WP No. 8840/10 & Ors. 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 8840 OF 2010 Bebetai Paraji Admane, Age 40 yrs., Occu. Anganwadi Worker, R/o. Nipani Nimgaon, Tq. Newasa, Dist. Ahmednagar. ....Petitioner. Versus 1. The State of Maharashtra, Through Secretary, Woman & Children Development Department, Mantralaya, Mumbai - 32. 2. The Tahsildar, Tahsil Office, Newasa, Tq. Newasa, Dist. Ahmednagar. 3. The Chief Executive Officer, Zilla Parishad, Ahmednagar. 4. Child Development Project Officer, Integrated Child Development Scheme Nagar (Gra-2), Ahmednagar. ....Respondents. Mr. N.J. Pahune-Patil, Advocate for petitioner. Mr. V.B. Ghatge, A.G.P. for respondent No. 1 and 2. Mr. S.T. Shelke, Advocate for respondent No. 4. WITH WRIT PETITION NO. 8655 OF 2010 Sou. Shilabai w/o. Balasaheb Dhage, Age 40 yrs., Occu. Service, R/o. Kolhewadi, Tq. & Dist. Ahmednagar. ....Petitioner. Versus WP No. 8840/10 & Ors. 2 1. The State of Maharashtra, Through it's Secretary, Department of Woman & Child Development Mantralaya,Mumbai - 32. 2. The Child Development Project Officer, Integrated Child Development Service Scheme, Nagar, Tq. & Dist. Ahmednagar. ....Respondents. Mr. S.S. Jadhavar, Advocate for petitioner. Mr. V.B. Ghatge, A.G.P. for respondent No. 1. Mr. S.T. Shelke, Advocate for respondent No. 2. WITH WRIT PETITION NO. 9031 OF 2010 Sunita Tanaji Gawari, Age 26 yrs., Occu. Service, R/o. At Manale, Post Bramhanwada, Tq. Akole, Dist. Ahmednagar. ....Petitioner. Versus 1. The State of Maharashtra, Through its Secretary, Woman & Child Development Department, Mantralaya, Mumbai - 32. 2. The Chief Executive Officer, Zilla Parishad, Ahmednagar. 2. The Child Development Project Officer, Integrated Child Development Scheme, Rajur, Tq. Akole, Dist. Ahmednagar. ....Respondents. Mr. A.D. Pawar, Advocate for petitioner. Mr. V.B. Ghatge, A.G.P. for respondent No. 1. WP No. 8840/10 & Ors. 3 Mr. S.T. Shelke, Advocate for respondent No. 2 & 3. WITH WRIT PETITION NO. 9033 OF 2010 Lata Tulshiram Girhe, Age 26 yrs., Occu. Service, R/o. At Post Mehenduri [Palatwadi], Post Rumbodi, Tq. Akole, Dist. Ahmednagar. ....Petitioner. Versus 1. The State of Maharashtra, Through its Secretary, Woman & Child Development Department, Mantralaya, Mumbai - 32. 2. The Chief Executive Officer, Zilla Parishad, Ahmednagar. 2. The Child Development Project Officer, Integrated Child Development Scheme, Rajur, Tq. Akole, Dist. Ahmednagar. ....Respondents. Mr. A.D. Pawar, Advocate for petitioner. Mr. V.B. Ghatge, A.G.P. for respondent No. 1. Mr. S.T. Shelke, Advocate for respondent No. 2 & 3. WITH WRIT PETITION NO. 10229 OF 2010 Sangita w/o. Vikram Lipane, Age 34 yrs., Occu. Member of Village Panchayat, Rajani & Anganwadi Sevika, R/o. Rajani-Lipane Vasti, Tq. & Dist. Ahmednagar. ....Petitioner. WP No. 8840/10 & Ors. 4 Versus 1. Child Integrated Development Officer, Integrated Child Development Service Programme, Ahmednagar (Rural-2), Ahmednagar. 2. The Zilla Parishad Ahmednagar Tq. & Dist. Ahmednagar, Through Chief Executive Officer. 3. The Village Grampanchayat Ranjani, Tq. & Dist. Ahmednagar, Through the Gramsevak. 4. The State of Maharashtra, Social Welfare Department, Through the Secretary. ....Respondents. Mr. Amol Gandhi h/f. Mr. D.B. Bilolikar, Advocate for petitioner. Mr. V.B. Ghatge, A.G.P. for respondent No. 1. Mr. S.T. Shelke, Advocate for respondent No. 2. WITH WRIT PETITION NO. 8164 OF 2010 Smt. Shobha w/o. Ganesh Bade, Age 31 yrs., Occu. Social Work/Service, R/o. Wadgaon, Tq. Jalkut, Dist. Latur. ....Petitioner. Versus 1. The State of Maharashtra, Through it's Secretary, Department of Woman & Child Development Mantralaya,Mumbai - 32. 2. The Child Development Project Officer, Integrated Child Development Service Scheme, Jalkut, Tq. Jalkut, Dist. Latur. ....Respondents. WP No. 8840/10 & Ors. 5 Mr. S.S. Jadhavar, Advocate for petitioner. Mr. V.B. Ghatge, A.G.P. for respondent No. 1. Mr. S.S. Manale, Advocate for respondent No. 2. WITH WRIT PETITION NO. 8138 OF 2010 Smt. Vijaya Vishwanath Chate, Age 45 yrs., Occu. Social Work/Service, R/o. Kekat Shindgi, Tq. Jalkut, Dist. Latur. ....Petitioner. Versus 1. The State of Maharashtra, Through it's Secretary, Department of Woman & Child Development Mantralaya,Mumbai - 32. 2. The Child Development Project Officer, Integrated Child Development Service Scheme, Nagar, Tq. & Dist. Ahmednagar. ....Respondents. Mr. S.S. Jadhavar, Advocate for petitioner. Mr. V.B. Ghatge, A.G.P. for respondent No. 1. Mr. S.S. Manale, Advocate for respondent No. 2. ORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. Reserved on : 22nd September, 2011. Pronounced on : 4th October, 2011. JUDGMENT : [ T. V. NALAWADE, J. ] 1. Heard the learned counsel for parties. WP No. 8840/10 & Ors. 6 2. Rule. Rule made returnable forthwith and the matters are taken up for final hearing with the consent of parties. 2. All the petitions are filed under Article 226 of the Constitution of India to challenge the Government Resolution of the State Government dated 5.8.2010 and also for the relief of declaration that the petitioners are entitled to work as 'Anganwadi Sevika' when they are working as a Member of Village Panchayat. 3. It is the case of the petitioner from Writ Petition No. 8840 of 2010 that she has been working as 'Anganwadi Sevika' since 1.7.1996 and she gets honorarium for this work from the Zilla Parishad. She has contended that she is an active lady and she contested the election of Village Panchayat of Nipani Nimgaon, Tahsil Newasa, District Ahmednagar and she got elected as a Member of Village Panchayat on 10.8.2010. 4. It is her case that the election programme was declared prior to 5.8.2010 and the nomination papers were accepted on 20.7.2010. She has contended that to encourage the women to participate in the functioning of local bodies, the State Government has provided reservation for women and so she could get elected. It is contended that in the past it was not the policy WP No. 8840/10 & Ors. 7 of the State Government to prevent the women to contest the elections and the Government Resolution dated 5.8.2010 came to be published to prevent 'Anganwadi Sevika' from contesting the election to Village Panchayat. It is contended that under the said Government Resolution she can either work as 'Anganwadi Sevika' or she can prefer to work as Member of Village Panchayat, but she cannot work as Anganwadi Sevika when she is working as a Member of Village Panchayat. It is contended that in view of the Government Resolution, she was asked to put in her resignation in respect of post of 'Anganwadi Sevika'. She has contended that the purpose of the Government to encourage the women to participate in the work of local bodies, is defeated due to this Government Resolution and it also affects adversely the valuable democratic right of the petitioner. She has prayed for quashing and setting aside the Government Resolution dated 5.8.2010 and also the communication by which she is asked to resign the post of Anganwadi Sevika. 5. The petitioner from Writ Petition No. 8655 of 2010 has made similar contentions. She started working as 'Anganwadi Sevika' from 9.10.1999 and she contested the election of Village Panchayat Kolhewadi, Tahsil and District Ahmednagar. She got elected on 22.8.2010. She is also asked to put in her resignation WP No. 8840/10 & Ors. 8 in view of the said Government Resolution. 6. The petitioner from Writ Petition No. 9031 of 2010 started working as 'Anganwadi Sevika' from 22.2.2008 and she became Member of Gram Panchayat Manale, Tq. Akole District Ahmednagar on 27.8.2010. She is also asked to resign from the post of 'Anganwadi Sevika' in view of the said Government Resolution. 7. The petitioner from Writ Petition No. 9033 of 2010 started working as 'Anganwadi Sevika' from 27.7.2006 and she got elected to the post of Village Panchayat on 23.8.2010. She is also asked to resign from the post of 'Anganwadi Sevika'. 8. The petitioner from Writ Petition No. 10229 of 2010 has been working as 'Anganwadi Sevika' and she got elected as a Member of Village Panchayat of village Rajani in December 2007. She is asked to put in resignation from the post of Anganwadi Sevika in view of said Government Resolution. 9. The petitioner from Writ Petition No. 8164 of 2010 has been working as 'Anganwadi Sevika' since 7.1.2005 and she got elected as a Member of Village Panchayat of Wadgaon, Tq. Jalkut, WP No. 8840/10 & Ors. 9 Dist. Latur in June 2010 and she also became Sarpanch on 22.7.2010. Similar communication is made with her. 10. The petitioner from Writ Petition No. 8138 of 2010 has been working as 'Anganwadi Sevika' since 1996. She was elected to Village Panchayat Kekat Shindgi, Tq. Jalkut, Dist. Latur in October 2007 and she became Sarpanch of the village on 28.11.2007. She is also asked to resign from the post of Anganwadi Sevika. 11. Thus in the first four proceedings, the petitioners got elected to respective Village Panchayat after the Government Resolution dated 5.8.2010 and in the last three proceedings, the petitioners were already elected to Village Panchayat, prior to coming into force of the said Government Resolution. It was submitted for the petitioners from first four proceedings that the election programme was declared prior to 5.8.2010 and so they need to be protected. 12. The aforesaid Government Resolution was challenged before this Court in Writ Petition No. 8040 of 2010 [ Coram : B. H. Marlapalle and U. D. Salvi, JJ. and between parties Mrs. Razia Shahanur Muzawar & Ors. Vs. The State of WP No. 8840/10 & Ors. 10 Maharashtra & Anr. ]. In this petition, this Court has held that the posts of 'Anganwadi Sevika' need to be treated as a persons holding office under Government in view of the judgment of the Apex Court reported as Shivamurthy Swami Vs. Agadi Sanganna Andanappa (1973) 3 SCC 870 wherein the following observations are made :- "....the office in question must have been held under a Government and that some pay, salary, emoluments or allowance is attached. ....... This Court in several decisions had laid down the tests for finding out whether an office in question is an office under a Government and whether it is an office of profit. Those tests are : (1) Whether the Government makes the appointment; (2) Whether the Government has the right to remove or dismiss the holder; (3) Whether the Government pays the remuneration; (4) What are the functions of the holder ? Does he perform them for the Government and (5) Does the Government exercise any control over the performance of those functions ?" Then this Court has further observed as follows :- "7. In our view, all these tests are fully satisfied in the case of petitioners. At the same WP No. 8840/10 & Ors. 11 time by the impugned Government Resolution or the show cause notice, none of the petitioners are been called upon to vacate the seats of members of Village Panchayat, and the impugned Government Resolution specifically states that on being so elected as a member of the Village Panchayat, the elected member has to vacate the post of Anganwadi Sevika/Helper. We are, therefore, not impressed by any of the grounds in the challenge raised in this Petition, and we do not find any unreasonableness or arbitrariness in the decision taken by the State Government." 13. In another case reported as 2011 (1) Mh.L.J. 766 [Suman Shriram Kakad Vs. State of Maharashtra & another], this Court has made following observations :- "15. It is necessary to note that it is a cardinal principle of construction of statue that every statue is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Unless there are words in the statue sufficient to show the intention of the Legislature to effect existing rights, it is deemed to be prospective. As a logical corollary of general rule, that retrospective operation is not taken to be intended unless that intention was manifested by express words or necessary implication. WP No. 8840/10 & Ors. 12 Another principle flowing from presumption against retrospectivity is that one does not expect rights conferred by the statue to be destroyed by events which took place before it was passed. 16. Having gone through the Government Resolution dated 5.8.2010, an applying the aforesaid principle to the impugned resolution, we have absolutely no hesitation to hold that the circular has a prospective effect and, therefore, it does not affect the right of the petitioner. The subject resolution cancels the earlier Government Resolution dated 20.12.2008 with effect from 5.8.2010. The word "Henceforth" used in the Resolution leading to it's operation is clearly indicative of the fact that said resolution has a prospective effect. Even otherwise, Government Resolution dated 20.12.2008, had permitted the Anganwadi Sevikas and helpers to contest election and to hold both the posts; one that of Anganwadi Sevika and other that of Member of Gram Panchayat giving rise to the vested right in their favour so as to enable them to hold elected post till expiry of the term. The vested right has not been taken away by the Government Resolution dated 5.8.2010. In this view of the matter, it is not necessary for this Court to go into the other challenges leading to the WP No. 8840/10 & Ors. 13 constitutional validity of the said Resolution. It does not take away the vested right of the petitioner. Rather it does not affect the petitioner, who is elected much prior to the date of present resolution to the post of Member Gram Panchayat." In the order dated 16th September 2011 passed by this Court in Writ Petition No. 11616 of 2010 [ Coram : Naresh H. Patil & T. V. Nalawade, JJ.] the following observations are made :- "5. It is admitted position in the present case that the Petitioner was elected after issuance of the Government Resolution dated 5th August, 2010. Considering the laudable object behind issuing Government Resolution, the interpretation put up by the Petitioner is not acceptable. Under the Government Resolution, the Petitioner's election is not affected, but the State has made it obligatory for persons like Petitioners, to vacate the post of Anganwadi Sevika/Helper. Such a provision was thought necessary in the light of the nature of services rendered by Anganwadi Sevika/Helper, therefore considering the social objective, the State Government had framed the policy. We are, therefore, not inclined to accept the argument advanced on behalf of the Petitioner. There is no merit in the Petition. The Writ WP No. 8840/10 & Ors. 14 Petition is dismissed." 14. In view of the observations made by this Court in aforesaid three cases, this Court holds that the case of the petitioners from first four proceedings that the election programme was declared prior to Government Resolution dated 5.8.2010 and so the Government Resolution is not applicable to them, cannot be accepted. In view of observations made in the aforesaid cases by this Court and the facts of Writ Petition Nos. 8840, 9031, 9033, 8655 of 2010, this Court holds that no relief can be given to these petitioners. 15. The petitioners from the remaining three Writ Petition Nos. 10229, 8164 and 8138 of 2011 were already elected to the Village Panchayat. In view of the decision of this Court reported in 2011 (1) Mh.L.J. 766 cited supra, this Court holds that the Government Resolution cannot be used against them. However, in view of observations made by this Court in aforesaid cases, it needs to be observed that if the work as a Member of Village Panchayat of these petitioners affects the discharging duties as Anganwadi Sevika, they remain absent or they show dereliction in duty, action can be taken against them also. As this Court has held that retrospective effect cannot be given to the Government WP No. 8840/10 & Ors. 15 Resolution, the communications, notices sent to them and dated 27.9.2010, 23.8.2010 and 23.8.2010, respectively, need to be quashed and set aside in these three petitions. 16. In view of the aforesaid discussion, the first four petitions viz. Writ Petition Nos. 8840, 9031, 9033, 8655 of 2010 stand dismissed and the rule is discharged. 17. The last three petitions viz. Writ Petition Nos. 10229, 8164 and 8138 of 2010 are allowed and the communications of Child Integrated Development Officer dated 27.9.2010, 23.8.2010 and 23.8.2010, respectively, are hereby quashed and set aside. The Rule is made absolute in the aforesaid terms. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/ P.T.O.. WP No. 8840/10 & Ors. 16 18. After pronouncement of judgment, Shri. Pahune-Patil, learned counsel, prayed for stay of the order. The request is rejected. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.]