IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. No. 2052 of 2010 alongwiith connected matters. Date of decision: May 27, 2011 1. CWP No. 2052 of 2010 Indu Rani Vs. State of H.P. and others 2. CWP No. 134 of 2011 Rama Kumari and ors. Vs. State of H.P. and others 3. CWP No. 150 of 2011 Veena Devi and ors. Vs. State of H.P. and others 4. CWP No. 156 of 2011 Kuldip Chand Vs. State of H.P. and others 5. CWP No. 2053 of 2010 Rajni Sharma Vs. State of H.P. and others 6. CWP No. 2095 of 2010 Hoshiar Singh Vs. State of H.P. and others 7. CWP No. 2132 of 2010 Deepak Kumar Vs. State of H.P. and others 8. CWP No. 8640 of 2010 Neelam Kumari Vs. State of H.P. and others 9. CWP No. 8641 of 2010 Sumer Singh Vs. State of H.P. and others 10.CWP No. 8642 of 2010 Kamlesh Devi Vs. State of H.P. and others 11.CWP No. 8711 of 2010 Mukesh Jaryal Vs. State of H.P. and others 2 Coram The Hon’ble Mr.Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Sharma, Judge For the Petitioners: Mr. Ajay Mohan Goel, Advocate . For the State: Mr. R.K. Bawa, Advocate General, with Mr. Ankush Dass Sood, Addl. A.G. and Mr.J.K.Verma, Deputy Advocate General For the private respondents: Mr. Rajinder Thakur, Advocate ___________________________________________________________ Justice Kurian Joseph, C.J. The writ petitioners in these cases are aggrieved since the Government has not taken over their services while taking over the ICDS Project run by the 3rd respondent, Ankur Welfare Association, Gagret. Since the entire background of the appointment and taking over of the Project is narrated in detail in the reply, filed at the instance of respondents No. 1 and 2, for the sake of clarity and brevity, we may extract the same as such:- “1. It is submitted that the Department of Social Justice & Empowerment is implementing Integrated Child Development Services (ICDS) scheme in the State since 1975. The scheme was first time launched by Government of India on 2.10.1975 through out the country in selected blocks on experiment basis. As per schematic pattern the scheme ws to be run by respective State Governments by setting up Integrated Child Development Project offices at Block level. Later, the scheme was expanded to more blocks in a phased manner. During the year 1994-95, Government of India, Ministry of Human Resource Development (Department 3 of Women and Child Development) took the decision to sanction ICDS exploratory blocks for action oriented operation research in newly sanctioned ICDS Projects by using 3 different types of support structures i.e. Project entrusted to NGO, those managed by Mahila Mandal and those run by the Government. Under this pattern in 4 Stats i.e. Rajasthan, Madhya Pradesh, Maharashtra and Himachal Pradesh 12 exploratory blocks were taken. For the State of Himachal Pradesh 3 blocks viz Chamba, Una and Gagret were sanctioned under this new pattern. The financial pattern of these newly sanctioned Blocks was similar as that of the regular ICDS projects run in State sector. Initially State Government decided to run ICDS Project, Gagret through NGO and Una through Mahila Mandal but later it was decided to run ICDS Project Una in Government sector and to entrust one Project i.e. Gagret to a NGO. The Ankur Welfare Society, Gagret (respondent No. 3) applied to the Sate Government for entrusting them the Project and accordingly during the year 1994-95, State Government entrusted the functioning of ICDS Project, Gagret to Ankur Welfare Society, Gagret. The petitioner was appointed on 5.3.1995 on the post of Typist, on contract basis for a period of one year, by the Secretary Ankur Welfare Society, Gagret on the recommendations of the Managing Committee and Project Monitoring Committee of Ankur Welfare Society, Gagret, as is evident from Annexure P-4. Later again on the recommendations of the Managing Committee of the association, the petitioner was appointed on regular basis on the same post by the Chairperson of Ankur Welfare Society vide her letter dated 1.1.1996 annexed as P-5. 2. It is pertinent to mention here that during the year 2007-08 complaints were received against the functioning of Ankur Welfare Society, Gagret and ICDS 4 Project, Gagret and matter in this regard also came up for discussion in H.P. Vidhan Sabha. The Managing Committee of respondent No. 3 had also passed resolution in July, 2007 to hand over the Project to the State Government in view of the shortcomings/irregularities noticed in the functioning of the respondent No. 3. Accordingly, an enquiry was ordered and on the basis of enquiry, a special audit of the Project for the period 1.4.1994 to 31.3.2007 through Registrar Co operative Societies H.P. was ordered. In the enquiry/audit report mal-practices/shortcomings were noticed in functioning of the Ankur Welfare Society, Gagret, therefore, after serving 15 days notice to the Chief Executive Officer/CDPO of Ankur Welfare Society, to manage the affairs of the Society Additional Deputy Commissioner, Una was appointed as Administrator for a period of 6 months by District Magistrate-cum-Additional Registrar Societies, Una as is evident from orders Annexed as P-6. State Government finally decided to take over the ICDS Project, Gagret in Government sector vide letter No. Kalyan-C(4)-14/99-II, dated 4.5.2010 annexed as P-8. With regard to staff of the ICDS, Project, State Government has decided that only the Anganwadi Workers/Helpers working under ICDS scheme will continue to work as these have been selected as per common guidelines applicable to all Anganwadi Workers/Helpers in the State. With regard to other staff, it ahs been decided that their services may not be taken over as they have not been appointed in accordance with R&P Rules of these posts and they are also looking after other work of the NGO and complaints of financial irregularities have also been received against them. 3. In view of the State government decision, the charge of the Child Development Project Officer, 5 Gagret has been entrusted to the Child Development Project Officer, Haroli, District Una in addition to his own duties who has already taken over the charge from Administrator, ICDS Project, Gagret on 12.5.10. The Child Development Project Officer, Haroli has further been advised to take office work of ICDS Project, Gagret from the existing staff of ICDS, Project, Haroli. With regard to termination of services of the petitioner, it is submitted that the petitioner is not an employee of the State Government, but of the Ankur Welfare Society, Gagret (respondent No.3) which is an NGO hence question of terminating her services by the replying respondents does not arise.” 2. It is the contention of the petitioners that in the other two ICDS Projects run by the State, the same staff pattern as followed in the Project run by the third respondent, has been adopted and so long the project is still available, though it has changed hands in the matter of management, the petitioners are in any case entitled to be continued in the project. There is also a contention that since the project as such has been taken over by the Government, there cannot be any discrimination in the case of the staff in the project since admittedly the Government itself has decided to continue the Anganwari workers/helpers on the ground that they have been selected as per the common guidelines. It is the contention of the petitioners in this regard that the petitioners were also selected as per the guidelines issued by the State and as per the pattern permitted for the execution of the project. 3. Learned Additional Advocate General submits that the petitioners have been engaged only by the Society which is 6 an NGO and the State has no liability to either continue to engage or take over the services of the petitioners. They are the employees of the Society and not of the State Government. 4. There is no dispute that all the petitioners have been engaged only by the 3rd respondent Society. But, the engagement was for execution of an ICDS project. It is the project that has been taken over by the Government for whatever reason. In case there is any irregularity on the part of any of the employees engaged by the project, necessary action should be taken against such employees. In case the irregularity is on the part of the Society, action should be taken against the Society. But, the fact remains that an ongoing project has been taken over by the Government from the 3rd respondent Society. There is no dispute that the petitioners have been engaged for the execution of the project only. Therefore, so long the project is available, it may not be proper, if not fair, to disengage the petitioners, who have been continuing there for over 15 years or less and continuing the project with either by the employees of the Government or by the fresh hands. Hence, we are of the view that the matter requires consideration on a case to case basis and on need basis. In order to facilitate the Government to look into the matter, as above, the following directions are issued. 5. The petitioners, individually, may file a representation before the second respondent within a period of two weeks from today. The second respondent shall consider the 7 representation in the light of the submissions, we have referred to above and the observations made by us in this judgment and take appropriate action thereon in accordance with law and justice within another two months. All the writ petitions are disposed of, so also the pending applications, if any. Copy dasti. ( Justice Kurian Joseph ), Chief Justice May 27, 2011 (K) ( Justice V.K. Sharma ), Judge