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CASE NO.: Appeal (civil)  4953-4957 of 1998

PETITIONER: State of Karnataka & Ors

RESPONDENT: Ameerbi & Ors

DATE OF JUDGMENT: 07/12/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

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

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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/-

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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:

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"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\005 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.  

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       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

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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:

"\005An 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\005"

       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

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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

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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\005"

       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

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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:

"\005It 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\005"

       [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.