IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 WP(C).No. 23532 of 2009(J) -------------------------------------- PETITIONERS: --------------------- 1. THE INDIAN NATIONAL ANGANVADY EMPLOYEES FEDERATION (REGD.NO.05/18/89 AFFI.NO.11946) STATE COMMITTEE, REP.BY ITS SECRETARY KUNNUKUZHY G.SURESH, MARINA BUILDING, CHANGANASSERY, PRESENTLY HOUSED AT INTUC BHAVAN, EXTRA POLICE ROAD,NANDAVANAM,TRIVANDRUM-35. 2. K.T.NALINI, ANGANWADI WORKER, CENTRE NO.160, EDAKKAD ICDS PROJECT, KANNUR. 3. RADHAMONY AMMA, ANGANWADI HELPER, CENTRE NO.31, VAIKOM ICDS PROJECT, KOTTAYAM. 4. MEENAKSHI.K.S., ANGANWADI HELPER, CENTRE NO.60, MADAPPALLY ICDS PROJECT, KOTTAYAM. BY ADV. SRI.P.C.SASIDHARAN. RESPONDENTS: ------------------------ 1. UNION OF INDIA, MINISTRY OF WOMEN 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, SECRETARIAT, TRIVANDRUM. 3. THE DIRECTOR OF SOCIAL WELFARE, DIRECTORATE OF SOCIAL WELFARE, VIKAS BHAVAN, TRIVANDRUM. 4. THE CHIEF EXECUTIVE OFFICER, KERALA ANGANWADI WORKERS & HELPERS WELFARE FUND, VIKAS BHAVAN, THIRUVANANTHAPURAM. R1 BY SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA, R2 & R3 BY GOVERNMENT PLEADER SRI. P. NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2010, ALONG WITH W.P.(C). NO. 23939/2009 AND CONNECTED CASES,THE COURT ON 26/07/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.23532/2009-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER ISSUED BY THE CENTRAL GOVERNMENT DTD. 07/08/1996. EXT.P.2: COPY OF THE CIRCULAR DTD. 23/09/1988. EXT.P.3: COPY OF THE G.O.(MS).NO.39/2003/SWD DTD. 05/08/2003. EXT.P.4: COPY OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF THE CENTRAL GOVERNMENT BEFORE THIS HONOURABLE COURT DTD. 21/11/2003. EXT.P.5: COPY OF THE G.O.(MS).NO.68/2003/SWD DTD. 17/11/2003. EXT.P.6: COPY OF THE JUDGMENT IN W.P.(C).NO.27913/2003 DTD. 12/08/2004. EXT.P.7: COPY OF THE G.O.(P).NO.12/92/SWD DTD. 10/04/1992. EXT.P.7(A): COPY OF THE SCHEME DTD. 10/04/1992. EXT.P.8: COPY OF THE G.O.(MS).NO.31/2009 DTD. 07/08/2009. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE ORDER NO. 1-3/2004 CD-1 DTD. 16/12/2004. EXT.R1.B: COPY OF THE ORDER NO. G.O.(MS).NO.40/2009/SWD DTD. 16/09/2009. EXT.R1.C: COPY OF THE ORDER NO. GO(MS).NO.41/09/SWD DTD. 18/09/09. //TRUE COPY// P.S. TO JUDGE. Prv. "C.R" C.T.RAVIKUMAR, J. --------------------------------------------------------- W.P.(C)Nos.23532, 23939, 24256, 24529, 24629, 24695, 24749, 24847, 24891, 24901, 24908, 24981, 25476, 26532 of 2009 & 3214 of 2010 --------------------------------------------------------- Dated 26th July, 2010 JUDGMENT Whether age or health should be the basis for compulsory cessation of service ? This unusual question crops up for consideration in all this batch of writ petitions filed by certain Anganwadi Workers/Helpers. In some of these writ petitions their respective associations are also parties. They challenge G.O.(MS)No.31/2009 dated 7.8.2009 that virtually prescribes 60 years as the age of superannuation and in that process they also assail the very competence of the State to fix the age of compulsory retirement. 2. Before adverting to the common claims and contentions it is necessary to refer to certain aspects relevant for deciding the aforesaid issues. 3. The 1991 census revealed that India had around 150 million children below the age of six years then constituting about 17.5% of the Indian population. A sizable number among them were found living in such economic and social environment that impede their physical and mental development. Poverty, poor environmental sanitation, diseases, infection, inadequate access to primary health WP(C).No.23532/2009 & connected cases 2 care, inappropriate child caring and feeding practices were identified as the main root causes. Government of India, thereupon, proclaimed a national policy of children in the year 1974 declaring children as `Supremely Important Asset' and thereafter launched the programme of Integrated Child Development Service Scheme in the year 1975 which is now commonly known as ICDS Project. In fact, it is a Central Government scheme under the auspices of the Ministry of Women and Child Development implemented through State Governments. The main objectives of the scheme are hereunder: 1. To improve the nutritional and health status of pre- school children in the age -group of 0-6 years. 2. To lay the foundation of proper psychological development of the child. 3. To reduce the incidence of mortality, morbidity, malnutrition and school-dropout. 4. To achieve effective co-ordination of policy and implementation amongst the various departments to promote child development, and 5. To enhance the capability of the mother to look after the normal health and nutritional needs of the child through proper nutrition and health education. Packages of services: To achieve the objectives, the ICDS aims at providing a package of services consisting of Supplementary nutrition; WP(C).No.23532/2009 & connected cases 3 Immunization; Health check-up; Referral Services; Non-formal Pre-School Education; and Nutrition & health Education” I have adverted to the aforesaid aspects to emphasis the objectives with which the ICDS project has been launched by the Central Government. 4. Anganwadi Workers/Helpers are the key functionaries for implementing the programme of the Integrated Child Development Service Scheme. Till some time past, there was no service condition governing the said categories that are created for augmenting the said scheme. Even after the initial launching period of the scheme no authority has made any commend or shown any kind of commitment to provide a secured living in respect of such employees. Initially they were being paid paltry honorarium as long as they were able to work. Perhaps, realizing and recognizing the obligation under Article 39 of the Constitution of India, certain measures were taken by the competent authorities to ensure at least a decent living for Anganwadi employees. However, a close scrutiny of the subsequent events would reveal that, at least, on certain matters Central Government abdicated its responsibility and at the same time provided aid and assistance to the State Governments to formulate some social security benefits for WP(C).No.23532/2009 & connected cases 4 the Anganwadi workers and Helpers. The selection of Anganwadi Workers/Helpers is now a matter within the purview of the State Governments subject to the guidelines and instructions issued by the Central Government. As per G.O.(P)No.12/92/SWD dated 10.4.1992, Government of Kerala have constituted a welfare fund namely, Kerala Anganwadi Workers and Helpers Welfare Fund (for short `Fund') to provide various benefits to them. The above prelude is profitable for an appropriate consideration of the issues involved in these writ petitions. 5. A short background of the case is also worth reference. In the beginning, the ICDS project envisaged the Anganwadi Workers/Helpers to be honorary workers from the local community. They were being paid honorarium by the Central Government. Later, some States used to give their share as well from their own resources. The Government of Kerala in consultation with the Government of India issued Ext.P2 Circular No.4998/B1/ 88/SWD dated 23.9.88 and the same in so far as it is relevant reads as follows: “Anganwadi Worker/Helper will be retained in employment till 58 years and even there after, so long as she is able to perform her duties with due diligence, alertness and efficiency. This would mean that, normally, the age of retirement would be 58 but that, at that age, a review of her continuance should be made with reference to her alertness and efficiency and her service continued, subject to her being found fit.” It is thus evident that in terms of the said circular dated 23.9.88 the normal age of retirement of Anganwadi Worker/Helper was virtually WP(C).No.23532/2009 & connected cases 5 fixed as 58 years. But, at that age, a review was provided to assess fitness for further continuance. In other words, despite such prescription of age of retirement, a Worker/Helper could have continued in employment without any further upper age limit so long as she is able to perform the duties with due diligence, alertness and efficiency. In fact, prior to the same, Ext.P3 Government order dated 5.8.2003 was issued by the Government of Kerala fixing the age of 58 years as the age of compulsory retirement. This was challenged in several writ petitions. It was subsequently withdrawn as per Ext.P6 Government order dated 17.11.2003. Ext.P6 would reveal that the 3rd respondent was then appointed as a Commission to submit a report. Now, after obtaining such a report, Government of Kerala have issued Ext.P1 Government order dated 7.8.2009 introducing a pension scheme as part of the already introduced Fund and prescribing an upper age limit of 60 years as the age of retirement. As per the same, the Anganwadi Workers/Helpers who are attaining the age of 60 years would be provided with pension at the rate of Rs.500/=, Rs.300/- respectively from the Fund. The petitioners in all these writ petitions assail the said Government order on various grounds besides seeking further consequential directions. 6. I have heard all the parties. 7. The contentions of the petitioners in these writ petitions WP(C).No.23532/2009 & connected cases 6 can be encapsulated as hereunder: For the sake of convenience, the documents are being referred hereinafter in this judgment in the order they are set out in W.P.(C)No.24256 of 2009 unless otherwise specified. G.O.(MS) No.31/2009 dated 7.8.2009 is ultra vires the power of the State Government. The said order is ex facie illegal and unsustainable in the light of Government of India letters MSW No.6-11/75-CD dated 1.8.1975 and 22.8.1975 of Ministry of Human Resource Development, Department of Women and Child Development, letter No.25-2/95-CD- II dated 7.8.96 and the said Department's letter No.19-4/2002-CD-I dated 27.10.2003. On constitution the Kerala Anganwadi Workers and Helpers Welfare Fund as per G.O.(P)No.12/92/SWD dated 10.4.1992, Government ceased to have any further control over it and, at any rate, got no power to order diversion of the corpus of the Fund for any other purpose. There is no provision under the Fund to formulate a pension scheme as has been done as per Government order dated 7.8.2009. All the Anganwadi workers and Helpers are not brought within the purview of the pension scheme issued as per Government order dated 7.8.2009 and therefore the proposal to utilise the corpus of the fund for formulating the scheme would detrimentally affect such beneficiaries under the Fund and virtually by the efflux of time they would be left with no benefit at all, as by then, the corpus WP(C).No.23532/2009 & connected cases 7 of the fund would be drained off completely. Under the guise of formulating pension scheme as per Government order dated 7.8.2009 an age of superannuation has been brought into in total disregard to the specific instructions issued by the Central Government to the effect that in the case of Anganwadi Workers and Helpers prescription of an age of superannuation is inconsistent with the schematic norm of the ICDS project. The petitioners challenge Exts.R1(b) and R1(c) also as being ex facie illegal. Ext.R1(b) is G.O.(MS)No.40/2009/SWD. dated 16.6.2009 whereby specific orders have been issued for fixing the age of retirement of Anganwadi Workers and Helpers as 60 years. Ext.R1 (c) is the copy of the order No.G.O.(MS)N.41/2009/SWD. dated 18.9.2009 which, in fact, is a clarification of the Government order dated 7.8.2009. The aforesaid common contentions would thus make it clear that the concern and grievances of the petitioners are against the probable erosion of the corpus of the Fund on account of the implementation of pension scheme and that they challenge the prescription of the age of 60 years as compulsory retirement on the ground of being against the specific instructions of the Central Government and the very scheme of the ICDS project. According to the petitioners, the Government order dated 7.8.2009 would suggest the existence of another order prescribing 60 as the age of superannuation. The subsequent orders in Ext.R1(b) or Ext.R1(c) WP(C).No.23532/2009 & connected cases 8 have been issued virtually to correct the mistakes apparently crept in Ext.P1 order dated 7.8.2009 and therefore said orders of correction and the very order dated 7.8.2009 are unsustainable. 8. A counter affidavit has been filed by the State Government in support of the impugned orders and actions. In fact, the State Government filed a counter affidavit in W.P.(C)No.24256 of 2009 and memos have been filed in the writ petitions for the purpose of adopting the counter affidavit filed in the said writ petition in the other matters. The contention that the Government order dated 7.8.2009 is ultra vires has been specifically refuted therein. Further, it is stated therein that the Central Government have authorised State Governments to take appropriate action with regard to the fixation of upper age limit to the Anganwadi Workers and Helpers and therefore the contentions raised against the orders in Government order dated 7.8.2009 and Exts.R1(b) and R1(c) are absolute bereft of any basis. That apart, it is contended that an executive order cannot be said to be irrevocable and it is well within the powers of the Government to make emend of any error crept in an earlier order. The Central Government virtually supported the action of the State Government. 9. Indisputably, the power to effect appointments of Anganwadi Workers and Helpers now vests with the State Governments, though the ICDS project is a centrally sponsored WP(C).No.23532/2009 & connected cases 9 scheme implemented through State Governments. It is also not in dispute that the Fund has been constituted by the Government of Kerala. The Fund has been constituted as per G.O.(P)No.12/92/SWD dated 10.4.1992 which was produced as Ext.P7 in W.P.(C)No.23532 of 2009. The aim and object of the Fund and the various benefits available under the same have been elaborately specified in the order itself. In the light of the contentions that there is no provision in the Government order dated 10.4.1992 by which the Fund was constituted, for formulating a pension scheme for the Anganwadi Workers and Helpers and that it is beyond the control of the Government to divert the corpus of the Fund for formulation of the pension scheme, the following aspects assume relevance: Clause 2(h) of the Anganwadi Workers and Helpers Welfare Fund appended along with the Government order dated 10.4.1992 stipulates the aim and object of the fund provided for any other suitable assistance to its members. Relying on the said clause it is contended on behalf of the State that the pension scheme envisaged under the order dated 7.8.2009 cannot be construed as diversion from the object of the welfare fund scheme and in fact it is aimed for judicious use of the amount accumulated under the Fund in 1992 for the welfare of the Anganwadi Workers and Helpers themselves. In fact, it is an innovative scheme and in none of the other States in India WP(C).No.23532/2009 & connected cases 10 such a pension scheme has been formulated. It is stated in the counter affidavit filed on behalf of the first respondent State Government that the pension scheme was prepared by the Department of Social Welfare and it was subsequently forwarded to the Kerala State Financial Corporation as a consultant to provide expert opinion. After conducting a thorough study of the same they had recommended that the monthly contribution of Anganwadi Workers and Helpers at the rate of Rs.30/- and Rs.15/- respectively have to be increased as Rs.50/- and Rs.25/- respectively with equal contribution by the Government. They have made such a recommendation to avoid and avert a possible depletion of the welfare fund amount and also to ensure the financial stability and status of the welfare fund. It is specifically stated in the said counter affidavit that while preparing the pension scheme, the financial implications up to the year 2038 were considered and all the measures taken to prevent a possible erosion of the corpus of the welfare fund have been elaborately mentioned in the counter affidavit. That apart, it is stated therein that the Accountant General of Kerala found huge accumulation of amount in the welfare fund and suggested for chalking out some new schemes for the benefit of the members instead of keeping the money as dead money. In the context, the details given in paragraphs 10 to 13 of the said affidavit assume relevance. It is evident from the WP(C).No.23532/2009 & connected cases 11 counter affidavit that Rs.31,256/- functional Anganwadi centres are available under the Social Welfare Department in 163 ICDS blocks. Each Anganwadi centre is having an Anganwadi Worker and an Anganwadi Helper and a total number of 52356 Anganwadi employees, the split up of which is 26759 of Anganwadi Workers and 25597 of Anganwadi Helpers, are members of the Fund. The monthly contribution of an Anganwadi Worker to the Fund is Rs.30/- and that of the Anganwadi Helper is Rs.15/- and an equal amount is being contributed to the Fund by the Government in respect of each and every member Anganwadi Worker and Helper. The total amount accumulated in the Fund after disbursing various assistances to the members by the end of the financial year 2008-2009 was Rs.25,22,78,419/-. As already noticed, the Kerala State Financial Corporation after conducting a thorough study on the issue recommended for a slight enhancement in the rate of contribution from the part of the Anganwadi Workers and Helpers, viz., Rs.50/- and Rs.25/- respectively. An equal contribution in respect of both the categories by the Government to the Fund was also suggested. At the present rate, the annual income of the Fund by way of contribution from the members and the Government is Rs.3 crores and the present expenditure to give pension and other benefits amounts to Rs.2 crores. Thus, about Rs.1 crore will be added to the Fund every year. Taking WP(C).No.23532/2009 & connected cases 12 into account the possible increase in the number of beneficiaries that the above suggestion for enhancement of the contribution amount was made. The annual income of the welfare fund may chalk up another Rs.3 crores to the Fund. The detailed affidavit explaining aforesaid position would suggest that the scheme was formulated after much deliberation and thought in the light of Clause 2(h) of the Fund. The aim and objects of the Fund would definitely suggest that the pension scheme formulated as per Government order dated 7.8.2009, in the circumstances, cannot be construed anything as against the welfare of the Anganwadi Workers or Helpers and virtually it is nothing but a further assistance as provided under Clause 2(h). The very specific assertion in the counter affidavit filed on behalf of the State Government is to the effect that the pension scheme envisaged under Government order dated 7.8.2009 will invariably be in addition to the Kerala Anganwadi Workers and Helpers Welfare Fund and not in substitution of the said fund. As already noticed, it is the specific assertion in the counter affidavit that the pension scheme has been formulated after taking into consideration the financial implications on the fund up to the year 2038. In view of the position thus obtained from the counter affidavit, I am unable to accept the contentions on behalf of the petitioners that it would annihilate the welfare fund as such. According to me, so long as the pension scheme is envisaged as WP(C).No.23532/2009 & connected cases 13 an addition to the welfare fund, the scheme has to be acknowledged and recognized as an innovation. 10. Now, I may examine the contentions raised against the prescription of the age of retirement as 60 years in the case of Anganwadi workers and Helpers as discernible from Government order dated 7.8.2009 and Exts.R1(b) and R1(c). According to the petitioners, they are not Government servants and therefore the very idea of superannuation or retirement is against the very schematic norm of the ICDS project. The Government order dated 7.8.2009 and Exts.R1 (b) and R1(c) run contrary and inconsistent with the schematic norm of the ICDS project as declared by the Central Government in the letter dated 7.8.2009 and other letters mentioned earlier and therefore, in short, according to them there is absolutely no legal backing for importing the idea of superannuation or retirement in the case of Anganwadi Workers and Helpers. I cannot uphold the said contention for various reasons. 11. As noticed earlier, it is an admitted position that the power to effect appointments as Anganwadi Workers and Helpers now fall within the domain of the State Governments. Government of Kerala as per Circular No.1199/E3/86/SWD dated 26.3.1996 prescribed the qualifications for appointment to the said categories based on guidelines issued by Government of India. Initially, they WP(C).No.23532/2009 & connected cases 14 were being paid only honorarium. `Honorarium' in its strict sense is a voluntary donation in consideration of services which admit no compensation of money. In short, `honorarium' prima facie implies only a gratuitous payment but it also means a fee for services rendered, the meaning depends on the context. Now, as far as Anganwadi employees are concerned, it has become a periodical payment in the nature of fee for the services rendered. Now, the work to be performed by them also cannot be regarded as occasional in character and it is admittedly regular in nature. Above all, after the constitution of the Fund, they are entitled to various other benefits including pension. It is in addition to the said welfare fund that the pension scheme has been formulated as per Ext.P1 Government order dated 7.8.2009. All these would invariably suggest that the status of the employment of the Anganwadi Workers/Helpers has gained the status of public employment. The fact that the Anganwadi Workers/Helpers are not Government servants cannot therefore denude its nature as public employment. There cannot be any doubt that in the matter of any public employment, the executive Government is having competence to bring in relevant orders or circulars prescribing service conditions. As noticed earlier, as per Ext.P2 dated 23.9.1988, the Government of Kerala have in consultation with the Government of India, issued a circular WP(C).No.23532/2009 & connected cases 15 prescribing the age of 58 years as the normal age of retirement of Anganwadi Worker/Helper. However, Ext.P2 further provided a review, at that age, to assess the fitness for continuance with reference to her alertness and efficiency. The Government of Kerala have also issued Ext.P3 order dated 5.8.2003 prescribing 58 as the age of retirement of the Anganwadi Workers and Helpers without any such reservation. The same was impugned in several writ petitions. In one of such writ petitions, viz., W.P.(C)No.27913 of 2003, a counter affidavit has been filed on behalf of the Government of India, a copy of which has been produced as Ext.P5. It is stated in Ext.P5 that no age of superannuation was prescribed for the Anganwadi Workers/Helpers and in case the State had inadvertently done so, such order would have to be withdrawn with immediate effect. It is discernible from Ext.P5 that Government of India as per letter No.2-9/87-CD dated 15.6.1988 provided that such a Worker/Helper could remain in employment till 58 years and even thereafter as along as she is able to perform her duties with due diligence, alertness and efficiency. Thus, Ext.P2 circular dated 23.9.1988 is in tune with the same. The said statement was made on the strength of Government of India letters dated 1.8.1975, 22.8.1975 and 7.8.1996 referred to in paragraphs 4 and 5 in Ext.P5. Later, Ext.P3 order dated 5.8.2003 was withdrawn as per Ext.P6 order dated 17.11.2003. Obviously, the petitioners assail WP(C).No.23532/2009 & connected cases 16 the action on the part of the State Government in issuing Ext.P1 Government order dated 7.8.2009 based on the aforesaid grounds as well. In the said context, certain other relevant facts specifically stated in Ext.P5 require reference. As per the same, the State Governments are also extending monetary incentives to the Anganwadi Workers and Helpers out of their own resources. The appointment of the said category is an administrative matter within the purview of the State Governments subject to the observation of broad guidelines and instructions issued by the Central Government was also admitted thereunder. In short, it is evident that the petitioners rely on Ext.P4 Government of India letter dated 7.8.1996 to canvass the position that prescription of age of superannuation for the Anganwadi Workers and Helpers is inconsistent with the schematic norm of the ICDS project. In the light of the aforesaid contentions, Ext.R1(a) which is a letter dated 16.12.2004 issued by the Ministry of Human Resource Development, Department of Women and Child Development to the Secretaries of all States/Union Territories in charge of ICDS project gains importance. It is stated thereunder that Ext.P4 letter dated 7.8.1996 had been recirculated again as per letter dated 27.3.2003. But, even after issuance of the