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2003 DIGILAW 1419 (JHR)

Manoj Kumar v. State Of Jharkhand

2003-12-24

P.K.BALASUBRAMANYAN, TAPEN SEN

body2003
JUDGMENT P.K. Balasubramanyan, C.J. 1. Heard senior counsel for the petitioner, counsel for the intervener and the learned Advocate General on behalf of the respondents. 2. This claimed public interest litigation seeks to open a new front. It Is some sort of a qula timet action since what is asserted on behalf of the petitioner is that he was trying to prevent a wrong that he genuinely apprehends would affect public interest. The petitioner challenges a notice inviting tenders issued by the Government of Jharkhand, Department of School Welfare, Women and Child Development. It is as part of a supplementary nutrition programme and the work tendered for is the supply of "Ready to Eat Energy Food (Poshahaar)" for the integrated Child Development Scheme (ICDS) projects in the State of Jharkhand. What is complained of is that the tender notification lacks clarity, prescribes qualifications which are unscientific and unnatural; that it is discriminatory and that it is just and proper to direct rectification of these defects now itself, so that future litigations arising out of the award of the contract could be avoided. The writ petition is, of course, opposed by the Advocate General, but the intervener seeks to support it and adds on his own that the confining of the supplies to powder form only, is unscientific and may itself pose a health hazard. 3. In writ petition (C) No. 196 of 2001, the Supreme Court issued certain directions in the interests of public distribution. Social Welfare, Child Care, Maternity Benefits and other welfare measures. As far as the Integrated Development Scheme is concerned, the Supreme Court issued the following directions: "6. 3. In writ petition (C) No. 196 of 2001, the Supreme Court issued certain directions in the interests of public distribution. Social Welfare, Child Care, Maternity Benefits and other welfare measures. As far as the Integrated Development Scheme is concerned, the Supreme Court issued the following directions: "6. Integrated Child Development Scheme (ICDS)-(i) We direct the State Governments/Union Territories to implement the Integrated Child Development Scheme (ICDS) in full and to ensure that every ICDS disbursing centre in the country shall provide as under: (a) Each child up to 6 years of age to get 300 calories and 8-10 grams of protein; (b) Each adolescent girl to get 500 calories and 20-25 grams of protein; (c) Each pregnant woman and each nursing mother to get 500 calories and 20-25 grams of protein; (d) Each malnourished child to get 600 calories and 16-20 grams of protein; (e) Have a disbursement centre in every settlement, (ii) It is the case of the Union of India that there has been full compliance of its obligations, if any, under the Scheme. However, if any of the States gives a specific instance of non-compliance, the Union of India will do the needful within the framework of the Scheme." 4. It is pursuant to this that the State of Jharkhand has taken up the Scheme and issued the notice inviting tenders in that behalf. In that notification, it is provided that the "Ready to Eat Energy Food (Poshahaar)" should be supplied in powder form, palatable, easily digestible and acceptable to children and the pregnant and lactating women and should not contain anything harmful to children and women. It also stipulates the contents of the food articles and Insists that after feeding the raw materials, the processing must be fully automatic till the packing of the finished products and there should be no human interaction in the process. Shelf life of the Energy Food should not be less than 90 days. As per the general terms and conditions-stipulated, the bidder should have an Energy Food manufacturing unit in the State of Jharkhand, or in a neighbouring State. The tenderer should have a turnover Energy Food of not less than Rs. 25 crores each year for the past two years. The bidder should have supplied Energy Food to any Government organization for at least one year during the previous three years. The tenderer should have a turnover Energy Food of not less than Rs. 25 crores each year for the past two years. The bidder should have supplied Energy Food to any Government organization for at least one year during the previous three years. He should have at least two years experience in the production, processing and distribution of Energy Food. He should have to enclose a No Dues Certificate from the Income Tax Department for the assessment year 2002-2003 and also a certificate of registration from the Commercial Taxes/ Sales Tax Department of the Government of Jharkhand. He should show his licence for the manufacturing of Energy Food products, and a licence obtained under the Prevention of Food Adulteration Act and also a valid factory licence. He should possess an ISO-9002 Certificate. He should have spare production capacity of 6880 metric tonne of Energy Foodper month. He should have In-house quality control facility. He should not have been convicted under the Prevention of Food Adulteration Act for the past 10 years and the bidder must be financially sound. He had also to produce along with the technical bid, the literature of the Energy Food to be produced, indication its composition, caloric value, protein, fat, vitamins and mineral contents. He must also produce the details of the process of production, mode of packing and other relevant details of the products along with two samples of the product duly analyzed, with a test report from one of the laboratories referred to in the notice. The Director, Social Welfare or any other officer authorized by the Director was entitled to inspect the production plant at any time and he would be free to get the raw materials or finished products analyzed and tested in any public laboratory or recognized laboratory. The right to inspect was not a restricted one and the goods could be rejected for want of quality even after the foods arrived at the destination. 5. According to the learned counsel for the petitioner, the insistence that the bidder should have an Energy Food manufacturing unit in the State of Jharkhand or any neighbouring State was unreasonable. It was also vague for the reason that what was a neighbouring State was not defined in the notice. 5. According to the learned counsel for the petitioner, the insistence that the bidder should have an Energy Food manufacturing unit in the State of Jharkhand or any neighbouring State was unreasonable. It was also vague for the reason that what was a neighbouring State was not defined in the notice. We need not consider this argument in detail since at the hearing, the Learned Advocate General submitted on behalf of the respondents that the said condition has been deleted by a corrigendum notice Issued in that behalf. We, therefore, need only proceed on the basis that there is no insistence in the notice now that the tenderer should have a manufacturing unit within the State of Jharkhand. In this context, learned counsel for the petitioner pointed out that the insistence on production of a certificate of registration from the Commercial taxes/ Sales Tax Department, Jharkhand was also unreasonable or meaningless and it would mean that a bidder from outside the State was barred from submitting his tender. Obviously, a manufacturer who is located out side the State of Jharkhand can get the sales tax registration in the State of Jharkhand only if he sells his goods within the State of Jharkhand or he becomes a dealer or manufacturer who comes within the purview of the Bihar Finance Act, 1981. Once the Insistence on the existence of a manufacturing unit within the State of Jharkhand is dropped, we find little logic in insisting on the existence of a certificate of registration from the Commercial Taxes Department as a condition precedent for submitting a tender. In the case of a person who is not a dealer within the meaning of the Bihar Finance Act, 1981, he could obtain a registration under that Act only when he starts supplying the food articles in case his tender is accepted and he has the occasion or the need to get himself registered as a dealer in the State of Jharkhand. Therefore, it appears to us that there is substance in the argument that the insistence that the intending supplier should be registered as a dealer is unreasonable. The challenge to the condition that the dealer should have had a turn over exceeding Rs. 25 crores in Energy Food for the previous two financial years as unreasonable does not appeal to us. The challenge to the condition that the dealer should have had a turn over exceeding Rs. 25 crores in Energy Food for the previous two financial years as unreasonable does not appeal to us. If the State insists that a supplier of Energy Food under the Scheme should have expertise in manufacturing it, and should have an Energy Food, which has been accepted in the marked leading to the manufacturer having a turn over of 25 crores of rupees or more in it can only be understood or seen as an insistence on the quality goods to be supplied by the tenderer on the basis of sophisticated infrastructure and could in no way be considered to be arbitrary or unreasonable. But we find some substance in the argument that the State should have insisted on ISI certification for the product and should not have been content with the stipulation that the bidder should possess ISO 9002 certification. What is important is quality and insistence on quality can only be in public interest since it had a great bearing on the sound health of children below 6 years and women, pregnant women in particular. It appears to us that this aspect has to be taken of by the State Government. 6. The argument that there was no definition of Energy Food like the one contained in the notice inviting tenders under the Scheme issued by the Uttar Pradesh Government, does not appear to be of much substance. We find on a scrutiny of Clause 2 of the notice inviting tenders relating to the ingredients and quality of the food articles to be supplied that adequate care has been taken to describe the type of food that was expected to be supplied by the tenderer. Therefore, we are not inclined to find any merit in the argument in that behalf. 7. The intervener, supported by the learned counsel for the petitioner, submitted that it was unreasonable to Insist that the Energy Food supplied should only be in powder form. Therefore, we are not inclined to find any merit in the argument in that behalf. 7. The intervener, supported by the learned counsel for the petitioner, submitted that it was unreasonable to Insist that the Energy Food supplied should only be in powder form. According to the intervener, great strides have been made in this field and Energy Food in a semi liquid form, that too packed in containers or packets meant for one child or one women, was available and was being manufactured by many a company in this country and, therefore, it was unreasonable to restrict the supply to powder form only, as has been sought to be done. It is also argued that when it is supplied in powder form, before it is used by children or pregnant breast-feeding women, it well have to be prepared by mixing water and there is every, chance of the water being polluted or contaminated, posing a health hazard. This will be avoided if it is supplied, in ready to serve form. There is some merit In this contention, though a cynic may point out that we Indians are quite immune to contaminated water since most of our water resources or supply lines are contaminated in some form or other. But that does not mean that the State should not look into this aspect and consider whether it is necessary to restrict the supply only to a powder form as is now being done by the notice inviting tenders. 8. The present notice inviting tender has been issued under a Scheme which is obviously welfare measure and it is as per the direction of the Supreme Court. According to the Advocate General, tenders have already been submitted and they will have to be opened and dealt with in due course. He, therefore, submits that the present tendering process may not be affected since by doing so the implementation of the Scheme will get further delayed. He submitted that this relevant aspect can be incorporated for the future. We cannot brush aside this argument in public interest. In this connection, we must also remember the observations of the Supreme Court in the Air India Limited v. Cochin International Airport Limited ( 2000 (2) SCC 617 ) to the effect, "The State can choose its own method to arrive at a decision. We cannot brush aside this argument in public interest. In this connection, we must also remember the observations of the Supreme Court in the Air India Limited v. Cochin International Airport Limited ( 2000 (2) SCC 617 ) to the effect, "The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny". We are asked to interfere in public interest by raising a plea that some of these clauses would or could lead to turning away quality suppliers even affecting the nutrition programme and when such public interest is involved, the Court cannot plead helplessness or stand on technicalities. Whatever may be the wide jurisdiction of a High Court entertaining a public interest litigation so called, we think that we must also be circumspect while at least dealing with matters contractual and should not rush in where angels fear to tread. An interference with the notice inviting tenders at this stage, when the tenders are to be opened, might also be counterproductive; in that, it may delay the implementation of the whole Scheme evolved in the public interest and especially in the interest of children and women. But having found that some aspects could be clarified, or rectified and it well be beneficial to the Scheme if the competition could be thrown open a little more and better quality could be ensured if other relevant stipulations are also incorporated, we are inclined to think that we would be justified in issuing a direction to consider the aspects referred to by us above, at least for the future and as and when the next notice inviting tenders under the Scheme is issued. We, therefore, direct the respondents to consider whether it is proper to retain the condition that the tenderer must be a Certificate of Registration from the Commercial Tax/Sales tax Department of Jharkhand as a condition precedent for submitting his tender; whether in the matter of quality ISI specifications should not be insisted upon and also whether it is necessary to restrict the supply of the food articles in powder form only. 9. 9. There was some argument before us that no adequate care will be taken by those who are entrusted with the task of receiving of supply of food articles and those who are entrusted with the task of feeding the children. This is an aspect which the State has necessarily to take note of. After all, it is also the duty of the State to ensure that responsible and honest persons of character and commitment to the cause are entrusted with the work of implementing the Scheme and while implementing the Scheme, a strict vigil is kept on the working of the entire system, so as to ensure that there is no adulteration or misappropriation or misutilisation of the supplied articles. Equally, it is for the State to ensure that the proper quality as stipulated is manufactured at the supply point by taking steps to ensure proper quality control and verification of the quality in taking delivery of the articles. Frequent Inspection of the factory or the manufactory of the supplier as contemplated by the notice inviting tenders should also be made, so that at all times the quality of the product could be ensured. This is only an aspect of a proper implementation of the Scheme and the learned Advocate General assured us that everything possible would be done in this regard and men/women of character and commitment would be placed at the helm of affairs. We need only record that submission. 10. Thus, we decline to interfere with the present Notice Inviting Tenders. But we direct the State Government to implement the directions issued above and to consider the other aspects pointed out while calling for tenders, the next time on the expiry of the present contract period. We record the submissions of the Advocate General regarding the implementation of the Scheme and the honest supervision that will be arranged and direct the State to act accordingly. 11. The writ petition is thus disposed of.