Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 1243 of 2011 Smt. Shashi Devi ….Petitioner. Versus State of Uttarakhand and others …Respondents. And Writ Petition (S/S) No. 1367 of 2011 Smt. Suma Devi ….Petitioner. Versus State of Uttarakhand and others …Respondents. And Writ Petition (S/S) No. 636 of 2011 Smt. Sudha Devi ….Petitioner. Versus State of Uttarakhand and others …Respondents. Present : Mr. R. K. Sah, Advocate for the petitioners. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. 1. Heard Mr. R. K. Sah, counsel for the petitioners and Mr. N. P. Sah, Standing Counsel for the State of Uttarakhand. 2. The matters raised in the above three writ petitions raise a common question of law. Consequently they are being adjudicated by the present order. 3. The petitioners who are “Angan Bari Karyakatries” have been elected as a “Gram Pradhan” of their respective “Gram Sabhas”. They have been served notice by the relevant authorities now to leave one of the two posts i.e. either of the “Gram Pradhan” or the “Angan Bari Karyakatri”. The petitioners resent this and this being the common issue in all these writ petitions the petitioners have challenged the said order of the concerned authority before this Court. 2 4. “Angan Bari” literally means a “Courtyard Shelter”. “Angan Bari” workers are appointed under a Government of India sponsored scheme known as Integrated Child Development Service (from hereinafter referred to as ICDS) which renders child care service, particularly to children upto the age of 6 years and also certain services to women in villages. “Angan Bari” worker is appointed for an “Angan Bari centre” which is a grass root level of a village where such benefits of the project or scheme are to be given. There are an estimated 1.053 million “Angan Bari” centre in the country. Each centre is managed by an “Angan Bari” worker (popularly known as Angan Bari Karyakarti) who is given training in health care nutrition, child care, etc. “Angan Bari Karyakartis” are female workers appointed under the above scheme and although in the beginning they were given a paltry honorarium of ` 100 per month, today, however, the honorarium given to them in the State of Uttarakhand is ` 3,000/- per month. 5. This Scheme was implemented in the erstwhile State of Uttar Pradesh, somewhere in late 80s, which continued in the State of Uttarakhand, “Angan Bari Workers” are appointed in “Angan Bari Centres”, which are situated almost in all villages. It is a village level appointment made by the concerned Child Development Project Officer. The selection and appointment procedure of “Angan Bari Karyakatri”, “Sahayika Angan Bari Karyakatri” and “Mini Angan Bari Karyakatri” are presently governed by various Government Orders but primarily by Government Orders dated 24th February, 2009, 3rd September, 2009 and 31st May, 2010. The main scheme today is given in a Government Order issued by the Government of Uttarakhand on 24th February, 2009. These are all admitted facts. 3 6. As per the said Government Orders, reference whereof has already been given above, a selection committee at Block Level is first constituted. A procedure is prescribed for constituting this Selection Committee. Thereafter procedure is also prescribed how the various vacancies of “Angan Bari Workers” will be advertised for all the “Angan Bari Centres” and how the selection will be made by the Selection Committee and what will be the eligibility as well as the priorities given to a candidate in this selection. It will be needless to elaborate on this aspect at the present juncture. Sufficient will it be to state the admitted position that there is a procedure prescribed under law for selection and appointment of “Angan Bari Karyakatris”. 7. As per the procedure prescribed in the Government Order dated 24th February, 2009, the Selection Committee shall publish a “tentative select list”, to be notified at various places including the Block Level Offices, so that if anybody wants to raise objections on these selections, he or she would be free to make them. The cases where no objections are made, the tentative selection list becomes final and the Child Development Project Officer issues appointment letter to such a candidate. In cases where objections are received, the matter is referred to the Appellate Authority, which is constituted under the Government Order dated 24th February, 2009. The body of the Appellate Authority constituted is as follows: “1. Chief Development Officer- Chairman 2. A person nominated by the District Magistrate, who must be at least Class-II Officer, and, 3. District Programme Officer, who will be the member Secretary of this appellate body. 4 8. The Appellate Authority after considering the objections passes appropriate order therein. The Appellate Authority has to take a decision on this matter within 15 days as per the Government Order dated 24.2.2009. 9. By way of Seventy-third amendment of the Constitution of India, Part IX was inserted in the Constitution of India. Articles 243-F and 243-K of Part IX of the Constitution of India would be relevant for our purposes and are being reproduced below :- “243-F. Disqualifications for membership.-(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat— (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; (b) if he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.” “243-K. Elections to the Panchayats.—(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. (2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: Provided that the State Election Commissioner shall not be removed from his office except in like manner and 5 on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. (3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1). (4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats.” 10. A “Gram Pradhan” is a member of “Village Panchayat” and it has been stated in Article 243-F (1) that he stands disqualified as being chosen as a member of Panchayat “if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned”. Moreover, Section 5-A of the U.P. Panchayat Raj Act, 1947, which is presently enforced in the State of Uttarakhand, reads as under :- “5-A. Disqualification of membership. – A person shall be disqualified for being chosen as, and for being, [the Pradhan or] a member of a Gram Panchayat, if he – (a) is so disqualified by or under any law for the time being in force for the purposes of elections of the State Legislature : Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; (b) is a salaried servant of the Gram Panchayat or a Nayaya Panchayat; (c) holds any office of profit under a State Government or the Central Government or a [local authority, other than a Gram Panchayat or Nyaya Panchayat; or a Board, Body or Corporation owned or controlled by a State Government or the Central Government;] (d) … (e) … 6 (f) … (g) … (h) … (i) … (j) … (k)… (l) … (m)… (n) …” 11. In the aforesaid provision as well, it has been clearly stated in Section 5-A (a) and Section 5-A (c) that a person shall be disqualified for being chosen as a Gram Panchayat “if so disqualified by or under any law for the time being in force for the purposes of elections of the State Legislature”. Moreover, a person shall be disqualified if he “holds any office of profit under a State Government or the Central Government or a [local authority, other than a Gram Panchayat or Nyaya Panchayat; or a Board, Body or Corporation owned or controlled by a State Government or the Central Government”. 12. Under the Constitution of India, disqualifications are prescribed both for a Member of Parliament under Article 102 of the Constitution of India and for a Member of State Legislative Assembly or Legislative Council under Article 191 of the Constitution of India. The provisions as contained under Article 102 (1) (a) and Article 191 (1) (a), with which we are concerned, are para materia. Article 191 (1) (a) reads as under :- “191. Disqualification for membership. – (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State – (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder”. 7 13. The main thrust of the argument of the counsel for the petitioners before this Court is that being an “Angan Bari Karyakatri” is not a disqualification to be elected as a “Gram Pradhan”. It is further argued that merely because a woman is an elected “Gram Pradhan”, it will not act as a disqualification for her being appointed as an “Angan Bari Karyakatri”. The impugned orders are orders dated 30.7.2011, 26.9.2011 and 28.3.2011 by the concerned authority which rely upon an earlier order of the Government of India, which states that since the project of “Angan Bari Karyakatri” is being sponsored by Government of India, the logic in these orders is that once an “Angan Bari Karyakatri” becomes a “Gram Pradhan” it would distract her from the core work i.e. the work assigned to her as an “Angan Bari Karyakatri” who are appointed under a Government of India scheme/project. It is true that there are no statutory rules framed for such appointment but it is also admitted that presently selection and appointments on the post of “Angan Bari Karyakatri” are made in the State of Uttarakhand primarily under a Government Order dated 24.2.2009. In this order, or any other order for that matter, there is no disqualification attached to an “Angan Bari Karyakatri” if she is an elected “Gram Pradhan”. 14. All the same, an elected “Gram Pradhan” who is also a member of a “Panchayat” i.e. the village local body should not occupy an office of profit, as that would be a disqualification both under the law already referred above, as well as in view of the Division Bench judgment of the Hon’ble Allahabad Court in Sarita Devi v. State of Uttar Pradesh and others (Civil Misc. Writ Petition No. 56318 of 2010). Therefore, all this Court has to see is as to whether the honorarium which is received by an “Angan Bari Karyakatri” from the Government constitutes an “office of profit”. 8 15. What constitutes an “office of profit” is by now well settled, though not defined either under the Constitution of India or under any statute. There is a catena of decision of the Hon’ble Apex Court defining as to what constitutes an “office of profit”, however, this Court will only refer to three main judgments of the Hon’ble Apex Court which are as follows :- (1) Ashok Kumar Bhattacharyya v. Ajoy Biswas (1985) 1 SCC 151, (2) Shibu Soren v. Dayanand Sahay (2001) 7 SCC 425 and (3) Jaya Bachchan v. Union of India and others (2006) 5 SCC 266. 16. There is another case on which reliance has been placed by this Court which is M.V. Rajashekaran and others v. Vatal Nagaraj and others (2002) 2 SCC 704. 17. In Ashok Kumar Bhattacharyya case as well as Shibu Soren case (supra) it has been held that what constitutes an “office of profit” and more particularly what constitutes an “office of profit under a State”, which would thus entail a disqualification (as a Legislature), has been well defined. What has been held by the Hon’ble Apex Court in these decisions is that while noticing as to what constitutes an “office of profit”, the Court should take a “practical” and not a “pedantic” view. The approach of the Court should be to interpret the expression “office of profit”, “with the flavour of reality bearing in mind the object for enactment of Article 102 (1) (a), namely, to eliminate or in any event to reduce the risk of conflict between the duty and interest amongst members of the legislature by ensuring that the legislature does not have persons who receive benefits from the executive and may thus be amenable to its influence”. (Shibu Soren v. Dayanand Sahay (2001) 7 SCC 425) 9 18. In the present case, the petitioners receive only an honorarium of ` 3,000/- per month, however, in the case of Shibu Shoren (supra) the Hon’ble Apex Court has held that even an honorarium of ` 1,750/-, under the facts and circumstances of that case, would constitute a pecuniary gain and hence an “office of profit”. Undoubtedly, the petitioners being “Angan Bari Karyakartis” receive an honorarium of ` 3,000/- per month from the State exchequer. 19. The nature of duties as “Angan Bari Karyakarties”, inter alia, are as under :- “To provide coverage to over 58 million children and over 10 million women belonging to poor families by providing facilities of immunization, health, food, clean water, hygienic toilets, proper environment for infants, toddlers and pre-school and learning. 20. Let us also examine the duties which are there under the U.P. Panchayat Raj Act of a member of “Gram Panchayat”. The “Gram Panchayats” now have constitutional status under article 243 of the Constitution of India and have been assigned wide powers under Article 243 (G). Article 243 (G) of the Constitution of India reads as under :- “243G. Powers, authority and responsibilities of Panchayat.- Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to- (a) the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.” 10 21. The XI Schedule of the Constitution of India reads as follows :- “[ELEVENTH SCHEDULE [Article 243G] 1. Agriculture, including agricultural extension. 2. Land improvement, implementation of land reforms, land consolidation and soil conservation. 3. Minor irrigation, water management and watershed development. 4. Animal husbandry, dairying and poultry. 5. Fisheries. 6. Social forestry and farm forestry. 7. Minor forest produce. 8. Small scale industries, including food processing industries. 9. Khadi, village and cottage industries. 10. Rural housing. 11. Drinking water. 12. Fuel and fodder. 13. Roads, culverts, bridges, ferries, waterways and other means of communication. 14. Rural electrification, including distribution of electricity. 15. Non-conventional energy sources. 16. Poverty alleviation programme 17. Education, including primary and secondary schools. 18. Technical training and vocational education. 19. Adult and non-formal education. 20. Libraries. 21. Cultural activities. 22. Markets and fairs. 23. Health and sanitation, including hospitals, primary health centers and dispensaries. 24. Family welfare. 25. Women and child development. 26. Social welfare, including welfare of the handicapped and mentally retarded. 27. Welfare of the weaker sections, and in particular, of the Scheduled Castes and the Scheduled Tribes. 28. Public distribution system. 29. Maintenance of community assets.]” 22. Though the powers to make law on the above subject are subject to the law made by the State Legislature and it would depend upon the Legislature of one State as to what kind of 11 powers they given to a “Panchayat”, yet under the U.P. Panchayat Raj Act, 1947 (presently applicable in the State of Uttarakhand as well), the powers and functions of the “Panchayat” are given under Chapter IV and more particularly under Section 15 which refers about functions of “Gram Panchayats”. Some of the functions that a “Gram Panchayat” shall, inter alia, perform are, namely, - “ (i) Agriculture including agricultural extension, - (a) Promotion and Development of agriculture and horticulture. (b) Development of wastelands and grazing lands and preventing their unauthorized alienation and use. (xxiii) Medical and sanitation : (a) Promotion rural sanitation. (b) Prevention against epidemics. (c) Programmes of human and animal vaccination. (d) Preventive actions against stray cattle and live-stock. (e) Registering births, deaths, and marriages. (xxiv) Family welfare : Promotion and implementation of family welfare programmes. (xxvi) Maternity and child development : (a) Participation in the implementation of women and child welfare programmes at Gram Panchayat level. (b) Promoting child health and nutrition programmes.” 23. We can easily notice that many of these functions of “Gram Panchayat” are similar to the one assigned to an “Angan Bari Worker”. In M.V. Rajashekaran case (supra) the Hon’ble Apex Court, inter alia, had held that the Court is also required to find out whether there exists any nexus between the duties discharged by the candidates and the Government and whether a conflict is bound to arise between impartial discharge of such duties in course of his employment, with the duties which he is required to discharge as a member of 12 legislature on being elected. This aspect has also been noticed by the Hon’ble Division Bench of Allahabad High Court in Sarita Devi’s case (supra). The Hon’ble Apex Court in M.V. Rajashekaran case (supra) has rejected the above position and held that a “practical view, not pedantic basket of tests should guide in arriving at a sensible conclusion” i.e. a conclusion as to what constitutes an “office of profit”. Therefore, what constitutes an “office of profit” would also depend upon case to case and one of the important factors for determining that a particular office constitutes an “office of profit” is whether being that “office of profit” a person is actually under pressure from the Government so that there can be a conflict in discharge of his independent duties as Legislature. 24. In Jaya Bachchan v. Union of India and others (2006) 5 SCC 266, the Hon’ble Apex Court after discussing the entire previous law on the subject stated as follows :- “11…It is well settled that where the office carries with it certain emoluments or the order of appointment states that the person appointed is entitled to certain emoluments, then it will be an office of profit, even if the holder of the office chooses not to receive/draw such emoluments. What is relevant is whether pecuniary gain is “receivable” in regard to the office and not whether pecuniary gain is, in fact, received or received negligibly. 25. An “office of profit” does not mean that holder of the office should carry a very high salary or great remuneration either in the form of salary or perks. What is of relevance is that the person should be getting some monetary benefit, which would include an honorarium and if it so happens then that would constitute an “office of profit”. It matters little that “Angan Bari Karyakatri” is not a civil post. It is well-settled and on this there is no dispute that the Hon’ble Apex Court has held that the “Angan Bari Karyakatri” in not a civil post. 13 But merely because it is not a civil post, it would not ipso fact also mean that the post of “Angan Bari Karyakatri” does not constitute an office of profit. Admittedly, an “Angan Bari Karyakatri” receives an honorarium from the State Government, which is presently ` 3,000/-. Since it receives an honorarium, clearly an “Angan Bari Karyakatri” constitutes an “office of profit”, as held by the Division Bench of Hon’ble Allahabad High Court in Sarita Devi v. State of Uttar Pradesh and others (Civil Misc. Writ Petition No. 56318 of 2010), and as is the position of law which stands determined from the cases of the Hon’ble Apex Court already referred above. 26. In the Division Bench judgment of the Allahabad High Court in Sarita Devi v. State of Uttar Pradesh and others, referred above, a question was also placed before the Division Bench as to whether an “Angan Bari Worker” is able to contest the elections and simultaneously continue with the office or not. Since no argument was made on this, the Court nevertheless made certain observations, which is as under :- “As we understood, as soon as they want to file the nomination for the election of the Panchayat, they have to surrender their post, which they are holding in the Panchayat itself and if it is so, the plea which has been taken before this Court by the petitioner/s is illusory in nature.” 27. The right to elect and the right to be elected are statutory rights. Therefore, such a disqualification or limitation must be in the statute itself. As we have already discussed above, the statute and the law prohibits that no person who is holding an office of profit can contest the election and this Court therefore can make no exception even in the case of petitioners even assuming that the honorarium they carry is paltry i.e. of only ` 3,000/- per month. 14 28. The petitioner has placed reliance on the judgment of the Hon’ble Apex Court in State of Karnataka & others v. Ameerbi & others (2007) 11 SCC 681), where the Hon’ble Apex Court has held that since an “Angan Bari Karyakatri” does not hold a civil post, she is free to fight elections. That being the law of land it is submitted, a disqualification cannot be attached to “Angan Bari Karyakatri” for holding an elected office of “Gram Pradhan”. This argument of the petitioners though is misconceived. In Ameerbi case (supra) the Hon’ble Apex Court was only dealing with the issue as to whether an “Angan Bari Worker” holds a civil post or not, and the Hon’ble Apex Court has held in the said judgment that an “Angan Bari Worker” does not hold a civil post. It is clear from the following crucial observations in the said judgment : “We are concerned herein with only one question viz. whether the respondents are holders of any civil post. We are, having regard to the materials on record, of the view that they are not.” (paragraph 38 of the said judgment) 29. The present argument of the petitioners was also raised before the Division Bench of the Hon’ble Allahabad High Court (in Sarita Devi v. State of Uttar Pradesh and others, reference of which has already been made above). The Hon’ble