SUPREME COURT OF INDIA
State of Karnataka and Others
Vs
Ameerbi and Others
Appeal (Civil) 4953-4957 of 1998
(S. B. Sinha and Markandeya Katju, JJ)
07.12.2006
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 Non-Matriculation Matriculation
1975-1976 100/- 150/-
01/04/1978 125/- 175/-
02/10/1992 225/- 275/-
01/07/1996 350/- 400/-
16/05/1997 438/- 500/-
01/04/2002 938/- 1000/-
Non Matriculate with 5 years exp. Matriculate with 5 years exp.
1975-1976 - -
01/04/1978 - -
02/10/1992 250/- 300/-
01/07/1996 375/- 425/-
16/05/1997 469/- 531/-
01/04/2002 969/- 1031/-
Non Matriculate with 10 yrs. Exp. Matriculate with 10 yrs. Exp.
1975-1976 - -
01/04/1978 - -
02/10/1992 275/- 325/-
01/07/1996 400/- 450/-
16/05/1997 500/- 563/-
01/04/2002 1000/- 1063/-
Anganwadi Helpers
1975-1976 35/-
01/04/1978 50/-
02/10/1992 110/-
01/07/1996 200/-
16/05/1997 260/-
01/04/2002 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.
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 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 Of
India, 1950. 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 Of India, 1950
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 Of India, 1950. 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, 1950. 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 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 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 Of India, 1950,
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 Of India, 1950
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 31. 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 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, 1950 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, 1950 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, 1950 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
5, this Court while considering the
provisions of Article 191(1)(a) of the Constitution Of
India, 1950 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, 1950 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, 1950 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, 1950.
Reference to the provisions of the Minimum Wages Act, 1948,
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 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, 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.