Kerala High Court
Ajmal Ahmed R vs Union Of India on 17 September, 2021
W.P.(C) No. 12508/2021 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
WP(C) NO. 12508 OF 2021
PETITIONER:
AJMAL AHMED R.,
AGED 29 YEARS
S/O. M.I. ATTAKOYA, RESIDING AT RABIYODA (H), KAVARATTI P.O.,
EXECUTIVE MEMBER OF LAKSHADWEEP BAR ASSOCIATION, UNION
TERRITORY OF LAKSHADWEEP-682 555.
BY ADVS.
PEEYUS A.KOTTAM
HRITHWIK D. NAMBOOTHIRI
RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, SECRETARIAT, IP ESTATE, NEW
DELHI-110 002.
2 THE UNION TERRITORY OF LAKSHADWEEP,
REPRESENTED BY ITS ADMINISTRATOR, KAVARATTI P.O.,
LAKSHADWEEP, PIN-682 555.
3 PRAFUL KHODA PATEL,
ADMINISTRATOR, LAKSHADWEEP ADMINITRATIVE SECRETARIAT,
KAVARATTI P.O., LAKSHADWEEP-682 555.
4 DEPARTMENT OF ANIMAL HUSBANDRY,
REPRESENTED BY ITS DIRECTOR, LAKSHADWEEP ADMINISTRATION,
KAVARATTI P.O., LAKSHADWEEP-682 555.
5 DEPARTMENT OF EDUCATION,
REPRESENTED BY ITS DIRECTOR, LAKSHADWEEP ADMINITRATION,
KAVARATTI P.O., LAKSHADWEEP-682 555.
6 NODAL OFFICER OF MID-DAY-MEAL AND EDUCATION OFFICER,
DEPARTMENT OF EDUCATION, UNION TERRITORY OF LAKSHADWEEP
ADMINISTRATION, KAVARATTI P.O., LAKSHADWEEP-682 555.
W.P.(C) No. 12508/2021 :2:
7 VETERINARY SURGEON,
ANIMAL HUSBANDRY COMPLEX, KAVARATTI P.O.,
LAKSHADWEEP-682 555.
BY ADVS.
R1 BY SRI.K.SHRI HARI RAO, CGC
R2 TO R7 BY SHRI.MANU.S, SCGC,
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 12508/2021 :3:
Dated this the 17th day of September, 2021.
JUDGMENT
SHAJI P. CHALY, J.
This is a Public Interest Litigation filed by an Advocate
practicing in this Court and the Executive Committee member of the
Lakshadweep Bar Association and a permanent resident of Kavaratti
Island, Union Territory of Lakshadweep, seeking to quash Ext. P2 order
passed by the Lakshadweep Administration dated 21.05.2021,
whereby the Director of the Department of Animal Husbandry,
Kavaratti has inter alia issued directions on the basis of the direction
issued by the Secretary (Animal Husbandry), Union Territory of
Lakshadweep to close all the dairy farms run by the Department of
Animal Husbandry and to dispose of the bulls, calves etc. immediately
in the presence of the Action Committee Members by giving wide
publicity and observing other formalities, and to quash Ext. P4 minutes
of the UT Level Steering Cum Monitoring Committee and District Task
Force on Midday meal scheme, dated 27.01.2021, whereby the
existing menu was modified by deleting meat and chicken, and
including fruits and dry fruits.
2. Material facts for the disposal of the writ petition are as
follows:
The Union Territory of Lakshadweep, comprising 11 inhabited
islands and 16 uninhabited islands, is a single district union legislature
with an area of 32 Sq. Kms., having a total population of 64429, as per
the census of 2011. The concern expressed by the petitioner is the
alleged misery and suffering of the people of Lakshadweep Union
Territory due to the measures implemented by the Administrator of the
Union Territory of Lakshadweep, which according to the petitioner,
would destroy the culture and ecology of the island.
3. The case of the petitioner is that the reforms are being
implemented by the Administrator of the island in blatant violation of
the principles of natural justice and even without allowing the islanders
to raise their objections in regard to the reforms suggested. It is also
contended that the unilateral reforms made by the Administrator are
capricious and arbitrary and has interfered with the life, liberty and
freedom of the islanders and reforms are going to be implemented
without publishing the draft regulation in the local language and in the
local vernacular purposefully for depriving the islanders to understand
about such drafts and deprive their right to raise voice and objection
against such movement.
4. It is also submitted that the Administrator and the officials of
the UT Administration are silently implementing draconian measures
even during the lock-down period fully knowing that during the time of
pandemic, the public will not protest against such illegal actions, and
even though protests were raised, they were arrested and put behind
the Bars alleging that they have violated the Covid-19 protocol.
5. The sum and substance of the contention is that the
Administrator is attempting to impose his hidden and mischievous
personal agenda, which is in violation of Articles 15, 16, 19, 21 and
300A of the Constitution of India. The paramount contentions
advanced with respect to Ext. P2 order passed in regard to the closure
of the animal husbandry activities are that during late 1960s, the then
Administrator had introduced poultry, and the livestock, and poultry
production in the islands continued till 1970. However, the
Government of India later introduced several schemes to promote
poultry production in the island. Till the 8 th Five Year Plan, the
development of the Animal Husbandry made the inhabitants conscious
of better varieties of livestock and poultry by establishing poultry and
dairy demonstration units in different islands.
6. According to the petitioner, from the 8 th Five Year Plan
onwards, scheme has been envisaged to boost up production of high
yielding livestock and poultry from various farm oriented programmes,
and to attain the result, the Animal Husbandry Department launched
latest technology and related factors on intensified poultry
development, and accordingly, large number of beneficiaries have
come forward to take up the scheme in poultry sector.
7. The Animal Husbandry Department has started two cattle
farms with cows/buffaloes/calves and is producing milk everyday and
the milk is being sold at the rate of Rs.35/liter. But, it is submitted
that the Animal Husbandry Department has not taken any steps for
reforming the farm by introducing new and modern technology and on
the other hand, it has now adopted destructive methods to stop the
functioning of the farms and jeopardize the progress and development
of Animal Husbandry. The petitioner has produced a list of farm
products dated 29.07.2020 and marked as Ext. P1.
8. The allegation made by the petitioner against the
Administrator is that the Administrator took charge on 05.12.2020 and
his top priority was to close down the farms conducted by the
Department of the Animal Husbandry in the islands and to attack the
food habits of the islanders, which was being followed from the time
immemorial . It is also the case of the petitioner that if the farm is
properly managed, it will be a blessing for the islanders and many of
them will get job opportunities and it would be helpful for the farmers
to engage in the poultry and farming sector.
9. However, without any notice and even without any
consultation with the elected representatives of the people, at the
instigation of the Administrator, the Director of Animal Husbandry
issued Ext. P2 to close down all the dairy farms run by the Animal
Husbandry Department. Consequently, Ext P3 public auction notice
was published on 28.05.2021 to sell off the animals. The paramount
contention advanced in that regard is that the attempt to close down
the farm owned by the Department of Animal Husbandry is with an
intention to implement the proposed Animal Preservation (Regulation),
2021, which bans slaughter of the cow, calves, bulls etc.
10. It is also submitted that the Central Government is
preparing various plans promoting dairy farms throughout the nation
and helping each State and Union Territories to promote dairy farming
to achieve self sufficiency, but quite contrary to the programme
envisioned by the Government of India, the Administrator is adopting
measures to destroy the well functioning dairy farms and other
available infrastructure established in the island for promoting dairy
farm.
11. With respect to the modification of the mid day meal
scheme, it is submitted that chicken and meat were there in the menu
of midday meals for school children in Lakshadweep Islands from its
inception; but, now the Administrator wanted to intervene and with
the intention of implementing the agenda, a meeting of the Union
Territory Level Monitoring Committee was held at his instance and
suggested a new menu totally altering the prevailing menu for midday
meal for the students in the islands.
12. It is the primary contention that the midday meal scheme
was started in the year 1950 and from then onwards, cooked meat
were being served from pre primary to elementary stage, and from
2007 onwards, the Union Territory Administration had extended the
programme upto 10th Standard and from 2008, the programme was
extended upto to 12th standard. It is submitted that a new menu is
implemented even without any deliberation and consultation and
consequent to which meat products were completely removed from the
menu, and are about to entrust the preparation of food for the midday
meal scheme to a non-Governmental Organisation namely
'Akshayapatra' having its office at Bangalore.
13. It is the contention of the petitioner that the midday meal
programme was being conducted without any room for complaint; but
still the Administrator wants to interfere with the well articulated
programme and to make it a messy one, which according to the
petitioner, is illegal, highly condemnable and arbitrary. It is also the
case of the petitioner that the Director of Education, evident from Ext.
P5, has started discussion with M/s. Akshayapatra and as a preliminary
step to entrust the midday meal programme to the said Non
Governmental Organisation, 105 employees, who were engaged as
cooks in the school, were removed from service, evident from Ext. P6
dated 02.02.2021.
14. It is also the case of the petitioner that the main objective
of the scheme is to provide wholesome food having requisite calorie to
school children for improving nutritional status of children and
motivate them to attend the school regularly. Ext. P7 is the relevant
pages of the National programme of midday meal in annual plan 2020-
2021 of Lakshadweep Administration. According to the petitioner,
even though all the participants in the meeting of the Union Territory
Level Steering Cum Monitoring Committee and the District Task Force
on midday meal held on 27.01.2021 had expressed the need of a
healthy balanced diet at the instance of the Administrator, Ext. P4 has
been passed modifying the food items served excluding meat, which
according to the petitioner, is a totally arbitrary and illegal action,
liable to be interfered with by this Court. In the above factual
backdrop, the following reliefs are sought for by the petitioner:
1. To call for the entire records leading to Ext. P2 and P4 and quash
the same by issuing a writ of certiorari or any other writ, order
or direction.
2. To issue a writ of mandamus or any other appropriate writ, order
or direction and thereby command the 1 st and 3rd respondents
not to implement any reforms infringing the ethnic culture,
heritage, food habit and effecting the serene and calm
atmosphere in the Lakshadweep islands and also infringing the
constitutional right guaranteed under Article 19 and 300 A of the
Constitution of India.
3. To issue a writ of mandamus or any other appropriate order or
direction and thereby command the 1 st and 3rd respondents not
to implement the draft regulations named Prevention of Anti
Social Activities Act, 2021 (PASA, 2021), Lakshadweep Animal
Preservation, 2021 Lakshadweep Panchayat Regulation, 2021,
Lakshadweep Development Authority Regulation, 2021 etc. are
introduced by the 3rd respondent without publishing such draft
regulations in the local language i.e, Malayalam and Mahal in
local vernacular having circulation in the Lakshadweep for
facilitating the islanders to understand the prose and
consequences and to submit objections against implementing
such regulations.
15. During the course of arguments, learned counsel for the
petitioner submitted that he is confining his arguments to relief Nos. 1
and 2 and is not pressing the third relief.
16. Respondent Nos. 2 to 7 namely the Union Territory of
Lakshadweep, the Administrator in person, Department of Animal
Husbandry, Department of Education, Nodal Officer of the Mid-Day-
Meal and Education Officer, Department of Education and Veterinary
Surgeon, have jointly filed a counter affidavit refuting the allegations
made by the petitioner, especially the personal allegations made
against the Administrator.
17. The case put forth by the Administrator is that the intention
of the petitioner is to malice and tarnish the reputation of the
Administrator and there is no bona fides in the allegations made and
that they are not supported by any material. It is contended that the
activities of all Departments of the Administration are being
periodically reviewed. A meeting to review the overall functioning,
including the staff strength, budget, schemes etc. of 10 Departments
of the Administration was conducted by the Advisor to the
Administrator on 19.4.2021 to 23.4.2021. Details of activities,
projects, institutions etc. of various Departments were called for prior
to the issuance of the meeting notice to ensure detailed discussions in
the meeting. Ext. R2(a) is the copy of the meeting notice dated
17.4.2021 issued by the Department of Finance and Accounts.
18. It is also stated that a review of the functioning, projects etc.
of the Animal Husbandry Department was scheduled on 20.4.2021.
The Director, Animal Husbandry, submitted a detailed note on the
functioning of dairy farms in the meeting held on 20.04.2021, evident
from Exhibit R2(b) dated 16.04.2021.
19. The note prepared by the Director contains details of the
functioning of the dairy farms during the financial years 2019-2020
and 2020-2021. It shows that there are 34 animals in the dairy farm
at Kavaratti, and 14 casual labourers are working in the farm.
However, the average daily milk production is only 87 liters per day.
Only about 150 to 200 people are able to be supplied with milk when
the population of the island is more than ten thousand. The total
annual expenditure during 2019-2020 was Rs.62,46,924/-, whereas
the revenue generated was only Rs.11,35,330/-. The deficit was
Rs.51,11,594/-. During 2020-2021, the total expenditure was Rs.
57,95,691/ and the total revenue generated was Rs. 14,19,301/- and
the deficit was Rs.43,76,390/-.
20. The note also shows that the number of animals in the
dairy farm at Minicoy Island is 34 and 16 casual labourers are engaged
for various works in the farm. The average milk production is only 83
liters per day. The population in Minicoy Island is also more than ten
thousand and the dairy farm is catering to the requirements of only
about 150 to 200 people. The total expenditure during 2019-2020 was
Rs. 65,13,374/-; whereas the revenue generated was only
Rs.12,12,301/-, and therefore the deficit was Rs.53,01,073/-. During
2020 -2021, the total expenditure was Rs.51,32,551/- while the total
revenue generated was only Rs.11,75,440/-, and the deficit was Rs.
39,57,111/-. Thus, the total loss for conducting the two dairy farms
during 2019-2020 and 2020-2021 were Rs. 94,87,984/- and
Rs.92,58,184/- respectively. According to respondents 2 to 7, those
figures clearly show that the dairy farms together cater to the needs of
only 300 to 400 people from among more than 20,000 people of the
two islands, and that too in a limited manner. However, the
Administration has to suffer a loss of more than Rs. 90 lakhs per year
to sustain these dairy farms.
21. It is also stated that the above said facts and figures were
discussed in detail in the review meeting held on 20.04.2021. The
limitations due to geographical conditions like non availability of green
fodder etc. which impair animal husbandry activities and limited
production of milk were also discussed. After a detailed analysis, it was
felt imprudent to continue the functioning of the dairy farms, suffering
huge loss of more than Rs 90 lakhs per year and therefore, it was
decided to stop the functioning of the dairy farms and the Secretary,
Animal Husbandry directed the Director to take steps to close down
the dairy farms and to conduct auction for the sale of animals.
22. Thereafter, Exhibit P2 communication was issued by the
Director. It is further stated that the decision to close down the farms
has been taken after a thorough analysis of the functioning of the
farms and the heavy loss sustained to the public exchequer, that it is a
policy decision taken for valid reasons and that nobody has any right
to compel the Government to engage in a commercial activity resulting
in huge loss to the exchequer.
23. The auction has been postponed since no bidders came
forward, it is admitted. It is further stated that the decision to close
down the farms has no relation to the proposed Animal Preservation
Regulation and the petitioner is not justified in alleging that the
decision to stop the functioning of dairy farms which were catering to
the requirements of only a miniscule section of the population and that
too, in a limited manner is an interference with the food habits of the
people of the islands.
24. According to respondents 2 to 7, the central schemes or
programs mentioned by the petitioner can be implemented only if the
same are viable and suitable in the island conditions. As stated above,
because of the peculiar geographical and climatic conditions of the
Union Territory of Lakshadweep, the promotion of animal husbandry
activities cannot be made on a large scale as in the other parts of the
country.
25. It is also contended that the petitioner has raised a totally
baseless and ill motivated allegation against the Administrator in
charge that he wanted to change the menu of midday meal of the
school students by omitting meat and chicken and at the same time,
the petitioner himself has produced Exhibit P4, which shows that the
decision to omit meat and chicken was taken in the meeting of UT
Level Steering Cum Monitoring Committee held on 27.1.2021. The list
of participants annexed to the minutes shows that the Administrator
in charge had not attended the meeting and no suggestion or direction
was given to the committee by the Administrator in that regard as is
evident from the minutes and therefore, the allegation raised against
the Administrator is totally baseless and malicious, it is contended.
26. It is further submitted that, the petitioner, who has
approached this Court as a public interest litigant, has not even made
any attempts to understand the requirements and functioning of the
midday meals scheme. It is submitted that the statutory provision in
that regard is the Midday Meal Rules, 2015 made in exercise of the
powers conferred by sub-Section (1) read with clause (b) of sub-
Section (2) of Section 39 of the National Food Security Act, 2013 ('Act,
2013' for short) by the Central Government.
27. Rule 5 deals with preparation of meals and maintenance of
standards and quality. According to sub-Rule (1), the meal shall be
prepared in accordance with the Midday Meal guidelines issued by the
Central Government from time to time and in accordance with the
provisions of Schedule II of the Act. As per schedule II of the Act, the
Midday Meal for lower primary classes should have 450 calories and 12
gram protein. For upper primary classes, the requirements are 700
calories and 20 gram of protein. Neither in the Rules nor in any
directions issued by the Central Government, there is any stipulation
that meat and chicken shall necessarily be provided in the Midday
Meal.
28. Ext. R2(c) is the relevant portion of the MDM guidelines
issued by the Government of India. According to respondents, it is for
the respective State/UT Governments to decide the menu in any
appropriate manner satisfying the nutritional requirements and the
previous menu followed in Lakshadweep was formulated by the
Administration itself.
29. It is also pointed out that in the menu of many other States,
no non vegetarian items are included. Ext.R2(d) is the copy of the
relevant pages of the annual work plan of the midday meal scheme of
Andaman & Nicobar. Ext.R2(e) is the copy of the relevant pages of the
annual work plan of the midday meal scheme of Goa. Ext. R2(f) is the
copy of the relevant pages of the annual work plan of midday meal
scheme of West Bengal. Ext.R2(g) is the copy of the relevant pages of
the annual work plan of midday meal scheme of Puducherry.
30. It is also stated that the meeting of the Union Territory
Level Monitoring Committee will have to be held every six months, and
on 27.01.2021, the same was held to follow up this procedure. Power
to bring minor modifications, such as alteration of menu is delegated
to the committee as clarified by the Ministry of Human Resources
Developments vide their letter dated 14.03.2019 issued to all States
and Union Territories. Even though the committee has the power, only
slight modification of the menu was done; enough non-vegetarian food
was included in the menu and as an additional, dry fruits were also
included. Nutrition needs of the children can easily be satisfied with
the altered menu. At the time of alteration of the menu, the objectives
of MDM scheme were taken into consideration. Prescribed nutrition
requirement under MDM guidelines is as follows:
● 450 calories and 12 g protein to every child at primary level
● 700 calories and 20g of protein at upper primary level
Table showing nutrition available in different food provided under
present MDM menu is as follows:
Source Calories Protein
Egg 160 12g
Fish(Tuna) 191 42g
Rice 130 3.45g
Green gram 211 14.2g
Dal 132 7.2g
31. According to respondents 2 to 7, the above menu is
sufficient to meet the nutrition needs of the children. Further, when
the first objective of MDM scheme is taken note of, it is clear that the
same should improve the nutritional status of the children and from
the varied menu, children will be getting a balanced nutrition. The
MDM should provide additional nutrition to the children and not a
substitution for the nutrition they are getting from the home. In the
guidelines, it is also mentioned that the authorities should give
awareness to the parents that "school MDM is meant to be an addition
to, and not a substitute for, meals which parents should in any case
provide to the children at home". The second objective is that MDM
should encourage poor children to attend school regularly. However, it
is pertinent to note that in UT of Lakshadweep, the school dropout
percentage is zero.
32. It is stated that in the last academic year, Lakshadweep
Administration was providing MDM food kits, instead of hot cooked
meals, which contain rice and cooking costs like oil, salt, dal etc. Ext.
R2(h) is the copy of the report submitted to the Ministry in that
regard. There are no malnourished students in the UT of
Lakshadweep; that the Administration is providing MDM till 12th
standard, though as per the Central Government guidelines, MDM is
mandatory only till 8th standard and the UT of Lakshadweep is
providing MDM for pre-primary students also. Cooking cost per child
per day as per the Government of India, MDM guideline, the ratio of
Central Share norms is as below:-
Classes Central share UT Share Total
Primary 4.97 16.52 21.49
Upper Primary 7.45 11.70 19.15
Preprimary ----- 23.19 23.90
It is submitted, per capita expenditure for MDM Scheme from UT
Share in Lakshadweep is highest in India.
33. The physician present in the Steering cum Monitoring
Committee meeting had suggested non-vegetarian items like fish, egg
and chicken and she also suggested dry fruits. Dry fruits were not
included in the earlier menu. The above opinion was taken into
consideration and therefore, dry fruits were added into the menu for
the first time. So also, fruits were included in the menu for two days.
For substituting chicken, the content of fish and egg has been
increased and this can provide a balanced nutrition to the children.
Fish and eggs are the ideal non-vegetarian food source for growing
kids as it is a rich source of protein, Vitamin-A, Omega 3, amino acid
and helps in growth and overall development of the children .
34. Further, it is contended that the objective of the midday
meals scheme is not to provide the same food items, which the
children normally get at their homes in the school also. In
Lakshadweep, meat and chicken are normally part of the regular menu
in almost all families. On the other hand, consumption of fruits and dry
fruits is very less among the islanders. Therefore, omitting meat and
chicken from the menu of mid-day meals scheme and inclusion of
fruits and dry fruits is perfectly in tune with the objective of the
midday meal scheme.
35. While making this slight change in the menu, the
Department has also taken into consideration the availability of food
items included in the earlier menu. Even though meat was there in the
earlier MDM menu, most of the time, it had to be substituted due to
non-availability. As per the guidelines of food safety and hygiene for
school level kitchen under MDM Scheme, for procurement of perishable
raw materials, 'the vegetables, fruits and perishable food commodities
should be procured fresh, and storing for a longer time/duration
should be avoided'. In light of the above, in the UT of Lakshadweep,
fresh fish is more easily available on a daily basis for consumption in
comparison to meat.
36. Further, maintaining hygiene while storing/ transporting
meat may be an issue. During monsoon season, it becomes more
difficult to bring sufficient quantities of meat for smooth functioning of
the MDM scheme. Fish, egg and dry fruits can be made available in an
easier way in Island's context. The non-availability of sufficient storage
facilities in the islands will not hamper providing nutritious midday
meals to the children, if meat and chicken are omitted from the menu.
Therefore, it is submitted that the decision to make slight changes in
the menu has been taken after considering all relevant circumstances
and without compromising the nutritional requirements.
37. It is further stated that the Department of Education is not
having any plan to entrust the implementation of MDM scheme to the
NGO namely "Akshayapathra". The petitioner is making incorrect
allegations to mislead this Court. Exhibit P6 order was passed because
the cooks were not having sufficient work to do. The schools were not
functioning properly due to the Covid 19 outbreak and therefore, the
MDM scheme was functioning through providing food kits to the
children. The cooks were engaged on a casual basis for 89 days and
when there is no work, those casual laborers will be disengaged to
prevent huge loss to the Government exchequer.
38. It is submitted that Exhibit P7 is the annual work plan and
budget prepared by the UT of Lakshadweep for the academic year
2020-2021 and therefore, the same is not applicable to the present
academic year. Every year, the annual work plan and budget is
prepared to suit the upcoming changes and proper allotment of
available funds and it is not necessary that the policies, plans and fund
allocation should be similar to the previous year and the same will
change every year. Providing nutritious food to the children is the
Government's concern and the same is not compromised anywhere as
alleged by the petitioner. There is no uniform structure for the MDM
scheme menu and the only aspect is that sufficient nutrition should be
provided. Nowhere in the Rules or the instructions issued by the
Central Government, it is mentioned that a certain menu should be
followed without interruption for years.
39. The allegations of the petitioner in paragraph 12 of the
statement of facts against the 3 rd respondent, according to the
respondents, are ill motivated and incorrect. The 3 rd respondent, as the
Head of the Union Territory Administration, has been acting in
accordance with law and the administrative reforms made by the
Lakshadweep Administration are all well within the Constitutional
framework. An organized and politically motivated campaign at the
behest of some political parties is going on against the Lakshadweep
Administration and the petitioner had filed this writ petition to
contribute to the political campaign.
40. It is also contended that the petitioner, despite being a
lawyer, is expressing his scant respect for the process of law as he is
raising an issue which was examined by this Court and decided in
favour of the Administration. The revision in the Covid SOP made in
the last week of December, 2020 was challenged before this Hon'ble
Court and all challenges were repelled by this Court. In W.P.(C)
No.1079 of 2021 and W.A No. 215 of 2021, a Division Bench of this
Court analysed the revised SOP in detail and rejected the challenge
against the same. It is also relevant to point out that despite the Union
Home Ministry directing removal of restrictions for interstate
movements long ago, the Lakshadweep Administration followed a strict
SOP restricting the movements to the islands till the last week of
December, 2020 and revised the same for rejuvenating the economic
activities and to bring back normalcy. The Administration provided free
quarantine facilities to thousands of persons moving to Lakshadweep
at Kochi and conducted thousands of free RTPCR tests at Kochi. The
Administration ensured required health care facilities in the islands and
managed the surge in covid cases effectively.
41. It is further submitted that, it is a basic principle that the
pleadings in a writ petition shall not be couched in defamatory,
scandalous and inappropriate language. Though he claims to be a
lawyer, the petitioner has repeatedly breached the said fair principle in
this writ petition, which is liable to be deprecated by this Court. He
alleges that some employees were disengaged by the Administration.
All those disengaged were casual employees or contract employees
having no right to continue in service permanently. Disengagement of
casual cooks in schools is due to non-functioning of schools due to
Covid pandemic and huge amounts were being paid to them with no
work. Similarly, casual employees working in the Tourism Promotion
Society had to be disengaged because tourism activities came to a halt
due to the pandemic. Disengagement of excess casual employees in
various establishments is a step to prevent loss to the public
exchequer. No Government can afford to keep casual employees
engaged and paid without any work and nobody has a right to compel
any Government to do so. It is not a matter which can be examined in
a Public Interest Litigation, as it is purely a service matter. The
averment regarding the regulations proposed by the Administration is
also devoid of merits and the challenge against the proposed
regulations has already been rejected by Division Benches of this
Court.
42. It is further contended that the decision to increase
shipping operations from Mangalore has been taken because of various
valid reasons. The said port is closer to several islands of Lakshadweep
compared to Beypore. Facilities available at Mangalore are much better
than that of Beypore. Operating of ships and barges from Mangalore
will help to reduce time taken for operations to many of the islands
and also for reduction of expenses. Allegations like political reasons
raised by the petitioner are totally incorrect and it, in fact, reveals the
political agenda of the petitioner.
43. According to respondents 2 to 7, the allegation that the
ban on liquor has been lifted, cannot be sustained. Lakshadweep
Prohibition Regulation provides for granting of licences for consumption
and sale of alcohol. Recently licences were issued to the Tourism
Promotion Society (SPORTS) under the Administration to serve liquor
in three of its beach resorts in three different islands to non-islanders.
This was done for the purpose of catering to the needs of the tourists
and issuance of the lenience is perfectly in accordance with the
provisions of the Regulations.
44. Therefore, it is contended that Exts. P2 and P4 reflect sound
policy decisions taken for valid reasons as explained above and they
are not liable to be interfered with in exercise of the jurisdiction under
Article 226 of the Constitution of India and therefore, the first relief is
not liable to be granted. The second relief is also not liable to be
granted as it is nonspecific and unsubstantiated. Moreover, it is in the
nature of a prohibition against all reforms. Relief No. 3 is with regards
to some proposed Regulations. Hon'ble Division Benches of this Court
have already rejected such prayers and therefore, the matter cannot
be re-agitated. Moreover, the petitioner has not even cared to produce
the copies of the draft Regulations mentioned as exhibits in this writ
petition. The petitioner has not satisfied the basic requirements of
pleadings and evidence in a writ petition in this regard and therefore,
the petitioner is not entitled for any reliefs in this case. Further, the
petitioner has approached this Court without even basic verification of
facts and raising misleading contentions and seeking untenable reliefs.
Hence, they prayed for the dismissal of the writ petition.
45. A reply affidavit is filed by the petitioner refuting the
contentions raised in the counter affidavit and has also produced
certain documents in order to establish that the poultry farms as well
as the cattle farms maintained by the Animal Husbandry Department
were making steady progress and therefore, the contention advanced
in the counter affidavit that the farms are not ecologically viable,
cannot be sustained under law.
46. We have heard the learned counsel for the petitioner Sri.
Peeyus A. Kottam and the learned senior Central Government Counsel
for the Government of India and the Union Territory of Lakshadweep,
Sri. Manu S, and perused the pleadings and materials on record.
47. The primary question arises for consideration is whether any
manner of interference is warranted to Ext. P2 order passed by the
Director of Animal Husbandry dated 21.05.2021 to close down the
farms and sell off the poultry as well as the animals, and whether any
interference is required to the minutes of the meeting of the Union
Territory Level Steering Cum Monitoring Committee and the District
Task Force midday meal held on 21.07.2021.
48. According to the petitioner, the animal Husbandry
Department has started farms in order to educate the people of the
Union Territory of Lakshadweep in farming and other allied activities
and therefore, the attempt of the Administrator to close down the farm
is against the interest of the residents of the Union Territory of
Lakshadweep and that too the decision was taken without any
discussion and therefore, arbitrary and illegal. So also, it is contended
that in Ext. P4, minutes of the meeting, no reasons are assigned to
modify the menu deleting chicken and meat from the midday meal
scheme. According to the petitioner, chicken and meat were included in
the midday meal programme taking into account the food habits of the
residents of the Lakshadweep. It was also contended that the meat
and chicken were included in the midday meal programme also to
attract the children to attend the schools, apart from the wholesome
nature of the meal served to the students.
49. On the other hand, learned Senior Central Government
Counsel, apart from the submissions discussed above, submitted that
meat and chicken were excluded, but fish, which is commonly available
in the Lakshadweep island, is included on more days, apart from egg,
fruits and dry fruits. It was also submitted that the midday meal
scheme was introduced at the national level, and relied upon the
midday meal scheme introduced in the State of Goa, West Bengal,
Puducherry etc. It was submitted that even though in those States,
the public and children are consuming meat, meat products and other
non-vegetarian items, only eggs are supplied along with the midday
meal. Therefore, according to the learned Central Government
Counsel, it was on the basis of the National programme for serving
midday meal, reforms are made in the Lakshadweep also, and there is
no hidden agenda or malicious intention on the part of the
Administrator in modifying the midday meal menu of the students of
the Union Territory of Lakshadweep as alleged.
50. We have evaluated the rival submissions made across the
Bar. First, we will deal with Ext. P2 order passed by the Director,
Animal Husbandry, by which in consonance with the direction issued by
the Secretary (Animal Husbandry) Union Territory of Lakshadweep, the
dairy farms run by the Department of Animal Husbandry were directed
to be close down and the animals were directed to be auctioned.
Pursuant to Ext. P2 direction, as per Ext. P3 order dated 28.05.2021,
the Director, Animal Husbandry Department was directed to dispose of
the animals maintained in the dairy farms by conducting auction in
accordance with law.
51. Of course, the learned counsel for the petitioner has a
contention that the Department of Animal Husbandry was introduced
in the Lakshadweep islands in order to promote the production of
poultry in the islands of Union Territory of Lakshadweep and also to
provide avocation and earning to the residents of the islands which is
separated from the mainland. On going through the facts and figures
projected by the Lakshadweep administration in the counter affidavit
filed, it is clear that there are 34 animals in the dairy farms at
Kavaratti and a total number of 14 casual labourers are working in the
farm. However, the average milk production is only 87 litres per day. It
is also clear that the population of the island is about 10000 and the
total expenditure during 2019-2020 was Rs.62,46,924/-, whereas the
revenue generated was only Rs.11,35,330/- and the deficit was
Rs.51,11,594/-. Likewise, during the year 2020-2021, the total
expenditure was Rs. 57,95,691/-. However, the total revenue
generated was Rs. 14,19,301/- and thus, the deficit of Rs.43,76,390/-.
52. Similarly, the population in Minicoy Island is just about ten
thousand and the dairy farm is catering to the requirements of only
about 150 to 200 people. The total expenditure during 2019-2020 was
Rs. 65,13,374/- and the total revenue generated was only
Rs.12,12,301/- and therefore, there was a deficit of Rs.53,01,073/-.
During 2020-2021, the total expenditure was Rs.51,32,551/-.
However, the revenue generated was only Rs.11,75,440/- and thus,
there is a deficit of Rs. 39,57,111/-. Thus, the total loss of the two
dairy farms during 2019-2020 and 2020-2021 were Rs. 94,87,984/-
and Rs.92,58,184/- respectively.
53. Therefore, we find force in the contention advanced by the
learned counsel for the Lakshadweep Administration that dairy farms
together cater to the needs of only 300-400 people; whereas, the total
population of the 2 islands are more than 20000 and the
administration had to suffer a loss of more than Rs.90 lakhs per
financial year as specified above.
54. That apart, we find force in the contention advanced by the
learned counsel for the Administration that due to the geographical
conditions of the islands non availability of green fodder cannot be
ruled out, which, in fact, will interfere with the smooth conduct of the
animal husbandry activities and less production of milk. It was
accordingly that the Administration decided to close down the farms.
True, from Ext. P2, it is not discernible as to the facts and figures that
are projected by the Lakshadweep Administration in its counter
affidavit; but, at the same time, our attention was invited by the
learned counsel for the Lakshadweep Administration to Ext. R2(a)
meeting notice dated 17.04.2021, which reads thus:
"F. No. 41/2/2021-Fin. Dated 17.04.2021
Meeting Notice
Sub: Meeting to review over all functioning of the Departments-
Regarding.
Sir,
The Advisor to Hon'ble Administrator has desired to convene a meeting
to review the overall functioning (staff strength, Budget, schemes etc.) of the
following departments and as such it is desired to convene a meeting of
following departments from 19.04.2021 to 23.04.2021 at Secretariat
Conference Hall as detailed below:
Sl. Departments Date Time
No.
1 Environment and Forests 19.04.2021 10 am to 11.30 am
2 Agriculture 19.04.2021 3.30 p.m to 4.30 pm
3 Fisheries 20.04.2021 10.30 am to 11.30 am
4 Animal Husbandry 20. 04.2021 3.30 pm to 4.30 pm
5 Health 21.04.2021 10 am to 11 am
6 LPWD 21.04.2021 3.30 pm to 4.30 pm
7 Port Shipping and 22.04.2021 10.30 am to 11.30 pm
Aviation
8 Women Child and 22.04.2021 3.30 pm to 4.30 pm
Development
9 Sports and Youth Affairs 23.04.2021 10.30 am to 11.30 am
10 Electricity 23.04.2021 3.30 pm to 4.30 pm
Therefore, the Secretaries and Head of Department of concerned
Departments are directed to make it convenient to attend the meeting in time
along with details in the formats attached herewith. The Department should
also give details of Autonomous bodies/societies etc. under its administrative
control in the presentation. Further, Dept. should bring the soft copies of the
details for projection at the time of meeting.
The issues with the approval of Secretary (Finance), UTLA.
Yours faithfully,
Accounts Officer (Secretariat)"
55. Therefore, taking into account the contentions raised in the
counter affidavit as well as the meeting notice dated 17.04.2021, it is
clear that a prior decision was taken by the Administration in a
meeting held on 20.04.2021 to close down the farms. In fact, Ext.
R2(b) dated 16.04.2021 shows that as directed by the Secretary,
Animal Husbandry, a self contained note was prepared on the
operation of the two dairy farms in Minicoy and Kavaratti Islands. The
status of the Kavaratti Dairy farm as well as the Minicoy dairy farms
are also detailed.
56. On a reading of Ext. R2(b), a self contained note of the
review meeting scheduled on 20.04.2021, it is explicit and clear that a
detailed and elaborate discussions were held in respect of the dairy
farms and arrived at a conclusion that the dairy farms are conducted
at a huge loss and it was accordingly that a decision was taken to close
down the units. Therefore, the contention advanced by the writ
petitioner that no reasons are assigned in Ext. P2 order of the Director,
Animal Husbandry dated 21.05.2021, cannot be sustained under law.
Even though a reply affidavit is filed by the petitioner to the counter
affidavit filed by the Lakshadweep Administration, the facts and figures
discussed above and the review meeting held on account of the two
cattle farms are not disputed.
57. Therefore, it is clear that it was on the basis of a policy
decision of the Administration that the Director, Animal Husbandry was
directed to close down the farms and to dispose of the animals in the
auction held. The second question that emerges for consideration is in
respect of the modification made by the Administration to midday meal
scheme. From Ext. P7 National Programme of Midday Meal in Schools
for the Union Territory of Lakshadweep for the financial year 2020-
2021, it is clear that the menu for the midday meal scheme contained
rice, dhal, fish, green gram, meat, chicken, eggs etc., and are provided
to the students distributed from Monday to Friday. The said menu
reads thus:
Sl. No. Days Food Items
1 Monday Rice/Dhal/fish, green gram
2 Tuesday Rice/Dhal/Egg/green gram
3 Wednesday Rice/Dhal/Egg/green gram/meat
4 Thursday Rice/Dhal/green gram/chicken
5 Saturday Rice/Dhal/green gram/meat
6 Sunday Rice/Dhal/green gram/egg
Note: Above items are served according to the availability of items in the local
market.
58. However, it is mentioned by providing a note that the above
items are served according to the availability of items in the local
market. It is also stated that additional food items provided are fruits,
milk and any other items, if any from the State/UT resources. It is also
specifically mentioned in Ext. P7 that egg, fish, chicken, fruits etc. are
served as additional items in the midday meal according to the
availability of the items in the local market.
59. On a close analysis of Ext. P4 order passed by the Director
of Education dated 15.02.2021 and the minutes of the meeting of UT
Level Steering Cum Monitoring Committee and the District Task Force,
attached to the order, for the implementation of the midday meal
scheme was held under the Chairmanship of the District Collector, UT
of Lakshadweep on 27.01.2021 at the Secretariat Conference Hall,
Kavaratti.
60. In order to evaluate the circumstances pointed out by the
petitioner, it is only appropriate that relevant portions of the minutes
of the meeting are extracted:
Minutes of the meeting of U.T Level Steering Cum Monitoring Committee
(UTSMC) & District Task Force on Mid Day Meal held on 27,01.2021
The meeting of U.T. Level Steering Cum Monitoring Committee and District
Task Force on Mid Day Meal was held in the Secretariat, Conference Hall,
Kavaratti at 04.30PM on 27.01.2021 under the Chairmanship of Collector, UT
of Lakshadweep.
Smt.C.P Subaidabi, Nodal Officer of MDM & Education Officer,
Department of Education U.T.of Lakshadweep welcomed the Chairman and
other dignitaries attended for the meeting & briefed the status of
implementation of the Mid Day Meal Scheme with the support of a Power
Point Presentation on Action Taken Report of last UTSMC meeting held on
11.11.2020. The following agenda points have been discussed in the meeting.
1. While discussing the UTL MDM transfer to Akshayapatra, the
Education officer briefed the Akshayaptara and also informed that the
Akshayapatra is Non Govt. Organization. Education Officer informed that as
per the letter receíved from the Planning and Statistical Department, Kavaratti
it is requested to submit the detailed report of MDM functioning at UTL in this
regards department submítted the detailed report on MDM.
All DP members and PCC reminded that the present MDM is
functioning in all schools as per the Guidelines, and to the satisfaction of all
stake holders, as well as children and so far no complaints has been received
under Mid Day Meal. DE informed that other states have shifted food preparing
in cenralized kitchen but in Lakshadweep we are having separate kitchen in all
schools and in UTL all lslands have not well connected road to distribute food
from centralised kitchen. At last Director of Education suggested to write a
letter to Akshayapatra but the chair opined that an informal talk can made with
the Akshayapatra regarding the implementation of MDM in UTL.
All members opined that, in UTL food habits of children is different
from the other states and food habits in UTL couldn't cope up with
Akshayapatra norms it is better to continue the present system.
(Action: Director of Education)
2. In the discussion for providing hot cooked meal instead or ration KIT,
the committee members expressed their view to continue ration KIT since the
covid-19 positive cases noticed in Kavaratti. The chair asked about whether
children have come to schools and also functioning school in all Islands. EO
informed that, now in kavaratti Island schools have been closed due to covid
-19 positive cases and remaining islands all schools have regular classes.
The chair suggested continuing ration KIT at Kavaratti and start cooked
meal in remaining Islands. The DP member Noorjahan informed that hardly
one or two month is remaining to complete this academic year and starting hot
cooked meal in schools, may cause spreading of COVID-19 among children
and in this academic year it is better/safe to continue the KIT instead of hot
cooked meal.
(Action: Director of Education)
3. In the purchase of items under MDM, chair suggested to purchase
MDM items through Open Tender mode from next financial year onwards.
Purchasing through tender will open a wide opportunities to local
suppliers/Islanders. The chair informed that the Society is not following proper
GFR norms in many Islands while selling commodities. The members
requested the chairs to control the price rate if it is given through open tender.
The chair agreed to form a monitoring committee to supervise purchase
through open tender.
(Action: Director of Education)
4. During the discussion on the existing menu, EO informed that the egg,
mutton, chicken and fish are providing as a non-veg items along with the
Vegetable. All the DP Members and PCC informed that considering the food
habits of children in UTL, it is required to provide the chicken along with the
egg & fish. At last the Dr. Haseena, Physician informed that the non-vegetarian
food (like fish, chicken, egg) is essential for growth of children and also
informed Children need a healthy balanced diet containing foods from each
food group(veg along with non-veg) so they get a wide range of nutrients to
help them stay healthy. She also advised to include Dry Fruits in the Menu.
After detailed deliberation, the committee has recommended the following
menu for MDM Programme for the schools under the Department of
Education, UTL.
...
The meeting concluded with thanks to Chair and members by C.P.
Subaidabi, Education Officer.
This is issued with the approval of the Collector and Chairman, U.T
Level Steering Cum Monitoring Committee and District Task Force on Mid
Day meal vides By. No. 165 dated 15.02.2021.
(Rakesh Shingal, Danics)
Director of Education
61. It is true, all the District Panchayat members and the
others present in the meeting opined that the food habits of the
children of Union Territory of Lakshadweep is different from other
States and the food habits in the Lakshadweep may not cope up with
the "Akshayapatra" norms and therefore, it is better to continue the
present system. Apparently, Akshayapatra is a Non-Governmental
Organisation supplying food in the midday meal scheme in other
States. However, during the course of the meeting, it was informed by
the Executive Officer that the egg, mutton, chicken and fish are
provided as non-vegetarian items along with the vegetables.
62. It is also true that the District Panchayat members and
other committee members informed that considering the food habits of
children in Lakshadweep, it is required to provide chicken along with
egg and fish. It is also clear from the minutes that Dr. Haseena, a
Physician, informed that the non-vegetarian food like fish, chicken, egg
etc. are essential for growth of children and also informed that the
children need a healthy balanced diet containing foods from each food
group, i.e., vegetarian along with non vegetarian, so that they can get
a wide range of nutrients to help them stay healthy. The physician is
also advised to include dry fruits in the menu. However, after a
detailed deliberation, the Committee has recommended the following
menu for midday meal scheme for the Department of Education, Union
Territory of Lakshadweep:
Sl. No. Days Food Items
1 Monday Rice, Dhal, fish, green gram, fruits
2 Tuesday Rice, Dhal, Egg, Green gram
3 Wednesday Rice, Dhal, Green gram, fish, fruits
4 Thursday Rice,Dhal,Green Gram, Egg/fish
5 Saturday Rice, Dhal, Green Gram, egg, fruits/Dry fruits
6 Sunday Rice, Dhal, Green Gram, egg/fish
Note: Fruits and Non veg are provided according to the availability of items
in the local market.
63. Therefore, it is clear that even though various suggestions
were made during the meeting, finally it was decided to exclude meat
and chicken from the midday meal scheme. However, it is seen that
when compared to the earlier menu extracted above, as per Ext. P4,
fish and egg are included on more days, apart from including fruits and
dry fruits. It was also decided in the meeting that a Food Monitoring
Committee is to be set up in the island level and the Chairman as well
as the members suggested that the existing island Level Committee
may submit a monthly report of the food testing or any other issues
related under the midday meal scheme to to the Department of
Education through the Principals of the schools concerned. It is also
clear from Ext. P4 that the committees are modified in accordance with
the suggestions made in the meeting. It is also clear from Annexure A
attached to Ext. P4 that the District Collector, the President of the
District Panchayat, Director of Education, Physician and officials of
various Departments totalling to 18 persons participated in the
meeting.
64. Even though the petitioner has a contention that the
Administration has decided to entrust the supply of midday meals to
Akshayapatra, it is not discernible from any of the official documents
produced by the petitioner. However, the petitioner has produced
certain extracts available in the web site, from where it is discernible
th
that on 28 November, 2001, the Supreme Court of India has passed
an order "cooked midday meal is to be provided in all the Government
and Government Aided Primary Schools in all the States" and
Akshayapatra was also called upon to provide testimonies to the
Supreme Court. It is also contained in Ext. P5 that Akshayapatra has
52 kitchens spread across 12 States and 2 Union Territories of India.
Therefore, it is only a speculation of the petitioner that there is a
likelihood of the Administration entrusting "Akshayapatra" with the
midday meal scheme. We do not find much force in the said
contention.
65. On the other hand, the Lakshadweep Administration has
produced Ext. R2(c) Guidelines for the midday meal scheme issued by
the National Programme of Nutritional Support to Primary Education,
2006, wherein the programme management, Quality and Safety
Aspects, Annual Work Plan and Budget and Flow of Central Assistance,
Monitoring and Evaluation etc. are provided, from where it is clear that
it needs to be explained to the parents belonging to weaker sections
that 'School Midday Meal is meant to be in addition to, and not a
substitute for, the meals which parents should in any case provide to
children at home or were so providing prior to the introduction of the
Cooked Midday Meal Programme'. It is also clear that importance has
to be given to balanced and nutritious meals and how to provide them
economically, taking into account the safety, health and hygienic
aspects.
66. Administration has also produced the midday meal scheme
of Andaman and Nicobar Islands for the academic year 2020-2021,
wherein the weekly menu contains rice with vegetable and dhal, pulao
with soya bean, salad and papad, fermented food like idli or dosa with
sambar or chatni, Pulav with Chana Sabji, Salad and Papad, rice with
vegetables and sambar etc.
67. Likewise, the midday meal scheme for the State of Goa for
the academic year 2020-2021 shows that the weekly menu contains
only the vegetarian items like Chole Bhaji and Pav/Poli, Masoor Bhaji
and Chapati and other vegetarian items. The midday meal scheme of
the State of West Bengal for the academic year 2020-2021 shows that
apart from the vegetarian items, only egg is provided. The midday
meal scheme of the Union Territory of Puducherry for the academic
year 2020-2021 shows that apart from the vegetarian items, only egg
is provided and that too, on 2 days in a week.
68. Taking into account those aspects and on an overall
analysis, it can be seen that the contention advanced by the petitioner
that the Administrator has taken steps to see that the traditional food
habits of the children of Lakshadweep alone is stopped unilaterally and
with belligerence cannot be sustained under law.
69. Learned counsel for the petitioner Sri. Peeyus A Kottam has
invited our attention to the judgment of the Apex Court in Hari
Krishna Mandir Trust v. State of Maharashtra and others [(2020)
9 SCC 356] and in particular to paragraph 100, wherein it is held that
the High Courts exercising jurisdiction under Article 226 of the
Constitution of India, not only have the power to issue a writ of
mandamus or in the nature of mandamus, but are duty bound to
exercise such power, where the Government or a public authority has
failed to exercise or has wrongly exercised discretion conferred upon it
by a Statute, or a Rule, or a policy decision of the Government or has
exercised such discretion mala fide, or on irrelevant consideration. No
doubt, if situation warrants, the High Court, exercising power under
Article 226 of the Constitution of India, has to rise to the occasion and
to issue necessary directions so as to ensure protection of freedom
and liberty guaranteed to the citizens of this country, and it can even
interfere with any policy decision, if it is arbitrary and illegal.
70. Learned counsel has also invited our attention to the
judgment of the Apex Court in Kerala State Beverages (M& M)
Corporation Limited and others v. P.P. Suresh and others
[(2019) 9 SCC 710] and invited our attention to paragraph 26 dealing
with 'judicial review and proportionality', which reads thus:
"C. Judicial Review and Proportionality
26. The challenge to the Order dated 7-8-2004 by which the
respondents were deprived of an opportunity of being considered for
employment is on the ground of violation of Articles 14, 19 and 21
of the Constitution of India. Lord Diplock in Council of Civil
Service Unions v. Minister for the Civil Service [Council of Civil
Service Unions v. Minister for the Civil Service, 1985 AC 374 :
(1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] held that the
interference with an administrative action could be on the grounds
of "illegality", "irrationality" and "procedural impropriety". He was
of the opinion that "proportionality" could be an additional ground
of review in the future. Interference with an administrative decision
by applying the Wednesbury [Associated Provincial Picture Houses
Ltd. v.Wednesbury Corpn., (1948) 1 KB 223 (CA)] principles is
restricted only to decisions which are outrageous in their defiance
of logic or of accepted moral standards that no sensible person who
applied his mind to the question to be decided could have arrived at
it."
71. The sum and substance of the contention advanced by the
learned counsel for the petitioner is that merely because the farm is
running in a loss, that will not enable the Administration to close down
the farm, since the main intention of starting the farm was to educate
the islanders and to find out avocation to the inhabitants. It was also
submitted that when the Administration has interfered with the
traditional food habits of having meat and chicken along with the
midday meals of the islanders, this Court has to step in and set aside
the same.
72. On the other hand, Sri. S. Manu, learned Standing Counsel
for the Lakshadweep Administration has invited our attention to
judgments of the Apex Court in Balco Employees Union v. Union of
India (UOI) and Ors [(2002) 2 SCC 333], State of Orissa and
others v. Gopinath Dash and others [(2005) 13 SCC 495], Duncan
Industries Ltd. And others v. Union of India [(2006) 3 SCC 129],
State of M.P and others v. Nandlal Jaiswal and others [(1986) 4
SCC 566], Tamil Nadu Generation and Distribution Corporation
Ltd. (TANGEDCO) and others v. CSEPDI -Trishe Consortium and
others [(2017) 4 SCC 318], State of Punjab and Ors. v. Ram
Lubhaya Bagga and Ors. [(1986) 4 SCC 566]. The principles that
were culled out by the Apex Court in the aforequoted judgments are
extracted hereunder:
73. In Balco Emplovees Union, it is held that it is not for the
courts to consider relative merits of different economic policies and
consider whether a wiser or better one can be evolved. In the sphere
of economic policy or reform, the court is not the appropriate forum
for evaluation. In the case of a policy decision on economic matters,
the courts should be very circumspect in conducting any enquiry or
investigation and must be most reluctant to impugn the judgment of
the experts who may have arrived at a conclusion, unless the Court is
satisfied that there is illegality in the decision itself. Judicial
interference with the administration cannot be meticulous in our
Montesquieu system of separation of powers. The Court cannot usurp
or abdicate, and the parameters of judicial review must be clearly
defined and never exceeded. It is neither within the domain of the
Courts nor the scope of the judicial review to embark upon an enquiry
as to whether a particular public policy is wise or whether better public
policy can be evolved. The Courts have consistently refrained from
interfering with economic decisions as it has been recognised that
economic expediencies lack adjudicative disposition. The policies of
the Government ought not to remain static. With the change in
economic climate, the wisdom and the manner for the Government to
run commercial ventures may require reconsideration. What may have
been in the public interest at a point of time may no longer be so.
74. In Gopinath Dash, it is held that the court is not an
appellate authority, while exercising the power or judicial review of
administrative action. In decision making, the Government taking one
course of action instead of another is not a matter of concern in
judicial review and the court is not an appropriate forum for analysing
the merits of the options. In assessing the propriety of a decision of
the Government, the court cannot interfere even if another view is
possible from that of the Government.
75. In Duncan Industries Ltd. and others, it is held that
Article 14 does not require the court to examine the intricacies of an
economic scheme or pricing policy for its merits and correctness, for
that is in the domain of the executive or the legislative branches of the
Government. In matters of administrative discretion, it is not open to
the courts to interfere.
76. In Nandlal Jaiswal, the Government should be allowed
some play in the joints, because it has to deal with complex problems,
which do not admit a solution through any doctrinaire or strait jacket
formula. In complex economic matters, every decision is necessarily
empiric and it is based on experimentation or what one may call 'trial
and error method'. The court cannot strike down a policy decision
taken by the State Government merely because it feels that another
policy decision would have been fairer or wiser or more scientific or
logical.
77. In Tamil Nadu Generation and Distribution
Corporation Ltd., in a complex fiscal evaluation, the court has to
apply the doctrine of restraint. Several aspects, clauses, contingencies
etc. have to be factored. These calculations are best left to experts and
those who have knowledge and skills in the field. The courts cannot
really enter into the said realm in exercise of power of judicial review.
78. In Ram Lubhaya Bagga and ors., it is held that when the
Government forms its policy, it is based on a number of circumstances
on facts, law including constraints based on its resources. It is also
based on expert opinion, it would be dangerous if the court is asked to
test the utility, beneficial effect of the policy or its appraisal based on
facts set out on affidavits. The Court would dissuade itself from
entering into this realm which belongs to the executive. The right of
the State to change its policy from time to time, under the changing
circumstances is neither challenged nor could it be.
79. According to the learned Central Government Counsel, the
petitioner could not establish any case of arbitrariness and illegality to
interfere with the policy decision of the administration in the matter of
the midday meal scheme. We find force in the said contention,
because in no other Union Territories and States, meat is used in the
midday meal scheme, however a limited variety of non-vegetarian
items like egg and fish alone are included. Therefore, it cannot be said
that the students of the Union Territory of Lakshadweep alone are
singled out in the matter of the midday meal scheme.
80. Moreover, it is clear from the policy of the National
Programme of Mid-day meal that what is relevant is the nutritional
value of the food and not the kind of food supplied. It is also relevant
and significant to note that the midday meal scheme is launched by
the Government to serve midday meals to the school going children,
which would, in no way, interfere with the food habits of the children at
home.
81. It is also clear from the National Programme of Nutritional
Support to Primary Education, 2006 that importance is given to
balanced and nutritious meals, and how to provide them economically,
taking into account safety, health and hygiene aspects.
82. In our considered opinion, except the bald assertions made
in the writ petition and the reply affidavit that the new Administrator
has made every endeavour to interfere with the traditional food habits
of the children of the Union Territory of Lakshadweep, however the
allegations are not supported by any evidence, taking into account
various material aspects discussed above, including the manner in
which the midday meal scheme was implemented in various Union
Territories and States.
83. Moreover, a writ court considering such policy aspects need
only be considered whether there was any arbitrariness, illegality or
unfairness on the part of the authority while exercising the power
conferred under law. The Administration of the Union Territories are
guided by Article 239 of the Constitution of India, wherein it is clearly
specified that save as otherwise provided by Parliament by law, every
Union territory shall be administered by the President acting, to such
extent as he thinks fit, through an administrator to be appointed by
him with such designation as he may specify. Article 240 confers
power on the President of India to make regulations for the peace,
progress and good government of the Union territory of the
Lakshadweep and Andaman and Nicobar Islands, Dadra and Nagar
Haveli, Daman and Diu and Pondicherry.
84. When the Administrator has taken necessary steps for the
progress and good Governance of the Union Territory of Lakshadweep,
it can only be seen as a power exercised by the President conferred
under Article 239 r/w Article 240 of the Constitution of India.
Moreover, the Apex Court had occasion to consider the issue of the
midday meal scheme in the judgment in Swaraj Abhiyan v. Union
of India and others [(2016) 7 SCC 498] in the realm of National
Food Security Act, 2013 and the standards for the calorific and
nutritional contents for children prescribed under the midday meal
scheme. In fact, continuous mandamus were being issued by the Apex
Court in Swaraj Abhiyan and as per the judgment dated 11.05.2016,
the Apex Court considered the question as to whether any positive
directions can be issued to the State Government to make available to
the needy persons any items over and above what is mandated by the
Act, 2013, such as lentil and edible oil or any other item for that
matter to all households in the drought-affected areas and held as
follows:
"110. We find force in the submission of the learned Additional
Solicitor General that no mandamus can be issued by this Court to the
State Governments to implement the NFS Act beyond what is required
by the terms and provisions of the statute. In other words, it is not
possible for us to issue a positive direction to the State Governments
to make available to needy persons any item over and above what is
mandated by the NFS Act, such as dal/lentil and edible oil (or any
other item for that matter) to all households in the drought-affected
areas. Today, Swaraj Abhiyan prays for the supply of dal/lentil and
edible oils; tomorrow some other NGO might pray for the supply of
some other items. This might become an endless exercise and would
require us to go beyond what Parliament has provided. While this
Court or any other constitutional court can certainly intervene, to a
limited extent, in issues of governance it has also to show judicial
restraint in some areas of governance, and this is one of them.
116. As far as the present case is concerned, there is no doubt that
provision of foodgrains as per the provisions of the NFS Act is a
statutory obligation on the State. This Court can certainly direct the
State to faithfully implement the provisions of the NFS Act.
Unfortunately, there is no statutory or constitutional obligation on the
State to provide edible oils and dal/lentil to people in distress. If these
items were vital for the survival of the people, this Court would have
surely directed their distribution. But there is nothing to suggest that
without edible oils and dal/lentil the fundamental right of the people in
drought-affected areas guaranteed under Article 21 of the Constitution
is violated. We therefore cannot reasonably read into the Constitution
or the law something that is not there. ...
124. As far as the provision of eggs or milk for mid-day meals is
concerned, there is no dispute that calorific and nutritional contents
for children have been prescribed under the Mid-Day Meal Scheme.
How that standard is to be met is for each State Government to decide
and no direction can be given in this regard by this Court. Apart from
milk and eggs, there are other nutritional items that can be provided,
such as chana or gram. However, it is unfortunate that neither milk nor
eggs or anything else is provided under the Mid-Day Meal Scheme in
Bihar, Haryana and Uttar Pradesh. Even in the States that we are
concerned with, eggs or milk is not being provided to the beneficiaries
on a daily basis or 5 days in a week, except in Chhattisgarh where
eggs are provided for 6 days in a week. In other States that provide
eggs or milk, the provision varies from one day to three days per
week.
125. No one can doubt that children are the future of our country and
if there is some stinginess in providing them with adequate nutrition,
the country as a whole is deprived in future of taking the benefit of
their potential. Therefore, the calorific and nutritional requirements
mentioned by the Union of India cannot be treated as the maximum
requirements but only as the minimum requirements."
85. Now, coming to Article 47 of the Constitution of India, the
State has an obligation to raise the level of nutrition and the standard
of living and to improve public health, which clearly specifies that the
State shall regard the raising of the level of nutrition and the standard
of living of its people and the improvement of public health as among
its primary duties and, in particular, the State shall endeavour to bring
about prohibition of the consumption, except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health.
86. It is true, the issue is to be considered in the realm of
Article 21 of the Constitution of India, by which every citizen of this
country, including the children, are entitled, as of right, to have
sufficient quantity of quality food. However, nobody can insist the
State/Union Territory or the Government of India to provide them any
particular kind of food in the programme envisaged by the respective
Governments.
87. In the Act, 2013, the word 'food security' is defined under
Section 2(6) to mean the supply of the entitled quantity of foodgrains
and meal specified under Chapter II, and Section 5 of Chapter II
delineates the manner in which the nutritional support is to be
provided to the children and it is categorically stated that the food
shall be supplied so as to meet the nutritional standards specified in
Schedule II. The Act, 2013 confers a right on every citizen to have
food articles sufficiently in quantity and quality. In that context, it is
profitable to extract Schedules II and III of the Act, 2013, which read
thus:
SCHEDULE II
[See sections 4(a), 5(1) and 6]
Nutritional Standards
Nutritional standards: The nutritional standards for children in the age group of
6 months to 3 years, age group of 3 to 6 years and pregnant women and
lactating mothers required to be met by providing "Take Home Rations" or
nutritious hot cooked meal in accordance with the Integrated Child
Development Services Scheme and nutritional standards for children in lower
and upper primary classes under the Mid Day Meal Scheme are as follows:
--------------------------------------------------------------------------------
Sl.No. Category Type of meal Calories(Kcal) Protein
(g)
------------------------------------------------------------------------------------------------------------
1. Children (6 months to 3 years) Take Home Ration 500 12-15
2. Children (3 to 6 years) Morning Snack and
Hot Cooked Meal 500 12-15
3. Children (6 months to 6 years)
who are malnourished Take Home Ration 800 20-25
6. Pregnant women and
Lactating mothers Take Home Ration 600 18-20
------------------------------------------------------------------------------------------------------------
This Schedule specifies the nutritional standards for meals and take home ration
to be provided under the proposed legislation to children and pregnant women and
lactating mothers. (Notes on clauses)
SCHEDULE III
[See section 31]
PROVISIONS FOR ADVANCING FOOD SECURITY
(1) Revitalisation of Agriculture ―
(a) agrarian reforms through measures for securing interests of small and
marginal farmers;
(b) increase in investments in agriculture, including research and
development, extension services, micro and minor irrigation and power
to increase productivity and production;
(c)ensuring livelihood security to farmers by way of remunerative prices,
access to inputs, credit, irrigation, power, crop insurance, etc.;
(d) prohibiting unwarranted diversion of land and water from food
production.
(2) Procurement, Storage and Movement related interventions ―
(a) incentivising decentralised procurement including procurement of
coarse grains;
(b) geographical diversification of procurement operations;
(c) augmentation of adequate decentralised modern and scientific
storage;
(d) giving top priority to movement of foodgrains and providing
sufficient number of rakes for this purpose, including expanding the line
capacity of railways to facilitate foodgrain movement from surplus to
consuming regions.
(3) Others: Access to ―
(a) safe and adequate drinking water and sanitation;
(b) health care;
(c) nutritional, health and education support to adolescent girls;
(d) adequate pensions for senior citizens, persons with disability and
single women.
This Schedule lists the objectives to be progressively realised by
the Central Government, State Governments and local authorities for
advancing food security, (Notes on Clauses)"
88. So also, the Apex Court had occasion to consider the impact
of Act, 2013 in the realm of Article 21 of the Constitution of India in
Dipika Jagatram Sahani v. Union of India [(2021) 2 SCC 740]. The
issue considered by the Apex Court thereon was the closure of the
Anganawadi centres across the country and inadequate supply of
nutritious food to the citizens, more particularly to the children and the
women in violation of the fundamental right to live with dignity under
Article 21 of the Constitution of India.
89. After analysing the provisions of the Act, 2013, it was held
that it is now a statutory obligation of the Centre and the States to
provide for nutritional support to the pregnant women and lactating
mothers, nutritional support to children and to take steps to identify
and provide meals for children who suffer from malnutrition.
Paragraphs 20, 21 and 35 are relevant to the context and they read
thus:
"20. As observed above, it is now statutory obligation of the
Centre and the States to provide for nutritional support to the pregnant
women and lactating mothers, nutritional support to children and to take
steps to identify and provide meals for children who suffer from
malnutrition. The Government has a constitutional obligation to
preserve human life. Good health of its citizens is its primary duty.
International covenants also aim at highest attainable standards of
physical and mental health. This is in interest of social justice.
Inadequate supply of nutritious food to the citizens, more particularly to
the children and the women shall affect their health. Therefore, the same
shall be in violation of their fundamental right to health/right to live
with dignity guaranteed under Article 21 of the Constitution.
21. The Centre as well as the States are statutorily obliged to
implement statutory obligation as imposed under Sections 4, 5 and 6 of
the 2013 Act. The nutritional support is required to be of the nutritional
standards which have already been laid down to Schedule II of the 2013
Act and all States/UTs are obliged to implement such Scheme and have
to comply with Schedule II. The main emphasis in the writ petition
being the issue of opening of Anganwadi Centres throughout the
country, we need to first consider the above issue. Provision of
foodgrains as per the provisions of the National Food Security Act,
2013 is a statutory obligation on the State. Article 47 of the Constitution
provides that one of the primary duties of the State is to raise the level
of nutrition and the standard of living of the people.
35. It is the obligation of the State to ensure that pregnant
women, lactating mothers and children in the age of 3 to 6 years and
children who suffer from malnutrition are provided their dues. The State
has to provide an appropriate mechanism for supervision and check,
child development officers and other district level officers who are
entrusted to monitor the functioning of Anganwadi Centres have to be
extra vigilant and take steps so that no beneficiary is denied its dues. All
States/Union Territories should evolve an appropriate mechanism for
supervision so that dues are received by beneficiaries for whom
schemes are in place. It is for the State to secure health to its citizens as
its primary duty. No doubt, the Government is rendering this obligation
through various schemes, such as, opening of Anganwadis, providing
nutritious food through Anganwadis, Mid-day Meal Scheme, etc. but in
order to make it meaningful, it has to be within the reach of its people,
as far as possible, and the Government must supply the nutritious food
in the real sense bearing in mind the provisions of the National Food
Security Act."
90. In People's Union for Civil Liberties v. Union of India
and others, W.P.(C) No. 196 of 2001, continuous mandamus were
being issued by the Apex Court. As per order dated 28.11.2001, the
Apex Court directed the State Governments/Union Territories to
implement the midday meal scheme by providing every child in every
Government and Government assisted Primary Schools with a
prepared midday meal with a minimum content of 300 calories and 8-
12 grams of protein each day of school for a minimum of 200 days.
91. Likewise in Suo Motu W.P.(C) No. 2 of 2020 regarding the
closure of midday meal scheme, the Apex Court has passed an order
dated 18.03.2020 wherein also it was observed that non supply of
nutritional food to the children may lead to large scale malnourishment
and it may affect their immunity system as such and the children
would be more prone to catch the infection.
92. Therefore, on an evaluation of the law on the point, it is
clear that more than everything, nutritional aspects and calorification
should be the concern of the State as well as the Union Territories
rather than providing different kinds of food to the children. When
that is the national programme envisioned for the midday meal
scheme by the framers of law, the petitioner cannot turn around to
contend that the Administrator of the Lakshadweep Administration has
introduced a draconian law so as to interfere with the traditional food
habits of the people of the island. This we say because, the learned
Central Government Counsel has submitted before us that unwanted
and unnecessary personal allegations are made against the
Administrator, who was made as a party in person in the writ petition.
Having considered the law and the judgments discussed above, we are
of the clear opinion that the petitioner has made the allegations
against the Administrator and the Administration without
understanding the implications of the law involved in the matter for
the midday meal scheme. Moreover, the scheme under the Act, 2013
governs the field, which does not make any compulsion for the supply
of non-vegetarian food to the children; but on the other hand
significance and importance is given to the nutritious value of the food
articles.
93. Therefore, taking into account the proposition of law laid
down by the Apex Court and the facts and circumstances available in
the case at hand, we have no hesitation to hold that the petitioner has
not made out any case of arbitrariness or illegality in the policy
decision taken by the Lakshadweep administration in the matter of
closure of the cattle farm, and the modification of the midday meal
scheme provided to the children of the island. Moreover, as per the
Act, 2013, the midday meal scheme is though liable to be provided
only to the children upto upper primary classes, the Administration has
extended the midday meal scheme to the students upto Higher
Secondary Classes by utilising the funds available with the
Administration. It is also clear from the modified midday meal scheme
that unlike any other Union Territories and the States discussed above,
fish, egg, fruits and dry fruits are provided to the children of the Union
Territory of Lakshadweep on more days.
94. Therefore, the possible conclusion is that the contentions
advanced by the petitioner can only be viewed as running counter to
the Constitutional scheme and the provisions of Act, 2013. It has also
to be emphasised that; what is contented by the petitioner in regard to
the alteration of the food habits is baseless, since the midday meal
scheme is framed by the parliament taking into account the nutritional
aspects, rather than the continuance of the traditional food habits in
any state or union territory. Therefore, it can be seen that the cleavage
occurring consequent to the rival contentions can be set at naught by
virtue of the provisions of the Act, 2013, basically factored on
nutrition, and the other discussions made above.
95. Upshot of the evaluation is that the writ petition fails and
accordingly, it is dismissed. However, we make it clear that the
Administration is always at liberty to make necessary modification of
the midday meal scheme, or any scheme with respect to promoting
animal husbandry extending appropriate support to the inhabitants of
the islands.
sd/-
S. MANIKUMAR,
CHIEF JUSTICE.
sd/-
SHAJI P. CHALY,
JUDGE.
Rv
APPENDIX OF WP(C) 12508/2021
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE LIST OF FARM PRODUCTS
DATED 29/07/2020 ISSUED BY THE DEPARTMENT OF
ANIMAL HUSBANDRY WHICH ARE PRODUCED FROM THE
FARM OWNED BY THE GOVERNMENT SUPPLIED TO
ISLANDERS.
Exhibit P2 TRUE COPY OF THE ORDER DATED 21/05/2021 ISSUED
BY THE DIRECTOR, DEPARTMENT OF ANIMAL
HUSBANDRY DEPARTMENT.
Exhibit P3 THE TRUE COPY OF THE ORDER DATED 28/05/2021
BEARING NO. 01/12/2013-VAS (KVT) ISSUED BY THE
VETERINARY SURGEON, ANIMAL HUSBANDRY COMPLEX,
KAVARATTI.
Exhibit P4 TRUE COPY OF THE MINUTES OF MEETING OF UNION
TERRITORY LEVEL STEERING CUM MONITORY
COMMITTEE AND DISTRICT TASK FORCE ON MIDDAY
MEAL HELD ON 27/01/2021.
Exhibit P5 THE WEB SITE OF AKSHAYA PATRA FOUNDATION.
Exhibit P6 THE TRUE COPY OF THE MESAGE SENT FROM THE
OFFICE OF THE SENIOR ADMINISTRATIVE OFFICER
DATED 02/02/2021.
Exhibit P7 TRUE COPY OF THE RELEVANT PAGES OF NATIONAL
PROGRAM OF MIDDAY MEALS SCHEME IN ANNUAL PLAN
20120-2021 OF LAKSADWEEP ISLAND.
RESPONDENT EXHIBITS
Exhibit R2(a) TRUE COPY OF THE MEETING NOTICE DATED 17.4.2021
ISSUED BY THE DEPARTMENT OF FINANCE AND
ACCOUNTS.
Exhibit R2(b) TRUE COPY OF THE SELF-CONTAINED NOTE DATED
16.4.2021 PREPARED BY THE DIRECTOR, ANIMAL
HUSBANDRY FOR PRESENTING IN THE MEETING ON
20.4.2021.
Exhibit R2(c) RELEVANT PORTIONS OF THE MDM GUIDELINES ISSUED
BY THE GOVERNMENT OF INDIA.
Exhibit R2(d) TRUE COPY OF THE RELEVANT PAGES OF THE ANNUAL
WORKPLAN OF MID-DAY MEAL SCHEME OF ANDAMAN &
NICOBAR.
Exhibit RR2(e) TRUE COPY OF THE RELEVANT PAGES OF THE ANNUAL
WORKPALN OF MID-DAY MEAL SCHEME OF GOA.
Exhibit R2(f) TRUE COPY OF THE RELEVANT PAGES OF THE ANNUAL
WORKPLAN OF MID-DAY MEAL SCHEME OF WEST
BENGAL.
Exhibit R2(g) TRUE COPY OF THE RELEVANT PAGES OF THE ANNUAL
WORKPLAN OF MID-DAY MEAL SCHEME OF
PUDUCHERRY.
Exhibit R2(h) COPY OF THE REPORT SUBMITTED TO THE MINISTRY OF
LAKSHADWEEP ADMINISTRATION.
Exhibit P8 THE TRUE COPY OF THE INTRODUCTION OF ANIMAL
HUSBANDRY DEPARTMENT IN LAKSHADWEEP
PUBLISHED IN THE THEIR WEBSITE.
Exhibit P9 TRUE COPY OF THE BASIC STATISTICS 2014 PUBLISHED
BY THE DIRECTOR OF PLANNING AND STATISTICS,
SECRETARIAT, KAVARATHY.
Exhibit P10 THE TRUE COPY OF THE OFFICE MEMORANDUM DATED
20.1.2021 ISSUED BY THE DIRECTOR, DEPARTMENT OF
ANIMAL HUSBANDRY EXPRESSING DESIRE OF THE
ADMINISTRATOR TO OPEN AMUL MILK BOOTH AT
VARIOUS PLACES IN THE UTL.
/True Copy/
PS To Judge.
rv
