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Ekta Shakti Foundation And Anr vs South Delhi Municipal Corporation on 26 July, 2022

Author: Satish Chandra Sharma

Bench: Chief Justice, Subramonium Prasad

                          $~23
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      W.P.(C) 821/2020 & CM APPL. 2572/2020
                                 EKTA SHAKTI FOUNDATION AND ANR                          ...... Petitioners
                                                    Through:     Mr. K. B. Upadhayay, Mr. S. N.
                                                                 Tiwari, Mr. Shailesh Tiwari, Mr. S.
                                                                 Mishra and Ms. Pinki Tiwari, Advs.


                                                    versus


                                 SOUTH DELHI MUNICIPAL CORPORATION                      ..... Respondent
                                                    Through:     Mr. Tushar Sannu, Standing Counsel
                                                                 for SDMC with Ms. Priyansha Sinha,
                                                                 Adv.


                                 CORAM:
                                 HON'BLE THE CHIEF JUSTICE
                                 HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
                                              ORDER

% 26.07.2022

1. The Petitioners have filed the present Writ Petition being aggrieved by the Expression of Interest ("EOI") dated 03.01.2020 issued by the Respondent i.e. South Delhi Municipal Corporation, for supply of fresh cooked food under the Mid-Day-Meal Scheme.

2. It is stated that Petitioner No.1, a self-help group, was supplying mid- day meals to schools since 2016. Initially, the contract of Petitioner No.1 was for a period of one year and it was extended from time to time. It is stated that vide Office Order dated 31.10.2019, Petitioner No.1 was given Signature Not Verified Digitally Signed By:RAHUL SINGH W.P.(C) 821/2020 Page 1 of 6 Signing Date:02.08.2022 12:31:52 extension from 01.11.2019 to 31.10.2020 for supply of mid-day meals.

3. On 03.01.2020, an EOI was issued by the Respondent inviting interested Voluntary Organizations/Non-Government Organizations for supply of fresh cooked food under the Mid-day-Meal Scheme for provision to various Schools of Municipal Corporation of Delhi, Najafgarh Zone. The following conditions of this EOI have been Impugned in the instant Writ Petition, i. The Mid-Day Meal (Amendment) Rules, 2017 provide for a separate kitchen in every school, and as per the EOI, the contractor was to supply the food to the children from the centralized kitchen and the contractor is required to pay monthly rent of the centralized kitchen, established by the Government.

ii. That the turnover fixed in respect of the contract is high, as the contractor was required to submit a certificate of having a turnover of Rs. Two Crores, for the last three financial years.

4. Learned Counsel for the Petitioners, has drawn the attention of this Court towards the National Programme of Nutritional Support to Primary Education, 2006 (Mid-Day Meal Scheme) and Mid-Day Meal Rules, 2015, which provides for setting up of Centralized Kitchens for a cluster of schools in urban areas where there is a space constraint for construction of kitchens in individual schools.

5. Learned Counsel for the Petitioners has placed reliance on the judgment passed by this Court in W.P.(C) No.5912/2018, dated 06.06.2018, titled Allied Integrated Society & Ors. Vs. The State (GNCT of Delhi),wherein this Court has quashed the eligibility condition of Signature Not Verified Digitally Signed By:RAHUL SINGH W.P.(C) 821/2020 Page 2 of 6 Signing Date:02.08.2022 12:31:52 possessing an average annual turnover of Rs.03 crores for the preceding three years. The learned Counsel for the Petitioner has also placed reliance on the judgment dated 26.02.2019, passed by the Supreme Court in Vaishnorani Mahila Bachat Gat V. State of Maharashtra & Ors., Civil Appeal No.2336/2019, whereby the Apex Court has held as under:

"50. When we consider the NIT in question issued by the Government of Maharashtra we are of the considered opinion that it was not in the: spirit of the orders passed by this Court as the imposition of the condition of 25% of turnover during any one of the last three financial years in the various districts by insisting for the performance for supplying at least annual average value equal to 25% of required turnover of applied sectors. As to the formation of applied sectors it is apparent from the tender notice that each of the districts has been taken as a unit and yearly expenditure, for example, Ahmednagar is Rs.31,78,87,200/- yearly, 25% would come to Rs.7,94,71,800/- and so on district-wise which ranges from Rs. 1 Crore to more than Rs.10 Crores in various districts. Thus, we find force in the submission that by virtue of the imposition of the aforesaid Rendition only big players have been left in the field and that is not in tune with the spirit of the Act and the orders passed by this Court as well as the policy framed by the Government of India, as projected in the aforesaid affidavit dated 06,.08.2018. Thus, the tender conditions cannot be held to be valid as they were arbitrarily fixed and it was fairly conceded by Mr. Nadkarni, learned Additional Solicitor General appearing for the State of Maharashtra as well as by Mr. Vijay Thora, learned senior counsel, appearing for the State of Maharashtra^ that they have to abide by the conditions as imposed by the Union of India and the policy framed by the Union of India as projected in the affidavit dated 06.08.2018.

51. Tender notice which has been issued also falls down, we direct the tenders to be invited afresh, within four Signature Not Verified Digitally Signed By:RAHUL SINGH W.P.(C) 821/2020 Page 3 of 6 Signing Date:02.08.2022 12:31:52 weeks, strictly as per the policy and observations made in this judgment."

6. It is stated by the Counsel for the Respondent that Petitioner No.1 participated in the tender process and being unsuccessful in the bid, as he was not the lowest bidder, preferred the present Writ Petition with Petitioner No.2 herein, who even did not participate in the tender process.

7. Learned Counsel for the Respondent informs this Court that tender for supply of fresh cooked food under the Mid-day-Meal Scheme with effect from 01.01.2021 to 31.12.2022 has been awarded to the highest bidder. He states that the successful bidder has not been made a party before this Court and the Writ Petition deserves to be dismissed on the ground of non-joinder of necessary parties alone. He has drawn attention of this Court to the Mid- Day Meal (Amendment) Rules, 2017 notified on 16.05.2017 reads as under:-

"G.S.R. 471(E).-- In exercise of the powers conferred by sub-section (I) read with clause (b) of sub-section (2) of section 39 of the National Food Security Act, 2013 (20 of 2013), the Central Government hereby makes the following rules to amend the Mid-Day Meal Rules. 2015, namely:--

1. Short title and commencement. --(1) These rules may be called the Mid-Day Meal (Amendment) Rules.

2017.

(2) They come into force on the date of their publication in the Official Gazette.

2. In the Mid-Day Meal rules, in Rule 5, for sub-rule (2), the following sub-rule shall be substituted.

namely:-

"(2) Every school shall have the facility for cooking meal in hygienic manner and the schools in urban areas and in identified rural areas which have good road connectivity and viable cluster of schools for the purpose of leveraging efficiency gains, may use the facility of centralised kitchens for cooking meals wherever required in accordance with the guidelines issued by the Central Government and the meal shall be served to children at respective school only".

8. The aforesaid amendment makes it very clear that the rules have been amended and, therefore, there is no requirement of having a separate kitchen in every school as the amendment calls for a centralized kitchen. The fixation of turnover depends on various factors and in the present case the total number of students for supply of mid-day meals is 60,000/- at the rate of Rs.4.48/- per student per day. In addition to the aforesaid, various other charges like manpower charges, transportation charges etc. are involved and, therefore, the total contract value of the contract works out to be approximately Rs.5 crore 91 lakhs.

9. Therefore, in the considered opinion of this Court, fixation of turnover is certainly neither arbitrary nor unreasonable. It also appears that Petitioner No.1, who is a self-help group, supplying mid-day meal since 2016 wants to continue under some pretext or the other. It is pertinent to note that Petitioner No.1 participated in the tender with open eyes, and upon being unsuccessful is raising all kinds of hue and cry before this Court. In the considered opinion of this Court, no case for interference is made.

10. With the abovementioned observations, the instant Writ Petition is dismissed. Pending applications, if any, stand disposed of.

SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J JULY 26, 2022 hsk Signature Not Verified Digitally Signed By:RAHUL SINGH W.P.(C) 821/2020 Page 6 of 6 Signing Date:02.08.2022 12:31:52