1 WP.8040-2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8040 0F 2010 Mrs. Razia Shahanur Muzawar & Ors. .. Petitioners. Vs. The State of Maharashtra & Anr. ...Respondents. --- Mr. J. Shekhar with Mr. Jagtap i/b Asim Sarode & Associates, for the Petitioners. Mr. Vijay Patil, AGP for Respondent Nos.1 and 2. --- CORAM: B. H. MARLAPALLE AND U. D. SALVI, JJ. December 15, 2010. P.C.: Heard Mr. Jagtap, the learned Counsel for the petitioners. 2] In this Petition filed under Article 226 of the Constitution of India, the petitioners take exception to the Government Resolution dated 05.08.2010 issued through the Department of Women and Child Development. As per the said Government Resolution, the Anganwadi Sevika, Madatnis and Mini Anganwadi Sevika who participated in the Village Panchayat elections and got 2 WP.8040-2010 elected, are required to relinquish one of the two posts i.e. Anganwadi Sevika or the membership of Village Panchayat. 3] Petitioner No.1 came to be appointed as a Anganwadi Sevika w.e.f. 9.1.1997, petitioner no.2 came to be appointed as Anganwadi Madatnis (Helper) w.e.f. 20.08.2001. Petitioner no.2 claims that she has been paid an honorarium of Rs.1000/- p.m. and her working hours are between 11.00 a.m. to 3.00 p.m. Whereas, petitioner no.3 has been appointed as a Anganwadi Seveika w.e.f. 01.01.1998 and she has been paid honorarium of Rs.2200/- p.m. and her working hours are between 11.00 a.m. to 3.00 p.m. The Village Panchayat’s election was held on 22.08.2010, and all of them got elected as members of the Village Panchyat. The petitioner no.1 came to be elected as a member of the Panchayat for the village Mangaon, Taluka-Hatkungale, District-Kolhapur, petitioner no.2 came to be elected as a member of the Panchayat for the village Gadbidri peth Shivapur, Taluka-Bhudargad, District-Kolhapur and petitioner no. 3 came to be elected as a member of the Panchayat for the village Kothali, Taluka-Shirol, District-Kolhapur. 3 WP.8040-2010 4] The petitioners have relied upon the decision of the Supreme Court n the case of Karbhari Brimaji Rohamare Vs. Shankar Rao Genuji Kolhe & others reported in (1975) ISCC 252, in support of their contention that any person working on a post for and receiving honorarium for his services cannot be disqualified from holding any elected office, Shri Jagtap, the learned Counsel for the petitioners has placed before us a copy of the order/notice dated 22.09.2010 addressed by the Child Development Project Officer, Integrated Child Development Scheme, Mudargad (Gargoti) to petitioner no.2, whereby petitioner no.2 has been called upon to show cause as to why she should not be removed from the post of Anganwadi Madtnis (helper) as she is elected as a member of Village Panchayat after the Government Resolution dated 05.08.2010 was issued by the Government of Maharashtra. 5] We have perused the decision in the case of Karbhari Brimaji Rohamare (Supra), and the impugned Government Resolution. There is no dispute that the petitioners are being paid a monthly honorarium and not by way of regular salary though their working hours are between 11.00 a.m. to 3.00 p.m. The law laid down in the case of Karbhari Brimaji Rohamare (Supra) 4 WP.8040-2010 cannot be applied to the petitioners. In fact in the said judgment the Supreme Court stated :- “......We are satisfied that the payments made to the 1st respondent cannot be a source of profit unless he stays with some friends or relatives or stays in a dharmshala. The appellant has not satisfied the test or discharged the burden pointed out by this Court in Umrao Sing’s case. The law regarding the question whether a person holds an office of profit should be interpreted reasonably having regard to the circumstances of the case and the times with which one is concerned, as also the class of whose case we are dealing with and not divorced from reality. We are thus satisfied that the 1st respondent did not hold an office of profit......” 6] In the instant case, there is no dispute that the appointments as Anganwadi Sevika, Anganwadi helper etc. are made by selection after inviting applications by publication of a proclamation in the local newspapers. A Selection Committee is constituted and based on the merit list prepared by the said Selection Committee, the appointments are made. There is an employer employee relationship and as noted earlier there are regular working hours between 11.00 a.m. to 3.00 p.m. There is a supervisory control over the working of all these post holders and they are subject to disciplinary action by the 5 WP.8040-2010 concerned authorities if there is any dereliction in duties. They are also subject to removal by way of punishment for dereliction of duties or misconduct. Thus, though the petitioners are paid monthly honorarium and not by way of salary, they cannot equate themselves with a person who is being paid honorarium to meet the special expenses required to attend to his/her duties of an office whether statutory or otherwise. The amount which is paid to defray special expenses cannot be equated with the honorarium the petitioners are receiving. The Supreme Court in the case of Shivamurthy Swami Vs. Agadi Sanganna Andanappa (1971)3 SCC 870 held that:- “......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 ?” 6 WP.8040-2010 7] In our view, all these tests are fully satisfied in the case of the petitioners. At the same 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. 8] Hence, this Petition fails and the same is hereby rejected at the threshold. (U. D. SALVI,J.) (B. H. MARLAPALLE,J.)