http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

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.