Calcutta High Court (Appellete Side)
Sudarsan Dhari Mondal & Ors vs State Of West Bengal & Ors on 1 October, 2008
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P. No.4993 (W) of 2008
Sudarsan Dhari Mondal & ors.
Vs.
State of West Bengal & ors.
With
W.P. No.4338 (W) of 2008
Ranjit Kumar Sen
Vs.
State of West Bengal & ors.
With
W.P. No.4000 (W) of 2008
Bankura District Diet Suppliers Welfare Association &
anr.
Vs.
State of West Bengal & ors.
With
W.P. No.5351 (W) of 2008
Uttar Dinajpur Women's Food Stuff and
Welfare Co-operative Society Ltd. & anr.
Vs.
State of West Bengal & ors.
With
W.P. No.25085 (W) of 2007
Anowar Khondeker
Vs.
State of West Bengal & ors.
Mr. Biswarup Bhattacharjee
Mr. Arjun Roy Mukherjee
Mr. Prashit Deb
....for the petitioner in W.P. 4993 (W) OF
2008 & W.P. 25085 (W) of 2007
Mrs. Kaberi Ghosh (Dey)
...for the petitioner in W.P. 4338 (W) of 2008
Mr. Arabinda Chatterjee
Ms. Ishita Chakraborty
...for the petitioner in W.P. 5351 (W) of 2008
Mr. Ashok Sarkar
Ms. Madhumita Das
...for the State in W.P. 4338(W) of 2008
Mr. Supriya Bose
Mrs. Soma Roy Chowdhury
...for the State in W.P. 25085 (W) of 2007
Mrs. Chameli Majumder
Mrs.Sampa Sarkar
...for the State in W.P. 4993 (W) of 2008
Mr. Ayan Banerjee
...for the respondent no.25 in W.P. 4993
(W) of 2008 Before the Hon'ble Justice Dipankar Datta Heard on : 28.4.2008, 30.4.2008, 5.5.2008, 7.5.2008 and 15.5.2008 Judgment on : 1.10.2008 Since common questions of law and fact are involved in all these petitions, the same were heard together and shall be governed by this common judgment.
Prior to 26.11.2001, the system of supplying diet to the indoor patients of hospitals under the control of the Government was that raw materials for diet were supplied by selected contractors after competitive bidding and food was cooked in the hospitals' kitchens by the cooks/GDAs, being the employees of the Government. Receipt of raw materials, cooking of meals and distribution of the same to the patients was supervised by a steward or some other designated employee. This system was discontinued by Memo dated 26.11.2001 issued by the Secretary, Health and Family Welfare Department. It was directed thereby that in the changed circumstances, the agency selected through tendering process shall be responsible for providing completely finished diet as per prescribed standards of quality and quantity to hospital authorities for distribution amongst the indoor patients. Since the system for cooking of diet for indoor patients in different Government hospitals by the departmental staff stood discontinued, it was further directed that the existing available facilities shall be allowed to be used by the agencies selected for supply of finished diet.
The system of providing cooked diet to the indoor patients of Government hospitals by agencies selected through tendering process had been continuing with modifications till such time the Government decided that supply of cooked diet to the indoor patients of Rural Hospitals (hereafter RHs), Block Primary Health Centres (hereafter BPHCs) and Primary Health Centres (PHCs) in the State would be undertaken by Self-help Groups (hereafter SHGs). Such direction of the Government is contained in Memo No.HF/N/MS/555/W-52/07 dated 26.9.07 issued by the Joint Secretary to the Government of West Bengal, Department of Health and Family Welfare.
Challenge in all these writ petitions is basically to this decision of the Government whereby the agencies which were hitherto before participating in the tendering process for selection for supply of cooked diet to various RHs, BPHCs, PHCs have been sought to be excluded from the field of consideration. The challenge is based on alleged violation of rights guaranteed by Articles 14, 19 and 21 of the Constitution.
It appears from a perusal of the decision of the Government contained in the aforesaid Memo dated 26.9.07 that Rogi Kalyan Samitis (hereafter RKSs) had been constituted for proper management, monitoring and supervision of different activities being continued in the State health facilities and that the assignment of the function relating to supply of cooked diet to the indoor patients of RHs, BPHCs, PHCs in the State to the RKSs had been under active consideration of the Government. It had since been decided by the Health Department to assign such function to the RKSs for enabling them to ensure better service to the indoor patients. The RKSs were directed to discharge such functions by engaging suitable SHGs to be selected by Block Health and Family Welfare Samitis (hereafter the BHFWSs) in consultation with the respective RKSs. While selecting SHGs, the BHFWSs were required to maintain the following guidelines:
"i. Only Women SHGs who have passed Gradee I will be eligible;
ii. Minimum savings of SHGs should be Rs.5,000/-;
iii. The groups who have been able to utilize successfully at least one
cycle of cash credit/bank credit not less than Rs.25,000/- will be eligible. Groups having higher access and utilization of cash credit will be given preference. In the event of many SHGs fulfilling these criteria the selection may be made on the basis of a) proximity of the SHG from the hospital concerned, b) CC limit enjoyed by the group; iv. SHGs who are defaulters in repayment of Bank loan will not be considered for selection;
v. There should be at least two (2) educated members in the group with minimum qualification up to class VIII;
vi. The SHG should be agreeable to undergo training on hospital diet; vii. There should be strong group cohesion among the members of the team;
viii. Preference should be given to groups who have participated in C.H.C.M.I. programme and other health related programmes."
Engagement of SHGs for supply of cooked diet at the rate approved by the Government and as per schedule indicated in G.O. No.HF/01/MS/552/W-45/07 dated 25.9.07 was directed to be performed strictly following the guidelines extracted above. The respective RKSs of the RHs, BPHCs and PHCs would monitor the performance of the SHGs regarding supply of cooked diet with special reference to quality and quantity etc. The order was issued with the concurrence of the Finance Department.
Grievance of the respective petitioners is that if the said decision is implemented, apart from women SHGs all others though eligible to supply cooked diet to the indoor patients of RHs, BPHCs, PHCs would be excluded. Learned Counsel on their behalf have contended that:
1) Discrimination has been made in favour of a particular sex;
2) Total exclusion of other categories of suppliers except women SHGs amounts to 100% reservation for women SHGs which is impermissible;
3) The SHGs are to be selected by the RKSs without they having the necessary expertise in preparing diets for indoor patients of hospitals;
4) Complete elimination of participation by eligible agencies while making special provisions for women is not contemplated by Article 15(3) of the Constitution;
5) The West Bengal Financial Rules provide that contracts are to be awarded only on the basis of open tender and, therefore, the decision of the Government is in violation of such Rules;
6) Right to life enshrined in Article 21 of the Constitution includes "opportunity" which the Government seeks to deny to the eligible agencies who had been participating in the tendering process so long.
The decision acts as an unreasonable restriction on the eligible agencies' right to carry on business and/or trade;
7) Criteria fixed for selection has no nexus with the object of preparing quality diet;
8) The petitioner in W.P. No.5351 (W) of 2008 is a co-operative society formed by rural women and engagement of women SHGs to the exclusion of the petitioner co-operative society would serve no purpose since a particular class of women would stand deprived;
9) Right guaranteed by Article 19(1)(g) to practice any profession or to carry on any occupation, trade or business can only be restricted by a law validly made in the interest of general public, as enshrined in clause (6) of Article 19 and not by any executive order and having regard to the fact that the order dated 26.9.07 is an executive instruction and not a law within the meaning of Article 13 of the Constitution, the petitioners cannot be totally excluded from the field of consideration;
10) The petitioners' right to livelihood would be affected if the impugned decision is not interdicted.
The petitions have been opposed by Mr. Bose, Mr. Sarkar and Ms. Majumder, learned Counsel representing the State respondents in the respective petitions. Since Ms. Majumder advanced arguments in great detail covering the arguments of other learned Counsel, this Court would proceed to record her submissions.
She placed the counter affidavit of the State dealing with the contents of W.P. 4393 (W) of 2008 which contains the scheme framed by the Central Government titled Swarna Jayanti Gram Swarojgar Yojona, whereunder the SHGs would be known as Swarozgaris. The said Yojona lays emphasis on group approach in terms whereof the rural poor are organized into SHGs. According to her, the women SHGs consist of rural poor women who have the potential of upliftment of status by equipping themselves to find out a source of living and thereby progress from below the poverty line to above poverty line. She contended that since the concept of SHGs arises under the said scheme and the impugned decision is one taken for the upliftment of rural women, no illegality has been committed. She urged that the State by adopting the policy decision which is reflected in the impugned Memo dated 26.9.07, in fact, has sought to make special provisions for women in tune with the provisions of Article 15(3) of the Constitution of India. Such a decision is within its statutory and constitutional competence and, therefore, cannot be branded as violative of Article 14 of the Constitution. The decision is also not violative of the Financial Rules since in view of the recent amendment introduced therein, the State is entitled to issue contracts to certain persons in exceptional cases by making special orders and as such, the impugned decision is well within the right of the State Government. There has been no malafide or arbitrary exercise of power by the State as a detailed guideline has been provided for selection of competent SHGs for supply of cooked diet and therefore the impugned policy decision does not violate Articles 14 or 16 of the Constitution of India.
In open tender, the consideration is the lowest rate offered by the diet contractors. There was no scope for evaluation of the competence of the said contractors regarding their ability to supply scheduled diet for the patients. From the order dated 26.9.07, it would appear that the system enables the authorities to arrange for proper training for the selected women SHGs, since diet is equally important like medicine for recovery of the patients. Every trade has its own special features and intricacies for which training is imparted and the same is not an unusual concept. In various services, after selection, in-service training is imparted.
She contended that from the records it would be evident that the Government issued the order with two objectives, (1) to tide over the crisis relating to quality and quantity of diet meant for the indoor patients and (2) to reduce exploitation by providing respectable moderate means of self support for the rural below poverty level womenfolk, in consonance with Article 15(3) of the Constitution. Since there is an intelligible differentia which distinguishes the SHGs from those left out and such differentia has a rational nexus with the object sought to be achieved by promoting their interests, the impugned decision is neither arbitrary nor unreasonable warranting interdiction by the Court.
It was further submitted that there is no question of creating any restriction or monopoly in the instant case. The order does not preclude the petitioners to carry on their own trade. Supplying cooked diet to the indoor patients of the RHs, the BPHCs or the PHCs is only a fraction or part of their business which they have been carrying on and as such the order neither violates any right under Article 19(1)(g) or 21 of the Constitution.
According to her, it is well settled that a policy decision of the Government will not be subject to judicial review unless it is demonstrably capricious, arbitrary and violating Article 14 of the Constitution. To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial whether a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. She urged the Court to bear in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, Courts should avoid "embarking on uncharted ocean of public policy".
It was finally contended that no legal right of the petitioners has been infringed by the impugned decision and the classification brought about by the impugned decision being reasonable, Court's interference was not warranted.
Reliance in support of her submissions was placed on the decisions of the Apex Court reported in (2003) 4 SCC 289 : Federation of Railway Officers Association vs Union of India, (2002) 2 SCC 333 : Balco Employees' Union (Regd.) vs Union of India, (1999) 6 SCC 247 : Indian Drugs and Pharmaceuticals Ltd. vs Punjab Drugs Manufacturers Association, (1995) 1 SCC 652 : State of Orissa vs Radheyshyam Meher and (1997) 9 SCC 495 : Krishnan Kakkanth vs Government of Kerala.
This Court has heard learned counsel for the parties at length. Even after 60 years of independence of our country, women continue to be treated as socially suppressed and are part of the disadvantaged section of the society needing protection. The framers of the Constitution displayed extra ordinary vision while incorporating therein various provisions for upliftment of women folk. Article 15(3) is one such provision that enables the State to extend special protection in favour of women. By enacting this provision, affirmative discrimination in favour of women was encouraged.
In this context, it would be worthwhile to take note of the decision reported in (1995) 4 SCC 520 : Government of A.P. vs. P.B.Vijayakumar. In paragraph 7 thereof, the Supreme Court held as follows:
"7. The insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women. An important limb of this concept of gender equality is creating job opportunities for women. To say that under Article 15(3), job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this article. Making special provisions for women in respect of employment or posts under the State is an integral part of Article 15(3). This power conferred under Article 15(3), is not whittled down in any manner by Article 16."
It has further been held in the said decision that special provision under Article 15(3) may be made by the State to improve women participation in all activities under the supervision and control of the State in the form of either affirmative action or reservation.
While considering Article 15(4) of the Constitution of India which enables the State to make special provisions for the advancement of the classes of citizens mentioned therein, the Apex Court in its decision in M.R. Balaji vs. The State of Mysore reported in AIR 1963 SC 649 ruled that special provisions can be made by an executive order and legislation for this purpose is not necessary.
The language used in Article 15(3) is similar to that of Article 15(4) and, therefore, on the authority of such decision it is held that the Government is empowered to make special provisions for women for their participation in the activity of supplying cooked diet to the indoor patients of Government hospitals by issuing executive order and legislation in this regard would not be necessary.
The contention of Mr. Kishore Dutta, learned counsel appearing for the petitioner in W.P. No. 4000(W) of 2008, regarding violation of rights guaranteed by Article 19(1)(g) of the Constitution, in the considered view of the Court, is not tenable. The Financial Rules have been made in exercise of power conferred by clause (3) of Article 166 of the Constitution and would constitute law as defined in Article 13 of the Constitution. In terms of Rule 47(11), as amended, recourse to inviting tenders or quotations is permissible provided the same is practicable and advantageous and Note 1 thereto makes it clear that subject to special rules or order or procedure that may be prescribed by the Government in respect of a particular department, open tender shall invariably be invited for supply of articles for stores or for execution of works and services worth the amount mentioned therein. The Financial Rules therefore empowers the Government in any of its department to issue special orders for supply of articles for stores or for execution of works and services, and invitation by open tenders shall be subject to such special orders. Since the Financial Rules, which is law within the meaning of Article 13, envisages exclusion of some for facilitating participation of women in the activity of supplying cooked diet to indoor patients of Government hospitals, the competence of the Government to issue the impugned order on the authority of the Financial Rules cannot therefore be questioned. Even otherwise, an order validly made in exercise of executive powers of the State would also be law within the meaning of Article 13 of the Constitution and therefore may curtail or restrict one's right to carry on business or trade of his choice. Viewed from whichever angle, the impugned order is neither defective nor vitiated by invasion of constitutional safeguards.
The impugned order dated 26.9.07 reflects the decision of the Government as a matter of policy to engage women SHGs for supply of cooked diet to the indoor patients of RHs, BPHCs and PHCs. To the mind of the Court, the impugned decision is one which is inspired by the constitutional philosophy to eradicate evils prevailing in the society detrimental to interests of women and to extend a protective umbrella over them. It is nothing but a beneficial provision which has been carved out for women SHGs. In the light of the decisions cited by Ms. Majumder and on the authority of the decision in P.B. Vijayakumar (supra), this Court holds the decision of the Government to extend affirmative discrimination in favour of women SHGs to be unexceptionable. Contentions raised on behalf of the petitioners that such beneficial provision for women is discriminatory and violative of the petitioners rights guaranteed by Articles 14, 19 (1)(g) and 21 of the Constitution have thus failed to impress this Court.
The contention raised by the petitioner in W.P. No. 5351 (W) of 2008 that by extending special benefit to the women SHGs a co-operative society formed by women is sought to be discriminated, is equally without merit. The bye-laws of the petitioner co-operative society permits any individual above 18 years of age and fulfilling other qualifications laid down therein to become a member thereof. Membership is not restricted to women only and the co-operative society thus cannot claim equal protection as that extended to women SHGs.
However, this Court is unable to record its concurrence with the manner of selection of the women SHGs as envisaged in Memo dated 26.9.2007. The guidelines provide that only women SHGs who have passed Grade-I would be eligible. Annexure R-3 to the counter affidavit filed by the State while dealing with the contents of W.P. 4393 (W) of 2008 reveals the stages of evolution of the SHGs. It reads thus:
"Self-help Groups broadly go through three stages of evolution. Group formation (formation, development and strengthening of the groups to evolve into self-managed peoples organisations at grassroots level).
Capital formation through the revolving fund, Skill development (managerial skills for management of their organisations as well as the activity).
Taking up economic activity for income generation".
In so far as grading of SHGs is concerned, the scheme provides as follows:
" 3.11 The formation stage generally have six months. At the end of six months, it is necessary to subject each self-help group to a test whether it has evolved into a good group and is ready to go into the next stage of evolution. This is done through a grading exercise. The objective of this exercise is to identify the weaknesses, if any, and help the group to overcome the same so as to develop into a good group. Grading exercise thus should help to focus attention on weak groups so that DRDAs can assist them to overcome the weakness and graduate into good groups. Grading of the group should also enable the DRDAs to establish li .....for the good groups with the Banks. 3.12 The DRDAs will have to play an effective role in grading exercise. The capacity of the DRDAs will have to be enhanced to undertake this exercise professinally. Grading of the SHGs can be done by the same agency that is involved in the promotion and development of the SHGs or an independent agency contracted to undertake the grading exercise. It is desirable that the grading exercise is undertaken by an independent agency, as it will have objectivity and accpetance by financial institution etc. 3.13. A number of Government and New Government Organisations, working with SHGs across the country have evolved very effective strategies for grading the SHGs. The grading criteria should be consistent with the characteristics that are agreed to be essential for strong, self-managed and vibrant SHGs. In other words, clarity on the features to be promoted in a SHG should become the starting point for any grading exercise.
Following are the various processes that are involved in the grading. • Development of exhaustive list of characteristics of a good group by DRDA in consultation with its partners if any, involved in promotion and development of SHGs.
• Development of criteria for grading of the groups with appropriate weightage for various parameters.
• Identification of suitable agency to undertake grading exercise • Intensive training to the investigators who will interact with the members of the group to assess the group on various parameters. This training can either be conducted by the agency identified for grading or by DRDA.
• Facilitate the agency to visit the groups for assessing the stams of the groups.
• Obtain SHG-wise reports with the rating awarded and the reasons. • Develop an appropriate SHG-Wise action plan for strengthening the groups identified as "weak" or average.
• Pursue with bankers for securing SHG linkage with such SHGs that are rated as "good".
3.14 Grading exercise should not be a questionaire-oriented exercise where the members become passive participants. It should provide an opportunity for the members to assess their own performance to a participatory approach and the investigator assumes the role of the facilitator to the process.
3.15 DRDAs should ensure active participation of the bankers in the grading exercise. In this context, NABARD and local banks will have to be involved very closely right from the development of criteria for grading the groups. The criteria, the strategy and operational details of the grading exercise should be discussed in the District SGSY committee.
3.16 Right from the beginning, it is necessary that the selp-help groups should be nurtured carefully. The grading exercise must therefore be carried out at different stages. To start with, the objective of the SHG in the first six months is to evolve as a viable group. Accordingly, the grading at the end of six months should be with reference to the objectives in the first stage of the evolution of the self-help groups. Grading exercise should be undertaken every quarter till such time all the groups obtain good grade."
Learned counsel appearing for the petitioners are correct in their submission that none of the exercises to be undertaken for grading of SHGs are at all related to supply of quality cooked diet to the indoor patients and, therefore, a SHG though conforming to Grade-I standards in terms of the criterion mentioned hereinabove but without having the requisite experience and the expertise for supply of quality diet for the patients of various Government hospitals may attain the eligibility but that would have no nexus with the object sought to be achieved by engaging the SHGs for providing quality diet to the indoor patients.
That apart, the conditions mentioned in the guidelines clearly reflect that selection of the SHGs for supply of quality diet to indoor patients lacks objectivity. The emphasis on selection first and thereafter willingness to undergo training courses is suggestive of putting the cart before the horse. Submission of the respondents that sending of appointees for in-service training is not unknown and an accepted concept is not apposite. One must possess the requisite eligibility criteria for being appointed; once appointed, he may be sent for training for perfecting his skills so as to perform better and up to the level desired by the employer. Here, the case is absolutely different. Selection of SGHs is sought to be made without fixing any criterion regarding past experience of providing quality food to the patients and/or without ascertaining whether they are really equipped and have adequate capacity to cater to the needs of the ailing patients. The selection criterion is thus indefensible.
In the further considered view of the Court when a patient is admitted in a hospital for treatment of any disease that is ailing him, quality diet is as essential for his recovery as drugs and medicines are. Unless a patient is supplied with quality diet as prescribed by the attending physician, recovery may not be as quick as expected. On the contrary, diet that is not up to the required level may lead to deterioration of a patient's health. No one would wish to suffer further casualty after being admitted in a hospital. Therefore, supply of quality diet for a patient is of paramount consideration which the Government must keep in mind.
This Court is thus unable to uphold the process which is sought to be followed by the Government for selecting SHGs. A more rational approach is necessary. True it is that the Court ought not to substitute the views of the Government which is a part of its policy decision but there is no absolute rule that a policy decision need not be interdicted. If a policy decision is palpably unreasonable, interference would be the call of the day rather than reluctance to interfere on the specious ground that the Court does not have the necessary expertise and what it views to be wiser may not be so. The decisions cited by Ms. Majumder have demarcated the areas for interference and the present cases fall within the demarcated area.
For the reasons aforesaid while upholding the decision of the Government to engage SHGs excluding the agencies who so long had been providing cooked diet, this Court is unable to approve the guidelines framed for their selection. The appropriate department of the State Government is directed to reconsider the modalities for selection of SHGs in a manner that sub-serves the interests of the patients, while keeping in mind that the status of the rural poor women has also to be uplifted, so that the patients do not have any reason to complain about diet dished out to them. For that purpose, the Government may identify eligible SHGs and impart proper training to them before their engagement for supply of cooked diet.
The writ petitions succeed in part. Till such time the Government takes further action in terms of directions contained above, the system that was continuing prior to 26.9.07 shall continue. This is not to be construed as granting extension of tenure of existing agencies but the Government would be obliged to continue with the process of tendering which was in vogue prior to that date.
There shall be no order as to costs.
Photostat copy of this order shall be retained with the records of W.P. No. 4338 (W) of 2008, W.P. No.4000 (W) of 2008, W.P. No.5351 (W) of 2008 and W.P. No.25085 (W) of 2007.
Urgent photostat certified copy of this order, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.
(DIPANKAR DATTA, J.)