Abhishek Swa Sahayata Samooh vs State Of Madhya Pradesh And Ors.

Present Intra Court Appeal filed u/S. 2 (A) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 assails the final order dated 26.07.2019 passed in W.P. No. 14678/2019 whereby the petition in question was dismissed upholding the impugned order dated 08.07.2019 vide P/1 passed by SDO (Revenue) Pichhore District Shivpuri by which, out of the works of distribution of mid-day meal being carried out by the petitioner/appellant/self help group in two separate schools i.e. Government Middle School Bharatpur and Government Primary School Bachroan, one i.e. Government Middle School, Bharatpur has been taken away and handed over to respondent No.4 for ensuring proper and prompt distribution of mid-day meal to bring it in line with the policy of Government of assigning only one particular school for mid-day meal distribution to a particular self help group.

Learned counsel for the appellant submits that despite there being no complaint against the appellant and despite SDO being incompetent to pass the impugned order and despite the agreement having been entered into between the petitioner/self help group and the Competent Authority in respect of both the said schools, action of taking away mid-day meal in respect of one school not only breaches the agreement vide P/4 but also is against the policy of mid-day meal distribution. The interim order passed by the Single Bench of this Court on 19.07.2019 in W.P. No. 13806/2019 and the final order dated 12.02.2016 passed in W.A. No. 36/2016 are pressed into service by the appellant.

Learned Single Judge while passing the impugned order has held that mere taking away of mid-day meal distribution work of one school does not amount to any adverse effect to the appellant as it merely amounts to administrative redistribution of work and the contract (Anneuxre P/2) itself contained a note of restricting entrustment of mid-day meal distribution work of one particular school to only one particular self help group and not more. Thus, learned Single Judge held that the order is not stigmatic and thus does not require any prior opportunity of being heard.

It may not be out of place to mention here that another bench (SB) of this court while adjudicating the petitions challenging orders of taking away mid-day meal distribution work from a particular self help group had an occasion to enumerate the object behind the mid-day meal and cautioned of reluctance which this court ought to exercise while adjudicating validity of such orders since judicial interference may adversely affect the health and life of the innocent children of primary and middle school, who are not before the court.

This court went to the extent of declining interference even where authority passing the impugned order was prima facie found to be incompetent since the court held that truncating the impugned order would lead to revival of a situation where a self help group against whom allegation of inferior quality mid-day meal distribution is alleged or is overburdened, is allowed to work thereby resulting in jeopardizing the life of innocent children. The relevant portion of the order dated 28.08.2018 passed in W.P. No. 19191/2018 (Jai Durge Mahila Swasahayata Vs. State of M.P. & ors.) is reproduced before for ready reference and convenience:-

"Prima facie it appears that CEO Zila Panchayat is bereft of any authority to pass an order of the nature of Annexure P/1. However, the said order is passed in larger public interest to ensure continuous and uninterrupted supply of fresh and hygienic mid-day meal to the children studying in a Govt. Middle School, through the Aganwadi Center.

The concept of free mid-day meal emanates from National Programme of Nutritional Support to Primary Education, 1995 which was later known as National Programme of Mid-day Meal in School and various directions issued by the Apex Court in the case of PUCL Vs. UOI 2007 (1) SCC 719 which was pending since 2001 and was finally disposed of on 10/2/17 due to mid-day meal for school going children receiving statutory recognition by enactment of National Food Security Act, 2013.

Good health of a primary/middle school going child essentially depends on intake of healthy, hygienic and fresh food. The children of the nation lay the foundation for the future generation. If children are healthy, the future generation would also be healthy and thus able to discharge all it's fundamental duties towards the nation to the fullest extent and thereby justify enjoying their rights. The physical health of the populace is one of the most crucial concomitant of a society/nation which is economically, physically and socially robust.

Some of the constitutional provisions which lay stress upon the importance of health of a child are reproduced below for ready reference and convenience:-

"Article 39 (f). that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Article 45. Provision for early childhood care and education to children below the age of six years- The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.

Article 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health."

The purpose of above discussion is to manifest the direct relationship between the health of a child and the overall health of a nation.

A healthy body and healthy mind invariably leads to inculcating the zeal in the child to strive for excellence which in turn develops healthy and intelligent workforce to power the nation ahead on the path of development. The importance of human resource to the overall health of the economy of a nation is well known. It is with this exalted concept that the makers of the Constitution inducted various provisions as aforesaid to ensure good health for children.

Technically speaking, this court can truncate the impugned order for having been passed by an incompetent authority but the result that would emerge, would be to restore work of distribution of mid-day meal to the petitioner against whom there are allegations as contained in the impugned order. Though this court has no material to conclude about the veracity of the complaints, however if this aspect is ignored by this court while exercising equity jurisdiction under Article 226 merely on technical ground of the impugned order passed by an incompetent authority, then this court would be risking entrustment of distribution of mid-day meal to the petitioner who may not be distribute nutritional, hygienic and fresh mid-day meal to the innocent children.

Thus this court to do complete justice and prevent miscarriage of justice has to carefully balance the competing interests of the petitioner and the hundreds and thousands of children. On one hand is the breach of petitioner's right to continue distributing mid-day meal till complaints are established while on the other hand the right of the children of primary and middle school to receive nutritional, hygienic and fresh mid-day meal. The former right of the petitioner is personal to him and does not affect the society at large and therefore, it's denial would not have any repercussion at the societal or national level. However on the other hand if the constitutional rights of the children of primary and middle school to receive nutritional, fresh and hygienic mid-day meal is allowed to be managed by self help groups which face allegations (though not proved) then the health of all the children consuming mid-day meal may be put to peril. This court is neither ready nor willing to take that risk which may put the health of children to jeopardy.

Thus without hesitation this court deems that the larger public interest of health of children of primary school consuming mid-day meal is paramount and thus eclipses the petty and personal interests of the petitioner self help group.

The fundamental right of petitioner self help group which may arise under Article 19 of Constitution but has to give way and precedence to the most exalted fundamental right to life of the children under Article 21 of Constitution.

In the conspectus of the above discussion this court refrains from exercising writ jurisdiction under Article 226 in favour of the petitioner. "

The said order was subsequently impliedly upheld by the Division Bench of this Court in W.A. No. 1410/2018 by order dated 24.10.2018.

The power of judicial review under Article 226 is discretionary in nature which need not be exercised when the outcome of such exercise is not in public interest and would lead to harm to the society.

In view of above, dismissal of W.P. No. 14678/2019 by learned Single Judge does not warrant any interference.

Accordingly, present writ appeal stands dismissed sans cost.