Supreme Court of India
VAISHNORANI MAHILA BACHAT GATversusSTATE OF MAHARASHTRA & ORS.
- Citation
- 2019 INSC 278
- Decided
- 26 February 2019
- Disposal
- Disposed off
Holding
The tender conditions are arbitrary and invalid; the tender notice is struck down and fresh tenders must be invited as per policy.
Summary
The petitioners challenged a 2016 Maharashtra tender for supplying ready‑to‑cook food to Anganwadi centres, alleging that the tender’s conditions – mandatory use of extrusion technology, a turnover threshold of Rs 1 crore and requirement of automated production units – were arbitrary and excluded Mahila Mandals and self‑help groups. The Court examined the Government of India’s clarification that extrusion technology is merely suggestive, not a statutory requirement, and noted that the tender violated Supreme Court directives in PUCL and Shagun cases which favour decentralised supply through local women’s groups. It also considered the National Food Security Act, 2013 and the Supplementary Nutrition (ICDS) Rules, which allow states discretion in food preparation methods. The Court held the tender conditions invalid, struck down the notice and ordered fresh tenders to be issued within four weeks, restraining the State from continuing the existing supply arrangement.
Issues considered
- The validity of the tender conditions requiring extrusion technology, a minimum turnover and automated units for supplying ready‑to‑cook food to Anganwadis.
- Whether the State may award contracts to large corporate entities instead of Mahila Mandals/self‑help groups under the ICDS scheme.
- Effect of the Government of India’s clarification that extrusion technology is not mandatory on the legality of the tender.
- Whether the tender notice should be set aside and fresh tenders be invited in accordance with Supreme Court policy.
Legislation cited
Subjects
ICDSSupplementary Nutrition Programmetender validityextrusion technologyMahila Mandalsself‑help groupsfood safetyNational Food Security ActdecentralisationPOSHAN Abhiyaan
Judgment
[2019] 3 S.C.R. 485 485
VAISHNORANI MAHILA BACHAT GAT A
v.
STATE OF MAHARASHTRA & ORS.
(Civil Appeal No. 2336 of 2019)
FEBRUARY 26, 2019 B
[ARUN MISHRA AND DEEPAK GUPTA, JJ.]
Government Contracts/Tender: Eligibility conditions of the
tender – Reasonableness – Contracts for the supply of food for
Anganwadis – Issuance of tender notice by State of Maharashtra –
C
Supply of ready to cook food to Anganwadi centres as supplementary
nutritional food for children, pregnant women and lactating mothers,
adolescents girls under Integrated Child Development Scheme
(ICDS) – Case of the petitioner that conditions in the tender insisting
on mandatory use of extrusion technology in preparation of meals-
THR(take home ration); that Mahila Mandals to have automated D
production units, turnover of Rs.1 crore or more, and that under
the guise of the conditions of the tender, the contract given by the
State to large corporates/contractors instead of the local Mahila
Mandals, thus, the conditions of tender arbitrary and unreasonable
– Held: Imposition of the condition in the tender not in tune with the
E
spirit of the Act and the orders passed by this Court as well as the
policy framed by the Government of India – Thus, the tender
conditions cannot be held to be valid as they were arbitrarily
fixed – Tender notice issued is struck down – Tenders are directed
to be invited afresh, within the stipulated period strictly as per the
policy and observations made in this judgment – State Government F
to make alternative arrangement and are restrained from continuing
the existing system of supply in the interregnum period –
National Food Security Act, 2013.
Disposing of the appeals and the writ petition, the Court
HELD: 1.1 On 26.2.2010, Government of India sent its G
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
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486 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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
B
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
C 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.
D
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
E 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
F 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
G 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
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that Supplementary Nutritional Programme (‘SNP’) is A
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
B
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, Wheat- C
Groundnut 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 D
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 E
a sophisticated technique of manufacturing process and the self-
help 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 F
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 G
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
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488 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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
B 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
C 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,
D 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 &
E 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
F 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]
G [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
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years and Pregnant Women and Lactating Mother as decided by A
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
B
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 C
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 D
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 E
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 F
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] 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]
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490 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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
B
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.
C [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.
D Case Law Reference
(2013) 2 SCC 663 referred to Para 3
[2011] 13 SCR 789 referred to Para 3
E
CIVIL ORIGINAL/APPELLATE JURISDICTION: Civil Appeal
No. 2336 of 2019.
From the Judgment and Order dated 15.03.2016 of the High Court
of Judicature at Bombay, Nagpur Bench at Nagpur in Writ Petition
No. 1807 of 2016
F
WITH
Civil Appeal Nos. 2337, 2348, 2346, 2340-2341, 2344, 2349, 2338,
2347, 2342, 2339, 2345, 2343, 2350, 2351 of 2019 and Writ Petition (C)
No. 910 of 2017.
G A. N. S. Nadkarni, Ms. Madhvi Divan, ASGs, K. Radhakrishnan,
Colin Gonsalves, Balbir Singh, Sr. Advs., Anmol Chandan, Gurmeet Singh
Makker, Ms. Olivia Bang, Ms. Deepika Sahani, Satya Mitra, Nar Hari
Singh, Gagan Sanghi, Abhijeet Sinha, Anas Tanwir, Maryam N. Alavi,
Ebad Mushtaq, Fuzail Ahmad Ayyubi, Shashibhushan P. Adgaonkar,
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VAISHNORANI MAHILA BACHAT GAT v. STATE OF 491
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Nishant Ramakantrao Katneshwarkar, Sudhanshnu S. Choudhari, Amol A
Nirmalkumar Suryawanshi, Ms. Ruchi Kohli, Ms. Hemantika Wahi,
Ms. Jesal Wahi, Ms. Puja Singh, Ms. Vishakha, Gaurav Agrawal,
Anshuman Ashok, Sandeep Sudhakar Deshmukh, Vinay Navare,
Ms. Gwen Karthika, Ms. Abha R. Sharma, Ms. Manisha T. Karia,
Shashank S. Mangal, Ms. Sukhda Kalra, Abhijit Sinha, Ms. Shubhangi
B
Tuli, Prashant Bhushan, Ms. Pratiksha Sharma, Ankit Acharya, Advs.
for the appearing parties.
The following Judgment of the Court was delivered:
JUDGMENT
1. Leave granted. C
2. The appellants/petitioner(s) have questioned the judgment and
order dated 11.7.2016 passed by the High Court of Bombay, Bench at
Aurangabad and order dated 15.03.2016 of the High Court of Judicature
at Bombay, Bench at Nagpur. The petitioners in the writ petition filed
before the High Court i.e. W.P. No.3359/2016 questioned the tender D
notice dated 08.03.2016 issued by the State of Maharashtra inviting tender
for multilevel contract and for supply of ready to cook food to Anganwadi
Centres as supplementary nutritional food for children, pregnant women
and lactating mothers, adolescents girls under Integrated Child
Development Scheme (ICDS Scheme). The conditions were questioned E
by the appellants/petitioner(s) being arbitrary, unreasonable against the
spirit of the decision of this Court in W.P.(C) No.196/2001.
3. The question as stated in the appeal is that the local self-help
groups are sought to be ousted by the money power of large corporate
houses with the help of the State ,the decision by this Court in PUCL v. F
Union of India (W.P.(C) No.196/2001) is being violated and that of
Shagun Mahila Udyogik Sahakari Sanstha Maryadit v. State of
Maharashtra and Others, passed in Civil Appeal No.7104/2011. It is
urged that the local organization of women (Mahila Mandals) and self-
help groups are best suited to give local food and other necessary efforts
to provide supplementary nutritional food for children. The so-called G
Mahila Mandals who have applied under the tender that has been floated
is, in fact, large industrial units and nothing to do with the Mahila Mandals
and self-help groups. They are close to certain political personalities in
the State of Maharashtra. Industrialists are not supplying good food as
compared to these Mahila Mandals in different parts of the country, as
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492 SUPREME COURT REPORTS [2019] 3 S.C.R.
A accepted by the Union of India in its Report. The imposition of the
unrealistic conditions made it impossible for the Mahila Mandals to
compete. Thus, the State is entertaining fake business units and is acting
contrary to the various decisions of this Court and the spirit of the Scheme.
4. The principal issue raised is whether contracts for the supply
B of such food for Anganwadis should be given to local Mahila Mandals
run along democratic lines with local women participating or whether
such contracts ought to be given by the State to large corporates/
contractors under the guise of the conditions of the tender. In PUCL v.
Union of India & Ors. (W.P. (C) No.196 of 2001), this Court has
passed the order, on 07.10.2004, inter alia to the following effect:-
C
“The contractors shall not be used for the 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.”
D 5. On 13.12.2006, in PUCL (supra), the Court inter alia passed
the following order:-
“...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
E 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 decentralization of the supply of SNP through local
F community shall be made.”
6. Thereafter, Food Safety Ordinance, 2013 was promulgated on
5.7.2013 in which provision has been made for the benefit of children in
the age group of 6 months to 14 years. The Ordinance which has taken
the shape of the Act i.e. National Food Security Act, 2013 (for short
G ‘the Act of 2013’), aims at to reform the public distribution system and
bringing in transparency and accountability apart from creating obligation
of the Central Government and the State Governments in respect of all
issues relating to food security.
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7. A report was submitted to this Court by the Commissioner A
appointed in PUCL [W.P.(C) No.196/2001] regarding Take Home Ration
(for short ‘THR’) in Maharashtra, relevant portion is extracted
hereunder:-
“In the attached report claims large-scale irregularities in the
supply of supplementary nutrition in violation of the orders of the B
Hon’ble Supreme Court. The report claims though it is not
specifically proven that there is a nexus between politicians,
bureaucrats and private contractors in the provisioning of SNP to
the ICDS leading to large-scale corruption and leakages.
The contracts to supply THR in Maharashtra have been given C
to three Mahila Mandals, namely, Venkateshwara Mahila
Audhyogic Utpadan Sahakari Sanstha Ltd, Mahalaxmi Mahila
Grahaudhyog & Balvikas Buddheshiya Audhyogic Sahakari
Sanstha and Maharashtra Mahila Sahakari Grahudhyog Sanstha
Ltd. These Mahila Mandals, in turn, have leased in the facilities
for production of THR from private agro-companies. My report D
establishes the de-facto and de-jure ownership of the Mahila
Mandals and the private agro-companies are by the same family.
In each case, the Mahila Mandal has formed a sub-committee
which has been given also operational control over production
and finances in relation to a unit which is owned by family members E
of the members of the said sub-committee.
In some States like Uttar Pradesh, the supplementary nutrition
has been contracted out to private companies like Great Value
Foods, promoted by Gurdeep Singh (Ponty) Chadha in complete
violation of the Supreme Court orders. This continues despite an F
adverse report on the issue (in Gorakhpur) by the National Human
Rights Commission. Similarly, a contractor based out of Noida,
Continental Milkose (India) Ltd. provides the supplementary
nutrition for the ICDS in Meghalaya. The contract continues
despite adverse CAG reports on the provision of SNP in
Meghalaya. This state of affairs prevails across many States/ G
UTs.
According to the National Family Health Survey 3, every day
close to 5,000 children dies in India due to preventable causes
including malnutrition. The ICDS is the only institutional mechanism
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494 SUPREME COURT REPORTS [2019] 3 S.C.R.
A of the Government to deal with issues of children under the age
of six. The government of India/States and UTs spend close to
8,000 crores every year on the provision of Supplementary
Nutrition. It is unconscionable that a country with one of the highest
rates of child malnutrition, globally, allows rampant corruption to
undermine the ICDS and thereby the future of its children.”
B
8. The second report was submitted by the Commissioner
appointed in PUCL (W.P.© No.196/2001) to this Court, the relevant
portion is extracted hereunder:
“Part A of the existing report further probes the subject of the
C large-scale irregularities in the supply of Supplementary Nutrition
Provisioning (SNP) in violation of the orders of the Hon’ble
Supreme Court by the engagement of contractors in ICDS in four
states namely, Maharashtra, Karnataka, Uttar Pradesh, and
Gujarat.
D Part B of the report documents the best practice study from
two states viz, Odisha and Kerala on the effective involvement of
the local women’s’ groups in the form of the decentralized model
of nutrition provisioning under ICDS, which is in consonance with
2004 and 2006 Hon’ble Supreme Court order.
E Part C of the report is the nutrient analysis of the samples
Take Home Rations collected from four states (Maharashtra,
Uttar Pradesh, Gujarat, Meghalaya), carried out by National
Institute of Nutrition (NIN) Hyderabad. NIN data shows a
significant gap between state specifications and the results of the
lab test.
F
We reiterate our concern for the health, nutrition, and life of
millions of children in India, in the larger public interest and in
order to be able to indisputably establish the facts of this case, we
would again request the Hon’ble Supreme Court to set up an
independent Special Investigation Team (SIT) to enquire into the
G matter.”
9. Further directions were issued by this Court in PUCL (W.P.©
No.196/2001) on 10.7.2013:
“Mr. Colin Gonsalves, learned senior counsel appearing for the
writ petitioner, on the other hand argued that although the
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Government of Gujarat had made a statement before the High A
Court on 14 March, 2011 that they will completely switch-over to
the system of providing rations through Mahila Mandals and Self-
Help Groups within a period of one year, the Government had not
been diligent in doing the needful with the result that the switch-
over was achieved only to the extent of 16 percent. He submitted
B
that the Government had in derogation of the orders of this Court
dated 7.10.2004, 13.12.2006 and 22.04.2009 engaged a contractor
for the supply of nutritional food to the children falling in the age
group of six months to three years and that the present application
was only an attempt to perpetuate that violation. He submitted
that according to his instructions each Anganwadi was equipped C
with pucca/kaccha kitchen for many many years and that there
was indeed no difficulty in supplying to the targeted age group of
children cooked nutritional food in terms of the scheme as directed
by this Court.
In the circumstances, therefore, and keeping in view the D
submissions made at the Bar we direct the State Government of
Gujarat to file an additional affidavit on the lines indicated above,
indicating the time-frame within which it will switch-over to the
system of supply of food to the targeted population of children
and others entitled to the same in the State of Gujarat under the
Ordinance and also indicating the time-frame within which every E
school and Anganwadi may be equipped with facilities for cooking
meals within the meaning of Section 5 (2) of the Ordinance.”
10. On 6.8.13, this Court passed an order in PUCL (W.P.© No.196/
2001) with respect to Gujarat:-
F
“In the meantime, we permit the Government of Gujarat to
continue the system under which it has been procuring for
distribution take-home ration as EFBF from the original
manufacturers by inviting competitive bids for a period of one
more year.
G
The State would, therefore, would do well to diligently identify
not only reliable self-help groups who can be entrusted with the
process of setting up of the plants but also providing all such
assistance as may be required for the plants to become functional
as early as possible.
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496 SUPREME COURT REPORTS [2019] 3 S.C.R.
A We make it clear that in case its found that the State Government
have not taken appropriate steps in terms of what we have said
above, we may be forced to recall this order and issue appropriate
direction in the matter.”
11. This Court again in PUCL (W.P.© No.196/2001) directed State
B of Gujarat and Rajasthan, on 01.09.2014, to the following effect:-
“Rajasthan: The directions of this Court have over the past 10
years resulted in a switchover of decentralization of the feeding
process to Self-Help Groups and Women Co-operatives only in
107 such projects as against 304 projects spread over in the entire
C State. The pace of switchover is very slow and needs to be
increased by the authorities concerned.”
Gujarat: “There is no manner of doubt that the State has undertaken
steps in setting up of pilot projects four of which projects have
already been commissioned, no matter the capacity of the project
D is limited. There is also no manner of doubt that the thirteen
additional sanctioned projects will not be sufficient to cater to the
States of its requirement of 12,000 metric tonnes. In that view,
therefore, we are inclined to extend the time fixed for completing
the switchover but impress upon the State to expedite the process
of switchover for otherwise it can go on indefinitely for decades.”
E
12. The tender notice has been issued by Government of
Maharashtra dated 08.03.2016, the tender conditions that came to be
questioned were contained in Clauses VII (h), (j) and (l) and Clause X
(e) and (g), which are extracted hereunder:-
F “VII... (h) Machinery Performance Certificate: Proposer must
furnish a list of machineries installed in his premises and a latest
certificate from a Chartered Engineer registered with the Institution
of Engineers (India), stating that the machinery is sufficient to
meet the production requirement of various Ready to Cook Food
Mixes as per product specification given under this proposal and
G also stating that the machinery can effectively perform for a
further period of 5 years. The certificate shall also clearly indicate
the installed capacity of such machinery.
(j) The Proposer should have In house Quality Control facilities,
and any quality control laboratory equipped with appropriate
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laboratory equipment for testing the parameters prescribed in the A
Food Safety and Standard Act (Prevention of Food Adulteration
Act) and as per the specifications given in the proposal regarding
the Nutrient contents, Moisture content, Microbiological and
Chemical contamination, Physical conditions e.g. dryness, softness,
consistency, Micronutrient contents. The proposer must submit a
B
list of equipment list of technically qualified personnel engaged in
quality control etc.
(l) The latest consent letter received from the micronutrient
manufacturer/importers, for the supply of micronutrient, minimum
for the contract period to the proposer, should be submitted before
the work order gets awarded. C
X. Blueprint/drawing of the plant approved by the Food and Drug
Authority from where the product as specified in this proposal
will be produced and supplied by the proposer. The design/detail
should cover location and capacity (in MT) of silos, covered
storage areas with capacity in MT, open storage areas with D
capacity in MT, process divisions like extrusion, cleaning, grinding
etc. Proposers shall also submit Notarized copies of the following
registration/licenses for producing Extruded Fortified Blended Food
as specified in this proposal.
(e) A valid license under FSSA, 2006. E
(g) ISO 22000:2005, ISO 14001:2004 OHSAS 18001:2007 Good
Manufacturing Practice.”
13. The Nagpur Bench has dismissed W.P. No.1807/2016 that
has been questioned in the special leave petitions i.e. F
SLP(C) Nos.10103/16, 8551/16 and 2415/2017.
14. Whereas Aurangabad Bench has set aside the tender notice
to the extent of reducing the products to 70. All the terms and conditions
of the tender have been held valid. The direction was issued to the
respondent to conduct the survey of the eligible units with respect to
G
extrusion technology and satisfying all other conditions and shall thereafter
proceed to form projects and issue tender notice accordingly.
15. It was pointed out that while rendering the decision in Shagun
(supra) on 19.8.2011 this Court was shown a letter dated 28.7.2009
which was issued by the Deputy Technical Advisor, Food and Nutrition
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498 SUPREME COURT REPORTS [2019] 3 S.C.R.
A Board (Western Region), Ministry of Women and Child Development,
sent recipes to the Government of Maharashtra. The recipes inter alia
provided for mandatory micronutrient fortification and mandatory use of
extrusiontechnology in preparation of meals, thus requiring factory-based
production which is difficult at the level of Anganwadi Centres, Relevant
portion of the recipes, which was relied on in the case of Shagun (supra),
B
is extracted hereunder:
“Protein content in the food can be increased by confined
sources and among the available sources Soybean is the best
sources for who are vegetarian, now the question arises that milk
can also be considered as one of the sources but protein content
C of milk are not as much as that of soybean. Again we can say that
legumes can also be considered as one of the sources available
for protein but when compared to soybean the protein contents of
legumes is very less and the problem faced with legumes is very
expensive.
D Hence the only sources left to attain the required protein
content are SOYABEAN which fits into the budgetary and
nutrition norms Problem encountered with soybean is that presence
of Tropism inhibitor and complex starch structure in Soybean
makes protein unavailable the solution to this was the use of apt
E processing technology.
The technology that we came across after studying the various
factors was “EXTRUSION TECHNOLOGY”.
EXTRUSION TECHNOLOGY
F
Is a multivariable unit operation i.e. mixing shearing, cooking,
puffing and drying in one energy efficient rapid continuous process?
This process of High-Temperature Short Time (HTST) combined
with high-pressure cooking in presence of moisture.
Try spin Inhibitor: They interface with the proper digestion of
G
the protein kakde at all (1973) estimated that nearly 40% of the
reduction in growth performance of any mammal fed raw soybean
is due to the trips in inhibitor.
The anituntironal factors can be deactivated through proper
heat processing such as across in extrusion.
H
VAISHNORANI MAHILA BACHAT GAT v. STATE OF 499
MAHARASHTRA & ORS.
Once the product is being extruded and is in granule or powder A
form the fortification of the micronutrients will be easy which
leads to a homogeneous mix of required nutrition in correct
proportion.
Micronutrient Fortification: The revised guidelines lays major
streets on micronutrient fortification of the THR to be provided to B
the beneficiary this step of micronutrient fortification requires
expert technical supervision and can be achieved in precise
perfection by using accurate machines with precision in measuring
the quantity in milligrams. The fortification of the said receipts at
AWC will be quite difficult.”
C
16. The Government of Maharashtra passed a Resolution dated
24.08.2009 on the basis of the advice dated 28.7.2009, which required a
highly mechanized and automated process of extrusion and micronutrient
fortification. The State Government further issued a tender notification
based on these requirement laying onerous conditions on Mahila Mandals
to have automated production units, turnover of Rs.1 Crore or more etc. D
Following is the Resolution of the Government of Maharashtra:
“There being need of change in the diet system to bring about
multifariousness in the diet and to effect micronutrient certification
by chemical process, individual cleanliness from the public health
point of view, or cleanliness of the premises, vaccination, creating E
public awareness are the points which require to be given
preference. It is not possible to remove the deficiency in the diet
of children and mothers by the diet being provided under the
Integrated Child Development Service Scheme. However, the
instructions of the Central Government are that 50% need of the F
micronutrient requirement may be made good by fortification
process.”
17. The Government of Maharashtra sought clarification from
Government of India regarding extrusion process, factory-based
production etc., as required in the recipe dated 28.07.2009. A letter was G
written on 29.1.2010. Relevant extract of a letter dated 29.01.2010 is
extracted hereunder:-
“Meanwhile, we have received a report from Mr.Balbeer Singh,
Dy. Director (Technical), Food and Nutrition Board, Western
Region, a copy of which is enclosed herewith.
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500 SUPREME COURT REPORTS [2019] 3 S.C.R.
A From this report, it is seen that the Food and Nutrition Board has
recommended factory-based production with extrusion technology
and specific recipes which use this technology for production of
THR.
In this regard, we would be grateful, if you would kindly clarify
B the following points so that the further tender process can be
finalised.
1. Does GOI prescribe or recommend factory-based production,
or any specific technology, for production of THR? Has it
prescribed any specific recipes or products?
C 2. Does it recommend ‘Extrusion Technology for THR
production’?
3. Does it recommend any minimum shelf life for THR? Is there
any prescribed water content?
D 4. Can the state go in for gur-groundnut chikki or similar products
as THR, as long as it satisfied the prescribed criteria for calories
and proteins etc.?
5. Has it authorized Food and Nutrition Board, Western Region,
to prescribe Extrusion technology for THR?”
E 18. 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.
Following is the reply sent by the Government of India:-
“Please refer to your DO letter No.ICDS/2008/CR-59
F (Part-II)/2005 dated 29th January 2010 raising queries regarding
factory-based production or specific technology for production of
THR.
The provision of SNP, whether in the form of morning snack,
hot cooked meal or THR has been left with the State. So far,
G there are no specific recommendations for the use of extrusion
technology or any other technology for THR. The suggestions
given by Regional DTA (Western Region) are only suggestive in
nature and not a recommendation by GOI.”
(emphasis supplied)
H
VAISHNORANI MAHILA BACHAT GAT v. STATE OF 501
MAHARASHTRA & ORS.
19. It was clarified by the Government of India that there is no A
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. In Shagun (supra) this Court on
19.08.2011 observed thus:-
B
“The Central Government, through the Ministry of Women and
Child Development and Food and Nutrition Board office vide its
letter dated 28th July 2009, circulated the Recipe to the State
Government (respondent No.1) as per new norms of ICDS for
preparation of the food. It was provided that the feeding norms
ought to have two components in it, to be provided as supplementary C
nutrition to the beneficiaries at Anganwadis namely:- Hot Cooked
Meal (HCM) and Take Home Ration (THR).
Directions were issued that HCM and THR should be given
in the form of “energy-dense food/micronutrient fortified food”
and should conform to the standards laid by the Prevention of D
Food Adulteration Act, Integrated Food Law, Infant, and Young
Child Practices. The micronutrient fortified food was defined to
be the food in which essential mineral and vitamins are added
separately to ensure that minimum dietary requirements are met.
It was emphasised that to attain the required protein content in E
the food proposed to be supplied, the only source was Soybean.
The food was to be processed by using Extrusion Technology to
draw maximum results by use of Soyabean. The guidelines in the
aforesaid letter further emphasised that since the revised guidelines
laid major stress on micronutrient fortification of the THR, it
required “expert technical supervision” and that it can be achieved F
by using accurate machines with precision in measuring the
quantity in milligrams.
The Government of India communicated the judgment in the
Shagun Mahila Mandal case to all States/UTs. The judgment
nowhere mentioned that private manufacturers or contractors are G
allowed, and the judgment was only limited to the tender conditions
applicable to eligible Mahila mandals. However, the Central
Government communication allowed the states to supply even
from manufacturers:”
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502 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 20. It is thus clear that observations made by this Court in Shagun
(supra) 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
B
stand diluted, based on misrepresentation.
21. 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. Following facts have been mentioned in the reply filed by
C the State of Maharashtra :
“The following women institutions are selected for the supply of
THR to the beneficiaries of the Gramin/Aadivashi and Urban
Project and the following product unit is allotted district wise.
D 1. Mahalaxmi Mahila Gruhuddyog and Bal Vikas Bahu Uddyeshiya
Aoudyo. Co.-Operative Society, Nanded
Unit 1. Mahalaxmi M.G.B.V.B.A. Cooperative Society, Nanded
Districts- Nanded, Parbhani, Hingoli
Unit 2. Indo Alied Protein Food Districts-Thane Pune, Ahmednagar
E
Unit 3. Kota Rajasthan Districts Mumbai, Raigad, Ratnagiri,
Sindhudurg, Sangali, Satara, Kolhapur, Solapur, Usmanabad, Akola,
Gondiya.
2. Maharashtra Women Cooperative Home Industry Societies,
Dhule, Districts – Dhule, Nandurbar, Nashik, Jalgaon, Aurangabad.
F
3. Vyankateshwar Women Cooperative Home Industry Societies,
Udgir.
Unit -1 Kapshikhurd Nagpur Districts- Bhandara, Gadchiroli,
Nagpur, Yavatmal, Jalna, Buldhana, Washim.
G Unit 2- Dongargaon, Nagpur Districts Chandrapur, Amravati, Beed,
Latur, Vardha”
22. Following averments have also been made in reply filed by
the State of Maharashtra with respect to Venkateshwara Mahila
Ayodhogic Sanstha:-
H
VAISHNORANI MAHILA BACHAT GAT v. STATE OF 503
MAHARASHTRA & ORS.
“It is necessary here to clarify that applicant Venkateshwara A
Mahila Ayodhogik Sanstha is in fact contractor: which is being
well practically operated by male members, merely by showing
female relatives or, documents for projection.
11. I further submit that detailed enquiry regarding Venkateshwara
Mahila Ayodhogik Utpadak Sahakari Sanstha will clearly reveal B
that the ladies are being projected merely on record and said
Sanstha is actually managed by all male members. It is not out of
place to point out that the said Sanstha being Utpadak Sahakari
Sanstha registered under Maharashtra Co-operative Societies Act
only for the purpose of production/manufacturing has no right to
claim any relief for supply of food grains as prayed in the present C
application as the said Society is not registered as trading/consumer
society. Hereto annexed and marked as ANNEXURE R-6 is a
copy of the registration certificate of Venkateshwara Mahila
Ayodhogik Utpadak Sahakari Sanstha issued by Deputy Registrar,
Co-operative Societies, Udgir. D
I further submit that on 12.7.1999 the said Venkateshwara
Mahila Ayodhogik Utpadak Sahakari Sanstha authorized Deepak
Dinkarrao Lakhangonkar to carry all the activities on their behalf
that makes it very clear that actually male counterparts are
administering affairs of so-called Mahila Society.” E
23. 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.
24. In the judgment rendered by the Aurangabad Bench, it has
been noted that three big contractors were selected who were not really F
Mahila Mandals or Mahila self-help groups:-
(i) Maharashtra Mahila Sahakari Grahudhyog Sanstha Ltd., Dhule.
(ii) Venkateshwara Mahila Audhyogic Utpadan Sahakari Sanstha
Ltd., Latur.
G
(iii) Mahalaxmi Mahila Garhudyog and Balvikas Buddeshiya
Audhyogic Sahakari Sanstha.
25. As in PUCL (supra) and Shagun (supra), divergent orders
were passed. Circular dated 26.09.2014 was issued. The order in PUCL
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504 SUPREME COURT REPORTS [2019] 3 S.C.R.
A (supra) was received by the government of India on 15.10.2014. On
17.11.2014 departmental note was circulated. Secretary made a
recommendation to review circular dated 26.09.2014 in the light of PUCL
order dated 1.9.2014. Director, ICDS also prepared a similar note dated
17.12.2014. On 22.12.2014 it was observed that requirement of
certification as per circular dated 26.09.2014 be kept on hold till April
B
2015. It was again introduced on 23.06.2015. Then again Maharashtra
Government Principal Secretary sought guidance from J.S. (ICDS)
regarding mandatory use of extrusion technology. On 03.09.2015, it
was written back that decision of Supreme Court may be followed.
26. The appellants/petitioners have relied on the report as to
C corruption and poor quality of meals supplied by contractors as positive
instances of decentralized production model by SHGs. The
Commissioner appointed in PUCL (W.P.© No.196/2001) observed in a
letter:-
“We also welcome the enhanced calorie and protein
D supplementation norms proposed by the Ministry of Women and
Child Development for the Supplementary Nutrition Programme
as mentioned in the draft.
However, we are in strong disagreement with the manner in
which the Ministry of Women and Child Development is seeking
E to allow a backdoor entry of contractors and middlemen back into
the Supplementary Nutrition Programme by suggesting the
introduction of micro-nutrient fortified food obviously through
contractors, although this is not specifically stated in the letter
dated 24/02/2009.
F Such an attempt to introduce contractors by the back door in
the guise of supplying micro-nutrient fortified food was repeatedly
rejected by this Honorable Court when several State Governments
filed affidavits seeking to promote the contractor lobby for the
provisioning of fortified foods, snack and other ready to eat food
G in ICDS.
This contractor lobby seeks to capture what it perceives to
be potential Central Government annual budget of Rs.5000 crore
in the Supplementary Nutrition Programme.”
H
VAISHNORANI MAHILA BACHAT GAT v. STATE OF 505
MAHARASHTRA & ORS.
27. The petitioners have also relied on the NHRC in a report on A
the functioning of ICDS in Gorakhpur (U.P.) as to the poor quality of
THR recommended thus:-
“...a rapacious private sector is riding on the back of the ICDS
to a captive rural market with the help of government machinery
in a naked display of crony capitalism. B
By procuring food from a contractor the State Government is
probably violating the orders of the Supreme Court dated 7.10.2004
and 13.12.2006 in WP (C) No. 196 of 2001, though the contractor
hides behind the fig leaf of being a manufacturer. Less than two
years back, the contractor set up a processing plant in Bahraich
district for the sole business of supplying ready-to-eat food (RTE) C
to AWCs in Gorakhpur and 11 other districts of eastern Uttar
Pradesh. This shows that the State Government far from phasing
out contractors is encouraging expansion of their business in ICDS.
The RTE does not seem to contain the ingredients claimed and
the weaning food may not be suitable for babies. The ready to eat D
food is produced in poor hygienic conditions. Some of the
ingredients shown on the bags containing the finished product were
not found in stock at the time of the visit and the stock of maize
was only enough to meet 25% of the daily requirement.
ICDS in Uttar Pradesh is a highly centralised programme. E
Virtually everything is procured by the Directorate in Lucknow.
There is nothing purchased at the district level. The only exception
is the small amount allotted to each AWC to purchase food items,
which accounts for 14% of the total purchase of foodstuff.
All communication is top-down. The programme suffers
because of the lack of free flow of information. There is no scope F
for local initiative. The authorities rely too much on paperwork,
which seems to have become an end in itself.
The complete decentralization of the feeding programme
through local women’s groups, contemplated by the Supreme
Court’s orders referred to above, is still a far cry in Uttar Pradesh. G
Weak Links
Centralization of powers at Lucknow has made the field level
functionaries powerless, apathetic and devoid of initiative. The
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506 SUPREME COURT REPORTS [2019] 3 S.C.R.
A biggest danger of centralization lies in the area of purchases. It
makes small sums spent per AWC attractive to rapacious private
sector players and their corrupt collaborators by pooling the
resources meant for 166073 AWCs spread across the State. I
would call centralized purchase the weakest link.
B Manufactured ready to eat food is difficult and unsafe to store,
indifferent in taste and nutritive value lacks variety and is easy to
divert in bulk. It is supplied at the same rate as prescribed per
beneficiary by the government. If we take away a modest value
addition of 15% in the procession plants, the real value of supplies
to the beneficiary will be reduced by the same percentage. So I
C will call RTE the second weakest link.
Dependence on official machinery, with only token beneficiary
participation, is the third weak link.
Ultimately, the mothers in a village can be said to be the
beneficiaries of the programme. Until the management of the
D programme at AWC level is delegates to mothers’ groups, diversion
of resources and corruption cannot be rooted out. Suggestions for
improvement.
Before taking any other steps, the government has to
demonstrate its intentions by doing away with private contracts
E for food supply altogether. This will send a message to the field
functionaries who seem to be confused about the real intentions
of their superiors at Lucknow.
Simultaneously, the entire feeding programme has to be
decentralised to the village-level women’s’ groups. The existing
Matri Samitis, self-help groups of women or mothers’ groups
F
formed by the community can be adopted as the vehicle of
decentralization. There should be no prescription about cooked
food and ‘take-home’ food. There is no need to assume that women
and babies at the weaning stage cannot be fed cooked meals at
the Anganwadi. Every community should be allowed to decide
G what suits it best. Advice and guidance may be provided to help
the community make a decision. The assistance of CFTRI may
be sought to generate alternatives from which the community can
choose. For the decentralised system to succeed, it is imperative
that funds for every month are placed at the disposal of the
women’s’ group in the last week of the previous month.”
H
VAISHNORANI MAHILA BACHAT GAT v. STATE OF 507
MAHARASHTRA & ORS.
28. The National Rural Livelihood Mission, Government of India, A
on 21.01.2013, gave guidelines for involvement of SHGs in the supply of
THR under ICDS. The extract of a letter of Additional Secretary, Ministry
of Rural Development are as under:-
“A Women’s’ Self Help Group (SHG) (of 10-20 women in
general, 5-20 women in difficult areas) is the primary building B
block of NRLM’s institutional design. The S.H.G. is an informal
and unregistered group. Under N.R.L.M., one member from each
identified rural poor household, preferably a woman, is to be
organized into a Self Help Group (SHGs). These groups are formed
on the basis of affinity and common bonding among members.
They are not arbitrarily put together, and more important this task C
is not to be performed mechanically. It requires very sensitive
facilitation, initially by an external social mobilizing agency, N.G.O
or Govt. Missions and later on their own federation emerges as a
sensitive support agency and takes over most of the functions
being performed by the initial external support organizations. Now D
SHGs are formed out of the existing BPL list. We are attempting
to switch over to a participatory identification methodology which
will ensure much better inclusion of the deserving poor.
The time required capacitating groups to undertake a micro-
enterprise model related to Skills and Placement. Currently, only E
two State Missions under NRLM have experience in undertaking
micro-enterprise models for ICDS - Kerala, and Odisha. Based
on the models developed by Kerala and Odisha, where Community
Based Organisations (CBOs) including SHGs/federations are
trained to develop a micro-enterprise related to SNP using local
ingredients, it could take between 4-8 weeks to train and capacitate F
a CBO depending on their potential and skills. There are also
models promoted by reputed N.G.Os in many states in cooperation
with the Dept, of Women and Child Welfare.
How can your department/N.R.L.M. support WCD in involving
S.H.Gs/M.Ms./local women groups in supplying Supplementary G
Nutrition esp? Take Home Rations for ICDS as a livelihood activity
viable enterprise?
Essentially, the tasks suggested should have to be accepted by
the State Rural Livelihood Missions and implemented initially on a
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508 SUPREME COURT REPORTS [2019] 3 S.C.R.
A pilot mode. The total acceptance by the State WCD is a pre-
condition for this. Already Kerala and Orissa have experience in
supplying Take Home Ration under ICDS. These States can be
declared as the Resource States, the experience of which can be
formally shared with other willing States from which joint teams
of the State Livelihood Mission and State WCD can learn and
B
prepare an action plan as appropriate to the State.”
29. On 24.12.2013, Government of India has issued Operational
Guidelines for Food Safety and Hygiene in ICDS with respect to SHGs
and local groups as under:-
C “Take Home Ration (THR) is dry packed food produced locally
by SHG’s, local groups and federations. The production should
meet the standards and specifications for food safety and handling.
The establishment in which food is being handled; processed,
stored, distributed by the SHG/ producer is a holder of the
D registration certificate or a license as per the norms laid down by
the Food Standards and Safety Authority Act, 2006, Regulations
2011. Sanitary and hygienic requirement, food safety measures,
and other standards should be confirmed and it will be the
responsibility of the producer to ensure adherence to necessary
requirements.
E
Processing of Food (Take Home Rations): Processing involves
activities like sieving, washing, drying, roasting, mixing, grinding
etc., which requires handling of food.”
30. The Government of India in its ‘Social Service Delivery: Good
F Practices Resource Book 2015 applauded the Odisha model in the
following terms:
“Decentralisation of ICDS Supplementary Nutrition Programme:
Ensuring timely and quality nutrition to all beneficiaries in Odisha.
The Department of Women and Child Development (WCD),
G Government of Odisha, has undertaken decentralization of the
Integrated Child Development Services (ICDS) supplementary
nutrition programme in the state to streamline and strengthen the
programme and ensure ‘ universalization with quality’ in a time-
bound manner. The initiative reaches out to all beneficiaries with
a standard weekly menu, meeting the protein and calorie norms
H
VAISHNORANI MAHILA BACHAT GAT v. STATE OF 509
MAHARASHTRA & ORS.
within the allocated ration cost, removing contractors and A
encouraging women Self Help Groups (SHGs) in adherence with
the Supreme Court directive. Results from a social audit indicate
that 71% of the respondents felt that the menu chart was being
followed.”
“Replicability and Sustainability B
Social sustainability of the initiative is high, owing to the
successful run of the community-driven model that has been
institutionalized for the SNP. Following the success of Jaanch
Committees in SNP, the system will now also been extended to
other components of ICDS on a trial basis to induce more C
community participation in implementation.
Long-term sustainability requires the state administration to
create an enabling environment. For the purpose of introducing
reforms, support for this initiative was garnered from the apex to
the grassroots level and the required trust to be invested in D
grassroots functionaries.
The replication of this model requires a strong administrative
thrust in identifying the context-relevant loopholes in the system,
as was done in the case of Odisha. Training and capacity building
of the community is also an essential factor for the smooth E
deployment of the model which has demonstrated that procuring
food materials at ration rates may be difficult but is possible and
that contractors can be removed from the supply chain of SNP
with beneficial results in terms of effective implementation.”
F
31. In our opinion, it was argued rightly that this Court was misled
while rendering the decision in Shagun (supra) 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 extracted above. G
32. Apart from that after the decision has been rendered by this
Court in Shagun (supra) 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
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510 SUPREME COURT REPORTS [2019] 3 S.C.R.
A affidavit of the Secretary, Ministry of Home and Child Development. In
the affidavit filed by UOI represented by the Ministry of Women and
Child Development following has been mentioned with respect to the
supplementary nutrition programme of the Government under the
Integrated Child Development Scheme:-
B “SUPPLEMENTARY NUTRITION PROGRAMME OF THE
GOVERNMENT UNDER THE ICDS SCHEME
3. That the Anganwadi Services Scheme (earlier known as
Integrated Child Development Services (hereinafter referred to
as “ICDS”) aims at holistic development of Children (0-6 years)
C and Pregnant Women and Lactating Mothers. It comprises of
integrated services including supplementary nutrition, immunization,
health check-ups, referral services, pre-school non-formal-
education, and Health & Nutrition Education.
4. That ICDS is a Centrally Sponsored Scheme, wherein the
D Central Government in the Ministry of Women and Child
Development is responsible for programme planning and its share
of operating costs and the State Governments/UT Administrations
are responsible for day-to-day program implementation including
Supplementary Nutrition Programme and management thereof.
E 5. That the Government of India provides its share of funds for
administrative, operative and implementation costs as per cost
sharing norms. For ICDS (General), the Central share is 90% for
North-Eastern (NE) States and Himalayan States and 60% for
other States and UTs with the legislature and 100% for UTs without
the legislature. It is most respectfully submitted that for
F Supplementary Nutrition, Government of India bears the
expenditure on 50:50 basis for all States and UTs with the legislature
and at 90:10 ratio for NE and the Himalayan States. For UTs
without a legislature, the entire expenditure is borne by Central
Government.
G 6. That the Supplementary Nutrition Programme (SNP) supplied
under ICDS Scheme is of two types for different beneficiaries
i.e.:
a. Take Home Ration (THR) for Pregnant Women, Lactating
Mothers, and Children in the age group of 6 months to 3 years;
H and
VAISHNORANI MAHILA BACHAT GAT v. STATE OF 511
MAHARASHTRA & ORS.
b. Hot Cooked Meal (HCM) for children in the age group of 3-6 A
years.”
7. That it is necessary to clarify that Supplementary Nutrition is
not a full meal as in the case of Mid-Day Meal. SN is the difference
in nutritional value of Recommended Dietary Allowance and
Average Daily Intake to cover up the deficiency. B
8. That the HCM is served at the Anganwadi Centre (AWC)
itself and is mostly prepared at the AWCs. Take Home Ration is
served to the beneficiaries once/twice in a month as regulated by
the concerned State Government/UT Administration and is to be
prepared as per the guidelines, instructions or orders issued by C
the Central Government from time to time and the orders or
guidelines issued by the Supreme Court or High Courts, to conform
to the quality, hygiene and quantity standards.
9. That the Central Government provides parameters of
maintaining standard and quality of food (which include calorie, D
protein, food safety hygiene, and contamination).
10. That Food & Nutrition Board functioning under the Ministry
of Women and Child Development carries out periodic checks to
ensure that prescribed standards are adhered to and quality and
nutritive value of Supplementary Nutrition is maintained. Theré is E
four regional laboratories under FNB for carrying out the tests so
as to ensure food safety supplied by the State Governments. There
are 43 field units under FNB spread across the country to collect
the sample and get food tested to ensure food quality.
11. That the Government of India issued the detailed Operational F
Guidelines for Food Safety and Hygiene in ICDS on 24.12.2013,
copy whereof is enclosed herewith as Annexure R-1. These
guidelines provide the broad contours of Food Safety measures in
ICDS and include separate sections on general principles for
maintenance of cleanliness, hygiene at Anganwadi centers and
manufacturing units, precautionary measures, handling G
emergencies and cases of chemical poisoning and easy to follow
simple protocols for food handling at different stages.”
33. 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
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512 SUPREME COURT REPORTS [2019] 3 S.C.R.
A following measures for maintaining hygiene and sanitation at the
Anganwadi centers and ensuring food safety:-
a) Food Handling and Safety Measures for Hot Cooked meal and
Morning Snack which includes transportation, procurement,
storage, food safety, safety while cooking and serving, disposal of
B leftover, monitoring, and supervision, quality assurance, etc.
b) Guidelines for Food Safety and Hygiene in Take Home Ration
which includes location, surrounding and building, drainage and
waste disposal, washing facilities, storage, etc.
c) Food Handling and Safety Measures for THR which includes
C procurement, processing, packaging, quality assurance.
d) To prevent contamination of Supplementary Nutrition, all
equipment and utensils must be cleaned and disinfected.
e) Adequate precautions must be taken to prevent the food item
D from being contaminated during cleaning or disinfecting of rooms,
equipment or utensil, by use of water, detergents or disinfectants.
f) Floors and drains must not be cleaned whilst the food is being
prepared.
g) Detergents and disinfectants must be suitable for the purpose
E and any residues of these agents on a surface which may come in
contact with food item must be removed by thorough rinsing with
potable water before the area or equipment is used again.
h) Immediately at the end of the day’s work, floors (including
drains), structures and walls of food handling areas must be
F thoroughly cleaned.
i) Toilets must be kept clean and tidy at all times.
j) Provision of safe disposal of stool and wastes must be made.
k) Nearby outside area/surroundings must also be kept clean and
G tidy.
l) Regular pest control measures should be adopted at the
Anganwadi centers. However, before pesticides are applied, care
must be taken to protect people, food, equipment and utensils from
contamination.
H
VAISHNORANI MAHILA BACHAT GAT v. STATE OF 513
MAHARASHTRA & ORS.
m) Substances which could contaminate food must not be used or A
stored in food handling areas
n) The personal hygiene standard of food handlers at kitchen,
AWW/AWH includes a high standard of personal cleanliness,
freedom from infectious diseases and a sufficient standard of
hygiene. B
o) The state may ensure that AWWs/AWHs are in good health
and all staff enrolled for the supply of food items must be
adequately trained in good hygiene practices. p) Hands must always
be washed before entering the foods handling area immediately
after using the toilet, after handling contaminated material and C
whenever necessary.
34. It has also been pointed out by the Secretary in the affidavit
dated 06.08.2018 that Supplementary Nutritional Programme (for short
‘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 D
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 as Annexure R-2. E
35. The various recipes which have been prescribed were Cereal-
Pulse Mix, Regina, Rice Flakes-Groundnut Barfi, Wheat-Groundnut 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, as specified in F
Annexure R2.
36. 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 aforesaid recipe is only suggestive, as specified in the
affidavit of 06.08.2018 of the Secretary Government of India of the G
concerned department itself.
37. 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 self-help H
514 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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
B
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
C 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.
38. Sections 4, 5 and 6 of the Act of 2013 are extracted hereunder:-
D “4. Nutritional support to pregnant women and lactating mothers.-
Subject to such schemes as may be framed by the Central
Government, every pregnant woman and lactating mother shall
be entitled to—
(a) meal, free of charge, during pregnancy and six months
after the childbirth, through the local Anganwadi, so as to meet
E
the nutritional standards specified in Schedule II; and
(b) maternity benefit of not less than rupees six thousand, in
such installments as may be prescribed by the Central Government:
Provided that all pregnant women and lactating mothers in
regular employment with the Central Government or State
F Governments or Public Sector Undertakings or those who are in
receipt of similar benefits under any law for the time being in
force shall not be entitled to benefits specified in clause (b).
5. Nutritional support to children.- (1) Subject to the provisions
contained in clause (b), every child up to the age of fourteen years
G shall have the following entitlements for his nutritional needs,
namely:—
(a) in the case of children in the age group of six months to six
years, age appropriate meal, free of charge, through the local
Anganwadi so as to meet the nutritional standards specified in
Schedule II:
H
VAISHNORANI MAHILA BACHAT GAT v. STATE OF 515
MAHARASHTRA & ORS.
Provided that for children below the age of six months, A
exclusive breastfeeding shall be promoted;
(b) in the case of children, up to class VIII or within the
age group of six to fourteen years, whichever is applicable, one
mid-day meal, free of charge, everyday, except on school holidays,
in all schools run by local bodies, Government and Government B
aided schools, so as to meet the nutritional standards specified in
Schedule II.
(2) Every school, referred to in clause (b) of sub-section (1), and
Anganwadi shall have facilities for cooking meals, drinking water
and sanitation: C
Provided that in urban areas facilities of centralised kitchens
for cooking meals may be used, wherever required, as per the
guidelines issued by the Central Government.
6. Prevention and management of child malnutrition.- The State
Government shall, through the local Anganwadi, identify and D
provide meals, free of charge, to children who suffer from
malnutrition, so as to meet the nutritional standards; specified in
Schedule II.”
39. Calorie requirement has also been pointed out in the affidavit
dated 06.08.2018 in the tabular form: E
S. No . Catego ry T ype o f meal C alories Protein
(Kcal) (g )
1. Chi ldren T ak e Ho me Ratio n 5 00 12 -1 5
(6 mon th s to 3
years) F
2. Chi ldren M ornin g Snack s 5 00 12 -1 5
(3 to 6 years) and Ho t Coo ked
M eal
3. Chi ldren T ak e Ho me Ratio n 8 00 20 -2 5
(6 mon th s to 6
years) wh o are G
maln ou ris hed
4. Preg nan t wo men T ak e Ho me Ratio n 6 00 18 -2 0
and Lactating
Mo thers
H
516 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 40. It has also been pointed out that 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
B
preparation of THR in the simplest way.
41. 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
C as Supplementary Nutritional (under ICDS) Rules, 2015 on 08.06.2015,
which have been amended on 20.02.2017.
42. Rule 7 of the modified Rules is relevant, the same is extracted
hereunder:-
D “7. Preparation of meal and maintenance of its standard and
quality.-
(1) The procurement of food items and preparation of meals by
the State Governments and the Union Territory Administrations
shall be in accordance with the guidelines, instructions or orders
E issued by the Central Government from time to time in conformity
with various directions issued by Supreme Court of India, the
provisions of Schedule II to the Act and any other law for the
time being in force.
(2) The State Governments and the Union territory Administrations,
F with the support of Food and Nutrition Board (hereinafter referred
to as the Board), shall ensure the quality of supplementary nutrition
with reference to the norms of food safety, as well as food
composition.
(3) The Supplementary Nutrition shall conform to the standards
laid down under the provisions of the Food Safety and Standards
G
Act, 2006 (34 of 2006) to ensure consistent quality and nutritive
value of the intervention per serving and it shall also be ensured
that the meal is prepared in the kitchen having adequate sanitation
and safe drinking water to maintain hygienic conditions.
H
VAISHNORANI MAHILA BACHAT GAT v. STATE OF 517
MAHARASHTRA & ORS.
(4) It shall be the responsibility of the concerned District A
Programme Officer and the Child Development Project Officer
under the Anganwadi Services (Integrated Child Development
Services) to ensure the quality of supplementary nutrition with
reference to the norms of food safety, as well as food composition.
(5) The Board, in collaboration with the State Governments and B
the Union territory Administrations, shall carry out periodic checks
and test the meal or get it tested through the Government Food
Research Laboratories accredited or recognized by any law for
the time being in force, so as to ensure that the meal meets with
the nutritional standards and quality specified in Schedule II of
the Act. C
(6) Similarly, the officers, as authorized by the State Governments
or the Union territory Administrations, shall also conduct surprise
checks and draw samples and get them tested through the above
laboratories to ensure quality and nutrient value of the meal.
D
(7) The food should be tasted by the Anganwadi worker or helper
before it is served to the beneficiaries at Anganwadi center.”
43. Rule 9 of the modified Rules is also relevant, the same is also
extracted hereunder:-
9. Responsibility to monitor and review arrangement for E
supplementary nutrition.- The respective State Governments and
Union Territory Administrations, and the Monitoring and Review
Committees at the National, State, District, Block and Anganwadi
levels, constituted by the Central Government in the Ministry of
Women and Child Development from time to time, shall be F
responsible to monitor and review the status of arrangement for
Supplementary Nutrition, convergence with the line departments
to ensure water and sanitation facilities, ensure regular functioning
of Anganwadi centres, ensure regular supply of Supplementary
Nutrition at Anganwadi centres without disruptions and use of
iodised or iron-fortified iodised salts, ensure monitoring and G
supervision visits by officials at different levels as per norms,
method of delivery of supplementary food at Anganwadi centres,
engagement of Self Help Groups, ensure supply and quality of
Supplementary Nutrition through them and all other issues relating
H
518 SUPREME COURT REPORTS [2019] 3 S.C.R.
A to the above, as per their roles defined in the guidelines issued by
the Central Government in the Ministry of Women and Child
Development from time to time:
Provided that till the engagement of Self Help Groups, the supply
of Supplementary Nutrition shall be ensured from such other sources or
B approved agencies in terms of the existing rules and regulations notified
by the Central Government and the State Governments or Union Territory
Administrations.
44. It has been also pointed out in the affidavit filed by the Union
of India that the Government of India has launched the POSHAN
C 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 as per
the following targets:-
D S. No. Objective Target
1 P revent and reduce Stunting in By 2% p.a.
children (0-6 years)
2 P revent and reduce under-nutri tion By 2% p.a.
(underweight prevalence) in children
(0-6 years)
E
3 R educe the prevalence of anemia By 3% p.a.
am ong young Children (6-59
m onths), Women and Adolescent
Girls in t he age group of 15-49 years
4 R educe Low Birth W ei ght (LB W) By 2% p.a.
F
45. 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
G
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
H Chairperson/Members:-
VAISHNORANI MAHILA BACHAT GAT v. STATE OF 519
MAHARASHTRA & ORS.
a. Vice Chairman, NITI Aayog … Chairperson A
b. Minister, Women & Child Development … Member
c. Minister, Health & Family Welfare … Member
d. Minister, Drinking Water & Sanitation … Member
e. Minister, Rural Development … Member B
f. Minister, Tribal Affairs … Member
g. Minister, Panchayati Raj … Member
h. Minister, Consumer Affair & Food … Member
C
i. Minister of State of, Finance … Member
j. Minister of State of, Human Resource Development … Member
k. Minister of State Urban Development … Member
l. Minister of State Information & Broadcasting … Member
D
m. Minister of State Environment, Forest … Member
& Climate Change
n. State Chief Ministers of 5 States … Member
(Bihar, UP, Rajasthan, Tamil Nadu &
Chhattisgarh on rotation for 2 years) E
o. Member, Health & Nutrition, NITI Aayog … Member
p. Secretary, Health Research & DG, ICMR … Member
q. Secretary, MWCD … Member-
F
Secretary
Secretaries of the line Ministries as Special Invitees. DCs/DMs
from 10 districts with the highest prevalence of child stunting (to be
co-opted)
46. The terms of reference of the above Council are as follows:- G
“a. Provide policy directions to address India’s nutritional
challenges through coordinated inter-sectoral action.
b. Review programmes for nutrition on a quarterly basis.”
H
520 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 47. 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
B
Integrated Child Development Services Scheme) Rules, 2015, which
have been amended in 2017. Minutes have been placed on record as
Annexure R-10 to the affidavit.
48. The issues discussed and the directions thereon are contained
in paragraph 28 of the Minutes of Meeting, which are extracted
C hereunder:-
“28. The Issue of Hot Cooked meals and THR at Aanganwadi
was discussed and deliberated upon. Secretary, MWCD brought
out that help of SHGs and mothers (whose children were in the
Aanganwadi) was being sought in preparing the meals. 17 States
D were following this approach and the menu had been fixed based
on the demographic profile as well as the availability of local
resources. The point was also stressed upon by Hon’ble Minister
of CAF&PD. It was agreed that the mothers should be involved
for the preparation of the meals to ensure quality and encourage
E Jan bhagidari.”
49. Ultimately, 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
F 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. The following points broadly emerge:-
“a. Preparation of Hot Cooked Meal at the AWC itself where
G there should be the provision of the kitchen, water, and sanitation
as per the provisions of Section 5(1) of the NFSA;
b. Supply of Take Home Ration meant for children 6 months - 3
years age and P&LM from the Self Help Groups as per Schedule-
II of NFSA, 2013 and Rule-9 of the SNP Rules, 2017;
H
VAISHNORANI MAHILA BACHAT GAT v. STATE OF 521
MAHARASHTRA & ORS.
c. Maintenance of quality, cleanliness, and hygiene as per the A
provisions of Section-7 of SNP Rules, 2017 and the Government
of India guidelines issued in July 2013;
d. Protein and the calorific requirement to be met as per the
provisions of Schedule-II of NFSA, 2013;
e. Fortification of food ingredients of SNP under ICDS as per B
MWCD’s letter dated 10.07.2017;
f. States/UTs to decide recipes keeping in view the nutritional
requirement prescribed food habits and availability of local food.”
50. When we consider the NIT in question issued by the C
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 D
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 E
virtue of the imposition of the aforesaid 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 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, F
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. G
51. Tender notice which has been issued also falls down, we direct
the tenders to be invited afresh, within four weeks, strictly as per the
policy and observations made in this judgment.
H
522 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 52. 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/
B
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 and they are restrained from continuing the
existing system of supply in the interregnum period. This decision as to
alternative arrangement should be taken within ten days.
C 53. The appeals and writ petition are, accordingly, disposed of.
54. The applications for impleadment/intervention are allowed to
the extent of intervention and were heard and disposed of.
55. Pending application(s), if any, shall stand disposed of.
D
Nidhi Jain Matters disposed of.
E
F
G
H
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