In this group of petitions, the petitioners have assailed the decision of the State of handing the duty of providing mid-day meals to school children from Class 1 to 8 to respondent no.4, a Non Governmental Organization (N.G.O.).
The petitioners have assailed this decision, as contrary to the principle of very concept of Mid-Day Meal Scheme promulgated in State of Gujarat and other States all over. It is also assailed on the ground that outsourcing of providing of mid-day meals to school children is contrary to the decision of the Apex Court embedded in the order dated 20.04.2004 in group of petitions namely writ petition(Civil)No.196/2001 and others, wherein the Apex Court has categorically issued directions to all the concerned as to and in what way the Mid-Day Meal Scheme is to be worked out. The detailed directions issued by the Apex Court have been blatantly ignored by the State systematically, as it had systematically outsourced its own duty to be performed by the N.G.O. and others. It is also assailed on the ground that the earlier decision thereon, on the same issue would be contrary to the provision of policy of the Government of India, shelter whereof is taken by the State for justifying its outsourcing by way of resolution or circular dated 03.06.2010.
Learned advocate for the petitioners has invited this Court's attention to the order passed by the Apex Court in writ petition (Civil)No.196/2001 and the original Mid-Day Meal Scheme promulgated in the State in the year 1984 and contended that the emphasis was upon the food to be prepared and provided locally. The beneficial effect thereof was generation of employment and engagement of rural women and helping them to meet with at least a day's meal when the schools are functioning. The benevolent purpose is unfortunately given go-by, by the State authorities in clear defiance of the Apex Court decision which is binding on all including the State and its officials.
Learned advocate for the petitioners has invited this Court's attention to the scheme floated by Union of India, which is popularly known as 'National Program of Nutritional Support to Primary Education, 2006' and contended that even this policy also does not provide for outsourcing the duty of providing meals to the students. The action of the State that it has outsourced or it has engaged N.G.O. in consonance with the Government of India's directive, is therefore, unfortunately incorrect.
Learned advocate for the petitioners thereafter invited this Court's attention to page no.111 i.e. the Central Government guidelines in which it has been recognized and recorded that it helps generate employment as per the scheme of 'Sampurna Gramin Rojgar Yojna'. The attempt on the part of the State in outsourcing this vital function and assigning it to provide agencies who do not have any Kitchen near the students who are beneficiary of the meals, would be absolutely illogical, irrational and done for the reasons best known to the State authorities.
Learned advocate for the petitioners invited this Court's attention to page no.63 in S.C.A. No. 5746 of 2011, which is also produced in other petitions and contended that the State has ostensibly said that it is promulgating scheme in consonance with the directions of the Supreme Court, but unfortunately by outsourcing the very function to N.G.O., it has affected the petitioners and others who are otherwise direct beneficiary of the scheme in terms of employment generation and in terms of having their at least one meal a day. This facility was invariably beneficial to those who are affected and those who are engaged in the work of preparing and providing mid-day meal to the students, as at least each school has three persons engaged directly for providing food to students under the Mid-Day-Meal Scheme.
The learned advocate for the petitioners further contended that while issuing the impugned circular dated 03.06.2010, unfortunately the State has missed out or deliberately not taken into consideration their own circular dated 30.04.2007 in which they have said that this scheme is in consonance with the Apex Court direction.
Learned advocate for the petitioners invited this Court's attention to the news paper reports and contended that the reports unequivocally pointed out the inefficiency of respondent no.4 in satisfying the requirement of providing meals to all those who are really in need to eat. The State has not taken any steps to see to it that the program is worked out properly, as the contract which is proposed is flouted with lacuna which are not capable of plugging the glaring defects which has resulted into leaving out so many students at so many times without meals. Had there been a provision of locally providing meals, this would have been never happened.
Learned counsel appearing for respondent no.4 submitted that the petitioners have no locus to file these petitions, as they cannot clamour for their proposed loss of employment or loss of employment on account of outsourcing of this work to N.G.O. like respondent no.4.
Learned counsel for respondent no.4 relying upon the decision of this Court in case of General Secretary, Gujarat Mazdoor Sena Vs. Municipal Commissioner, reported in 2001 (1) G.L.H. 740 and contended that, the persons engaged in providing mid-day meals do not have any regular right of employment and when this right is declared, as a non existing, then the present petitioners could not have filed these petitions on the ground that they are affected parties on account of change in the scheme by outsourcing.
Learned counsel for respondent no.4 invited this Court's attention to the Division Bench decision of this Court in which the order of learned Single Judge was challenged which is reported in 2001 (1) G.L.H. 752 and submitted that the view of the learned Single Judge was upheld and therefore the present petitioners who are claiming to be affected are having no right whatsoever to make grievances for loss of employment.
Without prejudice to the aforesaid contention, learned advocate for respondent no.4 further submitted that it is an N.G.O. non profit making organization. The respondent no.4 has incurred heavy investment, expenses and installed latest machinery for preparing the food to be supplied to the children in the areas covered by the petitioners and this policy of the State is really not affecting the petitioners or those who are engaged in providing and preparing mid-day meals, as 2/3rd employees have been engaged by N.G.Os and therefore, it cannot be said that the affected persons are justified in moving the Court. The affected persons who claimed to be affected have unfortunately not provided the list and the list produced on page no.241 cannot be said to be a list of really affected persons.
Learned counsel for the respondent no.4 invited this Court's attention to the Apex Court decision and contended that it does not debar N.G.Os from undertaking task of providing and preparing meals to students. The N.G.Os like present respondent no.4 is not the first N.G.O. to receive this responsibility on behalf of the State. In fact the proposition for providing meals through N.G.O. is traced back to 2006. The first circular dated 03.05.2006 on page no.86 in the compilation of the petition in S.C.A. No.5746 of 2011, would go to show that the State had decided to outsource the work of providing meals to N.G.O. named thereunder and therefore, the State has followed the same experiment in other areas also, and as a result thereof, one more circular dated 11.06.2007 is pressed into service which is placed at page no.94 in the compilation of the petition in S.C.A. No.5746 of 2011, and the present challenge to 2010 circular dated 03.06.2010, a third in the series of this outsourcing which could not have been flouted upon by anyone; as it is in fact in the interest of the children as they are getting now more nutritious food which is ordinarily not available through local arrangements.
Learned advocate for respondent no.4 laid greater emphasis upon the observation of the Apex Court and attempted to indicate that those observations cannot be held against employment of N.G.O. for providing mid-day meal, as sought to be made out by learned advocate for the petitioners. The State has outsourced these two N.G.Os in the interest of public and therefore, this cannot be deprecated by anyone. Learned advocate for respondent no.4 heavily relied upon page no.141 of the compilation of the petition in S.C.A. No.5746 of 2011 and submitted that this decision of the State is in consonance with and in furtherance of the policy of the Government of India in which the NP-NPSE and it does contemplate participation of N.G.O. in the program and this policy is not under challenge.
Learned counsel for the respondent no.4 further submitted that all the employees in the program of Mid-Day-Meal Scheme was never in regular employment and it was merely a honorarium given to them.
Learned counsel for respondent no.4 further submitted that the news paper reports are incorrect. They are published without verifying the facts and they have lodged protest against this. Learned advocate for respondent no.4 has also contended that these reports are disputed facts and functions of respondent no.4 is closely monitored by the authorities.
The learned AGP appearing for the State contended that the State's action of assigning the work to N.G.O. cannot be challenged by the petitioners, as they are not affected as the N.G.O. has at least engaged 2/3rd of the work force in these Talukas, which was hitherto in providing mid-day meals to the schools children. The 1/3rd who have not joined cannot claim by way of right that the State decision is not correct.
The learned AGP has further contended that the policy of the State is in consonance with the Government of India's policy and therefore participation of N.G.O. cannot be said to be obnoxious to the policy calling for any interference of this Court.
This Court is of the view that the challenge on the part of the petitioners to the circular dated 03.06.2010 cannot be said to be prima facie unjustified in any manner. In these days when the large majority of rural area is not some times able to meet with the bare requirement when these type of persons for whom the policies are promulgated are likely to be affected or in fact affected on account of mass scale of outsourcing of such work, then they have fundamentally right to approach the Court, as it is directly hit by the provision of Article 21 of the Constitution of India. In the instant case, as could be seen from the earlier scheme which was existing, at least three persons were getting employed in one school in which Mid-Day-Meal Scheme was existing and so far as the State is concerned, all the primary schools were under obligation to provide mid-day meal to students and thus all the schools were engaging three persons namely Cook, Helper and Supervisor. It is also reported at the bar that these three employees were having their meals out of the meals prepared. Whatever bare minimum remuneration they were getting bit honorarium or wages, the same have direct effect. The same, in my view cannot be denied by saying that the N.G.O. is given the work preparing food, as it would amount to uprooting them from their area or at least compelling them to change their masters, which in my view cannot be justified on the part of the State. These petitions, therefore, in my view, have a locus to maintain with the challenge to the decision of 03.06.2010, so far as, the areas covered by the Talukas under these petitions and the Court is, therefore, not accepting the submission made by learned advocate for respondent no.4 qua locus of the present petition to maintain these petitions.
The entire scheme of mid-day meal is aimed at encouraging students to attend schools and while attending the school they be given nutritious food, which is definitely not food which could be classified to be snacks or anything of the like nature. Mid-day meal is a complete meal designed to fulfill the necessary requirement thereunder. In other words it is a full-fledge prepared meal to be provided to the children. The concept, therefore, would definitely dictate to all the concerned that the Kitchen has to be nearer to those who are to be fed. In the instant case, therefore, it goes without saying that principle of Kitchen nearer to the persons who is going to eat is blatantly defied. There cannot be any concept of prepared meal to be served to children in a Kitchen which is situated away from the place where the food is to be served. In the instant case, centralized Kitchen concept is sought to be propounded which, in my view, diametrically opposing to the concept of providing mid-day meal to the students. The meals are to be prepared nearer to the place where children are to be fed and the policy is also unequivocally clear on this aspect. The Apex Court decision relied upon by the learned advocate for the petitioners contain the following directions and they deserves to be set out as under.
"Having regard to the aforesaid, in respect of cooked mid-day meal scheme, we issue the following directions:
1. All such States and Union Territories who have not fully complied with the order dated 28th November, 2001 shall comply with the said directions fully in respect of the entire State/Union Territories, preferably, on the schools after a long vacation of 2004 and, in any case, not later than 1st September, 2004.
2. All chief secretaries/Administrators are directed to file compliance report in regard to directions No.1 on or before 15th September, 2004.
3. The conversion costs for a cooked meal, under no circumstances, shall be recovered from the children or their parents.
4. In appointment of cooks and helpers, preference shall be given to Dalits, Scheduled Castes and Scheduled Tribes.
5. The Central Government shall make provisions for construction of kitchen sheds and shall also allocate funds to meet with the conversion costs of food-grains into cooked mid-day meals. It shall also periodically monitor the low take off of the food-grains.
6. In respect of the State of Uttaranchal, it has been represented that the scheme is being implemented in all the schools. It would be open to the Commissioners to inspect and bring it to the notice of the Court, if it is otherwise.
7. In drought affected areas, mid-day meal shall be supplied even during Summer Vacations.
8. An affidavit shall be filed by the Government of India, within three months, stating as to when it is possible to extend the scheme upto 10th Standard in compliance with the announcement made by the Prime Minister. The affidavit shall also state the time frame within which the Government proposes to implement the recommendations of Abhijit Sen Committee in respect whereof the modalities have been discussed with the concerned Ministries and Planning Commission.
9. Attempts shall be made for better infrastructure, improved facilities (safe drinking water etc.), closer monitoring (regular inspection etc.) and others quality safeguards as also the improvement of the contents of the meal so as to provide nutritious meal to the children of the primary schools. The Issue as to the implementation of this Scheme will be considered in the month of September, 2004.
SGR YOJNA - EMPLOYMENT GUARANTEE:
In respect of this Scheme, the following directions are issued:
1. The directions for doubling the food-grains as also cash in terms of the order dated 2nd May, 2003 shall be applicable this year also.
2. The State Government/Union Territories are directed to pay minimum wages to the workers under the scheme and shall stop use of labour displacement machines.
3. Access to all public documents including muster rolls shall be allowed to such persons who seek such access and the cost of supplying documents shall not be more than the costs of providing copies of the documents.
4. The allocation of funds and food-grains shall be timely made by the Central Government to the State Governments.
5. The State Government are directed to utilise the entire allocation, as aforesaid, so that the allotted funds and food-grains neither lapse nor result in reduction in subsequent years.
6. In case, some of the State Governments, as a result of financial constraints, wish to pay 100% wages in shape of food-grains and not partly food-grains and partly cash, it would be open to them to approach the Central Government. On examination of each case, the Central Government may permit payment of 100% wages in the shape of food-grains.
ANTYODAYA ANNA YOJANA:
In regard to this scheme, the following directions are issued:
1. The Government of India shall issue, within two months, guidelines so that the existing condition of possession of a BPL card for inclusion in AAY category is dispensed with.
2. The State Governments should be directed by the Central Government to accelerate the issue of Antyodya cards especially to primitive tribes.
The guidelines issued to State Governments shall be implemented in letter and spirit.
List the writ petition on 27th April, 2004 for consideration of other Schemes."
Thus, even a cursory glance on these directions with special attention to the preference to employing the Scheduled Caste and Scheduled Tribes women as Cook and Helper and it also helps fulfilling the scheme of 'Sampurna Gramin Rogjar Yojna', as could be seen from page no.61 of the compilation of the petition in S.C.A. No.5746 of 2011. The decision in which these above referred directions are likely to be flouted and/or remain unfulfilled, then also in my view, the same would amount to unholy deviation from the Apex Court's order, which is not permissible to any authority, much less, to the State. Those, who are instrumentality in acting contrary to the direction cannot be permitted to keep flouting of such directions on the pretext of interpretation of the order and directions of the Court.
The Court is unable to accept the submission of learned advocate for respondent no.4 that these directions do not envisage outsourcing of work to N.G.O. In my view, this contention is misconceived and ill-founded, as the directions are unequivocally clear that the preference for employment is to be given to Scheduled Caste and Scheduled Tribes people, which in turn would show that outsourcing of the work for preparing food in a Kitchen which is situated away from the School being a centralized kitchen, is wholly unjustified on account of these directions and therefore this may not be permitted to continue in any manner. Moreover, the State itself has not taken note of its own earlier circular dated 30.04.2007, in which they have also emphasized that the aforesaid order of the Supreme Court has to be complied and the scheme is propounded in accordance therewith.
The contention of learned advocate for respondent no.4 with regard to existence of scheme since 2006 of awarding work to N.G.O. would in fact not stand the close scrutiny of the perusal of those orders, as even if one looks at the circular, one would understand that it is confined to the urban area, may be on account of space constraint and that cannot be permitted to be converted into rule of law, so as to enable the State to outsource its fundamental duty of providing nutritious food to children by arranging the same near by school or within the premise itself. Similarly the gradual expansion of areas, as could be seen from the circulars dated 11.06.2007 and 03.06.2010 would also not justified the State on its outsourcing the work of providing meal as fundamentally Kitchen is to be nearer to the place of eating, if one looks at the 1984 policy which is promulgated. If the news papers are correct or even 10% of the reports of news papers are correct, then it is unfortunate that the children who were left out without food are not in any manner responsible for this and for no fault on the part and rather for sheer part on the policy they were subjected to suffer a loss of meal for the day. This would have been avoided, if there was a Kitchen near to the dining area. Again it is reiterated at the cost of repetition that the concept of kitchen far away from the dining area is itself militating against the concept of providing meals to those who were required. In the instant case, the meals are to be provided to children who cannot brook delay of any kind and in the instant case, as could be seen from the contract there exists no provision whatsoever to take care of the eventuality as to when the respondent no.4 fails in providing meals on account of human failure or mechanism failure what happens to the children who are awaiting their food in far of schools situated in the area. It is not out of the place here that the Kitchen of the respondent no.4 is centralized Kitchen situated in Andheli and which is attempting to serve food. Thus a centralize Kitchen is sought to be cater need of food to a person or a child who is 40 K.M. away from his place. All schemes of serving hot meals and nutritious meal should be viewed from the instance which militate against the claim of serving hot meal. Hot meal means fresh meal or meal which is prepared immediately or served immediately, naturally it can never be served to those who are awaiting its consumption, as the concept of hot meal is, again it is reiterated, that not physically hot but its concept that meal is good food which is to be served immediately in the dining area. Therefore, concept of the local Kitchen is to be appreciated and here the concept of outsourcing is, in my view, amounting to outsourcing the fundamental duty, which is cast upon the State even by the Apex Court, hence it may not be permitted to continue any more.
Therefore, this petition is required to be admitted. Hence, Rule. For the aforesaid reasons by interim order the decision of 30.06.2010 is stayed.
At this stage, learned counsel for respondent no.4 requested for staying of this order for a period of four weeks and in this request learned AGP has also joined on the ground that abrupt stopping of respondent no.4 would result into leaving the children without mid-day meal, as least 30 days period will be required for restoring the earlier system.
The Court is of the view that the aforesaid order is passed, as this Court has time and again observed hereinabove that the centralize Kitchen preparing food which is hot meal for serving it to the students who are 40 K.M. away is a direct blow to the system of providing meals to the students. Therefore, request for stay ordinarily would not have been considered, however, it is unfortunate that the State has joined in the request for staying the order on the ground that it would not be possible for them to make arrangement to provide meals to students on these areas covered by these petitions immediately. Hence this order is stayed for the period of 15 days i.e. by 15 02.2012. The State should be geared up so far as these three areas are concerned to provide meals to the students, which is prepared near by to the schools so that the prepared hot meal is readily available for serving in time to the students. This order is stayed only up to 14.02.2012 and it shall take effect from 15.02.2012 and by 15.02.2012, the State shall in all possibility be prepared to provide food to the students, if this order is not stayed in the mean time.
(S.R.BRAHMBHATT, J.) Pankaj