IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T BHARTIYA AANGANWARI V/S U.O.I & ORS KARAMCHARI SANGH SPL. APPL. WRIT No. 1265 of 1997 Date of order : 7th December, 2007 PRESENT HON'BLE SHRI N.P.GUPTA,J. HON'BLE SHRI MUNISHWAR NATH BHANDARI,J. Mr. MC BHOOT, for the appellant / petitioner Mr. BL BHATI, A.G.A., for the respondent BY THE COURT:(Per Hon'ble Gupta,J.) This appeal has been filed by the Sangh of Anganwari Workers, purporting to be through the president, seeking to challenge the judgment of learned Single Judge dt. 25.9.1997, whereby the writ petition filed by the petitioner was dismissed, on the ground, that the petitioner has alternative efficacious remedy before the Industrial Tribunal, and also directing, that looking to the pendency of the case, the petitioner need not go for conciliation before the Conciliation Officer, and may directly move the appropriate Government, for referring the dispute to the Industrial Tribunal, and in case the petitioner moves such an application to the appropriate Government, it will be decided within three months of the filing the same. Arguing the appeal our attention was invited to the order-sheet of the learned Single Judge dt. 22.1.1996, wherein it was noticed, that a fundamental constitutional question has been raised in this writ petition, to the effect, that the work, that is being taken from the petitioners, and the salary, which is paid in consideration thereof, falls within the definition of “Begar”, as the salary or the remuneration is not in proportion to the services, and is therefore, violative of Article 23 of the Constitution. With noticing this, the matter was posted for final judgment on 30.1.1996. According to the learned counsel, since the learned Single Judge had framed this question, which was required to be decided on merits, as this question cannot be decided by the Industrial Tribunal, or the Labour Court, or the authorities under the Industrial Disputes Act, and therefore, the learned Single Judge was in error in dismissing the writ petition, on the ground of alternative remedy. Then, the learned counsel tried to refer to the booklet, named as Anganwari Karyakarta Guide, and pointed out various duties, which are contemplated to be discharged by the Anganwari workers, and impressed, that the duties are like that of teacher of 2 primary and secondary education, while the remuneration paid is wholly disproportionately low. It is also contended that it is the total misnomer to call it an honorarium, rather the Anganwari project is a regular project, and has become a part of the Government, where regular recruitments are made by open interviews, and the persons are to serve permanently, so much so that the members of the appellant Sangh have been serving for more than a decade, and in such circumstances, to pay paltry amount to the workers, under the nomenclature of honorarium, clearly tantamounts to taking “Begar”, or “such other forced labour”, and is violative of Article 23. Learned counsel relied upon the judgment of Hon'ble the Supreme Court, in People's Union for Democratic Rights and others Vs. Union of India, reported in AIR 1982 SC-1473, specially para-12 onwards, and contended, that for describing any labour extracted, as forced labour, it is not necessary that there should be physical or legal force, or that no remuneration should have been paid, rather even in cases where the person concerned is under pressure of economic circumstances, and is pitted in a condition of “leave it or take it”, that does not entitle the State, or the employer, to pay the wages, below minimum wages rates. On the other hand, learned counsel for the respondent submitted, that the argument advanced by the learned counsel for the appellant has no basis, as no 3 factual foundation had been laid for this argument in the writ petition. It was also submitted, that may be that there is recital in the order sheet dt. 22.1.1996, but then on 30.1.1996 onwards the matter was adjourned to dates after dates, and then on 19.8.1996 the appeal was admitted, and then the matter was fixed for final hearing, and then when the matter was heard on 25.9.1997, the question formulated in the order sheet dt. 22.1.1996, was never pressed by the learned counsel for the petitioner, and therefore, there was no occasion for the learned Single Judge to adjudicate upon that question. Then, in the alternative it was also submitted, that a look at the writ petition shows, that the only prayer made in the writ petition is, that the respondents be directed to fix all the members of the petitioner union in a regular pay scale, equivalent to teachers of primary and secondary education, and till then they may be directed to pay to the members of the petitioner Union minimum wages as provided in Minimum Wages Act, while, according to the judgments of Hon'ble the Supreme Court, in Canteen Mazdoor Sabha Vs. Metallurgical and Engineering Consultants, reported in (2007) 7 SCC-710, State of Haryana Vs. Charanjit Singh, reported in (2006)9 SCC-321, and Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd., reported in (2007) 1 SCC-408, this type of relief cannot be granted by this Court, under Article 226 jurisdiction. It was then submitted, that even from a close reading of the writ 4 petition, it is no where the case, that Anganwari employees are being paid at the rates, below the minimum wages rates, even though, may be, that the provisions of Minimum Wages Act may not be applicable. It was submitted, that if at all the petitioner, or its members feel, that the employees are being paid at a rate lower than the minimum wages rate, they can very well approach the competent authority, to ventilate their grievances, and the grievance would be remedied, but then, in view of the material placed on record, there does not at all appear to be any violation of Article 23, as noticed in the order sheet dt. 22.1.1996, of the learned Single Judge. It is contended that the question of creation of posts, appointment thereon, regularisation, fixing of pay scales, promotions etc. are matters, decision on which are to be taken on the administrative side, and these questions cannot be decided on the basis of sympathy, or compassion, they are in the nature of executive and legislative function, and not open to be stepped in by the Court, except, of course, in rare and exceptional circumstances. It is also contended, on the basis of the judgment in Indian Drugs and Pharmaceutical Ltd's case, that Hon'ble the Supreme Court has deprecated the judicial activism in such cases, and thus, it was contended, that the petitioner is not entitled to any relief whatever. We have considered the submissions, and have gone through the various judgments cited at the Bar. 5 At the outset we may observe, that so far the principles propounded by Hon'ble the Supreme Court, in People's Union's case is concerned, there cannot be two opinions about the principles propounded therein. Article 23 is to be enforced, in the sense, that wherever any victim faces violation thereof, the relief is required to be granted by the Court under Article 226. However, we may notice, that the facts in that case were bit different, inasmuch as the observations came to be made, rather the principles came to be propounded, in a very telling factual matrix, where a rank busy body was deducting by way of his share, or commission, from out of the wages being received by the actual workers, resulting into the workers receiving wages, less than the minimum wages rates. We make it clear, that we do not mean to draw this, as a distinction, to get out of the judgment, and the principles propounded therein. The principles propounded are salutary, and are not only required to be respected, but are also required to be followed. However, that is not the end of the matter inasmuch as, of course where any violation of Article 23 is found, while exercising 226 jurisdiction, the Court is under obligation to enter into the allegations, and in case it is satisfied, that any violation of Article 23 is being made, the relief has to be granted. 6 In that view of the matter, the first and foremost question, that arises is, as to whether any violation of Article 23 has been alleged, or even if not so alleged, is shown to have been made out by the petitioner, so as to enable the Court to grant any relief to the petitioners. Coming to the pleading on record, in memo of appeal before us, all that has been pleaded is in para-4, that looking to the present crisis in the living standard, the salary which is being paid to the workers and employees and servants of Anganwari, is against the provisions of Article 23 of the Constitution of India. Then, coming to the writ petition, we find, that the petitioner has catalogued the salient features of the scheme, known as Integrated Child Development Services (ICDS) Scheme, for mental, physical and social development of child, from its inception, and that, for the purpose of achieving the objects of ICDS, the Anganwari has been established at village level, and then, has given the number of workers who are attached to Anganwari, including their requisite qualifications, like non metric, metric with five years experience, metric with 6 years experience, and that the pay of these workers are fixed according to Annexure-2. This Annexure-2 is dated 20.1.1993, revising the rates of honorarium w.e.f. 2.10.1992, with the concurrence of His Excellency the Governor. Then it is alleged, that whatever 7 has been paid to the workers, is paid by the Labour Department, under the head salary, which comes from Government Treasury, and traveling allowance, maternity leave, causal leave, and other admissible leave, are also granted as per rules prevailing for the Government servants. Then, the working hours are given, duties are given. Then, at the end of page 5 onwards, it is pleaded that for all practical purposes, the working, responsibility, the labour undertaken by the Anganwari workers, is comparable with that of primary teacher, or even middle school teachers, rather the work discharged by the Anganwari workers is more onerous. Then, at page-6 it is pleaded, that the State Government is paying them a highly arbitrary low rate of pay, or emoluments, which is discriminatory, and amounts to victimisation, and unfair labour practice. It has also been described as exploitation of youth of the country. Then, it is pleaded, that the writ petition is given, and then it is pleaded to be violation of Article 14 and 16 etc. Of course, the respondents have maintained the stand, that whatever is being paid to the workers is only honorarium, and then considered the purpose and social work, in the event, and community in the village, and that the honorarium cannot be said to be arbitrary, unconstitutional, or against the basic norms of social development, or violative of Constitution. Then, pleading has been taken by the respondent, about certain more benefits being granted to the Anganwari workers, some 8 issue has been picked up about the nature and the extent of duties, as alleged by the petitioners. However, it is contended, that they have to work only for four hours, and thereafter, they are free to move anywhere. Of course rejoinder has also been filed, interalia contending, that the issue is sought to be confused by the respondents, simply to deny legitimate claim of the workers. From a bare comprehension of the pleadings as recapitulated above, the fact does remain, that it is nowhere the case that the petitioners, or its members, are being paid whether in the name of honorarium, or salary, or wages, or whatever it may be, at a rate, less than minimum wages rate, nor is it the case, that they are working under any compulsion, much less under any of the nature of compulsions, not only catalogued, but also comprehended in People's Union's case. It appears, that it is in this view of the matter, that at the time of finally arguing the writ petition, the point was not argued before the learned Single Judge, and this is not averment in this appeal, that the contention was argued but was not considered by the learned Single Judge. It is a different story, that if contention would have been raised, that would not have helped the petitioner. In view of the above discussion, with all sympathy and compassion, at our command, we are constrained to hold, 9 that no case of violation of Article 23, as comprehended by the Hon'ble Supreme Court, in People's Union's case, is at all made out in favour of the petitioner. However, may be that violation of Article 23 may not have been made out, still we have to examine the question, as to whether the petitioners have been able to make out the case for the relief as claimed in the writ petition, i.e. to be given the parity in the matter of pay scale, with that of the teacher of primary and secondary education. In this regard, at the out set we may refer to the judgment of Hon'ble the Supreme Court in Charanjit Singh's case, being the recent judgment, rendered by the Bench comprised of three Hon'ble Judges of the Supreme Court, holding to the extent, that for similar work, the principle of equal pay cannot be applied, rather it was held, that Article 14 permits reasonable classification, on considerations, including merit, experience, incentivisation, mode of selection/recruitment, qualification, quality, nature, reliability of work done, responsibility entailed, regardless of nomenclature/job description, or volume of output, and it was also held, that the proper forum/authority, proceeding to determine is the expert body, and writ court is not the appropriate forum. Then, in Sushmita Basu Vs. Ballygunge Siksha Samity, reported in JT 2006 (12) SC-205, it was again held, that while considering the question of parity between teachers 10 of private school, and government school, without there being any statutory rules, or government orders, directing the private unaided educational institutions, to implement the recommendations of the Third Pay Commission, no writ of mandamus can be issued to such an institution. Then, in Canteen Mazdoor Sabha's case again, considering the question of parity between employees in the management of MECON, qua the employees in VIP Guest House and Tea Club of MECON, it was held, that there is no question of giving them salary, at par with the employees of MECON. In this case, the judgment in Charanjit Singh's case has been followed in extenso. Then, we may refer to the judgment in Indian Drugs & Pharmaceuticals Ltd.'s case, where it was clearly held, that function of creation of posts, appointment to posts, regularisation, fixing of pay scales, continuation in service, promotion etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case, and the judicial activism in these cases was deprecated. In our view, in view of the fact that no violation of Article 23 is made out, then thereafter what should be the emoluments, or service conditions, or with whom there should be parity, are all questions, which do not fall within the permissible jurisdiction of this Court, under Article 226, so as to enable us to interfere, not 11 only in the impugned order, but in the writ jurisdiction, in favour of the petitioners. Thus, taken from any stand point, we do not find any force in the appeal, and the same is, therefore, dismissed. ( MUNISHWAR NATH BHANDARI ),J. ( N P GUPTA ),J. /Sushil/ 12