United Order And Supply ... vs The State Of West Bengal And Others
2023 Latest Caselaw 3815 Cal

                      In the High Court at Calcutta

                     Constitutional Writ Jurisdiction

                                Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                            W.P.A. No.1641 of 2023

        United Order And Supply Co-Operative Society Limited
                                  Vs.
              The State of West Bengal and others

     For the petitioner               :   Mr. Satrajit Sinha Roy


     For the State                   :    Mr. Amal Kumar Sen,
                                          Ms. Ashima Das (Sil)

     Hearing concluded on            :    06.06.2023

     Judgment on                     :    12.06.2023



     Sabyasachi Bhattacharyya, J:-



1.

The petitioner is a registered co-operative society which is an existing

diet contractor in different hospitals in West Bengal. The Secretary of

the petitioner-Society is a lady and it is primarily run by women.

2. The present challenge has been preferred against a Memorandum

issued by the Government of West Bengal, Department of Health and

HF/O/MS/271/W-14/10 dated June 16, 2010. By virtue of the said

Notification, the State Government restricted the duties of diet supply

in hospitals in the rural sector in West Bengal, having beds up to 50

in number, tofederations or clusters of Self Help Groups (SHG)

working in the area.

3. The first limb of challenge is that, by such restriction, the State

Government has curtailed drastically the wider participation of

members of the general community. It is submitted that although the

purported object behind the decision is the empowerment of women,

participation from other women apart from the members of the SHGs

has been entirely precluded.

4. It is submitted that the process by which the appointments would now

be made to rural hospitals would be through selection by the Chief

Medical Officer of Health (CMOH) on specific recommendation of the

Project Director, DRDC (District Rural Development Cell), both of

whom are Government functionaries and under direct control of the

State Government. Hence, by way of introduction of the selection

process, open tender has been entirely obliterated and the wishful

fancy of the State Government would be subserved in all such

appointments.

5. It is argued that the preclusion of the open tender is the bane of

public projects and employment schemes.

6. It is argued that although the provision has apparently been restricted

to rural hospitals having beds up to 50, such rider takes under its

sweep the vast majority of the rural hospitals in West Bengal, except

some super-specialty hospitals and other large hospitals.

7. It is argued that there are 269 rural hospitals in the different districts

of West Bengal and the selection of the supplier of cooked diet shall

now be restricted to the local self-help group(s), which will choke

competition even among similarly situated other groups or persons.

8. Moreover, it is argued that the impugned Memo goes beyond its

charter insofar as the first paragraph of the same clearly stipulates

that the same was in compliance with observations of this Court in an

order dated August 21, 2009 in WP No.11766(W) of 2009, as per

which a Broad Based Committee was constituted merely to review and

determine rationalized rate of cooked diet, taking into account the

present market value of dietary articles, for supply to different

Government health facilities. However, going much beyond the same,

the Government has introduced the decision to restrict the supply of

cooked diet inmost rural hospitals to Self-Help Groups controlled by

the Government itself.

9. Learned counsel for the State controverts the petitioner's submissions

and places reliance on the judgments reported at (2000) 4 SCC 221

[Gayatri Devi Pansari Vs. State of Orissa and others] and (1997) 9 SCC

495 [Krishnan Kakkanth Vs. Government of Kerala and others] for

furthering the proposition that some amount of reasonable

classification is permitted in Government actions.

10. It is argued that the declared purpose of the impugned Clause is the

empowerment of women through promotion of the SHG movement,

which cannot be faulted in any manner and is well within the

constitutional scheme of India.

11. Apart from empowering women, it will serve the purpose of supporting

local SHGs.

12. Moreover, the same would be restricted only to rural hospitals having

up to 50 beds and would not curtail competition in respect of other

larger medical facilities even in rural areas.

13. Thirdly, it is argued that the impugned Memo is a policy decision of

the State which cannot be otherwise faulted. Hence, it is contended

that the Court ought not, under normal circumstances, interfere with

such policy decision of the State.

14. Lastly, learned counsel for the State contends that the present writ

petition has been filed only in the year 2023, whereas the impugned

Memo is dated June 16, 2010. Such an inordinate delay of 13 years

remains unexplained in the writ petition and, as such, ought to be

deprecated by dismissing the writ petition.

15. Before deciding the issues raised, it would be beneficial to set out the

impugned Clause, that is, Clause 3 of the Memorandum dated June

16, 2010. The same reads as follows:

"3. In order to fulfill the commitment of the State Government to the empowerment of women through promotion of SHG movement, the Governor has further been pleased to order that in all hospitals in the rural sector having beds up to 50 (fifty), the duties of diet supply shall be entrusted to a federation or cluster of Self Help Groups working in the area and promoted by the District Rural Development Cell (DRDC) of the Zill Parishad. Selection of such cluster shall be made by the Chief Medical Officer of Health on specific recommendation of the Project Director, DRDC subject to the following conditions

a) Such assignment may be made to a federation in respect of all the health facilities in the block where they are working;

b) Such assignment may be made to a cluster working in a Gram Panchayat area in respect of all the health facilities within that Gram Panchayat and/or within its close vicinity. Such cluster should preferably be

of "A" category. In exceptional circumstances, clusters of "B" category almost eligible for upgradation towards "A" category may also be considered for such engagement;

c) The federation or the cluster so engaged shall do the job directly and not through any agency. An undertaking to that effect should be obtained from the federation or cluster before entrusting the job to them. In case it is found subsequently that the cluster or the federation so engaged is not doing the work directly, their engagement shall stand cancelled with immediate effect without any payment of compensation to such defaulting federation or cluster.

No tender process is required for engagement of such federation or cluster and the Project Director shall recommend only one federation or cluster for specific rural hospital and/or health centres in complete satisfaction of the above conditions. They shall be paid at the maximum admissible rate."

16. The plinth of the challenge of the petitioner is that, by virtue of

restrictions introduced, free competition has been curtailed in respect

of rural hospitals, insofar as supply of cooked diet is concerned.

17. In such context, it must be kept in mind that the cooked diet to be

supplied by virtue of the impugned Clause is confined to hospitals in

the rural sector having beds only up to 50 and, as such, it cannot be

said that such work would involve expertise of such level which

cannot be achieved by SHGs run by women.

18. In any event, Clause 3 of the Memorandum provides that the said

provision is for the empowerment of women through promotion of the

SHG movement which, per se, cannot be faulted, since the same is to

achieve a benevolent public purpose which is in consonance with the

Constitutional scheme.

19. Since large hospitals in rural areas and hospitals in other areas,

including towns and cities, have been excluded from the coverage of

the impugned Clause, it cannot be said that the object to be achieved

is self-defeating due to lack of expertise or sufficient resources.

20. Another prime challenge is that the process of giving such

appointments would be "selection" by the CMOH, on specific

recommendation of the Project Director, DRDC.

21. Under the law, the CMOH is a sufficiently qualified person and the

DRDC (District Rural Development Cell) of the Zilla Parishad, is an

important functionary in dispensing with social justice under the

Panchayati Raj governing the rural development projects in India.

Although there will be involvement of such functionaries as per the

impugned Clause of the Memo, it cannot be said that the power

conferred on such authorities would be per se unbridled and

whimsical.

22. It cannot be denied that the CMOH is a sufficiently qualified medical

officer to decide on the eligibility of a particular SHG for appointment

as supplier of cooked diet to hospitals. A sufficient safeguard to the

functions of the CMOH has also been implanted in the policy by

subjecting the decision of the CMOH to the specific recommendation

of the Project Director, DRDC, which functions for the specific purpose

of rural development in the State.

23. It cannot be said that the object sought to be achieved by the

impugned Memo, that is, empowerment of women through promotion

of SHGs in rural areas, is ex facie arbitrary or vitiated in any manner

whatsoever.

24. Apart from the said contracts being restricted to small rural hospitals

having only up to 50 beds, another safeguard in the Clause is that the

duties of diet supply shall be entrusted not to individuals but to

federations of clusters of SHGs.

25. A further check is that such groups will have to supply cooked diet

only in the specific area where they otherwise operate or are situated,

to avoid nepotism and favouritism in making such appointments.

26. Sub-clause (b) of Clause 3 clearly stipulates that such assignment

may be made to a cluster working in a Gram Panchayat area in

respect all the health facilities within that Gram Panchayat and/or

within its close vicinity and should preferably be of "A" category;

under exceptional circumstances, "B" category clusters would also be

eligible for upgradation tobe considered for such engagement.

27. Importantly, sub-clause (c) of Clause 3 clearly provides that the

federation or the cluster so engaged shall do the job "directly and not

through any agency", for which an undertaking to that effect should

be obtained from the federation or cluster before entrusting the job to

it.

28. As a further safety net, the said sub-clause goes on to provide that in

case it is found, subsequently, that the cluster or the federation so

engaged is not doing the work directly, their engagement shall stand

cancelled with immediate effect without any payment of compensation

to such defaulting federation or cluster.

29. In bold letters, at the end of the impugned Clause it is provided that

no tender process is required for engagement of such federation or

cluster and the Project Director shall recommend only one federation

or cluster for specific rural hospital and/or health centres in complete

satisfaction of the above conditions. Mere existence of such clause, in

the absence of any other vitiating circumstance, cannot render the

entire scheme bad in law. Apart from the factors as indicated above,

which comprised of sufficient safeguards to prevent false play and

favouritism, it has also been ensured that the federation or cluster

engaged shall be paid at the maximum admissible rate.

30. The very next clause, that is, Clause 4 also qualifies that the present

rate shall remain valid for the financial year-in-question and

engagement should be made for that period only, thereby leaving

scope of appointing other SHGs, if the ones engaged are found

lacking.

31. The Memo further stipulates that in case it is found that such cluster

is not available in areas of certain such hospitals or hospitals, tender

process may be started in respect of those hospitals in complete

satisfaction of this Department order No. HF/O/MS/271/W-14/10

dated June 16, 2010. Thus, a residuary provision has also been

incorporated in the impugned Memo to mandate issuance of tenders

in case such SHGsare not available for thatparticular area.

32. Empowerment of local women in rural areas by providing employment

opportunities for them cannot be faulted from any perspective

whatsoever. Certain supervision of the State cannot be said to be a

vitiating factor in that regard, since otherwise the entire allotment

would be unregulated, which might also afford scope for corruption,

nepotism and opportunism.

33. Apart from the merits of the challenge, the State is justified in arguing

that the present challenge has been preferred after an inordinate delay

of 13 years.

34. Even if the petitioner seeks to participate in the tender at the present

juncture, such fact, by itself, cannot furnish a cause of action to the

petitioner for challenging a Memorandum of June 16, 2010 in 2023.

If a premium is given to such belated challenges, anybody and

everybody seeking to take benefit of such challenge would be coming

up with applications under Article 226 of the Constitution of India

after prolonged periods of delay as per their whims and fancies to suit

their limited individual purposes, which would tantamount to a gross

abuse of the provisions of judicial review.

35. On all the above counts, there is no scope of any interference in the

present writ petition.

36. Accordingly, WPA No.1641 of 2023 is dismissed on contest without,

however, any order as to costs.

37. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )