Thresia C.X. and others v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 14TH DAY OF MARCH 2014/23RD PHALGUNA, 1935** ## **WP(C).No. 30964 of 2012 (U)** **----------------------------------------** ## **PETITIONERS:** - **--------------------** **1. THRESIA .C.X., AGED 57 YEARS,** - **W/O. VARGHESE, NUZHUMURIYIL HOUSE, H.NO.139/D, (WORKER, CENTRE NO.59, PALLURUTHY), PALLURUTHY, KOCHI.** **2. ROSY E.G., AGED 53 YEARS,** - **W/O. CHAKKOCHAN, VALIYAPADATHKURAN, NAYARAMBALAM, WORKER, CENTRE NO.116, NARAKKAL, VYPIN.** **3. JAYASREE P.N., AGED 47 YEARS, W/O. SOMAN, AZHEEKKAKADAVIL HOUSE, ELAMKUNNAPUZHA, WORKER, CENTRE NO.112, NARAKKAL, VYPIN.** **4. SHYLA .C.S, AGED 39 YEARS, W/O. VINOD, ALLAPARAMBIL HOUSE, NARAKKAL, HELPER, CENTRE 121, NARAKKAL, VYPIN.** **5. SUBHADRA .K.K, AGED 51 YEARS, W/O. MUKUNDAN, CHEERASSERY HOUSE, NARAKKAL, WORKER CENTRE-115, NARAKKAL.** **6. BHANUMATHY T.G,AGED 55 YEARS, W/O. KOCHUKALY, THUMBAPARAMBIL HOUSE, NARAKKAL, WORKER, CENTRE-125, NARAKKAL.** **7. PRABHA .V, AGED 56 YEARS, W/O. VELAYUDHAN, KANJIRAKKAD HOUSE, NARAKKAL, WORKER, CENTRE-113, NARAKKAL.** **8. MEENA C.V. AGED 52 YEARS,** - **W/O. VIDYADHARAN, MARAKKAPARAMBIL HOUSE, NARAKKAL, WORKER, CENTRE-123, NARAKKAL.** **9. MINI K.V, AGED 47 YEARS, W/O. SAJEEVAN, ASSARIPARAMBIL HOUSE, NARAKKAL, WORKER, CENTRE-120, NARAKKAL.** **Prv.** ## **W.P.(C).NO.30964/2012-U:** **10. SUDARSINI C.P, AGED 52 YEARS, W/O. RAJU, KADATHIPARAMBIL HOUSE, NAYARAMBALAM, HELPER, CENTRE NO.93.** **11. MAYDA KADUTHOOS, AGED 45 YEARS, W/O. WILSON, KUDAVASSERY HOUSE, NARAKKAL, HELPER, CENTRE 84, NAYARAMBALAM.** **12. JEEJISHA K.B, AGED 42 YEARS, W/O. GIREESH, PONATH HOUSE, NAYARAMBALAM, WORKER, CENTRE NO.93, NAYARAMBALAM.** **13. GIRIJA T.S. AGED 48 YEARS, W/O. SUDAN, CHINAKKAL HOUSE, NAYARAMBALAM, WORKER, CENTRE NO.86, NAYARAMBALAM.** **14. MINI A.K, AGED 38 YEARS, W/O. BIJU, KURISINKAL HOUSE, NAYARAMBALAM, WORKER, CENTRE NO.94, NAYARAMBALAM.** **15. SEENA K.G, AGED 44 YEARS, W/O. SATHEESAN, MANGATTU HOUSE, NAYARAMBALAM, HELPER, CENTRE 101, NAYARAMBALAM.** **16. RAJAMMA K.M, AGED 57 YEARS, W/O. ASOKAN, ETTUMMEL HOUSE, NEDUNGAD, NAYARAMBALAM, WORKER, CENTRE NO.92, NAYARAMBALAM.** **17. SYAMALA T.B,AGED 55 YEARS, W/O. RAJAN, NARANATT HOUSE, NAYARAMBALAM, WORKER, CENTRE NO.100, NAYARAMBALAM.** **18. GEETHA P.R, AGED 61 YEARS, D/O. RAMAN PILLA, PUTHALATH HOUSE, NAYARAMBALAM P.O, WORKER, CENTRE NO.80, NAYARAMBALAM.** **19. SUVARNAKUMARI K.V., AGED 48 YEARS, W/O. KUTTAN, KOCHUTHARA HOUSE, NAYARAMBALAM P.O, HELPER, CENTRE NO.98, NAYARAMBALAM.** **20. JAMEELA K.N,AGED 55 YEARS, W/O. PRATHAPAN, VELASSERY HOUSE, NAYARAMBALAM, HELPER, CENTRE NO.97, NAYARAMBALAM.** **21. MAYA M.N, AGED 37 YEARS, W/O. REMESH, PUTHELATH HOUSE, NAYARAMBALAM, WORKER, CENTRE NO.83, NAYARAMBALAM.** **22. LATHIKA P.K, AGED 49 YEARS, W/O. BABU, NIKATHITHARA HOUSE, NAYARAMBALAM, WORKER, CENTRE NO.85, NAYARAMBALAM.** **Prv.** ## **W.P.(C).NO.30964/2012-U:** **23. GEETHA K.T, AGED 49 YEARS, W/O. UTHAMAN, VENGATTUTHARA HOUSE, NAYARAMBALAM, WORKER, CENTRE NO.99, NAYARAMBALAM.** **24. SEENA SIVADASAN, AGED 44 YEARS, W/O. SIVADASAN, PUNCHEPADY HOUSE, NAYARAMBALAM, HELPER, CENTRE NO.85, NAYARAMBALAM.** **25. MINI VINEESH, AGED 35 YEARS, W/O. VINEESH, KALATHIL HOUSE, NAYARAMBALAM, WORKER, CENTRE NO.102, NAYARAMBALAM.** **26. SINI NOUSHAD, AGED 36 YEARS, W/O. NOUSHAD, KADUNVANGASSERY HOUSE, NAYARAMBALAM, WORKER, CENTRE NO.96, NAYARAMBALAM.** **27. JINI SUBHASH, AGED 25 YEARS, W/O. SUBHASH, NAMBUATTITHARA HOUSE, NAYARAMBALAM, WORKER, CENTRE NO.101, NAYARAMBALAM.** **28. USHA .K, AGED 55 YEARS, W/O. HARIHARAN, PUTHENPURAKKAL HOUSE, NAYARAMBALAM, WORKER, CENTRE NO.81, NAYARAMBALAM.** **29. MARY .P.P., AGED 59 YEARS, W/O. POULOSE, PUTHUSSERY HOUSE, NARAKKAL, HELPER, CENTRE NO.81, NAYARAMBALAM.** **30. MARY LINAT KADUTHOOS, AGED 48 YEARS, W/O.ANTONY, VALIYAKKATTATH HOUSE, NARAKKAL, HELPER, CENTRE NO.109, NARAKKAL.** **31. YASODA.K.K, AGED 58 YEARS, W/O.SUDAKARAN, MARANGATTUTHARA HOUSE, NARAKKAL, HELPER, CENTRE NO.105, NARAKKAL.** **32. AMMINI.K.P., AGED 59 YEARS, W/O.VIJAYAN, KAVUNGAL HOUSE, NARAKAL, WORKER, CENTRE NO.105, NARAKKAL.** **33. ELSY.P.K., AGED 51 YEARS, W/O.XAVIER, KOCHUVEETTIL HOUSE, NARAKAL, WORKER, CENTRE NO.117, NARAKKAL.** **34. RAJI.V.V., AGED 37 YEARS, W/O.MADHU, ONAPARAMBIL HOUSE, NARAKAL, WORKER, CENTRE NO.124, NARAKKAL.** **35. SATHY.K.K., AGED 47 YEARS, W/O.JOSHY, THEYYAPURAKKAL HOUSE, NARAKKAL, WORKER, CENTRE NO.114, NARAKKAL.** **Prv.** ## **W.P.(C).NO.30964/2012-U:** **36. AJITHA.M.A., AGED 37 YEARS, W/O.SANTHOSHKUMAR, MANTHRAPARAMBIL HOUSE, NARAKKAL, HELPER, CENTRE NO.114, NARAKKAL.** **37. PARUKKUTTY.E.V., AGED 46 YEARS, W/O.SUDHEER, THEKKINEZHATH HOUSE, NAYARAMBALAM, WORKER, CENTRE NO.103, NAYARAMBALAM.** **38. MINI.K.G., AGED 34 YEARS, W/O.SANTHOSH, MANNARA HOUSE, NAYARAMBALAM, WORKER, CENTRE NO.97, NAYARAMBALAM.** **39. BEENA.P.B., AGED 42 YEARS, W/O.MURALI, MANIVELY HOUSE, NARAKKAL, HELPER, CENTRE NO.94, NAYARAMBALAM.** **40. MARY.B.A., AGED 45 YEARS, W/O.BENNY, VALIYAPARAMBIL HOUSE, NARAKKAL, HELPER, CENTRE NO.119, NARAKKAL.** **41. BEENA.M.A., AGED 53 YEARS, W/O.SURENDRAN, PADATHUMTHARA HOUSE, NARAKKAL, WORKER, CENTRE NO.127, NARAKKAL.** **42. BRIGIT.O.P., AGED 44 YEARS, W/O.AUGUSTIN, KOLANCHERY HOUSE, NAYARAMBALAM, WORKER, CENTRE-87, NAYARAMBALAM.** **43. REJEENA.M.L., AGED 56 YEARS, W/O.FRANCIS, THEVARAKKATT HOUSE, NAYARAMBALAM, WORKER, CENTRE-89, NAYARAMBALAM.** **44. VALSA.A.T., AGED 38 YEARS, W/O.VINOD, ATTUVYPITHURA HOUSE, NARAKKAL, HELPER, CENTRE NO.123, NARAKKAL.** **45. RANI.P.D., AGED 53 YEARS, W/O.VARGHESE, PUDUSSERY HOUSE, NARAKKAL, WORKER, CENTRE NO.108, NARAKKAL.** **46. ANNIE.P.D., AGED 57 YEARS, W/O.ANTONY, MAJOORAN HOUSE, CHERAI KARUTHALA, WORKER, CENTRE NO.107, NARAKKAL.** **47. SELY.K.R., AGED 54 YEARS, W/O.MATHEWS, KALLUMADATHIL HOUSE, NARAKKAL, WORKER, CENTRE NO.118, NARAKKAL.** **48. CHANDRIKA.K.S., AGED 58 YEARS, W/O.LATE PREMAN, CHITTETH HOUSE, NAYARAMBALAM, WORKER, CENTRE NO.84, NAYARAMBALAM.** **Prv.** ## **W.P.(C).NO.30964/2012-U:** **49. ISHA.A.R., AGED 55 YEARS, W/O.VIJAYAN, ONAPARAMBIL HOUSE, NARAKKAL, WORKER, CENTRE NO.121, NARAKKAL.** **50. GIRIJA.C.K., AGED 51 YEARS, W/O.VIDYASAGARAN, KAAREETHARA HOUSE, NARAKKAL, WORKER, CENTRE NO.122, NARAKKAL.** **51. MEENA.K.B., AGED 49 YEARS, W/O.SIVAN, KAITHAVALAPPIL HOUSE, NARAKKAL, HELPER, CENTRE NO.117, NARAKKAL.P.O.** **BY ADVS.SRI.A.X.VARGHESE, SRI.A.V.JOJO.** **RESPONDENTS:** - **-----------------------** **1. UNION OF INDIA, MINISTRY OF HUMAN RESOURCES DEVELOPMENT, DEPARTMENT OF WOMAN AND CHILD DEVELOPMENT, REPRESENTED BY ITS SECRETARY, SASTRI BHAVAN, NEW DELHI-110 001.** **2. STATE OF KERALA , REPRESENTED BY ITS SECRETARY TO GOVERNMENT, SOCIAL WELFARE DEPARTMENT/SOCIAL JUSTICE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **3. THE DIRECTOR OF SOCIAL WELFARE, DIRECTORATE OF SOCIAL WELFARE, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 001.** **4. THE CHIEF EXECUTIVE OFFICER, KERALA ANGANWADI WORKERS & HELPERS WELFARE FUND, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 001.** **R1 BY SRI.P.PARAMESWARAN NAIR,A.S.G OF INDIA R2 BY SR.GOVERNMENT PLEADER SRI. P. FAZIL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-03-2014, THE COURT ON 14-03-2014 DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.30964/2012-U:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: TRUE COPY OF THE LETTER DATED 16/01/2003. EXT.P.2: TRUE COPY OF THE G.O.(RT).NO.126/2003/SWD DATED 12/03/2003. EXT.P.3: TRUE COPY OF THE G.O.(MS).NO.8/2009 SWD DATED 24/01/2009. EXT.P.4: TRUE COPY OF THE RELEVANT PAGES OBTAINED FROM THE SITE REGARDING ANGANWADY IN INTERNET. EXT.P.5: TRUE COPY OF THE G.O.(MS).385/2012/G. EDN. DTD. 07/12/12. EXT.P.6: TRUE COPY OF THE I.C.D.S. PROGRAMME AND SERVICES.** ## **RESPONDENTS' EXHIBITS:** **EXT.R2 (a): TRUE COPY OF G.O.(MS).NO.49/2011/SWD DTD. 28/09/2011. EXT.R2 (b): TRUE COPY OF G.O.(MS).NO.46/2011/SWD DTD. 05/09/2011.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** **C.R.** ## **A.V.RAMAKRISHNA PILLAI, J** --------------------------------------------- W.P.(C) No.30964 of 2012 --------------------------------------------Dated this the 14[th] day of March, 2014 ## **JUDGMENT** The petitioners, who are Anganwadi workers and helpers, have approached this Court dissatisfied with the quantum of honorarium paid to them. 2. The petitioners allege that after the introduction of the Integrated Child Development Service Scheme (ICDS for short) in the year 1975, the Balawady/Anganwadi workers and helpers like the petitioners became the functionaries for implementing the ICDS scheme. At the beginning of the scheme, an Anganwadi worker (non-matriculate) was paid honorarium of Rs.100/- per month and a matriculate worker was paid Rs.150/- per month. Anganwadi helpers were paid at the rate of Rs.35/- per month. As of now, the Anganwadi workers are getting a total WPC No.30964 of 2012 2 emolument of Rs.4,000/- which is shared by the Government of India and the State of Kerala in the ratio 3:1. The helpers are getting a total emolument of Rs.2500/-, out of which Rs.1500/- is paid by the Central Government and the balance Rs.1,000/- is paid by the State Government. 3. The petitioners allege that other than the duties as Anganwadi workers and helpers, they are preparing food for children, distributing nutritious snacks, giving pre-school education and are conducting house visits to check up pregnant woman, which finishes by about 1 p.m. The petitioners are pulled into every governmental scheme. The petitioners are expected to be part of the pulse polio campaigns and are roped in animal census and also to organize women's group and start savings group among them. 4. The main grievance of the petitioners is that the wages being paid to them is below the minimum wages in spite of the hectic work assigned WPC No.30964 of 2012 3 to them. 5. The first respondent filed a counter affidavit stating that the Government of India is providing 90% of the funds for the administrative and operative cost of the ICDS Scheme and 10% of the cost was borne by the State Government. In addition to the aforesaid sharing pattern, the ratio for new component is 75:25 under the restructured ICDS scheme during the 12[th] plan period. They would allege that for effective implementation of the scheme, guidelines have been issued by the Central Government. It is alleged that as regards the Anganwadi workers/helpers, they are honorary female workers recruited from the local communities through a selection committee constituted by the concerned State Governments as per the said guidelines issued by the Government of India. The stand taken by them is that in view of the very nature of the role of Anganwadi workers/ helpers in the ICDS Scheme, these functionaries WPC No.30964 of 2012 4 cannot be declared as “Government employees” and they cannot be extended the benefits like pension, gratuity, earned leave, medical leave, maternity leave, child care leave etc. They maintain the stand that they are not holding any civil post on the strength of the decision of the Apex Court in _**State of Karnataka and others**_ v _**Ameerbi and others**_ 2007(11) SCC 681. 6. The second respondent filed a detailed counter affidavit. The stand taken by them is that considering the nature of role of the Anganwadi workers and helpers in the ICDS scheme, these functionaries cannot be declared as “Government Employees” and hence they are not entitled to the benefits extended to the government employees. They also draw support from the decision of the Apex Court in _Ameerbi's case_ (surpa). 7. I have heard the learned counsel for the petitioners, the learned Assistant Solicitor General and the learned Senior Government Pleader in the WPC No.30964 of 2012 5 matter. 8. The State as well as the Central Government for the contesting respondents gave thrust to the argument that the Anganwadi workers and helpers are not holding any civil posts under the Central or State Government. In support of their argument, they placed reliance on the decision of the Apex Court in _Ameerbi's case_ (supra). There cannot be any quarrel against the proposition that they are not holding any civil post. However, in _Ameerbi's_ case (supra), the Apex Court confined its decision only on one question, viz. Whether the respondents are holders of any civil post and having regard to the materials on record, the Apex Court observed that the respondents who are the Anganwadi workers are not holding the post of civil servants. 9. The Integrated Child Development Service Scheme (ICDS) was floated by the Central Government in the year 1975. The scheme is WPC No.30964 of 2012 6 funded by the Central Government. However, its application is in the hands of the respective States. Anganwadi workers are appointed from amongst the local inhabitants and the selection is made by a committee. 10. There is no dispute regarding the quantum of honorarium now paid to the Anganwadi workers and helpers at present. 11. The grievance of the petitioners is that the paltry sum which is received by the petitioners is inadequate to make both ends meet. One cannot be oblivious to the fact that the presence of Anganwadi workers and helpers in their respective villages is extremely important. They are supposed to make significant contribution to the society. They are required to carry a large number of activities, primary amongst them being the welfare of the children. Other than the duties of the petitioners as Anganwadi workers and helpers they are preparing food for children, distributing WPC No.30964 of 2012 7 nutritious snacks, giving pre-school education and conducting house visits to check up pregnant woman. The petitioners are expected to be part of the pulse polio campaigns and are roped in animal census and also to organise women's group and savings group etc. among them. Therefore, it was argued by the learned counsel for the petitioners that it is time for the Government of India as well as the State Government to re-fix the remuneration of the Anganwadi workers and helpers taking into account the earning of people in the State. A male daily wager in the State earns Rs.500/- to 600/every day and lady workers earn close to the very same amount; it was pointed out. 12. It was argued by the learned counsel for the petitioners that the work done by the petitioners is not less noble or tiresome than the work of primary school teachers who get a minimum of Rs.15,000/- per month. It was also pointed out that part-time sweepers in the State are given Rs.6000/- WPC No.30964 of 2012 8 and above per month and Class IV employees whose educational qualification is 8[th] standard are given Rs.10,000/- to 12,000/- per month. Therefore, it was argued that the petitioner's conditions are pathetic and with the meager remuneration paid, they find it difficult to pull on. 13. I see considerable force in the submission made by the learned counsel for the petitioners. 14. The nomenclature of a term of payment is not decisive, but the substance is as was held in _**Jaya Bachchan**_ v _**Union of India**_ 2006(5) SCC 266. 15. The effect of the decision of the Apex Court in _Ameerbi's case_ (supra) is that the petitioners are not liable to be regularised as they are not holding any civil post. 16. However, this Court is of the definite view that the petitioners, who are rendering valuable service, are certainly entitled to have a decent remuneration. WPC No.30964 of 2012 9 17. In this context, the learned counsel for the petitioners invited my attention to Ext.P5 circular dated 7.12.2012 issued by the Government of Kerala in response to the judgment of this Court in Writ Appeal No.205/2011. By Ext.P5, in view of the court's direction, the Government granted honorarium of Rs.5000/- and 3500/- respectively per month to the qualified teachers and ayahs of preprimary schools conducted by the Parent Teachers Association of Government schools respectively with effect from 1.8.2012 by strictly following the qualification and teacher/ayah-student ratio stipulated in the government order read as 2[nd] in the said order. 18. A copy of the judgment in Writ Appeal referred to in Ext.P5 was made available by the learned counsel for the petitioners for my perusal at the time of the argument. In that judgment, this Court observed that unless pre-school education is also made part of elementary education at the cost WPC No.30964 of 2012 10 of the Government, at least for the poor people the objective of Right to Education Act cannot be achieved. 19. Following the decision of the Apex Court in _**Unnikrishnan and others**_ v _**State of Andhra Pradesh and others**_ AIR 1993 SC 2178 and Section 11 of the Right to Education Act, the Division Bench observed that pre-primary education also is a fundamental right of the people and it is the duty of the appropriate Government to provide free and compulsory pre-school education without which the objective of elementary education under the Right to Education Act cannot be achieved. 20. It was strenuously argued by the learned Assistant Solicitor General that the petitioners are not civil servants and therefore, they cannot claim any enhancement of emoluments as of right. However, it is an admitted fact that the Anganwadi workers and helpers are performing the duties described in paragraph-3 above. Neither the Central WPC No.30964 of 2012 11 Government nor the State Government have a case that those duties are not in accordance with the directions given by them. If the Anganwadi workers and helpers are under the dictate of the Governments, they are entitled to a decent remuneration to lead a decent living. 21. In this context, I would like to point out that the duty cast on the respondent Governments to pay a decent remuneration to the petitioners is coupled with the Governments' powers to dictate terms to the petitioners. If a capacity is vested in an authority to affect the rights of others which can be termed as a 'power', correspondingly duties and obligations to act in a particular manner are cast upon the authority who is exercising the said power. This is because of the corresponding right created in others upon whom the powers are exercised. 22. It is, here, one should be reminded of the observations of Earl Cairns L.C. in the House of WPC No.30964 of 2012 12 ## Lords in _**Julius v Lord Bishop of Oxford**_ (1880) 5 AC 214. _“There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something to the conditions under which it is to be done, something to the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person to whom the power is reposed, to exercise that power when called upon to do so.”_ 23. This view was fully and respectfully concurred by the Apex Court in _**Commissioner of Police**_ v _**Gordhandas Bhanji**_ (AIR (39) 1952 SC 16). 24. Viewed in that profile, the petitioners, whose work is as noble and tiresome as that of the pre-primary school teachers and ayahs, are entitled to have a decent remuneration. The same being a policy decision, this Court can only direct the Governments to have a re-look at the issue, WPC No.30964 of 2012 13 after hearing the petitioners. However, this Court is of the definite view that as an interim measure, a direction can be issued to the Governments to increase the wages of the anganwadi workers to Rs.5000/- and helpers to Rs.3500/- per month. Therefore, this writ petition is disposed of— (1) directing the Central Government (Ist respondent) to appoint a commission without delay to study the issue and to report suggesting ways and means to improve the service conditions of anganwadi workers and helpers. A report to that effect shall be obtained within six months from the date of appointment. (2) directing both the Governments, i.e. Central and State to consider the issue after the report is obtained in a joint meeting of the representatives of Central and State Governments, affording the authorised representative of the petitioners an opportunity of being heard. Till that exercise is completed as an interim WPC No.30964 of 2012 14 measure, the respondents are directed to increase the wages of the anganwadi workers to Rs.5,000/and to the helpers to Rs.3500/-. Till finalisation, the additional financial burden on account of this interim measure shall be borne by the first respondent. **Sd/-A.V.RAMAKRISHNA PILLAI JUDGE** css/ true copy P.S.TO JUDGE