Full Judgment Text
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CASE NO.:
Writ Petition (civil) 232 of 2006
PETITIONER:
Ekta Shakti Foundation
RESPONDENT:
Govt. of NCT of Delhi
DATE OF JUDGMENT: 17/07/2006
BENCH:
ARIJIT PASAYAT & C.K. THAKKER
JUDGMENT:
J U D G M E N T
With
W.P.(C) No. 233/2006 and W.P. (C) No. 234/2006
ARIJIT PASAYAT, J.
These three writ petitions, filed under Article 32 of the
Constitution of India, 1950 (in short the ’Constitution’),
question legality of certain terms in inviting offers for
implementation of the scheme called the "Detailed Scheme for
Capacity Building of Self Help Groups to Prepare and Supply
Supplementary Nutrition under the Integrated Child
Development Service (in short the ’ICDS’) Programme."
By order dated 7.10.2004 in Writ Petition (C) No. 196 of
2001 (People’s Union for Liberties v. Union of India and
Others) this Court observed as under :-
"We have gone through the fifth (August,
2004) report of the Commissioners x x x.
Further, the problem of using contractors for
procurement has also been mentioned in the
report suggesting that it should be done by
agencies and officers at the government
level."
The following directions were issued:
"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."
ICDS is perhaps the largest of all the food and
supplementation programmes in the world which was initiated
in the year 1975 with various objectives as per the document
prepared by the Planning Commission. It was also noted by
this Court that there was a problem in using contractors for
procurement and in the report of the Commissioners it was
suggested that it should be done by agencies and officers at
the Government level. In that context, it was noted by this
Court as follows:
"The Report also mentions that some of AWCS
are operating from private houses including
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those of grain dealers which it is suggested is
not a healthy way of working as it is likely to
increase the chances of pilferage of the grain
etc. We are happy to note that as stated in the
affidavit of State of Uttar Pradesh, it has made
efforts to shift AWCS to primary schools. It is
a good example for other States to follow. The
Report also mentions about the attempt to
centralize the procurements in some of the
States which has many fallouts. It has been
explained in one of the affidavit that the
procurements is at district level and not at the
State level. Further, the problem of using
contractors for procurement has also been
mentioned in the Report suggesting that it
should be done by agencies and officers at the
Government level. These are only by way of
illustrations as to facts and figures given in
Section 1 of the Report relating to Integrated
Child Development Services."
In accordance with this Court’s order the Delhi
Government framed a detailed scheme. The objective as
appears from the scheme is involvement of Self Help Groups
(in short the ’SHGs’). The Scheme envisaged that within 27
months SHGs would be framed and would completely take
over the running of the Anganwadis from the NGOs. Keeping
in view the observations made by this Court about the
elimination of the contractors it was stipulated that registered
non-profit organizations with at least 3 years experience were
eligible to apply. Accordingly an advertisement titled "ICDS \026
Expression of Interest" was placed in newspapers.
Writ petitioners question the rational of the stipulation
regarding three years experience of working as a non profit
organization or public trust registered under the Indian
Societies Registration Act, 1860 (in short the ’Societies
Act’/’Public Trust Act’). According to them, this condition does
not in any way further the objectives and on the other hand
keeps out genuine organizations. It is pointed out that though
the writ petitioners were registered less than three years back,
their functionaries have varied experience for long period.
Prayer is made for a declaration that the three years period
stipulated is irrational, contrary to the objects of the scheme
and should be declared to be invalid. The eligibility criteria
according to them should be on the basis of actual experience
of the persons who are in charge of the legal entities and not
the time period of three years as a registered entity. It is
submitted that the three writ petitioners have taken various
projects and have wide experience and to keep them out would
be giving premium to inexperience.
Per contra, learned counsel for the Government of NCT of
Delhi, submitted that the Government set up a committee of
experts consisting not only of senior Government officials but
also other experts such as a representatives from the Nutrition
Department of Lady Irwin College, a representative of Care
India, one of most reputed NGOs. and a representative of the
Commissioner who was appointed by this Court in the PUCL
case. The Committee scrutinize the applications (117 in
number) and short listed 60 entities and out of them 9 have
been selected and out of them in the case of one enquiry is
being conducted to verify the credentials. Committee was of
the view that the three writ petitioners have not been
registered for a period of three years and, therefore, were
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ineligible. Writ petitioners have raised a grievance that even
though they have not registered for 3 years, the experience of
such individuals connected with the organization should be
treated as experience of the organization. The Committee
examined this plea and noted as follows:
"It was pointed to the Committee that
some NPOs were questioning their ineligibility
on the grounds that they had more than three
years experience even if they were registered as
society/trust for less than three years. The
Committee confirming the criteria that no NPO
which had been registered as a society for less
than three years could be considered under
the scheme since the experience which the
said organization could have had as an
unregistered organization could not be counted
for the purpose of this scheme and that any
relaxation of this account could lead to back-
door entry of contractors who may have got
themselves registered as NGO recently only to
gain entry into such schemes without have
social objectives of women empowerment as
the actual perspective for their work."
It has been indicated in the counter affidavit filed that
the writ petitioners have not come with clean hands. They are
catering contractors having their own commercial interest and
are now trying to take up the project in the garb of NGO. Many
erstwhile contractors who have now been barred by this
Court’s order from entering ICG programme have registered
themselves as NGO entities to overreach the order of this
Court. The writ petitioners, it is to be noted, had approached
the Delhi High Court. The writ petitions were dismissed as
withdrawn in view of submissions made that this Court shall
be approached.
The eligibility criteria which form the subject matter of
challenge read as follows:
"Must be a non-profit organization or public
trust registered under the Indian Societies
Registration Act, 1860/ Public Trust Act.
At least 3 years experience of working in a
relevant field such as Child Development,
Nutrition, Formation of SHGs, Supplementary
Nutrition, Home Counseling, Nutrition
Counseling, Pre-School Activities and women
empowerment related works."
At this juncture we may take note of a submission by
learned counsel for the writ petitioners. It was submitted that
the writ petitioners were registered before this Court’s order
and therefore, it cannot be said that they had registered only
to overreach this Court’s order. It is pointed out by learned
counsel for the respondent that the PUCL case was being
heard for a long time, and various details were being called for.
The intention of this Court to keep contractors out of the
picture was clearly evident. Ekta Shakti Foundation (Writ
Petition No. 232 of 2006) was registered on 21.11.2003, Surya
Society (Writ Petition No. 233 of 2006) was registered on
5.12.2003 and Jay Gee Society (Writ Petition No. 234 of 2006)
was registered on 25.3.2004.
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While exercising the power of judicial review of
administrative action, the Court is not the appellate authority
and the Constitution does not permit the Court to direct or
advise the executive in matter of policy or to sermonize any
matter which under the Constitution lies within the sphere of
the Legislature or the executive, provided these authorities do
not transgress their constitutional limits or statutory power.
(See Ashif Hamid v. State of J. & K. (AIR 1989 SC 1899), Shri
Sitaram Sugar Co. v. Union of India (AIR 1990 SC 1277). The
scope of judicial enquiry is confined to the question whether
the decision taken by the Government is against any statutory
provisions or is violative of the fundamental rights of the
citizens or is opposed to the provisions of the Constitution.
Thus, the position is that even if the decision taken by the
Government does not appear to be agreeable to the Court it
cannot interfere.
The correctness of the reasons which prompted the
Government in decision making, taking one course of action
instead of another is not a matter of concern in judicial review
and the Court is not the appropriate forum for such
investigation.
The policy decision must be left to the Government as it
alone can adopt which policy should be adopted after
considering all the points from different angles. In matter of
policy decisions or exercise of discretion by the Government so
long as the infringement of fundamental right is not shown
Courts will have no occasion to interfere and the Court will not
and should not substitute its own judgment for the judgment
of the executive in such matters. In assessing the propriety of
a decision of the Government the Court cannot interfere even
if a second view is possible from that of the Government.
The Court should constantly remind itself of what the
Supreme Court of the United States said in Metropolis Theatre
Company v. City of Chicago (1912) 57 L Ed 730. "The
problems of Government are practical ones and may justify, if
they do not require, rough accommodations, illogical it may
be, and unscientific. But even such criticism should not be
hastily expressed. What is the best is not always discernible,
the wisdom of any choice may be disputed or condemned.
Mere errors of government are not subject to our judicial
review. [See: State of Orissa and others v. Gopinath Dash and
Others (2005) 13 SCC 495].
It was submitted that in some other cases, a departure
has been made. No definite material has been placed in that
regard. In any event, Article 14 has no application or
justification to legitimize an illegal and illegitimate action.
Article 14 proceeds on the premise that a citizen has legal and
valid right enforceable at law and persons having similar right
and persons similarly circumstanced, cannot be denied of the
benefit thereof. Such person cannot be discriminated to deny
the similar benefit. The rational relationship and legal back up
are the foundations to invoke the doctrine of equality in case
of persons similarly situated. If some person derived benefit by
illegality and had escaped from the clutches of law, similar
persons cannot plead nor court can countenance that benefit
had from infraction of law and must be allowed to be retained.
Can one illegality be compounded by permitting similar illegal
or illegitimate or ultra vires acts? Answer is obviously no.
In Coromandel Fertilizers Ltd. v. Union of India and Ors.,
[(1984) Supp SCC 457], it was held in paragraph 13, that
wrong decision in favour of any party does not entitle any
other party to claim the benefit on the basis of the wrong
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decision. In that case, one of the items was excluded from the
schedule, by wrong decision, from its purview. It was
contended that authorities could not deny benefit to the
appellant, since he stood on the same footing with excluded
company. Article 14, therefore, was pressed into service. This
Court had held that even if the grievance of the appellant was
well founded, it did not entitle the appellant to claim the
benefit of the notification. A wrong decision in favour of any
particular party does not entitle another party to claim the
benefit on the basis of the wrong decision. Therefore, the claim
for exemption on the anvil of Article 14 was rejected.
If the order in favour of the other person is found to be
contrary to law or not warranted in the facts and
circumstances of his case, it is obvious that such illegal or
unwarranted order could not be made the basis of issuing a
writ compelling the respondent-authority to repeat the
illegality to cause another unwarranted order. The
extraordinary and discretionary power of the High Court under
Article 226 cannot be exercised for such a purpose. [See :
Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal
Jain and Others [(1997) 1 SCC 35].
The concept of equality as envisaged under Article 14 of
the Constitution is a positive concept which cannot be
enforced in a negative manner. When any authority is shown
to have committed any illegality or irregularity in favour of any
individual or group of individuals other cannot claim the same
illegality or irregularity on ground of denial thereof to them.
Similarly wrong judgment passed in favour of one individual
does not entitle others to claim similar benefits. In this regard
this Court in Gursharan Singh & Ors. v. NDMC & Ors. [1996
(2) SCC 459] held that citizens have assumed wrong notions
regarding the scope of Article 14 of the Constitution which
guarantees equality before law to all citizens. Benefits
extended to some persons in an irregular or illegal manner
cannot be claimed by a citizen on the plea of equality as
enshrined in Article14 of the Constitution by way of writ
petition filed in the High Court. The Court observed:
"Neither Article 14 of the Constitution
conceives within the equality clause this
concept nor Article 226 empowers the High
Court to enforce such claim of equality before
law. If such claims are enforced, it shall
amount to directing to continue and
perpetuate an illegal procedure or an illegal
order for extending similar benefits to others.
Before a claim based on equality clause is
upheld, it must be established by the
petitioner that his claim being just and legal,
has been denied to him, while it has been
extended to others and in this process there
has been a discrimination."
In Jaipur Development Authority’s case (supra) this
Court considered the scope of Article 14 of the Constitution
and reiterated its earlier position regarding the concept of
equality holding:
"Suffice it to hold that the illegal allotment
founded upon ultra vires and illegal policy of
allotment made to some other persons
wrongly, would not form a legal premise to
ensure it to the respondent or to repeat or
perpetuate such illegal order, nor could it be
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legalised. In other words, judicial process
cannot be abused to perpetuate the illegalities.
Thus considered, we hold that the High Court
was clearly in error in directing the appellants
to allot the land to the respondents."
In State of Haryana & Ors. v. Ram Kumar Mann [1997
(3) SCC 321] this Court observed:
"The doctrine of discrimination is founded
upon existence of an enforceable right. He was
discriminated and denied equality as some
similarly situated persons had been given the
same relief. Article 14 would apply only when
invidious discrimination is meted out to
equals and similarly circumstanced
without any rational basis or relationship in
that behalf. The respondent has no right,
whatsoever and cannot be given the relief
wrongly given to them, i.e., benefit of
withdrawal of resignation. The High Court was
wholly wrong in reaching the conclusion that
there was invidious discrimination. If we
cannot allow a wrong to perpetrate, an
employee, after committing mis-appropriation
of money, is dismissed from service and
subsequently that order is withdrawn and he
is reinstated into the service. Can a similarly
Circumstanced person claim equality under
Section 14 for Reinstatement? The answer is
obviously "No".
In a converse case, in the first instance, one may be
wrong but the wrong order cannot be the foundation for
claiming equality for enforcement of the same order. As stated
earlier, his right must be founded upon enforceable right to
entitle him to the equality treatment for enforcement thereof.
A wrong decision by the Government does not give a right to
enforce the wrong order and claim parity or equality. Two
wrongs can never make a right". [See : State of Bihar and
others v. Kameshwar Prasad Singh and Another [(2000) 9 SCC
94].
So far as the allotment to non-eligible societies is
concerned even if it is accepted, though specifically denied by
the Authority, to be true that does not confer any right on the
appellants. Two wrongs do not make one right. A party cannot
claim that since something wrong has been done in another
case direction should be given for doing another wrong. It
would not be setting a wrong right, but would be perpetuating
another wrong. In such matters, there is no discrimination
involved. The concept of equal treatment on the logic of Article
14 of the Constitution cannot be pressed into service in such
cases. What the concept of equal treatment presupposes is
existence of similar legal foothold. It does not countenance
repetition of a wrong action to bring both wrongs on a par.
Even if hypothetically it is accepted that a wrong has been
committed in some other cases by introducing a concept of
negative equality the appellant cannot strengthen its case. It
has to establish strength of its case on some other basis and
not by claiming negative equality. (See Union of India v.
International Trading Co. [(2003) 5 SCC 437].
It is not the case of the petitioners that with any oblique
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motive the eligibility criteria has been stipulated. On the
contrary after analyzing the issues, a Committee appointed by
the respondent had suggested the norms and the schemes was
accordingly prepared. We do not find any irrationality much
less something which is totally out of context to justify
interference.
Clause 4 of the Scheme (Broad Description of Proposed
arrangement) indicates that in order to implement this Court’s
order there was desirability to discourage contractors and
involve SSG through non-profit organisations. As the scheme
itself provides, the intention is to make the SSGs. fully
equipped within a certain period after these NGOs. go out of
the picture and State Government steps in.
In the aforesaid background we do not find anything
illicit in the impugned criteria to warrant interference.
The writ petitions fail and are, therefore, dismissed. No
costs.