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2022 DIGILAW 16 (TRI)

Union of India v. Anjana Roy (Chakraborty)

2022-01-11

INDRAJIT MAHANTY, S.G.CHATTOPADHYAY

body2022
JUDGMENT Indrajit Mahanty; CJ. - Heard Mr. Bidyut Majumder, learned Asstt. S. G., appearing on behalf of Union of India. Also heard Mr. Raju Datta, learned counsel appearing for private respondents as well as Mr. D Sharma, learned Additional Government Advocate representing the State-respondents. 1. In the present appeal, challenge has been made to the following directions passed by the Hon'ble Single Judge which read as follows : '9. The State government has not accepted the upper age limit of discharge as suggested by the said memorandum dated 22.10.2012 issued by the Ministry of Women and Child Development. After the stock-taking exercise, the Union of India in the Ministry of Women and Child Welfare and Child Development Department, by virtue of the said memorandum dated 22.10.2012 has observed that AWWs/AWHs will be disengaged on completion of 65 years of age. Since some of the state governments have not accepted the maximum age of 65 years, the central government shall take a uniform policy decision and it is expected that such change should be brought about by prescribing a uniform age of 65 years in all states and UTs. Since, the State government has taken a decision that the age of discharging for AWWs/AWHs has been decided to be on completion of the age of 60 years, most of the states have accepted the age of 65 years. It would be appropriate that the Central government in the Ministry of Women and Child Development to adopt a uniform policy in terms of the clause (e) of the communication dated 22.10.2012 (Annexure-1 to the reply filed by the respondents). Such uniform policy in respect of age of relieving or disengagement of AWWs/AWHs shall be taken by the Central government within a period of four months from the date when they would receive a copy of this order from the petitioners. Till then, if the petitioner has crossed the age of 60 years be allowed to continue.' 2. While challenging the aforesaid direction of the Hon'ble Single Judge for framing a common policy within four months learned Astt. S. G. submits that the Union of India had communicated their policy in their communication dated 22nd October 2012 (under Annexure - 1 to the reply filed by the respondents). Consequently, there is no necessity of passing any direction for further policy decision in the matter. 3. S. G. submits that the Union of India had communicated their policy in their communication dated 22nd October 2012 (under Annexure - 1 to the reply filed by the respondents). Consequently, there is no necessity of passing any direction for further policy decision in the matter. 3. It is important to take note herein that a batch of cases [WP(C) No.886/2019 and connected petitions] were filed by persons who were working as Angwadi Workers in the State of Tripura relying upon the communication dated 22nd October 2012 issued by Government of India, Ministry of Women and Child Department wherein the department had annexed detailed guidelines for implementation of the age of retirement which reads as under : '(e) Relieving AWWs/AWHs on completion of 65 years of age. The existing guidelines do not provide uniform age limit for their retirement. Rather, this has been left to the State Governments to decide. Thus, as on date no age has been prescribed for dispensing with the services of AWW/AWH. Prescribing maximum age limit of 65 years for an AWW/AWH has been supported by most of the State Governments at various forums. In view of the above, a uniform policy decision would be undertaken to discontinue the services of AWW/AWH at the age of 65 years and EPC would ensure its implementation in all the States/UTs.' 4. This batch of cases, out of which the present appeal is one such case, came to be considered by a Division Bench of this Court [in WA No.173/2021 and other connected appeals in case of State of Tripura v. Smt. Rina Purkayastha and Ors.] by an order dated 29th June 2021 filed by the State of Tripura itself. The said appeal came to be dismissed by the Division Bench inter alia holding that since 90% of the funding comes from the Government of India Revenue and the State contributes barely 10% of the expenditure, in such back ground when the Government of India Policy specifically formulated for such purpose provided that all State Governments must formulate the uniform policy of age of retirement which pegs the age of retirement at 65 years, we find no reason why the Government of Tripura, should have taken a different view. 5. 5. In other words, the Hon'ble Division Bench came to also conclude that the discrimination meted out to Anganwadi Workers in the State of Tripura was discriminatory vis-à-vis their counterparts in other States. Learned Asstt. S. G. reiterates that the communication dated 22nd October 2012, as noted hereinabove, continues to be in force but submits that it is not for the Union of India to make a uniform policy but it was left with the respective States, under whom the petitioners (private respondents herein) were employees, to take such a decision. Consequently, his contention is that the direction issued to the Union of India in the present case ought to be set aside. 6. We find that the judgment of the Hon'ble Single Judge was confirmed by this Court in the appeal as noted herein above wherein the Division Bench came to conclude that since service of the respondents was not pensionable and thus, there is no question of pensionable service being higher with higher retirement age leading to greater pension liability for the State Government. Age of retirement of the employees engaged in the scheme is essential part of implementation of the scheme. Therefore, considering the higher age of retirement as suggested by the Union of India in the aforesaid notification the Division Bench dismissed the appeal and affirmed the judgment passed by the Hon'ble Single Judge. 7. In the present case also, an identical order has been passed by the Hon'ble Single Judge. It would be appropriate also to take note of the fact that no appeal in the present case has been preferred by the State. Yet it would be important to take also note of the fact that order dated 29th June 2021 passed in WA No.173/2021 has not been challenged by the State of Tripura and hence the State of Tripura is bound by the same. However, in view of the prayer made in the present appeal, the direction to the Union of India to frame a common policy, in our considered opinion, is wholly redundant. 8. Learned Astt. S. G placed reliance on the judgment rendered by the Hon'ble Supreme Court in case of Directorate of Film Festivals and Ors. v. Gaurav Ashwin Jain and Ors. reported in (2007) 4 SCC 737 and in particular paragraph 16 thereof which reads as under : '16. 8. Learned Astt. S. G placed reliance on the judgment rendered by the Hon'ble Supreme Court in case of Directorate of Film Festivals and Ors. v. Gaurav Ashwin Jain and Ors. reported in (2007) 4 SCC 737 and in particular paragraph 16 thereof which reads as under : '16. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review [vide : Asif Hameed v. State of J&K - 1989 Supp (2) SCC 364; Shri Sitaram Sugar Co. Ltd., v. Union of India - 1990 (3) SCC 223 ; Khoday Distilleries v. State of Karnataka - 1996 (10) SCC 304 , Balco Employees Union v. Union of India - 2002 (2) SCC 333 ), State of Orissa v. Gopinath Dash - 2005 (13) SCC 495 and Akhil Bharat Goseva Sangh v. State of Andhra Pradesh - 2006 (4) SCC 162 ].' 9. If we take note of the aforesaid judgment of the Hon'ble Supreme Court, the said judgment itself clarifies that a Writ Court can interfere with the policy decision of a State if the same is 'manifestly arbitrary'. The arbitrariness, in the present set of cases, related to the policy of the State of Tripura in not accepting the suggestion made by the Union of India under its communication dated 22nd October 2012 and clearly, as noted herein above, the State of Tripura has not sought to challenge the outcome of dismissal of its appeal before this Court. The arbitrariness, in the present set of cases, related to the policy of the State of Tripura in not accepting the suggestion made by the Union of India under its communication dated 22nd October 2012 and clearly, as noted herein above, the State of Tripura has not sought to challenge the outcome of dismissal of its appeal before this Court. Therefore, on merits, insofar as the directions are concerned, the State of Tripura has implemented the same and consequently, we are of the considered view that no further direction is necessary for the Union of India to issue any common guideline as directed. However, since on merits of the matter the earlier Division Bench of this Court has already upheld the judgment of the learned Single Judge, we similarly while setting aside the direction to the extent of directing the Union of India to pass a common policy, affirmed rest of the judgment and accordingly, all the appeals are partly allowed and disposed of. 10. Pending application(s), if any, also stands disposed of.