IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.38/2001 Reserved on. 1.4.2008 Decided on.11.4.2008 Pushpa Devi. …Petitioner. Versus State of H.P. and others. …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Shrawan Dogra, Advocate. For the respondents Mr. R.M. Bisht, Deputy Advocate General for respondents No.1 and 2. Mr. Janesh Mahajan, Advocate for respondent No.4. Rajiv Sharma, J. This petition has been directed against the judgment dated 30.10.2000 passed by the learned Himachal Pradesh Administrative Tribunal in O.A. No. 1250/1999. The brief facts necessary for the adjudication of this petition are that the present petitioner and respondent No.4 appeared before the Selection Committee in interview for the post of Anganwadi Helper held on 22nd August, 1998 for Anganwadi Centre Kuther, Post Office Piura, Tehsil and District Chamba. The name of respondent No.4 was recommended for the post of Anganwadi helper. The appointment letter was not issued in favour of respondent No.4 on the basis of complaint filed against her to 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 the effect that her husband was employed as a Beldar in the Himachal Pradesh Public Works Department. The appointment was offered to the present petitioner. Respondent No.4 filed an original application bearing OA No. 1250/1999 before the learned Himachal Pradesh Administrative Tribunal. It was primarily contended before the learned Himachal Pradesh Administrative Tribunal by the original applicant that her husband was only working on daily wage basis as Beldar with the Himachal Pradesh Public Works Department and on that count she has not incurred any disqualification. The State i.e. respondents No.2 and 3 had contended before the learned Himachal Pradesh Administrative Tribunal that as per the terms and conditions governing the conditions of service of Anganwadi Helpers, the appointment letter could not be issued in favour of respondent No.4 i.e. original applicant since her husband was employed as Beldar on daily wage basis in Himachal Pradesh Public Works Department. The learned Himachal Pradesh Administrative Tribunal allowed the original application preferred by the original applicant i.e. respondent No.4 on 30.10.2000 holding therein that the incumbent appointed on daily wage basis was not a Government servant for the purpose of determining the eligibility for appointment as an Anganwadi Helper. The present petitioner was proceeded against exparte before the learned Himachal Pradesh Administrative Tribunal. Mr. Shrawan Dogra, Advocate had strenuously argued that taking into consideration the salient features of the scheme/guidelines for engagement of the Anganwadi Workers/Helpers on honorarium basis under ICDS Scheme run by the Social Justice and Empowerment Department what has to be seen is that a person from whose family no one is in Government/semi-Government employment/service is to be considered for appointment as an Anganbadi Helper. He then contended 3 that the Himachal Pradesh Administrative Tribunal has come to a wrong conclusion that a person appointed on daily wage basis by the Government is in not a Government service/employment. The learned Deputy Advocate General had supported the contention of Mr. Shrawan Dogra, Advocate. Mr. Janesh Mahajan, Advocate had supported the order dated 30.10.2000 passed by the learned Himachal Pradesh Administrative Tribunal We have heard the learned counsel for the parties and have perused the record carefully. The core issue requiring consideration by us in this petition is whether as per the scheme framed by the State a daily wager Beldar engaged by the State will fall within the ambit of expression “Government employment/service” or not. The State Government has framed the scheme/guidelines for the engagement of the Anganwadi Workers/Helpers on honorarium basis. The primary objective of the scheme framed by the State is to fulfill the objective of the ICDS Scheme and to ensure regular integrated delivery of package of early childhood services to children expectant and nursing mothers from the focal point i.e. Anganwadi Centres and also to provide an opportunity for the local women of the State to work/serve on voluntary basis in Anganwadi Centres, opened under ICDS Scheme on fixed monthly honorarium decided by the Centre/State Governments from time to time. The detailed mechanism has been provided for the selection of the candidates to the post of Anganwadi Helpers. The eligibility criteria besides that a candidate should be resident of the village (in case of rural area)/ward (in case of urban area) where Anganwadi Centre is situated or belongs to the feeding villages/wards of the Anganwadi area. The other 4 condition required to be filled up by a candidate aspiring to be appointed as an Anganbadi Helper is that no member from his/her family should be in Government/semi-Government service/employment In the present case, it is admitted case of the parties that the husband of respondent No.4 was working as Beldar on daily wage basis in the Himachal Pradesh Public Works Department. She was initially offered the appointment but later on when it transpired that her husband was working as Beldar in the Himachal Pradesh Public Works Department, the appointment was offered to the present petitioner. The Tribunal has quashed the appointment of the petitioner and the State was directed to allow the original applicant i.e. respondent No.4 to join as Anganwadi Helper at Anganwadi Centre Kuther pursuant to the selection made by the Selection Committee. We have now to consider what meaning has to be given by us to the expression in the “Government/ semi Government service/ employment”. The expression “serving under the Government” and “in the service of the Government” came for consideration for the first time before the Hon’ble Supreme Court in Raja Bahadur K.C. Deo Bhanj versus Raghjunath Misra and others, AIR 1959 SC 589. Their Lordships of the Hon’ble Supreme Court after taking into consideration the provisions of Orissa Gram Panchayat Act came to a conclusion that Sarpanch cannot be held to be in service of the Government. Their Lordships have taken into consideration the mode of selection of the Sarpanch. He is not appointed by the Government. He is not paid by the Government. It is thus evident that for coming to a conclusion that whether the incumbent is serving under the Government or in the service of the Government, one has to see his/her mode of appointment or whether he/she is paid by the 5 Government or not. The other important indicia is the duties to be discharged by the incumbent. Their Lordships have held as under: In our opinion, there is a distinction between 'serving under the Government' and 'in the service of the Government', because while one may serve under a Government, one may not necessarily be in the service of the Government; under the latter expression one not only serves under the Government but is in the service of the Government and it imports the relationship of master and servant. There are, according to Batt (On the Law of Master and Servant), two essentials to this relationship: (1) The servant must be under the duty of rendering personal services to the master or to others in his behalf and (2) the master must have the right to control the servant's work either personally or by another servant or agent and, according to him. "It is this right of control or interference, of being entitled to tell the servant when to work (within the hours of service) or when not to work, and what work to do and how to do it (within the terms of such service), which is the dominant characteristic in this relation & marks off the servant from an independent contractor, or from one employed merely to give to his employer the fruits or results of his labour. In the latter case, the contractor or performer is not under his employer's control in doing the work or effecting the service; he has to shape and manage his work so as to give the result he has contracted to effect. Consequently, a jobbing gardener is no more the servant of the person employing him than the doctor employed by a local authority to act as visiting physician to its fever hospital." None of the provisions of the Orissa Act suggest that as between the State Government & the Grama Panchayat and its Sarpanch any such relationship exists. It is true that the State Government, the District Magistrate and the Sub-divisional Magistrate have been given certain powers of control and 6 supervision over the Grama Panchayat but those powers of control and supervision are in relation to the administrative functions of the Grama Panchayat and the Sarpanch. The Grama Panchayat is an autonomous body exercising functions conferred under the statute. It can hardly be said that the Grama Panchayat in so functioning is in the service of the Government. Its administrative functions are akin to the functions generally performed by Municipalities and District Boards. It would be a conception hitherto unknown to suppose that any Municipality or District Board was in the service of the Government merely because it exercised administrative functions and to some extent was under the control of the Government. Co-operative societies generally are very much under the control and supervision by the State Government or one of its offices authorized in that behalf. It would be difficult to accept the suggestion that because of that a Co- operative society and its members must be regarded as in the service of the Government. Even with respect to companies, progressively, legislation has been giving power to the Government to control and supervise them. Under S. 259 of the Indian Companies Act, 1956, in certain circumstances, any increase in the number of its directors must be approved by the Central Government and shall become void it it is disapproved. Under S. 269, in the case of a public company or a private company which is a subsidiary of a public company, the appointment of a managing or whole-time director for the first time after the commencement of this Act in the case of an existing company, and after the expiry of three months from the date of its incorporation in the case of any other company, shall not have any effect unless approved, by the Central Government; and shall become void if, and in so far as, it is disapproved by the Central Government. Under S. 408 the Government has the power to prevent mismanagement in the affairs of the company and under the proviso in lieu of passing 7 any, order under sub-s. (1) the Central Government may, if the company has not availed itself of the option given to it under S. 265, direct the company to amend its Articles in the manner provided in that section and make fresh appointments of directors in pursuance of the Articles as so amended, within such time as may be specified in that behalf by the Central Government. Section 409 empowers the Central Government to prevent change in the number of directors likely to affect the company prejudicially, it could not be said, because of these provisions, that a company was in the service of the Government. It seems to us, therefore, that the mere power of control and supervision of a Grama Panchayat exercising administrative functions would not make the Grama Panchayat or any of its members a person in the service of the Government. Even if it could be said that the Grama Panchayat in the exercise of its administrative functions exercised duties in the nature of governmental duties it could not thereby be said that its Sarpanch was in the service of the Government. So far as the Sarpanch is concerned, he is merely the executive head of the Grama Panchayat which carries out its functions through him. He is not appointed by the Government. He is not paid by the Government. He does not exercise his functions as one in the service of the Government and he can only be removed on the ground of negligence, inefficiency or misbehaviour. We have been unable to find a single provision of the Orissa Act from which we could say that a Sarpanch is a person in the service of the Government. Reference had been made on behalf of the respondent No. 1 to S. 31 of the Orissa Act which authorizes the Grama Panchayat to enter into a contract with the State Government to collect all or any class of taxes or dues payable to the Government at a prescribed percentage as collection charges. As the Grama Sasan is a body corporate and the Grama Panchayat is its executive authority, the statute enabled 8 the Grama Panchayat by provisions of S. 31 to enter into a contract with the State Government to collect its taxes and its dues. It cast no obligatory duty upon the Grama Panchayat to collect such taxes or dues of the Government. No provision of the Orissa Act has been place before us by which the State Government could order a Grama Panchayat to collect its taxes or its dues. Furthermore, under cl. (b) to S. 31, a Grama Panchayat is authorized to enter into similar contracts with proprietors or land holders to collect their rents. The provisions of S. 31 militate against the theory that the Grama Panchayat is in the service of the Government. There would be no occasion for such a provision if the Grama Panchayat was in the service of the Government in which case it would have to carry out the orders of the Government to collect its taxes or its dues. Their Lordships of the Hon’ble Supreme Court in State of Uttar Pradesh and another versus Audh Narain Singh and another, AIR 1965 SC 360 have held that whether in a given case the relationship of master and servant exists is a question of fact which must be determined on consideration of material and relevant consideration having bearing on that question. Their Lordships have laid the following parameters to determine whether the master and servant relationship exists or not, (i) selection by the employer, (ii) the payment by him of remuneration or wages, (iii) the right to control the method of work and (iv) power to suspend or remove from employment are indicative of the relation of master and servant. Their Lordships have further held that ordinarily the right of an employer to control the method of doing the work and the power of superintendence and control may be treated as strongly indicative of the relation of master and servant, for that relation imports the power not only 9 to direct the doing of some work, but also the power to direct the manner in which the work is to be done. Their Lordships have held has under: “It is therefore clear from the record that Tahvildars were appointed to perform the duties of cashiers in Government Treasuries. Their appointment was made by the Government Treasurer with the approval of the District Collector, but it was made for performance of public duties, and remuneration was paid to them by the State directly. Tahvildars were liable to be transferred under orders of the Collector and to be suspended or removed from service under his orders. An instance already, referred to shows that a Tahvildar who had been suspended by the Treasurer was ordered to be reinstated by the Collector. It is from these circumstances that the relationship between the Government of Uttar Pradesh and Tahvildars has to be ascertained.” The Hon’ble Apex Court in State of Gujarat versus Raman Lal Keshav Lal, AIR 1984 SC 161 has held that it is neither politic nor possible to lay down any definite test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant though none can be conclusive. Their Lordships have laid down the following parameters to determine when a person may be said to hold a civil post as under: i) the right to select for appointment; ii) right to appointment; iii) right to terminate the employment; iv) right to take other disciplinary action; v) right to prescribe the conditions of service, the nature of the duties performed by the employee; vi) right to control the employees manner and method of the work; the right to issue directions; vii) and right to determine and the source from which wages or salary are paid and a host of such circumstances. Their Lordships have held as under: “We have to first consider the question whether the members of the Gujarat Panchayats Service are Government servants. Earlier we have already said enough to indicate our view that they are Government 10 servants. We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not. Amongst the cases cited before us were Gurugobinda Basu v. Sankari Prasad Ghosal, (1964) 4 SCR 311 : (AIR 1964 SC 254); State of Uttar Pradesh v. Audh Narain Singh, (1964) 7 SCR 89 : (AIR 1965 SC 360); State of Assam v. Kamakchandra Dutta, (1967) 1 SCR 679 : (AIR 1967 SC 884); Gurushantappa v. Abdul Khuddus, (1969) 3 SCR 425: (AIR 1969 SC 744); S. L. Agarwal v. Hindustan Steel Ltd., (1970) 3 SCR 363 : (AIR 1970 SC 1150); and Jalgaon Zilla Parishad v. Duman Gobind, C. A. Nos. 24 and 25 of 1968 decided on December 20, 1968. We have considered all of them and do not consider it necessary to refer to each of the cases. This Court in Hari Singh versus State of Himachal Pradesh and others, 1993-Vol. (2) 1 has held that volunteer teachers appointed under 11 the Himachal Pradesh Voluntary Teacher’s Scheme, 1991 were the employees of the State Government. Their Lordships have held as under: “The Himachal Pradesh Voluntary Teachers Scheme, 1991 are intended to provide for honorarium as fixed by the State Government to such unemployed persons for a short period. A detailed procedure has been laid down for selecting Voluntary Teachers under these Schemes by a duly constituted screening committee. Although the period of assignment has been fixed for two years, however, it is being extended from time to time. The Schemes as well as the contents of office order (Annexure P-1) amply demonstrate that the appointment of Voluntary Teachers is made by the Director of Education, Himachal Pradesh, under the Himachal Pradesh Voluntary Teachers Schemes, 1991 and the selected candidates are appointed on fixed salary of Rs. 1100 (Lecturers) and Rs. 625 (Primary teachers) payable for ten months in a year and their appointments would be subject to agreement and conditions. Reference to the conditions of service further discloses that the Conduct Rules have been made applicable to them. Item No.9 records that in case the selected candidate does not join the post within a stipulated period, his appointment would be deemed to have come to an end and no claim would be entertained and the post would be offered to other candidates. It was pointed out thus by the learned Counsel for the petitioner that the Voluntary Teachers are only being paid honorarium and not salary. We think, this does not make any difference. As a matter of fact, it is difference in nomenclature only since the Voluntary Teachers are being paid fixed remuneration, although it has been recorded as ‘salary’ at some place and honorarium at other places. The fact of the matter is that the Government has created large number of posts of Voluntary Teachers, may be of temporary nature, in order to help the unemployed youths in the State. On account of financial difficulty, it 12 may not have been possible for the State to provide regular scales, therefore, fixed salary was settled for payment to these Voluntary Teachers. Simply because they have to undertake lesser work-load, that does not mean that they are not whole-time salaried servants of the Government within the meaning of section 64 (b) read with Section 73 (1) (a) of the Act. They are governed by the Conduct Rules and what more is required to make them employees of the State Government.” It is in this back drop that we have to consider whether a person appointed on daily wage basis falls within the expression “Government service/employment. The daily wager is appointed by the State Government on muster roll basis, his remunerations are paid by the State Government on monthly basis. He is also entitled to be regularized after a period of 8 years and there is a provision also for offering compassionate appointment to the dependents of a person engaged on daily wage basis, who has worked for 5 years in case of death. The immediate superiors exercise superintendence and control over his work. He is to obey the directions issued to him by his superior officers and the manner in which he has to discharge his duties. He discharges public duties. It is true that stricto senso a person appointed on a daily wage basis cannot hold a civil post as per the parameters laid down by the Hon’ble Supreme Court in State of Assam versus Kanak Chandra, AIR 1967 SC 884. In fact, the Apex Court in State of Karnataka and others Versus Ameerbi and others, Vol. 199, 2007 (1) SLR 722 has clearly held that Anganwadi Workers and Anganwadi Helpers do not hold a civil post. The Apex Court has held as follows: “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 13 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 existed. We do not think that the said decision has any application in the instant case.” Following the law laid down by the Apex Court it may be said that a daily wage employee in the Himachal Pradesh Public Works Department does not hold a civil post. He may not hold a civil post, but the fact remains that he is an employee of the State. His salary is paid by the State and the State exercises superintendence and control over him. We, therefore, have no hesitation to hold that a daily wager is an employee of the State. The expression Government service/employment has also to be considered taking into consideration the scheme whereby the incumbents are appointed though on voluntary basis to provide an employment opportunities to the local women. The objective of the scheme is to give some succour to local women from whose family no member is in Government/Semi Government employment/service. The Tribunal has come to a wrong conclusion that the employment should be on regular basis. The Tribunal has also not taken into consideration the judgment rendered by this Court in Hari Singh versus State of Himachal Pradesh