Madhya Pradesh High Court
The State Of Madhya Pradesh vs Anand Kumar Kurmi on 10 January, 2017
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
(Division Bench: Hon'ble Shri Justice S.K. Gangele
& Hon'ble Shri Justice Subodh Abhyankar)
W.A. No. 36/2016
State of M.P. & others.
Versus
Anand Kumar Kurmi.
Shri Amit Seth, Panel Lawyer for the appellants-State.
Shri Sanjay Agrawal, Advocate for respondents.
*********
JUDGMENT
(10/01/2017) Per S.K. Gangele J The appellants have filed this appeal against the order dated 24/02/2015 passed in connected writ petitions.
2. Government of India introduced a scheme through the Department of Human Resources Development for integrated delivery of certain services to pre- school children, pregnant and lactating woman. The object of the scheme was to improve the health and nutritional status of children and women and other object was to reduce the incidences of school dropouts, physical social welfare and development of the child.
3. The Union of India agreed to provide fund for the State and the State was directed to appoint employees 2 and sanction the posts for the purpose of implementation of the scheme.
4. Paragraph 47 of the Scheme reads as under as quoted by the writ court in the order under challenge:-
"Even though funds will be provided by the Central Government, the staff will be borne on the appropriate cadres of the State and, therefore, the State should sanction the posts (as per appendix) in the appropriate corresponding State pay scale. The Anganwadi workers and their helpers will be honorary workers."
5. The State of Madhya Pradesh implemented the aforesaid scheme in the State and appointed employees for the purpose of implementation of the scheme. Janpad Panchayat-Tendukheda, District Damoh and Janpad Panchayat Sihawal, District Sidhi were delegated powers by the State to appoint staff for implementation of the scheme on a particular pay scale, at par with the employees appointed by the State.
6. The State Government sanctioned following staff at Janpad Panchayat Tendukheda, District Damoh; Women and Child Development Project Officer-1 post, Assistant Project Officer-1 post, Assistant Statistical Officer- 1 post, Supervisor-8 posts, Office Assistant- one post, Upper Division Clerk-3 posts, Second Grade Clerk- 1 post, Driver- 1 post and Peon- 3 posts etc. The staff was sanctioned in accordance with staffing pattern sanctioned by the 3 Government of India. The Government further directed the Janpad Panchayat Tendukheda to select the employees on the posts in accordance with the approved qualification.
7. Janpad Panchyat Tendukheda on 15/12/1995 issued notification and invited applications from prospective candidates for appointment on the posts as sanctioned by the State Government for the purpose of carrying out ICDS project. A selection committee was constituted. After completion of selection process, persons were appointed on probation for the period of two years and after completion of probation period satisfactorily, the employees were regularized. The Government transferred the scheme to Women and Child Development Department on 04/08/2002 because the project was being implemented by the State Government through Women and Child Development Department. The Janpad Panchayat Tendukheda passed a resolution for absorption of the employees working in the Janpad Panchayat under the scheme. District Level Planning Committee also made recommendation for absorption. When the resolution of the Janpad Panchayat was not considered by the government, the employees filed writ petition before this Court. It was disposed of with direction that the claim of the employees i.e. the petitioners be decided by a 4 speaking order within a period of three months from the date of production of certified copy of the order. The department vide order dated 12/08/2013 rejected the proposal of the Janapad Panchayat and held that the employees appointed by the Janpad Panchayat for the purpose of implementation of the scheme could not be absorbed as government employees.
8. Against the aforesaid order all the employees- petitioners filed petitions before the Court. Petitions were tagged together and this court vide common order, which is impugned in the writ appeal, allowed the petitions after holding that the employees are eligible to be absorbed i.e. regularized as government employees of Women and Child Development Department on their respective posts. The writ Court has assigned reasons in granting relief to the petitioners that in other parts of the State except Janpad Panchayat Tendukheda District-Damoh and Janpad Panchayat-Sihawal District Sidhi, the State had undertaken the job of implementation of the scheme in accordance with the directions of Union of India and delegated powers of appointment of staff to the Janpad Panchayat. The Janpad Panchayat Tendukheda constituted a selection committee, issued advertisement and in accordance with staffing pattern, appointed the employees. Actually the 5 Janpad Panchayat was an agent to implement the scheme and when the employees of other parts of the State have been taken over as employees of the government or they are working as government employees in Women and Child Development Department, the employees appointed by the Janpad Panchayat have a right to be regularized in accordance with the principle laid down by the Apex Court in the case of State of West Bengal and others VS. Kaberi Khastagir and others (2009) 3 SCC 68.
9. Learned counsel for the State has contended that the order passed by the writ court is contrary to law because in the advertisement issued by the Janpad Panchayat it was specifically mentioned that the employees are being appointed by the Janpad Panchayat and they cannot claim status of State employees. It is further contended by the counsel that the selection procedure for selection of the employees by Janpad Panchayat was contrary to the procedure prescribed in the Recruitment Rules applicable to State Government's employees. It is further contended that the judgment passed by the Apex Court in the case of State of West Bengal and others VS. Kaberi Khastagir and others (2009) 3 SCC 68 is distinguishable on facts because in the aforesaid case the employees were selected by the State Public Service 6 Commission, in that context the Apex Court held that the employees are eligible to be absorbed treating as government employees. Hence, the order passed by the writ court is liable to be quashed.
10. Learned counsel appearing on behalf of the employees-respondents has contended that the writ court has assigned detailed reasons in passing the order. Actually the Janpad Panchayat was an agent to implement the scheme sponsored by the Union of India and it had appointed the employees on behalf of the State Government. The employees have minimum qualification for the posts and the appointments were made after following due procedure. Hence, the order passed by the writ court is in accordance with law.
11. There is no dispute that the scheme was introduced by the Central Government and funds have also been provided by the Central Government. For the purpose of implementation of the scheme the State Government was authorized and it had given powers to appoint staff in a prescribed set up. The Central Government approved the strength of posts and staff. Except two Janpad Panchayat i.e. Janpad Panchayat- Tendukheda District Damoh and Janpad Panchayat Sihawal, District Sidhi all over the State, the State Government recruited the employees. It has 7 delegated the powers to Janpad Panchayat Tendukheda and Sihawal to make selection and appointments for the purpose of implementation of the scheme. The strength of the staff was also sanctioned by the Government and thereafter, the Janpad Panchayat appointed the staff. Subsequently, in the year 2010, the State Government had taken a decision that the scheme shall be implemented by Women and Child Development Department, the scheme is still in existence and the State Government is getting funds from the Central Government.
12. The main objection of the State in refusing to absorb the employees appointed by the Janpad Panchayat is that at the time of recruitment, it was clear that the employees could not claim status of government employees and Janpad Panchayat had not made appointment in accordance with norms fixed by the State. Counsel appearing on behalf of the State has argued that the judgment relied upon by the writ court of the Apex Court in the case of State of West Bengal and others VS. Kaberi Khastagir and others (2009) 3 SCC 68 is not applicable in the facts of the present case because in the case which was before the Apex Court the selection was made by the State Government and State Public Service Commission, however, in the present case selection was 8 made by the Janpad Panchayat.
13. There is no dispute that the employees appointed by the State for the purpose of implementation of the scheme are still working and they have become the employees of the State i.e. the employees of Women and Child Development Department. The State has not made appointment in any district of the State on contract basis.
14. The Apex Court while allowing Special Leave Petition filed by the employees in the case of State of West Bengal and others VS. Kaberi Khastagir and others (2009) 3 SCC 68 held as under:-
"33. The notification dated 3rd June, 1983, issued by the Relief and Welfare Department, Department of Government of West Bengal provides for the constitution of the West Bengal, Junior Social Welfare Service which includes Child Development Project Officers of the ICDS Project. From the orders of appointment issued by the Director of Social Welfare, Government of West Bengal on 22nd March, 1984, 29th March, 1984 and 31st March, 1984 in favour of respondent Nos. 1, 2 and 3, it will be apparent that the service conditions of the said respondents were also to be that as were applicable to other government servants of the same category under the Rules and Orders of the Government.
34. Even the Rules made on 11th October, 1985 in supersession of the earlier Rules framed by the Department of Relief and Welfare, Government of West Bengal, dated 23rd March, 1981, which deals with the method of and the qualifications required for recruitment to posts included in the West Bengal Junior Social Welfare Services under the Welfare Branch of the Relief and Welfare Department of the State Government provides that the Appointing Authority would be the Governor of West Bengal and that the method of recruitment would be by 9 selection on the results of the West Bengal Civil Services (Executive) Examination or by promotion on the basis of a preliminary written test to be conducted by the Public Service Commission, West Bengal, for screening of candidates, followed by interview of the successful candidates by the said Commission. Since the ICDS Project was included under the W.B.J.S.W.S., the said Rules of 1985 would no doubt be applicable to the Officers of the said Scheme as well.
35. Subsequently, on 16th December, 1989 further Rules were made in the Relief and Welfare Department (Welfare Branch) of the Government of West Bengal relating to recruitment of Supervisors in the ICDS Project which again provides that the Appointing Authority would be the Directorate of Social Welfare, West Bengal. A similar notification dated 23rd December, 2002, was issued by the Department of Women and Child Development and Social Welfare, Government of West Bengal, regarding the post of ACDPO where again the Appointing Authority is the Director of Social Welfare, West Bengal.
36. All the aforesaid Rules promulgated by the State Government under Paragraph 47 of the Integrated Child Development Scheme leaves little room for doubt that the respondent Nos. 1, 2 and 3 and others similarly situated, were, in fact, State Government employees. The learned Single Judge, as well as the Division Bench of the High Court, appear to have been swayed by the submissions made on behalf of the respondent Nos. 1, 2 and 3 (writ petitioners before the High Court) that the State of West Bengal is merely a nodal agency to supervise the implementation of the Scheme which was in the nature of a Project and that the employees thereunder were, therefore, Project employees, overlooking the overall intention and object of the Scheme that in order to provide child care and nutrition for children and lactating mothers, the Central Government was willing to fund the entire project but left the implementation thereof to the State Governments who were authorized under the Scheme to appoint the staff of the Project, who were to be borne on the appropriate cadres of the States. Paragraph 35 of the Scheme, which deals with the functional responsibilities, makes this 10 position very clear.
37. Having regard to the above, we are unable to accept the reasoning both of the Learned Single Judge and the Division Bench of the High Court. We accordingly allow the Appeal and dismiss the Writ Petition filed by the respondent Nos. 1, 2 and 3. "
15. The Apex Court has specifically observed that the State had taken its responsibility to implement the scheme in accordance with the directions issued by the Central Government thereafter, vide notification, constituted West Bengal Junior Social Welfare Services and selected the employees. In accordance with the aforesaid scheme, it is clear that the employees appointed by the State were actually the employees of the State because in pursuant to the directions issued by the Central Government, the State had made appointments. In the present case, in pursuant to the directions of the Central Government, the State Government delegated its powers of appointments to the Janpad Panchayat Tendukheda District Damoh and Janpad Panchayat Sihawal, District-Sidhi, and thereafter, the Janpad Panchayat made appointments in accordance with the directions issued by the State Government. The employees were working and performing the job as per the directions of the State Authorities. They were also getting salary in a pay scale fixed by the State Government, their selection was supervised by the State Government. In 11 other parts of the State except two Janpad Panchayats the State Government itself had taken steps to appoint the staff. The scheme is still in existence. In the year 2010 the Government had taken a decision to implement the scheme through Women and Child Development Department, hence, it cannot be said that the appointment of the employees by Janpad Panchayat was illegal or contrary to law. Looking to the fact that in all other parts of the State the employees who were appointed for the purpose of implementation of the scheme are being treated as employees of the Women and Child Development Department, in our opinion the writ court has rightly allowed the writ petitions and issued directions. We do not find any merit in this writ appeal, it is hereby dismissed. No order as to costs.
(S.K. GANGELE) (SUBODH ABHYANKAR)
JUDGE JUDGE
MISHRA
12
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR (Division Bench: Hon'ble Shri Justice S.K. Gangele & Hon'ble Shri Justice Subodh Abhyankar) W.A. No. 36/2016 State of M.P. & others.
Versus Anand Kumar Kurmi.
Shri Amit Seth, Panel Lawyer for the appellants-State. Shri Sanjay Agrawal, Advocate for respondents.
JUDGMENT FOR CONSIDERATION (S.K. GANGELE) JUDGE.
.2017 HON'BLE SHRI JUSTICE SUBODH ABHYANKAR ( SUBODH ABHYANKAR) JUDGE.
Post for:
/ /2017
(S.K. GANGELE)
JUDGE.
.2017