Monisha M.S. and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** ## **WP(C).No.24893 OF 2018(J)** ## **PETITIONER/S:** - **1 MONISHA M.S. W/O RAJESH R, AGED 29 YEARS,PALLIVILA VEEDU, THOZHUKKAL,NEYYATTINKARA P.O.,** - **2 USHA @ GEETHA W/O VIJAYAKUMAR, AGED 44 YEARS,PLAVIL PUTHEVEEDU, PUNNAKKADU,PRUMBAZHATHOOR P.O, NEYYATTINKARA** - **3 VIJAYAKUMARI.R W/O REGHUVARAN, AGED 51 YEARS,KANNEERVEEDU, KANICHANKODE,NEYYATTINKARA** - **4 GEETHAKUMARI.G W/O JAYAKUMAR, ROHINI SADANAM,ALAMPOTTA, PERUMBAZHATHOOR P.O,NEEYYATTINKARA** - **5 PRAJITHA.J W/O MANI, AGED 35 YEARS,M.R.BHAVAN, POOVAVILA,PERUMBAZHUTHOOR P.O.,NEYYATTINKARA** - **6 BEENA.S W/O RAVEENDRAN NAIR,SURABHI, OLATHANNI,NEYYATTINKARA** - **7 SUNITHA.V.S W/O JUSTIN B, CHEMBARATHIVILA VEEDU,CHEMBARATHIVILA, THOZHUKKAL,NEYYATTINKARA P.O.** - **8 JAYASREE.R SARASWATHIVILASAM, KANICHAMUKKU,NEYYATTINKARA, THIRUVANANTHAPURAM** ## **9 SREEKUMARI VISAKH SADANAM,MAMPHAZHAKKARA,PERUMBAZHATHOOR** **BY ADVS. SRI.V.G.ARUN (K/795/2004) SMT.INDULEKHA JOSEPH SRI.NEERAJ NARAYAN** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT,SOCIAL WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001** - **2 THE DIRECTOR** - **DIRECTORATE OF SOCIAL JUSTICE,VIKAS BHAVAN, THIRUVANANTHAPURAM-695001** - **IS CORRECTED AS PER ORDER DATED 25.7.2018 AS** - **DIRECTOR, WOMEN AND CHILDREN DEVELOPMENT, DIRECTORATE OF SOCIAL JUSTICE, VIKAS BHAVAN, THIRUVANANTHAPRUAM -695001** - **3 THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF WOMEN AND CHILD DEVELOPMENT,SHASTHRIBHAVAN, NEW DELHI** - **4 THE DISTRICT SOCIAL WELFARE OFFICER, POOJAPPURA-695012, THIRUVANANTHAPURAM** - **5 THE NEYYATTINKARA MUNICIPALITY REPRESENTED THROUGH CHAIRPERSON,NEYYATINKARA P.O695121, THIRUVANANTHAPURAM** - **6 THE CHILD DEVELOPMENT PROJECT OFFICER ATHIYANOOR, NEYYATTINKARA P.O,THIRUVANANTHAPRUAM695121** - **7 DEENIYA .O.N ILA, KARAMVILA, NEYYATTINKARA P.O-695121** - **8 SUMAYYA. A, C.K.V. HOUSE, POOVAR ROAD,VAZHIMUKKU, BALARAMAPURAM PO, 695501** - **9 PRIYAMMA.R MELE PEZHETTUKUZHIVEEDU,OOLATHAANNI, NEYYATTINKARA P.O-695121** - **10 GANGA.S, KEEZHETHIL VEEDU, CONVENT ROAD,NEYYATTINKARA P.O-695121** - **11 VIJI.V.P, ABHILASH VILASAM, ELAVANIKKARA,VELIYAMCODE P.O-695512** - **12 MANJUSHARANI, C.V.SADHANAM, ATHIYANNOOR, ARALUMOOD P.O-695123** - **13 SANDHYA.T.S, SP BHAVAN, KULATHUMAL,** ## **CHAYKOTTUKONAM P.O-795122** **14 L.SREEJAYA MANI BHAVAN, THAZHATHEKOTTOOR,ALAMPOOTA, PERMBAZHATHOOR P.O-695126 15 THE VIGILANCE OFFICER DIRECTORATE OF SOCIAL JUSTICE,VIKAS BHAVAN, THIRUVANANTHAPURAM-695001** **R3 BY ADV. SRI.SUVIN R.MENON, CGC R5 BY SRI.R.T.PRADEEP, SC, NEYYATTINKARA MUNC R7-9, R11-14 BY ADV. SMT.VIJI K.N. R7 BY ADV. SRI.HARIKUMAR R.S. R7-9, R11-14 BY ADV. GIRIJA K GOPAL R10 BY ADV. SMT.V.H.JASMINE** ## **OTHER PRESENT:** ## **SRGP.SMT.REKHA C.NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.10.2019, THE COURT ON 26.11.2019 DELIVERED THE FOLLOWING:** **P.V.ASHA, J.** _**--------------------------**_ **W.P.(C) No.24893 of 2018 --------------------------Dated this the 26[th] day of November, 2019** ## **JUDGMENT** Ext.P1 order which provides for the constitution of selection committee for recruitment to the post of Anganwadi Workers and Helpers, is under challenge in this Writ Petition. Petitioners also challenge the selection and appointment of respondents 7 to 14 made by a committee constituted in accordance with Ext.P1 order. 2. The petitioners were employed in various Anganwadis in Neyyattinkara Municipality-the 5[th] respondent. They had submitted applications for appointment to the post of Anganwadi Workers/Helpers. According to the petitioners they were ranked down in the rank list only because of the political considerations and favoritism towards the party respondents. It is stated that Ext.P1 order provided for a selection committee consisting of 5 social W.P.(C) No.24893/2018 **==> picture [19 x 8] intentionally omitted <==** workers; in the selection committee constituted in Neyyattinkara Municipality all the 5 of them are office bearers/active workers of ruling political party. The petitioners complain that Ext.P1 order does not provide for the definition of Social Worker or the criteria for selection of the Social Workers and that the 4[th] respondent is given unbridled power for selecting the 5 Social Workers. They have also pointed out that the 5 Social Workers who are selected purely on political considerations along with the elected head of the local bodies and the representative of the Block Panchayat who are also appointed on political consideration will have a decisive role in the selection and the departmental officials included in the committee would not have a say in the selection process, which is not envisaged under Ext.P2 ICDS manual or Ext.P3 letter of Government of India issued on 28.05.2007. 3. It is their contention that the qualification of the 5 persons included in the selection committee in Neyyattinkara as social workers is that they are active workers of the ruling party and they do not possess any deep knowledge in child development. Producing W.P.(C) No.24893/2018 **==> picture [19 x 8] intentionally omitted <==** Ext.P4 list of social workers, petitioners pointed out that M/s.V.Kesavankutty and Gopalakrishnan are area committee members of the party. Latha is a local committee member, Jaya is a party branch member and N.K. Anithakumari is the councilor and therefore it is stated that there is absolute non application on the part of 4[th] respondent in selecting those persons. It is also pointed out that the Chairperson and Vice Chairman of the Municipality who are the other non-official members are also persons who act on political consideration. The Health Supervisor, CDPO, Municipal Secretary and Program Officer who are the official members would not have any say in the matter. It is pointed out that as the quorum is fixed as 6, selection committee can even function in the absence of the official members. Petitioners pointed out that marks are not awarded to respondents 7 to 14 in accordance with the parameters laid down in in Ext.P8. Producing Ext.P5 rank list and Ext.P6 mark list, it is stated that the 1[st] petitioner who is a BPL, was not awarded the mark earmarked for the same. It is also contended that awarding of marks was not in accordance with the W.P.(C) No.24893/2018 :7: scheme. It is also stated that one Jayadali did not award any marks to the 1[st] petitioner though she secured rank no.34. It is stated that the 9[th] petitioner was awarded only one mark for experience where as she was entitled to 2 marks as per Ext.P8 and she was not awarded any marks by any of the members. It is stated that the 2[nd] petitioner who passed SSLC in the 1[st] chance was awarded only 67 marks as against 70 marks. It is pointed out that 6[th] petitioner was not awarded any marks though she had crossed the age of 40 years. It is stated that 8[th] respondent who scored 94[th] rank was appointed while the petitioners who got rank above her were denied appointment. Similarly it is stated that 7[th] respondent who is APL was granted marks as BPL and she was granted 2 marks towards 9 months experience. Full marks were awarded to several of the respondents by the members other than the officers. It is also alleged that the 3[rd] respondent who is the sister of a councilor was awarded full marks by all the members. 9[th] respondent who is the wife of a councilor was awarded full marks by the non-official members and she got appointment. In the case of the 11[th] respondent it is ## W.P.(C) No.24893/2018 **==> picture [19 x 8] intentionally omitted <==** stated that she is a close relative of Sri.Goplakrishnan who was one of the members of the selection committee who assessed her and she was awarded full marks by all the members. Therefore according to the petitioners inclusion of the 5 social workers as members, who were selected merely on the ground of politics will defeat the purpose for which the selection is made. 4. Petitioners claim that even though they had pointed out the illegalities in the selection before all the authorities, no action was taken. It is also pointed out that constitution of selection committee with 5 Social Workers provided in paragraph 7 of Ext.P8 order dated 22.10.2008 was under challenge in WP(C) No.25614/2009 alleging that it was in variance with Ext.P2 ICDS manual and Ext.P3 order issued by the Central Government. The operation of paragraph 7 of 2008 order was stayed by this Court by order dated 15.10.2009, making it clear that it would not prevent the Government from constituting a committee in tune with the orders issued by the Government of India. While disposing of that Writ Petition by common W.P.(C) No.24893/2018 **==> picture [19 x 8] intentionally omitted <==** judgment Ext.P10, this Court found that the subsequent order issued by Government was not challenged and therefore it was found unnecessary to adjudicate on the validity of Ext.P8 order. 5. The 1[st] respondent has filed a counter affidavit and thereafter an additional counter affidavit. It is stated that the Government of India had in its letter dated 02.11.2006 suggested that Anganwadi workers in the selected project areas may be selected by a committee consisting of District Social Welfare officer, BDO, CDPO, Medical Officer of the Primary Health Center, President of Taluk Panchayat/Block Advisory Committee, District representative of the State Social Welfare Advisory Board and any other nonofficials which the State Government may consider appropriate. It is stated that in our State the funds, the functions and functionaries in respect of Anganwadi Management are primarily vested with the Grama Panchayat/Municipal Body in consonance with the constitutional amendments. It was stated that the Block Development Officer as Chairman of selection committee is only optional; the selection committee was W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** constituted in the State in consultation with the Law Department; the Social Workers in the selection committee are having sufficient knowledge in the field of Child Development and there is no arbitrariness in their inclusion in the committee. 6. In the additional counter affidavit it is stated that the entire process of selection of the Anganwadi Workers/Helpers is done in accordance with the criteria and guidelines issued by the Central as well as State Government from time to time. It is also their contention that it is completely within the realm of the State Government to fix or alter the method of appointment. It is stated that economic and social planning comes under entry no.20 in the concurrent list and Ext.P1 is an order within the purview of the State Government. It is further stated that there is no provision for fixing qualification or experience for the Social Worker Members. It is stated that when they happen to be former members of local bodies it is a proof that they were in the field of social work and it would be an added qualification for such person for inclusion in the selection committee in the category of W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** social work as they are closely associated with the functioning of the Anganwadi. It is stated that their primary duty is to see the welfare of the children and in assessing the child development programs and addressing child development programmes and to address the connected issues. It is stated that they are presumed to be well versed in child development matters and are the best suitable persons to be appointed as members of the selection committee. It is also stated that considering the Central-State sharing ratio in implementing various schemes under the ICDS, the role of Central Government is only nominal and the deviation if any from the instructions in Ext.P2 letter which was issued at a time when the share of Central Government was more would not vitiate the constitution of selection committee. According to the respondents it is within the authority of the State Government to issue executive orders or statutory rules in respect of the method of appointment, qualification, etc as well as to alter the same. It is stated that Ext.P1 order was issued after several deliberations and discussions and that the practical methods adopted by the W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** Government in its wisdom is not liable to be interfered with. 7. Petitioners have filed an additional reply affidavit stating that the 5 social workers were not members or former members of the local body. Producing Ext.P13 letter dated 28.02.2019 of the Government of India it is stated that Anganwadi Services Scheme is a centrally sponsored scheme with 60:40 contribution between centre and state. 8. The 10[th] respondent has filed a counter affidavit. It is stated that she participated in the selection process and was placed at rank no.6 in Ext.P5 rank list. But she was not given appointment for reasons unknown. 9. The learned counsel for the petitioners relied on the judgment dated 28.02.2008 of the High Court of Karnataka in _**T.J.Manjamma and others vs. State of Karnataka and others**_ wherein the orders issued by Government of Karnataka for constitution of selection committee with local MLAs or nominees as chairman, was set aside. Relying on the judgment of this court in ## _**V.J.Jayakumar Abraham vs. State and others : 1993 KHC**_ ## W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** _**211**_ , she argued that the unguided power conferred on the 4[th] respondent is unconstitutional. Relying on judgment of the apex court in _**Khalid Hussain v. Commissioner and Secretary to Government of T.N., Health Dept, Madras and Others : 1987 KHC 765 = 1987 supp SCC 329**_ and that of the of the Gauhati High Court in _**Tripura Guardians' Forum and another vs. State of Tripura and others : 1993 KHC 1586**_ , she argued that the absence of the definition of the words “Social Workers” would lead to arbitrariness. Relying on the judgment in ## _**Deeptimayee Parida V State of Orissa: (2008) 10 SCC**_ _**687** ,_ she argued that denial of marks to the petitioners by the members of selection committee, in accordance with the parameters laid down in Ext.P8 order vitiated the selection process. She argued that the order Ext.P1 which provides for appointment of 5 Social Workers, permits a selection committee with majority of politicians to select candidates of their choice on political considerations is illegal. 10. The learned Government Pleader relied on the judgment in _**Union of India vs. Pushpa Rani and others :**_ _**2008 9 SCC 242**_ , _**K.A.Nagamani vs. Indian Airlines and**_ W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** _**others : 2009 (5) SCC 515**_ and the judgment dated 07.03.2019 in _**WP(C) 20669/2018**_ and argued that it is the prerogative of Government to decide who all are to be included in the selection committee and petitioners do not have any right to insist how it is to be constituted. 11. In view of the contentions raised on both sides it is necessary to have a look at Ext.P2 ICDS Manual, relevant portion of which reads as follows: _“ 5.23. Anganwadi Worker is expected to be a woman in the age group of 21-45 and is to be selected from within the village/local community. Care should be taken in the selection of Anganwadi Worker so that she can effectively serve the pre-school children, pregnant women and nursing mothers and women in the age group 15-44 in the project area. She should be able to work with women and children of scheduled caste and scheduled tribes and other weaker sections of the community._ _5.24. xxxxxxThe selection of Anganwadi Worker should be initiated by the CDPO. Since the Anganwadi Worker has to be a local woman, no attempt shall be made to select her from outside the project area, particularly through Employment Exchange or other machinery for recruitment of Government functionaries. Anganwadi workers in the selected project area may be recruited /enlisted by the CDPO on the recommendations of the village institutions/leaders. She may consult/associate with any one or more the following: (1) Medical Officer (2) Block Development Officer (in case of rural and tribal areas) (3) President of the Taluka Panchayat Committee (4) Representative of the Child Development/Training Centre (5) A representative of the State Social Welfare Advisory Board and (6) Mukhyasevikas incharge of the zone (if in position).”_ 12. In Ext.P3 letter dated 28.05.2007 of the Government of India, Ministry of Women and Child W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** Development, the states/UTs were instructed to confirm compliance of the instruction issued in its letter dated 02.11.2006, according to which the selection of Anganwadi Workers and Helpers were to be made as follows: “ _The Anganwadi Workers 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 children of Scheduled Caste and other weaker sections of the society are ensured free access to the Anganwadi. It is suggested that the Anganwadi Workers in the selected project areas may be selected by a committee consisting of the District Social Welfare Officer, the BDO, the CDPO, the Medical Officer of the Primary health Centre, the President of the Taluka Panchayat/Block Advisory Committee, district representative of the State Social Welfare Advisory Board and any other non-officials which the State Government may consider appropriate._ ” ## 13. In that letter it was also stated that inclusion of MLAs in the selection process of Anganwadi Workers would not be proper. By Ext.P3 order all the State Governments were directed to confirm compliance of the instructions therein. 14. In Ext.P8 order issued by Government on 22.10.2008 the selection committee for appointment of Anganwadi Workers and Helpers was ordered to be constituted with the President of the Block Panchayat/Chairperson of the Municipality/Mayor as the W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** Chairman, CDPO as convener and 5 social workers as members out of which 2 should be women. Ext.P8 also prescribed the marks to be allocated under various heads for selection. Some of the provisions in Ext.P8 order were amended as per order dated 30.01.2012. Paragraph 7 of the order dated 30.01.2012 was further amended as per Ext.P1 order issued on 22.12.2012. Ext.P1 order is stated to have been issued on the basis of Ext.P3 order of Central Government as well as orders issued by Government on 22.10.2008, 11.11.2010 and 30.01.2012. It was stated that as per the orders issued by the Central Government, the State Governments were free to include appropriate persons in the selection committee and that was found necessary to include the President of the Grama Panchayat in the place of the President of the Block Panchayat as Chairman of the Committee. As per Ext.P1 order, the President of the Grama Panchayat/Chairperson of the Municipality/Mayor would be the Chairperson, the CDPO would be the Convener, a representative of the Block Panchayat, Secretary of the Panchayat/Secretary of Municipality/Corporation, Medical Officer of Primary W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** Health Centre, Program Officer of District level ICDS cell and 5 social workers would also be there. The CDPO would be the Convener and the President of the local body would be the Chairperson. Paragraph 4 was amended to the effect that representative of the Block Panchayath would be nominated by Block Panchayat committee. Out of the 5 social workers 3 should be women and all the 5 should be nominated by the District Social Welfare Officer and they should have sufficient knowledge regarding child development. The nomination to the selection committee would be for a period of 2 years. Total number of members of the selection committee was prescribed as 11 with the quorum of the committee as 6. It does not provide who are to be selected as Social Workers and how their knowledge in child development is to be assessed for inclusion in the selection committee. The District Welfare Officer has not filed any counter affidavit and has not stated how the Social Workers were found out for inclusion in the selection committee. 15. It is seen that the grievance of the petitioner is two fold. One is against the inclusion of W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** 5 social workers in the committee whereas the other is that the 5 members did not award marks in accordance with the parameters given in Ext.P8 order. In this context it is necessary to have a look at the relevant provision in Ext.P8 which allocates marks under various heads for selection, which would be relevant in deciding both the grievances. Clause 6(16) of Ext.P8 order provides for the marks to be awarded in the selection for Anganwadi workers as follows: |**Part A: Certificate verification**|mark| |---|---| |pass in SSLC in 1stchance<br>(3 marks each would be reduced for each additional chance)|70| |2. pass in Nursery Teachers' Training or Pre-Primary<br>Teachers Training, approved by Government:|3| |inmates of institutions under the Social Welfare<br>Department( 1mark each for completion of each year of stay<br>upto a maximum of 4)|1<br>per| ||year| |Experience (2 mark each for each year upto a maximum of 5)|@2-<br>maximum<br>5| |More than 40years /widows/B.P.L (1+1+1)|3(1+1+1)| |Total|85| |B (interview)|mark| |---|---| |Interest in social service, physical fitness|3| |Recitation and reading of poetry|3| |story telling and action song|3| |Dance, drawing, construction of teaching aids|3| |general knowledge|3| |Total|15| |Gross Total ((A+B)|100| 16. Similarly marks are allotted for selection of W.P.(C) No.24893/2018 :19: Anganwadi Helpers also in Clause 6(17), where no marks are allotted for educational qualification. At a first blush it would appear that there is no scope for any considerations as even the marks for interview are allotted under different heads. From Exts.P7 and P8 mark sheet in respect of the selection in which petitioners participated, it is not clear whether marks are awarded under each head and whether these parameters were followed in accordance with the provisions in Ext.P8 order correctly. Petitioners have alleged that the scheme of awarding marks given in Ext.P8 is not followed. Except for stating that the selection was conducted in accordance with law the respondents have not produced any material to substantiate that the scheme in Ext.P8 was followed, while awarding marks in Exts.P6 and P7. Petitioners also have not stated whether their skill in different fields as provided in Ext.P8 was tested. It is relevant to note in this context the judgment in _**Deeptimayee**_ _**Parida's**_ case where the apex court was considering the validity of appointment of an Anganwadi Worker which was challenged on the ground that awarding of W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** additional 3 marks for married woman to a candidate who was unmarried at the time of submitting application, was illegal. The apex court held that when marks are fixed with specification of each criteria, the selection committee has to follow the same strictly. 17. At any rate 15 marks under the different heads by the 7 non-official members - 5 social workers, the President of the local body will have a decisive role in the result of the selection. Ext.P6 marklist would indicate several instances where full marks are given by the non-official members and lower marks by official members, though there a handful of instances where marks are awarded uniformly. It is also seen that in certain cases the non official members have not awarded any marks whereas official members have given high marks. When the quorum does not insist the presence of a minimum number of official members, the result would be more drastic. The 1[st] respondent has not disputed the averments in the writ petition that the 5 social workers included in the selection committee are office bearers/active workers of political parties. Therefore I find force in the contention of the petitioners that W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** the political considerations would be reflected in the selection. Any candidate who passed SSLC would get 70 marks in the first part. Ext.P6 would show that awarding of full marks by all the non-official members as well as awarding of no marks by them in the 2[nd] part would affect the results seriously. Though a proper implementation of Ext.P8 order providing for allocation of marks would bring out the best candidate, awarding marks merely on political considerations would not achieve any positive results in tune with intent and object of the scheme to promote the interest and welfare of the women and children. 18. In the judgment of Karnataka High Court relied on by Ms.Indulekha, the order in question provided that the local MLA would be the Chairperson of the selection committee. In that judgment it was found that the intention of the scheme itself was being defeated by induction of MLAs in the selection process and it was contrary to the directions and instructions of Government of India. 19. Ext.P3 order provided for the constitution of selection committee with the District Social Welfare W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** Officer, BDO, CDPO, Medical Officer of PHC, President of Taluk Panchayat/Block advisory Committee, District representative of the State Social Welfare Board and any other non-officials which the State Government may consider appropriate. Thereafter eventhough Ext.P8 order was issued providing for constitution of selection committee with the President of the Block Panchayath/Chairperson of Municipality/Mayor of the Corporation as Chairman, CDPO and 5 social workers it is seen that that order could not be implemented because of stay orders issued in W.P.(C) No.25614 of 2009. The judgment in that case in Ext.P9 would show that while staying para.7 of Ext.P8 order, this court had permitted Government to issue orders providing for constitution of selection committees in terms of executive orders of Government of India. In the counter affidavit it is stated that Government thereafter issued G.O.(MS) No.05/2012/SWD dated 30.1.2012 and that Ext.P1 was issued in modification of that order. 20. Ext.P1 order would show that para 7 as well as para 4 of the order dated 30.01.2012 were amended. W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** While para 4 as amended would show that there would be 11 members in the selection committee with (1) the President/Chairperson/Mayor of the local body as President (2) the CDPO (3) representative of Block Panchayat (4) Secretary of local body (5) Medical Officer of Primary Health Centre (6) Programme officer of District ICDS cell and (7) 5 members of Social Workers and the quorum is fixed as 6, it is quite possible that the dominance is for the non-official members and the result of the entire selection would depend on their decision. Out of the 11 members including the Chairman, 7 are non-official members. 21. Ext.P1 as well as the counter affidavit says inclusion of the Block Panchayath President/Block Development Officer is optional and State Government is free to take appropriate decision and therefore, the elected head of the local body was placed as the Chairman of the committee. But the inclusion of 5 social workers, is not seen provided for in Ext.P3 order, though Programme Officer and Medical Officer of PHC are provided for. In addition to that the Secretary of local body and the representative of Block Panchayat W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** were added. Permission granted to State Government in Ext.P3 order is only to include any other non-official. It cannot mean any number of non-officials can be included that too in such a manner that the selection itself would be in the hands of such non-official members especially when the quorum does not insist the presence of official members, paving way for a recruitment by the political parties who would be in power from time to time to induct their favorites. 22. The 1[st] respondent has stated that it is for the State Government to decide who are all to be included in the selection committee. But Ext.P1 shows it is issued on the basis of Ext.P3 order. If that be so 1[st] respondent has to constitute the selection committee in tune with the directions of Government of India. It cannot supplement Ext.P1 order based on reasons subsequently invented. It is also pertinent to note that these orders are issued while the interim order which permitted the 1[st] respondent only to issue orders in tune with the orders issued by Government of India, was in force. 23. As pointed out by the petitioners, inclusion W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** of 5 Social Workers as members, in addition to the representative of the Block Panchayat along with the President/Chairman/Mayor of the local body will give the non-official members dominant role to favour their nominees. Ext.P1 order itself is sufficient to conclude that the 1[st] respondent is constituting the committee in accordance with Ext.P3 letter. Such constitution cannot be in deviation of what is provided in Exts.P2 and P3 orders of Government of India. Though the petitioners have not alleged any malafides or have not impleaded the members of the selection committee the 1[st] respondent has not denied the contention of the petitioners that all of them are either the office bearers or active members of a political party. Membership in a political party cannot be the criteria to find out social workers. 24. In order to achieve the very purpose behind the scheme under which the Anganwadis are functioning, there should be a fair selection which would enable the competent candidates who would be appointed to work in tune with the object of the scheme, without being compelled to oblige the political parties. W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** 25. In these circumstances, I am of the view that the State Government has to limit the number of nonofficial members including the Social Workers and also to lay down the parameters to find out the social worker to be included in the selection committee or else the selection of the Anganwadi workers would be in the hands of the political parties ruling the local body from time to time, which would not be feasible for the smooth and effective functioning of Anganwadis. 26. As pointed out by the petitioners there are no guidelines for the 4th respondent to select the Social Workers. In the judgment in _**V.J.Jayakumar Abraham's**_ case (supra) this Court considered the vires of Rule 452BB of Kerala Prison Rules, enabling Government to grant parole in deserving cases and held that the rule which embodied unguided and uncanalised discretion on Government was arbitrary. While conferring power on the 4th respondent to include 5 Social Workers in the committee, though it is stated that they should have deep knowledge in child development, no guidelines are issued how to select them which leads to arbitrariness. Similar is the term “Social Worker” without defining W.P.(C) No.24893/2018 :27: the same. As pointed out by the learned Counsel, the apex court in the judgment in _**Khalid Hussain's**_ case (supra) where a provision in the prospectus on reservation of seats to “eminent sportsmen” for admission to MBBS, without giving any guidelines to determine who is “eminent sportsmen” was found to be arbitrary in the absence of any guidelines. In the judgment in _**Tripura Guardians' Forum**_ the Gauhati High Court held that a Government order providing for reservation of seats for admission to professional courses to sons and daughters of “Social workers” is arbitrary, in the absence of even a definition for the term 'Social Worker'. The aforesaid dictum applies to the Social Worker in Ext.P1 order also which does not have a definition or a criteria for their selection. Moreover inclusion of excessive number of non official members as contained in Ext.P1 order is not envisaged in Exts.P2 or P3 orders. In Ext.P2 Government Order it is provided that Anganwady Workers may be recruited by the CDPO on recommendation of the village institution/ leaders and it would be open to her to consult or associate any one or more of the officers/members W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** provided therein. Though Ext.P3 provides for inclusion of any other member it does not permit any number of non-official members. 27. Though the respondents have stated that it is up to the Government to determine the number of members and to constitute the selection committee, a fair selection can be conducted when the number of non official members is minimised. Similarly though Ext.P8 Government Order provides for allocation of marks under various heads to bring about the best candidate, there is nothing to indicate that marks are awarded in the impugned selection under the different heads in part B, as provided in Ext.P8. At any rate the awarding of marks or non awarding of marks by the non official members would alter the results in a selection. Ext.P3 order issued by the Government in 2007 only provides for inclusion of “any other non officials which the State Government may consider appropriate”, along with District Social welfare Officer, BDO, CDPO, Medical Officer, President of Taluk Panchayat, representative of State Social Welfare Advisory Board. 28. Though the power to nominate the 5 Social W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** Workers is conferred on the District Social Welfare Officer, the induction of 5 Social Workers without fixing any criteria for their selection leads to arbitrariness, which will defeat the very purpose behind the Scheme for Integrated Child Development, the inclusion of excessive number of Social Workers in this manner would not serve the goal to be achieved under the scheme. 29. Though the 4th respondent is expected to appoint only those social workers with deep knowledge in child development in the absence of any definition of Social Worker as well as guidelines to select them it is quite possible that they are pressurised by higher ups. As held by the apex court in _**Delhi**_ _**Transport Corpn. v. D.T.C. Mazdoor Congress: 1991 Supp**_ _**(1) SCC 600**_ while considering the vires of a regulation relating to termination of service, there is need to minimise the scope of the arbitrary use of power in all walks of life and in a society pledged to uphold the rule of law, it would be unwise to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of W.P.(C) No.24893/2018 :30: law. The apex court has in _**Ramana Dayaram Shetty v. International Airport Authority of India: AIR 1979 1628**_ held that the power of discretion of the Government must be conditioned and structured by rational, relevant and non-discriminatory standard or norm. 30. The petitioners have pointed out that the only qualification of the 5 social workers in Neyyattinkara Municipality is that they are members of political parties. Such selection would only facilitate appointments of the favorites of the political parties who would be in power from time to time. 31. Therefore, I am of the view that the order Ext.P1 which includes 5 Social Workers in the selection committee, that too without any guidelines for their selection is contrary to Exts.P2 and P3 orders and hence without authority. It runs contrary to the intent and purpose behind the ICDS. As per order dated 25.07.2018 the respondents were directed not to make further appointments without getting orders from this court. Therefore, the selection and appointments made in Neyyattinkara Municipality after constitution of the selection committee as per Ext.P4 order is also liable W.P.(C) No.24893/2018 :31: to be set aside. 32. In the result Ext.P1 order to the extent it provides for inclusion of the 5 social workers in the selection committee is set aside. Government shall pass fresh orders in tune with Exts.P2 and P3 orders, in the light of the aforesaid observations, within a period of one month from the date of receipt of a copy of the judgment. This shall not affect any other selection which is already finalised other than in Neyyattinkara Municipality. The selection of the Anganwadi Workers and Helpers made in Neyyattinkara Municipality after the constitution of the committee based on Ext.P4 order, based on which Exts.P5 to P7 lists were issued and appointments made based on that shall stand set aside. In case any person is already appointed and joined duty on regular appointment it would be open to respondents to allow them to continue till regular appointment is made based on orders to be issued by the Government. Fresh selection shall be made within 2 months from the date on which Government issues fresh orders. W.P.(C) No.24893/2018 **==> picture [25 x 8] intentionally omitted <==** The Writ Petition is allowed to the above extent. ## **Sd/-** **P.V.ASHA** **JUDGE** rkc ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1:**|**A TRUE PHOTOCOPY OF THE G.O.MS. NO.74/2012**| |---|---| ||**SJD DATED 22.12.2012**| |**EXHIBIT P2:**|**A TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF**| ||**ICDS MANUAL**| |**EXHIBIT P3:**|**A TRUE PHOTOCOPY OF THE ORDER F.NO.1-**| ||**14/2006-CD-1 DATED 28-05-2007**| |**EXHIBIT P4:**|**A TRUE PHOTOCOPY OF THE LIST OF SOCIAL**| ||**WORKERS SELECTED BY THE 4TH REPONDENT**| |**EXHIBIT P5:**|**A TRUE PHOTOCOPY OF THE RANK LIST**| |**EXHIBIT P6:**|**A TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF**| ||**MARK LIST OF WORKER**| |**EXHIBIT P7;**|**A TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF**| ||**MARK LIST OF HELPER**| |**EXHIBIT P8:**|**A TRUE PHOTOCOPY OF G.O.MS. NO.58/2008/SWD**| ||**DATED 22.10.2008 ISSUED BY THE 1ST**| ||**RESPONDENT**| |**EXHIBIT P9:**|**A TRUE PHOTOCOPY OF RELEVANT EXTRACT OF**| ||**RATION CARD OF THE 1ST PETITIONER**| |**EXHIBIT P10:**|**A TRUE PHOTOCOPY OF THE JUDGMENT IN**| ||**W.P.C.NO.25614/2009 DATED 24.07.2015**| |**EXHIBIT P11:**|**A TRUE PHOTOCOPY OF THE REPRESENTATIONS**| ||**FILED BEFORE THE 2ND RESPONDENT DATED**| ||**04.05.2018**| |**EXHIBIT P12:**|**A TRUE PHOTOCOPY OF THEREPRESENTATIONS**| ||**FILED BEFORE THE 15TH RESPONDENT DATED**| ||**04.05.2018**| |**EXHIBIT P13**|**A TRUE COPY OF COMMUNICATION BY NO.CD-II-**| ||**14/14/2015-CD-II DATED 28.02.2019 REGARDING**| ||**RELEASE OF GRANTS-IN AID TO THE STATE OF**| ||**KERALA TOWARDS GOVERNMENT OF INDIA SHARE OF**| ||**ANGANWADI SERVICES FOR 3RD AND 4TH QUARTERS**| ||**OF 2018-2019.**|