EKTA SHAKTI FOUNDATIONversusGOVT. OF NCT OF DELHI

                       EKTA SHAKTI FOUNDATION                                    A
                                  v.
                        GOVT. OF NCT OF DELHI

                               JULY 17, 2006

               [ARIJIT PASAYAT ANDC.K. THAKKER,JJ.]                              B


       Administrative Law-Administrative action-Scope ofjudicial review--
Delhi Government framed scheme for supply of supplementary nutrition under
the Integrated Child Development Service (!CDS) programme through                C
 'Anganwadi Centres' by involving Non-Profit Organisations-Scheme
envisaged that registered non-profit organizations with at least 3 years
experience were eligible to apply-Writ petitions filed challenging rationale
of the eligibility criteria-Held: Constitution does not permit the Court to
interfere in any administrative action, provided authorities do not transgress
their constitutional limits or statutory powers-Courts cannot interfere even     D
if second view is possible-On facts, no irrationality found in the eligibility
criteria fixed to justify interference by Court-Constitution of India, 1950-
Article 32.

      Administrative Law-Administrative action-Article 14 cannot be
applied to legitimize an illegitimate action-A party cannot claim that since     E
something wrong has been done in another case, direction should be given
for doing another wrong-Concept of equal treatment does not countenance
repetition of a wrong action to bring both wrongs on par-Constitution of
India, 1950-Article 14.

      The Delhi Government framed a detailed scheme for supply of                F
supplementary nutrition under the Integrated Child Development Service
(ICDS) programme through 'Anganwadi Centres' by involving Non-Profit
Organisations. Offers were invited for implementation of the said scheme. It
was stipulated that registered Non-Profit Organisations with at least 3 years
experience were eligible to apply.                                               G
      The present writ petitions filed under Article 32 of the Constitution
question the rationale of the said stipulation/eligibility criteria.

     Dismissing the writ petitions, the Court
                                    631                                          H
    632                      SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A         HELD: 1.1. 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
B   authorities do not transgress their constitutional limits or statutory power.
    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, even if the decision taken by the Government does not
    appear to be agreeable to the Court it cannot interfere. 1637-C-DI
c          1.2. 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. (637-E]

D       1.3. The policy decision must be left to the Government as it alone can
  decide 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
E 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
                                                                        1637-F,G]

         Ashif Hamid v. State of J & K, AIR (1989) SC 1899 and Shri Sitaram
F   Sugar Co. v. Union of India, AIR (1990) SC 1277, relied on.

         State of Orissa and Ors. v. Gopinath Dash and Ors., 12005] 13 SCC
    495 and People's Union for Civil liberties v. Union of India and Ors., (20041
    12 sec 104, referred to.

G         Metropolis Theatre Company v. City of Chicago, (1912) 57 L Ed 730,
    referred to.

          2. 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
H party cannot claim that since something wrong has been done in another case,
        EKT A SHAKTI FOUNDATION v. GOVT. OF NCT OF DELHI                         633
      direction should be given for doing another wrong. It would not be setting a      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      B
      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. Article 14
      has no application or justification to legitimize an illegal and illegitimate
      action. 1640-E-G; 638-B]                                                          C
            Coromande/ Fertilizers ltd v. Union of India and Ors., 11984] Supp
      SCC 457; Secretary, Jaipur Development Authority, Jaipur v. Dau/at Mal Jain
      and Ors., (1997] 1 SCC 35; Gursharan Singh & Ors. v. NDMC & Ors., (1996]
      2 SCC 459; State of Haryana & Ors. v. Ram Kumar Mann, 119971 3 SCC                D
      321; State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr., (2000] 9
      SCC 94 and Union of India v. International Trading Co., (2003] 5 SCC 437,
      relied on.

            3. It is not the case of the petitioners that with any oblique motive the
      eligibility criteria has been stipulated. On the contrary after analyzing the     E
      issues, a Committee appointed by the respondent had suggested the norms
      and the scheme was accordingly prepared. This Court does not find any
      irrationality much less something which is totally out of context to justify
      interference. (641-A]

            CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 232 of2006.         F
           (Under Article 32 of the Constitution of India).

                                          WITH

            W.P. (C) Nos. 233 and 234/06 .                                              G
...        Mandeep Singh Vinaik and Hardeep Singh Anand for the Petitioner.

          Colin Gonsalves, S. Wasim A. Qadri, Anup Kumar Sirvastava, Mohit
      Kumar and Anil Katiyar for the Respondents.
                                                                                        H
           The Judgment of the Court was delivered by
    634                    SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A          ARIJIT PASA YAT, 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
B   Development Service (in short the '!CDS') Programme."

         By order dated 7.10.2004 in Writ Petition (C) No. 196 of2001 (People's
    Union for Civil liberties v. Union of India and Ors.,) this Court observed
    as under :-

C          "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:
D
           "The contractors shall not be used for supply of nutrition in
           Anganwadis and preferably !CDS funds shall be spent by making use
           of village communities, self-help groups and Mahila Mandals for
           buying of grains and preparation of meals."

E         !CDS is perhaps the largest of all the food :md 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
F   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 those of grain dealers which it is suggested
           is not a healthy way of working as it is likely to increase the chances
G          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
H          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
   EKTA SHAKTI FOUNDATION v. GOVT. OFNCT OF DELHI [PASA YAT, J.]             635
        contractors for procurement has also been mentioned in the Report           A
        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 I of the Report relating to Integrated
        Child Development Services."

       In accordance with this Court's order the Delhi Government framed a          B
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       C
registered non-profit organizations with at least 3 years experience were
eligible to apply. Accordingly an advertisement titled "!CDS - 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            D
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       E
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      F
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              G
representative of Care India, one of most reputed NG Os and a representative
of the Commissioner who was appointed by this Court in the PUCL case. The
Committee scrutinize the applications (I I 7 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          H
     636                      SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A of the view that the three writ petitioners have not been registered for a period
     of three years and, therefore, were 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:
B
                 "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
c            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
D            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
E 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
F 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
G.           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, Fonnation of SH Gs, Supplementary Nutrition,
             Home Counseling, Nutrition Counseling, Pre-School Activities and
             women empowerment related works."
H
  EKTASHAKTIFOUNDATION v. GOVT. OFNCTOFDELHI [PASAYAT,J.)                       637
       At this juncture we may take note of a submission by learned counsel            A
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 he<ird for a long
time, and various details were being called for. The inte_ntion of this Court to       B
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.

       While exercising the power of judicial review of administrative action,         C
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                D
(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             E
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.                                                                    F
      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            G
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,            H
    638                      SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A (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
B judicial review. [See: State of Orissa and Ors. v. Gopinath Dash and Ors.,
  [2005J 13 sec 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
C   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
D   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., [1084] Supp
E sec 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 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
p 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.
G
          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
H   another unwarranted order. The extraordinary and discretionary power of the
   EKTASHAKTI FOUNDATION v. GOVT. OFNCTOFDELHI [PASAYAT..I.] 639

High Court under Article 226 cannot be exercised for such a purpose. (See:            A .
SecrelaJJ', Jaipur Development Authority, Jaipur v. Dau/at Mal Jain and
Ors., (1997] l sec 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               B
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 sec 459 held that citizens have assumed               c
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 Article 14 of the Constitution by way of writ
petition filed in the High Court. The Court oboerved:
                                                                                      D
        "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     E
        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 eailier position       F
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            G
       repeat or perpetuate such illegal order, nor could it be 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 lal)d to the respondents."

      In State of Haiyana & Ors. V. Ram Kumar Mann, (1997] 3 sec 321 this             H
    640                     SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A 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
B          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
c          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".

D          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
E   of Bihar and Ors. v. Kameshwar Prasad Singh and Anr., [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.
F 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
G 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 casi:: on some other basis and not by claiming negative
  equality. (See Union of India v. /nternational Trading Co., [2003] 5 SCC 437].
H
   EKTASHAKTIFOUNDATION v. GOVT. OFNCTOFDELHI [PASAYAT,J.] 641

       It· is not the case of the petitioners that with any oblique motive the A
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)         B
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.                                                       C
     In the aforesaid background we do not find anything illicit in the
impugned criteria to wainnt interference.

     The writ petitions fail and are, therefore, dismissed. No costs.

B.B.B:                                              Writ Petitions dismissed. D