State
of Karnataka & Ors Vs. Ameerbi & Ors
[2006] Insc 915 (7
December 2006)
S.B.
Sinha & Markandey Katju S.B. Sinha, J.
The
Central Government floated a Scheme known as Integrated Child Development
Service (ICDS) Programme in the year 1975. It is funded by the Central
Government. Its application, however, is at the hands of the respective States.
Anganwadi workers are appointed from amongst the local inhabitants. Selection
is made by a committee. Under the Scheme, about one hundred Anganwadi workers
are required to be recruited from each of the urban and rural projects and 50
for the tribal projects, whereas one for each Anganwadi Worker is to be
appointed as a helper. The staff pattern for ICDS Project is stated in para
3.1.18 of the Scheme which is as under:
"3.1.18
Staff for ICDS Project: Presently, a normal ICDS project has one post each of
CDPO, Assistant, Statistical Assistant, Clerk/ Typist, Driver and Peon. Thus
the present staff has 3 ministerial hands, namely, the Statistical Assistant,
Assistant and LDC. For manning these 3 posts, the State Governments/UTs can
chose any 3 suitable class III (Category C) posts and designations (such as
Senior Clerk, UDC, Jr. Clerk, LDC, Accountant, Accounts Clerk etc.) and let
these 3 posts be manned by them. These posts can carry pay scales as per State
Government's rules and this Ministry will provide funds fully for all such
posts. The redesignation of these posts would depend upon the nature and the
type of work involved at the project headquarters and the precise types of
personnel whom the State Government consider fit for such work." Anganwadi
workers filed an application purported to be under Section 15 of the
Administrative Tribunals Act, 1985 (for short "the Act") before the
Karnataka State Administrative Tribunal. In one of such applications being Nagarathna
B.K. & Others v. The Secretary, Social Welfare Dept. & Others [1992
K.S.L.J. 177], it was held that the said application was not maintainable.
Correctness of the said decision came to be questioned. The matter was referred
to a larger bench of the Tribunal. By reason of the impugned judgment, the
Tribunal held the said application to be maintainable opining that although Anganwadi
workers and helpers are paid honorarium, they hold civil post.
The
State of Karnataka is before us questioning the
correctness of the said judgment. This Court issued notice to Union of India
also. It has also filed a counter affidavit.
Mr.
Sanjay R. Hegde, learned counsel appearing on behalf of the appellants, took us
through the scheme and submitted that whereas certain posts are sanctioned and
created, bulk of them are not sanctioned and required to be filled up from
amongst the volunteers from the community. It was contended that they merely
act as conduit to implementation of some welfare schemes. They may have to work
for a maximum period of 4 and = years. They are not holders of civil posts.
They can contest elections. It was submitted that for filling up of the said
posts, no advertisement is required to be made, nor the provisions of the
recruitment rules are required to be complied with.
Ms. Rekha
Pandey, learned counsel appearing on behalf of Union of India would support the
contention of Mr. Hegde supplementing that Anganwadi workers are appointed on a
budget scheme and if it is to be held that they and their helpers who were to
work as volunteers to render certain services, are treated to be State
Government or Central Government employee, the scheme itself would become
non-functional. The scheme of the Central Government, it was pointed out, is an
All India scheme and in the event the
judgment of the Tribunal is upheld, the same would lead to serious financial
implications.
Ms. Indira
Jaisingh, learned senior counsel appearing on behalf of the respondents, on the
other hand, would submit that the question as to whether Anganwadi workers hold
civil post or not must be considered having regard to the tests laid down by
this Court in determination of the relationship of employer and employee.
The
learned counsel would urge that casual railway employees, part- time employees
having been held by this Court to be holders of civil post, there is no reason
as to why the respondents would be treated differently. It was submitted that Anganwadi
workers must not be paid wages less than the minimum wages fixed by the State
as the same would amount to beggary.
Emoluments
of an employee, the learned counsel would urge, must be fair and reasonable.
It was
further submitted that the nomenclature of payment is not decisive. Our attention
in this connection has also been drawn to the definition of 'post' as contained
in Section 3(k) of the Act.
The
Scheme was floated by the Central Government with certain objects. The staff
pattern at the project level has been laid down in the Scheme itself. What
would be meant by sanctioned post is evident from paragraph 3.1.18 of the
Scheme as noticed hereinbefore. Indisputably Anganwadi workers and helpers were
not to be appointed on a pay scale.
They
are to be paid honorarium. The amount of honorarium has since been increased
and just at present is as under:
"Anganwadi
Workers Qualification/ Experience 1975-76 1.4.78 1.7.96 2.10.92 16.5.97 1.4.02
Non Matriculate 100/- 125/ 225/- 350/- 438/- 938/- Matriculate 150/- 175/-
275/- 400/- 500/- 1000/- Non Matriculate with 5 years exp. - - 250/- 375/-
469/- 969/- Matriculate with 5 years exp. - - 300/- 425/- 531/- 1031/- Non
Matriculate with 10 yrs. Exp. - - 275/- 400/- 500/- 1000/- Matriculate with 10
yrs. Exp. - - 325/- 450/- 563/- 1063/- Anganwadi Helpers Helpers 35/- 50/-
110/- 200/- 260/- 500/-" The Scheme is on a year to year basis. The Scheme
although is to be directly under the control of the State Governments, the
financial burden is to be borne by the Central Government.
There is
no fixed criteria as regards honorarium. Some States pay honorarium as fixed by
the Central Government but some others pay additional honorarium from their own
resources. Union of India has also constituted a Review Committee pursuant to
its recommendations the following benefits have been granted:
"i.
The Anganwadi Workers and Helpers have been allowed 'paid absence' on maternity
for a period of 135 days vide letter dated 28.12.2001 ii. The U.O.I. initiated
a scheme, on a year to year basis for awards for selected Anganwadi workers on
the basis of their dedication and performance. The scheme for award for Anganwadi
workers was first introduced for 2000- 2001 and thereafter extended for
2002-2003 is under process. The scheme provides for
(a)
Award at the Central-level comprising of cash of Rs. 25,000/- and a citation
for 20 Anganwadi Workers, and
(b)
Awards at the State-level comprising of cash of Rs. 2,500/- and a citation for
1275 selected Anganwadi Workers.
iii.
The State Governments have been requested vide letter dated 28.02.2001 to
consider and implement the following recommendations of the committee, which
call within the purview of the States:-
(a)
State/ UT Government should contribute some monetary incentive to these workers
for the additional work assigned to the Anganwadi Workers and Helpers under
various schemes and programmes.
(b)
"Anganwadi Workers and Helpers Welfare Fund" may be set up by the
State/ UT Governments at the State/ UT level out of the contribution from
Workers/ Helpers and State/ UT Governments.
(c)
State/ UT Governments should provide group insurance facilities to Anganwadi
Workers and Helpers.
(d)
The honorary contribution in Anganwadi centers by Anganwadi Workers and Helpers
should be treated as additional qualifications for recruitment as primary
school teachers, ANMs and other such village based positions. Specific quota
for recruitment in these positions may be fixed up." Recommendations of
the Committee have also been directed to be implemented by the States which
would fall within their purview.
The
posts of Anganwadi workers are not statutory posts. They have been created in
terms of the scheme. It is one thing to say that there exists a relationship of
employer and employee by and between the State and Anganwadi workers but it is
another thing to say that they are holders of civil post.
We are
not oblivious of the fact that their presence in their respective villages is
extremely important. They are supposed to make significant contribution to the
society. They, we understand, are required to carry a large number of
activities, primarily amongst them being the welfare of the children.
In a
written submission, the interveners state that Anganwadi workers as of
necessity are required to perform a large number of functions. We, however, are
not inclined to consider the correctness or otherwise of the said statements
made before us for the first time. No material in this behalf was brought on
the records of the Tribunal. The Tribunal proceeded to deliver its judgment
applying certain principles and overruling the decision of the Division Bench,
the correctness whereof falls for our decision.
We, as
at present advised, are not inclined to enlarge the scope of this appeal and,
thus, refuse to go to the factual details of the matter, particularly, when
they do not form part of the records.
Before
we advert to the rival contentions of the parties, we intend to examine the
decision of this Court whereupon strong reliance has been placed by the learned
course for the respondents.
In
State of Assam & Ors. v. Shri Kanak Chandra Dutta [1967 (1) SCR 679] the
question before a Constitution Bench was as to whether a Mauzadar appointed for
the purpose of collection of revenue under a system prevailing in the Assam
Valley would be holder of a civil post. Answer to the said question was
rendered in the affirmative opining:
"The
question is whether a Mauzadar is a person holding a civil post under the State
within Art. 311 of the Constitution. There is no formal definition of
"post" and "civil post". The sense in which they are used
in the Services Chapter of Part XIV of the Constitution is indicated by their
context and setting. A civil post is distinguished in Art. 310 from a post
connected with defence; it is a post on the civil as distinguished from the defence
side of the administration, an employment in a civil capacity under the Union or a State. See marginal note to Art. 311. In Art.
311, a member of a civil service of the Union
or an all-India service or a civil service of a State is mentioned separately,
and a civil post means a post not connected with defence outside the regular
civil services. A post is a service or employment. A person holding a post
under a State is a person serving or employed under the State. See the marginal
notes to Arts. 309, 310 to 311. The heading and the sub-heading of Part XIV and
Chapter I emphasise the element of service. There is a relationship of master
and servant between the State and a person holding a post under it. The
existence of this relationship is indicated by the State's right to select and
appoint the holder of the post, its right to suspend and dismiss him, its right
to control the manner and method of his doing the work and the payment by it of
his wages or remuneration. A relationship of master and servant may be
established by the presence of all or some of these indicia, in conjunction
with other circumstances and it is a question of fact in each case whether
there is such a relation between the State and the alleged holder of a post.
In the
context of Arts. 309, 310 and 311, a post denotes an office. A person who holds
a civil post under a State holds "office" during the pleasure of the
Governor of the State, except as expressly provided by the Constitution. See
Art. 310. A post under the State is an office or a position to which duties in
connection with the affairs of the State are attached, an office or a position
to which a person is appointed and which may exist apart from and independently
of the holder of the post.
Article
310(2) contemplates that a post may be abolished and a person holding a post
may be required to vacate the post, and it emphasises the idea of a post
existing apart from the holder of the post. A post may be created before the
appointment or simultaneously with it. A post is an employment, but every
employment is not a post.
A
casual labourer is not the holder of a post. A post under the State means a
post under the administrative control of the State. The State may create or
abolish the post and may regulate the conditions of service of persons
appointed to the post." Applying the said principles of law, it was held
that a Mauzadar holds a civil post under the State as :
(i) the
State has the power and the right to select and appoint him;
(ii) he
is subordinate to public servant;
(iii) he
receives remuneration by way of a commission and sometimes a salary;
(iv) there
exists a relationship of a Master and a Servant;
(v) he
holds an office on the revenue side of the administration to which specific and
onerous duties in connection with the affairs of the State are attached;
(vi) the
office falls vacant on the death or removal of the incumbent;
(vii) he
is a responsible officer exercising delegated powers of Governement;
(viii)
he is appointed revenue officer.
Anganwadi
workers, however, do not carry on any function of the State. They do not hold
post under a statute. Their posts are not created.
Recruitment
rules ordinarily applicable to the employees of the State are not applicable in
their case. The State is not required to comply with the constitutional scheme
of equality as adumbrated under Articles 14 and 16 of the Constitution of
India. No process of selection for the purpose of their appointment within the
constitutional scheme existed. We do not think that the said decision has any
application in the instant case.
Our
attention has also been drawn to a decision of this Court in Union of India and
Others v. Deep Chand Pandey and Another [(1992) 4 SCC 432] wherein casual
employees were found to come within the purview of Section 14(1) of the Act
holding:
"An
examination of Section 14 and Section 3(q) clearly indicates that the Act
covers a very wide field, and there is nothing to suggest that the provisions
dealing with the jurisdiction of the Tribunal should receive a narrow
interpretation" In that case, the employees were seeking temporary status.
They had claimed their right to continue in employment. In view of the nature
of claim, it was opined by this Court that the application under Section 14 of
the Act was maintainable.
Local
bodies employees having regard to the notification issued under the Act were
also held to come within the purview of the Act in R.N.A. Britto v. Chief
Executive Officer and Others [(1995) 4 SCC 8] wherein following Shri Kanak Chandra
Dutta (supra) it was held that the Panchayat Secretaries having regard to the
provisions of the Karnataka Village and Local Boards Act are government
servants, stating:
"13.
Another significant provision is Sub-section (2) of Section 80 of the Act which
says that subject to the provisions of Rules made under the proviso to Article
309 of the Constitution, the qualifications, powers, duties, remuneration and
conditions of service including disciplinary matters of such Secretary shall be
such as may be prescribed.
14.
The provisions in the Act to which we have adverted, clearly show that several
functions which were required to be performed by the State are entrusted to the
Panchayats. They also show that the properties vested in the Panchayats and the
funds of the Panchayat are that of the Government and those collected by way of
tax or fee by exercising the power of taxation vested in the Panchayat by the
Government. Above all, provisions of the Act make it abundantly clear that the Panchayats
have to function under the ultimate control of the State Government. When it
comes to the Secretaries of the Panchayats appointed under the Act, their
selection for appointment, their termination from service, their liability for
transfer and all other conditions of their services are as provided for under
the Rules made under the Act or other rules made under Article 309 of the
Constitution in respect of services of the State Government servants. When
Sub-section (2) of Section 80 of the Act to which we have adverted states that
subject to the provisions of Rules made under the proviso of Article 309 of the
Constitution, the qualifications, powers, duties, remuneration and conditions
of service including disciplinary matters of such Secretary shall be such as may
be prescribed, it leaves no room for doubt that the Secretaries of the Panchayats
are Government servants, like other Government servants, who are subjected to
the Rules to be made under the proviso to Article 309 of the Constitution as
regards their service conditions." The said decision ex facie cannot be
said to have any application in the instant case.
Reliance
has also been placed by Ms. Jaisingh on State of U.P. and Others v. Chandra Prakash Pandey and Others [(2001) 4
SCC 78]. The question which was involved therein was appointment of Kurk Amins
on salary basis for realization of dues of cooperative society. Again following
Shri Kanak Chandra Dutta (supra), it was held that Kurk Amins having been
appointed by the State for the purpose of collection of revenue would be
holders of civil post.
We
may, however, notice that the Bench referred to a decision of this Court in The
Superintendent of Post Offices and Others v. P.K. Rajamma [(1977) 3 SCC 94]
where extra-departmental agent was held to be not a casual workers but holds a
post under the administrative control of the State.
In
P.K. Rajamma (supra), a 3-Judge Bench of this Court made a distinction between
a post held under the administrative control of a State and another who is a
casual workers.
Each
of the decisions referred to hereinbefore centers round application of a
statute. In all those cases, posts are statutory ones. Terms and conditions of
services of the holder of the posts were governed by statutes.
However,
rules framed under proviso to Article 309 of the Constitution of India are not
attracted in the case of the respondents. They are appointed under a scheme
which is not of a permanent nature although might have continued for a long
time.
Appointments
made under a scheme and recruitment process being carried out through a
committee, in our opinion, would not render the incumbents thereof holders of
civil post. Our attention has not been drawn to any rule or regulation
governing the mode of their recruitment. Some statements in this behalf have
been made by the interveners but for the reasons stated hereinbefore, we cannot
enter thereinto. A distinction must be made about a post created by the Central
Government or the State Governments in exercise of their power under Articles
77 or 162 of the Constitution of India or under a statute vis-`-vis cases of
this nature who are sui generis. Terms and conditions of services of an
employee may be referable to acts of appropriate legislature. The matter may
also come within the purview of Article 309 of the Constitution of India as
proviso appended thereto confers power upon the President or the Governor of a
State or other authority, who may be delegated with such power, to make rules
during the interregnum.
The
result of an appointment being made in violation of the Constitutional scheme
has recently been noticed by a Constitution Bench of this Court in Secretary,
State of Karnataka and Others v. Umadevi (3) and Others [(2006) 4 SCC 1].
One of
the questions which was raised before us was in regard to the right of an Anganwadi
worker to contest an election. They are indisputably free to do so. A holder of
a civil post may not be entitled thereto.
In Satrucharla
Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and Another [(1992) 4 SCC
404], this Court while considering the provisions of Article 191(1)(a) of the
Constitution of India in relation to the posts held by the employees of an
Integrated Tribal Development Agency opined that their employees would not be
holder of office of profit although the State exercises control thereover
holding:
"It
is also necessary to bear in mind that the Government is undertaking several
projects and activities including commercial activities through the
corporations and local bodies exercising some control over such corporations or
bodies. In that view of the matter they may come within the meaning of the
"State" envisaged in Article 12 but that may not be a decisive factor
in deciding the issue. As a matter of fact Section 10 of the Representation of
People Act as well as Article 58(2) of the Constitution of India do indicate
that all persons employed in such undertakings, corporations or local bodies
cannot be deemed to suffer disqualification for contesting the elections except
to the extent indicated therein. This aspect also has been considered in some
of the above- mentioned decisions. If a strict and narrow construction is to be
applied that amounts to shutting off many prominent and other eligible persons
to contest the elections which forms the fundamental basis for the democratic
set-up.
Therefore
several factors as indicated above depending upon the facts of each case have
to be taken into consideration in deciding whether a particular person is
disqualified by virtue of his holding an office of profit before concluding
that such an office is under the Government" The decision, therefore, is
an authority for the proposition that those employees who come within the
meaning of Article 12 of the Constitution of India are not necessarily
government servants. A'fortiori the State in terms of a scheme may exercise
control over a section of the persons working but thereby only, they do not
become entitled to protection under Article 311 of the Constitution of India.
Reference
to the provisions of the Minimum Wages Act, in our opinion, is also not
apposite. The said Act is applicable to the workmen working in the industries
specified therein. It is not the case of the respondents that the ICDS programme
would constitute an 'industry' or Anganwadi workers are industrial workmen.
There cannot be any doubt whatsoever that it is one thing to say that the State
would be liable to pay minimum wages irrespective of its financial constraints
but it is another thing to say that as to whether such a claim can be raised in
respect of those who are working under a project. It is not a case where the
concept of minimum wage, living wage or fair wage can be brought in service.
Different
tests applied even for determining the relationship of employer and employee
have recently been noticed by this Court in District Rehabilitation Officer
& Ors. v. Jay Kishore Maity & Ors.[2006 (11) SCALE 545]. In that case,
in almost similar project, the employees appointed by the District
Rehabilitation Centre claimed themselves to be the Central Government
employees. Each case, therefore, has to be considered on its own merits.
This
Court cannot determine a lis only on sympathy.
In
Ramakrishna Kamat and Others v. State of Karnataka and Others [(2003) 3 SCC 374] albeit in the light of right of
regularization in service, this Court opined:
"It
is clear from the order of the learned single Judge and looking to the very
directions given a very sympathetic view was taken. We do not find it either
just or proper to show any further sympathy in the given facts and
circumstances of the case. While being sympathetic to the persons who come
before the court the courts cannot at the same time be unsympathetic to the
large number of eligible persons waiting for a long time in a long (SIC)
seeking employment" [See also Maruti Udyod Ltd. v. Ram Lal and Others,
(2005) 2 SCC 638, State of Bihar & Ors. v. Amrendra Kumar Mishra, 2006 (9)
SCALE 549 and Regional Manager, SBI v. Mahatma Mishra, 2006 (11) SCALE 258] It
is also not a case where the doctrine of parity of employment can be invoked.
It is true that nomenclature of a term of payment is not decisive but the
substance is as was held in Jaya Bachchan v. Union of India and Others [(2006)
5 SCC 266], but the question has to be determined having regard to the issue
involved. We are concerned herein with only one question, viz., whether the
respondents are holders of any civil post. We are, having regard to the
materials on record, of the view they are not.
Keeping
in view of the facts and circumstances of this case, we are of the opinion that
the Tribunal has no jurisdiction to entertain the application.
The
appeals are allowed accordingly. No costs.
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