance.  

36.    We   also   find   substance   in   the   submission   of 

       Mr.   C.U.   Singh   and   Mr.   Patwalia   that   EOI   had 

       deliberately   stressed   on   the   need   of   precise 

       measurements for the preparation of the food.   The 

       supplier is required to provide a fine mix of all kinds 

       of   ingredients   including   the   revised   intake   of 

       proteins   and   calories   to   the   precise   level.     In   fact, 

       the level of precision is earmarked for each kind of 

       food.     The   concept   behind   the   same   can   not   be 

       permitted to be demonized by referring to it as food 

       prepared   by   "automated   machines".   The   procedure 

       adopted   is   necessary   to   ensure   that   there   is   "zero 

       infection" in the food which is going to be consumed 

       by   infants   and   the   children   who   are   already   under 

       nourished.     It   cannot   be   over   emphasised   that, 

                                                                 40

       since   the   beneficiaries   of   the   Dense   Energy   Food 

       and   Fortified   Blended  Mixture   are   infants   from   the 

       age group of 6 months to 3 years and pregnant and 

       lactating   mothers,   it   was   all   the   more   desirable   to 

       have fully automated plants. Such procedure avoids 

       the   use   of   human   hands   in   processes   like   - 

       handling, cleaning, grinding, extrusion, mixing etc., 

       all of which are done automatically.  

37.    We are of the considered opinion that the aforesaid 

       considerations   can  not  be  said   to  be   extraneous  to 

       the purpose for which EOI was floated.  

38.    Taking   into   consideration,   all   the   facts   and 

       circumstances of the case, we find the appeal to be 

       wholly   devoid   of   any   merit   and   is,   therefore, 

       dismissed.   

                                          41

                     ...................................J.

                                [Altamas Kabir]

                    ...................................J.

                        [Surinder   Singh   Nijjar]

New Delhi;

August 19, 2011.

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