Karnataka High Court
Karnataka Railway Sahakara vs The Government Of India on 11 September, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC:37339
WP No. 48274 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 48274 OF 2018 (GM-TEN)
BETWEEN:
KARNATAKA RAILWAY SAHAKARA
HALINA MALIGEDARARA
KSHEMABHIVRUDHI SANGHA,
NO.19/20, LAKSHMIVENKATESHWARA
NILAYA, AMBAA LAYOUT,
NEAR APOORVA HOSPITAL,
CHIKKABANAVARA,
BENGALURU-560 090,
REPRESENTED BY ITS PRESIDENT.
...PETITIONER
(BY SRI. P.K. SHRIKARA, ADVOCATE FOR
SRI. N.SHIVAKUMAR, ADVOCATE)
AND:
1. THE GOVERNMENT OF INDIA
MINISTRY OF RAILWAYS
Digitally RAILWAY BOARD
signed by NEW DELHI-110 001
SUMA B N
Location: High
REP. BY ITS SECRETARY.
Court of
Karnataka
2. THE KARNATAKA MILK FEDERATION
KMF COMPLEX, P.B. NO.2915,
D.R. COLLEGE POST,
DR. M.H. MARIGOWDA ROAD,
BANGALORE-560 029
REP BY ITS MANAGING DIRECTOR.
3. THE EXECUTIVE DIRECTOR OF CATERING
RAILWAY BOARD,
NEW DELHI-110 001.
4. THE SENIOR DIVISIONAL COMMERCIAL
MANAGER, SOUTH WESTERN RAILWAY,
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NC: 2024:KHC:37339
WP No. 48274 of 2018
DIVISIONAL OFFICE,
COMMERCIAL BRANCH,
BENGALURU-560 023.
...RESPONDENTS
(BY SRI. Y.P. GOKUL., ADVOCATE FOR R2;
SRI. ABHINAY Y.T., ADVOCATE FOR R1, R3, AND R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DECLARE THAT CLAUSE 8.2
OF THE CATERING POLICY 2017 AS PER COMMERCIAL CIRCULAR 20
OF 2017 ANNEXURE-D DATED 27.02.2017 ISSUED BY R-1 IS
ARBITRARY, ILLEGAL AND VIOLATIVE OF ARTICLES 14, 19 (1)(g) OF
THE CONSTITUTION OF INDIA AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
ORAL ORDER
Petitioner claiming to be an association registered under the provisions of the Karnataka Societies Registration Act, 1960 consisting of its members being the licensees /franchises of milk booth /vending units allotted by the respondent No.1- Railways is before this Court seeking following reliefs;
(a) Issue a writ of appropriate nature to declare that clause 8.2 of the Catering Policy 2017 as per commercial circular 20 of 2017 Annexure-D No.2016/TG-111/600/1/Pt. dated 27.02.2017 issued by the 1st respondent is arbitrary, illegal and violative of Articles 14, 19 (1) (g) of the Constitution of India;
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NC: 2024:KHC:37339 WP No. 48274 of 2018
(b) Issue a writ of certiorari to quash tender notification in No.B/C 79/CATG / TENDER / MILK / 7 / 2018 dated 11.10.2008 issued by the 4th respondent At Annexure-E..
(c) Issue a writ of mandamus directing the 1st respondent to continue the license of the petitioner in the existing stalls as indicated in Annexure-A in coordination with the 2nd respondent on such terms and conditions and for such period as the respondents may deem it appropriate to extend from time to time, in the ends of justice."
2. Case of the petitioner is that in terms of Catering Policy of the year 2005 and 2010 milk vending stalls were given on licence basis to the Milk Federation/Milk Unions and the licence was being renewed from time to time. The last such extension was given upto 30.10.2018. Specimen agreements that were stated to have been entered into between the respondent No.2/KMF with the individual members of the petitioner -association are enclosed at Annexure-A to the writ petition. It is further case of the petitioner that a new Catering Policy has been introduced by the respondent No.1 from the year -4- NC: 2024:KHC:37339 WP No. 48274 of 2018 2017 onwards which is in supersession to the Catering Policy of the year 2010.
3. It is contended that in view of the new Catering Policy, 2017 the existing milk vendors would be rendered unemployed and without any resource as the said policy has sought to systematically exclude the persons like the petitioner and its members. As such, the said policy is discriminatory. It is further contended that Clause 8 read with Clause 10 of the Policy, makes it unworkable, thereby violates the constitutional mandates depriving the institutions like the petitioner and its members from participating effectively in the tender process.
4. Learned counsel appearing for the petitioner reiterating the grounds urged in the memorandum of petition takes this court through the Catering Policy of the year 2017 produced at Annexure-D to the writ petition. Drawing attention to the Clauses 8 and 10 to the said policy, learned counsel submits that Clause 8 under the heading MILK AND MILK PRODUCT STALLS of the policy -5- NC: 2024:KHC:37339 WP No. 48274 of 2018 seeks allowing participation only to those Apex co- operative societies which are approved by the Government and by the National Co-operative Diary Federation of India Limited and or registered/certified by FSSAI. He submits the said clause gives no room or scope for a competitive participation by the units /institutions like that of petitioner and its members, thereby violates the fundamental rights to participate in the tender process without any justifiable reasons.
5. He further refers to Clause 10 of the policy under the head "Reservation in the Allotment". Referring to the said Clause, more particularly, the specification provided thereunder for the purpose of ensuring compliance with the reservation policies, learned counsel submit if the milk stalls licence are to be awarded only to the co-operative societies or bodies as referred to in the Clause 8, there is no scope of individual participation, as such compliance with reservation of policy contained in clause 10 becomes redundant. Thus, he submits that there -6- NC: 2024:KHC:37339 WP No. 48274 of 2018 is a manifest error in the policy running contrary to the constitutional provision of ensuring social justice warranting interference at the hands of this Court. Hence, seeks for allowing of the petition.
6. Learned counsel appearing for the respondent No.2 supplementing the submissions made by the learned counsel for the petitioner submits that the entities like petitioner have been kept out depriving the opportunity for the locals to participate in the tender process. Thus, the Policy is discrimination.
7. Learned counsel appearing for the respondent No.1-Railways rises preliminary objections with regard to locus standi of the petitioner-association in maintaining the petition. He submits that petitioner being an association registered under the Karnataka Societies Registration Act, 1960 has no interest or right which is affected or infringed by the policy. Unless and untill the petitioner -association satisfies the criteria of being an 'aggrieved person', it cannot maintain the petition. It is -7- NC: 2024:KHC:37339 WP No. 48274 of 2018 further submitted that the petitioner -association has not participated in any manner whatsoever in the tender process. Thereby it lacks locus to challenge the tender process. In furtherance to his submission he relies upon the judgment of the Apex court in the case of AYAAUBKHAN NOORKHAN PATHAN VS. STATE OF MAHARASHTRA AND OTHERS reported in (2013) 4 SCC 465 and order dated 29.02.2024 passed by the Co- ordinate Bench of this Court in W.P.No.535/2024 in the case of MR. R.RAMESH VS. UNION OF INDIA AND OTHERS.
8. As regards the merits of the contentions are concerned, learned counsel for the respondent No.1 justifies the policy as provided under Clause 8. In that he submits that all the cooperative societies, bodies, agencies which are recognized/certified by the National Cooperative Diary Federation of India Limited which are approved by the Government, Federation, FSSAI are entitled to participate in the tender process. In that he further -8- NC: 2024:KHC:37339 WP No. 48274 of 2018 submits that respondent No.2- KMF is indeed a qualified body as contemplated under Clause 8 and respondent No.1 have no difficulty in allowing the respondent No.2 to participate, as the respondent No.2 fully qualifies under clause 8 of Policy. He further submits that any member of respondent No.2 -KMF is also permitted to participate. He further submits for the reasons best known the respondent No.2-KMF has kept itself away, as such no fault can be found in the policy.
9. As regards the petitioner-association is concerned, since it does not qualify the requirement of clause 8 of the Policy, it cannot seek even to participate in the process. Referring to Clause 10 of the policy, learned counsel for the respondent submits that the said clause has to be read taking entire policy and object into consideration instead reading the same in isolation. He refers to objectives encapsulated at page 1 of the policy, in that he submits that the policy is not merely for the purpose of allotting milk booths, but for the purpose of -9- NC: 2024:KHC:37339 WP No. 48274 of 2018 supply various food and other items of catering services. Implementation and ensuring compliance with the requirement of reservation policy would be done when the tender notifications are issued. Those, details cannot be provided in the policy as such. Thus, he submits that the attempts being made by the petitioner to read Clause 10 in the restricted sense, is unjustifiable. Hence, seeks for dismissal of the petition.
10. Heard. Perused the records.
11. Objectives of the Catering Policy 2017 produced at Annexure-D, is as under;
"OBJECTIVES With the objective to provide quality food to our customers unbundling of catering services on trains has been envisaged in Catering Policy-2017. This policy supersedes Catering Policy 2010 and related instructions, unless specifically referred to in this policy document.
IRCTC has been mandated to carry out the unbundling by creating a distinction primarily between food preparation and food distribution. In order to upgrade quality of food preparation IRCTC shall be setting up new kitchens and upgrade existing ones.
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NC: 2024:KHC:37339 WP No. 48274 of 2018 Modifications have been necessitated in the management of catering service on mobile and static units to implement social objectives of the Government besides encouraging fair competition in allotment of catering units over stations.
IRCTC shall be responsible for catering services through mobile catering units, Base Kitchens, Cell Kitchens, Refreshment Rooms at A1 & A category of stations, Food Plazas, Food Courts, Train Side Vending, Jan Ahaars. All other catering units like Refreshment Rooms at B and below category of stations, AVMs, Milk Stalls, trolleys shall be managed by the Zonal Railways".
12. Clauses 8 and 10 of the said policy read as under;
"8. MILK AND MILK PRODUCT STALLS:
8.1 Milk Stall license shall be awarded to apex dairy cooperative societies approved by Government, dairy cooperative federations/members of National Cooperative Dairy Federation of India Limited (NCDFI) and/or developed under the aegis of Operation Flood Programme, bodies/agencies registered/certified by FSSAI for sale of milk and milk products.
8.2 Allotment at all category of stations shall be done through tender system. The process of allotment, tenure, fixation of license fee and ceiling shall be governed by Para 9 (except conditions stipulated in 9.3.1), 11, 12 and 13 respectively of this policy. Allotment will be done by e-tendering method. Till the finalization of e- tendering module and issuance of procedure order by Railway Board normal tendering process shall be followed.
8.3 Sale of Packaged Drinking Water (Rail Neer) shall be permitted at Milk Stalls and instructions
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NC: 2024:KHC:37339 WP No. 48274 of 2018 issued vide letter no. 2015/TG-III/631/8 dated 12.02.2016 shall be followed in this regard.
10. RESERVATION IN ALLOTMENT:
10.1 RESERVATION IN A1, A, B & C CATEGORIES 10.1.1 There shall be no reservation for major units.
10.1.2 There shall be 25% reservation for minor units in A1, A, B & C categories of stations with the following break up.
Sl. % age
Category
N reservation
o
1 Scheduled Caste 6%
2 Scheduled Tribes 4%
3 Other Backward Classes 3%
4 Minorities * 3%
5 Divyang 2%
6 Freedom Fighters/war widows 4%
and widows of railway
employees, persons who have
been dislocated/ displaced due to
their land having been taken over
by the railways for its own use
7 People below Poverty Line 3%
Total 25%
the term minorities will include the communities namely
(i) Muslims, (ii) Christians, (iii) Sikhs, (iv) Buddhists, (v) Zoroastrians (Parsis) (vi) Jain 10.2 RESERVATION IN D, E & F CATEGORY:
There shall be 49.5% reservation for allotment in D, E & F categories of stations with following break up.
Sl.
Category % age reservation
No.
1 Scheduled Caste 12%
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WP No. 48274 of 2018
2 Scheduled Tribes 8%
3 Other Backward Classes 20%
4 Minorities 9.5%
Total 49.5%**
"the term minorities will include the communities namely (i) Muslims, (ii) Christians, (iii) Sikhs, (iv) Buddhists, (v) Zoroastrians (Parsis) (vi) Jain Out of this 49.5%, there will be sub quota of 10% for freedom fighters & war widows & widows of Railway employees and another sub quota of 2% will be for physically challenged people. Within 49.5% of total reservation 2% sub quota will be provided to the persons who have been dislocated/ displaced due to their land having been taken over by the railways for its own use.
The sub quota of 10% for freedom fighters & war widows & widows of Railway employees; sub quota of 2% for physically & mentally challenged people will also apply in the general category of 50.5%.
The issue of reservations is at present sub-judice in the Hon'ble Supreme Court. Any allotment/extension in the case of reservations will be subject to the final order of the Hon'ble Supreme Court in Civil Appeal No.7513 of 2005 and analogous case referred to the Constitutional bench.
10.3. There shall be a provision of 33% sub quota for women in allotment of each of the reserved category of minor catering units at all category of stations. The sub quota of 33% for women will also apply in general category.
10.4 For the purpose of reservation, one division will be considered as one entity for which a one time station-wise exercise will be done for the whole division and reservation percentage will be progressively achieved as and when either new units are provided or old units get vacated due to any reason."
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13. Perusal of the Clause 8 of the Policy would indicate that milk stall licenses would be awarded to all Apex- Dairy Cooperative Societies, Federations, Members, Bodies and Agencies which are approved, recognized, registered and certified by the authorities named thereunder. Imposition of such a condition is not the ground on which the petitioner is before this Court. Besides, such a condition in the absence of petitioner society making out a case of discrimination violating constitutional mandate cannot be found fault with either.
14. Admittedly the petitioner- association does not satisfy the requirement of Clause 8 of the Policy. That petitioner-association has neither participated in the tender process. It appears that the petitioner -association is espousing the cause of its members who are not before this Court.
15. The Apex Court in the case of AYAAUBKHAN NOORKHAN PATHAN AYAAUBKHAN NOORKHAN
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NC: 2024:KHC:37339 WP No. 48274 of 2018 PATHAN (supra) dealing with the terms "person aggrieved" and "legal right" at paragraphs 9 and 10 of its judgment has held as under;
"Person aggrieved
9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the authority/court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order, etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can, of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same.
10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved"
does not include a person who suffers from a psychological or an imaginary injury; a person
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NC: 2024:KHC:37339 WP No. 48274 of 2018 aggrieved must, therefore, necessarily be one whose right or interest has been adversely affected or jeopardised".
16. In the light of the aforesaid enunciation of the law and in the absence of petitioner -association making out a case of its legal/contractual rights having been suffered and infringed resulting in redressal of its grievance, as rightly pointed out by the counsel for the respondent No.1, petitioner would not have locus to seek the relief as sought for.
17. On the question of workability reservation contemplated under Clause 10 of the Catering Policy, 2017 and the objectives of the policy extracted hereinabove would indicate that said catering policy is for varied purposes to be achieved and not just providing the milk stalls. Reservation policy may have to be applied in respect of the allotments made or to be made to the individuals in respect of other services. Clause 8 specifically deals with milk stalls and milk product stalls to
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NC: 2024:KHC:37339 WP No. 48274 of 2018 be awarded to co-operative societies/bodies mentioned therein. An individual member of the public may not be expected to render the service of a quantity and quality as may be required to cater to the need of general public. Therefore, perhaps the policy is evolved to allow the stalls only through the Apex- diary co-operative bodies which satisfies the said requirement. If the petitioner-society satisfies that requirement, nothing can prevent the petitioner-society from participating in the tender process either. As already noted the respondent No.2 is passively supporting and supplementing the cause of the petitioner might as well participate in the tender process to extend the benefit of the policy to its members which will eventually redress its grievance of locals not having the opportunity to participate in the Tender process.
18. In that view of the matter, the restrictions imposed in Clause 8 of the policy by setting the qualifying criteria the co-operative societies, cannot be found to be
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NC: 2024:KHC:37339 WP No. 48274 of 2018 arbitrary. No other grounds are made out warranting interference at the hands of this Court.
Reserving liberty to the petitioner to participate in the tender process, if it qualify and meets the requirement contemplated under clause 8 of the policy, petition is disposed of.
Sd/-
(M.G.S. KAMAL) JUDGE RU, List No.: 1 Sl No.: 14