VAISHNORANI MAHILA BACHAT GAT versus STATE OF MAHARASHTRA & ORS. on 26 February 2019

VAISHNORANI MAHILA BACHAT GAT

v.

STATE OF MAHARASHTRA & ORS.

(Civil Appeal No. 2336 of 2019)

FEBRUARY 26, 2019

[ARUN MISHRA AND DEEPAK GUPTA, JJ.]

Government Contracts/Tender: Eligibility conditions of thetender – Reasonableness–Contracts for the supply of food forAnganwadis – Issuance of tender notice by State of Maharashtra –Supply of ready to cook food to Anganwadi centres as supplementarynutritional 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 insistingon mandatory use of extrusion technology in preparation of meals-THR(take home ration); that Mahila Mandals to have automatedproduction units, turnover of Rs.1 crore or more, and that underthe guise of the conditions of the tender, the contract given by theState to large corporates/contractors instead of the local MahilaMandals, thus, the conditions of tender arbitrary and unreasonable– Held: Imposition of the condition in the tender not in tune with thespirit of the Act and the orders passed by this Court as well as thepolicy framed by the Government of India – Thus, the tenderconditions cannot be held to be valid as they were arbitrarilyfixed – Tender notice issued is struck down – Tenders are directedto be invited afresh, within the stipulated period strictly as per thepolicy and observations made in this judgment – State Governmentto make alternative arrangement and are restrained from continuingthe 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 itsclarification to the Government of Maharashtra regarding the useof extrusion technology and as to mandatory specifications laiddown in the recipe dated 28.7.2009. It was clarified by theGovernment of India that there is no specific recommendation

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Afor the use of extrusion technology or any other technology forTHR. The suggestion given by the Regional DTA, (WesternRegion) is only suggestive in nature and not a recommendationmade by the Government of India. It is thus clear thatobservations made by this Court in Shagun’s case was based uponnot upon Government of India recommendations but in the letterBof Deputy Technical Director, Western Region, which was wronglyrepresented to this Court as recommendations of the Governmentof India. In view of the clarification made by the Government ofIndia, the observations made by this Court as to extrusiontechnology stand diluted, based on misrepresentation. ByCintroducing the extrusion Technology it was pointed out that in2010 three Mahila Mandals, which were chosen, were found tobe fake and were only acting as fronts for existing companies andindustrialists. Thus, it was urged that the field has been left opento the industrialists in the conditions of the tender under theguise of Mahila Mandal’s fake persons are obtaining contracts.DIn the judgment rendered by the Aurangabad Bench, it has beennoted that three big contractors were selected who were not reallyMahila 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 whileErendering the decision in Shagun’s case when it was projectedthat it was mandatory to follow the recipes dated 28.7.2009whereas Government of India itself has clarified that it was onlysuggestive and was not the decision of Government of India aspointed out in the letter dated 26.2.2010. Apart from that afterFthe decision has been rendered by this Court in Shagun’s case,the Act has been enacted and new policy has been framed by theGovernment of India and thereafter new policies have been filedby the Government of India on 6.8.2018, contained in the affidavitof the Secretary, Ministry of Home and Child Development. Ithas also been pointed out in the affidavit on behalf of theGGovernment of India dated 06.08.2018 that the guidelineprescribes the measures for maintaining hygiene and sanitationat the Anganwadi centers and ensuring food safety. It has alsobeen pointed out by the Secretary in the affidavit dated 06.08.2018

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that Supplementary Nutritional Programme (‘SNP’) isimplemented, managed and controlled by the respective States/UTs, it is at their discretion to decide items of food to be suppliedunder the supplementary nutrition as the local food habits, regionalpreferences and availability of food in the local area vary fromplace to place. However, this is to be done by keeping in viewthe overall guidelines, nutritional norms and food safety standards,a copy of some of the suggestive recipes prepared by the NationalInstitute 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 wereCereal-Pulse Mix, Regina, Rice Flakes-Groundnut Barfi, Wheat-Groundnut Barfi, Bajra and Pulse/Legume Mix, Sweet ReadyMix, 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 concernedState or the Union Territory to take an action on the recipes theywant as per local requirement, the said recipe is only suggestive,as specified in the affidavit of 06.08.2018 of the SecretaryGovernment of India of the concerned department itself. It hasalso been pointed out that under THR normally dry mixtures aresupplied such as Daliya, Khichdi etc. However, some other Statesare giving in some other forms. Most of the items do not requirea sophisticated technique of manufacturing process and the self-help groups/Mahila Mandals are fully equipped and competentto supply the said food. The concerned Authorities of the StateGovernment are expected to undertake all such steps whichbecomes necessary that the self-help groups/Mahila Mandals andsuch other similar organizations are allowed to meaningfullyparticipate in providing HCM and THR, all over the country andterms and conditions of the tenders etc., should not be framed insuch a manner that they get excluded from participating itself insuch tenders. It has also been pointed out that with respect tomanagement, preparation, supply, monitoring and service of thesupplementary nutrition under the Integrated Child Development,Scheme the policy of the Central Government is guided by theprovisions contained in the Office Memorandum dated 24.02.2009

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Aof the Ministry concerned and the decision of this Court in PUCLv. Union of India dated 22.04.2009 in W.P.(C) No.196/2001 tofollow and implement the guidelines.[Para 35-37] [513-F-H;514-A-C]

1.4 Before enactment of the Act of 2013, the National FoodBSecurity Ordinance was issued on 5.7.2013. Note 1 belowSchedule II of the said Ordinance states “Energy Dense Foodfortified with micronutrients as per 50 percent of RecommendedDietary Allowance”. However, the Parliament while discussingand passing the Act of 2013 deleted the above provision therebymaking the preparation of THR in the simplest way. In exerciseCof powers, under Section 39 of the Act of 2013, the CentralGovernment has framed the Rules after consultation with theState Government and Union Territories, experts and the civilsociety notified the Rules relating to Sections 4, 5 & 6 of the Actof 2013 called as Supplementary Nutritional (under ICDS) Rules,D2015 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 ofIndia that the Government of India has launched the POSHANAbhiyaan on 08.03.2018 with the objective to comprehensivelyaddress the problem of stunting, under-nutrition, low birth weight, and anemia in a time-bound manner children and Pregnant &ELactating Mother. Further instructions have been issued videletter dated 10.07.2017 with respect to meet the requirement offortification of food with micro-nutrient, the Union of India hasmandated the use of double fortified salt (Iodine & Iron) andfortified oil (Vitamin A & D) and fortified Wheat flour (Iron, FolicFAcid and Vitamin B-12) for preparation of SNP under the ICDS.In POSHAN Abhiyaan, a National Council on India’s NutritionChallenges which is an apex body to give policy direction, reviewand effective coordination and convergence between Ministrieshaving a sectoral responsibility was constituted on 03.01.2018with 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 meetingheld on 18.04.2018 discussed the issue of Hot Cooked meals forchildren in the age group of 3 years to 6 years and Take HomeRation (THR) for the children in the age group of 6 months to 3H

years and Pregnant Women and Lactating Mother as decided bythe State Government in conformity with the the Act of 2013 andthe Supplementary Nutrition (Under the Integrated ChildDevelopment Services Scheme) Rules, 2015, which have beenamended in 2017. Minutes have been placed on record. It hasbeen pointed out in the affidavit on behalf of the Government ofIndia, Ministry of Women and Child Welfare that the policy of theGovernment of India vis-a-vis the Supplementary Nutrition underthe ICDS Scheme based on the Nutritional Norms on 24.02.09read with the Act of 2013 and Supplementary Nutrition (Underthe Integrated Child Development Services Scheme) Rules, 2015,which have been amended in 2017 and the guidelines issued bythe Union of India. [Paras 47, 49] [520-A-B, E-F]

1.6 NIT issued by the Government of Maharashtra was notin the spirit of the orders passed by this Court as the impositionof the condition of 25% of turnover during any one of the lastthree financial years in the various districts by insisting for theperformance for supplying at least annual average value equal to25% of required turnover of applied sectors. As to the formationof applied sectors it is apparent from the tender notice that eachof the districts has been taken as a unit and yearly expenditure,for example, Ahmednagar is Rs.31,78,87,200/- yearly, 25% wouldcome to Rs.7,94,71,800/- and so on district-wise which rangesfrom Rs. 1 Crore to more than Rs.10 Crores in various districts.By virtue of the imposition of the said condition only big playershave been left in the field and that is not in tune with the spirit ofthe Act and the orders passed by this Court as well as the policyframed by the Government of India, as projected in the saidaffidavit dated 06.08.2018. Thus, the tender conditions cannotbe held to be valid as they were arbitrarily fixed and it was fairlyconceded by counsel for the State of Maharashtra that they haveto abide by the conditions as imposed by the Union of India andthe policy framed by the Union of India as projected in the affidavitdated 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 stipulatedperiod. [Para 51] [521-G-H]

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A1.8 It has also been found that fixing of unit area as a districtseveral players have been effectively ousted from the field, itwould be appropriate to form groups of the smaller area such asat panchayat or group of panchayats etc., within the District sothat the real intention behind the policy is fulfilled in its real senseand supply should be decentralized as much as possible as it isBnot for the big players/industrialists in the field to cater to theneeds of the Scheme as they have usurped in past. It is open tothe State Government to make alternative arrangement withinthe stipulated period and they are restrained from continuing theexisting system of supply in the interregnum period.C[Para 52] [522-A-C]

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

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CIVIL ORIGINAL/APPELLATE JURISDICTION: Civil AppealNo. 2336 of 2019.

From the Judgment and Order dated 15.03.2016 of the High Courtof Judicature at Bombay, Nagpur Bench at Nagpur in Writ PetitionNo. 1807 of 2016F

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.

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A. N. S. Nadkarni, Ms. Madhvi Divan, ASGs, K. Radhakrishnan,Colin Gonsalves, Balbir Singh, Sr. Advs., Anmol Chandan, Gurmeet SinghMakker, Ms. Olivia Bang, Ms. Deepika Sahani, Satya Mitra, Nar HariSingh, Gagan Sanghi, Abhijeet Sinha, Anas Tanwir, Maryam N. Alavi,Ebad Mushtaq, Fuzail Ahmad Ayyubi, Shashibhushan P. Adgaonkar, H

Nishant Ramakantrao Katneshwarkar, Sudhanshnu S. Choudhari, AmolNirmalkumar 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. ShubhangiTuli, Prashant Bhushan, Ms. Pratiksha Sharma, Ankit Acharya, Advs.for the appearing parties.

The following Judgment of the Court was delivered:

JUDGMENT

1. Leave granted.

The following Judgment of the Court was delivered:

JUDGMENT

1. Leave granted.

2. The appellants/petitioner(s) have questioned the judgment andorder dated 11.7.2016 passed by the High Court of Bombay, Bench atAurangabad and order dated 15.03.2016 of the High Court of Judicatureat Bombay, Bench at Nagpur. The petitioners in the writ petition filedbefore the High Court i.e. W.P. No.3359/2016 questioned the tendernotice dated 08.03.2016 issued by the State of Maharashtra inviting tenderfor multilevel contract and for supply of ready to cook food to AnganwadiCentres as supplementary nutritional food for children, pregnant womenand lactating mothers, adolescents girls under Integrated ChildDevelopment Scheme (ICDS Scheme). The conditions were questionedby the appellants/petitioner(s) being arbitrary, unreasonable against thespirit 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-helpgroups are sought to be ousted by the money power of large corporatehouses with the help of the State ,the decision by this Court in PUCL v.Union of India (W.P.(C) No.196/2001) is being violated and that ofShagun Mahila Udyogik Sahakari Sanstha Maryadit v. State ofMaharashtra and Others, passed in Civil Appeal No.7104/2011. It isurged that the local organization of women (Mahila Mandals) and self-help groups are best suited to give local food and other necessary effortsto provide supplementary nutritional food for children. The so-calledMahila Mandals who have applied under the tender that has been floatedis, in fact, large industrial units and nothing to do with the Mahila Mandalsand self-help groups. They are close to certain political personalities inthe State of Maharashtra. Industrialists are not supplying good food ascompared to these Mahila Mandals in different parts of the country, as AB

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Aaccepted by the Union of India in its Report. The imposition of theunrealistic conditions made it impossible for the Mahila Mandals tocompete. Thus, the State is entertaining fake business units and is actingcontrary to the various decisions of this Court and the spirit of the Scheme.

4. The principal issue raised is whether contracts for the supplyBof such food for Anganwadis should be given to local Mahila Mandalsrun along democratic lines with local women participating or whethersuch 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 haspassed the order, on 07.10.2004, inter alia to the following effect:-C

“The contractors shall not be used for the supply of nutrition inAnganwadis and preferably ICDS funds shall be spent by makinguse of village communities, self-help groups and Mahila Mandalsfor buying of grains and preparation of meals.”

D5. On 13.12.2006, in PUCL (supra), the Court inter alia passedthe following order:- “...Chief Secretaries of all State Governments/UTs are directedto submit affidavits giving details of the steps that have been takenwith regard to the order of this Court of October 7th, 2004 directingEthat “contractors shall not be used for supply of nutrition inAnganwadis and preferably ICDS funds shall be spent by makinguse of village communities, self-help groups and Mahila Mandalsfor buying of grains and preparation of meals”. Chief Secretariesof all State Governments/UTs. must indicate a time-frame withinwhich the decentralization of the supply of SNP through localFcommunity shall be made.”

6. Thereafter, Food Safety Ordinance, 2013 was promulgated on5.7.2013 in which provision has been made for the benefit of children inthe age group of 6 months to 14 years. The Ordinance which has takenthe shape of the Act i.e. National Food Security Act, 2013 (for shortG‘the Act of 2013’), aims at to reform the public distribution system andbringing in transparency and accountability apart from creating obligationof the Central Government and the State Governments in respect of allissues relating to food security.

7. A report was submitted to this Court by the Commissionerappointed in PUCL [W.P.(C) No.196/2001] regarding Take Home Ration(for short ‘THR’) in Maharashtra, relevant portion is extractedhereunder:- “In the attached report claims large-scale irregularities in thesupply of supplementary nutrition in violation of the orders of theHon’ble Supreme Court. The report claims though it is notspecifically proven that there is a nexus between politicians,bureaucrats and private contractors in the provisioning of SNP tothe ICDS leading to large-scale corruption and leakages.

The contracts to supply THR in Maharashtra have been givento three Mahila Mandals, namely, Venkateshwara MahilaAudhyogic Utpadan Sahakari Sanstha Ltd, Mahalaxmi MahilaGrahaudhyog & Balvikas Buddheshiya Audhyogic SahakariSanstha and Maharashtra Mahila Sahakari Grahudhyog SansthaLtd. These Mahila Mandals, in turn, have leased in the facilitiesfor production of THR from private agro-companies. My reportestablishes the de-facto and de-jure ownership of the MahilaMandals and the private agro-companies are by the same family.In each case, the Mahila Mandal has formed a sub-committeewhich has been given also operational control over productionand finances in relation to a unit which is owned by family membersof the members of the said sub-committee.

In some States like Uttar Pradesh, the supplementary nutritionhas been contracted out to private companies like Great ValueFoods, promoted by Gurdeep Singh (Ponty) Chadha in completeviolation of the Supreme Court orders. This continues despite anadverse report on the issue (in Gorakhpur) by the National HumanRights Commission. Similarly, a contractor based out of Noida,Continental Milkose (India) Ltd. provides the supplementarynutrition for the ICDS in Meghalaya. The contract continuesdespite adverse CAG reports on the provision of SNP inMeghalaya. This state of affairs prevails across many States/UTs.

According to the National Family Health Survey 3, every dayclose to 5,000 children dies in India due to preventable causesincluding malnutrition. The ICDS is the only institutional mechanism A

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of the Government to deal with issues of children under the ageof six. The government of India/States and UTs spend close to8,000 crores every year on the provision of SupplementaryNutrition. It is unconscionable that a country with one of the highestrates of child malnutrition, globally, allows rampant corruption toundermine the ICDS and thereby the future of its children.”

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8. The second report was submitted by the Commissionerappointed in PUCL (W.P.© No.196/2001) to this Court, the relevantportion is extracted hereunder:

“Part A of the existing report further probes the subject of thelarge-scale irregularities in the supply of Supplementary NutritionProvisioning (SNP) in violation of the orders of the Hon’bleSupreme Court by the engagement of contractors in ICDS in fourstates namely, Maharashtra, Karnataka, Uttar Pradesh, andGujarat.

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Part B of the report documents the best practice study fromtwo states viz, Odisha and Kerala on the effective involvement ofthe local women’s’ groups in the form of the decentralized modelof nutrition provisioning under ICDS, which is in consonance with2004 and 2006 Hon’ble Supreme Court order.

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Part C of the report is the nutrient analysis of the samplesTake Home Rations collected from four states (Maharashtra,Uttar Pradesh, Gujarat, Meghalaya), carried out by NationalInstitute of Nutrition (NIN) Hyderabad. NIN data shows asignificant gap between state specifications and the results of thelab test.

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We reiterate our concern for the health, nutrition, and life ofmillions of children in India, in the larger public interest and inorder to be able to indisputably establish the facts of this case, wewould again request the Hon’ble Supreme Court to set up anindependent Special Investigation Team (SIT) to enquire into theGmatter.”

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 thewrit petitioner, on the other hand argued that although the H

Government of Gujarat had made a statement before the HighCourt on 14 March, 2011 that they will completely switch-over tothe system of providing rations through Mahila Mandals and Self-Help Groups within a period of one year, the Government had notbeen diligent in doing the needful with the result that the switch-over was achieved only to the extent of 16 percent. He submittedthat the Government had in derogation of the orders of this Courtdated 7.10.2004, 13.12.2006 and 22.04.2009 engaged a contractorfor the supply of nutritional food to the children falling in the agegroup of six months to three years and that the present applicationwas only an attempt to perpetuate that violation. He submittedthat according to his instructions each Anganwadi was equippedwith pucca/kaccha kitchen for many many years and that therewas indeed no difficulty in supplying to the targeted age group ofchildren cooked nutritional food in terms of the scheme as directedby this Court.

In the circumstances, therefore, and keeping in view thesubmissions made at the Bar we direct the State Government ofGujarat to file an additional affidavit on the lines indicated above,indicating the time-frame within which it will switch-over to thesystem of supply of food to the targeted population of childrenand others entitled to the same in the State of Gujarat under theOrdinance and also indicating the time-frame within which everyschool and Anganwadi may be equipped with facilities for cookingmeals 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:- “In the meantime, we permit the Government of Gujarat tocontinue the system under which it has been procuring fordistribution take-home ration as EFBF from the originalmanufacturers by inviting competitive bids for a period of onemore year.

The State would, therefore, would do well to diligently identifynot only reliable self-help groups who can be entrusted with theprocess of setting up of the plants but also providing all suchassistance as may be required for the plants to become functionalas early as possible.

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We make it clear that in case its found that the State Governmenthave not taken appropriate steps in terms of what we have saidabove, we may be forced to recall this order and issue appropriatedirection in the matter.”

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11. This Court again in PUCL (W.P.© No.196/2001) directed StateBof Gujarat and Rajasthan, on 01.09.2014, to the following effect:-

“Rajasthan: The directions of this Court have over the past 10years resulted in a switchover of decentralization of the feedingprocess to Self-Help Groups and Women Co-operatives only in107 such projects as against 304 projects spread over in the entireState. The pace of switchover is very slow and needs to beincreased by the authorities concerned.”

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Gujarat: “There is no manner of doubt that the State has undertakensteps in setting up of pilot projects four of which projects havealready been commissioned, no matter the capacity of the projectDis limited. There is also no manner of doubt that the thirteenadditional sanctioned projects will not be sufficient to cater to theStates of its requirement of 12,000 metric tonnes. In that view,therefore, we are inclined to extend the time fixed for completingthe switchover but impress upon the State to expedite the processof switchover for otherwise it can go on indefinitely for decades.”

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12. The tender notice has been issued by Government ofMaharashtra dated 08.03.2016, the tender conditions that came to bequestioned 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 mustfurnish a list of machineries installed in his premises and a latestcertificate from a Chartered Engineer registered with the Institutionof Engineers (India), stating that the machinery is sufficient tomeet the production requirement of various Ready to Cook FoodMixes as per product specification given under this proposal andGalso stating that the machinery can effectively perform for afurther period of 5 years. The certificate shall also clearly indicatethe installed capacity of such machinery.

(j) The Proposer should have In house Quality Control facilities,and any quality control laboratory equipped with appropriate H

laboratory equipment for testing the parameters prescribed in theFood Safety and Standard Act (Prevention of Food AdulterationAct) and as per the specifications given in the proposal regardingthe Nutrient contents, Moisture content, Microbiological andChemical contamination, Physical conditions e.g. dryness, softness,consistency, Micronutrient contents. The proposer must submit alist of equipment list of technically qualified personnel engaged inquality control etc.

(l) The latest consent letter received from the micronutrientmanufacturer/importers, for the supply of micronutrient, minimumfor the contract period to the proposer, should be submitted beforethe work order gets awarded.

X. Blueprint/drawing of the plant approved by the Food and DrugAuthority from where the product as specified in this proposalwill be produced and supplied by the proposer. The design/detailshould cover location and capacity (in MT) of silos, coveredstorage areas with capacity in MT, open storage areas withcapacity in MT, process divisions like extrusion, cleaning, grindingetc. Proposers shall also submit Notarized copies of the followingregistration/licenses for producing Extruded Fortified Blended Foodas specified in this proposal.

(e) A valid license under FSSA, 2006.

(g) ISO 22000:2005, ISO 14001:2004 OHSAS 18001:2007 GoodManufacturing Practice.”

13. The Nagpur Bench has dismissed W.P. No.1807/2016 thathas been questioned in the special leave petitions i.e.SLP(C) Nos.10103/16, 8551/16 and 2415/2017.

14. Whereas Aurangabad Bench has set aside the tender noticeto the extent of reducing the products to 70. All the terms and conditionsof the tender have been held valid. The direction was issued to therespondent to conduct the survey of the eligible units with respect toextrusion technology and satisfying all other conditions and shall thereafterproceed 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 28.7.2009which was issued by the Deputy Technical Advisor, Food and Nutrition A

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ABoard (Western Region), Ministry of Women and Child Development,sent recipes to the Government of Maharashtra. The recipes inter aliaprovided for mandatory micronutrient fortification and mandatory use ofextrusiontechnology in preparation of meals, thus requiring factory-basedproduction which is difficult at the level of Anganwadi Centres, Relevantportion of the recipes, which was relied on in the case of Shagun (supra),Bis extracted hereunder:

“Protein content in the food can be increased by confinedsources and among the available sources Soybean is the bestsources for who are vegetarian, now the question arises that milkcan also be considered as one of the sources but protein contentof milk are not as much as that of soybean. Again we can say thatlegumes can also be considered as one of the sources availablefor protein but when compared to soybean the protein contents oflegumes is very less and the problem faced with legumes is veryexpensive.

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Hence the only sources left to attain the required proteincontent are SOYABEAN which fits into the budgetary andnutrition norms Problem encountered with soybean is that presenceof Tropism inhibitor and complex starch structure in Soybeanmakes protein unavailable the solution to this was the use of aptprocessing technology.

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The technology that we came across after studying the variousfactors was “EXTRUSION TECHNOLOGY”.

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EXTRUSION TECHNOLOGY

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) combinedwith high-pressure cooking in presence of moisture.

Try spin Inhibitor: They interface with the proper digestion ofthe protein kakde at all (1973) estimated that nearly 40% of thereduction in growth performance of any mammal fed raw soybeanis due to the trips in inhibitor.

The anituntironal factors can be deactivated through properheat processing such as across in extrusion.

Once the product is being extruded and is in granule or powderform the fortification of the micronutrients will be easy whichleads to a homogeneous mix of required nutrition in correctproportion.

Micronutrient Fortification: The revised guidelines lays majorstreets on micronutrient fortification of the THR to be provided tothe beneficiary this step of micronutrient fortification requiresexpert technical supervision and can be achieved in preciseperfection by using accurate machines with precision in measuringthe quantity in milligrams. The fortification of the said receipts atAWC will be quite difficult.”

16. The Government of Maharashtra passed a Resolution dated24.08.2009 on the basis of the advice dated 28.7.2009, which required ahighly mechanized and automated process of extrusion and micronutrientfortification. The State Government further issued a tender notificationbased on these requirement laying onerous conditions on Mahila Mandalsto have automated production units, turnover of Rs.1 Crore or more etc.Following is the Resolution of the Government of Maharashtra:

“There being need of change in the diet system to bring aboutmultifariousness in the diet and to effect micronutrient certificationby chemical process, individual cleanliness from the public healthpoint of view, or cleanliness of the premises, vaccination, creatingpublic awareness are the points which require to be givenpreference. It is not possible to remove the deficiency in the dietof children and mothers by the diet being provided under theIntegrated Child Development Service Scheme. However, theinstructions of the Central Government are that 50% need of themicronutrient requirement may be made good by fortificationprocess.”

17. The Government of Maharashtra sought clarification fromGovernment of India regarding extrusion process, factory-basedproduction etc., as required in the recipe dated 28.07.2009. A letter waswritten on 29.1.2010. Relevant extract of a letter dated 29.01.2010 isextracted hereunder:- “Meanwhile, we have received a report from Mr.Balbeer Singh,Dy. Director (Technical), Food and Nutrition Board, WesternRegion, a copy of which is enclosed herewith.

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AFrom this report, it is seen that the Food and Nutrition Board hasrecommended factory-based production with extrusion technologyand specific recipes which use this technology for production ofTHR.

In this regard, we would be grateful, if you would kindly clarifyBthe following points so that the further tender process can befinalised.

1. Does GOI prescribe or recommend factory-based production,or any specific technology, for production of THR? Has itprescribed any specific recipes or products?

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2. Does it recommend ‘Extrusion Technology for THRproduction’?

3. Does it recommend any minimum shelf life for THR? Is thereany prescribed water content?

D4. Can the state go in for gur-groundnut chikki or similar productsas THR, as long as it satisfied the prescribed criteria for caloriesand proteins etc.?

5. Has it authorized Food and Nutrition Board, Western Region,to prescribe Extrusion technology for THR?”

E18. On 26.2.2010, Government of India sent its clarification to theGovernment of Maharashtra regarding the use of extrusion technologyand 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-59F(Part-II)/2005 dated 29[th] January 2010 raising queries regardingfactory-based production or specific technology for production ofTHR.

The provision of SNP, whether in the form of morning snack,hot cooked meal or THR has been left with the State. So far,Gthere are no specific recommendations for the use of extrusiontechnology or any other technology for THR. The suggestionsgiven by Regional DTA(Western Region) are only suggestive innature and not a recommendation by GOI.”

(emphasis supplied)

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19. It was clarified by the Government of India that there is nospecific recommendation for the use of extrusion technology or any othertechnology for THR. The suggestion given by the Regional DTA,(Western Region) is only suggestive in nature and not a recommendationmade by the Government of India. In Shagun (supra) this Court on19.08.2011 observed thus:-

“The Central Government, through the Ministry of Women andChild Development and Food and Nutrition Board office vide itsletter dated 28[th] July 2009, circulated the Recipe to the StateGovernment (respondent No.1) as per new norms of ICDS forpreparation of the food. It was provided that the feeding normsought to have two components in it, to be provided as supplementarynutrition to the beneficiaries at Anganwadis namely:- Hot CookedMeal (HCM) and Take Home Ration (THR).

Directions were issued that HCM and THR should be givenin the form of “energy-dense food/micronutrient fortified food”and should conform to the standards laid by the Prevention ofFood Adulteration Act, Integrated Food Law, Infant, and YoungChild Practices. The micronutrient fortified food was defined tobe the food in which essential mineral and vitamins are addedseparately to ensure that minimum dietary requirements are met.It was emphasised that to attain the required protein content inthe food proposed to be supplied, the only source was Soybean.The food was to be processed by using Extrusion Technology todraw maximum results by use of Soyabean. The guidelines in theaforesaid letter further emphasised that since the revised guidelineslaid major stress on micronutrient fortification of the THR, itrequired “expert technical supervision” and that it can be achievedby using accurate machines with precision in measuring thequantity in milligrams.

The Government of India communicated the judgment in theShagun Mahila Mandal case to all States/UTs. The judgmentnowhere mentioned that private manufacturers or contractors areallowed, and the judgment was only limited to the tender conditionsapplicable to eligible Mahila mandals. However, the CentralGovernment communication allowed the states to supply evenfrom manufacturers:”

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A20. It is thus clear that observations made by this Court in Shagun(supra) was based upon not upon Government of India recommendationsbut in the letter of Deputy Technical Director, Western Region, whichwas wrongly represented to this Court as recommendations of theGovernment of India. In view of the clarification made by the Governmentof India, the observations made by this Court as to extrusion technologyBstand diluted, based on misrepresentation.

21. By introducing the extrusion Technology it was pointed outthat in 2010 three Mahila Mandals, which were chosen, were found tobe fake and were only acting as fronts for existing companies andindustrialists. Following facts have been mentioned in the reply filed byCthe State of Maharashtra :

“The following women institutions are selected for the supply ofTHR to the beneficiaries of the Gramin/Aadivashi and UrbanProject and the following product unit is allotted district wise.

D1. Mahalaxmi Mahila Gruhuddyog and Bal Vikas Bahu UddyeshiyaAoudyo. Co.-Operative Society, Nanded Unit 1. Mahalaxmi M.G.B.V.B.A. Cooperative Society, NandedDistricts- 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.

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3. Vyankateshwar Women Cooperative Home Industry Societies,Udgir.

Unit -1 Kapshikhurd Nagpur Districts- Bhandara, Gadchiroli,Nagpur, Yavatmal, Jalna, Buldhana, Washim.

GUnit 2- Dongargaon, Nagpur Districts Chandrapur, Amravati, Beed,Latur, Vardha”

22. Following averments have also been made in reply filed bythe State of Maharashtra with respect to Venkateshwara MahilaAyodhogic Sanstha:-

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“It is necessary here to clarify that applicant VenkateshwaraMahila Ayodhogik Sanstha is in fact contractor: which is beingwell practically operated by male members, merely by showingfemale relatives or, documents for projection.

11. I further submit that detailed enquiry regarding VenkateshwaraMahila Ayodhogik Utpadak Sahakari Sanstha will clearly revealthat the ladies are being projected merely on record and saidSanstha is actually managed by all male members. It is not out ofplace to point out that the said Sanstha being Utpadak SahakariSanstha registered under Maharashtra Co-operative Societies Actonly for the purpose of production/manufacturing has no right toclaim any relief for supply of food grains as prayed in the presentapplication as the said Society is not registered as trading/consumersociety. Hereto annexed and marked as ANNEXURE R-6 is acopy of the registration certificate of Venkateshwara MahilaAyodhogik Utpadak Sahakari Sanstha issued by Deputy Registrar,Co-operative Societies, Udgir.

I further submit that on 12.7.1999 the said VenkateshwaraMahila Ayodhogik Utpadak Sahakari Sanstha authorized DeepakDinkarrao Lakhangonkar to carry all the activities on their behalfthat makes it very clear that actually male counterparts areadministering affairs of so-called Mahila Society.”

23. Thus, it was urged that the field has been left open to theindustrialists in the conditions of the tender under the guise of MahilaMandal’s fake persons are obtaining contracts.

24. In the judgment rendered by the Aurangabad Bench, it hasbeen noted that three big contractors were selected who were not reallyMahila Mandals or Mahila self-help groups:-

(i) Maharashtra Mahila Sahakari Grahudhyog Sanstha Ltd., Dhule.

(ii) Venkateshwara Mahila Audhyogic Utpadan Sahakari SansthaLtd., Latur.

(iii) Mahalaxmi Mahila Garhudyog and Balvikas BuddeshiyaAudhyogic Sahakari Sanstha.

25. As in PUCL (supra) and Shagun (supra), divergent orderswere passed. Circular dated 26.09.2014 was issued. The order in PUCL

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A(supra) was received by the government of India on 15.10.2014. On17.11.2014 departmental note was circulated. Secretary made arecommendation to review circular dated 26.09.2014 in the light of PUCLorder dated 1.9.2014. Director, ICDS also prepared a similar note dated17.12.2014. On 22.12.2014 it was observed that requirement ofcertification as per circular dated 26.09.2014 be kept on hold till AprilB2015. It was again introduced on 23.06.2015. Then again MaharashtraGovernment Principal Secretary sought guidance from J.S. (ICDS)regarding mandatory use of extrusion technology. On 03.09.2015, itwas written back that decision of Supreme Court may be followed.

26. The appellants/petitioners have relied on the report as toCcorruption and poor quality of meals supplied by contractors as positiveinstances of decentralized production model by SHGs. TheCommissioner appointed in PUCL (W.P.© No.196/2001) observed in aletter:- “We also welcome the enhanced calorie and proteinDsupplementation norms proposed by the Ministry of Women andChild Development for the Supplementary Nutrition Programmeas mentioned in the draft.

However, we are in strong disagreement with the manner inwhich the Ministry of Women and Child Development is seekingEto allow a backdoor entry of contractors and middlemen back intothe Supplementary Nutrition Programme by suggesting theintroduction of micro-nutrient fortified food obviously throughcontractors, although this is not specifically stated in the letterdated 24/02/2009.

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Such an attempt to introduce contractors by the back door inthe guise of supplying micro-nutrient fortified food was repeatedlyrejected by this Honorable Court when several State Governmentsfiled affidavits seeking to promote the contractor lobby for theprovisioning of fortified foods, snack and other ready to eat foodin ICDS.

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This contractor lobby seeks to capture what it perceives tobe potential Central Government annual budget of Rs.5000 crorein the Supplementary Nutrition Programme.”

27. The petitioners have also relied on the NHRC in a report onthe functioning of ICDS in Gorakhpur (U.P.) as to the poor quality ofTHR recommended thus:- “...a rapacious private sector is riding on the back of the ICDSto a captive rural market with the help of government machineryin a naked display of crony capitalism.

By procuring food from a contractor the State Government isprobably violating the orders of the Supreme Court dated 7.10.2004and 13.12.2006 in WP (C) No. 196 of 2001, though the contractorhides behind the fig leaf of being a manufacturer. Less than twoyears back, the contractor set up a processing plant in Bahraichdistrict for the sole business of supplying ready-to-eat food (RTE)to AWCs in Gorakhpur and 11 other districts of eastern UttarPradesh. This shows that the State Government far from phasingout contractors is encouraging expansion of their business in ICDS.The RTE does not seem to contain the ingredients claimed andthe weaning food may not be suitable for babies. The ready to eatfood is produced in poor hygienic conditions. Some of theingredients shown on the bags containing the finished product werenot found in stock at the time of the visit and the stock of maizewas only enough to meet 25% of the daily requirement.

ICDS in Uttar Pradesh is a highly centralised programme.Virtually everything is procured by the Directorate in Lucknow.There is nothing purchased at the district level. The only exceptionis 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 suffersbecause of the lack of free flow of information. There is no scopefor local initiative. The authorities rely too much on paperwork,which seems to have become an end in itself.

The complete decentralization of the feeding programmethrough local women’s groups, contemplated by the SupremeCourt’s orders referred to above, is still a far cry in Uttar Pradesh.

Weak Links

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biggest danger of centralization lies in the area of purchases. Itmakes small sums spent per AWC attractive to rapacious privatesector players and their corrupt collaborators by pooling theresources meant for 166073 AWCs spread across the State. Iwould call centralized purchase the weakest link.

Manufactured ready to eat food is difficult and unsafe to store,indifferent in taste and nutritive value lacks variety and is easy todivert in bulk. It is supplied at the same rate as prescribed perbeneficiary by the government. If we take away a modest valueaddition of 15% in the procession plants, the real value of suppliesto the beneficiary will be reduced by the same percentage. So Iwill call RTE the second weakest link.

Dependence on official machinery, with only token beneficiaryparticipation, is the third weak link.

Ultimately, the mothers in a village can be said to be thebeneficiaries of the programme. Until the management of theprogramme at AWC level is delegates to mothers’ groups, diversionof resources and corruption cannot be rooted out. Suggestions forimprovement.

Before taking any other steps, the government has todemonstrate its intentions by doing away with private contractsfor food supply altogether. This will send a message to the fieldfunctionaries who seem to be confused about the real intentionsof their superiors at Lucknow.

Simultaneously, the entire feeding programme has to bedecentralised to the village-level women’s’ groups. The existingMatri Samitis, self-help groups of women or mothers’ groupsformed by the community can be adopted as the vehicle ofdecentralization. There should be no prescription about cookedfood and ‘take-home’ food. There is no need to assume that womenand babies at the weaning stage cannot be fed cooked meals atthe Anganwadi. Every community should be allowed to decidewhat suits it best. Advice and guidance may be provided to helpthe community make a decision. The assistance of CFTRI maybe sought to generate alternatives from which the community canchoose. For the decentralised system to succeed, it is imperativethat funds for every month are placed at the disposal of thewomen’s’ group in the last week of the previous month.”

28. The National Rural Livelihood Mission, Government of India,on 21.01.2013, gave guidelines for involvement of SHGs in the supply ofTHR under ICDS. The extract of a letter of Additional Secretary, Ministryof Rural Development are as under:- “A Women’s’ Self Help Group (SHG) (of 10-20 women ingeneral, 5-20 women in difficult areas) is the primary buildingblock of NRLM’s institutional design. The S.H.G. is an informaland unregistered group. Under N.R.L.M., one member from eachidentified rural poor household, preferably a woman, is to beorganized into a Self Help Group (SHGs). These groups are formedon the basis of affinity and common bonding among members.They are not arbitrarily put together, and more important this taskis not to be performed mechanically. It requires very sensitivefacilitation, initially by an external social mobilizing agency, N.G.Oor Govt. Missions and later on their own federation emerges as asensitive support agency and takes over most of the functionsbeing performed by the initial external support organizations. NowSHGs are formed out of the existing BPL list. We are attemptingto switch over to a participatory identification methodology whichwill 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, onlytwo State Missions under NRLM have experience in undertakingmicro-enterprise models for ICDS - Kerala, and Odisha. Basedon the models developed by Kerala and Odisha, where CommunityBased Organisations (CBOs) including SHGs/federations aretrained to develop a micro-enterprise related to SNP using localingredients, it could take between 4-8 weeks to train and capacitatea CBO depending on their potential and skills. There are alsomodels promoted by reputed N.G.Os in many states in cooperationwith the Dept, of Women and Child Welfare.

How can your department/N.R.L.M. support WCD in involvingS.H.Gs/M.Ms./local women groups in supplying SupplementaryNutrition esp? Take Home Rations for ICDS as a livelihood activityviable enterprise?

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Apilot mode. The total acceptance by the State WCD is a pre-condition for this. Already Kerala and Orissa have experience insupplying Take Home Ration under ICDS. These States can bedeclared as the Resource States, the experience of which can beformally shared with other willing States from which joint teamsof the State Livelihood Mission and State WCD can learn andBprepare an action plan as appropriate to the State.”

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29. On 24.12.2013, Government of India has issued OperationalGuidelines for Food Safety and Hygiene in ICDS with respect to SHGsand local groups as under:- “Take Home Ration (THR) is dry packed food produced locallyby SHG’s, local groups and federations. The production shouldmeet the standards and specifications for food safety and handling.

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The establishment in which food is being handled; processed,stored, distributed by the SHG/ producer is a holder of theregistration certificate or a license as per the norms laid down bythe Food Standards and Safety Authority Act, 2006, Regulations2011. Sanitary and hygienic requirement, food safety measures,and other standards should be confirmed and it will be theresponsibility of the producer to ensure adherence to necessaryrequirements.

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Processing of Food (Take Home Rations): Processing involvesactivities like sieving, washing, drying, roasting, mixing, grindingetc., which requires handling of food.”

30. The Government of India in its ‘Social Service Delivery: GoodFPractices Resource Book 2015 applauded the Odisha model in thefollowing 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),GGovernment of Odisha, has undertaken decentralization of theIntegrated Child Development Services (ICDS) supplementarynutrition programme in the state to streamline and strengthen theprogramme and ensure ‘ universalization with quality’ in a time-bound manner. The initiative reaches out to all beneficiaries witha standard weekly menu, meeting the protein and calorie norms H

within the allocated ration cost, removing contractors andencouraging women Self Help Groups (SHGs) in adherence withthe Supreme Court directive. Results from a social audit indicatethat 71% of the respondents felt that the menu chart was beingfollowed.”

“Replicability and Sustainability

Social sustainability of the initiative is high, owing to thesuccessful run of the community-driven model that has beeninstitutionalized for the SNP. Following the success of JaanchCommittees in SNP, the system will now also been extended toother components of ICDS on a trial basis to induce morecommunity participation in implementation.

Long-term sustainability requires the state administration tocreate an enabling environment. For the purpose of introducingreforms, support for this initiative was garnered from the apex tothe grassroots level and the required trust to be invested ingrassroots functionaries.

The replication of this model requires a strong administrativethrust in identifying the context-relevant loopholes in the system,as was done in the case of Odisha. Training and capacity buildingof the community is also an essential factor for the smoothdeployment of the model which has demonstrated that procuringfood materials at ration rates may be difficult but is possible andthat contractors can be removed from the supply chain of SNPwith beneficial results in terms of effective implementation.”

31. In our opinion, it was argued rightly that this Court was misledwhile rendering the decision in Shagun (supra) when it was projectedthat it was mandatory to follow the recipes dated 28.7.2009 whereasGovernment of India itself has clarified that it was only suggestive andwas not the decision of Government of India as pointed out in the letterdated 26.2.2010 extracted above.

32. Apart from that after the decision has been rendered by thisCourt in Shagun (supra) Act has been enacted and new policy has beenframed by the Government of India and thereafter new policies havebeen filed by the Government of India on 6.8.2018, contained in the A

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Aaffidavit of the Secretary, Ministry of Home and Child Development. Inthe affidavit filed by UOI represented by the Ministry of Women andChild Development following has been mentioned with respect to thesupplementary nutrition programme of the Government under theIntegrated Child Development Scheme:- B“SUPPLEMENTARY NUTRITION PROGRAMME OF THEGOVERNMENT UNDER THE ICDS SCHEME

3. That the Anganwadi Services Scheme (earlier known asIntegrated Child Development Services (hereinafter referred toas “ICDS”) aims at holistic development of Children (0-6 years)Cand Pregnant Women and Lactating Mothers. It comprises ofintegrated 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 theCentral Government in the Ministry of Women and ChildDevelopment is responsible for programme planning and its shareof operating costs and the State Governments/UT Administrationsare responsible for day-to-day program implementation includingSupplementary Nutrition Programme and management thereof.

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5. That the Government of India provides its share of funds foradministrative, operative and implementation costs as per costsharing norms. For ICDS (General), the Central share is 90% forNorth-Eastern (NE) States and Himalayan States and 60% forother States and UTs with the legislature and 100% for UTs withoutthe legislature. It is most respectfully submitted that forSupplementary Nutrition, Government of India bears theexpenditure on 50:50 basis for all States and UTs with the legislatureand at 90:10 ratio for NE and the Himalayan States. For UTswithout a legislature, the entire expenditure is borne by CentralGovernment.

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6. That the Supplementary Nutrition Programme (SNP) suppliedunder ICDS Scheme is of two types for different beneficiariesi.e.:

a. Take Home Ration (THR) for Pregnant Women, LactatingMothers, and Children in the age group of 6 months to 3 years;Hand

b. Hot Cooked Meal (HCM) for children in the age group of 3-6years.”

7. That it is necessary to clarify that Supplementary Nutrition isnot a full meal as in the case of Mid-Day Meal. SN is the differencein nutritional value of Recommended Dietary Allowance andAverage Daily Intake to cover up the deficiency.

8. That the HCM is served at the Anganwadi Centre (AWC)itself and is mostly prepared at the AWCs. Take Home Ration isserved to the beneficiaries once/twice in a month as regulated bythe concerned State Government/UT Administration and is to beprepared as per the guidelines, instructions or orders issued bythe Central Government from time to time and the orders orguidelines issued by the Supreme Court or High Courts, to conformto the quality, hygiene and quantity standards.

9. That the Central Government provides parameters ofmaintaining standard and quality of food (which include calorie,protein, food safety hygiene, and contamination).

10. That Food & Nutrition Board functioning under the Ministryof Women and Child Development carries out periodic checks toensure that prescribed standards are adhered to and quality andnutritive value of Supplementary Nutrition is maintained. Theré isfour regional laboratories under FNB for carrying out the tests soas to ensure food safety supplied by the State Governments. Thereare 43 field units under FNB spread across the country to collectthe sample and get food tested to ensure food quality.

11. That the Government of India issued the detailed OperationalGuidelines for Food Safety and Hygiene in ICDS on 24.12.2013,copy whereof is enclosed herewith as Annexure R-1. Theseguidelines provide the broad contours of Food Safety measures inICDS and include separate sections on general principles formaintenance of cleanliness, hygiene at Anganwadi centers andmanufacturing units, precautionary measures, handlingemergencies and cases of chemical poisoning and easy to followsimple protocols for food handling at different stages.”

33. It has also been pointed out in the affidavit on behalf of theGovernment of India dated 06.08.2018 that the guideline prescribes the A

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Afollowing measures for maintaining hygiene and sanitation at theAnganwadi centers and ensuring food safety:-

a) Food Handling and Safety Measures for Hot Cooked meal andMorning Snack which includes transportation, procurement,storage, food safety, safety while cooking and serving, disposal ofBleftover, monitoring, and supervision, quality assurance, etc.

b) Guidelines for Food Safety and Hygiene in Take Home Rationwhich includes location, surrounding and building, drainage andwaste disposal, washing facilities, storage, etc.

c) Food Handling and Safety Measures for THR which includesCprocurement, processing, packaging, quality assurance.

d) To prevent contamination of Supplementary Nutrition, allequipment and utensils must be cleaned and disinfected.

e) Adequate precautions must be taken to prevent the food itemDfrom 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 beingprepared.

g) Detergents and disinfectants must be suitable for the purposeand any residues of these agents on a surface which may come incontact with food item must be removed by thorough rinsing withpotable water before the area or equipment is used again.

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h) Immediately at the end of the day’s work, floors (includingdrains), structures and walls of food handling areas must beFthoroughly 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 andtidy.

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l) Regular pest control measures should be adopted at theAnganwadi centers. However, before pesticides are applied, caremust be taken to protect people, food, equipment and utensils fromcontamination.

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m) Substances which could contaminate food must not be used orstored 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 ofhygiene.

o) The state may ensure that AWWs/AWHs are in good healthand all staff enrolled for the supply of food items must beadequately trained in good hygiene practices. p) Hands must alwaysbe washed before entering the foods handling area immediatelyafter using the toilet, after handling contaminated material andwhenever necessary.

34. It has also been pointed out by the Secretary in the affidavitdated 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 underthe supplementary nutrition as the local food habits, regional preferencesand 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 thesuggestive recipes prepared by the National Institute of Nutrition,Hyderabad, has been placed on record as Annexure R-2.

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 EnergyFood, Wheat Soya Laddu, Nutro Soya Corn Chikkis, as specified inAnnexure R2.

36. However, it would be for the concerned State or the UnionTerritory to take an action on the recipes they want as per localrequirement, the aforesaid recipe is only suggestive, as specified in theaffidavit of 06.08.2018 of the Secretary Government of India of theconcerned department itself.

37. It has also been pointed out that under THR normally drymixtures are supplied such as Daliya, Khichdi etc. However, some otherStates are giving in some other forms. Most of the items do not requirea sophisticated technique of manufacturing process and the self-help A

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Agroups/Mahila Mandals are fully equipped and competent to supply thesaid food. The concerned Authorities of the State Government areexpected to undertake all such steps which becomes necessary that theself-help groups/Mahila Mandals and such other similar organizationsare allowed to meaningfully participate in providing HCM and THR, allover the country and terms and conditions of the tenders etc., should notBbe framed in such a manner that they get excluded from participatingitself in such tenders. It has also been pointed out that with respect tomanagement, preparation, supply, monitoring and service of thesupplementary nutrition under the Integrated Child Development, Schemethe policy of the Central Government is guided by the provisions containedCin the Office Memorandum dated 24.02.2009 of the Ministry concernedand the decision of this Court in PUCL v. Union of India dated22.04.2009 in W.P.(C) No.196/2001 to follow and implement theguidelines.

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 CentralGovernment, every pregnant woman and lactating mother shallbe entitled to—

(a) meal, free of charge, during pregnancy and six monthsafter the childbirth, through the local Anganwadi, so as to meetEthe nutritional standards specified in Schedule II; and (b) maternity benefit of not less than rupees six thousand, insuch installments as may be prescribed by the Central Government:

Provided that all pregnant women and lactating mothers inregular employment with the Central Government or StateFGovernments or Public Sector Undertakings or those who are inreceipt of similar benefits under any law for the time being inforce shall not be entitled to benefits specified in clause (b).

5. Nutritional support to children.- (1) Subject to the provisionscontained in clause (b), every child up to the age of fourteen yearsGshall have the following entitlements for his nutritional needs,namely:—

(a) in the case of children in the age group of six months to sixyears, age appropriate meal, free of charge, through the localAnganwadi so as to meet the nutritional standards specified inSchedule II:H

Provided that for children below the age of six months,exclusive breastfeeding shall be promoted; (b) in the case of children, up to class VIII or within theage group of six to fourteen years, whichever is applicable, onemid-day meal, free of charge, everyday, except on school holidays,in all schools run by local bodies, Government and Governmentaided schools, so as to meet the nutritional standards specified inSchedule II.

(2) Every school, referred to in clause (b) of sub-section (1), andAnganwadi shall have facilities for cooking meals, drinking waterand sanitation:

Provided that in urban areas facilities of centralised kitchensfor cooking meals may be used, wherever required, as per theguidelines issued by the Central Government.

6. Prevention and management of child malnutrition.- The StateGovernment shall, through the local Anganwadi, identify andprovide meals, free of charge, to children who suffer frommalnutrition, so as to meet the nutritional standards; specified inSchedule II.”

39. Calorie requirement has also been pointed out in the affidavitdated 06.08.2018 in the tabular form:

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A40. It has also been pointed out that before enactment of the Actof 2013, the National Food Security Ordinance was issued on 5.7.2013.Note 1 below Schedule II of the said Ordinance states “Energy DenseFood fortified with micronutrients as per 50 percent of RecommendedDietary Allowance”. However, the Parliament while discussing andpassing the Act of 2013 deleted the above provision thereby making theBpreparation of THR in the simplest way.

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41. In exercise of powers, under Section 39 of the Act of 2013,the Central Government has framed the Rules after consultation withthe State Government and Union Territories, experts and the civil societynotified the Rules relating to Sections 4, 5 & 6 of the Act of 2013 calledCas 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 extractedhereunder:- “7. Preparation of meal and maintenance of its standard andquality.- D

(1) The procurement of food items and preparation of meals bythe State Governments and the Union Territory Administrationsshall be in accordance with the guidelines, instructions or ordersissued by the Central Government from time to time in conformitywith various directions issued by Supreme Court of India, theprovisions of Schedule II to the Act and any other law for thetime being in force.

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(2) The State Governments and the Union territory Administrations,with the support of Food and Nutrition Board (hereinafter referredto as the Board), shall ensure the quality of supplementary nutritionwith reference to the norms of food safety, as well as foodcomposition.

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(3) The Supplementary Nutrition shall conform to the standardslaid down under the provisions of the Food Safety and StandardsAct, 2006 (34 of 2006) to ensure consistent quality and nutritivevalue of the intervention per serving and it shall also be ensuredthat the meal is prepared in the kitchen having adequate sanitationand safe drinking water to maintain hygienic conditions.

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(4) It shall be the responsibility of the concerned DistrictProgramme Officer and the Child Development Project Officerunder the Anganwadi Services (Integrated Child DevelopmentServices) to ensure the quality of supplementary nutrition withreference to the norms of food safety, as well as food composition.

(5) The Board, in collaboration with the State Governments andthe Union territory Administrations, shall carry out periodic checksand test the meal or get it tested through the Government FoodResearch Laboratories accredited or recognized by any law forthe time being in force, so as to ensure that the meal meets withthe nutritional standards and quality specified in Schedule II ofthe Act.

(6) Similarly, the officers, as authorized by the State Governmentsor the Union territory Administrations, shall also conduct surprisechecks and draw samples and get them tested through the abovelaboratories to ensure quality and nutrient value of the meal.

(7) The food should be tasted by the Anganwadi worker or helperbefore it is served to the beneficiaries at Anganwadi center.”

43. Rule 9 of the modified Rules is also relevant, the same is alsoextracted hereunder:-

9. Responsibility to monitor and review arrangement forsupplementary nutrition.- The respective State Governments andUnion Territory Administrations, and the Monitoring and ReviewCommittees at the National, State, District, Block and Anganwadilevels, constituted by the Central Government in the Ministry ofWomen and Child Development from time to time, shall beresponsible to monitor and review the status of arrangement forSupplementary Nutrition, convergence with the line departmentsto ensure water and sanitation facilities, ensure regular functioningof Anganwadi centres, ensure regular supply of SupplementaryNutrition at Anganwadi centres without disruptions and use ofiodised or iron-fortified iodised salts, ensure monitoring andsupervision 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 ofSupplementary Nutrition through them and all other issues relating A

BC

D

E

F

G

H

Ato the above, as per their roles defined in the guidelines issued bythe Central Government in the Ministry of Women and ChildDevelopment from time to time:

Provided that till the engagement of Self Help Groups, the supplyof Supplementary Nutrition shall be ensured from such other sources orBapproved agencies in terms of the existing rules and regulations notifiedby the Central Government and the State Governments or Union TerritoryAdministrations.

44. It has been also pointed out in the affidavit filed by the Unionof India that the Government of India has launched the POSHANCAbhiyaan on 08.03.2018 with the objective to comprehensively addressthe problem of stunting, under-nutrition, low birth weight, and anemia ina time-bound manner children and Pregnant & Lactating Mother as perthe following targets:- D

F

45. Further instructions have been issued vide letter dated10.07.2017 with respect to meet the requirement of fortification of foodwith micro-nutrient, the Union of India has mandated the use of doublefortified salt (Iodine & Iron) and fortified oil (Vitamin A & D) and fortifiedGWheat flour (Iron, Folic Acid and Vitamin B-12) for preparation of SNPunder the ICDS. In POSHAN Abhiyaan, a National Council on India’sNutrition Challenges which is an apex body to give policy direction, reviewand effective coordination and convergence between Ministries havinga sectoral responsibility was constituted on 03.01.2018 with the followingHChairperson/Members:- VAISHNORANI MAHILA BACHAT GAT v. STATE OFMAHARASHTRA & ORS.

Secretaries of the line Ministries as Special Invitees. DCs/DMsfrom 10 districts with the highest prevalence of child stunting (to beco-opted)

46. The terms of reference of the above Council are as follows:- G

“a. Provide policy directions to address India’s nutritionalchallenges through coordinated inter-sectoral action.

b. Review programmes for nutrition on a quarterly basis.”

H

A47. The National Council of India, pursuant to the meeting held on18.04.2018 discussed the issue of Hot Cooked meals for children in theage group of 3 years to 6 years and Take Home Ration (THR) for thechildren in the age group of 6 months to 3 years and Pregnant Womenand Lactating Mother as decided by the State Government in conformitywith the the Act of 2013 and the Supplementary Nutrition (Under theBIntegrated Child Development Services Scheme) Rules, 2015, whichhave been amended in 2017. Minutes have been placed on record asAnnexure R-10 to the affidavit.

A

48. The issues discussed and the directions thereon are containedin paragraph 28 of the Minutes of Meeting, which are extractedChereunder:- “28. The Issue of Hot Cooked meals and THR at Aanganwadiwas discussed and deliberated upon. Secretary, MWCD broughtout that help of SHGs and mothers (whose children were in theAanganwadi) was being sought in preparing the meals. 17 StatesDwere following this approach and the menu had been fixed basedon the demographic profile as well as the availability of localresources. The point was also stressed upon by Hon’ble Ministerof CAF&PD. It was agreed that the mothers should be involvedfor the preparation of the meals to ensure quality and encourageEJan bhagidari.”

49. Ultimately, it has been pointed out in the affidavit on behalf ofthe Government of India, Ministry of Women and Child Welfare that thepolicy of the Government of India vis-a-vis the Supplementary Nutritionunder the ICDS Scheme based on the Nutritional Norms on 24.02.09Fread with the Act of 2013 and Supplementary Nutrition (Under theIntegrated Child Development Services Scheme) Rules, 2015, whichhave been amended in 2017 and the guidelines issued by the Union ofIndia. The following points broadly emerge:- “a. Preparation of Hot Cooked Meal at the AWC itself whereGthere should be the provision of the kitchen, water, and sanitationas per the provisions of Section 5(1) of the NFSA;

b. Supply of Take Home Ration meant for children 6 months - 3years 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

c. Maintenance of quality, cleanliness, and hygiene as per theprovisions of Section-7 of SNP Rules, 2017 and the Governmentof India guidelines issued in July 2013;

d. Protein and the calorific requirement to be met as per theprovisions of Schedule-II of NFSA, 2013;

e. Fortification of food ingredients of SNP under ICDS as perMWCD’s letter dated 10.07.2017;

f. States/UTs to decide recipes keeping in view the nutritionalrequirement prescribed food habits and availability of local food.”

50. When we consider the NIT in question issued by theGovernment of Maharashtra we are of the considered opinion that itwas not in the spirit of the orders passed by this Court as the impositionof the condition of 25% of turnover during any one of the last threefinancial years in the various districts by insisting for the performancefor supplying at least annual average value equal to 25% of requiredturnover of applied sectors. As to the formation of applied sectors it isapparent from the tender notice that each of the districts has been takenas a unit and yearly expenditure, for example, Ahmednagar isRs.31,78,87,200/- yearly, 25% would come to Rs.7,94,71,800/- and soon district-wise which ranges from Rs. 1 Crore to more than Rs.10Crores in various districts. Thus, we find force in the submission that byvirtue of the imposition of the aforesaid condition only big players havebeen left in the field and that is not in tune with the spirit of the Act andthe orders passed by this Court as well as the policy framed by theGovernment of India, as projected in the aforesaid affidavit dated06.08.2018. Thus, the tender conditions cannot be held to be valid asthey were arbitrarily fixed and it was fairly conceded by Mr. Nadkarni,learned Additional Solicitor General appearing for the State ofMaharashtra as well as by Mr. Vijay Thora, learned senior counsel,appearing for the State of Maharashtra that they have to abide by theconditions as imposed by the Union of India and the policy framed bythe Union of India as projected in the affidavit dated 06.08.2018.

51. Tender notice which has been issued also falls down, we directthe tenders to be invited afresh, within four weeks, strictly as per thepolicy and observations made in this judgment.

A

B

CDEF

G

H

A52. It has also been found that fixing of unit area as a districtseveral players have been effectively ousted from the field, it would beappropriate to form groups of the smaller area such as at panchayat orgroup of panchayats etc., within the District so that the real intentionbehind the policy is fulfilled in its real sense and supply should bedecentralized as much as possible as it is not for the big players/Bindustrialists in the field to cater to the needs of the Scheme as theyhave usurped in past. It is open to the State Government to makealternative arrangement and they are restrained from continuing theexisting system of supply in the interregnum period. This decision as toalternative 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 tothe 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