REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7104 OF 2011 [Arising out of SLP (Civil) No. 29363 of 2010]  

Shagun Mahila Udyogik  Sahakari Sanstha Maryadit                       .. Appellant

VERSUS

State of Maharashtra & Ors.                 ..Respondents

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. Leave granted.

2. The  instant  appeal  is  directed  against  the  final  

judgment and order of the High Court of judicature  

at  Bombay,  Nagpur  Bench  at  Nagpur  

dated 9th September, 2010, in Writ Petition No. 4210  

of 2010 vide which the Division Bench of the High  

Court  dismissed  the  petition  of  the  appellant  

thereby  affirming  the  decision  of  awarding  the  

contract to the respondent Nos. 4 to 6.  

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3. We may notice here the essential facts, which would  

have a bearing on the determination of the issues  

raised in this appeal.  

4. The  appellant  is  a  society  registered  under  the  

Maharashtra Co–operative Societies Act, 1960. The  

appellant  has  several  years  of  experience  in  

supplying hot cooked meal  (ready to eat food)  for  

children  and  other  beneficiaries  of  Anganwadi  

Centres  (in  short  ‘AWCS’)  in  the  State  of  

Maharashtra.  

5. In the year 1975, the Central Government floated a  

scheme  termed  as  “Integrated  Child  Development  

Scheme” (in short  ‘ICDS’)  in order to  improve the  

health and nutrition status of the children (between  

the age group   of 0-6 years); pregnant and lactating  

women,  by  providing  them  with  supplementary  

food.   Under  the  said  Scheme,  certain  kind  of  

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specified food was proposed to be supplied through  

AWCS.   Accordingly,  around  fourteen  lakhs  

Anganwadi Centres were proposed to be set up.

6. It  appears  that  the  lack of  progress  made  in  the  

implementation of the aforesaid Scheme prompted  

the Peoples Union for Civil Liberties (in short ‘PUCL)  

to move this Court by way of a Writ Petition (Civil)  

No. 196 of 2001 under Article 32 of the Constitution  

of  India,  seeking  necessary  directions  for  

implementation of the Scheme. By a series of orders  

passed in the aforesaid writ proceedings, this Court  

issued the necessary directions. On 8th May, 2002,  

this  Court  gave  detailed  directions with regard to  

implementation  of  various  Schemes,  which  have  

been  floated  for  giving  relief  to  the  poor,  

impoverished and the hungry.   At the same time,  

this Court appointed Dr. N.C. Saxena and Shri S.R.  

Sankaran as Commissioners of the Court, inter-alia,  

for the purpose of looking into the grievances that  

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may  persist  after  the  grievance  resolution  

procedure,  laid  down  in  the  said  order  was  

exhausted.  Scope of the work of the Commissioners  

also included monitoring of the implementation of  

the  Court’s  orders  as  well  as  monitoring  and  

reporting to this Court of the implementation by the  

respondents  of  various  welfare  measures  and  

schemes.   

7. Again on 29th October, 2002, this Court directed the  

respective  State  Governments  to  appoint  

Government  Officials  as  Assistants  to  the  

Commissioners.   The  Commissioners  submitted  a  

very detailed report to this Court, salient features of  

which  have  been  noticed  by  the  order  dated  7th  

April, 2004.  This Court appreciated the work done  

by  the  Commissioners.   It  was  also  noticed  that  

although fourteen lakhs AWCS were directed to be  

established,  only  six  lakhs  centres  had  been  

sanctioned.   It was also noticed that many of the  

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sanctioned  centres  were  not  operational.  In  some  

States, the problem seemed to be more acute than  

the others.  Upon consideration of the entire matter,  

directions were issued for the sanction of remaining  

AWCS and for increase of norm for the food value to  

be supplied to these beneficiaries from rupee one to  

rupee two per day.  This Court also noticed that on  

an average, forty two paisa as against the norm of  

rupee one was being allocated per beneficiary per  

day  by  the  State  of  Jharkhand.   The  position  in  

Bihar  and  Uttar  Pradesh  was  also  no  better.  

Therefore,  necessary directions were issued to the  

State  Governments  to  make  operational  all  

sanctioned AWCS by 30th November, 2004.  

8. Taking  into  consideration  all  the  facts  and  

circumstances placed on record by the two Court  

Commissioners and through various affidavits filed  

by the respondents, this Court issued the following  

twelve directions:-

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(i) The aspect of sanctioning 14 lakhs AWCS and  

increase of norm of rupee one to rupees two  

per child per day would be considered by this  

Court after two weeks.

(ii) The  efforts  shall  be  made  that  all  SC/ST  

hamlets/habitations  in  the  country  have  

AWCS as early as possible.

(iii) The 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.

(iv) All State Governments/Union Territories shall  

put  on  their  website  full  data  for  the  ICDS  

schemes  including  where  AWCS  are  

operational,  the  number  of  beneficiaries  

category-wise,  the  funds  allocated  and  used  

and other related matters.

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(v) All State Governments/Union Territories shall  

use the Pradhanmantri Gramodaya Yojna fund  

(PMGY) in addition to the state allocation and  

not as a substitute for State funding.  

(vi) As far as possible,  the children under PMGY  

shall be provided with good food at the Centre  

itself.

(vii) All  the  State  Governments/Union  Territories  

shall  allocate funds for ICDS on the basis of  

norms  of  one  rupee  per  child  per  day,  

100  beneficiaries  per  AWC  and  300  days  

feeding in a year,  i.e.,  on the same basis on  

which the Centre make the allocation.  

(viii) BPL shall not be used as an eligibility criteria  

for ICDS.

(ix) All sanctioned projects shall be operationalised  

and  provided  food  as  per  these  norms  and  

wherever utensils have not been provided, the  

same shall be provided (Instance of Jharkhand  

State  has  been  noticed  in  the  Report  where  

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utensils  have  not  been  provided).  The  

vacancies  for  the  operational  ICDS  shall  be  

filled  forthwith.  (Instance  of  Uttar  Pradesh  

where  vacancies  have  not  been  filled  up  is  

quite  alarming though in  the  affidavit  it  has  

been stated that a drive has been initiated to  

fill up the vacancies).

(x) All  the  State  Governments/Union  Territories  

shall  utilize  the  entire  State  and  Central  

allocation  under  ICDS/PMGY  and  under  no  

circumstances, the same shall be diverted and  

preferably also not returned to the Centre and,  

if  returned,  a  detailed  explanation  for  

non-utilisation shall be filed in this Court.

(xi) All State/Union Territories shall make earnest  

effort to cover the slums under ICDS.

(xii) The Central Government and the States/Union  

Territories  shall  ensure  that  all  amounts  

allocated are sanctioned in time so that there  

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is no disruption whatsoever in the feeding of  

children.            

9. Pursuant  to  the  aforesaid  directions,  respondent  

Nos. 1 and 2 passed a resolution on 28th October,  

2005.   The  resolution  provided  for  a  detailed  

procedure of making available “Ready to Eat” (‘RTE’)  

food targeted to beneficiaries through Anganwadis.  

The  food  was  to  be  supplied  by  Mahila  Mandal,  

Mahila  Sanstha,  Women  Self  Helping  Saving  

Groups,  Sale  Assistant  Saving  Group  for  

Anganwadis,  registered  under  the  provisions  of  

either     (i)  Public Trust Act, 1950, (ii)   Societies  

Registration  Act,  1860,  (iii)  Maharashtra  

Cooperative  Societies  Act,  and    (iv)  Company  

registered  under  the  Companies  Act,  1956.   The  

resolution further required that every member of the  

Group should be a woman.  

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10. In the meantime, this Court had passed a number  

of  other  orders  providing  for  Supplementary  

Nutrition  to  the  beneficiaries,  particular  attention  

was directed to be paid to the following:-

(i) Children  falling  within  the  age  group  

of 6 months to 3 years,

(ii) Pregnant and lactating women and

(iii) Severely  underweight  children  within  the  

age group of 6 months to 3 years.  

11. The  Central  Government  found  that  the  original  

ICDS  scheme  was  insufficient  to  cater  to  the  

nutritional  demands  of  the  categories  of  children  

and  women  noticed  above.   The  Central  

Government,  therefore,  conducted  further  surveys  

through experts which recommended that the gap  

in  the  calories  norms  between  the  Recommended  

Dietary Allowance (in short  ‘RDA’)  and the Actual  

Dietary Intake (in short ‘ADI’) be filled.     Therefore,  

the  Central  Government,  in  consultation  with  its  

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experts, published a revised nutritional and feeding  

norm for supplementary nutrition in ICDS Scheme  

on 24th February, 2009.  The revised norms required  

that the supplementary food may be fortified with  

essential micro nutrients with 50% of RDA level per  

beneficiary per day.  

12. These  revised  norms  were  filed  before  this  Court  

alongwith an affidavit dated 2nd March, 2009 by the  

Central Government highlighting the various factors  

including  the  recommendations  received  from the  

Task Force constituted by the Central Government.  

Upon consideration  of  the  affidavit  of  the  Central  

Government, this Court passed a further order on  

22nd April,  2009.   In  Paragraph  5  and  6,  it  was  

observed as follows:-

“5. The  Revised  Nutritional  and  Feeding  Norms for SNP in ICDS Scheme circulated  vide  letter  no.5-9/2005/ND/Tech.(Vol.  I)  dated 24.02.2009 states that children in the  age group of 6 months to 3 years must be  entitled to food supplement of 500 calorie of  energy and 12-15 gm. of protein per child  per  day  in  the  form  of  take  home  ration  

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(THR). For the age group of 3-6 years, food  supplement  of  500  calories  of  energy  and  12-15 gm of protein per child must be made  available  at  the Anganwadi Centers in the  form of a hot cooked meal and a morning  snack for severely underweight children in  the age group of  6 months to 6 years,  an  additional 300 calories of energy and 8-10  gm of protein would be given as THR. For  pregnant  and  lactating  mothers,  a  food  supplement  of  600  calories  of  energy  and  18-20 gm of protein per beneficiary per day  would be provided as THR.

6. The letter dated 24.02.2009 No.5- 9/2005/NO/Tech (Vol. II) has been annexed  to the affidavit dated 2nd March, 2009 filed  by  the  Union  of  India.  It  is  directed  that  norms indicated in the said letter addressed  to  all  the  State  Government  sand  Union  Territories have to be implemented forthwith  and the respective States/UTS would make  requisite financial allocation and undertake  necessary arrangements to comply with the  stipulation contained in the said letter.”       

13. This  Court  noticed  the  statement  made  by  the  

learned  Additional  Solicitor  General  that  

Supplementary Nutrition Food (in short ‘SNF’) in the  

form of Take Home Ration (in short ‘THR’) shall be  

provided  to  all  children  in  the  age  group  of  6  

months to  3 years and additional  300 calories  to  

severely underweight children in the age group of 3  

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to 6 years, pregnant women and lactating mothers  

as  per  norms  laid  down  in  the  letter  dated  24th  

February, 2009.  Accordingly, all Union Territories  

and  State  Governments  were  directed  to  ensure  

compliance  with  the  aforementioned  stipulations  

without fail.  A further direction was issued to all  

the  States  and  Union  Territories  to  provide  

supplementary nutrition in the form of a morning  

snack and a hot cooked meal to the children in the  

age group of 3 to 6 years, in accordance with the  

guidelines  contained  in  the  letter  dated  24th  

February, 2009 preferably by 31st December, 2009.  

Provision  was  also  made  for  continuance  of  the  

Nutritional  Programme  for  Adolescent  Girls  and  

Kishori  Shakti  Yojana  till  such  time  as  a  

comprehensive  universal  scheme  for  the  

empowerment  of  adolescent  girls  called  the  Rajiv  

Gandhi Scheme for the Empowerment of Adolescent  

Girls is implemented.  

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14. 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  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 / micro  

nutrient fortified food” and should conform to the  

standards  laid  by  the  Prevention  of  Food  

Adulteration Act,  Integrated Food Law, Infant and  

Young Child Practices.  The micro nutrient 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  

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protein content in the food proposed to be supplied,  

the only source was Soyabean.  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  micro  nutrient  fortification  of  the  THR,  it  

required “expert technical supervision” and that it  

can be achieved by using accurate machines with  

precision in measuring the quantity in milligrams.  

15.  It was in response to the directions issued by this  

Court  from  time  to  time  and  to  implement  the  

revised norms set by the Central Government that  

respondent No. 1, Maharashtra Government passed  

a resolution      on 24th August, 2009.  Under this  

resolution, the Government not only prescribed the  

procedure for implementing the revised norms but  

also  revised  the  rates  in  all  the  categories  of  

beneficiaries.  

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16. Based  on  the  above,  an  Expression  of  Interest  

(in short ‘EOI’)  was taken out by respondent No. 2,  

the  Commissioner,  i.e.,  Integrated  Child  

Development Services Scheme, Maharashtra, on 7th  

December, 2009 for supply of fortified blended food  

manufactured  through  process  of  extrusion.   In  

response  to  the  aforesaid  EOI,  the  State  

Government received 351 applications            for 34  

districts across the State of Maharashtra.  

17.  The  aforesaid  EOI  was  challenged  by  one  Smt.  

Nanda  Chandrabhan  Thakur  in  Writ  Petition  No.  

2588  of  2009  before  a  Division  Bench  of  the  

Bombay  High  Court.   Primary  challenge  of  that  

petitioner was to condition No.6 which required the  

applicant to possess a turn over of   Rs. 1 crore for  

the  last  three  consecutive  financial  years.  

Condition No. 6 of the EOI provided as under:-

“6.  The  eligible  Mahila  Mandal,  Mahila   Sanstha,  self  helping  saving  group,  should  

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attach a certificate about producing of the Food  or equivalent like Fortified Blended Premix and  supplying  the  same  upto  the  Anganwadi  in  ICDS for the last 3 consecutive financial years   having a turn over of Rs. 1.00 crores. The said   certificate should be certified by the Chartered  Accountant.  (Year  2006-2007,  2007-2008,  2008-2009).”

18. Upon  consideration  of  the  matter,  the  Division  

Bench observed that plain language of the condition  

indicates that only Mahila Mandal, Mahila Sanstha  

and Self helping Saving Group can participate in the  

tender  process,  provided  they  qualify  other  

requirements in Clause 6.  It was further observed  

that one of the requirements of this clause was that  

the  tenderer  should  attach  a  certificate  about  

producing the  specified food for  three consecutive  

financial  years  (2006-2007,  2007-2008 and 2008-

2009)  having a turnover of  atleast  one crore.  The  

said certificate  should be certified by a Chartered  

Accountant.  

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19. The  writ  petition  was  dismissed  with  the  

observations  that  since  the  petitioners  were  not  

espousing  the  case  of  Mahila  Mandal  or  Mahila  

Sanstha or Self helping Saving Group, they were not  

eligible as per the tender document at all.  Secondly,  

even if the petitioners were held to be eligible, they  

did not have a turn over of Rs. 1 crore as required  

under Clause 6.  The petitioners had also sought to  

argue  that  the  condition  of  Rs.  1  crore  would  

deprive  small  time  traders  and  business  persons  

from  participating  in  the  tender  process.   This  

submission was also negated by the Division Bench  

with the observation that the criteria fixed by the  

respondent  is  a  policy  matter  and  is  keeping  in  

mind all other factors to further the implementation  

of  child  development  service  scheme.   The clause  

was found to be not arbitrary in any manner.   

20. It appears that the EOI had also given rise to certain  

agitations  by  some  of  the  Mahila  Bachat  Gats.  

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During  the  pendency  of  these  complaints,  the  

Government  decided  not  to  proceed  further  and  

stayed the process under the EOI on 16th January,  

2010.   A  Committee  was  constituted  on  19th  

January,  2010  to  go  into  the  complaints.   Upon  

examination of the entire material,  the Committee  

concluded  that  the  Extrusion  Technology  was  

necessary to produce the food as required under the  

directions  of  the  Central  Government.   On  5th  

February,  2010,  the  Committee,  therefore,  

recommended  that  the  stay  granted  by  the  State  

Government  may  be  vacated.   The  decision  was  

communicated by respondent No. 1 to respondent  

No. 2 through letter dated 22nd February, 2010.  The  

tender submitted by the petitioner was rejected.   

21. This led to the appellant herein filing a Writ Petition  

No.  1311  of  2010,  seeking  a  direction  that  the  

appellant be also considered in respect of supply of  

extruded fortified blended food / energy food under  

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ICDS Scheme.  However, the aforesaid writ petition  

was withdrawn       on 17th February, 2010 with  

liberty to approach the Government.  

22.  It is the claim of the appellant that the writ petition  

was  withdrawn  as  respondent  No.  1  had  itself  

stayed the decision of  respondent No.  2 to award  

the contract and was reviewing the condition Nos. 6,  

7 and 8.  Not knowing that the stay order dated 16th  

July, 2010 had been recommended to be vacated on  

5th February,  2010,  the  appellant  made  a  

representation to respondent     Nos. 1 and 2 for  

consideration  to  supply  the  food  under  the  ICDS  

Scheme.  As noticed earlier, in view of the vacation  

of the stay on 22nd February, 2010, condition Nos.  

6, 7 and 8 remained intact.  We may further notice  

here that in the order dated 22nd February, 2010,  

respondent No. 1 had decided as under:-

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(i) That  5% of  the  tender  work  be  reserved  for  

Mahila Mandal / Mahila Bachat Gat etc., who  

do not have the Extrusion Technology.

(ii) For this 5% work so reserved, the Extrusion  

Technology is not required.   

23. However, on 23rd February, 2010, the decision taken  

in  the  letter  dated  22nd February,  2010,  was  

withdrawn.  It was, however, further provided that  

“in  future,  if  some  Mahila  Bachat  Gat  /  Mahila  

Sanstha  /  Mahila  Mandal  made  production  

machinery, set up unit  and shown their  ability of  

making products, then the Commissioner, Ekatmik  

Bal Vikas Seva Yojana, Navi Mumbai will give them  

an opportunity and will  purchase THR production  

made by them.”   

24. Thereafter,  the  appellant  submitted  three  

representations on 26th February, 2010, 2nd March,  

2010  and  4th March,  2010  requesting  respondent  

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Nos. 1 and 2 to consider them for supply of the food  

under ICDS Scheme.  It is the case of the appellant  

that without considering these representations, the  

respondent        Nos. 1 and 2 signed an agreement,  

awarding the contract to respondent Nos. 4 to 6 for  

a period of one year, with a clause for extension of  

two  years.   Ultimately,  in  spite  of  further  

representations of the appellant, the work order was  

awarded to respondent Nos. 4 to 6 to support the  

supply of food material forthwith in accordance with  

the agreement signed on 28th April, 2010.   

25. Aggrieved by the action of respondent Nos. 1 and 2  

in awarding the contract to respondent Nos. 4 to 6,  

the appellant filed a writ Petition No. 4210 of 2010  

on  25th August,  2010.   The  High  Court  initially  

passed  an  order  on  30th August,  2010  granting  

interim relief.   Respondent  Nos.  1  and 2  filed  an  

application for vacation of stay, the appellant in the  

reply  to  the  aforesaid  application  stated  that  the  

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respondent Nos. 4 to 6 have not fulfilled one of the  

conditions in the original  application form namely  

that of applicants should submit the copies of the  

documents  signed  by  the  notary,  which  included  

VAT Clearance Certificate as on 31st March, 2009.  

It was also stated that the respondent Nos. 4 to 6  

had  wrongly  stated  that  no  tax  was  due  and  

payable.  Upon consideration of the entire matter,  

the High Court dismissed the writ petition filed by  

the  appellant.   Hence  the  present  Special  Leave  

Petition.  

26. We have heard the learned counsel for the parties at  

length.  Although, very elaborate submissions have  

been made by the learned counsel for the parties, it  

would  be  appropriate  to  summarize  the  

submissions.  

27. Mr.  Mukul  Rohtagi,  learned  senior  counsel,  

appearing  for  the  appellant,  submitted  that  the  

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condition  Nos.  6,  7,  8  and  9  in  the  EOI  are  

arbitrary.  He further submits that the Government  

order permitted the grant of contract for a period of  

one year.  However, the agreement entered into with  

respondent Nos. 4 to 6 provides that the agreement  

will  remain  valid  for  one  year  and extendable  for  

next 24 months from the date of allotment of the  

first dispatch advice by the Commissioner with the  

same  terms  and  conditions.   Learned  counsel  

submitted  that  since  the  period  of  one  year  has  

expired,  it  would  be  appropriate  to  invite  fresh  

tenders.  Learned counsel  invited our attention to  

the  Government  Resolution  dated  24th August,  

2009,  which clearly  provided  that  as  per  existing  

practice,  the  period  of  supplying  supplementary  

nutrition food,              Mahila Mandal, Women  

Institutions,  Self  Assistance  Saving  Group will  be  

for  the  period  of  one  year  only.      Mr.  Rohtagi  

further invited our attention to the Minutes of the  

meeting held on 5th February, 2010, in view of the  

24

Government  Circular  dated  19th January,  2010  

regarding selection of tenders.   In Paragraph 7 of  

the Minutes, it is mentioned that “the agreement for  

the  supply  of  THR  will  be  for  one  year  and  the  

orders for supply will  be given for one year only.”  

On  the  basis  of  the  above,  it  is  submitted  that  

permitting  the  extension  of  the  contract  for  three  

years  is  contrary  to  the  decisions  taken  by  the  

Competent Authority.  Hence, the contract is liable  

to  be  declared  illegal.   Learned  senior  counsel,  

thereafter,  submitted  that  the  entire  selection  

process was suspect.   Having stayed the selection  

process, it was vacated only to show undue favour  

to respondent Nos. 4 to 6.  According to the learned  

senior  counsel,  it  would  have  been  much  more  

transparent  if  the  tender  process  was  conducted  

afresh.  Mr. Rohtagi then submitted that even if the  

appellant is not successful on the one year issue,  

respondent         Nos.  4 to 6 still  could not be  

selected as they are not qualified.  Learned senior  

25

counsel made a reference to Clause 17 of the EOI,  

which reads as under:-

 “All  applicants should submit  the copies of  the  

following documents signed by the Notary.

 Certificate  of  District  Industry  Centre,  VAT  

Registration/CST Registration certificate.

 Validity  Certificate  as  per  Food  Adulteration  

Prohibition Act, 1954.

 PAN Card.

 ISO  9001  :  2000  Certificate,  H.A.C.C.P.  

Certificate  for  preparing  extruded  fortified  

blended/energy food.

 Income tax returns

 VAT clearance certificate (as on 31.3.2009)

 Evidence/proof  to  the  effect  that  production  

centre  having  permanent  structure  which  is  

owned  public  acquired  on  agreement  is  in  the  

possession of the Institution.”  

26

28.   Mr.  Rohtagi  submits  that  the  VAT  Clearance  

Certificate  given  by  respondent  Nos.  4,  5  and  6  

depict the details of tax dues from 1st April, 2006 to  

31st March, 2009 as “Nil”.  The statement made is  

that amount of tax dues is given as per return.  The  

aforesaid  declaration,  according  to  the  learned  

senior counsel is not correct.  It is submitted that  

the  information  given  by  the  Tax  Department  in  

response to an enquiry made by the appellant under  

the  Right  to  Information  shows  that  respondent  

Nos. 4, 5 and 6 owe lakhs of rupees.  It is further  

submitted  by  Mr.  Rohtagi  that  not  only  the  

statements made by respondent No. 4 are incorrect  

but  there  is  concealment  of  the  fact  that  the  

aforesaid respondents were black listed by the Tax  

Department.  Mr. Rohtagi submits that cumulative  

effect of all the aforesaid facts would clearly show  

that the respondent Nos. 4 to 6 have been shown  

undue favour by respondent Nos. 1 and 2.  Learned  

senior  counsel  buttressed  this  submission  on the  

27

ground that  conditions  are  clearly  tailor-made for  

respondent  Nos.  4  to  6,  to  the  exclusion  of  

everybody else.   

29. In response to these submissions, Mr. C.U. Singh,  

learned  senior  counsel,  appearing  for  respondent  

Nos. 1 and 2 submitted that there is no condition  

limiting  the  contract  to  one  year.   In  fact,  it  has  

always  been  one  year  extendable  by  two  years.  

Learned  senior  counsel  drew our  attention  to  the  

events leading to the passing of the order by this  

Court on 22nd April, 2009.  Mr. Singh has pointed  

out that the appellant admittedly does not fulfill any  

of the conditions, i.e., 6, 7, 8 and 9.  The appellant  

does not have the turn over of over Rs. 1 crore each  

year for  the last  continuous three financial  years.  

This  condition  has  already  been  upheld  by  the  

Bombay  High  Court  in  Writ  Petition  No.  2588  of  

2009.  The appellant also does not fulfill condition  

No. 9 as admittedly, it does not have a functioning  

28

unit for preparation of fortified blended nourishing  

food  (premix)  prepared  by  extruded  system.  

Learned senior counsel pointed out that initially in  

Writ Petition No. 1311 of 2010, the appellant had  

challenged condition Nos.  6,  8,  13 and 14 of  the  

EOI.   This  writ  petition  was  withdrawn  on  17th  

February,  2010  with  liberty  to  represent  to  the  

Government.   The  present  writ  petition  was  filed  

on 24th August, 2010 before the Nagpur bench.  In  

this writ petition, none of the tender conditions were  

challenged.   The  appellant  merely  prayed  for  a  

declaration that  condition No.  6 be deemed to be  

waived.   Learned senior  counsel  submits  that the  

points  urged  by  Mr.  Rohtagi  in  this  Court  were  

never  argued  before  the  High  Court.   Therefore,  

according  to  the  learned  senior  counsel,  the  

submissions of the appellant need to be shut out at  

the  threshold.   It  is  further  submitted  that  the  

representations  submitted  by  the  appellant  and  

others  were  duly  considered.   The  appellant  was  

29

duly heard.  The contract was given initially for one  

year,  which  was  extendable  for  three  years,  on  

satisfactory  performance  in  the  twelve  months.  

Therefore, the agreement clearly stipulated that the  

work order shall be for one year, extendable by 24  

months.  According to the learned senior counsel,  

there is no justification for saying that the contract  

was to be limited only to one year.  Learned senior  

counsel  further  submitted  that  under  any  

circumstances, appellant by its own showing has no  

locus standi  to challenge  the  grant  of  contract  to  

respondent Nos. 4 to 6.  Mr. Singh points out to the  

submission made by the appellant in I.A. No. 1 of  

2010  seeking  permission  for  filing  additional  

documents.  In Paragraph 1, the appellant submits  

that it had submitted the application for supply of  

ICDS food for all 34 districts of Maharashtra.  It is  

further submitted that all documents as required by  

the  Notice  dated  7th December,  2010  were  also  

submitted.  The appellant further states that it had  

30

complied  with  all  conditions  mentioned  in  the  

application, excepting conditions 6, 7 and 8 of the  

application form. Mr. Singh submits that in the face  

of this admission, the appellant does not deserve to  

be heard at all.  He has relied on two judgments of  

this  Court  in  the  case  of  Glodyne  Technoserve  

Limited Vs.  State of Madhya Pradesh & Ors.  1    

and Larsen and Toubro Limited & Anr. Vs. Union  

of India & Ors.  2  , in support of the submissions that  

the tender conditions have to be strictly  complied  

with by all the candidates.    

30. Mr. P.S. Patwalia, learned senior counsel, appearing  

for respondent Nos. 4 to 6, submitted that it was on  

the  representations  made  by  various  associations  

and  the  appellant  that  the  tender  process  was  

stayed.  Upon consideration of the entire material,  

the two letters    dated 22nd February, 2010 and 23rd  

February,  2010  were  issued.   Learned  senior  1 (2011)  5 SCC 103

2 (2011)  5 SCC 430

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counsel  further  submitted  that  although  in  the  

letter dated 22nd February, 2010, it was stated that  

the  period  of  the  tender  would  be  one  year,  the  

same was withdrawn the next date.  Thereafter, the  

respondent Government reverted back to the EOI.  

It is further submitted that respondent Nos. 4 to 6  

had already been supplying hot meals for a number  

of  years.   The  condition  with regard  to  supply  of  

THR was added pursuant to the orders passed by  

this Court,  as noticed earlier.   In any event,  it  is  

submitted  by the  learned senior  counsel  that  the  

condition of one year relates only to hot food, it has  

no connection to the supply of THR. The respondent  

Nos. 4 to 6 are supplying only THR.  It is further  

submitted that the Sales Tax objection raised by the  

appellant  is  wholly  without  any  basis.  

On 31st March, 2009, there was no Sales Tax dues.  

This is evident from the assessment made in favour  

of the respondents, which was much later in point  

of time.      As on 31st March, 2009, the statement  

32

made by the respondents was in accordance with  

the  return  filed.   Learned  senior  counsel  also  

submitted  that  these  arguments  were  not  raised  

before  the High Court.   On the  question of  black  

listing, it is submitted that the recommendation for  

black listing was based on an incident in the year  

2004.  This was subsequently explained and there  

was no black listing.  Mr. Patwalia also emphasised  

that the appellant is even otherwise ineligible.  It is  

not in possession of a unit.  A reference is made in  

this connection to the Lease Agreement executed by  

the  appellant  on  24th December,  2009.   In  this  

agreement,  the  appellant  would  be  permitted  to  

lease  out  an  existing  manufacturing  facility.  

Therefore,                on 7th December, 2009, relevant  

for the purpose of EOI, the appellant did not have a  

manufacturing  unit.   Again  referring  to  the  Joint  

Venture  Agreement,  entered into  by  the  appellant  

with a third party, it is pointed out that it is without  

any definite terms and conditions, no consideration  

33

was  so  ever  provided  for  the  Joint  Venture  

Agreement.  Mr. Patwalia further submits that the  

appellant is trying to mislead the Court by relying  

on  an  Analysis  Certificate  dated  25th December,  

2009,  which  shows  that  the  appellant  had  

manufactured fortified blended sukhadi premix on  

12th December, 2009.  Since the appellant did not  

have a manufacturing unit, the certificate is clearly  

procured  for  the  purposes  of  this  case.   Learned  

senior  counsel,  therefore,  submits  that  the  High  

Court rightly dismissed the writ petition filed by the  

appellant  herein.   In  reply  to  the  submissions,  

Mr.  Rohtagi  submitted  that  the  appellant  is  

concerned only  with  transparency  which must  be  

observed in any tender process.   The appellant is  

only  desirous  of  getting  an  opportunity  to  

participate in the tender process.  

31. We have considered the submissions made by the  

learned  counsel  for  the  parties.   We  are  of  the  

34

considered opinion that the writ petition has been  

rightly  dismissed  by  the  High  Court  after  

examination of  the  entire  issue.   The  High  Court  

concluded  that  the  appellant  failed  to  satisfy  the  

eligibility  criteria  as  contained  in  Clause  6,  as  

noticed earlier.  The aforesaid clause requires that  

the  tenderer  should  have  produced  the  specified  

food  for  the  last  three  consecutive  years  and  

supplied the same to Anganwadi’s  in ICDS. Since  

the  appellant  did  not  possess  a  suitable  

manufacturing  unit,  the  appellant  would  be  

rendered ineligible on this score alone. As pointed  

out  by Mr.  C.U.  Singh,  the  appellant  admitted  in  

terms in its pleadings in I.A. No. 1 of 2010 that it  

does not satisfy conditions 6, 7 and 8.  We could  

have, therefore, dismissed the appeal solely on the  

ground  that  the  appellant  had  made  a  voluntary  

admission  by  which  it  was  bound.   However,  

keeping  in  view  the  importance  of  the  issues  

involved, i.e., the provision of supplementary diet to  

35

a segment of the Indian population, which is either  

severely undernourished or in need of extra calories,  

we  have  chosen  to  examine  the  entire  matter  to  

ensure that the Scheme is being implemented in its  

letter and spirit by all the participating agencies.  

32. In our view, the High Court also correctly observed  

that the validity of the eligibility criteria contained  

in Clause 6 of the tender dated 7th December, 2009  

has  already  been  upheld  by  the  Division  Bench  

whilst  dismissing  the  Writ  Petition  No.  2588  of  

2009.   The High Court  also correctly  negated the  

submissions  of  the  appellant  that  in  spite  of  not  

having a unit of its own, the appellant ought to be  

declared eligible.  The High Court also found that in  

the facts and circumstances of the case, it was only  

respondent Nos. 4 to 6, who were suitable for grant  

of contract.   

36

33. We  are  also  unable  to  accept  the  submission  of  

Mr. Rohtagi that the original Government decision  

had limited the period of contract to one year.  In  

fact, as demonstrated by the learned senior counsel  

for  the  respondents,  the  Government  decision  as  

well as tender condition clearly stipulated that the  

contract  would  be  initially  for  one  year.   Upon  

completion of one year, the work of the successful  

candidate would be reassessed. In case, it is found  

that  the  performance  has  been  satisfactory,  the  

tender shall be extended for a period of two more  

years.  

34. We are also of the considered opinion that the food,  

which is to be supplied to the recipients as a part of  

the supplementary nutrition programme has to be  

prepared  in  the  manner  prescribed  by  the  

Government for safety and nutrient composition of  

the food.  It can not be left to uncertainties of the  

machinery available with individual manufacturers.  

37

The successful supplier is duty bound to necessarily  

comply with all the specifications laid down by the  

Government in its norms.  Mr. C.U. Singh and Mr.  

Patwalia, in our opinion, by referring to the various  

documents,  have  clearly  demonstrated  that  the  

appellant is not eligible at all to be even considered  

in the tender process.  It has also been pointed out  

that all the objections raised by the appellant and  

other      Mahila Mandal / Mahila Sanstha / Mahila  

Bachat Gat etc. etc.  were duly considered by the  

Government.  This is evident from the letters dated  

22nd February, 2010 and           23rd February, 2010.  

35. We  are  also  not  impressed  by  the  submission  of  

Mr. Rohtagi that the condition of having Rs. 1 crore  

over the three previous consecutive years, is either  

arbitrary or whimsical.  Mr. C.U. Singh by making  

detailed reference to the counter affidavit has shown  

that  in  the  State  of  Maharashtra,  there  are  34  

districts having an annual value in terms of at-least  

38

Rs. 1.7 crores per district.  Therefore, the condition  

of asking for minimum Rs. 1 crore turn over for the  

last three years can not be said to be arbitrary.  In  

fact, the condition would be of utmost importance.   

36. We  also  find  substance  in  the  submission  of  

Mr.  C.U.  Singh  and  Mr.  Patwalia  that  EOI  had  

deliberately  stressed  on  the  need  of  precise  

measurements for the preparation of the food.  The  

supplier is required to provide a fine mix of all kinds  

of  ingredients  including  the  revised  intake  of  

proteins and calories to the precise level.  In fact,  

the level of precision is earmarked for each kind of  

food.   The  concept  behind  the  same  can  not  be  

permitted to be demonized by referring to it as food  

prepared by “automated machines”. The procedure  

adopted is necessary to ensure that there is “zero  

infection” in the food which is going to be consumed  

by infants and the children who are already under  

nourished.   It  cannot  be  over  emphasised  that,  

39

since  the  beneficiaries  of  the  Dense  Energy  Food  

and Fortified Blended Mixture are infants from the  

age group of 6 months to 3 years and pregnant and  

lactating mothers, it was all the more desirable to  

have fully automated plants. Such procedure avoids  

the  use  of  human  hands  in  processes  like  –  

handling, cleaning, grinding, extrusion, mixing etc.,  

all of which are done automatically.   

37. We are of the considered opinion that the aforesaid  

considerations can not be said to be extraneous to  

the purpose for which EOI was floated.   

38. Taking  into  consideration,  all  the  facts  and  

circumstances of the case, we find the appeal to be  

wholly  devoid  of  any  merit  and  is,  therefore,  

dismissed.    

40

……………………………..J.             [Altamas Kabir]

……………………………..J.   [Surinder Singh Nijjar]

New Delhi; August 19, 2011.          

41