TMI Blog2006 (12) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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/- 938/- Matriculate 150/- 175/- 275/- 400/- 500/- 1000/- Non Matric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evel 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 welfar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 funds of the Panchayat are that of the Government and those collected by way of tax or fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 Preside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Kish ..... X X X X Extracts X X X X X X X X Extracts X X X X
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