Bombay High Court
Shriram Mahila Bachat Gat Gevrai Dist ... vs The Union Of India And Others on 11 July, 2016
Author: S.V.Gangapurwala
Bench: S. V. Gangapurwala, K. K. Sonawane
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W.P.3359.16 with connected W.Ps.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3359 OF 2016
1. Shriram Mahila Bachat Gat,
Gevrai, Tq. Gevrai, Dist. Beed,
Through its President,
Smt. Surekha Vishnupant Ramdasi,
Age : 38 Years, Occu. : Household,
R/o. : Gevrai, Tq. : Gevrai, Dist. : Beed
2.
Kankaleshwar Mahila Bachat Gat,
Beed, Tq. Dist. : Beed,
Through its President,
Smt. Rekha Jadhav,
Age : 39 Years, Occu. : Household,
R/o. : Beed, Tq. Dist. : Beed
3. Priyadarshani Mahila Bahat Gat,
Beed, Tq. Dist. : Beed,
Through its President,
Smt. Sangita Jadhav,
Age : 37 Years, Occu. : Household,
R/o. : Beed, Tq. Dist. : Beed
4. Maheshwari Mahila Bachat Gat,
Dhatur, Tq. : Dhatur, Dist. : Beed,
Through its President,
Smt. Meena Suryapal Tornewal,
Age : 38 Years, Occu. : Household,
R/o. Dhatur, Tq. : Dhatur, Dist. : Beed
5. Matoshri Mahila Bachat Gat,
Parli, Tq. : Parli, Dist. : Beed,
Through its President,
Smt. Suchita Wankhede,
Age : 36 Years, Occu. : Household,
R/o. : Parali, Tq. : Parali, Dist. : Beed
6. Damini Mahila Bachat Gat,
Adas, Tq. Kej, Dist. : Beed,
Through its President,
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Smt. Swarupa Deshmukh,
Age : 37 Years, Occu. : Household,
R/o. : Adas Tq. Kej, Dist. Beed
7. Renuka Mahila Bachat Gat,
Majalgaon, Taluka : Beed,
Through its President,
Smt. Uttara Balasaheb Kodaskar,.
Age : 40 Years, Occu. : Household,
R/o. Majalgaon, Taluka : Majalgaon,
Dist. : Beed
8.
Vasundhara Mahila Bachat Gat,
Ganesh Nagar, Ambejogai,
Through its President,
Sau Jyoti Kalyan Bhise,
Age : 32 Years, Occu. : Household,
R/o. : Jogeiwali Ambejogai,
Dist. : Beed
9. Radhika Mahila Bachat Gat,
Tisgaon, Tq : Pabhardi, Dist. : Ahmednagar,
Through its President,
Smt. Yogita Bhausaheb Ghorpade,
Age : 35 Years, Occu. ; Household,
R/o. : Tisgaon, Tq. Pabhardi, Dist. : Ahmednagar
10. Ashtavinayak Mahila Swayam Sahayata Bachat Gat,
Sangamner, Dist. : Sangamner,
Through its secretary,
Smt. Sangita Vasantrao Gaikwad,
Age : 43 Years, occu. ; Household,
R/o. : Sangamner, Dist. : Ahmednagar
11. Shree Ganesh Mahila Swayam Sahayata Bahcat Gat,
Through its Secretary,
Kamal Ashok Chavan,
Age : 42, Occu. : Household,
R/o. : Shrigonda, Taluka : Shrigonda,
Dist. : Ahmednagar
12. Prerna Mahila Bachat Gat,
Through its President,
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Smt. Chandrakala Namdeo Auti,
Age : 54, Occu. : Household,
R/o. : Parner, Taluka ; Parner,
District : Ahmednagar
13. Nathbaba Mahila Balvikas Audyogic
Utpadak Sahkari Santha Lekurwadi Aakhada,
Through its President,
Smt. Sunita Prabhakar Kolekar,
Age : 39, Occu. ; Household,
R/o. : Newasa, Taluka and District ; Ahmednagar
14. Siddhivinayak Mahila Mandal Ahmednagar,
Through its Secretary,
Smt. Jyoti Dilip Mukhedkar,
Age : 42 Years, Occu. : Household,
R/o. Nav Nagpur Ahmednagar, Taluka and
District : Ahmednagar
15. Amanat Swayam Sahayata Mahila Bachat Gat,
Shrirampur, Through its President,
Sau. Dilarabano Azim Khatib,
Age : 34 Years, Occu. : Household,
Taluka : Shrirampur, District ; Ahmednagar.. Petitioners
Versus
1. The Union of India,
Through its Principal Secretary,
Women and Child Welfare Department,
New Delhi
2. The State of Maharashtra,
Through its Principal Secretary,
Women and Child Welfar Department,
Mantralaya, Mumbai
3. The Commissionerate of Integrated Child
Development Services Scheme,
Maharashtra State, CBD Belapur, Navi Mumbai
4. The Commissioner of Women and Child Development,
28 Queens Garden, Maharashtra State, Pune
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5. The Collector,
Beed, Dist. : Beed
6. The Collector,
Ahmednagar, District : Ahmednagar .. Respondents
Shri R. N. Dhorde Senior Advocate i/b Shri Lalitkumar S. Mahajan,
Advocate for Petitioners.
Shri S. B. Deshpande, A. S. G. for Respondent No. 1.
Shri V. D. Hon, Senior Advocate for Respondent Nos. 2 to 6.
ig WITH
WRIT PETITION NO. 3387 OF 2016
1. Shri Radhe Mahila Bachat Gat,
Lambola, Tq. ; Shahada, Dist. : Nandurbar,
Through its Chairman,
Smt. vijayaben Narsai Patil,
Age : 35, Occu. : Household,
R/o. : Lambola, Tq. : Shahada, Dist. : Nandurbar
2. Saraswati Mahila Bachat Gat,
Thanepada, Tq. Dist. : Nandurbar,
Through its Chairman,
Smt. Asha Kashinath Pawar,
Age : 39 Years, Occu. ; Household,
R/o. : Thanepada, Tq. Dist. : Nandurbar
3. Jay Yogeshwar Mahila Bachat Gat,
Lambola, Tq. : Shahada, Dist. : Nandurbar,
Through its Chairman,
Smt. Sumanbai Devidas patil,
Age : 38, Occu. : Household,
R/o. : Lambola, Tq. : Shahada, Dist. : Nandurbar
4. Rani Kajal Mahila Bachat Gat,
Kathi, Tq. : Akkalkuwa,
District : Nandurbar,
Through its Secretary,
Smt. Hansa Inesh Tadvi,
Age : 40 years, Occu. : Household,
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W.P.3359.16 with connected W.Ps.
R/o. ; Kathi, Tq. : Akkalkuwa,
R/o. : Kathi, Tq. : Akkalkuwa,
District : Nandurbar
5. Mahakali Mata Mahila Bachat Gat,
Bedapada, Tq. : Taloda, Dist. : Nandurbar,
Through its Chairman,
Smt. Jumabai Mohansing Walvi,
Age : 42, Occu. : Agriculture,
R/o. : Bedapada, Tq. : Taloda, Dist. : Nandurbar
6. Akruti Mahila Bachat Gat,
Ampada, Tq. Navapur, Dist. : Nandurbar,
Through its Chairman,
Smt. Lalita Saul Gavit,
Age : 35 Years, Occu. : Household,
R/o. Ampada, Tq. : Navapur, Dist. : Nandurbar
7. Yaha Rupla Mahila Mandal Kakadda,
Tq. : Dhadgaon, Dist. : Nandurbar,
Through its Chairman,
Smt. vijubai Vikram Padvi,
Age : 40 Years, Occu. : Household,
R/o. : Kakadda, Tq. : Dhadgaon, Dist. : Nandurbar
8. Adarsh Mahila Bahcat Gat,
Akkalkuwa, Tq. : Akkalkuwa, Dist. : Nandurbar,
Through its Chairman,
Smt. vishalya Gulabsing Padvi,
Age : 38 Years, Occu. : Household,
R/o. : Akkalkuwa, Tq. : Akkalkuwa, Dist. : Nandurbar
9. Yaha Mogi Satpuda Mahila Mandal,
Surwani, Tq. ; Akrani, Dist. : Nandurbar,
Through its chairman Gomtibai Ratan Padvi,
Age : 42, Occu. : Household,
R/o. Survani, Taluka : Akrani, District : Nandurbar
10. Shabarimata Mahila bachat Gat Kanjala,
Taluka : Akkalkuwa, Dist. ; Nandurbar,
Through its Chairman
11. Aadishakti Swayamsahayta Mahila Bachat Gat,
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W.P.3359.16 with connected W.Ps.
Dhule, Tq. Dist. : Dhule,
Through its Chairman,
Smt. Mangala Bhikan Shinde,
Age : 40, Occu. : Household,
R/o. : Dhule, Tq. Dist. : Dhule
12. Vikas Mahila Bachat Gat,
Nizampur, Tq. ; Sakri, Dist.: Dhule,
Through its Chairman,
Smt. Vanitabai Suresh Bedse,
Age : 37 Years, Occu. : Household,
R/o. : Nizampur, Tq. : Sakri, Dist. : Dhule
13. Sonal Mahila Mandal,
Dhuel, Tq. Dist. : Dhule,
Through its Chairman,
Smt. Urmila Omprakash Gindodiya,
Age : 50 Years, Occu. : Household,
R/o. : Dhule, Tq. Dist. : Dhule
14. Amrut Swayamsahayta Mahila Bachat Gat,
Dhule, Tq. Dist. : Dhule,
Through its Vice Chairman,
Smt. Chetna Atul Modi,
Age : 30 Years, Occu. : Household,
R/o. : Dhule, Tq. Dist. : Dhule
15. Narishakti Swayamsahayta Mahila Bachat Gat,
Dhule, Tq. Dist. : Dhule,
Through its Chairman,
Smt. Komal Jagdish Modi,
Age : 65 Years, Occu. : Household,
R/o. : Dhule, Tq. Dist. : Dhule .. Petitioners
Versus
1. The Union of India,
Through its Principal Secretary,
Women and Child Welfare Department,
New Delhi
2. The State of Maharashtra,
Through its Principal Secretary,
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W.P.3359.16 with connected W.Ps.
Women and Child Welfar Department,
Mantralaya, Mumbai
3. The Commissionerate of Integrated Child
Development Services Scheme,
Maharashtra State, CBD Belapur, Navi Mumbai
4. The Commissioner of Women and Child Development,
28 Queens Garden, Maharashtra State, Pune
5. The Collector,
Nandurbar, Dist. : Nandurbar
6. The Collector,
Dhule, District : Dhule .. Respondents
Shri R. B. Raghuwanshi Senior Advocate i/b Shri D. S. Bagul,
Advocate for Petitioners.
Shri S. B. Deshpande, A. S. G. for Respondent No. 1.
Shri V. D. Hon, Senior Advocate for Respondent Nos. 2 to 6.
WITH
WRIT PETITION NO. 3603 OF 2016
Ekta Mahila Bachat Gat,
Through its Secretary,
Smt. Mamata Darshan Bodse,
Age : 26 Years, Occupation : Business,
Resident of at post Lasur Station,
Taluka : Gangapur, District : Aurangabad .. Petitioner
Versus
1. Union of India,
Through its Secretary,
Women and Child Welfare Department,
New Delhi
2. State of Maharashtra,
Through its Secretary,
Women and Child Welfar Department,
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W.P.3359.16 with connected W.Ps.
Mantralaya, Mumbai
3. The Commissioner,
I.C.D.S. Belapur,
New Mumbai .. Respondents
Shri Anil S. Bajaj, Advocate for Petitioners.
Shri S. B. Deshpande, A. S. G. for Respondent No. 1.
Shri V. D. Hon, Senior Advocate for Respondent Nos. 2 and 3.
ig WITH
WRIT PETITION NO. 3609 OF 2016
Ambika Mahila Bachat Gat,
Satara parisar, Aurangabad,
Through its President,
Smt. ; Minal W/o. Gopikishan Rathi,
Age : 40 Years, Occu. : Household,
R/o. : Satara parisar, Aurangabd,
District : Aurangabad .. Petitioner
Versus
1. The Union of India,
Through its Principal Secretary,
Women and Child Welfare Department,
New Delhi
2. The State of Maharashtra,
Through its Principal Secretary,
Women and Child Welfar Department,
Mantralaya, Mumbai
3. The Commissionerate of Integrated Child
Development Services Scheme,
Maharashtra State, CBD Belapur, Navi Mumbai
4. The Commissioner of Women and Child Development,
28 Queens Garden, Maharashtra State, Pune
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5. The Collector,
Aurangabd, Dist. : Aurangabad .. Respondents
Shri V. P. Latange, Advocate for the Petitioner.
Shri S. B. Deshpande, A. S. G. for Respondent No. 1.
Shri V. D. Hon, Senior Advocate for Respondent Nos. 2 to 5.
WITH
WRIT PETITION NO. 4056 OF 2016
1. Shri Swansevi Mahila Bachat Gat,
Through its Secretary namely
Sau Anjali Subhash Kshirsagar,
Age : about 30 Years, Occcu. : Household,
Having its address at Gut No. 10,
Chauka, Aurangabad-Jalgaon Road, Tal
and Dist. : Aurangabad
2. Girija Mahila Bachat Gat,
Through its Secretary namely
Sau Sanjivani Sudhakar Sonawane,
Age : about 51 Years, Occu. : Household,
Having its address at Gut No. 10,
Chauka, Aurangabad-Jalgaon Road, Tal
and Dist. : Aurangabad .. Petitioners
Versus
1. The Union of India,
Through its Principal Secretary,
Ministry of Women and Child Welfare,
New Delhi-01
2. The State of Maharashtra,
Through its Secretary,
Women and Child Welfare,
Mantralaya, Mumbai 32
3. The Commissioner,
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Integrated Child Development Scheme,
Raigat Bhavan, CBD, Belapur, Navi Mumbai
4. The Commissioner, Women and Child Development,
28 Queens Garden, Maharashtra State, Pune
5. The District Collector and Chairman,
District Level Ahara Committee at Aurangabd,
Tq. and Dist. : Aurangabad
6. The Zilla Parishad, Aurangabad,
Through its Chief Executive Officer,
At aurangabad, Tq. and Dist. : Aurangabad,
7. Deputy Chief Executive Officer of Zilla
Parishad and the Secrtary of District Level
Ahara Committee at Aurangabad,
Tq. and Dist. : Aurangabad .. Respondents
Shri Ravindra B. Narvade Patil, Advocate for Petitioners.
Shri S. B. Deshpande, A. S. G. for Respondent No. 1.
Shri V. D. Hon, Senior Advocate for Respondent Nos. 2 to 5.
WITH
WRIT PETITION NO. 4944 OF 2016
1. Parivartan Mahila Sevabhavi Sanstha,
Through its Secretary,
Yamuna Babasaheb Kute,
Age ; 50 Years, Occu. : Household an Social Work,
R/o. : Maharashtra Bank Colony,
Beed, Tq. and Dist. : Beed
2. Yashodhara Mahila Bachat Gat,
Beed, Tq. and Dist. : Beed,
Through its President,
Viajya Bhimrao Wadmare,
Age : 50 Years, Occu. : Household and Social Work,
R/o. : Panchasheel Nagar, Beed,
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Tq. and Dist. : Beed .. Petitioners
Versus
1. The State of Maharashtra,
Through Secretary,
Women and Child Development Department,
Mantralaya, Mumbai - 32
2. The Commissioner,
Integrated Child Development Services Scheme,
Maharashtra State, 1st Floor, Raigad Bhavan,
Rear Wing, CBD, Belapur, Navi Mumbai
3. The District Child Development Project Officer /
Nodal Officer .. Respondents
Shri G. R. Syed, Advocate for Petitioners.
Shri V. D. Hon, Senior Advocate for Respondent Nos. 1 to 3.
CORAM : S. V. GANGAPURWALA AND
K. K. SONAWANE, JJ.
Reserved on : 06/05/2016
Pronounced on : 11/07/2016
JUDGMENT (Per S.V.Gangapurwala,J.)
1. The petitioners in all these writ petitions are the mahila bachat gats, mahila mandals, self help groups run by ladies. The petitioners in all these writ petitions assail the tender notice inviting request for proposals for supply of Energy Dense Micronutrient Fortified Extruded Blended Bal Aahar, Energy Dense Micronutrient Fortified Extruded Blended ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 12 W.P.3359.16 with connected W.Ps.
Sheera, Energy Dense Micronutrient Fortified Extruded Blended Nutri-rich Sevai and Energy Dense Micronutrient Fortified Extruded Blended Upma. The challenge to the said tender notice in all these petitions is based on similar grounds, as such, to avoid rigmarole same are decided by a common judgment.
2. Mr. ig R. N. Dhorde, Senior Advocate, Mr. Raghuwanshi, Mr. Bajaj, Mr. Bagul the learned Advocates for respective petitioners have canvassed their submissions. According to them the integrated child development service scheme is being implemented by the Department of Women and Child Development, Government of Maharashtra. The said scheme intends to cover all children within the age group 0 - 6 months, pregnant women and lactating mothers and the nutrition is to be supplied through Anganwadi Centres. According to the learned counsels, after considering the report submitted by the Commission the Apex Court passed an order on 07.10.2004 in Writ Petition (Civil) No. 196 of 2001 stating that the contractor shall not be used for supply of nutrition in Anganwadi and preferably ICDS fund shall be spent by making use of village communities, self help groups and mahila mandals for buying of grains and preparation of meals. According to the petitioners, pursuant to the order dated 07.10.2004 passed by the Apex Court the Respondent No. 2 issued a Government Resolution dated 28.10.2005 authorizing district level committee to ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 13 W.P.3359.16 with connected W.Ps.
select and join local self help groups as well as mahila bachat gats for supply of supplementary nutrition. The Apex Court again on 13.12.2006 directed to allot the work of supply of supplementary nutrition through local self help groups and further directed decentralization. The Apex Court again vide order dated 22.04.2009 agreed to the revised nutrition norms, however, continued the earlier orders dated 07.10.2004 and 13.12.2006.
ig The State Government again
on 24.08.2009 passed Resolution and increased the
price rates of supplementary nutrition and further
clarified that supply of ready to cook food mix shall be done under superintendence of Collectorate at district level. The Respondent No. 4 i.e. Commissioner of Women and Child Development, Maharashtra State constituted committees in all districts throughout Maharashtra under the chairmanship of the Collector of respective districts. Thereafter the State Government formed 553 Blocks throughout the State of Maharashtra. Out of 553 Blocks the district level committee selected local bachat gats in 378 Blocks and out 378 Blocks the bachat gats/ mahila mandals are supplying the supplementary nutrition in 314 Blocks. The tenders are floated in the year 2013 for a period of 3 years and the work was allotted to the petitioners in March, 2014. The learned counsel further submits that, initially the respondents directed the petitioners to install roaster technology. The petitioners by spending Rupees 20-22 lacs installed the roaster ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 14 W.P.3359.16 with connected W.Ps.
technology machines. The learned counsel further submits that on 31.05.2014 the State Government filed affidavit before the Apex Court and accepted the decentralization process and pointed out that the district level committee has been constituted for selection of local village communities, women self help groups and bachat gats in June, 2013. The learned counsel submits that, the respondents again directed the ig petitioners to install extrusion technology machines (fully automatic plant). By spending Rupees 50 - 60 lacs the petitioners have installed the extrusion technology plant also.
3. The learned counsel for the petitioners submits that, in spite of the directions given by the Apex Court regarding decentralization of work through bachat gats so also the Government Resolution dated 28.10.2005 and 24.08.2009 still the respondents 2, 3 and 4 in the year, 2014 published only one tender for 34 districts and invited applications for all 34 districts by a common tender. The same was assailed in writ petition bearing number 4672 of 2014. This Court under its interim order in said Writ Petition No.4672/2014, directed not to open on line bids and shall not continue the further process. Accordingly it is stated to have not been further processed.
4. It is further submitted by the learned counsel for the petitioners that, the Apex Court on 01.09.2014 had shown its dissatisfaction in ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 15 W.P.3359.16 with connected W.Ps.
implementing the orders passed by it in respect of decentralization against the State of Rajasthan. It is further submitted that, the respondent No. 3 in contravention of Government Resolution dated 28.10.2005 constituted tender committee on 07.11.2015. The Additional Chief Secretary (Finance) was the President of the meeting and had instructed to delete eligibility criteria of 25% of estimated cost of work in one year. The Principal Secretary also consented, however, considering the large number of eligible bachat gats, the term and condition is kept intact.
On 17.02.2016 the Commissioner submitted parawise comments on the pre-final report submitted by the committee. The commissioner specifically stated that order of the Apex Court is to allot work at local level and even there is a affidavit filed by the State Government before the Apex Court about allocation of work at local level. As different stands are taken by the different departments regarding allocation of the work at local level, the Hon'ble Chief Minister directed to place the matter before the Cabinet. According to the petitioners, as per business rules the matter was referred to the Department of Industries for opinion. The Department of Industries on 22nd February, 2016 prepared a short note and opined that instead of appointing one supplier in each Block, 2 or 3 suppliers should be appointed for one Block so that more eligible local self help groups, bachat gats will get chance to supply T.H.R. The Principal Secretary (Industries) also opined that, ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 16 W.P.3359.16 with connected W.Ps.
objective can best be achieved by involving local groups and village communities at the grampanchayat level or at most cluster of villages. The Additional Chief Secretary (Finance) vide his initial note agreed with the opinion given by the Department of Industries and stated to mention the opinion of the said department in the process and to follow the orders of the Apex Court to involve village communities.
5. The petitioners submit that, the meeting of the Cabinet was held on 23rd February, 2016. The proposed Draft Government Resolution dated 25.02.2016 was also placed for consideration. The Cabinet unanimously agreed with the opinion given by the Department of Industries and Department of Finance and further resolved to publish the Government Resolution. As per the Maharashtra Government Rules of Business more particularly Rule 27 (1) (2) (3) and Rule 28 the Secretary of the concerned department along with other officers were present in the meeting and secretary has recorded the decision of the Cabinet in writing, signed it including the other officers. The learned counsels empathetically submit that, in view of the Cabinet decision the Government Resolution dated 25.02.2016 was published. The said Government Resolution is in conformity with the directions of the Apex Court dated 07.10.2004, 13.12.2006, 22..04.2009 and 01.09.2014 in respect of decentralization. The said Government Resolution is published after Cabinet ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 17 W.P.3359.16 with connected W.Ps.
decision. Same is clear as per Clause 4 of the said Government Resolution. The learned counsel for the petitioners strenuously contend that without calling any fresh Cabinet Meeting abruptly for the reasons best known to Principal Secretary, The Women and Child Welfare Department published Government Resolution dated 29.02.2016 and purportedly revoked Government Resolution dated 25.02.2016 and issued new instructions and the impugned tender.
ig The said action of the respondent No. 2 is nothing but an abuse of the power, process and the political machinery under the garb of policy decision. The Government Resolution dated 29.02.2016 does not speak of any Cabinet decision as specifically referred to in the Government Resolution dated 25.02.2016. The learned counsel submits that after the Government Resolution dated 29.02.2016 the impugned tender is issued. The consolidated tender for all 36 districts in the State of Maharashtra is published on 08th March, 2016. The same is published at the behest of existing three mahila mandals i.e. Maharashtra Mahila Sahakari Gruhaudyogik, Mahalakshmi Mahila Gruhaudyogik and Ekta Mahila Bachat Gat against whom the Commissioner appointed by the Hon'ble Apex Court has submitted report of malfunctioning.
6. It is the specific contention of the petitioners that vide the impugned tender notice the respondents have reduced 553 Blocks into only 70 Blocks contrary to the policy of decentralization as ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 18 W.P.3359.16 with connected W.Ps.
is directed by the Apex Court. According to the learned counsel, the impugned tender, is tailor made for existing three mahila mandals which are not mahila mandals at all. The experience clause of 25% of the estimated value is incorporated just to favour these three contractors. According to the learned counsel, the tender states that even the Commissioner has sole discretion to allot 50% of the work to any one bachat gat. This shows the intention of the Commissioner to favour the three mahila mandals.
7. Apart from assailing the term and condition with regard to the 25% of experience of the estimated value in one year the learned counsel for the petitioners have also objected to the terms and conditions with regard to the installation of laboratory and the submission of other certificates.
8. The learned counsel further submits that, the State Government has filed four different affidavits from time to time fluctuating their stands with each affidavit. In the first affidavit the Government has accepted the policy dated 24.08.2009 and the powers vested with the Collector, however, has taken stand that authority to the Collector at district level is given for supplementary nutritional food for age group of 3 - 6 year child. The said affidavit is not in consonance with the factual matrix. The Government Resolution dated 24.08.2009 includes all the age group including children from 0 -
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6 months, pregnant women and lactating mothers. The said affidavit is totally silent on the Government Resolutions dated 25.02.2016 and 29.02.2016. It is further submitted that, responding to the queries raised by this Court the State filed an affidavit on 14.04.2016 inthere as well there is no whisper about the Government Resolutions dated 25.02.2016 and 29.02.2016. The documents annexed to the said affidavit are ig prepared on 01.03.2016 and signed on 02.03.2016 after issuance of Government Resolution dated 29.02.2016. According to the learned counsel, the third affidavit is filed by the Commissioner, ICDS, Mumbai on 21.04.2016. In the said affidavit an altogether new story is created and the blame is placed on an officer for issuing Government Resolution dated 25.02.2016 which is an absolute after thought.
The document annexed with the said affidavit is unsigned and undated. Even the document annexed and dated 01.03.2016 is signed on 02.03.2016. The fourth affidavit is filed by the Chief Secretary of the State of Maharashtra. The documents filed bear the date and signature, however, the same documents filed in the earlier affidavit do not bear any date and signature.
Along with the affidavit of Chief Secretary, the document filed is dated 22.02.2016 and contains the signature of Principal Secretary, however, the same document filed along with the second and third affidavits do not bear the date and signature. With the third and fourth affidavit the minutes of meeting are placed on record and it is tried to be pointed out ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 20 W.P.3359.16 with connected W.Ps.
that the said minutes are of meeting dated 23.02.2016, however, it is crystal clear that the same is prepared on 01st March, 2016 and signed on 02nd March, 2016. Even, the said minutes do not show any date or signature of the Principal Secretary. Even, the points 2, 3 and 4 mentioned therein are not part of Government Resolution dated 29.02.2016. Referring to all these aspects the learned counsel for the petitioners submit ig that the respondents are not putting forth the true and correct decision and are trying to mislead the Court and for the same action be taken against them.
9. The learned counsel further submit that, impugned tender is in stark violation of the decentralization policy as directed by the Apex Court.
The learned counsel submits that decision making process has not been adhered to. The impugned tender is arbitrary and is issued to favour the three big players only and as such this Court shall intervene to prevent arbitrariness and favoritism. The learned counsel rely on the judgment of the Apex Court in the case of Tata Cellular V/s. Union of India reported in 1994 (6) SCC 651. The learned counsel for petitioners further submit that, open and fair competition is being evaded and prevented. This Court can intervene in such case. The learned counsel rely on the judgment of Division Bench of this Court in the case of Aurangabad Electrical Contractors Association, Aurangabad and others V/s. State of Maharashtra ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 21 W.P.3359.16 with connected W.Ps.
reported in 2015 (1) Mh. L. J. 182. The learned counsel relying on the judgment of Division Bench of this Court in the case of M/s. D. K. Enterprises V/s. The State of Maharashtra delivered in Writ Petition No. 87 of 2004 dated 05th March, 2004, submit that if the tender is not in consonance with the policy laid down under the Government Resolution this Court can certainly cause interference.
10. It is further submitted that, the condition of in house laboratory is too stringent. These are small mahila mandals / bachat gats and additional burden is sought to be imposed upon them. Even otherwise the respondents can check the quality before the same is supplied. The petitioners further submit that, one of the requirements is about submission of credit worthiness certificate of a nationalized bank certifying that the credit worthiness is at least 15% of the estimated proposal value of his district of interest. It will be difficult for a new entrant to get this credit worthiness certificate and all other certificates as are detailed in the said tender documents. The impugned tender is against the decentralization policy wherein instead of 533 Blocks the same are reduced to 70 Blocks. Many of the mahila mandals, bachat gats which have installed extrusion technology (fully automatic plant ) they will not be in a position to get the contract and the said establishment would be in peril and worthless. The impugned tender be quashed and set aside.
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11. Mr. Hon, the learned Senior Advocate appearing for the State has with his usual exuberance submitted that, the Commissioner, I. C. D. S. has an authority to release take home ration tender (T.H.R.). The T.H.R. is required to be manufactured / processed through extrusion based fully automatic technology.
According to the learned senior counsel, the
respondents are
ig bound to follow the operational
guidelines of the government of India. The same are
mandatory as the funds are partly received from the Union of India for the said scheme. The committee report regarding finalization of the terms and conditions of the T.H.R. tender are placed on record wherein committee has also recommended 25% experience of estimated cost.
12. The learned Senior Advocate submits that, in view of the national food security Act, 2013 and supplementary Nutritional Rules, 2015 the earlier orders passed by the Apex Court may not be much relevant. The petitioners I.A.'s were filed before Apex Court with regard to decentralization of the process, the same were dismissed by the Apex Court as they have become infructuous in view of the National Food Security Act, 2013 and the Supplementary Nutrition Rules, 2015. The learned Senior Advocate further submits that, subsequent to the said tender corrigendum is issued wherein it is specifically stated that, preference will be given to the local ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 23 W.P.3359.16 with connected W.Ps.
mahila bachat gats. According to the learned Senior Advocate, the cabinet decision for T.H.R. tender is placed on record and the said tender is in consonance with the Cabinet decision. The final note is placed by Women and Child Development Department for the Cabinet approval and which has received its assent. The Chief Secretary has filed detailed affidavit regarding the Cabinet note. The Cabinet approval and the final Government Resolution is issued as per the Cabinet decision and there is no illegality committed. In fact, the Government Resolution dated 25.02.2016 ought not to have been published. The notes were only placed and by mistake of an officer the same was published. In the said Government Resolution also it nowhere states about the Cabinet decision being taken and the opinion / note of the Industrial and Finance Department being approved. According to the learned Senior Advocate, the rates are fixed, as such there is no question of submission of financial bid and only technical bid is to be submitted and thus expression of interest is only asked. The same is as per the Cabinet decision.
13. According to the learned Senior counsel, the decentralization policy is also being observed. It is not being restricted to one sector. In each districts two sectors are formed i.e. rural and urban and as such 70 sectors are formed and the same is as per the Cabinet decision. The costing of unit and viability of unit for one sector is considered. The said ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 24 W.P.3359.16 with connected W.Ps.
sectors are formed considering the viability of the units. Each mahila bachat gat has to spend at least one crore for extrusion technology and the plant and if, sufficient amount of work is not made available to bachat gats the same would not be viable. It would also not be possible to maintain the quality and have the control and supervision over large number of mahila mandals / bachat gats. The quality has to be given the first preference as the same is meant for infants, pregnant women and lactating mothers. The scheme is not meant to provide employment to the mahila mandals / bachat gats but is to provide nutritious food to the infants, lactating mothers and pregnant women wherein hygiene will have to be given the utmost importance. Considering the same 70 centres are formed. The learned senior advocate relies on the judgment of the Apex Court in the case of Michigan Rubber (India) Ltd. V/s. State of Karnataka and others reported in 2012 (8) SCC 216 and submits that, Court would not normally interfere with policy decision and in matters challenging the award of contract by the State or Public Authorities. According to the learned senior advocate, the quality certifications and all other certificates are necessary. The learned counsel relies on the judgment of Apex Court in the case of Glodyne Technoserve Ltd. V/s. State of M. P. and others reported in 2011 (5) SCC 103.
14. Mr.Hon, learned Senior counsel further ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 25 W.P.3359.16 with connected W.Ps.
submits that the tender impugned in the present Writ Petitions was also subject matter of Writ Petition bearing W.P.No.1807/2016 before this High Court at Nagpur and the Hon'ble Court dismissed the petition on 15.3.2016. The terms and conditions of the tender were upheld by this Court. On this count also the present Writ Petition need not be entertained.
15. In the present Petitions, this Court had allowed the tender process to proceed further, however, had directed not to finalize the same. Pursuant to the tender notice it is submitted by Mr. Hon learned senior advocate for the State that in all 300 bids are received for urban area and 216 bids are received for rural sectors and some of them have not submitted physical documents.
16. The learned counsel for the petitioners submit that, if, the manner of filing of tender is seen the contention of the petitioners stands substantiated that only the three mahila mandals i.e./viz; Maharashtra Mahila Sahakari Gruhaudyogik, Mahalakshmi Mahila Gruhaudyogik and Ekta Mahila Bachat Gat are favoured. They have filled majority of tenders. Each of these three have applied for more than 30 tenders in urban as well as rural i.e. more than 60 tenders each. Though only 72 certificates are ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 26 W.P.3359.16 with connected W.Ps.
issued about the experience there are total 82 on line forms submitted which indicates that ineligible candidates have submitted the on line forms.
17. We have considered the contentions of the learned counsel for respective parties.
18. There cannot be any dispute with the proposition that ig in matters of tender so also the policy decision the powers of judicial review are to be rarely exercised. The Apex Court in the case of Tata Cellular V/s. Union of India referred to supra has laid down the guidelines with regard to the exercise of powers of judicial review in contractual matters which can be culled out as under -
".94. (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 27 W.P.3359.16 with connected W.Ps.
contract.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi -
administrative sphere. However, the decision must not only be tested by the application ig of Wednesbury principle of reasonableness (including its other facts pointed out above ) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
19. As far as the pre-qualification criteria as specified in the tender in clause 7, as also the experience of 25% of the yearly expenditure are concerned, the same is fixed by the authorities considering the nature of the tender. Certain pre-
conditions or qualifications for tenders have to be laid down to ensure that the tenderer has the capacity and the resources to successfully execute the work. The judicial review of administrative action is intended to prevent arbitrariness, ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 28 W.P.3359.16 with connected W.Ps.
irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made lawfully, so also whether the public interest is affected. For maintenance of the standard and quality of the nutrient food laboratory by the unit would be required and would be necessary. The said condition as such does not appear to be irrelevant or unnecessary. The certificates as sought to be produced by the tenderers would be imperative for the Executive to ensure that the tenderers have the capacity to execute the said work. All these terms and conditions as such can not be said to be onerous. The same are relevant and necessary. The said terms and conditions have been upheld by the Division Bench at Nagpur in W.P.No.1807/2016. This Court at Nagpur Bench has observed as under :-
"On hearing the learned counsel for the parties and on a perusal of the judgment of the Hon'ble Supreme Court reported in (2012) 8 SCC 216, it appears that there is no scope for interference with the conditions in the tender notice in exercise of the writ jurisdiction, more so, ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 29 W.P.3359.16 with connected W.Ps.
when the conditions do not appear to be onerous and have been included in the tender notice in view of the policy of the Government and the judgment of the Hon'ble Supreme Court in the case of "Shagun Mahila Udyojak Sahakari Sanstha Maryadit Vs. State of Maharashtra and others" in Civil Appeal No.7104/11.In view of the aforesaid, we dismiss the writ petition, with no order as to costs."
20. The Integrated Child Development Services Scheme is implemented by the department of Women and Child Development, Government of Maharashtra (hereinafter referred to as ICDS). The scheme intends to cover all the children in/of the age group of 0-6 years, pregnant women and lactating mother. The Apex Court from time to time had issued various directions regarding implementation of the said scheme. The Apex Court vide order dated 13.12.2006 in the case of "People's Union for Civil Liberties Vs. Union of India" and others passed interim directions. The same are as under :
::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 30W.P.3359.16 with connected W.Ps.
"23. Keeping in view the submissions made and considering the materials placed on record we direct as follows :
(1) Government of India shall sanction and operationalize a minimum of 14 lakh AWCs in a phased and even manner starting forthwith and ending December 2008. In doing so, the Central Government shall identify SC and ST ham- let/habitations for AWCs on a priority basis.
(2) Government of India shall ensure that population norms for opening of AWCs must not be revised upward under any circumstances. While maintaining the upper limit of one AWC per 1000 population, the minimum limit for opening of a new AWC is a population of 300 may be kept in view.
Further, rural communities and slum
dwellers should be entitled to an
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31
W.P.3359.16 with connected W.Ps.
"Anganwadi on demand" (not later than three months) from the date of demand in cases where a settlement has at least 40 children under six but no Anganwadi.
(3) The universalisation of the ICDS
involves extending all ICDS services
(Supplementary ig nutrition, growth
monitoring, nutrition and health education, immunization, referral and pre-school education) to every child under the age of 6, all pregnant women and lactating mothers and all adolescent girls.
(4) All the State Governments and Union Territories shall fully implement the ICDS scheme by, interalia,
(i) allocating and spending at least Rs.2 per child per day for supplementary nutrition out of which the Central Government shall contribute Rs.1 per child per day.
(ii) allocating and spending at least Rs.2.70 for every severely malnourished ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 32 W.P.3359.16 with connected W.Ps.
child per day for supplementary nutrition out of which the Central Government shall contribute Rs.1.35 per child per day.
(iii)allocating and spending at least Rs.2.30 for every pregnant women, nursing mother/adolescent girl per day for supplementary ig nutrition out of which the Central Government shall contribute Rs.1.15.
(5) The Chief Secretaries of the State of Bihar, Jharkhand, Madhya Pradesh, Manipur, Punjab, West Bengal, Assam, Haryana and Uttar Pradesh shall appear personally to explain why the orders of this Court requiring the full implementation of the ICDS scheme were not obeyed.
(6) Chief Secretaries of all State
Governments/UTs are directed to submit
affidavits with details of all habitations with a majority of SC/ST households, the availability of AWCs in these habitations, ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 33 W.P.3359.16 with connected W.Ps.
and the plan of action for ensuring that all these habitations have functioning AWCs within two years.
(7) Chief Secretaries of all State
Governments/UTs are directed to submit
affidavits giving details of the steps that have been taken with regard to the order of this Court of October 7th, 2004 directing that "contractors shall not be used for supply of nutrition in Anganwadis and preferably ICDS funds shall be spent by making use of village communities, self help groups and Mahila Mandals for buying of grains and preparation of meals". Chief Secretaries of all State Governments/UTs must indicate a time frame within which the decentralisation of the supply of SNP through local community shall be done.
(8) It is a matter of concern that 15
States and Union Territories have not
submitted any affidavit in compliance with the order dated 7.10.2004. They are the ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 34 W.P.3359.16 with connected W.Ps.
States of any affidavit in compliance with the order dated 7.10.2004. They are the States of Orissa, Uttar Pradesh, Sikkim, Arunachal Pradesh, Nagaland, Goa, Punjab, Manipur, Tamil Nadu, Andhra Pradesh, Mizoram, Haryana, Bihar and the National Capital of Delhi and the Union Territory of Lakshadweep, within four weeks reply shall be filed through the concerned Chief Secretary as to why action for contempt shall not be initiated for the lapse."
21. The State of Maharashtra through Deputy Commissioner, Women and Child Development filed affidavit before the Apex Court in aforesaid case on or about 31.5.2014. In the said affidavit, more particularly, in paragraph 12, it was stated that the Collector-cum-Chairmen, District Level Committee were directed vide letter dated 15.6.2013 that first preference shall be given to women self help group/ Bachat gats. The affidavit in paragraph 8 states that the work of supply of THR is a project undertaken by ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 35 W.P.3359.16 with connected W.Ps.
the Government for past three and half years. The said scheme stands spread across 34 Districts with 553 projects which cover 95673 Anganwadis and 5129268 beneficiaries of THR. It further states that the Government took a decision to further expand decentralisation process and procure supplementary nutrition food ig from local Mahila self-help groups Bachatgats. Accordingly, directions were issued to all Deputy Executive Chief Officers and Child Development Project Officers to invite applications from local village community/women self-help group Bachatgats/Mahila-mandal for procuring supplementary nutrition food.
22. As such it is clear and further it is also not disputed that 553 Projects were constituted. It is further not disputed that out of 553 Projects in 36 Districts of the State of Maharashtra, the supplementary nutrition food is supplied in 314 Projects by the self-help group/Mahilamandal like the petitioners and the same is continued till date and contract period is also extended. Now vide the ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 36 W.P.3359.16 with connected W.Ps.
impugned tender Notice 553 Projects are being reduced to 70 Projects. In each District, two Projects are formed i.e. one urban and another rural. The moot contention of the petitioners is that the petitioners were directed to first introduce roster technology i.e. Semi automatic plant, which they complied.
Subsequently, ig implementing the orders of the Apex Court, the Respondents directed petitioners to procure and install extrusion technology plant (fully automatic plant). The petitioners by spending huge amounts have installed extrusion technology plants.
If the projects are reduced from 553 to 70, the petitioners would be rendered without work and whole plant will be of no use and the said plant can not be used for other purpose also. We had asked the learned Senior Counsel for the Respondents as to the number of Mahila Bachatgats/self-help groups who are complying with the requirement of extrusion technology plant.
On instructions, the learned Senior counsel for the Respondents submits that near about 100 Mahilamandals or Bachatgats or Mahila self-help group would be possessing the said technology plant and supplying the ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:12 ::: 37 W.P.3359.16 with connected W.Ps.
supplementary nutrition food through Anganwadis. As per petitioners, many more have installed extrusion technology plants. Because of the reduction of the number of projects, the Mahila-mandal/Bachatgats who have already installed the extrusion technology plants may not be awarded the contract.
23. The ICDS scheme and the supply of Take Home Ration (THR) is meant for infants, pregnant women and lactating mother. Predominantly the object would be to have zero infection and maintenance of higher hygiene and nutrient food. For the said purpose the terms and conditions are incorporated in the tender that the Unit should possess laboratory.
24. Now the only question would remain about reduction of the number of projects. One of the grounds put forth by the Respondents is that the installation of extrusion technology plant involves lot of finance and expenditure and if small contracts are given, the same would not be viable for the petitioners, so also it may not be possible to ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 38 W.P.3359.16 with connected W.Ps.
supervise the supply and necessary nutrient content.
25. As far as viability is concerned, these petitioners and similarly situated Mahilamandals/ self-help group/Bachatgats have already installed the extrusion technology plants. They are now not required to spend on the same and if only 70 projects are formed as against ig 533 Projects earlier formed then even if it is assumed that one project would be awarded to one Mahilamandal/self help group Bachatgat, still, the SHG/Mahilamandals at the local level that are supplying at 314 Projects, would be rendered jobless, The same would militate against the decentralisation policy. The tender itself has made it clear that the tender would not be allotted to contractors but is meant for self-help groups/Mahilamandals. Vide corrigendum, it has been stated that the preference would be given to the local Mahilamandals/self help groups. The aspect of reduction of the project was not a subject matter before the Nagpur Bench in W.P.No.1807/2016. The fact that the decentralisation policy has been accepted is writ large from the affidavit filed before the Apex ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 39 W.P.3359.16 with connected W.Ps.
Court by the Respondent-State.
26. One of the contentions of the petitioners is that the projects are reduced so that the turn-
over is increased and majority of the tenderers would not be in a position to comply with the condition of possessing experience of 25% of the turn-over and that they would stand automatically disqualified. The same is with the purpose to favour three big contractors who are not really Mahilamandals or Mahila self-help groups. The said Mahilamandals are :
(i) Maharashtra Mahila Sahakari Grahudhyog Sasntha Ltd., Dhule;
(ii) Venkateshwara Mahila Audhyogic Utpadan Sahakari Sanstha Ltd. Latur;
(iii) Mahalaxmi Mahila Garhudyog and Balvikas Buddeshiya Audhyogic Sahakari Sanstha;
27. We have made it clear that we are not interfering with the condition of experience of 25% of the turnover. If Projects/Blocks are increased naturally turn-over would be less and majority of ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 40 W.P.3359.16 with connected W.Ps.
eligible units will be in a position to apply. If Projects are less then majority of them would not be in a position to comply with experience of 25% of the estimated cost as the turn over required would be more. Again it would lead to monopolistic situation.
28. The Apex Court in the order dated April 22, 2009, in W.P.(C) No.196/2001 had observed that the earlier orders shall continue to be operative which state about decentralisation of supply of SNP through local community.
29. The contention of the Respondents is that in view of the enforcement of the National Food Security Act, 2013 and the Supplementary Nutrition Rules, 2015, the earlier orders passed by the Apex Court may not be much relevant.
30. If the provisions of the said Act, so also the Rules are perused, it would be clear that the same would in no way affect the orders passed by the Apex Court earlier. U/s 4 of the Act, 2013 every pregnant ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 41 W.P.3359.16 with connected W.Ps.
woman and lactating mother shall be entitled to meal free of charge to meet nutritional standard specified in Schedule 2. U/s 5, it is provided that every child in the age group of 6 months to 6 years shall have entitlement for appropriate meal free of charge through local Anganwadis. The nutritional standards are provided under Schedule 2 of the said Act and they are required to be made by providing Take Home Ration (THR) or nutritious hot cooked meal in accordance with the ICDS scheme. As such the said Act also provides for supply of THR with required standard through Anganwadi. The norms indicated in the letter dated 24.2.2009 of the Government of India have to be implemented.
31. There was divergence of opinion between the different Departments i.e. the Industry Department, Finance Department on one hand and the Women and Child Development Department on the other. As per the Industry Department, the objective of the Hon'ble Supreme Court orders is to involve village communities/self-help groups and Mahila-mandals, so ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 42 W.P.3359.16 with connected W.Ps.
that nutritious food can be made available at the local level. The objective can be achieved by involving local groups and village communities at the Grampanchayat level or at the most cluster of villages which may involve several such groups in ICDS projects. The Women and Child Development Department did not agree with the same and decided to call tender in 70 urban and rural sectors. The matter was referred to the Cabinet by the Hon'ble Chief Minister.
There is a controversy about the decision of the Cabinet. The petitioners contend according to the decision of the Cabinet, Government Resolution dated 25.2.2016 was issued, whereas the Respondents submit the Government Resolution dated 25.2.2016 was issued by mistake. The same was not in accordance with the Cabinet decision and the Government Resolution dated 29.2.2016 was issued as per the Cabinet decision and vide said GR dated 29.2.2016, GR dated 25.2.2016 was revoked/cancelled.
32. Considering the said controversy, we had directed the Chief Secretary of the State to file the ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 43 W.P.3359.16 with connected W.Ps.
affidavit. Pursuant to the said directions, the Chief Secretary, has filed affidavit clarifying the state of affairs. In the said affidavit the Chief Secretary of the State mentions :
"7. In this regard I say that the procedure followed is as follows :-
(a) The Secretary of WCD Department
submitted the proposal for floating the
tender for supply of THR to the
beneficiaries under ICDS Scheme to the
State Minister, WCD Department on
18.2.2016.
(b) The Hon'ble State Minister
approved the said proposal submitted by
Secretary of WCD Department on 18.2.2016.
c) Thereafter the proposal was put up before the Hon'ble Cabinet Minister of WCD Department. The Cabinet Minister has given comments on the proposal and approved the proposal on dt. 19.2.2016.
(d) Thereafter the proposal has been ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 44 W.P.3359.16 with connected W.Ps.
submitted to the Hon'ble Chief Minister of Maharashtra State. The Hon'ble Chief Minister has made his comments that the procedure for floating the tender as EOI, was not included in the purchase policy dt.30.10.2015; hence the approval of Cabinet was required.
(e) Thereafter the Secretary, WCD
Department prepared a draft Note and
submitted to the Principal Secretary,
Industry Department on 22.2.2016. After receiving the remarks of Principal Secretary, Industry Department the draft note was submitted to Addl. Chief Secretary, Finance Department on 22.2.2016.
(f) After receiving the draft note
from finance department the Note was
submitted to the Hon'ble State Minister,
WCD Department on 22.2.2016.
(g) Thereafter the Note has been
approved by the Hon'ble Cabinet Minister, WCD Department, Hon'ble Cabinet Minister of ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 45 W.P.3359.16 with connected W.Ps.
Finance Department & Hon'ble Chief
Minister, Government of Maharashtra on
22.2.2016.
(h) After approval from the various
authorities, the Principal Secretary, WCD Department put up the final cabinet note including all remarks of Industry, Finance Department along with the comments of WCD Department to the Government on 23.2.2016.
8. It is submitted that the Cabinet note also included the draft GR regarding the decisions to the taken by the Cabinet.
Draft of Cabinet note along with draft GR is marked as Annexure-I.
9. The final Cabinet Note was put up before the Cabinet which was held on 23.2.2016 and the same has been approved by the Cabinet. The decision of the Cabinet is marked as Annexure-II.
10. The Cabinet was pleased to permit the Department of WCD to invite EOI through e-tendering process on fixed rate, without ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 46 W.P.3359.16 with connected W.Ps.
inviting financial bid, for which the Department has requested to the Cabinet for approval."
33. It is the contention of the petitioners that the Government Resolution dated 25.2.2016 was in accordance with the draft GR submitted to the Cabinet for approval and the said draft GR submitted to the Cabinet bears the signatures of the Officers and it is the said GR which is approved by the Cabinet. However, according to the Respondents, the GR dated 25.2.2016 was not in accordance with the draft GR approved by the Cabinet but the GR dated 29.2.2016 is the GR approved by the Cabinet. We need not ponder over the said issue. The Chief Secretary has filed affidavit and it is stated that it is only in respect of inviting tenders through expression of interest method Cabinet had taken the decision. Even the GR dated 25.2.2016 if read it states about the views of Industries Department, views about the Finance Department. The said GR further laid down that the Government has resolved to invite technical bid ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 47 W.P.3359.16 with connected W.Ps.
without inviting commercial bids vide expression of interest method and that those units which were in group should be given opportunity to upgrade themselves to A class. It further states that the Industries Department and the Finance Department have given their opinion. It further states that the said GR is issued as per the decision of Cabinet, whereas the Government Resolution dated 29.2.2016 states that the GR dated 25.2.2016 is revoked and the Government decision is only to the effect that the commercial bid should not be invited and only technical bid is to be invited vide expression of interest method.
Considering the affidavit filed by the Chief Secretary, we need not enter into the arena of the said dispute.
34. The Apex Court in the case of "Michigan Rubber (India) Ltd. Vs. State of Karnataka and others"
referred to supra has observed that "while the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 48 W.P.3359.16 with connected W.Ps.
in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet.
ig The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualised than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness."::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 49
W.P.3359.16 with connected W.Ps.
35. The question that would still continue as to whether the objective of decentralisation is being met with. Departments are unanimous that there has to be decentralisation and dictum of the Apex Court order is to involve village communities/self help groups and Mahila-mandals, so that nutritious food can be made available at the local level.
ig According to the Women
and Child Development Department, if projects are
increased then the tenderers can not be given orders for sufficient quantity and the same would not be viable proposition as establishment of extrusion technology plant itself involves huge expenditure and secondly, it may not be possible to supervise and monitor the supply by large number of units.
36. A consideration that the extrusion technology plant requires huge expenses and if high returns are not given, it will not be feasible for the unit to survive, would not be a proper one as more than 100 units have already installed/established and are operating extrusion technology plants and further even as per Respondents, some are in process of ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 50 W.P.3359.16 with connected W.Ps.
installing it. Having already established the plants comprising extrusion technology no further expenditure would be required. On the other hand, if these units are not allotted any orders, the whole plant would be waste. Moreover, it is too late on the part of the Respondents to advance such arguments about the feasibility for the unit to survive when earlier on, installation of this expensive technology was made incumbent/imperative, according to which the Bachatgats/Mahilamandals had invested huge amounts and now to turn around and say it would not be feasible. It is for the Bachatgats/Mahilamandals who should say so and not the Department.
37. As far as the other aspect is concerned, at present the Department is monitoring supply to 533 Projects and about 314 Projects are receiving supply of nutritious food from Mahilamandal/Women self-help groups/Mahila Bachatgats. Now with additional precaution being taken i.e. units are required to establish their own laboratory for the purpose of quality control, it would be no longer tedious to ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 51 W.P.3359.16 with connected W.Ps.
monitor.
38. We are aware that the scheme of THR is meant for infants, pregnant women and lactating mothers and that no compromise can be made in the quality of the nutritious food to be supplied. We are only considering about ig the eligible units who have installed the said required technology and they are far more than the Projects which have been reduced. It would be appropriate for the Respondents to reconsider the formation of the Projects. If after the survey is made, the eligible units are not more than the projects formed then the Respondents can proceed with Projects already formed, however, reduction ought to have been done after conducting the survey so that the eligible units who have installed the extrusion technology plant and possessing all other requisites would be accommodated.
39. Certainly, quality of the food to be supplied can not be compromised and the suppliers are required to maintain highest standard of quality.
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There has to be zero infection. The Respondents may direct adherence to the strict quality control norms and for that laboratory would be one of the essential requirements. We are not interfering with the said requirement, however, if the projects are reduced to 70 from the original 533 Projects, large number of eligible units would be deprived business and would languish. Aforesaid apart, that would also tantamount to non-adherence to decentralisation policy. The Respondents were supposed to make survey of eligible units existing and then ought to have formed the projects, so that participation of all the eligible units complying with all the norms would be possible.
We are not saying that Respondents should maintain 533 Projects/Blocks, however, considering the number of units as suggested by the Industries Department, they could have created one Project/Block for cluster of villages so that eligible units who have already installed their extrusion technology plant at the behest of the Respondents are not rendered without any work. It is on the directions of the Respondents, the units like the petitioners were required to install ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 53 W.P.3359.16 with connected W.Ps.
extrusion technology by spending huge amounts.
40. The price is fixed, as it is, only technical bids are invited. As such there would be little competition. Preference is to be given even as per the tender to the local Mahila Bachat gats/Mahilamandal/self help groups and the supply is to be made through Anganwadis. As such it would not be appropriate for the Respondents to proceed ahead with the tender for 70 projects only. It would have been appropriate if the Respondents had conducted the survey about the eligible units and then formed the projects. We are observing this because it is the Respondent who had asked the petitioners to initially install the roster technology plant (Seni automatic plant) and subsequently extrusion technology (fully automatic plant). The petitioners and similarly situated units have installed the same by spending huge amounts and they would be rendered without any work and the plant would be idle and rusting. It would not be in consonance with the decentralisation policy as envisaged by the various Departments of the ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 54 W.P.3359.16 with connected W.Ps.
Government and the orders of the Apex Court. The Respondents should do well to reconsider the authority given to the Commissioner to give contract or allot tender in respect of 50% of the Projects to any one Mahilamandal/self help group. It should not be in a manner that monopolistic situation would be created and these Projects would be controlled by a few handfull suppliers as is apprehended by the petitioners. The Respondents can conduct the survey of eligible units as in many of the blocks existing contracts are up to the year 2017 and the tender notice itself states that even if pursuant to the tender any offer is accepted in respect of the blocks of which contract is already existing, the same will be operative only after the said contract period is over.
41. In the result, we pass the following order :
a) The impugned tender notice is set aside to the extent of reducing the projects to 70. All other terms and conditions of the tender are held valid. The ::: Uploaded on - 13/07/2016 ::: Downloaded on - 30/07/2016 08:59:13 ::: 55 W.P.3359.16 with connected W.Ps.
Respondents shall conduct the survey of the eligible units with regard to extrusion technology (fully automatic plant) and satisfying all other conditions and shall thereafter proceed to form projects and issue tender notice accordingly.
[K. K. SONAWANE , J. ]
ig [ S. V. GANGAPURWALA, J. ]
asp/WP 3359.16
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