Smitha Nair d/o Santhamma v. The State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW MONDAY, THE 10TH DAY OF FEBRUARY 2014/21ST MAGHA, 1935 WA.No. 431 of 2012 () IN WP(C).2744/2008 ------------------------------------------ AGAINST THE ORDER/JUDGMENT IN WP(C) 2744/2008 of HIGH COURT OF KERALA DATED 08-12-2011 APPELLANT(S): ------------------------ SMITHA NAIR D/O.SANTHAMMA, RESIDING AT VANIYATH MEENATHIL KUTHIRAPPANTHI P.O., THAZHAVA, KOLLAM. BY ADVS.SRI.P.B.SURESH KUMAR (SR.) SRI.T.C.SURESH MENON (NAME OF APPELLANT CORRECTED AS PER ORDER IN IA 233/2012 IN WA.431/12 DT.16.3.2012) RESPONDENT(S): ---------------------------- 1. SATHIYAMMA.P. MADATHILAYYATH HOUSE, KADATHOOR P.O., TAZHAVA KOLLAM-690523. 2. MINI NARAYANAN RESIDING AT EDAVAN HOUSE, SOUTH WEST THAZHAVA P.O. KOLLAM-690523. 3. SAJILEKHA.R RESIDING AT NALLAVEETTIL VADAKATHIL KUTHIRAPPANTHY P.O., THAZHAVA, KOLLAM-690523. 4. AMBILI.M. RESIDING AT PARAKIMAMUTTIL HOUSE KUTHIRAPPANTHY P.O., THAZHAVA, KOLLAM-690523. 5. MANJU.L. RESIDING AT KUZHIKALA PUTHIYAVEEDU MANAPPALLY NORTH P.O., NORTH EAST THAZHAVA KOLLAM-690574. 6. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT SOCIAL WELFARE DEPARTMENT, GOVERNMENT SECRETARAIAT THIRUVANANTHAPURAM-695001. 7. THE DIRECTOR SOCIAL WELARE DEPARTMENT, THIRUVANANTHAPURAM-695001. 8. THE DISTRICT SOCIAL WELFARE OFFICER OFFICE OF THE SOCIAL WELFARE DEPARTMENT KOLLAM-691001. 9. THE PROJECT OFFICER INTEGRATED CHILD DEVELOPMENT SERVICE SCHEME (ICDS) OACHIRA, KOLLAM-690526. 10. THE OACHIRA BLOCK PANCHAYATH REPRESENTED BY ITS SECRETARY, OACHIRA, KOLLAM-690526. 11. THE THAZHAVA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, THAZHAVA, KOLLAM-690523. 12. JYOTHILAKSHMI D/O.RAJAMMA, RESIDING AT MUNDAPPALLIL (NADATHANS) SRPM P.O., THAZHAVA, KOLLAM-690539. R6 TO R9 BY SR. GOVERNMENT PLEADER SHRI A. RENJITH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10-02-2014, ALONG WITH WA. 432/2012, WA. 433/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & K. ABRAHAM MATHEW, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.A.Nos.431, 432 & 433 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 10TH DAY OF FEBRUARY, 2014** ## **JUDGMENT** ## Ramachandran Nair, J. These writ appeals have been filed by the appellants aggrieved by the common judgment rendered by a learned Single Judge of this Court in W.P. (C) Nos.32925/2007, 35013/2007 and 2744/2008. We have taken W.A. No.431/2012 as the leading case. 2. We heard Shri P.B. Sureshkumar, learned Senior Counsel appearing for the appellants and learned Government Pleader appearing for the State. There is no appearance for the contesting party respondents. 3. Learned Senior Counsel for the appellants submitted that in the common judgment, the view taken by the learned Single Judge is that in the light of Articles 14 and 16 of the Constitution of India, selection proceedings initiated as per Ext.P1 notification produced in W.P.(C) No.32925/2007 have to be completed. It is submitted that as far as the engagement of Anganvadi Workers and Helpers are concerned, it is only under a scheme framed by the Central Government and the appointment is WA Nos.431, 432 & 433/2012 -2- not to a civil post. Reliance is placed on the decision of the Apex Court in **State of Karnataka and others v. Ameerbi and others** {(2007) 11 SCC 681} in this context, especially para 20. It is therefore submitted that as far as the said direction is concerned, the judgment cannot be sustained. Learned Government Pleader also submitted that the Government has only acted under the Scheme and the orders impugned in the writ petitions are well justified. 4. It is submitted by the learned Senior Counsel further that as far as the engagement of Anganvadi Workers/Helpers are concerned, going by the Integrated Child Development Service Scheme (ICDS), they are only entitled for honorarium and are not being paid any amount as salary. Such engagements were being made with an artificial break throughout the State. The writ petitions herein are concerned with the engagement of Anganvadi Workers and Helpers in Thazhava Grama Panchayat. It is submitted that the appellants were engaged on such terms and the same cannot be faulted in the light of the Scheme framed by the Central Government which alone governs the matter. 5. We will now refer to the facts revealed from the pleadings in the three appeals. Writ Appeal No.431/2012 arises from W.P.(C) No.2744/2008. Therein the petitioners have produced Ext.P1, a notification issued inviting WA Nos.431, 432 & 433/2012 -3- applications for the post of Anganvadi Workers/Helpers in duly sanctioned Anganvadies in Thazhava Grama Panchayat. Another eight more Anganvadies were sanctioned after Ext.P1. Ext.P3 is the Government Order prescribing certain guidelines regarding the appointment of temporary workers/helpers in the Anganvadies in the State and Ext.P4 is the subsequent Government Order modifying certain clauses in Ext.P3. According to the writ petitioners, by the effect of those guidelines the petitioners who have submitted applications pursuant to Ext.P1 notification, are excluded. Later, the Government issued Ext.P5 order exempting Thazhava Grama Panchayat from the purview of Ext.P4 Government Order and a selection committee was constituted. In the meanwhile, the 7[th] respondent in the writ petition who is an Anganvadi Worker, filed a writ petition which was disposed of by Ext.P6 judgment, directing the Government to take a decision on her representation, Ext.P3. The Government cancelled Ext.P5 order exempting Thazhava Grama Panchayat from the purview of Ext.P4 order, as per Ext.P7 order. The same was under challenge in that writ petition. 6. W.A. No.433/2012 arises from W.P.(C) N.32925/2007 wherein similar pleas have been made by the petitioners. Therein also, the very same notification is relied upon. WA Nos.431, 432 & 433/2012 -4- 7. W.A. No.432/2012 arises from W.P.(C) No.35013/2007 filed by the appellant herein who was a party respondent in the other two writ petitions. She is challenging the Government Order dated 22.9.2007 produced as Ext.P7, exempting Thazhava Grama Panchayat from the purview of the guidelines prescribed for regularisation of temporary Anganvadi Workers and by constituting a selection committee. The same is Ext.P5 in W.P.(C) No.2744/2008. Pending W.P.(C) No.35013/2007, the Government had issued Ext.P7 order produced in W.P.(C) No.2744/2008 cancelling Ext.P5. 8. The learned Single Judge's view as reflected in the common judgment is that the selection process initiated by Ext.P1 notification, will have to be completed as otherwise the applicants will be denied the fundamental right under Articles 14 and 16 of the Constitution of India. The legal point raised by the learned Senior Counsel for the appellants is that the Anganvadi Workers and Helpers are not holders of any civil post. They are only paid honorarium and therefore the appointments are not regulated by any statutory rules and the finding in the judgment cannot be supported, in the light of the decision of the Apex Court in **Ameerbi's case** {(2007) 11 SCC 681}. 9. The facts of the case decided by the Apex Court will show that there the Anganvadi Workers filed an application under Section 15 of the WA Nos.431, 432 & 433/2012 -5- Administrative Tribunals Act, 1985 before the Karnataka State Administrative Tribunal and the Tribunal held that the application is maintainable as they are holders of civil post. 10. The Scheme itself has been examined by the Apex Court. The scheme is one framed by the Central Government as ICDS Programme, in the year 1975. Anganvadi Workers are appointed from among the loal inhabitants. Para 9 of the judgment will show that the Anganvadi Workers and Helpers are not to be appointed on a pay scale and they are to be paid honorarium. The scheme is on a year-to-year basis and the scheme although is to be directly under the control of the State Governments, the financial burden is to be borne by the Central Government. Their Lordships finally held in para 20 as follows: “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 exists. We do not think that the said decision has any application in the instant case.” Therefore, the view taken is that they do not hold a post under a statute. WA Nos.431, 432 & 433/2012 -6- Their posts are not created. The 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 exists. It was also held in para 28 that the rules framed under the proviso to Article 309 of the Constitution of India are not attracted in the case of such appointees. They are appointed under a scheme which is not of a permanent nature, although might have continued for a long time. 11. Learned Senior Counsel for the appellants relied upon another decision of the Apex Court in **Union of India and others v. Tarun K. Singh and others** {(2003) 11 SCC 768} to contend for the proposition that an individual applicant is not having a right to approach for a writ of mandamus unless and until he is selected and gets the letter of appointment. Therefore, it is contended that the writ petitions do not deserve any merit. WA Nos.431, 432 & 433/2012 -7- 12. In the light of the contents of the Scheme, the general guidelines issued by the Government as per Exts.P3 and P4 produced in W.P.(C) No.2744/2008 cannot at all be faulted. In fact, learned Senior Counsel for the appellants submitted that what is meant by the process of regularisation as per the guidelines is only to avoid intermittent termination by giving artificial break and no other monetary benefits are given except honorarium and the same position will continue. It is submitted that the appellant has been appointed on a temporary basis in the Panchayat from 2005 onwards and therefore also she is entitled for the benefit of Exts.P3 and P4. We find much force in the above submission. 13. In the light of the decision of the Apex Court in **Ameerbi's case** {(2007) 11 SCC 681} it cannot be said that posts have been created under a statute and the recruitment rules as applicable to other categories under the State are applicable. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution and no process of selection for the purpose of their appoijntment within the constitutional scheme exists. Therefore, even though Ext.P1 notification was issued inviting applications, that cannot confer any right on the party respondents and others who have applied WA Nos.431, 432 & 433/2012 -8- pursuant to the same. Going by Ext.P7 produced in W.P.(C) No.2744/2008, the order Ext.P5 constituting a selection committee was cancelled, as already a seniority list of Anganvadi Workers/Helpers is in existence in Thazhava Grama Panchayat. The same cannot be said to be illegal or unsustainable. The rights of the appellants for the benefit of Exts.P3 and P4 produced in W.P.(C) No.2744/2008 cannot therefore be taken away. 14. Therefore, we vacate the findings rendered by the learned Single Judge in the impugned judgment, and set aside the judgment. 15. Learned Senior Counsel for the appellants submitted that in W.P. (C) No.35013/2007 the second prayer is to consider the claim of the petitioner/appellant therein for regularisation. It is upto to the competent authority to consider the various aspects regarding the claim of the appellant and similarly placed persons who have been temporarily appointed. The same shall be done within a period of five months from the date of receipt of a copy of this judgment. The appeals are allowed as above. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(K. ABRAHAM MATHEW, JUDGE.)** **kav/**