IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) TUESDAY, THE THIRTIETH DAY OF DECEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.9800 of 2013, CC.No.1336 of 2014 and WP.Nos.146, 2917, 7157, 16570, 16877, 17036, 17037, 17416, 17417, 17752, 17779, 18000, 18005, 18093, 18444, 18510, 18538, 18540, 18748, 19369, 20511, 20221, 20551, 20711, 21212, 20861, 20804, 21014, 21286, 21475, 21615, 21920, 22058, 22498, 16882, 34315, 30040, 22004, 21180 and 23171 of 2014 BETWEEN J. Ramanamma and others.
... PETITIONERS AND The District Collector, Anantapur District and others.
...RESPONDENTS Counsel for the Petitioners: MR. N. ASWARTHA NARAYANA MR. M. KARIBASAIAH MR. SAI GANGADHAR CHAMARTHY MR. MAHESWARA RAO KUNCHEM MR. N. RANGA REDDY MR. P. NARAHARI BABU MR. B. VIJAYA BHASKER MR. S.D. GOWD MR. K.S. MURTHY MR. K. NARSI REDDY MR. INENI VENKATA PRASAD MR. M. JAYARAM REDDY MR. KOPPULA GOPAL MR. BALARAMI REDDY Counsel for the Respondents: GP FOR EDUCATION GP FOR REVENUE GP FOR SCHOOL EDUCATION MR. T. BHEEMANNA MR. G. ELISHA MR. C. VENKAT YADAV MR. SESHADRI GOALLA MR. KASA JAGANMOHAN REDDY MR. B. SARVOTHAM REDDY MRS. P. RAJESWARI The Court made the following:
COMMON ORDER:
In this batch of cases, various writ petitions are filed by the agencies, which were appointed to implement the Mid-Day Meal programme envisaged by the Government in terms of G.O.Ms.No.94 Education (SE- PROG-I) Department dated 25.11.2002. The common grievance of the petitioners, who have approached this court by the present batch of writ petitions, is that while they are functioning as implementing agencies for several years, the official respondents are trying to discharge the petitioner- agencies and appoint new agency in their place.
2. In almost all the writ petitions, this Court had passed similar interim order pending the writ petitions to the effect that since the petitioners have been allowed to supply mid-day meals to the school concerned, they may be permitted to continue to do so, so long as no specific complaint about the poor quality of food being prepared and supplied by them is received.
3. The grievance of the petitioners also is that while replacing the existing implementing agency by a new agency, no notice is given to the existing implementing agency and thereby, opportunity to the implementing agency to explain the deficiencies or irregularities, if any, is denied and straightaway orders replacing them are passed. Wherever such orders of the official respondents are questioned, a contention with regard to violation of principles of natural justice is raised and it is contended that when an adverse conclusion is reached against an existing implementing agency, the official respondents are bound to follow the basic principles of natural justice and the existing agency cannot be replaced by a new agency without any hearing being afforded to the existing agency and without affording them opportunity to even rectify or fulfill the deficiencies, if any, pointed out with regard to its working.
4. The common grievance in this batch of writ petitions was to a substantial extent redressed by orders of this Court in WP.No.22120 of 2014 and batch dated 05.09.2014 and WP.No.18171 of 2014 and batch dated 08.09.2014. However, notwithstanding the said orders, similar grievance of the petitioners in the present batch of case is ventilated in these writ petitions.
5. I have heard the learned counsel for the petitioners, learned Government Pleader for Education and also the learned counsel, who filed vacate stay petitions in some of the writ petitions on behalf of the substituted implementing agency, who claim that in view of serious allegations of deficiency and quality of food prepared by the existing agency, the implementing agency has been replaced by selecting the new agency and as such, they claim that on account of the interim order of this Court they have been obstructed by the petitioners from functioning as implementing agency.
6. All these writ petitions are defended by the learned Government Pleader by contending that these writ petitions raise several factual disputes and that keeping in view the scheme of the Government under G.O.Ms.No.94 dated 25.11.2002, referred to above, neither the petitioners can claim that they are holding a civil post nor are entitled to any protection under the Civil Service Rules nor can claim any rights enforceable before this Court under Article 226 of the Constitution of India. Placing strong reliance on the scheme under the aforesaid G.O. and the guidelines framed by the Government for implementation of the scheme, it is claimed that there are various authorities, which are entrusted with selection of implementing agency and for monitoring the work of such implementing agency at the Mandal, Municipal and District level and that the implementing and monitoring agency has been looking after the working of the scheme through the committees formed at all these levels under the Chairmanship of the Mandal Revenue Officer and the Joint Collector and District Collector respectively apart from that there are committees formed at Panchayat and School level, which reviews the implementation programme in the respective areas and monitor the functioning of such implementing agency.
7. Learned Government Pleader submitted that wherever the deficiencies are noticed in the functioning of the implementing agency appropriate steps are taken to ensure that the students do not suffer and wherever it is found necessary, the implementing agencies have been replaced by new agencies and thus, it is a continuous process where the implementation of the scheme is monitored. It is, further, submitted that the petitioners cannot claim that once appointed as an implementing agency they are entitled to continue as such unless they are removed by a procedure prescribed by law. It is submitted that the G.O. and the guidelines issued thereunder are being strictly implemented only from the point of view of serving the interest of the students so as to ensure that they get quality food as per the intent and the purpose of the scheme.
8. In order to resolve the controversy, therefore, it is necessary, firstly, to examine the scheme for implementation of the Mid-Day Meals (Cooked) Programme for children of classes I to VII in all the Government, Aided, Primary and Upper Primary Schools in the State. The Governments plans to achieve universalization of elementary education and with that objective, though much progress is achieved in enrolling school age children in the schools, retention of all of them in the school, having been found not commensurate with the enrolments, it was envisaged by the Government of Andhra Pradesh to implement Mid-Day Meal programme to ensure that a minimum of 300 calories and 8 to 12 gms of protein content in hot cooked good is supplied to students of classes I to VII. The Government also framed guidelines for implementation of the scheme and entrusted responsibility to all the District Collectors to utilize the amount earmarked for the scheme to the concerned agencies for implementation of the scheme, as per the guidelines annexed.
The guidelines, therefore, are issued in terms of clause 10 of the said G.O., for constitution of committees at various levels, for monitoring, supervision and review with regard to the implementation of the scheme.
GUIDELINES:
9. The guidelines issued provide that all children in classes I to V in primary schools will be covered in the scheme and in case of those schools where classes VI and VII are part of the primary schools, the children of classes VI and VII will also be provided mid-day meals, in the schools under the management of Government, local bodies and private aided managements are eligible for the benefit of this scheme. It is also provided that the menu will be flexible and the District Collector will fix the menu for the whole District or various parts of the District for different days of the week and the menu will be based upon the suggestive menu developed by the National Institute of Nutrition.
10. The implementing agencies have to be drawn in rural areas from the Dwakra/Self Help groups/SEC and other agencies like NGO’s with proven track record, charitable trusts and groups of parents in the same order of preference to be identified by the MRO. In urban areas, Community Development Societies, NGO’s, Urban Self Help Groups, DWCEOA/SCC and other agencies like NGO’s with proven track record, charitable trusts and groups of parents in same order of preference to be identified by the Committee headed by the MRO. For the twin cities of Hyderabad and Secunderabad, catering contracts can also be identified if no community development societies or DWCEOA/SHG/Charitable trusts etc. come forward to implement the scheme.
11. With regard to selection of implementing agency, it is provided that that MRO shall issue advance programme for the village level meeting to be conducted and give wide publicity to the schedule.
The Panchayat Secretary shall organize the meeting and the Sarpanch, all ward members, parent, self help groups and all other interested persons would be invited to the meeting apart from the Head Masters of the Schools and select the implementing agency after recording the minutes of the meeting. Based on such a decision, the Joint Collector would issue appropriate orders in favour of the implementing agency selected. The guidelines, further, provide for functions of the implementing agency, which are enumerated and the guidelines further provide for constitution of committees for monitoring and supervision at State level and District level, which shall hold periodical meetings in a month to review the implementation. Further, for the review of the working also separate committees were envisaged at municipality and municipal corporation level, panchayat level and at the school level as well as at mandal level in rural areas. So far as private aided schools are concerned, the Governing body shall be responsible for implementing the mid-day meal scheme.
The guidelines, further, provide for other incidental matters, which, however, are not relevant for the purpose of present batch of cases.
12. It would immediately be noticed that while the detailed guidelines are given for selection of the implementing agency and its supervision as well as the periodical review of its functioning, the guidelines are completely silent with regard to the procedure to be followed for replacement of an agency, which is found to be deficient. On account of absence of any such procedure prescribed in terms of the aforesaid guidelines, the dispute including the claims and counter claims, between the existing implementing agency and the new implementing agency identified for replacing the existing agency, have been constantly arising as is evident from the two batch of cases already dealt with by this Court, referred to above, as well as the present batch of cases. The power of this Court on judicial review is invariably invoked in all such cases, as there is no mechanism provided in the G.O., or the guidelines with regard to the manner in which the implementing agency, found to be deficient, is required to be replaced by a new agency and for resolving the dispute among them, if any.
13. As is evident each of these writ petitions, the existing implementing agencies claim that they have been implementing the responsibility of preparing and supplying mid-day meals to the student for the last several years but on account of incorrect and misleading complaints made against them, steps are being taken by the official respondents to replace them with new agencies. Many of the petitioners claim that the complaints against them are neither genuine nor are based on reality of the existing situation but no attempt is made by the official respondents to verify the said complaints with respect to the existing implementing agency and thereby, a decision is taken behind the back of the existing agency to replace the same with a new agency. As stated above, there is no mechanism provided under the guidelines to verify as to whether the complaints against the existing implementing agencies are true and correct and it is also not possible for this Court to go into each and every case to ascertain the truth or otherwise of such complaints, as that involves adjudication on disputed questions of facts. At the same time, however, the grievance of the existing implementing agencies that they are being replaced without opportunity of hearing to them also appears justified.
14. Keeping all the circumstances in mind, therefore, it is necessary to issue appropriate directions to the State Government to take such steps as are necessary by issuing appropriate, further, rules/guidelines providing for the procedure for replacement of existing implementing agency with a new one and to provide procedural safeguards to the existing implementing agency so as to ensure that no injustice is done to the existing implementing agency and at the same time, the authority concerned is able to replace the deficient implementing agency with an appropriate new agency.
15. Till the State Government takes appropriate steps, as above, it is necessary to issue certain directions as enumerated hereunder to be implemented by the respondent authorities.
The writ petitions are accordingly disposed of with the following directions:
1. The State Government shall take immediate steps to issue appropriate rules/guidelines with respect to the implementation of the decisions of the review committees, at all levels, including for replacement of an existing agency by a new implementing agency.
2. Till the Government frames appropriate rules/guidelines, as directed above, all the respondent authorities, at all levels, shall follow the directions as under:
a) Wherever the concerned review committee notices deficiency in the functioning of the existing implementing agency, the concerned review committee shall communicate its views and suggestions to the respective committees entrusted with selection of an implementing agency.
b) On receipt of recommendations of the review committee, the respective committees, entrusted with selection of an implementing agency, shall notify such deficient implementing agency and consider the explanation of such deficient implementing agency in its meeting and shall take appropriate decision either to continue the implementing agency by giving opportunity to rectify the deficiencies or to replace the existing agency by a new agency.
c) If a decision is taken to replace the existing agency, the same procedure as envisaged in clause (6) of the guidelines shall be followed for selecting a new implementing agency to replace the existing agency.
d) In all such cases where the existing implementing agency is replaced by a new agency, such aggrieved implementing agency shall be entitled to seek reconsideration of such decision before the Nodal Officer in terms of the guidelines and the decision of the Nodal Officer shall be final and binding on all the parties.
3. In all these cases, as stated above, this Court has already passed interim orders and wherever the existing implementing agencies are continued in terms of the said interim order, they shall continue to operate the mid-day meal programme. However, the respondents shall be free to take appropriate further action in terms of the directions hereinabove.
4. In all these cases, wherever a new agency is appointed to replace existing agency, the grievance of the new agency shall be considered by the respective committees, which are entrusted with selection of implementing agency, who shall, thereafter, follow the procedure prescribed hereinabove and after hearing the existing implementing agency, take appropriate decision in the matter relating to the continuation or otherwise of the existing implementing agency.
Since the writ petitions are disposed of, as above, the contempt case, C.C.No.1336 of 2014, stands dismissed. As a sequel, the vacate stay petitions and the miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J December 30, 2014 DSK