wp11616.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.11616 OF 2010 Smt. Mangal Popat Salve, R/o-Gunawadi, Tq-Nagar, Dist-Ahmednagar. ...PETITIONER. VERSUS 1) The State of Maharashtra, Through Secretary, Women & Child Development Department, Mantralaya, Mumbai-32, 2) The Child Development Project Officer, Integrated Child Development Service Scheme, Project Nagar, Tq. & Dist-Ahmednagar, 3) The Village Panchayat, Gunawadi, Tq-Nagar, Dist-Ahmednagar, Through it's Sarpanch. ...RESPONDENTS. ... Shri.N.V. Gaware Advocate for Petitioner. Shri.V.B. Ghatge, A.G.P. for Respondent No.1. Shri.S.T. Shelke Advocate for Respondent No.2. ... wp11616.10 2 CORAM: NARESH H. PATIL AND T.V. NALAWADE, JJ. DATE : 16TH SEPTEMBER, 2011. PER COURT : 1. Heard learned counsel appearing for the respective parties. 2. Learned counsel for the Petitioner submits that Petitioner - Anganwadi Karyakarti, contested election to village Gram Panchayat, Gunawadi, Tq. & Dist-Ahmednagar and was declared as elected as Member of Gram Panchayat on 27th August, 2010. By Government Resolution dated 5th August, 2010, the Respondent State, adopted a policy that if Anganwadi Sevika, Madatnis, Mini Anganwadi Sevika are declared elected in elections, then the resignation of the honorary post which they were holding, is to be asked for. 3. Learned counsel for the Petitioner wp11616.10 3 submits that the Petitioner participated in the election process, which commenced from 23rd July, 2010, therefore, the Government Resolution dated 5th August, 2010 which operates prospectively, is not applicable to the Petitioner's case. The learned counsel placed reliance on the Judgment in the case of Suman Shriram Kakad vs. State of Maharashtra and another, 2011 (1) Mh. L.J. 766, and Manda Jaganath vs. K.S. Rathnam and others, (2004) 7 S.C.C. 492, in support of his submissions. 4. We have perused the Judgment delivered by the Division Bench at Principal Seat of Bombay High Court (CORAM: B.H. MARLAPALLE AND U.D. SALVI, JJ.) in Writ Petition No.8040 of 2010, dated 15th December, 2010. While considering the effect of the Government Resolution dated 5th August, 2010, the Division Bench observed in Para 6 and 7 as under:- wp11616.10 4 "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 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 wp11616.10 5 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 (1973) 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 wp11616.10 6 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?" "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 wp11616.10 7 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." 5. It is admitted position in the present case that the Petitioner was elected after issuance of the Government Resolution dated 5th August, 2010. Considering the laudable object behind issuing Government Resolution, the interpretation put up by the Petitioner is not acceptable. Under the Government Resolution, the Petitioner's election is not affected, but the State has made it obligatory for persons like Petitioners, to vacate the post of Anganwadi Sevika/Helper. Such a provision was thought necessary in the light of the nature of services rendered by Anganwadi Sevika/Helper, therefore considering the social objective, the State Government had framed the policy. We are, wp11616.10 8 therefore, not inclined to accept the argument advanced on behalf of the Petitioner. There is no merit in the Petition. The Writ Petition is dismissed. 6. At this stage, learned counsel for the Petitioner prays for continuation of interim relief for further four weeks which was granted earlier, as the Petitioner is officiating as Anganwadi Karyakarti. We are not inclined to continue the interim relief which was granted earlier. The request is rejected. [T.V. NALAWADE, J.] [NARESH H. PATIL, J.] asb/SEPT11