Shagun Mahila Udyogik
Sahakari Sanstha Maryadit Vs. State of Maharashtra & Ors.
J U D G M E N T
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.
may notice here the essential facts, which would have a bearing on the determination
of the issues raised in this appeal.
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.
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 specified food was proposed to be supplied through
AWCS. Accordingly, around fourteen lakhs Anganwadi Centres were proposed to be
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 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
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 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
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:-
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.
efforts shall be made that all SC/ST hamlets/habitations in the country have AWCS
as early as possible.
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.
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.
State Governments/Union Territories shall use the Pradhanmantri Gramodaya Yojna
fund (PMGY) in addition to the state allocation and not as a substitute for
far as possible, the children under PMGY shall be provided with good food at
the Centre itself.
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
shall not be used as an eligibility criteria for ICDS.
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 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).
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
Central Government and the States/Union Territories shall ensure that all amounts
allocated are sanctioned in time so that there is no disruption whatsoever in the
feeding of children.
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.
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
falling within the age group of 6 months to 3 years,
and lactating women and
underweight children within the age group of 6 months to 3 years.
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 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.
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 (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
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."
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 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
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.
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
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 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.
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.
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
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 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)."
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.
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.
appears that the EOI had also given rise to certain agitations by some of the Mahila
Bachat Gats. 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.
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 ICDS Scheme. However, the aforesaid
writ petition was withdrawn on 17th February, 2010 with liberty to approach the
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:-
5% of the tender work be reserved for Mahila Mandal / Mahila Bachat Gat etc.,
who do not have the Extrusion Technology.
this 5% work so reserved, the Extrusion Technology is not required.
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."
the appellant submitted three representations on 26th February, 2010, 2nd March,
2010 and 4th March, 2010 requesting respondent 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.
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 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.
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.
Mukul Rohtagi, learned senior counsel, appearing for the appellant, submitted that
the 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 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 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."
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 ground that conditions are clearly tailor-made for respondent
Nos. 4 to 6, to the exclusion of everybody else.
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 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 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 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.and Larsen and Toubro Limited & Anr.
Vs. Union of India & Ors. in support of the submissions that the tender conditions
have to be strictly complied with by all the candidates.
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 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 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 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.
have considered the submissions made by the learned counsel for the parties. We
are of the 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 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
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
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.
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. 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.
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 Rs. 1.7 crores per district. Therefore,
the condition of asking for minimum Rs. 1 crore turn over for the last three
years cannot be said to be arbitrary. In fact, the condition would be of utmost
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 cannot 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, 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.
are of the considered opinion that the aforesaid considerations cannot be said to
be extraneous to the purpose for which EOI was floated.
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.
[Surinder Singh Nijjar]
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