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.
