1 wp7693.10.sxw IN THE HIGH COURT OF JDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7693 OF 2010 Anganwadi Karmachari Sabha (Maharashtra) ...Petitioner Vs. The State of Maharashtra and another ..Respondents. WITH WRIT PETITION NO. 7719 OF 2010 Smt. Deepa Dattaram Ghadi & Anr. ..Petitioners. Vs. Union of India & another ..Respondents. Mr. Rajiv Patil i/by S.S. Punde for the Petitioners in WP No. 7693/10. Mr. R.S. Apte, Senior Advocate i/by A.P. Gole for the Petitioners in WP No. 7710/ 10. Mr. V.D. Patil, G P. for Respondent -State. Mr. M.J. Jamdar with Mr. J.S. Deo for Respondent Union of India. CORAM : P.B. MAJMUDAR AND A.A. SAYED, JJ. DATE : 23RD FEBRUARY, 2011. P.C. 1. By way of this petition, the petitioners have challenged the Government Resolution dated 5-8-2010. As per the said Resolution no Aganwadi Sevika Madatnis and Mini Anganwadi Sevika should be allowed to continue as member of the Village Panchayat/Panchayat Samiti/Local Body. The members of the petitioners association in Writ Petition No. 7693 of 2010 and the petitioners in Writ Petition No. 7719 of 2010 are serving as 2 wp7693.10.sxw Anganwadi Sevika/Madatnis/Special Executive Officer and getting remuneration by way of honorarium. It is their case that since they are not getting regular salary and getting honorarium they should be allowed to continue in the office of Gram Panchayat/ Local Body. The point in question has already been concluded by the Division Bench of this Court in Writ Petition No. 8040 of 2010. The Division Bench of this Court has observed in para 6 and 7 of the Judgment as under : 6. " In the instant case, there is no dispute that the appointments as Anganwadi Sevika, Anganwadi helper etc. are made by selection after inviting application by publication of a proclamation in the local news papers. A Selection Committee is constituted and base don the merit list prepare 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 posts holders and they are subject to disciplinary action by the 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 Shivmurthy 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 allowances is attached....This Court in several decisions had laid down the test of 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 3 wp7693.10.sxw 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? 7. In our view, all these tests are fully satisfied in the case of 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." 2. Since this Court is bound by the decisions taken by the earlier Division Bench, prayer made by these petitioners challenging the Resolution cannot be accepted. Another Division Bench has decided the issue in Writ Petition No.4255 of 2010 holding that this Resolution shall be applicable with prospective effect and not retrospective. Accordingly it is held that the Resolution in question shall not be applied retrospectively but will apply prospectively only. Those who are elected as member of Gram Panchayat/Local Body prior to this resolution, their interest will not be affected as elected members in Gram Panchayat, Panchayat Samiti or Special Executive Magistrate. But after the Resolution, the above employees will not continue to hold such office. Petitions are partly allowed to the extent as noted in this order. ( A.A. SAYED, J. ) (P.B. MAJMUDAR, J.)