Bombay High Court
Shriram Mahila Bachat Gat Gevrai ... vs The Union Of India And Others on 11 July, 2016
Bench: S.V. Gangapurwala
1
W.P.3359.16 with connected W.Ps.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3359 OF 2016
1. Shriram Mahila Bachat Gat,
Gevrai, Tq. Gevrai, Dist. Beed,
Through its President,
Smt. Surekha Vishnupant Ramdasi,
Age : 38 Years, Occu. : Household,
R/o. : Gevrai, Tq. : Gevrai, Dist. : Beed
2.
Kankaleshwar Mahila Bachat Gat,
Beed, Tq. Dist. : Beed,
Through its President,
Smt. Rekha Jadhav,
Age : 39 Years, Occu. : Household,
R/o. : Beed, Tq. Dist. : Beed
3. Priyadarshani Mahila Bahat Gat,
Beed, Tq. Dist. : Beed,
Through its President,
Smt. Sangita Jadhav,
Age : 37 Years, Occu. : Household,
R/o. : Beed, Tq. Dist. : Beed
4. Maheshwari Mahila Bachat Gat,
Dhatur, Tq. : Dhatur, Dist. : Beed,
Through its President,
Smt. Meena Suryapal Tornewal,
Age : 38 Years, Occu. : Household,
R/o. Dhatur, Tq. : Dhatur, Dist. : Beed
5. Matoshri Mahila Bachat Gat,
Parli, Tq. : Parli, Dist. : Beed,
Through its President,
Smt. Suchita Wankhede,
Age : 36 Years, Occu. : Household,
R/o. : Parali, Tq. : Parali, Dist. : Beed
6. Damini Mahila Bachat Gat,
Adas, Tq. Kej, Dist. : Beed,
Through its President,
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W.P.3359.16 with connected W.Ps.
Smt. Swarupa Deshmukh,
Age : 37 Years, Occu. : Household,
R/o. : Adas Tq. Kej, Dist. Beed
7. Renuka Mahila Bachat Gat,
Majalgaon, Taluka : Beed,
Through its President,
Smt. Uttara Balasaheb Kodaskar,.
Age : 40 Years, Occu. : Household,
R/o. Majalgaon, Taluka : Majalgaon,
Dist. : Beed
8.
Vasundhara Mahila Bachat Gat,
Ganesh Nagar, Ambejogai,
Through its President,
Sau Jyoti Kalyan Bhise,
Age : 32 Years, Occu. : Household,
R/o. : Jogeiwali Ambejogai,
Dist. : Beed
9. Radhika Mahila Bachat Gat,
Tisgaon, Tq : Pabhardi, Dist. : Ahmednagar,
Through its President,
Smt. Yogita Bhausaheb Ghorpade,
Age : 35 Years, Occu. ; Household,
R/o. : Tisgaon, Tq. Pabhardi, Dist. : Ahmednagar
10. Ashtavinayak Mahila Swayam Sahayata Bachat Gat,
Sangamner, Dist. : Sangamner,
Through its secretary,
Smt. Sangita Vasantrao Gaikwad,
Age : 43 Years, occu. ; Household,
R/o. : Sangamner, Dist. : Ahmednagar
11. Shree Ganesh Mahila Swayam Sahayata Bahcat Gat,
Through its Secretary,
Kamal Ashok Chavan,
Age : 42, Occu. : Household,
R/o. : Shrigonda, Taluka : Shrigonda,
Dist. : Ahmednagar
12. Prerna Mahila Bachat Gat,
Through its President,
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W.P.3359.16 with connected W.Ps.
Smt. Chandrakala Namdeo Auti,
Age : 54, Occu. : Household,
R/o. : Parner, Taluka ; Parner,
District : Ahmednagar
13. Nathbaba Mahila Balvikas Audyogic
Utpadak Sahkari Santha Lekurwadi Aakhada,
Through its President,
Smt. Sunita Prabhakar Kolekar,
Age : 39, Occu. ; Household,
R/o. : Newasa, Taluka and District ; Ahmednagar
14. Siddhivinayak Mahila Mandal Ahmednagar,
Through its Secretary,
Smt. Jyoti Dilip Mukhedkar,
Age : 42 Years, Occu. : Household,
R/o. Nav Nagpur Ahmednagar, Taluka and
District : Ahmednagar
15. Amanat Swayam Sahayata Mahila Bachat Gat,
Shrirampur, Through its President,
Sau. Dilarabano Azim Khatib,
Age : 34 Years, Occu. : Household,
Taluka : Shrirampur, District ; Ahmednagar.. Petitioners
Versus
1. The Union of India,
Through its Principal Secretary,
Women and Child Welfare Department,
New Delhi
2. The State of Maharashtra,
Through its Principal Secretary,
Women and Child Welfar Department,
Mantralaya, Mumbai
3. The Commissionerate of Integrated Child
Development Services Scheme,
Maharashtra State, CBD Belapur, Navi Mumbai
4. The Commissioner of Women and Child Development,
28 Queens Garden, Maharashtra State, Pune
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W.P.3359.16 with connected W.Ps.
5. The Collector,
Beed, Dist. : Beed
6. The Collector,
Ahmednagar, District : Ahmednagar .. Respondents
Shri R. N. Dhorde Senior Advocate i/b Shri Lalitkumar S. Mahajan,
Advocate for Petitioners.
Shri S. B. Deshpande, A. S. G. for Respondent No. 1.
Shri V. D. Hon, Senior Advocate for Respondent Nos. 2 to 6.
ig WITH
WRIT PETITION NO. 3387 OF 2016
1. Shri Radhe Mahila Bachat Gat,
Lambola, Tq. ; Shahada, Dist. : Nandurbar,
Through its Chairman,
Smt. vijayaben Narsai Patil,
Age : 35, Occu. : Household,
R/o. : Lambola, Tq. : Shahada, Dist. : Nandurbar
2. Saraswati Mahila Bachat Gat,
Thanepada, Tq. Dist. : Nandurbar,
Through its Chairman,
Smt. Asha Kashinath Pawar,
Age : 39 Years, Occu. ; Household,
R/o. : Thanepada, Tq. Dist. : Nandurbar
3. Jay Yogeshwar Mahila Bachat Gat,
Lambola, Tq. : Shahada, Dist. : Nandurbar,
Through its Chairman,
Smt. Sumanbai Devidas patil,
Age : 38, Occu. : Household,
R/o. : Lambola, Tq. : Shahada, Dist. : Nandurbar
4. Rani Kajal Mahila Bachat Gat,
Kathi, Tq. : Akkalkuwa,
District : Nandurbar,
Through its Secretary,
Smt. Hansa Inesh Tadvi,
Age : 40 years, Occu. : Household,
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W.P.3359.16 with connected W.Ps.
R/o. ; Kathi, Tq. : Akkalkuwa,
R/o. : Kathi, Tq. : Akkalkuwa,
District : Nandurbar
5. Mahakali Mata Mahila Bachat Gat,
Bedapada, Tq. : Taloda, Dist. : Nandurbar,
Through its Chairman,
Smt. Jumabai Mohansing Walvi,
Age : 42, Occu. : Agriculture,
R/o. : Bedapada, Tq. : Taloda, Dist. : Nandurbar
6. Akruti Mahila Bachat Gat,
Ampada, Tq. Navapur, Dist. : Nandurbar,
Through its Chairman,
Smt. Lalita Saul Gavit,
Age : 35 Years, Occu. : Household,
R/o. Ampada, Tq. : Navapur, Dist. : Nandurbar
7. Yaha Rupla Mahila Mandal Kakadda,
Tq. : Dhadgaon, Dist. : Nandurbar,
Through its Chairman,
Smt. vijubai Vikram Padvi,
Age : 40 Years, Occu. : Household,
R/o. : Kakadda, Tq. : Dhadgaon, Dist. : Nandurbar
8. Adarsh Mahila Bahcat Gat,
Akkalkuwa, Tq. : Akkalkuwa, Dist. : Nandurbar,
Through its Chairman,
Smt. vishalya Gulabsing Padvi,
Age : 38 Years, Occu. : Household,
R/o. : Akkalkuwa, Tq. : Akkalkuwa, Dist. : Nandurbar
9. Yaha Mogi Satpuda Mahila Mandal,
Surwani, Tq. ; Akrani, Dist. : Nandurbar,
Through its chairman Gomtibai Ratan Padvi,
Age : 42, Occu. : Household,
R/o. Survani, Taluka : Akrani, District : Nandurbar
10. Shabarimata Mahila bachat Gat Kanjala,
Taluka : Akkalkuwa, Dist. ; Nandurbar,
Through its Chairman
11. Aadishakti Swayamsahayta Mahila Bachat Gat,
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W.P.3359.16 with connected W.Ps.
Dhule, Tq. Dist. : Dhule,
Through its Chairman,
Smt. Mangala Bhikan Shinde,
Age : 40, Occu. : Household,
R/o. : Dhule, Tq. Dist. : Dhule
12. Vikas Mahila Bachat Gat,
Nizampur, Tq. ; Sakri, Dist.: Dhule,
Through its Chairman,
Smt. Vanitabai Suresh Bedse,
Age : 37 Years, Occu. : Household,
R/o. : Nizampur, Tq. : Sakri, Dist. : Dhule
13. Sonal Mahila Mandal,
Dhuel, Tq. Dist. : Dhule,
Through its Chairman,
Smt. Urmila Omprakash Gindodiya,
Age : 50 Years, Occu. : Household,
R/o. : Dhule, Tq. Dist. : Dhule
14. Amrut Swayamsahayta Mahila Bachat Gat,
Dhule, Tq. Dist. : Dhule,
Through its Vice Chairman,
Smt. Chetna Atul Modi,
Age : 30 Years, Occu. : Household,
R/o. : Dhule, Tq. Dist. : Dhule
15. Narishakti Swayamsahayta Mahila Bachat Gat,
Dhule, Tq. Dist. : Dhule,
Through its Chairman,
Smt. Komal Jagdish Modi,
Age : 65 Years, Occu. : Household,
R/o. : Dhule, Tq. Dist. : Dhule .. Petitioners
Versus
1. The Union of India,
Through its Principal Secretary,
Women and Child Welfare Department,
New Delhi
2. The State of Maharashtra,
Through its Principal Secretary,
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W.P.3359.16 with connected W.Ps.
Women and Child Welfar Department,
Mantralaya, Mumbai
3. The Commissionerate of Integrated Child
Development Services Scheme,
Maharashtra State, CBD Belapur, Navi Mumbai
4. The Commissioner of Women and Child Development,
28 Queens Garden, Maharashtra State, Pune
5. The Collector,
Nandurbar, Dist. : Nandurbar
6. The Collector,
Dhule, District : Dhule .. Respondents
Shri R. B. Raghuwanshi Senior Advocate i/b Shri D. S. Bagul,
Advocate for Petitioners.
Shri S. B. Deshpande, A. S. G. for Respondent No. 1.
Shri V. D. Hon, Senior Advocate for Respondent Nos. 2 to 6.
WITH
WRIT PETITION NO. 3603 OF 2016
Ekta Mahila Bachat Gat,
Through its Secretary,
Smt. Mamata Darshan Bodse,
Age : 26 Years, Occupation : Business,
Resident of at post Lasur Station,
Taluka : Gangapur, District : Aurangabad .. Petitioner
Versus
1. Union of India,
Through its Secretary,
Women and Child Welfare Department,
New Delhi
2. State of Maharashtra,
Through its Secretary,
Women and Child Welfar Department,
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W.P.3359.16 with connected W.Ps.
Mantralaya, Mumbai
3. The Commissioner,
I.C.D.S. Belapur,
New Mumbai .. Respondents
Shri Anil S. Bajaj, Advocate for Petitioners.
Shri S. B. Deshpande, A. S. G. for Respondent No. 1.
Shri V. D. Hon, Senior Advocate for Respondent Nos. 2 and 3.
ig WITH
WRIT PETITION NO. 3609 OF 2016
Ambika Mahila Bachat Gat,
Satara parisar, Aurangabad,
Through its President,
Smt. ; Minal W/o. Gopikishan Rathi,
Age : 40 Years, Occu. : Household,
R/o. : Satara parisar, Aurangabd,
District : Aurangabad .. Petitioner
Versus
1. The Union of India,
Through its Principal Secretary,
Women and Child Welfare Department,
New Delhi
2. The State of Maharashtra,
Through its Principal Secretary,
Women and Child Welfar Department,
Mantralaya, Mumbai
3. The Commissionerate of Integrated Child
Development Services Scheme,
Maharashtra State, CBD Belapur, Navi Mumbai
4. The Commissioner of Women and Child Development,
28 Queens Garden, Maharashtra State, Pune
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W.P.3359.16 with connected W.Ps.
5. The Collector,
Aurangabd, Dist. : Aurangabad .. Respondents
Shri V. P. Latange, Advocate for the Petitioner.
Shri S. B. Deshpande, A. S. G. for Respondent No. 1.
Shri V. D. Hon, Senior Advocate for Respondent Nos. 2 to 5.
WITH
WRIT PETITION NO. 4056 OF 2016
1. Shri Swansevi Mahila Bachat Gat,
Through its Secretary namely
Sau Anjali Subhash Kshirsagar,
Age : about 30 Years, Occcu. : Household,
Having its address at Gut No. 10,
Chauka, Aurangabad-Jalgaon Road, Tal
and Dist. : Aurangabad
2. Girija Mahila Bachat Gat,
Through its Secretary namely
Sau Sanjivani Sudhakar Sonawane,
Age : about 51 Years, Occu. : Household,
Having its address at Gut No. 10,
Chauka, Aurangabad-Jalgaon Road, Tal
and Dist. : Aurangabad .. Petitioners
Versus
1. The Union of India,
Through its Principal Secretary,
Ministry of Women and Child Welfare,
New Delhi-01
2. The State of Maharashtra,
Through its Secretary,
Women and Child Welfare,
Mantralaya, Mumbai 32
3. The Commissioner,
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W.P.3359.16 with connected W.Ps.
Integrated Child Development Scheme,
Raigat Bhavan, CBD, Belapur, Navi Mumbai
4. The Commissioner, Women and Child Development,
28 Queens Garden, Maharashtra State, Pune
5. The District Collector and Chairman,
District Level Ahara Committee at Aurangabd,
Tq. and Dist. : Aurangabad
6. The Zilla Parishad, Aurangabad,
Through its Chief Executive Officer,
At aurangabad, Tq. and Dist. : Aurangabad,
7. Deputy Chief Executive Officer of Zilla
Parishad and the Secrtary of District Level
Ahara Committee at Aurangabad,
Tq. and Dist. : Aurangabad .. Respondents
Shri Ravindra B. Narvade Patil, Advocate for Petitioners.
Shri S. B. Deshpande, A. S. G. for Respondent No. 1.
Shri V. D. Hon, Senior Advocate for Respondent Nos. 2 to 5.
WITH
WRIT PETITION NO. 4944 OF 2016
1. Parivartan Mahila Sevabhavi Sanstha,
Through its Secretary,
Yamuna Babasaheb Kute,
Age ; 50 Years, Occu. : Household an Social Work,
R/o. : Maharashtra Bank Colony,
Beed, Tq. and Dist. : Beed
2. Yashodhara Mahila Bachat Gat,
Beed, Tq. and Dist. : Beed,
Through its President,
Viajya Bhimrao Wadmare,
Age : 50 Years, Occu. : Household and Social Work,
R/o. : Panchasheel Nagar, Beed,
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W.P.3359.16 with connected W.Ps.
Tq. and Dist. : Beed .. Petitioners
Versus
1. The State of Maharashtra,
Through Secretary,
Women and Child Development Department,
Mantralaya, Mumbai - 32
2. The Commissioner,
Integrated Child Development Services Scheme,
Maharashtra State, 1st Floor, Raigad Bhavan,
Rear Wing, CBD, Belapur, Navi Mumbai
3. The District Child Development Project Officer /
Nodal Officer .. Respondents
Shri G. R. Syed, Advocate for Petitioners.
Shri V. D. Hon, Senior Advocate for Respondent Nos. 1 to 3.
CORAM : S. V. GANGAPURWALA AND
K. K. SONAWANE, JJ.
Reserved on : 06/05/2016
Pronounced on : 11/07/2016
JUDGMENT (Per S.V.Gangapurwala,J.)
1. The petitioners in all these writ petitions
are the mahila bachat gats, mahila mandals, self help
groups run by ladies. The petitioners in all these
writ petitions assail the tender notice inviting
request for proposals for supply of Energy Dense
Micronutrient Fortified Extruded Blended Bal Aahar,
Energy Dense Micronutrient Fortified Extruded Blended
W.P.3359.16 with connected W.Ps.
Sheera, Energy Dense Micronutrient Fortified Extruded
Blended Nutri-rich Sevai and Energy Dense
Micronutrient Fortified Extruded Blended Upma. The
challenge to the said tender notice in all these
petitions is based on similar grounds, as such, to
avoid rigmarole same are decided by a common
judgment.
2. Mr. ig R. N. Dhorde, Senior Advocate, Mr.
Raghuwanshi, Mr. Bajaj, Mr. Bagul the learned
Advocates for respective petitioners have canvassed
their submissions. According to them the integrated
child development service scheme is being implemented
by the Department of Women and Child Development,
Government of Maharashtra. The said scheme intends to
cover all children within the age group 0 - 6 months,
pregnant women and lactating mothers and the nutrition
is to be supplied through Anganwadi Centres.
According to the learned counsels, after considering
the report submitted by the Commission the Apex Court
passed an order on 07.10.2004 in Writ Petition (Civil)
No. 196 of 2001 stating that the contractor shall not
be used for supply of nutrition in Anganwadi and
preferably ICDS fund shall be spent by making use of
village communities, self help groups and mahila
mandals for buying of grains and preparation of meals.
According to the petitioners, pursuant to the order
dated 07.10.2004 passed by the Apex Court the
Respondent No. 2 issued a Government Resolution dated
28.10.2005 authorizing district level committee to
W.P.3359.16 with connected W.Ps.
select and join local self help groups as well as
mahila bachat gats for supply of supplementary
nutrition. The Apex Court again on 13.12.2006
directed to allot the work of supply of supplementary
nutrition through local self help groups and further
directed decentralization. The Apex Court again vide
order dated 22.04.2009 agreed to the revised nutrition
norms, however, continued the earlier orders dated
07.10.2004 and 13.12.2006.
ig The State Government again
on 24.08.2009 passed Resolution and increased the
price rates of supplementary nutrition and further
clarified that supply of ready to cook food mix shall
be done under superintendence of Collectorate at
district level. The Respondent No. 4 i.e.
Commissioner of Women and Child Development,
Maharashtra State constituted committees in all
districts throughout Maharashtra under the
chairmanship of the Collector of respective districts.
Thereafter the State Government formed 553 Blocks
throughout the State of Maharashtra. Out of 553
Blocks the district level committee selected local
bachat gats in 378 Blocks and out 378 Blocks the
bachat gats/ mahila mandals are supplying the
supplementary nutrition in 314 Blocks. The tenders
are floated in the year 2013 for a period of 3 years
and the work was allotted to the petitioners in March,
2014. The learned counsel further submits that,
initially the respondents directed the petitioners to
install roaster technology. The petitioners by
spending Rupees 20-22 lacs installed the roaster
W.P.3359.16 with connected W.Ps.
technology machines. The learned counsel further
submits that on 31.05.2014 the State Government filed
affidavit before the Apex Court and accepted the
decentralization process and pointed out that the
district level committee has been constituted for
selection of local village communities, women self
help groups and bachat gats in June, 2013. The
learned counsel submits that, the respondents again
directed the ig petitioners to install extrusion
technology machines (fully automatic plant). By
spending Rupees 50 - 60 lacs the petitioners have
installed the extrusion technology plant also.
3. The learned counsel for the petitioners
submits that, in spite of the directions given by the
Apex Court regarding decentralization of work through
bachat gats so also the Government Resolution dated
28.10.2005 and 24.08.2009 still the respondents 2, 3
and 4 in the year, 2014 published only one tender for
34 districts and invited applications for all 34
districts by a common tender. The same was assailed
in writ petition bearing number 4672 of 2014. This
Court under its interim order in said Writ Petition
No.4672/2014, directed not to open on line bids and
shall not continue the further process. Accordingly
it is stated to have not been further processed.
4. It is further submitted by the learned
counsel for the petitioners that, the Apex Court on
01.09.2014 had shown its dissatisfaction in
W.P.3359.16 with connected W.Ps.
implementing the orders passed by it in respect of
decentralization against the State of Rajasthan. It
is further submitted that, the respondent No. 3 in
contravention of Government Resolution dated
28.10.2005 constituted tender committee on 07.11.2015.
The Additional Chief Secretary (Finance) was the
President of the meeting and had instructed to delete
eligibility criteria of 25% of estimated cost of work
in one year. The Principal Secretary also consented,
however, considering the large number of eligible
bachat gats, the term and condition is kept intact.
On 17.02.2016 the Commissioner submitted parawise
comments on the pre-final report submitted by the
committee. The commissioner specifically stated that
order of the Apex Court is to allot work at local
level and even there is a affidavit filed by the State
Government before the Apex Court about allocation of
work at local level. As different stands are taken
by the different departments regarding allocation of
the work at local level, the Hon'ble Chief Minister
directed to place the matter before the Cabinet.
According to the petitioners, as per business rules
the matter was referred to the Department of
Industries for opinion. The Department of Industries
on 22nd February, 2016 prepared a short note and
opined that instead of appointing one supplier in each
Block, 2 or 3 suppliers should be appointed for one
Block so that more eligible local self help groups,
bachat gats will get chance to supply T.H.R. The
Principal Secretary (Industries) also opined that,
W.P.3359.16 with connected W.Ps.
objective can best be achieved by involving local
groups and village communities at the grampanchayat
level or at most cluster of villages. The Additional
Chief Secretary (Finance) vide his initial note agreed
with the opinion given by the Department of
Industries and stated to mention the opinion of the
said department in the process and to follow the
orders of the Apex Court to involve village
communities.
5. The petitioners submit that, the meeting of
the Cabinet was held on 23rd February, 2016. The
proposed Draft Government Resolution dated 25.02.2016
was also placed for consideration. The Cabinet
unanimously agreed with the opinion given by the
Department of Industries and Department of Finance and
further resolved to publish the Government Resolution.
As per the Maharashtra Government Rules of Business
more particularly Rule 27 (1) (2) (3) and Rule 28 the
Secretary of the concerned department along with other
officers were present in the meeting and secretary has
recorded the decision of the Cabinet in writing,
signed it including the other officers. The learned
counsels empathetically submit that, in view of the
Cabinet decision the Government Resolution dated
25.02.2016 was published. The said Government
Resolution is in conformity with the directions of the
Apex Court dated 07.10.2004, 13.12.2006, 22..04.2009
and 01.09.2014 in respect of decentralization. The
said Government Resolution is published after Cabinet
W.P.3359.16 with connected W.Ps.
decision. Same is clear as per Clause 4 of the said
Government Resolution. The learned counsel for the
petitioners strenuously contend that without calling
any fresh Cabinet Meeting abruptly for the reasons
best known to Principal Secretary, The Women and
Child Welfare Department published Government
Resolution dated 29.02.2016 and purportedly revoked
Government Resolution dated 25.02.2016 and issued new
instructions and the impugned tender.
ig The said action
of the respondent No. 2 is nothing but an abuse of the
power, process and the political machinery under the
garb of policy decision. The Government Resolution
dated 29.02.2016 does not speak of any Cabinet
decision as specifically referred to in the Government
Resolution dated 25.02.2016. The learned counsel
submits that after the Government Resolution dated
29.02.2016 the impugned tender is issued. The
consolidated tender for all 36 districts in the State
of Maharashtra is published on 08th March, 2016. The
same is published at the behest of existing three
mahila mandals i.e. Maharashtra Mahila Sahakari
Gruhaudyogik, Mahalakshmi Mahila Gruhaudyogik and
Ekta Mahila Bachat Gat against whom the Commissioner
appointed by the Hon'ble Apex Court has submitted
report of malfunctioning.
6. It is the specific contention of the
petitioners that vide the impugned tender notice the
respondents have reduced 553 Blocks into only 70
Blocks contrary to the policy of decentralization as
W.P.3359.16 with connected W.Ps.
is directed by the Apex Court. According to the
learned counsel, the impugned tender, is tailor made
for existing three mahila mandals which are not mahila
mandals at all. The experience clause of 25% of the
estimated value is incorporated just to favour these
three contractors. According to the learned counsel,
the tender states that even the Commissioner has sole
discretion to allot 50% of the work to any one bachat
gat. This shows the intention of the Commissioner to
favour the three mahila mandals.
7. Apart from assailing the term and condition
with regard to the 25% of experience of the estimated
value in one year the learned counsel for the
petitioners have also objected to the terms and
conditions with regard to the installation of
laboratory and the submission of other certificates.
8. The learned counsel further submits that,
the State Government has filed four different
affidavits from time to time fluctuating their stands
with each affidavit. In the first affidavit the
Government has accepted the policy dated 24.08.2009
and the powers vested with the Collector, however, has
taken stand that authority to the Collector at
district level is given for supplementary nutritional
food for age group of 3 - 6 year child. The said
affidavit is not in consonance with the factual
matrix. The Government Resolution dated 24.08.2009
includes all the age group including children from 0 -
W.P.3359.16 with connected W.Ps.
6 months, pregnant women and lactating mothers. The
said affidavit is totally silent on the Government
Resolutions dated 25.02.2016 and 29.02.2016. It is
further submitted that, responding to the queries
raised by this Court the State filed an affidavit on
14.04.2016 inthere as well there is no whisper about
the Government Resolutions dated 25.02.2016 and
29.02.2016. The documents annexed to the said
affidavit are ig prepared on 01.03.2016 and signed on
02.03.2016 after issuance of Government Resolution
dated 29.02.2016. According to the learned counsel,
the third affidavit is filed by the Commissioner,
ICDS, Mumbai on 21.04.2016. In the said affidavit an
altogether new story is created and the blame is
placed on an officer for issuing Government Resolution
dated 25.02.2016 which is an absolute after thought.
The document annexed with the said affidavit is
unsigned and undated. Even the document annexed and
dated 01.03.2016 is signed on 02.03.2016. The fourth
affidavit is filed by the Chief Secretary of the State
of Maharashtra. The documents filed bear the date and
signature, however, the same documents filed in the
earlier affidavit do not bear any date and signature.
Along with the affidavit of Chief Secretary, the
document filed is dated 22.02.2016 and contains the
signature of Principal Secretary, however, the same
document filed along with the second and third
affidavits do not bear the date and signature. With
the third and fourth affidavit the minutes of meeting
are placed on record and it is tried to be pointed out
W.P.3359.16 with connected W.Ps.
that the said minutes are of meeting dated 23.02.2016,
however, it is crystal clear that the same is prepared
on 01st March, 2016 and signed on 02nd March, 2016.
Even, the said minutes do not show any date or
signature of the Principal Secretary. Even, the
points 2, 3 and 4 mentioned therein are not part of
Government Resolution dated 29.02.2016. Referring to
all these aspects the learned counsel for the
petitioners submit
ig that the respondents are not
putting forth the true and correct decision and are
trying to mislead the Court and for the same action be
taken against them.
9. The learned counsel further submit that,
impugned tender is in stark violation of the
decentralization policy as directed by the Apex Court.
The learned counsel submits that decision making
process has not been adhered to. The impugned tender
is arbitrary and is issued to favour the three big
players only and as such this Court shall intervene to
prevent arbitrariness and favoritism. The learned
counsel rely on the judgment of the Apex Court in the
case of Tata Cellular V/s. Union of India reported in
1994 (6) SCC 651. The learned counsel for petitioners
further submit that, open and fair competition is
being evaded and prevented. This Court can intervene
in such case. The learned counsel rely on the
judgment of Division Bench of this Court in the case
of Aurangabad Electrical Contractors Association,
Aurangabad and others V/s. State of Maharashtra
W.P.3359.16 with connected W.Ps.
reported in 2015 (1) Mh. L. J. 182. The learned
counsel relying on the judgment of Division Bench of
this Court in the case of M/s. D. K. Enterprises V/s.
The State of Maharashtra delivered in Writ Petition
No. 87 of 2004 dated 05th March, 2004, submit that if
the tender is not in consonance with the policy laid
down under the Government Resolution this Court can
certainly cause interference.
10.
It is further submitted that, the condition
of in house laboratory is too stringent. These are
small mahila mandals / bachat gats and additional
burden is sought to be imposed upon them. Even
otherwise the respondents can check the quality before
the same is supplied. The petitioners further submit
that, one of the requirements is about submission of
credit worthiness certificate of a nationalized bank
certifying that the credit worthiness is at least 15%
of the estimated proposal value of his district of
interest. It will be difficult for a new entrant to
get this credit worthiness certificate and all other
certificates as are detailed in the said tender
documents. The impugned tender is against the
decentralization policy wherein instead of 533 Blocks
the same are reduced to 70 Blocks. Many of the mahila
mandals, bachat gats which have installed extrusion
technology (fully automatic plant ) they will not be
in a position to get the contract and the said
establishment would be in peril and worthless. The
impugned tender be quashed and set aside.
W.P.3359.16 with connected W.Ps.
11. Mr. Hon, the learned Senior Advocate
appearing for the State has with his usual exuberance
submitted that, the Commissioner, I. C. D. S. has an
authority to release take home ration tender (T.H.R.).
The T.H.R. is required to be manufactured / processed
through extrusion based fully automatic technology.
According to the learned senior counsel, the
respondents are
ig bound to follow the operational
guidelines of the government of India. The same are
mandatory as the funds are partly received from the
Union of India for the said scheme. The committee
report regarding finalization of the terms and
conditions of the T.H.R. tender are placed on record
wherein committee has also recommended 25% experience
of estimated cost.
12. The learned Senior Advocate submits that, in
view of the national food security Act, 2013 and
supplementary Nutritional Rules, 2015 the earlier
orders passed by the Apex Court may not be much
relevant. The petitioners I.A.'s were filed before
Apex Court with regard to decentralization of the
process, the same were dismissed by the Apex Court as
they have become infructuous in view of the National
Food Security Act, 2013 and the Supplementary
Nutrition Rules, 2015. The learned Senior Advocate
further submits that, subsequent to the said tender
corrigendum is issued wherein it is specifically
stated that, preference will be given to the local
W.P.3359.16 with connected W.Ps.
mahila bachat gats. According to the learned Senior
Advocate, the cabinet decision for T.H.R. tender is
placed on record and the said tender is in consonance
with the Cabinet decision. The final note is placed
by Women and Child Development Department for the
Cabinet approval and which has received its assent.
The Chief Secretary has filed detailed affidavit
regarding the Cabinet note. The Cabinet approval and
the final Government Resolution is issued as per the
Cabinet decision and there is no illegality committed.
In fact, the Government Resolution dated 25.02.2016
ought not to have been published. The notes were only
placed and by mistake of an officer the same was
published. In the said Government Resolution also it
nowhere states about the Cabinet decision being taken
and the opinion / note of the Industrial and Finance
Department being approved. According to the learned
Senior Advocate, the rates are fixed, as such there is
no question of submission of financial bid and only
technical bid is to be submitted and thus expression
of interest is only asked. The same is as per the
Cabinet decision.
13. According to the learned Senior counsel, the
decentralization policy is also being observed. It is
not being restricted to one sector. In each districts
two sectors are formed i.e. rural and urban and as
such 70 sectors are formed and the same is as per the
Cabinet decision. The costing of unit and viability
of unit for one sector is considered. The said
W.P.3359.16 with connected W.Ps.
sectors are formed considering the viability of the
units. Each mahila bachat gat has to spend at least
one crore for extrusion technology and the plant and
if, sufficient amount of work is not made available to
bachat gats the same would not be viable. It would
also not be possible to maintain the quality and have
the control and supervision over large number of
mahila mandals / bachat gats. The quality has to be
given the first preference as the same is meant for
infants, pregnant women and lactating mothers. The
scheme is not meant to provide employment to the
mahila mandals / bachat gats but is to provide
nutritious food to the infants, lactating mothers and
pregnant women wherein hygiene will have to be given
the utmost importance. Considering the same 70
centres are formed. The learned senior advocate
relies on the judgment of the Apex Court in the case
of Michigan Rubber (India) Ltd. V/s. State of
Karnataka and others reported in 2012 (8) SCC 216 and
submits that, Court would not normally interfere with
policy decision and in matters challenging the award
of contract by the State or Public Authorities.
According to the learned senior advocate, the quality
certifications and all other certificates are
necessary. The learned counsel relies on the judgment
of Apex Court in the case of Glodyne Technoserve
Ltd. V/s. State of M. P. and others reported in 2011
(5) SCC 103.
14. Mr.Hon, learned Senior counsel further
W.P.3359.16 with connected W.Ps.
submits that the tender impugned in the present Writ
Petitions was also subject matter of Writ Petition
bearing W.P.No.1807/2016 before this High Court at
Nagpur and the Hon'ble Court dismissed the petition on
15.3.2016. The terms and conditions of the tender
were upheld by this Court. On this count also the
present Writ Petition need not be entertained.
15. In the present Petitions, this Court had
allowed the tender process to proceed further,
however, had directed not to finalize the same.
Pursuant to the tender notice it is submitted by Mr.
Hon learned senior advocate for the State that in all
300 bids are received for urban area and 216 bids are
received for rural sectors and some of them have not
submitted physical documents.
16. The learned counsel for the petitioners
submit that, if, the manner of filing of tender is
seen the contention of the petitioners stands
substantiated that only the three mahila mandals
i.e./viz; Maharashtra Mahila Sahakari Gruhaudyogik,
Mahalakshmi Mahila Gruhaudyogik and Ekta Mahila
Bachat Gat are favoured. They have filled majority of
tenders. Each of these three have applied for more
than 30 tenders in urban as well as rural i.e. more
than 60 tenders each. Though only 72 certificates are
W.P.3359.16 with connected W.Ps.
issued about the experience there are total 82 on line
forms submitted which indicates that ineligible
candidates have submitted the on line forms.
17. We have considered the contentions of the
learned counsel for respective parties.
18. There cannot be any dispute with the
proposition that
ig in matters of tender so also the
policy decision the powers of judicial review are to
be rarely exercised. The Apex Court in the case of
Tata Cellular V/s. Union of India referred to supra
has laid down the guidelines with regard to the
exercise of powers of judicial review in contractual
matters which can be culled out as under -
".94. (1) The modern trend points to
judicial restraint in administrative action.
(2) The court does not sit as a court of
appeal but merely reviews the manner in
which the decision was made.
(3) The court does not have the expertise
to correct the administrative decision. If
a review of the administrative decision is
permitted it will be substituting its own
decision, without the necessary expertise,
which itself may be fallible.
(4) The terms of the invitation to tender
cannot be open to judicial scrutiny because
the invitation to tender is in the realm of
W.P.3359.16 with connected W.Ps.
contract.
(5) The Government must have freedom of
contract. In other words, a fair play in
the joints is a necessary concomitant for an
administrative body functioning in an
administrative sphere or quasi -
administrative sphere. However, the
decision must not only be tested by the
application ig of Wednesbury principle of
reasonableness (including its other facts
pointed out above ) but must be free from
arbitrariness not affected by bias or
actuated by mala fides.
(6) Quashing decisions may impose heavy
administrative burden on the administration
and lead to increased and unbudgeted
expenditure."
19. As far as the pre-qualification criteria as specified in
the tender in clause 7, as also the experience of 25% of the
yearly expenditure are concerned, the same is fixed by the
authorities considering the nature of the tender. Certain pre-
conditions or qualifications for tenders have to be laid down to
ensure that the tenderer has the capacity and the resources to
successfully execute the work. The judicial review of
administrative action is intended to prevent arbitrariness,
W.P.3359.16 with connected W.Ps.
irrationality, unreasonableness, bias and malafides. Its purpose
is to check whether choice or decision is made lawfully, so also
whether the public interest is affected. For maintenance of the
standard and quality of the nutrient food laboratory by the unit
would be required and would be necessary. The said condition
as such does not appear to be irrelevant or unnecessary. The
certificates as sought to be produced by the tenderers would be
imperative for the Executive to ensure that the tenderers have
the capacity to execute the said work. All these terms and
conditions as such can not be said to be onerous. The same are
relevant and necessary. The said terms and conditions have
been upheld by the Division Bench at Nagpur in
W.P.No.1807/2016. This Court at Nagpur Bench has observed as
under :-
"On hearing the learned counsel
for the parties and on a perusal of the
judgment of the Hon'ble Supreme Court
reported in (2012) 8 SCC 216, it appears
that there is no scope for interference
with the conditions in the tender notice in
exercise of the writ jurisdiction, more so,
W.P.3359.16 with connected W.Ps.
when the conditions do not appear to be
onerous and have been included in the
tender notice in view of the policy of the
Government and the judgment of the Hon'ble
Supreme Court in the case of "Shagun Mahila
Udyojak Sahakari Sanstha Maryadit Vs. State
of Maharashtra and others" in Civil Appeal
No.7104/11.In view of the aforesaid, we dismiss
the writ petition, with no order as to costs."
20. The Integrated Child Development Services
Scheme is implemented by the department of Women and
Child Development, Government of Maharashtra
(hereinafter referred to as ICDS). The scheme intends
to cover all the children in/of the age group of 0-6
years, pregnant women and lactating mother. The Apex
Court from time to time had issued various directions
regarding implementation of the said scheme. The Apex
Court vide order dated 13.12.2006 in the case of
"People's Union for Civil Liberties Vs. Union of
India" and others passed interim directions. The
same are as under :
W.P.3359.16 with connected W.Ps.
"23. Keeping in view the
submissions made and considering the
materials placed on record we direct as
follows :
(1) Government of India shall
sanction and operationalize a minimum of 14
lakh AWCs in a phased and even manner
starting forthwith and ending December
2008. In doing so, the Central Government
shall identify SC and ST ham-
let/habitations for AWCs on a priority
basis.
(2) Government of India shall ensure
that population norms for opening of AWCs
must not be revised upward under any
circumstances. While maintaining the upper
limit of one AWC per 1000 population, the
minimum limit for opening of a new AWC is a
population of 300 may be kept in view.
Further, rural communities and slum
dwellers should be entitled to an
W.P.3359.16 with connected W.Ps.
"Anganwadi on demand" (not later than three
months) from the date of demand in cases
where a settlement has at least 40 children
under six but no Anganwadi.
(3) The universalisation of the ICDS
involves extending all ICDS services
(Supplementary ig nutrition, growth
monitoring, nutrition and health education,
immunization, referral and pre-school
education) to every child under the age of
6, all pregnant women and lactating mothers
and all adolescent girls.
(4) All the State Governments and
Union Territories shall fully implement the
ICDS scheme by, interalia,
(i) allocating and spending at least
Rs.2 per child per day for supplementary
nutrition out of which the Central
Government shall contribute Rs.1 per child
per day.
(ii) allocating and spending at least
Rs.2.70 for every severely malnourished
W.P.3359.16 with connected W.Ps.
child per day for supplementary nutrition
out of which the Central Government shall
contribute Rs.1.35 per child per day.
(iii)allocating and spending at least
Rs.2.30 for every pregnant women, nursing
mother/adolescent girl per day for
supplementary ig nutrition out of which the
Central Government shall contribute
Rs.1.15.
(5) The Chief Secretaries of the
State of Bihar, Jharkhand, Madhya Pradesh,
Manipur, Punjab, West Bengal, Assam,
Haryana and Uttar Pradesh shall appear
personally to explain why the orders of
this Court requiring the full
implementation of the ICDS scheme were not
obeyed.
(6) Chief Secretaries of all State
Governments/UTs are directed to submit
affidavits with details of all habitations
with a majority of SC/ST households, the
availability of AWCs in these habitations,
W.P.3359.16 with connected W.Ps.
and the plan of action for ensuring that
all these habitations have functioning AWCs
within two years.
(7) Chief Secretaries of all State
Governments/UTs are directed to submit
affidavits giving details of the steps that
have been taken with regard to the order of
this Court of October 7th, 2004 directing
that "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". Chief
Secretaries of all State Governments/UTs
must indicate a time frame within which the
decentralisation of the supply of SNP
through local community shall be done.
(8) It is a matter of concern that 15
States and Union Territories have not
submitted any affidavit in compliance with
the order dated 7.10.2004. They are the
W.P.3359.16 with connected W.Ps.
States of any affidavit in compliance with
the order dated 7.10.2004. They are the
States of Orissa, Uttar Pradesh, Sikkim,
Arunachal Pradesh, Nagaland, Goa, Punjab,
Manipur, Tamil Nadu, Andhra Pradesh,
Mizoram, Haryana, Bihar and the National
Capital of Delhi and the Union Territory of
Lakshadweep, within four weeks reply shall
be filed through the concerned Chief
Secretary as to why action for contempt
shall not be initiated for the lapse."
21. The State of Maharashtra through Deputy
Commissioner, Women and Child Development filed
affidavit before the Apex Court in aforesaid case on
or about 31.5.2014. In the said affidavit, more
particularly, in paragraph 12, it was stated that the
Collector-cum-Chairmen, District Level Committee were
directed vide letter dated 15.6.2013 that first
preference shall be given to women self help group/
Bachat gats. The affidavit in paragraph 8 states that
the work of supply of THR is a project undertaken by
W.P.3359.16 with connected W.Ps.
the Government for past three and half years. The said
scheme stands spread across 34 Districts with 553
projects which cover 95673 Anganwadis and 5129268
beneficiaries of THR. It further states that the
Government took a decision to further expand
decentralisation process and procure supplementary
nutrition food ig from local Mahila self-help groups
Bachatgats. Accordingly, directions were issued to all
Deputy Executive Chief Officers and Child Development
Project Officers to invite applications from local
village community/women self-help group
Bachatgats/Mahila-mandal for procuring supplementary
nutrition food.
22. As such it is clear and further it is also
not disputed that 553 Projects were constituted. It is
further not disputed that out of 553 Projects in 36
Districts of the State of Maharashtra, the
supplementary nutrition food is supplied in 314
Projects by the self-help group/Mahilamandal like the
petitioners and the same is continued till date and
contract period is also extended. Now vide the
W.P.3359.16 with connected W.Ps.
impugned tender Notice 553 Projects are being reduced
to 70 Projects. In each District, two Projects are
formed i.e. one urban and another rural. The moot
contention of the petitioners is that the petitioners
were directed to first introduce roster technology
i.e. Semi automatic plant, which they complied.
Subsequently, ig implementing the orders of the Apex
Court, the Respondents directed petitioners to procure
and install extrusion technology plant (fully
automatic plant). The petitioners by spending huge
amounts have installed extrusion technology plants.
If the projects are reduced from 553 to 70, the
petitioners would be rendered without work and whole
plant will be of no use and the said plant can not be
used for other purpose also. We had asked the learned
Senior Counsel for the Respondents as to the number of
Mahila Bachatgats/self-help groups who are complying
with the requirement of extrusion technology plant.
On instructions, the learned Senior counsel for the
Respondents submits that near about 100 Mahilamandals
or Bachatgats or Mahila self-help group would be
possessing the said technology plant and supplying the
W.P.3359.16 with connected W.Ps.
supplementary nutrition food through Anganwadis. As
per petitioners, many more have installed extrusion
technology plants. Because of the reduction of the
number of projects, the Mahila-mandal/Bachatgats who
have already installed the extrusion technology plants
may not be awarded the contract.
23.
The ICDS scheme and the supply of Take Home
Ration (THR) is meant for infants, pregnant women and
lactating mother. Predominantly the object would be to
have zero infection and maintenance of higher hygiene
and nutrient food. For the said purpose the terms and
conditions are incorporated in the tender that the
Unit should possess laboratory.
24. Now the only question would remain about
reduction of the number of projects. One of the
grounds put forth by the Respondents is that the
installation of extrusion technology plant involves
lot of finance and expenditure and if small contracts
are given, the same would not be viable for the
petitioners, so also it may not be possible to
W.P.3359.16 with connected W.Ps.
supervise the supply and necessary nutrient content.
25. As far as viability is concerned, these
petitioners and similarly situated Mahilamandals/
self-help group/Bachatgats have already installed the
extrusion technology plants. They are now not required
to spend on the same and if only 70 projects are
formed as against ig 533 Projects earlier formed then
even if it is assumed that one project would be
awarded to one Mahilamandal/self help group Bachatgat,
still, the SHG/Mahilamandals at the local level that
are supplying at 314 Projects, would be rendered
jobless, The same would militate against the
decentralisation policy. The tender itself has made
it clear that the tender would not be allotted to
contractors but is meant for self-help
groups/Mahilamandals. Vide corrigendum, it has been
stated that the preference would be given to the local
Mahilamandals/self help groups. The aspect of
reduction of the project was not a subject matter
before the Nagpur Bench in W.P.No.1807/2016. The fact
that the decentralisation policy has been accepted is
writ large from the affidavit filed before the Apex
W.P.3359.16 with connected W.Ps.
Court by the Respondent-State.
26. One of the contentions of the petitioners
is that the projects are reduced so that the turn-
over is increased and majority of the tenderers would
not be in a position to comply with the condition of
possessing experience of 25% of the turn-over and that
they would stand automatically disqualified. The
same is with the purpose to favour three big
contractors who are not really Mahilamandals or Mahila
self-help groups. The said Mahilamandals are :
(i) Maharashtra Mahila Sahakari Grahudhyog
Sasntha Ltd., Dhule;
(ii) Venkateshwara Mahila Audhyogic Utpadan
Sahakari Sanstha Ltd. Latur;
(iii) Mahalaxmi Mahila Garhudyog and Balvikas
Buddeshiya Audhyogic Sahakari Sanstha;
27. We have made it clear that we are not
interfering with the condition of experience of 25% of
the turnover. If Projects/Blocks are increased
naturally turn-over would be less and majority of
W.P.3359.16 with connected W.Ps.
eligible units will be in a position to apply. If
Projects are less then majority of them would not be
in a position to comply with experience of 25% of the
estimated cost as the turn over required would be
more. Again it would lead to monopolistic situation.
28. The Apex Court in the order dated April 22,
2009, in W.P.(C) No.196/2001 had observed that the
earlier orders shall continue to be operative which
state about decentralisation of supply of SNP through
local community.
29. The contention of the Respondents is that in
view of the enforcement of the National Food Security
Act, 2013 and the Supplementary Nutrition Rules, 2015,
the earlier orders passed by the Apex Court may not be
much relevant.
30. If the provisions of the said Act, so also
the Rules are perused, it would be clear that the same
would in no way affect the orders passed by the Apex
Court earlier. U/s 4 of the Act, 2013 every pregnant
W.P.3359.16 with connected W.Ps.
woman and lactating mother shall be entitled to meal
free of charge to meet nutritional standard specified
in Schedule 2. U/s 5, it is provided that every child
in the age group of 6 months to 6 years shall have
entitlement for appropriate meal free of charge
through local Anganwadis. The nutritional standards
are provided under Schedule 2 of the said Act and they
are required to be made by providing Take Home Ration
(THR) or nutritious hot cooked meal in accordance with
the ICDS scheme. As such the said Act also provides
for supply of THR with required standard through
Anganwadi. The norms indicated in the letter dated
24.2.2009 of the Government of India have to be
implemented.
31. There was divergence of opinion between the
different Departments i.e. the Industry Department,
Finance Department on one hand and the Women and Child
Development Department on the other. As per the
Industry Department, the objective of the Hon'ble
Supreme Court orders is to involve village
communities/self-help groups and Mahila-mandals, so
W.P.3359.16 with connected W.Ps.
that nutritious food can be made available at the
local level. The objective can be achieved by
involving local groups and village communities at the
Grampanchayat level or at the most cluster of villages
which may involve several such groups in ICDS
projects. The Women and Child Development Department
did not agree with the same and decided to call tender
in 70 urban and rural sectors. The matter was
referred to the Cabinet by the Hon'ble Chief Minister.
There is a controversy about the decision of the
Cabinet. The petitioners contend according to the
decision of the Cabinet, Government Resolution dated
25.2.2016 was issued, whereas the Respondents submit
the Government Resolution dated 25.2.2016 was issued
by mistake. The same was not in accordance with the
Cabinet decision and the Government Resolution dated
29.2.2016 was issued as per the Cabinet decision and
vide said GR dated 29.2.2016, GR dated 25.2.2016 was
revoked/cancelled.
32. Considering the said controversy, we had
directed the Chief Secretary of the State to file the
W.P.3359.16 with connected W.Ps.
affidavit. Pursuant to the said directions, the Chief
Secretary, has filed affidavit clarifying the state of
affairs. In the said affidavit the Chief Secretary of
the State mentions :
"7. In this regard I say that the
procedure followed is as follows :-
(a) The Secretary of WCD Department
submitted the proposal for floating the
tender for supply of THR to the
beneficiaries under ICDS Scheme to the
State Minister, WCD Department on
18.2.2016.
(b) The Hon'ble State Minister
approved the said proposal submitted by
Secretary of WCD Department on 18.2.2016.
c) Thereafter the proposal was put
up before the Hon'ble Cabinet Minister of
WCD Department. The Cabinet Minister has
given comments on the proposal and approved
the proposal on dt. 19.2.2016.
(d) Thereafter the proposal has been
W.P.3359.16 with connected W.Ps.
submitted to the Hon'ble Chief Minister of
Maharashtra State. The Hon'ble Chief
Minister has made his comments that the
procedure for floating the tender as EOI,
was not included in the purchase policy
dt.30.10.2015; hence the approval of
Cabinet was required.
(e) Thereafter the Secretary, WCD
Department prepared a draft Note and
submitted to the Principal Secretary,
Industry Department on 22.2.2016. After
receiving the remarks of Principal
Secretary, Industry Department the draft
note was submitted to Addl. Chief
Secretary, Finance Department on 22.2.2016.
(f) After receiving the draft note
from finance department the Note was
submitted to the Hon'ble State Minister,
WCD Department on 22.2.2016.
(g) Thereafter the Note has been
approved by the Hon'ble Cabinet Minister,
WCD Department, Hon'ble Cabinet Minister of
W.P.3359.16 with connected W.Ps.
Finance Department & Hon'ble Chief
Minister, Government of Maharashtra on
22.2.2016.
(h) After approval from the various
authorities, the Principal Secretary, WCD
Department put up the final cabinet note
including all remarks of Industry, Finance
Department along with the comments of WCD
Department to the Government on 23.2.2016.
8. It is submitted that the Cabinet
note also included the draft GR regarding
the decisions to the taken by the Cabinet.
Draft of Cabinet note along with draft GR
is marked as Annexure-I.
9. The final Cabinet Note was put up
before the Cabinet which was held on
23.2.2016 and the same has been approved by
the Cabinet. The decision of the Cabinet is
marked as Annexure-II.
10. The Cabinet was pleased to permit
the Department of WCD to invite EOI through
e-tendering process on fixed rate, without
W.P.3359.16 with connected W.Ps.
inviting financial bid, for which the
Department has requested to the Cabinet for
approval."
33. It is the contention of the petitioners that
the Government Resolution dated 25.2.2016 was in
accordance with the draft GR submitted to the Cabinet
for approval and the said draft GR submitted to the
Cabinet bears the signatures of the Officers and it is
the said GR which is approved by the Cabinet. However,
according to the Respondents, the GR dated 25.2.2016
was not in accordance with the draft GR approved by
the Cabinet but the GR dated 29.2.2016 is the GR
approved by the Cabinet. We need not ponder over the
said issue. The Chief Secretary has filed affidavit
and it is stated that it is only in respect of
inviting tenders through expression of interest method
Cabinet had taken the decision. Even the GR dated
25.2.2016 if read it states about the views of
Industries Department, views about the Finance
Department. The said GR further laid down that the
Government has resolved to invite technical bid
W.P.3359.16 with connected W.Ps.
without inviting commercial bids vide expression of
interest method and that those units which were in
group should be given opportunity to upgrade
themselves to A class. It further states that the
Industries Department and the Finance Department have
given their opinion. It further states that the said
GR is issued as per the decision of Cabinet, whereas
the Government Resolution dated 29.2.2016 states that
the GR dated 25.2.2016 is revoked and the Government
decision is only to the effect that the commercial bid
should not be invited and only technical bid is to be
invited vide expression of interest method.
Considering the affidavit filed by the Chief
Secretary, we need not enter into the arena of the
said dispute.
34. The Apex Court in the case of "Michigan
Rubber (India) Ltd. Vs. State of Karnataka and others"
referred to supra has observed that "while the
discretion to change the policy in exercise of the
executive power, when not trammelled by any statute or
rule is wide enough, what is imperative and implicit
W.P.3359.16 with connected W.Ps.
in terms of Article 14 is that a change in policy must
be made fairly and should not give the impression that
it was so done arbitrarily or by any ulterior
criteria. The wide sweep of Article 14 and the
requirement of every State action qualifying for its
validity on this touchstone irrespective of the field
of activity of the State is an accepted tenet.
ig The
basic requirement of Article 14 is fairness in action
by the State, and non-arbitrariness in essence and
substance is the heartbeat of fair play. Actions are
amenable, in the panorama of judicial review only to
the extent that the State must act validly for a
discernible reason, not whimsically for any ulterior
purpose. The meaning and true import and concept of
arbitrariness is more easily visualised than
precisely defined. A question whether the impugned
action is arbitrary or not is to be ultimately
answered on the facts and circumstances of a given
case. A basic and obvious test to apply in such cases
is to see whether there is any discernible principle
emerging from the impugned action and if so, does it
really satisfy the test of reasonableness."
W.P.3359.16 with connected W.Ps.
35. The question that would still continue as
to whether the objective of decentralisation is being
met with. Departments are unanimous that there has to
be decentralisation and dictum of the Apex Court order
is to involve village communities/self help groups and
Mahila-mandals, so that nutritious food can be made
available at the local level.
ig According to the Women
and Child Development Department, if projects are
increased then the tenderers can not be given orders
for sufficient quantity and the same would not be
viable proposition as establishment of extrusion
technology plant itself involves huge expenditure and
secondly, it may not be possible to supervise and
monitor the supply by large number of units.
36. A consideration that the extrusion
technology plant requires huge expenses and if high
returns are not given, it will not be feasible for the
unit to survive, would not be a proper one as more
than 100 units have already installed/established and
are operating extrusion technology plants and further
even as per Respondents, some are in process of
W.P.3359.16 with connected W.Ps.
installing it. Having already established the plants
comprising extrusion technology no further expenditure
would be required. On the other hand, if these units
are not allotted any orders, the whole plant would be
waste. Moreover, it is too late on the part of the
Respondents to advance such arguments about the
feasibility for the unit to survive when earlier on,
installation of this expensive technology was made
incumbent/imperative, according to which the
Bachatgats/Mahilamandals had invested huge amounts
and now to turn around and say it would not be
feasible. It is for the Bachatgats/Mahilamandals who
should say so and not the Department.
37. As far as the other aspect is concerned,
at present the Department is monitoring supply to 533
Projects and about 314 Projects are receiving supply
of nutritious food from Mahilamandal/Women self-help
groups/Mahila Bachatgats. Now with additional
precaution being taken i.e. units are required to
establish their own laboratory for the purpose of
quality control, it would be no longer tedious to
W.P.3359.16 with connected W.Ps.
monitor.
38. We are aware that the scheme of THR is meant
for infants, pregnant women and lactating mothers and
that no compromise can be made in the quality of the
nutritious food to be supplied. We are only
considering about
ig the eligible units who have
installed the said required technology and they are
far more than the Projects which have been reduced. It
would be appropriate for the Respondents to reconsider
the formation of the Projects. If after the survey is
made, the eligible units are not more than the
projects formed then the Respondents can proceed with
Projects already formed, however, reduction ought to
have been done after conducting the survey so that
the eligible units who have installed the extrusion
technology plant and possessing all other requisites
would be accommodated.
39. Certainly, quality of the food to be
supplied can not be compromised and the suppliers are
required to maintain highest standard of quality.
W.P.3359.16 with connected W.Ps.
There has to be zero infection. The Respondents may
direct adherence to the strict quality control norms
and for that laboratory would be one of the essential
requirements. We are not interfering with the said
requirement, however, if the projects are reduced to
70 from the original 533 Projects, large number of
eligible units would be deprived business and would
languish. Aforesaid apart, that would also tantamount
to non-adherence to decentralisation policy. The
Respondents were supposed to make survey of eligible
units existing and then ought to have formed the
projects, so that participation of all the eligible
units complying with all the norms would be possible.
We are not saying that Respondents should maintain 533
Projects/Blocks, however, considering the number of
units as suggested by the Industries Department, they
could have created one Project/Block for cluster of
villages so that eligible units who have already
installed their extrusion technology plant at the
behest of the Respondents are not rendered without any
work. It is on the directions of the Respondents, the
units like the petitioners were required to install
W.P.3359.16 with connected W.Ps.
extrusion technology by spending huge amounts.
40. The price is fixed, as it is, only technical
bids are invited. As such there would be little
competition. Preference is to be given even as per
the tender to the local Mahila Bachat
gats/Mahilamandal/self help groups and the supply is
to be made through Anganwadis. As such it would not
be appropriate for the Respondents to proceed ahead
with the tender for 70 projects only. It would have
been appropriate if the Respondents had conducted the
survey about the eligible units and then formed the
projects. We are observing this because it is the
Respondent who had asked the petitioners to initially
install the roster technology plant (Seni automatic
plant) and subsequently extrusion technology (fully
automatic plant). The petitioners and similarly
situated units have installed the same by spending
huge amounts and they would be rendered without any
work and the plant would be idle and rusting. It
would not be in consonance with the decentralisation
policy as envisaged by the various Departments of the
W.P.3359.16 with connected W.Ps.
Government and the orders of the Apex Court. The
Respondents should do well to reconsider the
authority given to the Commissioner to give contract
or allot tender in respect of 50% of the Projects to
any one Mahilamandal/self help group. It should not
be in a manner that monopolistic situation would be
created and these Projects would be controlled by a
few handfull suppliers as is apprehended by the
petitioners. The Respondents can conduct the survey of
eligible units as in many of the blocks existing
contracts are up to the year 2017 and the tender
notice itself states that even if pursuant to the
tender any offer is accepted in respect of the
blocks of which contract is already existing, the same
will be operative only after the said contract period
is over.
41. In the result, we pass the following order :
a) The impugned tender notice is set aside to
the extent of reducing the projects to 70. All other
terms and conditions of the tender are held valid. The
W.P.3359.16 with connected W.Ps.
Respondents shall conduct the survey of the eligible
units with regard to extrusion technology (fully
automatic plant) and satisfying all other conditions
and shall thereafter proceed to form projects and
issue tender notice accordingly.
[K. K. SONAWANE , J. ]
ig [ S. V. GANGAPURWALA, J. ]
asp/WP 3359.16
