Case: Ekta Shakti Foundation Vs. Govt. Of Nct Of Delhi

2. By order dated 7.10.2004 in Writ Petition (C) No. 196 of 2001 (Peoples 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."3. 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."4. 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 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."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."

Court's reasoning:
12. 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 investigation18. 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 benefits22. 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 case24. Clause 4 of the Scheme (Broad Description of Proposed arrangement) indicates that in order to implement this Courts 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 inThus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere25. In the aforesaid background we do not find anything illicit in the impugned criteria to warrant interferenceEven 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 itscase.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] 25. In the aforesaid background we do not find anything illicit in the impugned criteria to warrant interference13. 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 Government15. 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 no23. 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 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.