REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S)._2336   OF 2019 (ARISING FROM SLP(C) NOS.10103 OF 2016)

VAISHNORANI MAHILA BACHAT GAT                    ..APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA & ORS.                      ..RESPONDENT(S) WITH

C.A. NO. 2337/2019 SLP(C) No. 2415/2017

C.A. NO. 2348/2019 @ SLP(C) No. 2187/2017

C.A. NO. 2346/2019 @ SLP(C) No. 2184/2017

 C.A. NOS. 2340-2341/2019 @ SLP(C) Nos. 2191-2192/2017

C.A. NO. 2344/2019 @ SLP(C) No. 2178/2017

C.A. NO. 2349/2019 @ SLP(C) No. 2177/2017

C.A. NO. 2338/2019 @ SLP(C) No. 29178/2016

C.A. NO. 2347/2019 @ SLP(C) No. 30156/2016

C.A. NO. 2342/2019 @ SLP(C) No. 29955/2016

C.A. NO. 2339/2019 @ SLP(C) No. 29603/2016

C.A. NO. 2345/2019 @ SLP(C) No. 30088/2016

C.A. NO. 2343/2019 @ SLP(C) No. 30079/2016  

C.A. NO. 2350/2019 @ SLP(C) No. 8244/2018  

C.A. NO. 2351/2019 @ SLP(C) No. 16947/2018

W.P.(C) No. 910/2017  

       J U D G M E N T

1. Leave granted.

2. The  appellants/petitioner(s)  have  questioned  the  judgment

and order dated 11.7.2016 passed by the High Court of Bombay,

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Bench at Aurangabad and order dated 15.03.2016 of the High Court

of Judicature at Bombay, Bench at Nagpur.  The petitioners in

the  writ  petition  filed  before  the  High  Court  i.e.  W.P.

No.3359/2016  questioned  the  tender  notice  dated  08.03.2016

issued  by  the  State  of  Maharashtra  inviting  tender  for

multilevel  contract  and  for  supply  of  ready  to  cook  food  to

Anganwadi  Centres  as  supplementary  nutritional  food  for

children,  pregnant  women  and  lactating  mothers,  adolescents

girls under Integrated Child Development Scheme (ICDS Scheme).

The conditions were questioned by the appellants/petitioner(s)

being arbitrary, unreasonable against the spirit of the decision

of this Court in W.P.(C) No.196/2001.   

3.  The question as stated in the appeal is that the local self-

help groups are sought to be ousted by the money power of large

corporate houses with the help of the State ,the decision by

this Court in  PUCL v. Union of India (W.P.(C) No.196/2001) is

being  violated  and  that  of  Shagun  Mahila  Udyogik  Sahakari

Sanstha Maryadit v. State of Maharashtra and Others, passed in

Civil  Appeal  No.7104/2011.   It  is  urged  that  the  local

organization of women (Mahila Mandals) and self-help groups are

best suited to give local food and other necessary efforts to

provide supplementary nutritional food for children.  The so-

called Mahila Mandals who have applied under the tender that has

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been floated is, in fact, large industrial units and nothing to

do with the Mahila Mandals and self-help groups.  They are close

to certain political personalities in the State of Maharashtra.

Industrialists are not supplying good food as compared to these

Mahila Mandals in different parts of the country, as accepted by

the  Union  of  India  in  its  Report.   The  imposition  of  the

unrealistic conditions made it impossible for the Mahila Mandals

to compete.  Thus, the State is entertaining fake business units

and is acting contrary to the various decisions of this Court

and the spirit of the Scheme.

4.  The  principal  issue  raised  is  whether  contracts  for  the

supply  of  such  food  for  Anganwadis  should  be  given  to  local

Mahila  Mandals  run  along  democratic  lines  with  local  women

participating or whether such contracts ought to be given by the

State  to  large  corporates/contractors  under  the  guise  of  the

conditions of the tender.  In  PUCL v. Union of India & Ors.

(W.P. (C) No.196 of 2001), this Court has passed the order, on

07.10.2004, inter alia to the following effect:-

"The  contractors  shall  not  be  used  for  the supply of nutrition in Anganwadis and preferably ICDS  funds  shall  be  spent  by  making  use  of village communities, self-help groups and Mahila Mandals for buying of grains and preparation of meals."  

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5. On 13.12.2006, in PUCL (supra), the Court inter alia passed

the following order:-

“...Chief  Secretaries  of  all  State Governments/UTs  are  directed  to  submit affidavits giving details of the steps that have been  taken  with  regard  to  the  order  of  this Court  of  October  7th,  2004  directing  that "contractors  shall  not  be  used  for  supply  of nutrition  in  Anganwadis  and  preferably  ICDS funds shall be spent by making use of village communities, self-help groups and Mahila Mandals for buying of grains and preparation of meals". Chief Secretaries of all State Governments/UTs. must  indicate  a  time-frame  within  which  the decentralization of the supply of SNP through local community shall be made.”

6. Thereafter, Food Safety Ordinance, 2013 was promulgated on

5.7.2013 in which provision has been made for the benefit of

children  in  the  age  group  of  6  months  to  14  years.   The

Ordinance which has taken the shape of the Act  i.e. National

Food Security Act, 2013 (for short ‘the Act of 2013’), aims at

to  reform  the  public  distribution  system  and  bringing  in

transparency and accountability apart from creating obligation

of the Central Government and the State Governments in respect

of all issues relating to food security.   

7. A report was submitted to this Court by the Commissioner

appointed  in  PUCL  [W.P.(C)  No.196/2001]  regarding  Take  Home

Ration  (for  short  ‘THR’)  in  Maharashtra,  relevant  portion  is

extracted hereunder:-

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"In the attached report claims large-scale irregularities  in  the  supply  of  supplementary nutrition  in  violation  of  the  orders  of  the Hon'ble Supreme Court. The report claims though it is not specifically proven that there is a nexus  between  politicians,  bureaucrats  and private contractors in the provisioning of SNP to  the  ICDS  leading  to  large-scale  corruption and leakages.

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

In  some  States  like  Uttar  Pradesh,  the supplementary nutrition has been contracted out to  private  companies  like  Great  Value  Foods, promoted  by  Gurdeep  Singh  (Ponty)  Chadha  in complete violation of the Supreme Court orders. This continues despite an adverse report on the issue  (in  Gorakhpur)  by  the  National  Human Rights Commission. Similarly, a contractor based out of Noida, Continental Milkose (India) Ltd. provides  the  supplementary  nutrition  for  the ICDS  in  Meghalaya.  The  contract  continues despite adverse CAG reports on the provision of SNP in Meghalaya. This state of affairs prevails across many States/UTs.

According  to  the  National  Family  Health Survey 3, every day close to 5,000 children dies in  India  due  to  preventable  causes  including malnutrition. The ICDS is the only institutional mechanism of the Government to deal with issues of children under the age of six. The government of  India/States  and  UTs  spend  close  to  8,000 crores  every  year  on  the  provision  of

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Supplementary  Nutrition.  It  is  unconscionable that a country with one of the highest rates of child  malnutrition,  globally,  allows  rampant corruption to undermine the ICDS and thereby the future of its children.”

8. The second report was submitted by the Commissioner appointed

in PUCL (W.P.© No.196/2001) to this Court, the relevant portion

is extracted hereunder:

“Part A of the existing report further probes  the  subject  of  the  large-scale irregularities  in  the  supply  of  Supplementary Nutrition Provisioning (SNP) in violation of the orders  of  the  Hon'ble  Supreme  Court  by  the engagement of contractors in ICDS in four states namely,  Maharashtra,  Karnataka,  Uttar  Pradesh, and Gujarat.   Part  B  of  the  report  documents  the  best practice study from two states viz, Odisha and Kerala on the effective involvement of the local women's' groups in the form of the decentralized model of nutrition provisioning under ICDS, which is  in  consonance  with  2004  and  2006  Hon’ble Supreme Court order.    Part C of the report is the nutrient analysis of the samples Take Home Rations collected from four states (Maharashtra, Uttar Pradesh, Gujarat, Meghalaya), carried out by National Institute of Nutrition  (NIN)  Hyderabad.  NIN  data  shows  a significant gap between state specifications and the results of the lab test.    We  reiterate  our  concern  for  the  health, nutrition, and life of millions of children in India, in the larger public interest and in order to be able to indisputably establish the facts of this  case,  we  would  again  request  the  Hon'ble Supreme Court to set up an independent Special Investigation  Team  (SIT)  to  enquire  into  the matter."  

9. Further directions were issued by this Court in PUCL (W.P.©

No.196/2001) on 10.7.2013:

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“Mr. Colin Gonsalves, learned senior counsel appearing for the writ petitioner, on the other hand  argued  that  although  the  Government  of Gujarat  had  made  a  statement  before  the  High Court on 14 March, 2011 that they will completely switch-over to the system of providing rations through  Mahila  Mandals  and  Self-Help  Groups within a period of one year, the Government had not been diligent in doing the needful with the result that the switch-over was achieved only to the extent of 16 percent. He submitted that the Government  had  in  derogation  of  the  orders  of this  Court  dated  7.10.2004,  13.12.2006  and 22.04.2009 engaged a contractor for the supply of nutritional food to the children falling in the age group of six months to three years and that the present application was only an attempt to perpetuate  that  violation.  He  submitted  that according to his instructions each Anganwadi was equipped with pucca/kaccha kitchen for many many years and that there was indeed no difficulty in supplying to the targeted age group of children cooked nutritional food in terms of the scheme as directed by this Court.

In the circumstances, therefore, and keeping in view the submissions made at the Bar we direct the  State  Government  of  Gujarat  to  file  an additional  affidavit  on  the  lines  indicated above, indicating the time-frame within which it will switch-over to the system of supply of food to the targeted population of children and others entitled  to  the  same  in  the  State  of  Gujarat under the Ordinance and also indicating the time- frame within which every school and Anganwadi may be  equipped  with  facilities  for  cooking  meals within  the  meaning  of  Section  5  (2)  of  the Ordinance.”  

10. On  6.8.13,  this  Court  passed  an  order  in  PUCL (W.P.©

No.196/2001) with respect to Gujarat:-

“In the meantime, we permit the Government of Gujarat to continue the system under which it has  been  procuring  for  distribution  take-home ration as EFBF from the original manufacturers by inviting  competitive  bids  for  a  period  of  one

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more year. The State would, therefore, would do well to

diligently identify not only reliable self-help groups who can be entrusted with the process of setting up of the plants but also providing all such assistance as may be required for the plants to become functional as early as possible.

We make it clear that in case its found that the State Government have not taken appropriate steps in terms of what we have said above, we may be  forced  to  recall  this  order  and  issue appropriate direction in the matter."

11. This Court again in PUCL (W.P.© No.196/2001) directed State

of  Gujarat  and  Rajasthan,  on  01.09.2014,  to  the  following

effect:-

“Rajasthan:  The  directions  of  this  Court  have over the past 10 years resulted in a switchover of  decentralization  of  the  feeding  process  to Self-Help Groups and Women Co-operatives only in 107 such projects as against 304 projects spread over in the entire State. The pace of switchover is very slow and needs to be increased by the authorities concerned."

Gujarat: "There is no manner of doubt that the State has undertaken steps in setting up of pilot projects four of which projects have already been commissioned,  no  matter  the  capacity  of  the project is limited. There is also no manner of doubt  that  the  thirteen  additional  sanctioned projects will not be sufficient to cater to the States  of  its  requirement  of  12,000  metric tonnes. In that view, therefore, we are inclined to  extend  the  time  fixed  for  completing  the switchover but impress upon the State to expedite the process of switchover for otherwise it can go on indefinitely for decades."

12. The  tender  notice  has  been  issued  by  Government  of

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Maharashtra dated 08.03.2016, the tender conditions that came to

be questioned were contained in Clauses VII (h), (j) and (l) and

Clause X (e) and (g), which are extracted hereunder:-

"VII... (h)  Machinery Performance Certificate: Proposer  must  furnish  a  list  of  machineries installed  in  his  premises  and  a  latest certificate from a Chartered Engineer registered with  the  Institution  of  Engineers  (India), stating that the machinery is sufficient to meet the production requirement of various Ready to Cook  Food  Mixes  as  per  product  specification given under this proposal and also stating that the  machinery  can  effectively  perform  for  a further period of 5 years. The certificate shall also clearly indicate the installed capacity of such machinery. (j)  The  Proposer  should  have  In  house  Quality Control  facilities,  and  any  quality  control laboratory equipped with appropriate laboratory equipment for testing the parameters prescribed in the Food Safety and Standard Act (Prevention of  Food  Adulteration  Act)  and  as  per  the specifications  given  in  the  proposal  regarding the  Nutrient  contents,  Moisture  content, Microbiological  and  Chemical  contamination, Physical  conditions  e.g.  dryness,  softness, consistency, Micronutrient contents. The proposer must  submit  a  list  of  equipment  list  of technically  qualified  personnel  engaged  in quality control etc. (l) The latest consent letter received from the micronutrient  manufacturer/importers,  for  the supply of micronutrient, minimum for the contract period  to  the  proposer,  should  be  submitted before the work order gets awarded. X.  Blueprint/drawing of the plant approved by the  Food  and  Drug  Authority  from  where  the product  as  specified  in  this  proposal  will  be produced  and  supplied  by  the  proposer.  The design/detail should cover location and capacity (in  MT)  of  silos,  covered  storage  areas  with capacity in MT, open storage areas with capacity in  MT,  process  divisions  like  extrusion, cleaning,  grinding  etc.  Proposers  shall  also

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submit  Notarized  copies  of  the  following registration/licenses  for  producing  Extruded Fortified  Blended  Food  as  specified  in  this proposal. (e) A valid license under FSSA, 2006. (g)  ISO  22000:2005,  ISO  14001:2004  OHSAS 18001:2007 Good Manufacturing Practice."

13. The Nagpur Bench has dismissed W.P. No.1807/2016 that has

been  questioned  in  the  special  leave  petitions  i.e. SLP(C)

Nos.10103/16, 8551/16 and 2415/2017.  

14. Whereas Aurangabad Bench has set aside the tender notice to

the extent of reducing the products to 70.  All the terms and

conditions of the tender have been held valid.  The direction

was  issued  to  the  respondent  to  conduct  the  survey  of  the

eligible  units  with  respect  to  extrusion  technology  and

satisfying all other conditions and shall thereafter proceed to

form projects and issue tender notice accordingly.

15. It was pointed out that while rendering the decision in

Shagun (supra) on 19.8.2011 this Court was shown a letter dated

28.7.2009 which was issued by the Deputy Technical Advisor, Food

and  Nutrition  Board  (Western  Region),  Ministry  of  Women  and

Child  Development,  sent  recipes  to  the  Government  of

Maharashtra.  The  recipes  inter  alia  provided  for  mandatory

micronutrient  fortification  and  mandatory  use  of  extrusion

technology in preparation of meals, thus requiring factory-based

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production which is difficult at the level of Anganwadi Centres,

Relevant portion of the recipes, which was relied on in the case

of Shagun (supra), is extracted hereunder:

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

Hence the only sources left to attain the required protein content are SOYABEAN which fits into the budgetary and nutrition norms Problem encountered  with  soybean  is  that  presence  of Tropism inhibitor and complex starch structure in Soybean makes protein unavailable the solution to this was the use of apt processing technology.

The  technology  that  we  came  across  after studying  the  various  factors  was  "EXTRUSION TECHNOLOGY”.

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)  combined  with  high-pressure  cooking  in presence of moisture.

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

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

Once the product is being extruded and is in granule or powder form the fortification of the micronutrients  will  be  easy  which  leads  to  a

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homogeneous mix of required nutrition in correct proportion.

Micronutrient  Fortification:  The  revised guidelines  lays  major  streets  on  micronutrient fortification of the THR to be provided to the beneficiary  this  step  of  micronutrient fortification  requires  expert  technical supervision  and  can  be  achieved  in  precise perfection  by  using  accurate  machines  with precision  in  measuring  the  quantity  in milligrams.  The  fortification  of  the  said receipts at AWC will be quite difficult."

16.  The  Government  of  Maharashtra  passed  a  Resolution  dated

24.08.2009 on the basis of the advice dated 28.7.2009, which

required a highly mechanized and automated process of extrusion

and micronutrient fortification.  The State Government further

issued a tender notification based on these requirement laying

onerous  conditions  on  Mahila  Mandals  to  have  automated

production units, turnover of Rs.1 Crore or more etc.  Following

is the Resolution of the Government of Maharashtra:

"There  being  need  of  change  in  the  diet system  to  bring  about  multifariousness  in  the diet and to effect micronutrient certification by chemical process, individual cleanliness from the public health point of view, or cleanliness of the  premises,  vaccination,  creating  public awareness  are  the  points  which  require  to  be given preference. It is not possible to remove the  deficiency  in  the  diet  of  children  and mothers  by  the  diet  being  provided  under  the Integrated  Child  Development  Service  Scheme. However,  the  instructions  of  the  Central Government are that 50% need of the micronutrient requirement  may  be  made  good  by  fortification process."

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17.  The  Government  of  Maharashtra  sought  clarification  from

Government of India regarding extrusion process, factory-based

production etc., as required in the recipe dated 28.07.2009.  A

letter was written on 29.1.2010.  Relevant extract of a letter

dated 29.01.2010 is extracted hereunder:-

“Meanwhile,  we  have  received  a  report  from Mr.Balbeer Singh, Dy. Director (Technical), Food and Nutrition Board, Western Region, a copy of which is enclosed herewith. From this report, it is seen that the Food and Nutrition  Board  has  recommended  factory-based production  with  extrusion  technology  and specific recipes which use this technology for production of THR.  In this  regard, we  would be  grateful, if  you would  kindly  clarify  the  following  points  so that  the  further  tender  process  can  be finalised.  1. Does GOI prescribe or recommend factory-based production,  or  any  specific  technology,  for production  of  THR?  Has  it  prescribed  any specific recipes or products? 2. Does it recommend ‘Extrusion Technology for THR production’? 3. Does  it  recommend  any  minimum  shelf  life for THR?  Is there any prescribed water content? 4. Can  the  state  go  in  for  gur-groundnut chikki or similar products as THR, as long as it satisfied the prescribed criteria for calories and proteins etc.? 5. Has it authorized Food and Nutrition Board, Western  Region,  to  prescribe  Extrusion technology for THR?"

18. On 26.2.2010, Government of India sent its clarification to

the  Government  of  Maharashtra  regarding  the  use  of  extrusion

technology and as to mandatory specifications laid down in the

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recipe  dated  28.7.2009.   Following  is  the  reply  sent  by  the

Government of India:-   

“Please  refer  to  your  DO  letter No.ICDS/2008/CR-59  (Part-II)/2005  dated  29th

January 2010 raising queries regarding factory- based  production  or  specific  technology  for production of THR.  

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

(emphasis supplied)

19. It was clarified by the Government of India that there is no

specific recommendation for the use of extrusion technology or

any  other  technology  for  THR.   The  suggestion  given  by  the

Regional DTA, (Western Region) is only suggestive in nature and

not a recommendation made by the Government of India.  In Shagun

(supra) this Court on 19.08.2011 observed thus:-

"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/micronutrient  fortified  food"  and  should conform to the standards laid by the Prevention of Food Adulteration Act, Integrated Food Law,

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Infant,  and  Young  Child  Practices.  The micronutrient fortified food was defined to be the food in which essential mineral and vitamins are  added  separately  to  ensure  that  minimum dietary requirements are met. It was emphasised that to attain the required protein content in the  food  proposed  to  be  supplied,  the  only source was Soybean. The food was to be processed by  using  Extrusion  Technology  to  draw  maximum results by use of Soyabean. The guidelines in the  aforesaid  letter  further  emphasised  that since the revised guidelines laid major stress on  micronutrient  fortification  of  the  THR,  it required "expert technical supervision" and that it can be achieved by using accurate machines with  precision  in  measuring  the  quantity  in milligrams.  

The  Government  of  India  communicated  the judgment in the Shagun Mahila Mandal case to all States/UTs.  The judgment nowhere mentioned that private  manufacturers  or  contractors  are allowed, and the judgment was only limited to the  tender  conditions  applicable  to  eligible Mahila mandals.  However, the Central Government communication allowed the states to supply even from manufacturers:"  

20. It is thus clear that observations made by this Court in

Shagun  (supra)  was  based  upon  not  upon  Government  of  India

recommendations but in the letter of Deputy Technical Director,

Western Region, which was wrongly represented to this Court as

recommendations  of  the  Government  of  India.   In  view  of  the

clarification made by the Government of India, the observations

made by this Court as to extrusion technology stand diluted,

based on misrepresentation.

21. By introducing the extrusion Technology it was pointed out

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that in 2010 three Mahila Mandals, which were chosen, were found

to be fake and were only acting as fronts for existing companies

and industrialists.  Following facts have been mentioned in the

reply filed by the State of Maharashtra :

"The  following  women  institutions  are  selected for the supply of THR to the beneficiaries of the Gramin/Aadivashi  and  Urban  Project  and  the following product unit is allotted district wise.

1. Mahalaxmi Mahila Gruhuddyog and Bal Vikas Bahu Uddyeshiya Aoudyo. Co.-Operative Society, Nanded Unit  1.  Mahalaxmi  M.G.B.V.B.A.  Cooperative Society,  Nanded  Districts-  Nanded,  Parbhani, Hingoli Unit 2. Indo Alied Protein Food Districts-Thane Pune, Ahmednagar 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. 3. Vyankateshwar Women Cooperative Home Industry Societies, Udgir. Unit -1 Kapshikhurd Nagpur Districts- Bhandara, Gadchiroli,  Nagpur,  Yavatmal,  Jalna,  Buldhana, Washim. Unit 2- Dongargaon, Nagpur Districts Chandrapur, Amravati, Beed, Latur, Vardha”

22. Following averments have also been made in reply filed by

the State of Maharashtra with respect to Venkateshwara Mahila

Ayodhogic Sanstha:-

“It is necessary here to clarify that applicant Venkateshwara Mahila Ayodhogik Sanstha is in fact contractor:  which  is  being  well  practically operated  by  male  members,  merely  by  showing female relatives or, documents for projection. 11.  I  further  submit  that  detailed  enquiry regarding Venkateshwara Mahila Ayodhogik Utpadak

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Sahakari  Sanstha  will  clearly  reveal  that  the ladies are being projected merely on record and said  Sanstha  is  actually  managed  by  all  male members. It is not out of place to point out that the said Sanstha being Utpadak Sahakari Sanstha registered  under  Maharashtra  Co-operative Societies  Act  only  for  the  purpose  of production/manufacturing  has  no  right  to  claim any relief for supply of food grains as prayed in the present application as the said Society is not  registered  as  trading/consumer  society. Hereto annexed and marked as ANNEXURE R-6 is a copy  of  the  registration  certificate  of Venkateshwara Mahila Ayodhogik Utpadak Sahakari Sanstha issued by Deputy Registrar, Co-operative Societies, Udgir.

I Further submit that on 12.7.1999 the said Venkateshwara Mahila Ayodhogik Utpadak Sahakari Sanstha authorized Deepak Dinkarrao Lakhangonkar to carry all the activities on their behalf that makes  it  very  clear  that  actually  male counterparts  are  administering  affairs  of  so- called Mahila Society."  

23. Thus, it was urged that the field has been left open to the

industrialists in the conditions of the tender under the guise

of Mahila Mandal's fake persons are obtaining contracts.

24. In the judgment rendered by the Aurangabad Bench, it has

been noted that three big contractors were selected who were not

really Mahila Mandals or Mahila self-help groups:-

(i)  Maharashtra  Mahila  Sahakari  Grahudhyog Sanstha Ltd., Dhule. (ii)  Venkateshwara  Mahila  Audhyogic  Utpadan Sahakari Sanstha Ltd., Latur. (iii)  Mahalaxmi  Mahila  Garhudyog  and  Balvikas Buddeshiya Audhyogic Sahakari Sanstha.

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25. As in PUCL (supra) and Shagun (supra), divergent orders were

passed.  Circular dated 26.09.2014 was issued.  The order in

PUCL  (supra)  was  received  by  the  government  of  India  on

15.10.2014.   On  17.11.2014  departmental  note  was  circulated.

Secretary  made  a  recommendation  to  review  circular  dated

26.09.2014 in the light of PUCL order dated 1.9.2014.  Director,

ICDS  also  prepared  a  similar  note  dated  17.12.2014.  On

22.12.2014 it was observed that requirement of certification as

per circular dated 26.09.2014 be kept on hold till April 2015.

It was again introduced on 23.06.2015.  Then again Maharashtra

Government Principal Secretary sought guidance from J.S. (ICDS)

regarding mandatory use of extrusion technology.  On 03.09.2015,

it  was  written  back  that  decision  of  Supreme  Court  may  be

followed.

26. The appellants/petitioners have relied on the report as to

corruption and poor quality of meals supplied by contractors as

positive instances of decentralized production model by SHGs.

The Commissioner appointed in PUCL (W.P.© No.196/2001) observed

in a letter:-  

“We  also  welcome  the  enhanced  calorie  and protein  supplementation  norms  proposed  by  the Ministry of Women and Child Development for the Supplementary  Nutrition  Programme  as  mentioned in the draft.

However, we are in strong disagreement with the manner in which the Ministry of Women and Child Development is seeking to allow a backdoor

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entry of contractors and middlemen back into the Supplementary Nutrition Programme by suggesting the  introduction  of  micro-nutrient  fortified food  obviously  through  contractors,  although this is not specifically stated in the letter dated 24/02/2009.  

Such an attempt to introduce contractors by the back door in the guise of supplying micro- nutrient fortified food was repeatedly rejected by  this  Honorable  Court  when  several  State Governments filed affidavits seeking to promote the  contractor  lobby  for  the  provisioning  of fortified foods, snack and other ready to eat food in ICDS.  

This contractor lobby seeks to capture what it perceives to be potential Central Government annual  budget  of  Rs.5000  crore  in  the Supplementary Nutrition Programme."

27. The petitioners have also relied on the NHRC in a report on

the  functioning  of  ICDS  in  Gorakhpur  (U.P.)  as  to  the  poor

quality of THR recommended thus:-

“...a  rapacious  private  sector  is  riding  on the back of the ICDS to a captive rural market with  the  help  of  government  machinery  in  a naked display of crony capitalism.  

By procuring food from a contractor the State  Government  is  probably  violating  the orders  of  the  Supreme  Court  dated  7.10.2004 and  13.12.2006  in  WP  (C)  No.  196  of  2001, though  the  contractor  hides  behind  the  fig leaf of being a manufacturer. Less than two years back, the contractor set up a processing plant  in  Bahraich  district  for  the  sole business of supplying ready-to-eat food (RTE) to AWCs in Gorakhpur and 11 other districts of eastern  Uttar  Pradesh.  This  shows  that  the State  Government  far  from  phasing  out contractors is encouraging expansion of their business in ICDS. The RTE does not seem to contain  the  ingredients  claimed  and  the weaning food may not be suitable for babies.

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The  ready  to  eat  food  is  produced  in  poor hygienic conditions. Some of the ingredients shown  on  the  bags  containing  the  finished product were not found in stock at the time of the  visit  and  the  stock  of  maize  was  only enough to meet 25% of the daily requirement.  

ICDS  in  Uttar  Pradesh  is  a  highly centralised programme. Virtually everything is procured by the Directorate in Lucknow. There is  nothing  purchased  at  the  district  level. The  only  exception  is  the  small  amount allotted to each AWC to purchase food items, which accounts for 14% of the total purchase of foodstuff.  

All  communication  is  top-down.  The programme suffers because of the lack of free flow  of  information.  There  is  no  scope  for local  initiative.  The  authorities  rely  too much on paperwork, which seems to have become an end in itself.

The  complete  decentralization  of  the feeding  programme  through  local  women's groups,  contemplated  by  the  Supreme  Court's orders referred to above, is still a far cry in Uttar Pradesh.  

Weak Links

Centralization of powers at Lucknow has made the field level functionaries powerless, apathetic  and  devoid  of  initiative.  The biggest danger of centralization lies in the area of purchases. It makes small sums spent per AWC attractive to rapacious private sector players  and  their  corrupt  collaborators  by pooling  the  resources  meant  for  166073  AWCs spread  across  the  State.  I  would  call centralized purchase the weakest link.  

Manufactured  ready  to  eat  food  is difficult and unsafe to store, indifferent in taste and nutritive value lacks variety and is easy to divert in bulk. It is supplied at the same rate as prescribed per beneficiary by the government.  If  we  take  away  a  modest  value addition of 15% in the procession plants, the

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real value of supplies to the beneficiary will be reduced by the same percentage. So I will call RTE the second weakest link.  

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

Ultimately, the mothers in a village can be  said  to  be  the  beneficiaries  of  the programme.  Until  the  management  of  the programme  at  AWC  level  is  delegates  to mothers'  groups,  diversion  of  resources  and corruption cannot be rooted out. Suggestions for improvement.

Before  taking  any  other  steps,  the government has to demonstrate its intentions by doing away with private contracts for food supply altogether. This will send a message to the  field  functionaries  who  seem  to  be confused  about  the  real  intentions  of  their superiors at Lucknow.

 Simultaneously, the entire feeding programme has to be decentralised to the village-level women's' groups. The existing Matri Samitis, self-help groups of women or mothers' groups formed by the community can be adopted as the vehicle of decentralization. There should be no prescription about cooked food and ‘take- home' food. There is no need to assume that women and babies at the weaning stage cannot be fed cooked meals at the Anganwadi. Every community  should  be  allowed  to  decide  what suits it best.  Advice and guidance may be provided  to  help  the  community  make  a decision.  The  assistance  of  CFTRI  may  be sought to generate alternatives from which the community  can  choose.  For  the  decentralised system to succeed, it is imperative that funds for every month are placed at the disposal of the women's' group in the last week of the previous month."

28. The National Rural Livelihood Mission, Government of India,

on 21.01.2013, gave guidelines for involvement of SHGs in the

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supply of THR under ICDS.  The extract of a letter of Additional

Secretary, Ministry of Rural Development are as under:-

“A Women's’ Self Help Group (SHG) (of 10- 20 women in general, 5-20 women in difficult areas) is the primary building block of NRLM's institutional  design.   The  S.H.G.  is  an informal  and  unregistered  group.  Under N.R.L.M.,  one  member  from  each  identified rural poor household, preferably a woman, is to be organized into a Self Help Group (SHGs). These  groups  are  formed  on  the  basis  of affinity  and  common  bonding  among  members. They  are  not  arbitrarily  put  together,  and more  important  this  task  is  not  to  be performed  mechanically.  It  requires  very sensitive  facilitation,  initially  by  an external  social  mobilizing  agency,  N.G.O  or Govt.  Missions  and  later  on  their  own federation  emerges  as  a  sensitive  support agency and takes over most of the functions being  performed  by  the  initial  external support organizations. Now SHGs are formed out of the existing BPL list. We are attempting to switch over to a participatory identification methodology  which  will  ensure  much  better inclusion of the deserving poor.

The time required capacitating groups to undertake a micro-enterprise model related to Skills  and  Placement.  Currently,  only  two State Missions under NRLM have experience in undertaking micro-enterprise models for ICDS - Kerala,  and  Odisha.  Based  on  the  models developed  by  Kerala  and  Odisha,  where Community Based Organisations (CBOs) including SHGs/federations  are  trained  to  develop  a micro-enterprise  related  to  SNP  using  local ingredients, it could take between 4-8 weeks to  train  and  capacitate  a  CBO  depending  on their  potential  and  skills.  There  are  also models  promoted  by  reputed  N.G.Os  in  many states in cooperation with the Dept, of Women and Child Welfare.

How can your department/N.R.L.M. support WCD  in  involving  S.H.Gs/M.Ms./local  women groups  in  supplying  Supplementary  Nutrition esp?  Take  Home  Rations  for  ICDS  as  a

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livelihood activity viable enterprise?   Essentially,  the  tasks  suggested  should

have  to  be  accepted  by  the  State  Rural Livelihood Missions and implemented initially on a pilot mode. The total acceptance by the State WCD is a pre-condition for this. Already Kerala and Orissa have experience in supplying Take Home Ration under ICDS. These States can be  declared  as  the  Resource  States,  the experience  of  which  can  be  formally  shared with  other  willing  States  from  which  joint teams  of  the  State  Livelihood  Mission  and State WCD can learn and prepare an action plan as appropriate to the State."  

29. On 24.12.2013, Government of India has issued Operational

Guidelines for Food Safety and Hygiene in ICDS with respect to

SHGs and local groups as under:-

“Take  Home  Ration  (THR)  is  dry  packed food produced locally by SHG's, local groups and  federations.  The  production  should  meet the  standards  and  specifications  for  food safety and handling.   

The establishment in which food is being handled; processed, stored, distributed by the SHG/ producer is a holder of the registration certificate or a license as per the norms laid down  by  the  Food  Standards  and  Safety Authority  Act,  2006,  Regulations  2011. Sanitary and hygienic requirement, food safety measures,  and  other  standards  should  be confirmed and it will be the responsibility of the producer to ensure adherence to necessary requirements.

Processing of Food (Take Home Rations): Processing  involves  activities  like  sieving, washing,  drying,  roasting,  mixing,  grinding etc., which requires handling of food.”

30.  The  Government  of  India  in  its  'Social  Service

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Delivery: Good Practices Resource Book 2015 applauded the

Odisha model in the following terms:   

"Decentralisation  of  ICDS  Supplementary Nutrition Programme: Ensuring timely and quality nutrition to all beneficiaries in Odisha.

The  Department  of  Women  and  Child Development (WCD), Government of Odisha, has undertaken decentralization of the Integrated Child  Development  Services  (ICDS) supplementary nutrition programme in the state to streamline and strengthen the programme and ensure ' universalization with quality' in a time-bound manner. The initiative reaches out to  all  beneficiaries  with  a  standard  weekly menu,  meeting  the  protein  and  calorie  norms within  the  allocated  ration  cost,  removing contractors  and  encouraging  women  Self  Help Groups  (SHGs)  in  adherence  with  the  Supreme Court directive. Results from a social audit indicate that 71% of the respondents felt that the menu chart was being followed."

“Replicability and Sustainability Social  sustainability  of  the  initiative

is high, owing to the successful run of the community-driven  model  that  has  been institutionalized for the SNP. Following the success  of  Jaanch  Committees  in  SNP,  the system will now also been extended to other components of ICDS on a trial basis to induce more  community  participation  in implementation.

Long-term  sustainability  requires  the state  administration  to  create  an  enabling environment.  For  the  purpose  of  introducing reforms,  support  for  this  initiative  was garnered from the apex to the grassroots level and  the  required  trust  to  be  invested  in grassroots functionaries.    The replication of this model requires a strong  administrative  thrust  in  identifying the context-relevant loopholes in the system, as was done in the case of Odisha. Training and capacity building of the community is also an essential factor for the smooth deployment

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of  the  model  which  has  demonstrated  that procuring food materials at ration rates may be  difficult  but  is  possible  and  that contractors  can  be  removed  from  the  supply chain of SNP with beneficial results in terms of effective implementation.”

31. In our opinion, it was argued rightly that this Court was

misled while rendering the decision in  Shagun (supra) when it

was projected that it was mandatory to follow the recipes dated

28.7.2009 whereas Government of India itself has clarified that

it was only suggestive and was not the decision of Government of

India as pointed out in the letter dated 26.2.2010 extracted

above.

32. Apart from that after the decision has been rendered by this

Court in Shagun (supra) Act has been enacted and new policy has

been  framed  by  the  Government  of  India  and  thereafter  new

policies have been filed by the Government of India on 6.8.2018,

contained in the affidavit of the Secretary, Ministry of Home

and  Child  Development.   In  the  affidavit  filed  by  UOI

represented  by  the  Ministry  of  Women  and  Child  Development

following has been mentioned with respect to the supplementary

nutrition programme of the Government under the Integrated Child

Development Scheme:-

“SUPPLEMENTARY  NUTRITION  PROGRAMME  OF  THE GOVERNMENT UNDER THE ICDS SCHEME

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3. That  the  Anganwadi  Services  Scheme (earlier known as Integrated Child Development Services (hereinafter referred to as “ICDS”) aims at holistic development of Children (0-6 years)  and  Pregnant  Women  and  Lactating Mothers. It comprises of integrated services including  supplementary  nutrition, immunization,  health  check-ups,  referral services, pre-school non-formal-education, and Health & Nutrition Education.  4. That  ICDS  is  a  Centrally  Sponsored Scheme, wherein the Central Government in the Ministry  of  Women  and  Child  Development  is responsible  for  programme  planning  and  its share  of  operating  costs  and  the  State Governments/UT Administrations are responsible for  day-to-day  program  implementation including  Supplementary  Nutrition  Programme and management thereof.  5. That the Government of India provides its share of funds for administrative, operative and implementation costs as per cost sharing norms. For ICDS (General), the Central share is  90%  for  North-Eastern  (NE)  States  and Himalayan States and 60% for other States and UTs  with  the  legislature  and  100%  for  UTs without  the  legislature.  It  is  most respectfully submitted that for Supplementary Nutrition,  Government  of  India  bears  the expenditure on 50:50 basis for all States and UTs with the legislature and at 90:10 ratio for  NE  and  the  Himalayan  States.  For  UTs without a legislature, the entire expenditure is borne by Central Government.  6. That the Supplementary Nutrition Programme (SNP)  supplied  under  ICDS  Scheme  is  of  two types for different beneficiaries i.e.: a. Take Home Ration (THR) for Pregnant Women, Lactating  Mothers,  and  Children  in  the  age group of 6 months to 3 years; and  b. Hot Cooked Meal (HCM) for children in the age group of 3-6 years.” 7. That  it  is  necessary  to  clarify  that Supplementary Nutrition is not a full meal as in  the  case  of  Mid-Day  Meal.  SN  is  the difference in nutritional value of Recommended Dietary Allowance and Average Daily Intake to cover up the deficiency.  

26

8. That the HCM is served at the Anganwadi Centre (AWC) itself and is mostly prepared at the AWCs. Take Home Ration is served to the beneficiaries  once/twice  in  a  month  as regulated by the concerned State Government/UT Administration and is to be prepared as per the guidelines, instructions or orders issued by the Central Government from time to time and  the  orders  or  guidelines  issued  by  the Supreme Court or High Courts, to conform to the quality, hygiene and quantity standards. 9.  That  the  Central  Government  provides parameters of maintaining standard and quality of food (which include calorie, protein, food safety hygiene, and contamination). 10.  That  Food  &  Nutrition  Board  functioning under  the  Ministry  of  Women  and  Child Development  carries  out  periodic  checks  to ensure that prescribed standards are adhered to  and  quality  and  nutritive  value  of Supplementary  Nutrition  is  maintained.  Theré is  four  regional  laboratories  under  FNB  for carrying out the tests so as to ensure food safety  supplied  by  the  State  Governments. There  are  43  field  units  under  FNB  spread across the country to collect the sample and get food tested to ensure food quality. 11. That the Government of India issued the detailed  Operational  Guidelines  for  Food Safety and Hygiene in ICDS on 24.12.2013, copy whereof is enclosed herewith as Annexure R-1. These guidelines provide the broad contours of Food  Safety  measures  in  ICDS  and  include separate  sections  on  general  principles  for maintenance  of  cleanliness,  hygiene  at Anganwadi  centers  and  manufacturing  units, precautionary  measures,  handling  emergencies and cases of chemical poisoning and easy to follow simple protocols for food handling at different stages."

33. It has also been pointed out in the affidavit on behalf of

the  Government  of  India  dated  06.08.2018  that  the  guideline

prescribes the following measures for maintaining hygiene and

27

sanitation at the Anganwadi centers and ensuring food safety:-

a) Food Handling and Safety Measures for Hot Cooked meal and Morning Snack which includes transportation,  procurement,  storage,  food safety,  safety  while  cooking  and  serving, disposal  of  leftover,  monitoring,  and supervision, quality assurance, etc. b) Guidelines for Food Safety and Hygiene in Take  Home  Ration  which  includes  location, surrounding and building, drainage and waste disposal, washing facilities, storage, etc. c) Food Handling and Safety Measures for THR which  includes  procurement,  processing, packaging, quality assurance. d) To prevent contamination of Supplementary Nutrition, all equipment and utensils must be cleaned and disinfected. e)  Adequate  precautions  must  be  taken  to prevent the food item from being contaminated during  cleaning  or  disinfecting  of  rooms, equipment  or  utensil,  by  use  of  water, detergents or disinfectants. f)  Floors  and  drains  must  not  be  cleaned whilst the food is being prepared. g)  Detergents  and  disinfectants  must  be suitable for the purpose and any residues of these agents on a surface which may come in contact  with  food  item  must  be  removed  by thorough rinsing with potable water before the area or equipment is used again. h) Immediately at the end of the day's work, floors  (including  drains),  structures  and walls  of  food  handling  areas  must  be thoroughly cleaned.  i) Toilets must be kept clean and tidy at all times. j)  Provision  of  safe  disposal  of  stool  and wastes must be made. k) Nearby outside area/surroundings must also be kept clean and tidy. l)  Regular  pest  control  measures  should  be adopted  at  the  Anganwadi  centers.  However, before  pesticides  are  applied,  care  must  be taken to protect people, food, equipment and utensils from contamination. m)  Substances  which  could  contaminate  food

28

must not be used or stored in food handling areas  n)  The  personal  hygiene  standard  of  food handlers at kitchen, AWW/AWH includes a high standard of personal cleanliness, freedom from infectious diseases and a sufficient standard of hygiene. o) The state may ensure that AWWs/AWHs are in good  health  and  all  staff  enrolled  for  the supply  of  food  items  must  be  adequately trained  in  good  hygiene  practices.  p)  Hands must  always  be  washed  before  entering  the foods  handling  area  immediately  after  using the  toilet,  after  handling  contaminated material and whenever necessary.

34.  It  has  also  been  pointed  out  by  the  Secretary  in  the

affidavit  dated  06.08.2018  that  Supplementary  Nutritional

Programme  (for  short  ‘SNP')  is  implemented,  managed  and

controlled  by  the  respective  States/UTs,  it  is  at  their

discretion  to  decide  items  of  food  to  be  supplied  under  the

supplementary  nutrition  as  the  local  food  habits,  regional

preferences and availability of food in the local area vary from

place to place.  However, this is to be done by keeping in view

the  overall  guidelines,  nutritional  norms  and  food  safety

standards, a copy of some of the suggestive recipes prepared by

the National Institute of Nutrition, Hyderabad, has been placed

on record as Annexure R-2.

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

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panjeeri,  Besan-Suji  Ladus,  Paushtik  Barfi,  Paushtik  mathri,

Amylase  Rice  Energy  Food,  Wheat  Soya  Laddu,  Nutro  Soya  Corn

Chikkis, as specified in Annexure R2.

36. However, it would be for the concerned State or the Union

Territory to take an action on the recipes they want as per

local requirement, the aforesaid recipe is only suggestive, as

specified  in  the  affidavit  of  06.08.2018  of  the  Secretary

Government of India of the concerned department itself.

37. It has also been pointed out that under THR normally dry

mixtures are supplied such as Daliya, Khichdi etc.  However,

some other States are giving in some other forms.  Most of the

items do not require a sophisticated technique of manufacturing

process  and  the  self-help  groups/Mahila  Mandals  are  fully

equipped and competent to supply the said food.  The concerned

Authorities of the State Government are expected to undertake

all  such  steps  which  becomes  necessary  that  the  self-help

groups/Mahila Mandals and such other similar organizations are

allowed to meaningfully participate in providing HCM and THR,

all over the country and terms and conditions of the tenders

etc.,  should  not  be  framed  in  such  a  manner  that  they  get

excluded from participating itself in such tenders.  It has also

been pointed out that with respect to management, preparation,

supply, monitoring and service of the supplementary nutrition

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under the Integrated Child Development, Scheme the policy of the

Central Government is guided by the provisions contained in the

Office Memorandum dated 24.02.2009 of the Ministry concerned and

the  decision  of  this  Court  in  PUCL  v.  Union  of  India dated

22.04.2009 in W.P.(C) No.196/2001 to follow and implement the

guidelines.

38. Sections  4,  5  and  6  of  the  Act  of  2013  are  extracted

hereunder:-

“4. Nutritional support to pregnant women and lactating mothers.- Subject to such schemes as may be framed by the Central Government, every pregnant woman and lactating mother shall be entitled to—    (a) meal, free of charge, during pregnancy and six months after the childbirth, through the  local  Anganwadi,  so  as  to  meet  the nutritional  standards  specified  in  Schedule II; and     (b)  maternity  benefit  of  not  less  than rupees six thousand, in such installments as may be prescribed by the Central Government:   

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

5.  Nutritional  support  to  children.-  (1) Subject to the provisions contained in clause (b), every child up to the age of fourteen years  shall  have  the  following  entitlements for his nutritional needs, namely:—   (a) in the case of children in the age group of six months to six years, age appropriate meal,  free  of  charge,  through  the  local

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Anganwadi  so  as  to  meet  the  nutritional standards specified in Schedule II:     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  the  age  group  of  six  to fourteen years, whichever is applicable, one mid-day meal, free of charge, everyday, except on  school  holidays,  in  all  schools  run  by local bodies, Government and Government aided schools,  so  as  to  meet  the  nutritional standards specified in Schedule II. (2) Every school, referred to in clause (b) of sub-section  (1),  and  Anganwadi  shall  have facilities for cooking meals, drinking water and sanitation:

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

6.  Prevention  and  management  of  child malnutrition.-  The  State  Government  shall, through  the  local  Anganwadi,  identify  and provide meals, free of charge, to children who suffer from malnutrition, so as to meet the nutritional  standards;  specified  in  Schedule II."

39. Calorie  requirement  has  also  been  pointed  out  in  the

affidavit dated 06.08.2018 in the tabular form:  

S. No. Category Type of meal Calories  (Kcal)

Protein  (g)

1. Children  (6 months to 3 years)

Take Home Ration 500 12-15

2. Children  (3 to 6 years)

Morning Snacks  and Hot Cooked  Meal

500 12-15

3. Children  (6 months to 6 years) who are

Take Home Ration 800 20-25

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malnourished

4. Pregnant women and Lactating  Mothers

Take Home Ration 600 18-20

40. It has also been pointed out that before enactment of the

Act of 2013, the National Food Security Ordinance was issued on

5.7.2013.  Note 1 below Schedule II of the said Ordinance states

"Energy  Dense  Food  fortified  with  micronutrients  as  per  50

percent  of  Recommended  Dietary  Allowance".  However,  the

Parliament while discussing and passing the Act of 2013 deleted

the above provision thereby making the preparation of THR in the

simplest way.

41. In exercise of powers, under Section 39 of the Act of 2013,

the Central Government has framed the Rules after consultation

with the State Government and Union Territories, experts and the

civil society notified the Rules relating to Sections 4, 5 & 6

of  the  Act  of  2013 called  as  Supplementary  Nutritional  (under

ICDS)  Rules,  2015  on  08.06.2015,  which  have  been  amended  on

20.02.2017.

42.  Rule  7  of  the  modified  Rules  is  relevant,  the  same  is

extracted hereunder:-

“7. Preparation of meal and maintenance of its standard and quality.-  (1)  The  procurement  of  food  items  and preparation of meals by the State Governments and the Union Territory Administrations shall

33

be  in  accordance  with  the  guidelines, instructions or orders issued by the Central Government  from  time  to  time  in  conformity with  various  directions  issued  by  Supreme Court of India, the provisions of Schedule II to  the  Act  and  any  other  law  for  the  time being in force. (2)  The  State  Governments  and  the  Union territory Administrations, with the support of Food and Nutrition Board (hereinafter referred to as the Board), shall ensure the quality of supplementary nutrition with reference to the norms  of  food  safety,  as  well  as  food composition. (3) The Supplementary Nutrition shall conform to  the  standards  laid  down  under  the provisions  of  the  Food  Safety  and  Standards Act, 2006 (34 of 2006) to ensure consistent quality  and  nutritive  value  of  the intervention per serving and it shall also be ensured  that  the  meal  is  prepared  in  the kitchen  having  adequate  sanitation  and  safe drinking  water  to  maintain  hygienic conditions. (4)  It  shall  be  the  responsibility  of  the concerned District Programme Officer and the Child  Development  Project  Officer  under  the Anganwadi  Services  (Integrated  Child Development Services) to ensure the quality of supplementary nutrition with reference to the norms  of  food  safety,  as  well  as  food composition. (5) The Board, in collaboration with the State Governments  and  the  Union  territory Administrations,  shall  carry  out  periodic checks  and  test  the  meal  or  get  it  tested through  the  Government  Food  Research Laboratories accredited or recognized by any law  for  the  time  being  in  force,  so  as  to ensure  that  the  meal  meets  with  the nutritional standards and quality specified in Schedule II of the Act. (6) Similarly, the officers, as authorized by the State Governments or the Union territory Administrations,  shall  also  conduct  surprise checks and draw samples and get them tested through  the  above  laboratories  to  ensure quality and nutrient value of the meal.

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

43. Rule 9 of the modified Rules is also relevant, the same is

also extracted hereunder:-

9.  Responsibility  to  monitor  and  review arrangement for supplementary nutrition.- The respective  State  Governments  and  Union Territory Administrations, and the Monitoring and Review Committees at the National, State, District,  Block  and  Anganwadi  levels, constituted by the Central Government in the Ministry of Women and Child Development from time to time, shall be responsible to monitor and  review  the  status  of  arrangement  for Supplementary Nutrition, convergence with the line  departments  to  ensure  water  and sanitation  facilities,  ensure  regular functioning  of  Anganwadi  centres,  ensure regular supply of Supplementary Nutrition at Anganwadi centres without disruptions and use of  iodised  or  iron-fortified  iodised  salts, ensure  monitoring  and  supervision  visits  by officials  at  different  levels  as  per  norms, method  of  delivery  of  supplementary  food  at Anganwadi  centres,  engagement  of  Self  Help Groups,  ensure  supply  and  quality  of Supplementary Nutrition through them and all other  issues  relating  to  the  above,  as  per their roles defined in the guidelines issued by the Central Government in the Ministry of Women and Child Development from time to time:   Provided that till the engagement of Self Help  Groups,  the  supply  of  Supplementary Nutrition  shall  be  ensured  from  such  other sources or approved agencies in terms of the existing rules and regulations notified by the Central Government and the State Governments or Union Territory Administrations.  

44. It has been also pointed out in the affidavit filed by the

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Union of India that the Government of India has launched the

POSHAN  Abhiyaan  on  08.03.2018  with  the  objective  to

comprehensively  address  the  problem  of  stunting,  under-

nutrition, low birth weight, and anemia in a time-bound manner

children and Pregnant & Lactating Mother as per the following

targets:-

S.  No.

Objective Target

1 Prevent and reduce Stunting in  children (0-6 years)

By 2% p.a.

2 Prevent and reduce under-nutrition  (underweight prevalence) in children  (0-6 years)

By 2% p.a.

3 Reduce the prevalence of anemia among young Children (6-59 months), Women  and Adolescent Girls in the age group of 15-49 years

By 3% p.a.

4 Reduce Low Birth Weight (LBW) By 2% p.a.

45. Further  instructions  have  been  issued  vide  letter  dated

10.07.2017 with respect to meet the requirement of fortification

of food with micro-nutrient, the Union of India has mandated the

use of double fortified salt (Iodine & Iron) and fortified oil

(Vitamin A & D) and fortified Wheat flour (Iron, Folic Acid and

Vitamin B-12) for preparation of SNP under the ICDS. In POSHAN

Abhiyaan,  a  National  Council  on  India’s  Nutrition  Challenges

which  is  an  apex  body  to  give  policy  direction,  review  and

effective coordination and convergence between Ministries having

36

a sectoral responsibility was constituted on 03.01.2018 with the

following Chairperson/Members:-

a. Vice Chairman, NITI Aayog …

Chairperson

b. Minister, Women & Child Development … Member

c. Minister, Health & Family Welfare … Member

d. Minister, Drinking Water & Sanitation … Member

e. Minister, Rural Development … Member

f. Minister, Tribal Affairs … Member

g. Minister, Panchayati Raj … Member

h. Minister, Consumer Affair & Food … Member

i. Minister of State of, Finance … Member

j. Minister of State of, Human Resource  Development … Member

k. Minister of State Urban Development … Member  

l. Minister of State Information & Broadcasting … Member

m. Minister of State Environment, Forest & Climate Change …  

Member

n. State Chief Ministers of 5 States …  

Member

(Bihar, UP, Rajasthan, Tamil Nadu &

Chhattisgarh on rotation for 2 years)

o. Member, Health & Nutrition, NITI Aayog …  

Member

p. Secretary, Health Research & DG, ICMR …  

Member

q. Secretary, MWCD … Member-

Secretary

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Secretaries of the line Ministries as Special Invitees. DCs/DMs from 10 districts with the highest prevalence of child stunting (to be co-opted)

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

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

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

47. The National Council of India, pursuant to the meeting held

on  18.04.2018  discussed  the  issue  of  Hot  Cooked  meals  for

children in the age group of 3 years to 6 years and Take Home

Ration (THR) for the children in the age group of 6 months to 3

years and Pregnant Women and Lactating Mother as decided by the

State Government in conformity with the the Act of 2013 and the

Supplementary Nutrition (Under the Integrated Child Development

Services Scheme) Rules, 2015, which have been amended in 2017.

Minutes  have  been  placed  on  record  as  Annexure  R-10  to  the

affidavit.

48. The  issues  discussed  and  the  directions  thereon  are

contained in paragraph 28 of the Minutes of Meeting, which are

extracted hereunder:-

“28. The Issue of Hot Cooked meals and THR at Aanganwadi was discussed and deliberated upon. Secretary, MWCD brought out that help of SHGs and  mothers  (whose  children  were  in  the

38

Aanganwadi) was being sought in preparing the meals. 17 States were following this approach and  the  menu  had  been  fixed  based  on  the demographic  profile  as  well  as  the availability of local resources. The point was also  stressed  upon  by  Hon'ble  Minister  of CAF&PD. It was agreed that the mothers should be involved for the preparation of the meals to  ensure  quality  and  encourage  Jan bhagidari."

49.  Ultimately,  it  has  been  pointed  out  in  the  affidavit  on

behalf of the Government of India, Ministry of Women and Child

Welfare that the policy of the Government of India vis-a-vis the

Supplementary  Nutrition  under  the  ICDS  Scheme  based  on  the

Nutritional  Norms  on  24.02.09  read  with  the  Act  of  2013  and

Supplementary Nutrition (Under the Integrated Child Development

Services Scheme) Rules, 2015, which have been amended in 2017

and the guidelines issued by the Union of India.  The following

points broadly emerge:-

“a.  Preparation of Hot Cooked Meal at the AWC itself where there should be the provision of the kitchen, water, and sanitation as per the provisions of Section 5(1) of the NFSA; b. Supply  of  Take  Home  Ration  meant  for children 6 months - 3 years age and P&LM from the  Self  Help  Groups  as  per  Schedule-II  of NFSA, 2013 and Rule-9 of the SNP Rules, 2017; C.  Maintenance of quality, cleanliness, and hygiene as per the provisions of Section-7 of SNP Rules, 2017 and the Government of India guidelines issued in July 2013; d.  Protein and the calorific requirement to be met as per the provisions of Schedule-II of NFSA, 2013; e. Fortification of food ingredients of SNP under  ICDS  as  per  MWCD's  letter  dated

39

10.07.2017; f. States/UTs to decide recipes keeping in view  the  nutritional  requirement  prescribed food habits and availability of local food.”

50.  When  we  consider  the  NIT  in  question  issued  by  the

Government of Maharashtra we are of the considered opinion that

it was not in the spirit of the orders passed by this Court as

the imposition of the condition of 25% of turnover during any

one of the last three financial years in the various districts

by insisting for the performance for supplying at least annual

average  value  equal  to  25%  of  required  turnover  of  applied

sectors. As to the formation of  applied sectors it is apparent

from the tender notice that each of the districts has been taken

as a unit and yearly expenditure, for example, Ahmednagar is

Rs.31,78,87,200/- yearly, 25% would come to Rs.7,94,71,800/- and

so on district-wise which ranges from Rs. 1 Crore to more than

Rs.10 Crores in various districts.  Thus, we find force in the

submission that by virtue of the imposition of the aforesaid

condition only big players have been left in the field and that

is not in tune with the spirit of the Act and the orders passed

by this Court as well as the policy framed by the Government of

India,  as  projected  in  the  aforesaid  affidavit  dated

06.08.2018.  Thus, the tender conditions cannot be held to be

valid as they were arbitrarily fixed and it was fairly conceded

by Mr. Nadkarni, learned Additional Solicitor General appearing

40

for the State of Maharashtra as well as by Mr. Vijay Thora,

learned senior counsel, appearing for the State of Maharashtra

that they have to abide by the conditions as imposed by the

Union of India and the policy framed by the Union of India as

projected in the affidavit dated 06.08.2018.

51.  Tender  notice  which  has  been  issued  also  falls  down,  we

direct  the  tenders  to  be  invited  afresh,  within  four  weeks,

strictly  as  per  the  policy  and  observations  made  in  this

judgment.

52. It  has  also  been  found  that  fixing  of  unit  area  as  a

district several players have been effectively ousted from the

field, it would be appropriate to form groups of the smaller

area such as at panchayat or group of panchayats etc., within

the District so that the real intention behind the policy is

fulfilled in its real sense and supply should be decentralized

as  much  as  possible  as  it  is  not  for  the  big

players/industrialists in the field to cater to the needs of the

Scheme as they have usurped in past.  It is open to the State

Government  to  make  alternative  arrangement  and  they  are

restrained from continuing the existing system of supply in the

interregnum period.  This decision as to alternative arrangement

should be taken within ten days.  

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53. The appeals and writ petition are, accordingly, disposed of.

54. The applications for impleadment/intervention are allowed to

the extent of intervention and were heard and disposed of.

55. Pending application(s), if any, shall stand disposed of.

.....................J. [ARUN MISHRA]

.....................J. [DEEPAK GUPTA]

NEW DELHI; FEBRUARY 26, 2019.

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