Punjab-Haryana High Court
Smt.Bali Devi vs State Of Haryana And Others on 28 October, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.8712 of 2012
Date of decision: 28.10.2013
Smt.Bali Devi
..... Petitioner(s)
Versus
State of Haryana and others
..... Respondent(s)
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.Sanjiv Gupta , Advocate,
for the petitioner.
Mr.Sunil Nehra, Sr. DAG, Haryana
*****
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
RAJIV NARAIN RAINA, J.
The petitioner was appointed as an Anganwari Worker on 31.1.1996. Her political ambitions led her to contest the election of Panch/Sarpanch in the Gram Panchayat elections held in Haryana in June- July, 2010. but before doing so she sought a clarification from the 4th respondent, i.e. Programme Officer, Integrated Child Development Scheme, Panipat whether an Anganwari Worker can contest the election for the post of Sarpanch or Panch. She was informed by the Child Development Project Officer, Bapoli, District Panipat that since Anganwari Workers are paid Kumar Paritosh 2013.11.14 12:10 I attest to the accuracy and integrity of this document CWP No.8712 of 2012 2 honorarium, they are free to contest elections. Fortunately for her she won the election on 6.7.2010. She was declared elected as Panch. She won the further election of Sarpanch of Gram Panchayat, Tamsabad. She then started performing the duties of both Anganwari Worker and Sarpanch. Her services were, however, dispensed with vide order dated 3.4.2012, against which, the present writ petition has been filed under Article 226 of the Constitution of India. The impugned order has been passed in compliance of the current GOI instructions circulated by the Director, Women and Child Development Department, Haryana, Panchkula. The instructions (P-3) dated 7.9.2010 read as follows : -
"Sub : Filing of nomination by Anganwari
Workers/Helpers to contest the local
bodies/Panchayats election - clarification
regarding.
Reference to the subject cited above.
It is to inform you that Govt. of India has
clarified that "in case the Anganwari
worker/Anganwari Helper with an election, it may not be appropriate for her to discharge, concurrently, duties both in the capacity of an elected member of Panchayat/Local Body as well as an Anganwari Worker/Anganwari Helpers under the ICDS Scheme. This would necessarily take their away from the core activities and would effect the delivery of the services adversely under the ICDS scheme."
2. The scheme, under which, an Anganwari Worker performs the duties on an honorarium is a Central Government Sponsored Scheme. Kumar Paritosh However, the first GOI instructions on the subject i.e dated 28.11.1994 2013.11.14 12:10 I attest to the accuracy and integrity of this document CWP No.8712 of 2012 3 issued by the Director, Women & Child Development, Haryana, Chandigarh permitted the dual roles. It was laid down as follows : -
"The Department had received applications from Anganwari workers and Anganwari Helpers for filing application for contesting elections for the post of Panch/Sarpanch/Panchayat Samitis and Zila Parishad etc. Regarding this issue, you are hereby informed as per directions of Govt. of India, that the Anganwari workers and Anganwari Helpers can file their nomination papers for contesting in election without resigning from their posts of Anganwari workers and Helpers as they are only honorary paid workers. It is further clarified that the Anganwari Worker and Helper do not need to resign even after winning of the election and can continue to work as Anganwari Worker and Helper.
Sd/-
Programmer Officer-I (HQ), For Director Women & Child Development, Haryana, Chandigarh."
3. The view the Central Government once took qua ICDS Scheme was that Anganwari Workers could file nomination papers, contest elections and in case, they won, they were not required to resign from the post nor could be forced to resign has been departed from and has suffered a paradigm shift. The present thinking is that both the assignments cannot be concurrently discharged. The shift in thinking is not without reason. The concurrent holding of duties of both the posts are now viewed as one which Kumar Paritosh would impinge and adversely affect delivery of service in ICDS scheme. As 2013.11.14 12:10 I attest to the accuracy and integrity of this document CWP No.8712 of 2012 4 an Anganwari worker, the petitioner is governed by ICDS scheme. If it prohibits a person from continuing to serve as an Anganwari Worker following election to the Gram Panchayat then there is nothing illegal, arbitrary or irrational in such decision. The Central Government in such decision making is neither concerned, nor is an employer, nor pays money from its exchequer to a Panch or Sarpanch elected to a Gram Panchayat in a State of the Union unless specially set apart and appropriated in the Union budget for a Gram Panchayat.
4. Learned counsel for the petitioner relies on Anokh Singh v. Punjab State Election Commission, AIR 2011 SC 230, to contend that Anganwari Workers employed in various social welfare schemes in a State (Punjab) do not hold an 'office of profit' and are not disqualified in seeking election to the Gram Panchayat. Lambardars and Anganwari Workers both do not hold 'office of profit' and therefore cannot be debarred from contesting election as Member Panchayat. In this case, the impugned order examined was an order which debarred Lambardars and Anganwari Workers from contesting elections. However, in the instant case, there is no such bar. The petitioner was permitted to contest the elections but such declaration was not lawfully required. If she won, it may be good for her. But the ICDS scheme which is sponsored by the Central Government from where it recieves funding and instructions is operated through a department of the State Government which instructions bars her from continuing to serve as an honrary Anganwari Worker. The Supreme Court had no occasion to examine a policy decision of the Central Government of the kind passed and pressed in this case. The person who pays the honorarium runs the show. As the famous quote goes, "You pays your money and you Kumar Paritosh 2013.11.14 12:10 I attest to the accuracy and integrity of this document CWP No.8712 of 2012 5 takes your choice": (Aldous Huxley in Point Counter Point.)
5. In Som Lal v. Vijay Laxmi and others; (2008) 11 SCC 413, relied upon by the petitioner is a case distinguishable on facts. In this case, the Supreme Court considered whether a salaried employee of any local authority, statutory corporation or Board or a cooperative society can be held to hold an office of profit under Section 11 of the Punjab State Election Commission Act, 1994, and therefore a disqualification has been answered in the negative. Such person is entitled to contest Panchayat elections. The facts were that a whole time employee of the Marketing Committee was elected as Sarpanch of a Panchayat. The Supreme Court held that such election could not be set aside on the ground that the litigant was holding an office of profit. The relationship of the elected Sarpanch with his employer is governed by the rules of service and the terms and conditions of employment, if any, which may or may not permit dual charge. The petitioner cannot claim as a matter of right to continue to serve as an Anganwari Worker merely because a certificate was issued by the Child Development Project Officer, Bapoli to the petitioner on 13.6.2010 clearing the way to contest Gram Pancahyat elections. The certificate was in contradiction of the Government of India circular issued in ICDS Scheme and was prior to point of time. It has been observed by Government of India in its letter dated 7.2.2012 as under : -
" No.19-18/2009-CD-1
Government of India
Ministry of Women and Child Development
Shastri Bhavan, New Delhi - 110 001
Dated 7th February 2012
To
Kumar Paritosh
2013.11.14 12:10
I attest to the accuracy and
integrity of this document
CWP No.8712 of 2012 6
The Principal Secretary,
Women and Child Development Deptt.,
Government of Haryana,
Room No.38, 7th Floor,
Haryana Civil Secretariat, Sector 17,
CHANDIGARH - 160017.
Subject : Anganwadi Workers/Helpers to contest the Local Bodies/Panchayat Election - clarification regarding.
Sir/Madam, I am directed to refer your letter No.3860/CD-
1/WCD/2012 dated 24th January, 2012 on the subject mentioned above and to say that the Government of India had issued guidelines in this regard vide Ministry's letter of even number 26th May 2010 read with Corrigendum of even number dated 4.6.2010, stating that in case the AWW/AWH win an election, it may not be appropriate for her to discharge, concurrently, duties both in the capacity of an elected member of panchayat/local body as well as an AWW/AWH under the ICDS Scheme. This would necessarily take her away from the core activities and would affect the delivery of the services adversely under the ICDS Scheme.
2. Govt. of Haryana is therefore requested to defend the case appropriately in view of the GOI guidelines and also take further legal recourse.
Yours faithfully, Sd/-
(Jatinder Kaur) Under Secretary to the Government of India."
6. The Government of India decision dated 7.2.2012 (R-3) reveals Kumar Paritosh in its text two vitally important dates. The letter/guidelines of the 2013.11.14 12:10 I attest to the accuracy and integrity of this document CWP No.8712 of 2012 7 Government of India advise against concurrent holding of an elected office and of an Anganwari Worker simultaneously are dated 26.5.2010. The corrigendum was issued by Government of India in the Ministry of Women and Child Development, New Delhi on 4.6.2010. The certificate heavily relied upon by the petitioner (P-1) is dated 13.6.2010. It was obviously issued in ignorance of the law and was thus without legal sanctity and clearly in excess of jurisdiction. It was at best a private act or personal opinion expressed and not legally binding on ICDS Scheme and its operators. It would have been proper for the Child Development and Project Officer, Bapoli not to have written directly to the petitioner but instead and before acting ought to have sought advice and guidance from superiors in government charged with the duty of implementation of the ICDS Scheme. The impugned order of termination cannot be faulted on this account and appears legal and valid and is, therefore, upheld. It is in consonance with the GOI directives. It is clarified that this order would have no effect on the petitioner as an elected Sarpanch.
7. For the foregoing reasons, there is no merit in this petition which is ordered to stand dismissed. No costs.
(RAJIV NARAIN RAINA)
October 28, 2013 JUDGE
Paritosh Kumar
Kumar Paritosh
2013.11.14 12:10
I attest to the accuracy and
integrity of this document