JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. The petitioner is a registered co-operative society which is an existing diet contractor in different hospitals in West Bengal. The Secretary of the petitioner-Society is a lady and it is primarily run by women.

2. The present challenge has been preferred against a Memorandum issued by the Government of West Bengal, Department of Health and HF/O/MS/271/W-14/10 dated June 16, 2010. By virtue of the said Notification, the State Government restricted the duties of diet supply in hospitals in the rural sector in West Bengal, having beds up to 50 in number, to-federations or clusters of Self Help Groups (SHG) working in the area.

3. The first limb of challenge is that, by such restriction, the State Government has curtailed drastically the wider participation of members of the general community. It is submitted that although the purported object behind the decision is the empowerment of women, participation from other women apart from the members of the SHGs has been entirely precluded.

4. It is submitted that the process by which the appointments would now be made to rural hospitals would be through selection by the Chief Medical Officer of Health (CMOH) on specific recommendation of the Project Director, DRDC (District Rural Development Cell), both of whom are Government functionaries and under direct control of the State Government. Hence, by way of introduction of the selection process, open tender has been entirely obliterated and the wishful fancy of the State Government would be sub-served in all such appointments.

5. It is argued that the preclusion of the open tender is the bane of public projects and employment schemes.

6. It is argued that although the provision has apparently been restricted to rural hospitals having beds up to 50, such rider takes under its sweep the vast majority of the rural hospitals in West Bengal, except some super-specialty hospitals and other large hospitals.

7. It is argued that there are 269 rural hospitals in the different districts of West Bengal and the selection of the supplier of cooked diet shall now be restricted to the local self-help groups, which will choke competition even among similarly situated other groups or persons.

8. Moreover, it is argued that the impugned Memo goes beyond its charter insofar as the first paragraph of the same clearly stipulates that the same was in compliance with observations of this Court in an order dated August 21, 2009 in W.P. No. 11766(W) of 2009, as per which a Broad Based Committee was constituted merely to review and determine rationalized rate of cooked diet, taking into account the present market value of dietary articles, for supply to different Government health facilities. However, going much beyond the same, the Government has introduced the decision to restrict the supply of cooked diet inmost rural hospitals to Self-Help Groups controlled by the Government itself.

9. Learned counsel for the State controverts the petitioner’s submissions and places reliance on the judgments reported at Gayatri Devi Pansari vs. State of Orissa and Others, (2000) 4 SCC 221 and Krishnan Kakkanth vs. Government of Kerala and Others, (1997) 9 SCC 495 for furthering the proposition that some amount of reasonable classification is permitted in Government actions.

10. It is argued that the declared purpose of the impugned Clause is the empowerment of women through promotion of the SHG movement, which cannot be faulted in any manner and is well within the constitutional scheme of India.

11. Apart from empowering women, it will serve the purpose of supporting local SHGs.

12. Moreover, the same would be restricted only to rural hospitals having up to 50 beds and would not curtail competition in respect of other larger medical facilities even in rural areas.

13. Thirdly, it is argued that the impugned Memo is a policy decision of the State which cannot be otherwise faulted. Hence, it is contended that the Court ought not, under normal circu