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Himachal Pradesh High Court · body

2013 DIGILAW 277 (HP)

SANDEEP THAKUR v. STATE OF HIMACHAL PRADESH

2013-04-08

RAJIV SHARMA

body2013
JUDGMENT RAJIV SHARMA, J. - 1. THE process for filling up 19 posts of Primary Assistant Teachers in Sarahan Block was initiated on the basis of letter, dated 18.08.2007. The last date for receipt of applications was 25.08.2007, which was later on extended to 10th September, 2007. Petitioner submitted an application for considering his candidature for the post of Primary Assistant Teacher in Government Primary School, Khareti, Gram Panchayat Diger-Kinnar. The interviews were held on 05.10.2007. Respondent No. 7 has also participated in the selection process. The result was declared on 09.10.2007. The respondent No. 7 was selected and appointed as Primary Assistant Teacher in Govt. Primary School, Khareti, Gram Panchayat Diger-Kinnar. Petitioner has secured 57.5 marks and respondent No. 7 has secured 59 marks. 2. MR. Karan Singh Kanwar, learned counsel for the petitioner has vehemently argued that the respondent No. 7 could not be granted 10 marks under the category of unemployed family since the sister of respondent No. 7 was working as Anganwari Worker. Mr. Pramod Thakur, learned Additional Advocate General and Mr. G.S. Rathore, learned counsel for respondent No. 7, have supported the selection of respondent No. 7 as Primary Assistant Teacher. According to them, brother of the petitioner was also working as JBT teacher and the father of the petitioner owns more than 150 bighas of land. They also contended that the Anganwadi workers are not Government Servants. 3. I have heard the learned counsel for the parties and gone through the pleadings carefully. 4. THE respondent-State has framed a scheme called "The Himachal Pradesh Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) Scheme, 2003". The minimum essential qualification for filling up the post of Primary Assistant Teacher has been provided under Clause-6. According to Clause-8, the Primary Assistant Teacher are entitled to be paid an honorarium for ten months in an academic year, by the respective employer, i.e., Gram Panchayat of the area out of the Grant-in-Aid allocations made available by the State Government, in accordance with the norms prescribed. As per Clause-9, the appointing and punishing authority of the Primary Assistant Teacher is Gram Panchayat. The selection process for filling up the post of Primary Assistant Teacher is prescribed under Clause-10. The selection criteria and procedure has been prescribed under Annexure-1 framed under Clause-10 of the Scheme. 10 marks have been allocated to the members of unemployed family. As per Clause-9, the appointing and punishing authority of the Primary Assistant Teacher is Gram Panchayat. The selection process for filling up the post of Primary Assistant Teacher is prescribed under Clause-10. The selection criteria and procedure has been prescribed under Annexure-1 framed under Clause-10 of the Scheme. 10 marks have been allocated to the members of unemployed family. Petitioner and respondent No. 7 have been granted 10 marks under this category. The candidates are required to submit non-employment certificate that nobody from the family is in Government or Semi Government Service, to be issued by the Tehsildar. It is not in dispute that the sister of respondent No. 5 is working as Anganwadi Worker. The Department of Women & Child Development, Ministry of Human Resource Development, Government of India has issued instructions regarding Integrated Child Development Service Programme on 31.12.1988. The Scheme envisages an integrated delivery of certain services (supplementary nutrition, immunization, health check-up, referral services, non-formal education and health and nutrition education) to pre-school children and pregnant and nursing women. According to paragraph No. 2.1, as far as possible, the Anganwadis should be run by voluntary organizations, local bodies, panchayats, Indian Council for Child Welfare etc. which can be given grant-in-aid according to the approved pattern given in the Scheme. The Central Social Welfare Board and the State Social Welfare Advisory Boards are required to be involved in the organization of new voluntary organization, wherever necessary. According to paragraph No. 2.2, if no organization is available, the State Governments, or the State Social Welfare Advisory Boards may run the Anganwadis directly and hand over the running of these Anganwadis to voluntary agencies subsequently to facilitate greater community involvement and participation in the programme. Chapter-3 of the programme deals with functionaries. According to paragraph No. 3.1, the following is the staff pattern of the project: "1. Child Development Project Officer. 2. Additional/Assistant Child Development Project Officer. 3. Supervisor (Mukhysevika). 4. Anganwadi Workers. 5. Helper. 6. Assistant. 7. Clerk Typist. 8. Driver. 9. Statistical Assistant." According to paragraph No. 3.1.18, a normal ICDS project has one post each of CDPO, Assistant, Statistical Assistant, Clerk/Typist, Driver and Peon. These posts can carry pay scales as per State Government's rules and the Ministry provides funds fully for all such posts. The staffing pattern for State and District level is given in Annexure-III. 8. Driver. 9. Statistical Assistant." According to paragraph No. 3.1.18, a normal ICDS project has one post each of CDPO, Assistant, Statistical Assistant, Clerk/Typist, Driver and Peon. These posts can carry pay scales as per State Government's rules and the Ministry provides funds fully for all such posts. The staffing pattern for State and District level is given in Annexure-III. The expenditure on pay and allowances of the staff at the State cells (except the drivers' salary) and district level cells is to be set out of ICDS funds released by the Ministry. The recruitment of personnel is provided under paragraph No. 3.2. A good officer having the prescribed qualification can be selected from one of the existing State cadres as CDPO. If no suitable officer is available from the existing cadres of the State Government, urgent steps are required to be taken to select an officer with the requisite qualifications. The officer has to be borne on some appropriate State cadre and his pay scale shall be the same as that of the BDO in the State. The CDPO should preferably be an officer who is junior to the BDO. The essential qualifications for filling up the posts of CDPO are as under: "(i) Degree in any one of the Social Science subjects viz. Sociology, Social Work, Economics, Anthropology Home Science, Nutrition or any allied field of a recognized University or equivalent. (ii) One year's experience in Child Welfare Programme, Social Work, preferably in a Social Welfare Institution recognized by Government." 5. The post of Assistant CDPO, is to be filled up by a person, preferably a lady, having qualifications and experience etc., prescribed for the CDPO. She should also be borne on some proper State cadre in the pay scale of comparable post. The Assistant CDPO is to be a non-gazetted (Group-B) Officer. The Supervisor (Mukhyasevika) should be in the same pay scale as that of the Mukhyasevika in the State. The method of recruitment of Anganwadi worker is provided under paragraph No. 3.2.12. The Anganwadi worker should be a lady (18-44 years) from the local village and acceptable in the local community. Special care should be taken in her selection so that the children of Scheduled Caste and other weaker sections of the society are ensured free access to Anganwadi. The method of recruitment of Anganwadi worker is provided under paragraph No. 3.2.12. The Anganwadi worker should be a lady (18-44 years) from the local village and acceptable in the local community. Special care should be taken in her selection so that the children of Scheduled Caste and other weaker sections of the society are ensured free access to Anganwadi. According to paragraph No. 3.2.19, the posts of CDPOs can be filled by direct recruitment as well as by promotion in order to ensure that persons with the right qualifications and background are available. It is also suggested that 66% of the posts may be filled by direct recruitment of those preferably with Postgraduate Degree in Child Development, Nutrition and Social Work. The remaining 33% of the posts may be filled by promotion from amongst the graduate Mukhyasevikas of the ICDA programme. The job responsibilities of functionaries of the Child Development Project Officer are provided under paragraph No. 3.3. The honorarium/stipend of the Anganwadi Worker is provided under paragraph No. 3.4. It is stipulated under paragraph No. 3.4.5 that the State Government/Union Territories shall take into account the experience of an Anganwadi Worker in a previous ICDS project and in other State(s) as well, while considering her eligibility for appointment to the post of Supervisor and while fixation of the scale of honorarium, on her fresh appointment as an Anganwadi Worker in an ICDS project. According to paragraph No. 3.6, the Anganwadi Workers are honorary workers and not regular government servants. They can be allowed casual leave up to 20 days in a year. Out of which, 10 days leave may be granted at a time to take care of illness etc. 6. THE respondent-State has framed a Scheme/guidelines for engagement of Anganwadi Workers/Helper under ICDS Programme in Himachal Pradesh. The Selection Committee is provided under paragraph No. 2 of the Scheme. The Anganwadi Workers are entitled to honorarium of Rs.1800/- (Rs.1500/- Centre Government +Rs.300/- State Govt.) The eligibility criteria has been provided under paragraph No. 4 of the Scheme. According to paragraph No. 5, the applications are to be called by the Child Development Project Officer. The marks to be awarded by the Committee are provided under paragraph No. 7. The age of retirement of Anganwadi Worker is 60 years. According to paragraph No. 5, the applications are to be called by the Child Development Project Officer. The marks to be awarded by the Committee are provided under paragraph No. 7. The age of retirement of Anganwadi Worker is 60 years. The Anganwari Workers being honorary workers, their services can be terminated after service of 15 days notice for giving reasons to be recorded in writing. The termination orders are to be passed by the concerned Child Development Project Officer with due approval of Director (SJ & E). According to paragraph No. 8, no candidate engaged as Anganwadi Worker or Helper will have right to claim regularization /absorption / appointment as regular Govt. employee of the State Government. What emerges from the instructions issued under Integrated Child Development Service Programme and the Scheme framed by the State Government, is that the appointment of Anganwadi Worker is voluntary in nature. No Recruitment and Promotion Rules under Article 309 of the Constitution of India have been framed for regulating their conditions of service. They are paid honorarium. The applications for appointment of Anganwadi Workers are to be invited by the Child Development Project Officer. Their appointing and removal authority is Child Development Project Officer. They are not holding any regular post under the State Government. Even under the ICDS Scheme, it is provided that the nature of appointment of Anganwadi Workers is honorary and not of regular Government servant. They are appointed under a Scheme, which is not statutory in nature. However, as far as CDPOs, ACDPOs, Supervisors are concerned, the officer has to be borne on some appropriate State cadre. Now, as far as CDPOs is concerned, his pay scale has to be that of BDOs serving in the State. Similar service conditions have been provided for ACDPOs and Supervisors. The CDPOs, ACDPOs and Supervisors can be treated as holders of civil posts, but not the Anganwadi Workers taking into consideration their voluntary nature of recruitment and payment of honorarium etc. 7. THEIR Lordships of the Hon'ble Supreme Court in State of Karnataka and Ors. Vs. Ameerbi and Ors. SLR 2007(1) 722, have held that the Anganwadi workers do not carry on any function of the State. They do not hold post under a statute. Their posts are created. Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. Vs. Ameerbi and Ors. SLR 2007(1) 722, have held that the Anganwadi workers do not carry on any function of the State. They do not hold post under a statute. Their posts are created. Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. They are appointed under a scheme which is not of a permanent nature although might have continued for a long time. Their Lordships have held as under: "19. 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 Government; (viii) he is appointed revenue officer. 20. 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. 22. 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. 29. 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. 30. 29. 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. 30. 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 there into. 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-a-vis cases or 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. 36. Different tests applied even for determining the relationship of employer and employee have recently been noticed by this Court in District Rehabilitation Officer and Ors. V. Jay Kishore Maity and Ors., JT 2006 (10) SC276: {2007 (1) SLR 333 (SC)}. 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." 8. MR. Karan Singh Kanwar, learned counsel for the petitioner has placed strong reliance on the judgment of Apex Court in State of West Bengal & Ors Vs. Kaberi Khastagir & Ors. AIR 2009 Supreme Court 1437. This judgment is distinguishable. Their Lordships of the Hon'ble Supreme Court in this judgment have declared the employees of Integrated Child Development Scheme Project as Government employees since their conditions of service were regulated under the West Bengal Junior Social Welfare Services Recruitment Rules, 1985. Kaberi Khastagir & Ors. AIR 2009 Supreme Court 1437. This judgment is distinguishable. Their Lordships of the Hon'ble Supreme Court in this judgment have declared the employees of Integrated Child Development Scheme Project as Government employees since their conditions of service were regulated under the West Bengal Junior Social Welfare Services Recruitment Rules, 1985. However, in the instant case, the conditions of service of Anganwadi Workers are not regulated under the Rules framed under Article 309 of the Constitution of India or any rules framed by the Central Government or State Government. The post of CDPO/ACDPO has to be filled up by suitable officer available from the existing cadres of the State Government and the officer should be borne on some appropriate State cadre. In view of this, the State of West Bengal in its wisdom has framed the West Bengal Junior Social Welfare Services Recruitment Rules, 1985. Their Lordships of the Hon'ble Supreme Court in State of Gujarat and another Vs. Raman Lal Keshav Lal Soni and others, AIR 1984 Supreme Court 161 have held that the presence of all or some of the factors, such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. Their Lordships have held as under: "27. We have to first consider the question whether the members of the Gujarat Panchayats Service are Government servants. Earlier we have already said enough to indicate our view that they are Government servants. We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not. Amongst the cases cited before us were Gurugobinda Basu v. Sankari Prasad Ghosal, (1964) 4 SCR 311 : ( AIR 1964 SC 254 ); State of Uttar Pradesh v. Audh Narain Singh, (1964) 7 SCR 89 : ( AIR 1965 SC 360 ); State of Assam v. Kamakchandra Dutta, (1967) 1 SCR 679 : ( AIR 1967 SC 884 ); Gurushantappa v. Abdul Khuddus, (1969) 3 SCR 425 : ( AIR 1969 SC 744 ); S. L. Agarwal v. Hindustan Steel Ltd., (1970) 3 SCR 363 : ( AIR 1970 SC 1150 ); and Jalgaon Zilla Parishad v. Duman Gobind, C. A. Nos. 24 and 25 of 1968 decided on December 20, 1968. We have considered all of them and do not consider it necessary to refer to each of the cases. In the instant case, the petitioners are paid Rs.1500/- grant-in-aid by the Central Government and only Rs.300/- is paid by the State. 9. IN view of the tests laid down by their Lordships of the Hon'ble Supreme Court, the Anganwadi Workers are neither Government servants nor they hold civil posts in the State. These persons cannot be stated to be in Government/Semi Government service. 9. IN view of the tests laid down by their Lordships of the Hon'ble Supreme Court, the Anganwadi Workers are neither Government servants nor they hold civil posts in the State. These persons cannot be stated to be in Government/Semi Government service. Therefore, 10 marks have rightly been awarded to respondent No. 7, even though her sister is employed as Anganwadi Worker. 10. ACCORDINGLY, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs.