Vaishnorani Mahila Bachat Gat vs State of Maharashtra & Ors.

Disposing of the appeals and the writ petition, the Court HELD: 1.1 On 26.2.2010, Government of India sent its clarification to the Government of Maharashtra regarding the use of extrusion technology and as to mandatory specifications laid down in the recipe dated 28.7.2009. It was clarified by the Government of India that there is no specific recommendation for the use of extrusion technology or any other technology for THR. The suggestion given by the Regional DTA, (Western Region) is only suggestive in nature and not a recommendation made by the Government of India. It is thus clear that observations made by this Court in Shagun’s case was based upon not upon Government of India recommendations but in the letter of Deputy Technical Director, Western Region, which was wrongly represented to this Court as recommendations of the Government of India. In view of the clarification made by the Government of India, the observations made by this Court as to extrusion technology stand diluted, based on misrepresentation. By introducing the extrusion Technology it was pointed out that in 2010 three Mahila Mandals, which were chosen, were found to be fake and were only acting as fronts for existing companies and industrialists. Thus, it was urged that the field has been left open to the industrialists in the conditions of the tender under the guise of Mahila Mandal’s fake persons are obtaining contracts. In the judgment rendered by the Aurangabad Bench, it has been noted that three big contractors were selected who were not really Mahila Mandals or Mahila self-help groups. [Paras 18, 19, 20, 21, 23, 24] [500-E-F; 501-A-B; 502-A-C; 503-E-F]

1.2 It was submitted rightly that this Court was misled while rendering the decision in Shagun’s case when it was projected that it was mandatory to follow the recipes dated 28.7.2009 whereas Government of India itself has clarified that it was only suggestive and was not the decision of Government of India as pointed out in the letter dated 26.2.2010. Apart from that after the decision has been rendered by this Court in Shagun’s case, the Act has been enacted and new policy has been framed by the Government of India and thereafter new policies have been filed by the Government of India on 6.8.2018, contained in the affidavit of the Secretary, Ministry of Home and Child Development. It has also been pointed out in the affidavit on behalf of the Government of India dated 06.08.2018 that the guideline prescribes the measures for maintaining hygiene and sanitation at the Anganwadi centers and ensuring food safety. It has also been pointed out by the Secretary in the affidavit dated 06.08.2018 that Supplementary Nutritional Programme (‘SNP’) is implemented, managed and controlled by the respective States/UTs, it is at their discretion to decide items of food to be supplied under the supplementary nutrition as the local food habits, regional preferences and availability of food in the local area vary from place to place. However, this is to be done by keeping in view the overall guidelines, nutritional norms and food safety standards, a copy of some of the suggestive recipes prepared by the National Institute of Nutrition, Hyderabad, has been placed on record. [Paras 31-34] [509-F-H; 510-A; 511-H; 512-A; 513-D-E]

1.3 The various recipes which have been prescribed were Cereal-Pulse Mix, Regina, Rice Flakes-Groundnut Barfi, WheatGroundnut Barfi, Bajra and Pulse/Legume Mix, Sweet Ready Mix, Paushtik panjeeri, Besan-Suji Ladus, Paushtik Barfi, Paushtik mathri, Amylase Rice Energy Food, Wheat Soya Laddu, Nutro Soya Corn Chikkis. However, it would be for the concerned State or the Union Territory to take an action on the recipes they want as per local requirement, the said recipe is only suggestive, as specified in the affidavit of 06.08.2018 of the Secretary Government of India of the concerned department itself. It has also been pointed out that under THR normally dry mixtures are supplied such as Daliya, Khichdi etc. However, some other States are giving in some other forms. Most of the items do not require a sophisticated technique of manufacturing process and the selfhelp groups/Mahila Mandals are fully equipped and competent to supply the said food. The concerned Authorities of the State Government are expected to undertake all such steps which becomes necessary that the self-help groups/Mahila Mandals and such other similar organizations are allowed to meaningfully participate in providing HCM and THR, all over the country and terms and conditions of the tenders etc., should not be framed in such a manner that they get excluded from participating itself in such tenders. It has also been pointed out that with respect to management, preparation, supply, monitoring and service of the supplementary nutrition under the Integrated Child Development, Scheme the policy of the Central Government is guided by the provisions contained in the Office Memorandum dated 24.02.2009 of the Ministry concerned and the decision of this Court in PUCL v. Union of India dated 22.04.2009 in W.P.(C) No.196/2001 to follow and implement the guidelines.[Para 35-37] [513-F-H; 514-A-C]

1.4 Before enactment of the Act of 2013, the National Food Security Ordinance was issued on 5.7.2013. Note 1 below Schedule II of the said Ordinance states “Energy Dense Food fortified with micronutrients as per 50 percent of Recommended Dietary Allowance”. However, the Parliament while discussing and passing the Act of 2013 deleted the above provision thereby making the preparation of THR in the simplest way. In exercise of powers, under Section 39 of the Act of 2013, the Central Government has framed the Rules after consultation with the State Government and Union Territories, experts and the civil society notified the Rules relating to Sections 4, 5 & 6 of the Act of 2013 called as Supplementary Nutritional (under ICDS) Rules, 2015 on 08.06.2015, which have been amended on 20.02.2017. It has been also pointed out in the affidavit filed by the Union of India that the Government of India has launched the POSHAN Abhiyaan on 08.03.2018 with the objective to comprehensively address the problem of stunting, under-nutrition, low birth weight, and anemia in a time-bound manner children and Pregnant & Lactating Mother. Further instructions have been issued vide letter dated 10.07.2017 with respect to meet the requirement of fortification of food with micro-nutrient, the Union of India has mandated the use of double fortified salt (Iodine & Iron) and fortified oil (Vitamin A & D) and fortified Wheat flour (Iron, Folic Acid and Vitamin B-12) for preparation of SNP under the ICDS. In POSHAN Abhiyaan, a National Council on India’s Nutrition Challenges which is an apex body to give policy direction, review and effective coordination and convergence between Ministries having a sectoral responsibility was constituted on 03.01.2018 with the following Chairperson/Members. [Paras 40, 41, 44, 45] [516-A-C; 518-C, G-H]

1.5 The National Council of India, pursuant to the meeting held on 18.04.2018 discussed the issue of Hot Cooked meals for children in the age group of 3 years to 6 years and Take Home Ration (THR) for the children in the age group of 6 months to 3 years and Pregnant Women and Lactating Mother as decided by the State Government in conformity with the the Act of 2013 and the Supplementary Nutrition (Under the Integrated Child Development Services Scheme) Rules, 2015, which have been amended in 2017. Minutes have been placed on record. It has been pointed out in the affidavit on behalf of the Government of India, Ministry of Women and Child Welfare that the policy of the Government of India vis-a-vis the Supplementary Nutrition under the ICDS Scheme based on the Nutritional Norms on 24.02.09 read with the Act of 2013 and Supplementary Nutrition (Under the Integrated Child Development Services Scheme) Rules, 2015, which have been amended in 2017 and the guidelines issued by the Union of India. [Paras 47, 49] [520-A-B, E-F]

1.6 NIT issued by the Government of Maharashtra 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. By virtue of the imposition of the said condition 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 said 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 counsel 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. [Para 50] [521-C-G]

1.7 Tender notice which has been issued also falls down, the tenders are directed to be invited afresh, within the stipulated period. [Para 51] [521-G-H]

1.8 It has also been found that fixing of unit area as a district several players have been effectively ousted from the field, it would be appropriate to form groups of the smaller area such as at panchayat or group of panchayats etc., within the District so that the real intention behind the policy is fulfilled in its real sense and supply should be decentralized as much as possible as it is not for the big players/industrialists in the field to cater to the needs of the Scheme as they have usurped in past. It is open to the State Government to make alternative arrangement within the stipulated period and they are restrained from continuing the existing system of supply in the interregnum period. [Para 52] [522-A-C]

PUCL v. Union of India (2013) 2 SCC 663; Shagun Mahila Udyogik Sahakari Sanstha Maryadit v. State of Maharashtra and Others [2011] 13 SCR 789 referred to.