Karnataka High Court
Smt. T.J. Manjamma W/O S. Yoga And Ors. ... vs State Of Karnataka By Its Secretary, ... on 28 February, 2008
Equivalent citations: AIR 2008 (NOC) 2134 (KAR.) = 2008 (3) AIR KAR R 409, 2008 (3) AIR KAR R 409
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. It is more than sixty years since we achieved independence and about two years less since we became a Socialist Secular Democratic Republic. The Constitution of India proclaims that providing ourselves a Constitution was for the purpose of achieving justice - social, economical and political. Also declared that there shall be liberty of thought, expression, belief, faith and worship and very importantly equality of status and opportunity to all citizens of the country. Leave alone providing the means and source for leading a dignified life, we have not been able to provide even the basic necessities of life to all our fellow citizens. Poverty, concomitant hunger, lack of food for all people, and also clothing and shelter, no housing facility to all citizens, totally inadequate health facilities, not all can afford medical services, if is to be obtained as a cost, mal-nutrition, diseases, even social maladies, have persisted with gay abreaction even today, notwithstanding pockets of affluence, prosperity, even despicable wealth.
2. Though successive governments over the past about sixty years have strived 1o have a planned growth and achieve development by providing basic needs and facilities to the citizens, plans have not worked, schemes have not. been properly implemented and though a good number of developmental schemes have been mooted, the benefits of the schemes have not reached the citizens for whom it was envisaged, the object of the scheme is not Ail filled, the poor have remained poor even have become poorer, but large amounts of public funds are already spent, and continues to be spent.
3. Integrated Child Development Service programme [ICDS, for short], is a scheme mooted by the central government in or around the year 1975 and initially with the main object of providing nutritious food for the children, particularly from the stage of infancy upto the age of six, by ensuring good health of lactating mothers, providing food not only to the child, but also to pregnant women and nursing mothers during the tender year's of child, to lay a strong foundation for the healthy development of the body and the mind of the child, providing proper social conditions and atmosphere for the informed development of the personality of the child, and to take all incidental steps to achieve this main objective. This facility was sought to be provided to all children in the country, particularly in the rural sections and to achieve this object, what is known as Anganwadi centres, a promotional informal institution, which can act as the medium and instrument to achieve the object of the scheme, were sought to be established at villages and hamlets. The central government roped in the state governments for implementing the said project and while issued norms and guidelines for the implementation of the project by the state government, indicated that the scheme is mainly funded by the central government and encouraged the state governments and union territories to supplement the funding of the scheme to achieve better and improved results through the working of the scheme.
4. Teething problems, sustenance problems, problems in implementing the scheme, need to vary the scheme for effective and better implementation of the scheme, the need and efforts to enlarge the scheme so as to cover more beneficiaries under the scheme, have all been encountered and attempts have teen made to overcome these problems over the past thirty-five years or more. Many legal complications also arose in between and matters reached higher courts of the country and also the Supreme Court of India. A Public interest litigation was filed before the Supreme Court of India by concerned citizens and voluntary service organizations, complaining that a laudable and essential scheme such as ICDS is not being implemented properly; that the benefit of the scheme is not reaching the intended persons; that intervention by court is necessary to ensure proper implementation of the scheme.
5. While examining one such complaint, the Supreme Court after noticing the various deficiencies and lacunae in the implementation of the ICDS and after noticing that a majority of the states and union territories were not responding positively to the earlier directions that had been issued to different state governments in the matter of effective implementation of the scheme in terms of the court order dated 29.4.2004, while had issued directions highlighting the imminent need for a significant raise in the Anganwadi centres functioning in the country had through a subsequent order dated 13.12.2006 impressed upon the state governments to ensure proper implementation of ICDS scheme, and directed the central government to sanction and operationalise a minimum of 14 lakh Anganwadi Centres in a phased manner by starting the programme of expansion of Anganwadi centres forthwith and complete the expansion by December 2008.
6. As a result, in the State of Karnataka there was scope for increasing the existing number of 40301 Anganwadi centres by another about 40301 centres to cover SC/ST, minority habitation, villages, hamlets, hill areas, tribal areas and urban slums under ICDS. However, the central government having examined this and having sanctioned the establishment of an additional 11313 Anganwadi centres in the state of Karnataka, in the first stage of expansion during the year 2005-06, the process for identifying the Anganwadi workers to ran the Anganwadi centres is on. In terms of the statement placed before this Court by the state government, it is stated that the scheme is operational in 176 revenue taluks and 10 urban areas in the state; that at the end of the year 2005-06, while a total 40301 Anganwadi centres were functioning, a further number of 11313 centres were sanctioned by the central government in favour of the state of Karnataka and in the second phase of expansion during the year 2006-07, 405 mini Anganwadi centres were sanctioned. It is mentioned that there are a total 185 ICDS projects in the state with 54260 Anganwadi centres and 405 mini Anganwadi centres; that by June 2007, a total of 51335 centres were operational in the state of Karnataka.
7. While such facts and figures may give a very rosy picture, as noticed in the beginning of this order, all is not well. It is not as though the scheme is a success, in the sense, it has reached all the intended persons, particularly, the unfed, underfed, under-nourished children, having been taken care of under the scheme, but far from it. One manifestation of such malrunctioning of the scheme and the consequential dissatisfaction is this batch of writ petitions presented before this court.
8. The scheme though is a central government sponsored scheme, being implemented through state governments and at the state level, the state government has a very vital and important role to play. While so, one aspect of the Implementation of the scheme viz., the process or procedure for selection of Anganwadi workers appears to have attracted the interest of the state government, as can be noticed by the frequent government notifications issued by the state government, constituting, reconstituting, varying, modifying not only the composition of the selection committees meant for selecting Anganwadi workers, but also the norms, guidelines and the procedure for such selection.
9. Having regard to the preamble to the Constitution of India, particularly for providing justice - social, economic and political, the power structure in the administration of the states, particularly exercise of the executive power of the state, was sought to be decentralized and by the 73rd Constitutional amendment, Part-IX of the Constitution of India underwent a metamorphosis and while the heading 'panchayats' was given to Part-IX, Part-DC-A was introduced by the very amendment with the heading municipalities. The whole object of providing Articles 243, 243A to 243ZG was to decentralize the power structure, so that some of the powers wielded by the executive wing of the state through cabinet system of governance was sought to be given to panchayats and municipalities i.e. such power was sought to be conferred on the representation of the people at the grassroots level and within their territories, for providing autonomy, greater flexibility and to cater to the local needs. Though this was sought to be achieved by the 73rd Amendment to the Constitution and in the year 1993 onwards by the Constitution (73rd Amendment) Act, 1992 and that the state governments were required to usher in suitable legislation, the state of Karnataka had given vent to such object even much earlier by the enactment of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 [Karnataka Act No 20 of 1985]. With the amendment of the Constitution, the state of Karnataka also fell in line with this constitutional provisions by enacting the Karnataka Panchayat Raj Act, 1993 [for short, the Act] and in terms of Section 318 of the Act, repealed the earlier Act i.e. Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983.
10. One of the consequences of the enactment of the Karnataka Panchayat Raj Act was the transfer of functions mentioned in schedule-I to the Act in favour of gram panchayats as enabled under Section 58 of the Act, functions enumerated in schedule-II to the Act in favour of the taluk panchayats as enabled under Section 145 of the Act and the functions enumerated in schedule-III to the Act in favour of the zilla panchayats as enabled under Section 184 of the Act. Women and child development, though was an enumerated item in the schedule, particularly participation in the implementation of women and child welfare programme, promotion of school health and nutrition programme were expressly transferred in favour of the panchayat institutions. The state government being oblivious to these constitutional and legal developments, went on issuing government orders/ notifications, exercising its executive power and thereby controlling activities under this head also and innumerable number of notifications issued by the state government, constituting, reconstituting and varying the composition of the selection committees for selecting Anganwadi workers to the Anganwadi centres is testimony to this aspect.
11. While in one such earlier government order dated 11/29-6-1982 [Annexure-R6 to the statement of objections filed by the state government], the composition of the selection committees was indicated to be as under:
_____________________________________________________ 1 The Asst Commissioner of Chairperson respective sub-division _____________________________________________________ 2 Asst Director, Women & Deputy Child Welfare chairperson _____________________________________________________ 3 Block Development Officer Member _____________________________________________________ 4 Child Development Project Member Officer Secretary _____________________________________________________ A later modification on the selection committees in terms of government order dated 8-6-1987 [Annexure-R7 to the statement of objections filed on behalf of the state government] indicated the composition of the selection committees for rural and tribal schemes to be as under:
_____________________________________________________ 1 Deputy Secretary, Chairperson Development, Zilla Panchayat _____________________________________________________ 2 Asst Director, Women & Deputy Child Welfare chairperson _____________________________________________________ 3 Zilla Panchayat member Member from the taluk [preference to lady member] _____________________________________________________ 4 Child Development Project Member Officer Secretary _____________________________________________________
12. Government order dated 16-1-1999 [Annexure-R9 to the statement of objections filed on behalf of the state government], sought to bring about a variation to the composition of the selection committees so as to include the legislators and members of the taluka panchayats and to provide them representation in the committee and indicated the composition of such committee to be as under:
_______________________________________________________ 1 Chief Executive Officer, Chairperson Zilla Panchayat _______________________________________________________ 2 Deputy Director, Women Deputy & Child Welfare chairperson _______________________________________________________ 3 Child Development Project Member Officer Secretary _______________________________________________________ 4 Members of Legislative Member Assembly _______________________________________________________ 5 Chairperson of Taluk "
Panchayat _______________________________________________________ 6 If SC/ST/Lady represent- "
tatives are not available at SI No 4 and 5, then a nominated member from Zilla Panchayat to represent above three categories _______________________________________________________ 7 If Member of Legislature "
Assembly cannot represent constituency for any person, a social worker can be nominated.
_______________________________________________________ A later development was to include all members of the legislative assemblies who represent the constituencies within the scheme area as members of the selection committee in terms of the order dated 14-10-2005 [Annexure-R10 to the statement of objections filed on behalf of the state government].
13. A momentous change was brought about by the Government Order dated 15-7-2006 [Annexure-R13 to the statement of objections filed on behalf of the state government], where under and by which time, the selection committees were made legislative assembly constituency-wise and Member of Legislative Assembly [MLA] being made chairperson of the selection committees, the president of the taluk panchayat being deputy chairperson and also to include members of the legislative council, who had identified the area as their own constituency in terms of the declaration. A corrigendum was issued to this government order dated 15-7-2006 by a further government order dated 21-7-2006 [Annexure-R13 to the statement of objections filed on behalf of the state government], to indicate that in place of MLA of the constituency concerned, it can be either such member or his nominee. That means the nominee of the MLA of the constituency within which area the Anganwadi centres are located will function as the chairperson of the selection committees, irrespective of any of his other credentials. It is as though this government order enabled the MLAs to execute a power of attorney in favour of his nominee to perform the functions of the chairperson of a selection committee to select Anganwadi workers to different Anganwadi centres within the assembly constituency area.
14. With the coming into existence of the panchayat raj system and the power being required to be shared by the administration with the representatives of the people at the lower level, particularly, such representatives of the people representing the panchayat raj institutions viz., gram panchayat, taluk panchayat and zilla panchayat, there have been tussles between the main executive part of the state i.e. government, ministers and legislators on the one side and the representatives of the panchayat raj institutions on the other.
15. Though the functions such as women and child development inclusive of promotion of programme relating to development of women and children were expressly assigned in favour of the panchayat raj institutions, in terms of the government notification issued purporting to be under the provisions of the scheme, the state government continued the presence of the officials of the non-panchayat raj institutions and the representatives of people other than the panchayat raj institutions, which had irked the representatives of the panchayat raj institutions and it reached a flash point when in terms of the government order dated 15-7-2006, the government Issued an order appointing the MLA of the local assembly constituency to be the chairperson of the selection committee to select Anganwadi workers to the Anganwadi centres in the assembly constituency area. The conflict manifested in the form of filing writ petitions before this Court and such writ petitions are WP Nos. 11276, 13660, 13908, 14425, 14244, 15465 and 15466 of 2006. In all these writ petitions, the petitioners are either members of the panchayat raj institutions or the president or other office bearers of such institutions, have called in question the legality of the government order dated 15.7.2006 and have sought for quashing of the same, on the premise that it is a notification/government order issued by the state government without competence particularly purporting to be in the exercise of the executive power of the state under Article 162 of the Constitution of India; that such notifications are in the teeth of the provisions of the Act and Sections 58, 145 and 184 of the Act and the notification issued thereunder and therefore is required to be quashed. This notification is also challenged on the ground that it is clearly contrary to the central government's scheme for implementation of the ICDS programme; that the state government which has no role to play in this programme, but only acts as an agent [of the central government] for implementation of the programme, has assumed to itself such powers which are not within the contemplation of the scheme for issue of such notification and it is therefore urged that it is one without competence and jurisdiction.
16. While the challenge to the notification is on legal and constitutional basis and it is sought to be quashed, as a sequel to which selection of Anganwadi workers to as many as 11313 new Anganwadi centres had to be finalised and while the process of identifying the selection of Anganwadi workers to these additional centres was on and the functioning of the MLAs as chairpersons of such selection committees did cause heartburn to other representatives of the panchayat raj institutions, it has also given cause to a large number of dissatisfied applicants for the post of Anganwadi workers, who have approached this Court complaining that the selections by the committees is not fair, no proper procedure has been followed; that a better merited candidate has been ignored; that the committee was not functioning as a body composite but. as yielded to the pressure and dictates of the MLAs who have a dominant position being chairpersons of the committees; that rampant malpractices have taken place in the matter of selecting Anganwadi workers; that the very object of providing service is lost by not appointing a most-merited and suitable candidate to the post of Anganwadi worker in the given centre; that all selections are required to be quashed, as they are vitiated by the arbitrary actions on the part of the persons present in the selection committees and it is on such premise the rest of the writ petitions have come up before this Court seeking for quashing the selection and appointment of Anganwadi workers made pursuant to the notification dated 15-7-2006 and modified on some minor aspects thereafter. The above writ petitions are in such vigour and on such premise.
17. During the course of hearing, as it was noticed that the functioning of the state government particularly for the issue of various notifications to constitute and reconstitute the selection committees was on the face of it totally at variance with the central government scheme and the state government being required to act merely as an agent of the central government to implement the scheme and there being a large number of applicants complaining before this Court indicating that the functioning of the selection committees which are also to be termed as 'state' within the meaning of Article 12 of the Constitution of India and if such selections were beseeched by the selection procedure which is inherently flawed, erroneous and illegal, particularly if the composition of the selection committees itself was so very Inherently faulted in terms of central government scheme and as it was found that the sustenance of selections could be a matter for consideration, it was thought desirable that all selected candidates, though many of such selections were not directly in question in the above writ petitions, should also be heard, so as to provide them an opportunity as in the wake of very selection procedure being flawed and farther actions if are required to be quashed, it may be necessary to hear all selected candidates whose selections could be in jeopardy, notice was issued to all such selected candidates who are not parties to any of the above writ petitions, treating these writ petitions to be in a representative capacity. It is in the wake of such development, this Court has passed the following orders on 27-8-2007, 7-9-2007, 8-10-2007 and 12-11-2007:
DVSKJ:
27-08-2007 Sri Khureshij learned Additional Government Advocate has placed before the court the written submissions on behalf of the State Government.
It essentially highlights the origin of the Integrated Child Development Scheme mooted in the year 1975 by the Central Government to be implemented through the State Government and the Union Territories, the aim and objects of such a scheme, as to the number of centres that were set up pursuant to the implementation of the scheme in the State of Karnataka which it is said were 40,301 as on March 2006 and the Central Government evincing further interest, may be impressed by the success of the scheme having sanctioned additional 11,313 Anganwadi Centres during the year 2005-06 which are required to be made functional by or before the expiry of the financial year 2006-07.
It is in the context of filling up the posts of Anganwadi workers/teachers in these 11,313 new Anganwadi Centres the process is on and with reference to which the present writ petitions have been filed complaining that the selection procedure is flawed; that it is done more in an arbitrary manner than by adhering to any such norms or guidelines; that even in terms of the guidelines and scheme merit has been given a go by and less merited candidates are being appointed etc.,.
Written submissions highlights the objectives of the Integrated Child Development Scheme which if is to be taken seriously and understood, virtually places an Anganwadi worker in the position of an Angel who may have to have magical powers to fulfil all the junctions delineated under the scheme.
A reading of the role of the Anganwadi worker as assigned in the scheme would give an impression that the Anganwadi worker will virtually substitute for the State in respect of the medical care, educational facilities to children upto age of six, educating the mothers both in bringing up of children and the nutritional aspects of bringing up the children and providing nutritional food to the identified children coming within the jurisdiction of each Anganwadi centre.
It is indicated that in each centre, 100 persons are identified for receiving the benefit under the scheme, 40 amongst them are children between the age group of 3-6 years who are admitted to the centres to attend the centres in day time wherein they are not only educated on certain aspects but are also provided nutritious food, play items and the centre virtually serves as a play home and the children are also imparted learning skills on basic things.
Written submission indicates, inter alia, that another 40 children in the age group of 0-3 years, 10 pregnant women and 10 nursing mothers are also identified for receiving the facilities envisaged under the scheme. This virtually indicates that there will have to be selection made by the Anganwadi centre for identifying the 40+40 children in the age group of 0-3 & 3-6 years respectively, 10 pregnant women and 10 nursing mothers, who will have to be extended the facility under the scheme.
It is not known as to what basis is employed to identify such beneficiaries, but the issue that arises in the context of these writ petitions being the method and manner of selection of Anganwadi workers themselves. This aspect can wait for the present and the focus is only about the legality of the selection of Anganwadi workers to operate the new Anganwadi centres.
While the State may explain these aspects also for the purpose of completing the picture, the main response by the State should be the actual manner in which the Anganwadi workers are selected at each centre, what exactly is the precise scheme that they have, guidelines that are issued to each centre, the manner of adherence to the norms at each centre and as to whether it has been so adhered to or not. Written submission is silent on these aspects.
Sri Khureshi, learned Additional Government Advocate seeks a week's time to enable the State Government to file statement of objections in these petitions.
While some of the learned Counsel for the writ petitioners press for interim orders, another week's time may not make much difference and the registry is directed to list all these matters on 6.9.2007.
Compliance by then by the State both on the aspect of supplementing the information not provided in terms of the written submissions placed before the court today but also the filing of the statement of objections in these petitions.
A copy of this order to be furnished to the learned Additional Government Advocate.
DVSKJ:
6-9-2007 ORDER While this Court had issued directions to the state and its officers to place on record the entire procedure that had been gone through in the matter of selection of Anganwadi workers, norms and guidelines and such other information as had been sought for by this Court in the earlier orders and to place the same before the court on or before today.
Sri Khureshi, learned Additional Government Advocate, submits that while statement of objections are more less finalized on behalf of the state and its officers, copies of the statement of objections and its annexure could not be served on all the learned Counsel for the petitioners; that a few other aspects are also required to be re-examined and therefore requests that these matters can be taken up on 10-9-2007 when other connected batch of writ petitions is directed to be listed for further hearing.
Though attention has been drawn to some government circulars issued in connection with the selection of Anganwadi workers issued in the years 2004 and 2006, purported to be based on the guidelines issued by the central government itself, even a cursory glance at these circulars does not necessarily reveal that the guidelines are either adequate for the purpose of selecting suitable persons to junction as Anganwadi workers or the guidelines by themselves can be worked out for selecting Anganwadi workers.
While submission of learned AGA is that the selection committee is allowed an element of discretion in identifying a suitable person on the basis of the guidelines issued in these circulars, there is nothing in the present circulars of the year 2004 or 2006 which enables the selection committees to supplement their own norms or methods for the purpose of identifying suitable candidates.
There is also an element of ambiguity with regard to the manner of working cither reservation in favour of SC/ST or preference provided in favour of persons belonging to backward community, disabled persons, widow ladies or divorced women.
It is not clear as to particular centre had been identified giving preference with any particular category before the selection process commenced. While it is submitted by the learned AGA that the selection for each centre was by issuing publication inviting applications for each centre on the notice boards of the local high schools and the panchayat offices and at that time copy of the guidelines was also attached for the information of the applicants, no other general publication or information by any other mode has been provided to the intending applicants.
It is also submitted that the present exercise was one for identifying Anganwadi workers for as many as 11,313 new centres proposed to be started with the supplemental funds allotted by the central government and they are spread over 176 revenue taluks and ten urban areas, it is not clear as to the selection in how many centres are questioned in the present batches of writ petitions before this court.
Therefore, the state and its officers are directed to file a memo before this Court indicating as to the different centres in the state wherein selections are questioned in these batches of writ petitions and the centres at which the process of selection is not questioned through any writ petitions. This information also to be placed before the court by or before 10-9-2007 along with the statement of objections and additional information as had already been directed by this court.
Rule is issued in all these writ petitions where rule has not been issued.
List all these matters on 10-9-2007 along with the connected matters.
XXX XXX XXX DVSKJ: 8.10.2007 Issue rule in all writ petitions wherever rule has not been issued so far. Matters are taken up for further hearing.
Sri Khureshi learned AGA submits that the learned Advocate General who is appearing for the State in these matters is unable to appear today due to some personal inconvenience and therefore, requests the matters to be taken up after vacation.
Learned AGA also submits that in most of the cases, copies of statement of objections have been served on the learned Counsel appearing for the petitioners.
Learned Counsel appearing for other petitioners complain that they have not yet received copies of statement of objections.
Learned AGA to ensure copies of statement of objections are furnished to all the learned Counsel appearing for the petitioners.
With reference to the statement of objections filed, the learned AGA would draw attention of the Court to the Manual on Integrated Child Development Services published by the National Institute of Public Cooperation and Child Development and particularly, to Chapter 5 which concerns the administrative and organizational pattern and provides the guidelines for not only selecting the project areas wherein Anganwadi centres are to be located, the role of Anganwadi workers viz., officers, local officers and agencies who are to be involved for the purpose of implementation of the project but also the manner of selection of Anganwadi workers/helpers.
While para 5.13 of the manual deals with selection of Anganwadi centres and related matters, para 5.22 onwards viz., para 5.23, 5.24, 5.25, 5.26, 5.27, 5.28, 5.29 and 5.30 relate to selection of Anganwadi workers and para 5.31 onwards relate to selection of Anganwadi helpers.
Para 5.24 which is as under:
5.24 The selection of the Anganwadi workers should be done only after the CDPO and Mukhyasevikas are in position. The selection of the Anganwadi workers should be initiated by the CDPO either during the pre-project phase and/or after her/ his joining the project In other words, the CDPO must be associated with the selection of the Anganwadi workers. Since the Anganwadi worker has to be a local woman, no attempt should be made to select her from outside the project area, particularly through Employment Exchanges or other machinery for recruitment of Government functionaries. Anganwadi workers in the selected project area may be recruited/enlisted by the CDPO on the recommendations of the village institutions/leaders, fn the process of selection, he/she may consult/ associate any one or more of the following:
i) Medical Officer.
ii) Block Development Officer (in case of rural and tribal areas).
iii) President of the Taluka Panchayat Committee.
iv) Representative of the Child Development/Training Centre.
v) A representative of the State Social Welfare Advisory Board and
vi) Mukhyasevikas Incharge of the zone (if in position).
very dearly stipulates that the Child Development Project Officer should play a pivotal and decisive role in selecting an Anganwadi worker and should also consult the Medical Officer etc., as indicated therein.
Sri Khureshi, learned AGA, in this regard, would also draw attention of the Court to Annexure-R15 filed along with the statement of objections, a communication dated 28.5.2007 from the Government of India, Ministry of Women and Child Development, Shastri Bhavan, New Delhi, addressed to the Secretaries in-charge of ICDS in all States/Union Territories and would submit that the State Government, having due regard to this communication, has, on and after this date, reconstituted the selection committees, and the members of the Legislative Assemblies are no more a part of the selection committees.
A submission of this nature while concedes and it is not disputed that hitherto all selections which are questioned in these writ petitions were by committees not only with such MLAs who do not fit into the scheme and guidelines as indicated by the Central Government but they were themselves heading the committees. The selection committee is clearly a committee constituted at variance and in contravention of the guidelines issued by the Central Government for the implementation of its project.
A perusal of the scheme shows that the State only acts as an agency for implementing the Central Government scheme and does not have independent powers and is to be guided by the scheme and the directions contained in the scheme.
In fact, the letter referred to above clearly disapproves the action on the part of some State Governments who have involved MLAs as part of the selection process. If such is the guideline and the developments in this regard, all selections made and which are challenged in these writ petitions are obviously flawed.
Learned AGA would also submit that the procedure followed with the member of the Legislative Assembly being the chair person of the committee is uniformly adhered to in all taluks where Anganwadi workers were selected for the additional Anganwadi Centres opened in the respective taluks.
It is also submitted that while selections in about 40 taluks, each taluk having a selection committee, are questioned in these writ petitions, selections were made in all about 185 taluks and selection committees in all these taluks were headed by the member of the Legislative Assembly.
If a selection procedure even for the purpose of persons who had to look into is so flawed and is headed by persons who are not contemplated in the ICDS scheme itself, such selections obviously fall foul on the object and implementation of the scheme. It cannot be that selections only in the taluks where such selections are questioned are bad and other taluks it may still be sustained Any how as these matters require further examination and the learned Advocate General is also to be heard, I think it proper that the State Government should take necessary steps right away to take out paper publication to implead all the selected candidates in all the 185 taluks so that they will also be given an opportunity and heard in the matter in case it becomes necessary for this Court to examine the entire selections by applying the norms and guidelines as indicated in the ICDS Scheme.
State Government is directed to take out paper publication to implead all selected candidates in the light of the provisions of Order 1 Rule 10 CPC so that such Anganwadi candidates are all added as party respondents and given an opportunity of hearing along with these writ petitions.
Paper publication to be taken out district wise on or before 30.10.2007 indicating the next date of hearing before this Court to be on 12.11.2007. Publication to be carried out in two Kannada news dailies and one English news daily and be supplemented with local papers wherever it is possible which have large circulation in the areas.
Heard in part.
Registry to list these matters along with all connected matters relating to Anganwadi workers irrespective of their position of service for further hearing on 12.11.2007.
Furnish a copy of this order to the learned AGA.
XXX XXX XXX DVSRJ: 12-112007 ORDER
Sri Khureshi, learned Additional Government Advocate, files a memo dated 6-11-2007 indicating, inter alia, that the state government had caused paper publication of the court notice in terms of the order dated 8-10-2007 and the publication had been carried out in the Vijaya Karnataka & Prqjavani Kannada dailies as also the New Indian Express, English daily, published on 30-10-2007. Copies of the paper publication are attached to the memo.
Sri Khureshi submits that the government has duly carried out the directions issued in terms of the order dated 8-10-2007. Memo is received on record. Submission noted.
While many selected candidates have come to the court in person pursuant to the paper publication, many amongst them have engaged counsel to represent them.
I have heard the submissions made on behalf of such selected candidates by their learned Counsel, who have pointed out certain practical difficulties in defending their selections in the absence of such selected candidates having not received the copies of writ petitions and being not aware of the grounds on which the selections are challenged in these petitions.
Learned Counsel for the selected candidates also submit that if they are required to file applications for impleading, they necessarily require copies of the writ petitions etc. In the wake of a large number of writ petitions having been filed before this Court and this Court examining such petitions also in the context of legality of the selections made by the selection committee set up for each taluk and to be appointed to the newly created Anganwadi centres and such selections having been questioned in these writ petitions by various persons, urging several grounds, such as the writ petitioners who were not selected were more meritorious in comparison to the selected candidates; that many selected candidates were not even residents of the village/tanda where the centre was located, which being an essential requirement for such appointment and also the selection procedure was flawed; that the members of the selection committee have not followed a uniform norm or method, but have adopted different standards and different methods for different persons; that the selections are also vitiated due to selection being based on extraneous reasons and considerations; that the selected candidates are expected to defend their selections by pointing out that there was no irregularity in the selection process and that the selection was in accordance with the relevant procedure, norms etc. and as a flawed procedure in selection, could affect all selections, notices had been ordered to all selected candidates by way of paper publication.
For such purpose, to enable the selected candidates to effectively defend their selection, it is necessary they should be treated as respondents. While some of the learned Counsel who have fled vakalaths, submit that they will be filing necessary applications under Order I Rule 10 CPC, in the wake of as many as 11,000 and odd selections being examined by this Court and all such persons being necessarily parties to these writ petitions, and driving all of them to filing applications being an unnecessary exercise, it is hereby ordered that all the selected candidates have been added as respondents to these writ petitions by this order. There is no need to file any separate applications.
To enable these newly added respondents, who, though may not figure in the cause title and may not as such indicated in the cause list, are required to be provided with at least copies of some of the writ petitions, so that they are made known as to the grounds on which the selection is challenged/questioned.
For such purpose, while the writ petitioners were required to furnish copies to all such newly added respondents, it will be a burden on the petitioners to ask them to furnish as many copies and on payment of cost this could have been ordered, it may not be necessary to impose cost on all such selected candidates for the purpose of furnishing copies etc. Instead, this can be achieved by directing the state government, who is mainly defending all these selections, to make available copies of the following to all the learned Counsel appearing for the selected candidates:
a) Copy of the order dated 8-10-200 7;
b) Relevant extracts of the Integrated Child Development Service Scheme [ICDS], particularly from paras 5.13 to 5.30 of the Scheme occurring in Chapter-S of the manual of integrated child development services;
c) Copies of WP Nos. 11508 of 2007 and 12634 [only copies of memoranda of writ petition and no annexure; and
d) A copy of the statement of objections filed by the state government in response to these writ petitions;
For such purpose, the state government to ensure some 250 copies of above documents are prepared and made available at the office of the Advocate General and the learned Counsel who have filled appearance for the selected candidates may collect a copy each of the above documents.
Registry is directed to accept the vakalaths filed by the learned Counsel on behalf of the selected candidates without insisting on any other formalities, as showing of the rank of the respondent etc. It is suffice to indicate as 'appearing for the selected candidates in Anganwadi matters' or 'in WP No 11508 of 2007'. It is also open to the learned Counsel for such selected candidates to attach separate list if vakalath form in itself is not sufficient to indicate the names of all the persons in whose favour they are filing vakalath.
State government to ensure that these necessary steps are taken in two weeks and copies are made available on or before two weeks from today.
Some of the learned Counsel appearing for the writ petitioners, complain that they have not received copies of the statement of objections, filed by the respondent-state, whether filed in some other writ petitions or filed in their writ petitions.
If the state government is adopting the statement of objections filed in one writ petition in all other writ petitions, it is necessary that the state government furnishes copies of the statement of objections filed in whichever writ petitions to all the teamed Counsel appearing for the writ petitioners.
Learned AGA complains that in some of the writ petitions the state government has not been furnished with copies of writ petitions in many cases.
Registry is directed to forward all notices meant to the state government to the office of the Advocate General or a representative deputed on behalf of the state government from the office of the Advocate General with authorization to collect them at the registry itself, which can be issued by the registry on receipt of acknowledgement or registry may take steps to deliver them at the office of the Advocate General, in respect of such of petitions where notices are not yet issued to the state government.
It is open to the selected candidates, who are now added as respondents to these writ petitions, to file their objections, if any, by the next date of hearing.
It is complained by some of the learned Counsel appearing for the selected candidates that though the selected candidates are working, their salaries are not being paid on the pretext of pendency of these writ petitions.
Sri Khureshi, learned AGA, submits that such is not the case and non-payment may be only in a few cases and if at all due to the delay in receipt of funds from the central government.
Be that as it may, it is for the state government to take steps and to ensure that the salary is paid to all the Anganwadi workers who are as of now working in the centres where they are appointed.
List all these matters on 17-12-2007 along with the connected matters for further hearing, A copy of this order to be furnished to the learned Additional Government Advocate.
It is thereafter, the matter is being heard further.
18. On behalf of the petitioners, Sriyuths Sumana Baliga, Oururaj Joshi, Mogali, S.S. Halalli, Papi Reddy & Vinod, Sunderesh, B. Chidanandaiah, Babu M. Metagudda, S.C. Vijayakumar and Sasidharan Nair have appeared. On behalf of the State, Sri S.Z.A. Khureshi, learned Additional Government Advocate has appeared and on behalf of the Central Government, which was impleaded as a party respondent in WP No 16378 of 2006, Sri Padhamanabha, learned CGSC has appeared. A large number of other counsel have appeared for the selected candidates, who are only impleaded as party respondents in the above writ petitions and also such other selected candidates who have been notified through newspaper publication and put on notice, though were not initially parties in any of the above writ petitions as such, but added subsequently through the court order though their selections were not called in question by the petitioners themselves.
19. The challenge in the earlier writ petitions being to the validity of the government order dated 15-7-2006, reconstituting the committees for selection of Anganwadi workers on the grounds as noticed earlier, such writ petitions constitute one category of petitions. In the remaining petitions, the challenge is essentially to the selection of Anganwadi workers themselves and by persons who had also applied for the post of Anganwadi workers and who have not been selected.
20. Ms Sumana Baliga, learned Counsel who has led title arguments on behalf of the counsel appearing for the writ petitioners, who have primarily questioned the validity of the government order dated 15-7-2006, has made elaborate submissions pointing out that the Act has been enacted by the Karnataka legislature giving effect to the provisions of part-IX of the Constitution of India, which is one including the panchayat raj institutions which function at the grassroots level and have direct contact with the people to share the executive power of the state i.e. to part with some administrative powers and functions of the state in favour of the gram panchayats, taluka panchayats and zilla panchayats and for such purpose, the powers and functions which have been yielded in favour of the panchayat raj Institutions functioning at different levels, such as, village level, taluk level and district, have all been indicated in schedule-I, II and II to the Act respectively; that the entry XX in schedule-I to the Act, which reads as under:
XX Women and child development:
1) Participation in the implementation of women and child welfare programmes.
2) Promotion of school health and nutrition programmes clearly indicates that the powers and functions in the matter of implementation of ICDS scheme evolved by the central government is a scheme which is sought to be implemented through the panchayat raj institutions in view of the subject matter of entry 20 of schedule-I to the Act; that the process of selection of Anganwadi workers is very much part of promotion programme relating to development of women and children, so also promotion of school health and nutrition programmes; that in the light of the Constitutional scheme as contained in part-IX of the Constitution of India, the legislative provisions of entry 20 in schedule-I to the Act, the entire implementation of the ICDS scheme is entrusted to the gram panchayat institutions; that the selection of Anganwadi workers to Anganwadi centres being part of programme for development of child and its proper upbringing during the infantile period and also to ensure the mother's health and ability is sustained during such growing up stage of the child, the state government while exercising its executive powers cannot issue a notification/order which can be in any way either interfere with the functions of the gram panchayat institutions on the subject of implementation of ICDS scheme or interference on the part of the state government to control of selection of Anganwadi workers, which amounts to violation of the legislative scheme and provisions of Section 58 read with schedule-I to the Act; that the state government while purporting to exercise its executive power cannot art contrary to the legislative provisions and therefore submits that the impugned notification is one ultra vires the provisions of Section 58 of the Act and is to be struck down.
21. It is also alternatively submitted that the very scheme has given guidelines as to the manner in which the scheme is to be implemented and as to the manner in which the selection should be made to the post of Anganwadi workers. Drawing particular reference to the provisions of para-5.13, 5.13, 5.14, 5.15, 5.16, 5.17 and 5.22 5o 5.30, Ms Baliga has submitted that a reading of all these paragraphs as contained in the manual of integrated child development services, published by the national institute of cooperation and child development, New Delhi [first edition, 1984], it becomes very obvious that an Anganwadi worker is to be a women in the age group of 21 to 45 and should be a person within the village or the area to which the Anganwadi centre caters, a person who is familiar and acceptable to the local community and the selection process is initiated and controlled by the child development project officer [CDPO]; that there was no scope for importing outsiders under the scheme and while selecting the CDPO may associate/consult any one or more of the officials mentioned as in ara-5.24 of the scheme. With reference to these provisions, it is submitted that there is absolutely no scope for involving persons other than the persons mentioned in this paragraph for selecting Anganwadi workers, much less to place such outside persons to be at the helm of affairs, as had been done in terms of order dated 15-7-2006. It is submitted that there is absolutely no scope for involving an MLA/MLC to be part of the selection process for selecting an Anganwadi worker; that while any act which diminishes the role and importance of CDPO in the process of selection of an Anganwadi worker is by itself contrary to the ICDS scheme of the central government, including an MLA/MLC as a member of such selection committees is clearly opposed to the scheme, but making such an MLA/MLC to be chairperson of the selection committee amounts to giving a complete go-by not only to the very scheme and also to the constitutional provisions and legislative intention. It is submitted that the government order dated 15-7-2006 is clearly bad in law and is liable to be quashed for both these reasons.
21. It is also incidentally pointed out by Ms. Sumana Baliga that in several writ petitions such as WP Nos. 12634 of 2007, 15465 of 2006, 15466 of 2006, 13908 of 2006, 13660 of 2006, 14244 of 2006 etc., there was an order of stay operating against the government order dated 15-7-2006 and no further proceedings could have been taken under tills order for finalizing the selection of Angamuadi workers. It is submitted that though in some writ petitions, the interim order had been vacated subsequently, the interim order continued to operate in several writ petitions, in the sense, the state government had been restrained from acting further in terms of the government order dated 15-7-2006; that notwithstanding, the state government has gone ahead with the selection process on the basis of the government order dated 15-7- 2006, which is a further violation committed by the state government of the order of the court also; that it also amounts to a positive disobedience of the court order and all actions pursuant to the government order dated 15-7-2006 are liable to be quashed and the state government proceeded against under the contempt jurisdiction for violating the court order.
23. It is further submitted by Ms. Baliga that the statement of objection filed by the state government on 6.9.2007 in response to the challenge to the selection of Anganwadi workers made by the selection committees in terms of the government order dated 15-7-2006 and its subsequent variations is virtually an admission of various contentions raised by the writ petitioner in WP No 13908 of 2006; that the state government has merely obliged the MLAs to issue not only the government order dated 15-7-2006, but also earlier notifications and later notifications, as there was a demand for including the MLAs in the selection committees to select Anganwadi workers; that the matter had received the attention of the government having been raised on the floor House and their demand had been met only to oblige them, though neither the Constitutional scheme permitted this nor the scheme of the Act, but on the other hand, such action is clearly in the teeth of the provisions of the Act Attention is drawn to Annexure-R1 to 17 produced along with the statement of objections filed by the state government, i.e. various notifications issued from time to time by the state government, particularly for the purpose of Indicating the composition of the selection committee and it is submitted that it is a clear indicator of the state government's over enthusiasm in controlling the selection process for selecting Anganwadi workers and also its weakness in obliging the members of the legislative assembly and to include them in the selection by such notifications. In this regard, Ms Baliga would draw attention to Annexure-R23, a state government notification dated 16-10-2006 issued for the purpose of constituting the child development committees at each Anganwadi centre, and submits that while the state government has rightly understood the impact of the Act in the matter of functioning of the panchayat raj Institutions and their role in the implementation of the child development schemes and has ensured that it is only the president of the local gram panchayat who is to be the head of this committee and all other members of the committee are also persons at that level, it is only in the matter of constituting committees for selection of Anganwadi workers, the state government has deviated from its understanding of the scheme and the Act and has made a deviation not for the purpose of the objects of the scheme, but due to other extraneous reasons and considerations, such as its desire to pacify the agitating MLAs and it is therefore submitted that assuming that the state government has any power to issue a notification of the nature of government order dated 15-7-2006, the power being exercised not for the purpose for which it is required to be used but on extraneous considerations and contrary to the provisions of the Act and the central scheme, the government order dated 15-7-2006 is inevitably illegal and is to be quashed. It is submitted that persons of dominating position like MLAs being present n the committee for selecting Anganwadi workers has obviously vitiated the selection, as MLAs will be instrumental in making the selections and the role of local leaders and officers at the local level is made secondary and that vitiates the selections as it is contrary to the very scheme. It is also submitted that the manner in which the MLAs had expressed their grievance on the floor of the state legislative assembly, which was one of the non-inclusion of MLAs in the selection committees or not giving prominence to the MLAs in the selection process, was a grievance which was more personal to the MLAs and the manner of their functioning and for exercise of his/her power and influence in his/her constituencies rather than showing any awareness to the central ICDS scheme and highlighting the role envisaged for MLAs or the role an MLA can play in such a scheme and therefore demanding inclusion of MLAs in such committee. Submission is that the background as quoted in the very notification before the issue of the government order dated 15-7-2006 and its predecessors is a clear pointer to infer the deviation from the central scheme and proof of the state government to have acted on considerations other than for the purpose and object of the ICDS scheme and therefore the government order dated 15-7-2006 is bad in law.
24. Sri Gumraj Joshi, learned Counsel for the petitioners in some of the writ petitions, has pointed out that the interim order granted in WP No 14425 of 2006, which was passed on 7-11-2006, has remained in force till date and the state government cannot have any excuse for acting contrary to the order dated 7-11-2006 passed by this Court and this amounts to a clear disregard of court orders. Sri Joshi has drawn attention of the court to Annexure-R16 to the statement of objections filed on behalf of the state, i.e. government order dated 16-8-2006, wherein the government has shown its awareness to the pendency of WP Nos. 15465, 13660, 14244 and 11276 of 2006 that stay order granted by this Court in these writ petitions is in force and so also in terms of the further government order dated 13-7-2007 [Annexure-R 17], wherein also the government has shown its awareness to the continuation of the order of stay not only in WP No 13660 of 2006 but in other connected writ petitions and that the said writ petitions are at the stage of hearing, but the government nevertheless has gone ahead and finalized the selection of Anganwadi workers in respect of a large number of centres purporting to follow the procedure as indicated in government order dated 15-7-2006 by the selection committees chaired by the MLA concerned dominating the selections. It is submitted that in view of legal flaw and positive disobedience to the court orders, all such selections of Anganwadi workers made by the selection committees functioning in terms of the government order dated 15-7-2006, are all liable to be quashed, as such selections/appointments are per se illegal in law.
25. Sri Gururaj Joshi has also referred to the communication dated 28-5-2007 from the central government addressed to the state governments/ union territories, a copy of which is produced along with the statement of objections filed on behalf of the state government at Annexure-15, to point out that the very central government, whose scheme the state governments were implementing, had made it clear that the scheme does not envisage involvement of an MLA in the selection process of Anganwadi workers under the KCDS programme. Submission is that any selection process involving or including MLAs is inevitably vitiated, as it amounts to an act contrary to the very scheme.
26. Sri Joshi has also drawn the attention of the court to Annexure-R13, which is a government notification dated 21-7-2006 in the nature of a corrigendum issued to an earlier notification dated 15-7-2006, wherein reference is made relating to the respective MLAs of the constituencies being the chairpersons of the selection committees being corrected to read as either the member of the legislative assembly of the respective constituency or 'a person nominated by him/her', would clearly indicate that the state government has considered the function of the chairperson of a committee made for selecting Anganwadi workers as a function and power which should be exercised by the MLAs in terms of the government order dated 15-7-2006 and that the MLA in turn can nominate or authorize such powers or function to be exercised by one of his nominees, which only demonstrates that the state government has approached the issue as though it is a bounty to be conferred on the MLA, which he can avail of either by himself or acting through one of his nominees, which, it is submitted, is opposed to all norms of rule of law and is also clearly contrary to the ICDS programme. Submission of Sri Gururaj Joshi is that there was some tussle between the members of zilla panchayat and the MLAs in the matter of finding place in the committees for selecting Anganwadi workers, and if the office bearers and the members of zilla panchayats or taluk panchayats have approached this court questioning the legality of the government order, which by itself is indicative of the struggle for power as between representatives of the panchayat raj institutions and the representatives of people functioning at the level of assembly constituencies, the fact that government responded to such issues being raised on the floor of the legislative assembly and that such disputes have arisen itself indicates the manner in which the power is exercised by the government and that such power is being exercised in contravention of the provisions of the Act and therefore not merely the notifications, but all actions taken by the government pursuant to the government order dated 15-7-2006 should also be quashed.
27. In this regard, Sri Gururaj Joshi submits that though most of the selected candidates are not made parties in these writ petitions, in the sense, their selection having not been questioned by filing writ petitions and non-selected candidates complaining about their selections, as a large number of non-selected candidates have approached this Court pointing out the illegalities in the manner of selections made and such being by and large the state of affairs, any illegality, once noticed even at the instance of some persons has to inevitably visit its consequence on all other persons also who have derived benefit of such illegal action and examining this cause in the wake of such action of the state government does not necessarily convert the present writ petitions to be in the nature of a public interest litigation, as affected persons are very much before the court and it is only on the examination of such direct challenge and if as a result, it is to be held that the notification dt: 15.07.2006 is bad in law the consequence befalls other persons who were beneficiaries of such illegal action; that such consequences are inevitable and that it is the duty of the court to pass such orders as are warranted in law and in the circumstances, such order of the court does not amount to passing orders on examination of a public interest cause. In this regard, Sri Gururaj Joshi has relied upon the judgment of the Supreme Court in the case of S.P. Gupta and Ors. v. Union of India and Ors. . Sri Joshi has also drawn the attention of the court to another decision of the Supreme Court in the case of Union of India v. O. Chandradhar and submits that the consequence of the quashing of government order dated 15-7-2006 should be necessarily given effect to all selections and the state government should be directed to re-notify the selection process and finalise selections afresh by following the procedure In terms of the central government scheme. It is submitted that the state government having acted contrary to the stay order issued by this Court is also another ground as to why the notification and selection procedure should necessarily be quashed and action initiated against the state government for violating court orders.
28. Sri P.G. Mogali, learned Counsel for the petitioner in WP No 14076 of 2007, has submitted that overlooking better merit of the writ petitioner vis-a-vis the selected candidate, particularly as reflected in the performance In qualifying examination i.e. SSLC, is an indication of the arbitrary manner in which the selections are made by the selection committee. It is submitted that the government circular dated 4-9-2006 is supplemental to the government circulars dated 16-7-2004, 16-11-2004,6-7-2004, 11-10-2005, 5-6-2006 and 15-7-2006 and submits that even after the issue of government order dated 15-7-2006, governing the selection process of Anganwadi workers, better merit still remains as a criterion for selection of an Anganwadi worker and therefore the selection of respondent-selected candidate is bad in law as merit is given a go-by in the instant case.
29. Sri S.S. Halalli, learned Counsel for the petitioner in WP No. 11276 of 2006, submits that the scheme is a central government sponsored scheme and the entire recruitment process is also governed by the central ICDS scheme and the state government has no power or authority to issue a notification to vary or modify the scheme including the process of selection and therefore the very government order dated 15-7-2006 is bad in law. Learned Counsel also submits that the central scheme does not envisages inclusion of politicians in the selection committee; that inclusion of politicians in the selection committee could naturally affect the process of selection, as politicians may have preference for candidates owing political allegiance to their political parties; that there are no guidelines as to the manner in which the comparative merit of each candidate is to be ascertained after the eligible candidates are called for interview by the selection committee; that except for the percentage of marks earned at the qualifying examination viz., SSLC, which alone is the objective norms, working of which can be examined, all other evaluation of the suitability or merit of the candidate has been purely made dependent on the subjective view of the members of the selection committee and it has made the selection totally arbitrary and therefore the selections are bad; that absence of a clear and proper guideline for evaluating the comparative merit of the candidate has rendered the selection procedure totally arbitrary and violative of Article 14 of the Constitution of India and is liable to be quashed. Learned Counsel has also drawn the attention of the court to the procedure as envisaged in para-5.24 of the manual and submits that all actions of the state government are clearly contrary to these procedures indicated in the central government scheme.
30. On behalf of the petitioner in WP No 16378 of 2006, M/s G. Papi Reddy and M. Vinod, advocates, have submitted that the selection in terms of the selection order dated 4-8-2006 in respect of all the candidates numbering 47 as indicated in Annexure-E to this writ petition, has to be quashed for the reason that the selections were made unilaterally by the MLA without heeding even to the opinion of the other members of the selection committee; that the writ petitioner himself being the vice-chairman of the selection committee and president of the taluk panchayat, was totally sidelined in the matter of selection; that the writ petitioner had expressed his dissenting view and left a note in this regard in the selection order dated 4-8-2006 Itself; that the committee did not follow any norms or the guidelines at the time of selection; that only four members were present in the committee and therefore submitted that the writ petition is to be allowed and the selections made quashed. No specific counter has been filed in response to such averments and allegations.
31. Sri Sunderesh, learned Counsel for the petitioner in WP No. 13545 of 2007, has submitted that the selection of the fourth respondent as an Anganwadi worker is vitiated due to extraneous considerations, such as recommendatory letters being taken into consideration by the committee headed by the MLA concerned and in selecting a person who was not a local resident at the cost of the writ petitioner, who is a local resident and whose selection was favoured by the village panchayat and residents of the locality. Learned Counsel submits that this is indicative of the pattern in which the selection committee has functioned wherever MLA presided over such selection committees.
31. Sri B Chidanandaiah, learned Counsel for the petitioner in WP No 13051 of 2007, has submitted that the selection committee while has not given importance to the requirement of selecting a local candidate, but has made selection of a person from a village in the neighbouring district and based on the recommendation by Stree Shakti Sangha amounts to acting on extraneous considerations overlooking merit and relevant considerations and therefore the selection is bad.
33. Sri Babu M. Metagudda, learned Counsel for the petitioner in WP No 14157 of 2007, while questioning the selection of sixth respondent in terms of order dated 2-8-2007, has pointed out that the petitioner though had completed nursery training course, is sidelined and a person without commensurate qualification has been appointed only because MLA acting as the chairperson of the committee, wanted the selection of sixth respondent to this writ petition be set aside as such action of the chairman of the committee has vitiated the selection procedure.
34. Sri S.C. Vijayakumar, learned Counsel for the petitioner in WP No 11312 of 2007, wherein the selection of fourth respondent in terms of order dated 11-9-2006 [Annexure-E to the writ petition] is questioned, submits that the petitioner's preferential claim for being appointed as Anganwadi worker, as the petitioner is a disabled person, is overlooked without any rhyme or reason and appointing fourth respondent has vitiated the selection. Sri Vijayakumar also submits that likewise the selection challenged in WP No 8534 of 2007 is not sustainable, as the selection is not on the basis of proper guidelines but on other considerations.
35. Sri Sasidharan Nair, learned Counsel for the petitioners in WP Nos. 11927, 13277 of 2007 etc., submits that the application of the selected candidates though was rejected earlier as indicated in Annexure-E to the writ petition, she has again been indicated as selected candidate [in WP No 11926 of 2007]. In WP No 13227 of 2001, Sri Nair submits that the selected candidate was not a resident of the village, but still she is selected and therefore the selection is vitiated.
36. With reference to the challenge to selection of persons figuring as respondents in WP No 13332 of 2007, 13726 of 2007, 13727 of 2007 and 13729 of 2007, what is submitted is that better merit of petitioners has been overlooked, in the sense, though the petitioners had better percentage of marks in the qualifying examination, persons with lower marks have been selected and therefore the selections are arbitrary and vitiated. In support of the submission, learned Counsel for the petitioners have relied on the decision of the Supreme Court in the case of O. Chakradhar [supra] and also the decision in Krishna Yadav v. State Of Haryana .
37. Sri S.Z.A. Khureshi, learned Additional Government Advocate, appearing on behalf of the state, has, by drawing attention to the statement of objections filed in WP No 13908 of 2006, pointed out that the state government has introduced the ICDS scheme pursuant to the directions of the union government; that 185 projects were sanctioned in 176 taluks of the state, including nine urban areas; that as on March 2006, there were 40301 Anganwadi centres functioning in the state; that the central government for implementing the scheme had particularly for the benefit of children below 6 years and pregnant woman and nursing mothers residing in the rural parts of the state as well as in urban slums areas had sanctioned additional 11313 Anganwadi centres during the year 2005-06 in the state of Karnataka; that to make such additional centres functional, it was necessary to select Anganwadi workers to all these 11313 centres and for such purpose, the state government had constituted selection committees in consonance with the guidelines in the ICDS manual and in this regard, it is pointed out that apart from the provisions for co-opting officials such as district social welfare officer, block development officer, child development project officer, medical officer of the primary health centre, president of the taluk/block advisory committee, district representative of the state, social welfare advisory board, there was scope to co-opt any other non-ofllcials, the state government may consider proper; that the state government had co-opted the MLAs to the committees ever since the year 1987. It is asserted that MLAs and taluk panchayat members being representatives of people and the programme being a people's programme, such MLAs and other people's representatives were added in the committees.
38. It is also asserted on behalf of the state government that as it is not practical and feasible to constitute 1Anganwadi selection committees for each village and it is also difficult for the CDPO to administer individual committees in each village and to ensure uniform method in selection of Anganwadi workers, the state government has constituted the selection committees. It is submitted that the requirement of selecting a local woman is being strictly implemented. The functioning of the selection committee being as a body, there is no scope for individual opinion of the members and such functioning of the committees had been continued from time to time as and when the committees were being reconstituted. It is indicated that on the request of legislators to include them in the selection committees, the government issued an order on 16-1-1995 for such purpose. It is also admitted that as a result of discussions held on the floor of the House and as a sequel to the calling attention motion tabled by some of the members of the legislative assembly, it became necessary to reconstitute the composition of the committee and as a consequence, MLA of the constituency was made as chairperson of the selection committee and following further discussion in the legislative council, a decision was taken by the state government to include MLCs also as members of the selection committees. What is asserted is that the constitution of the committees is in consonance with the government of India circular dated 22-8-1985. It is also asserted that the decision of the state government for reconstituting the committees is for giving better administration.
39. Elaborating the statement of objections, Sri S.Z.A. Khureshi, learned AGA, has drawn attention of the court to the provisions of Part-DC of the Constitution of India, particularly Articles 243, 243A, 243C, 243C(c), 243C(d) and submits that even in the Constitution, there is provision for inclusion of MLA/MLCs as non-official members of the taluk panchayat and zilla panchayat; that they cannot be considered as outsiders to the scheme of panchayat raj institutions; that to give effect to the provisions of Article 243G of the Constitution of India, the state government has enacted the Act and therefore it cannot be said that MLA/MLCs have no role to play in the scheme of panchayat raj institutions and it cannot also be argued that mere presence [of an MLA or MLC] in the selection committee will vitiate the selection or as being opposed to the Act, in the matter of implementation of the plans and schemes in respect of which the power and functions have been assigned to panchayat raj institutions. Reference is also made to Sections 119, 120 and 182 of the Act in this regard.
40. Attention is also drawn to Section 240 of the Act to point out that the very scheme of the Act envisages state government, indicating from time to time the role of grain panchayat, taluk panchayat and zilla panchayat in respect of the scheme and the activities relating to the functions specified in schedules I, II and III to the Act for the purpose of proper co-ordination and effective implementation of such programme and in the light of such scheme of things in the Act itself, if the state government has issued an order in the nature of government order dated 15-7-2006, it cannot be said that such a notification/order is in violation of the Constitutional scheme or the scheme of the Act. Reference is also made Section 312 of the Act to indicate that the state government has the power to amend the entries in the schedules I, II and III to the Act and when the state government is the authority to indicate what action, what function, what scheme should be undertaken by panchayat raj institutions, it cannot be contended that the government has no power to issue a notification of the nature of government order dated 15-7-2006.
41. In this regard, Sri Khureshi also submits that even in terms of the functions assigned to the panchayat raj institutions, particularly gram panchayat under Schedule-I to the Act, the function of the selection of Anganwadi workers have not been assigned in favour of gram panchayats and it should be taken that the state government has necessarily retained this power and function and the state government is therefore fully competent to issue notification regulating the composition of the selection committee to select Anganwadi workers.
42. Learned AGA would submit that the action of the State government in issuing such notifications is not in any way contrary to the ICDS programme; that it is in consonance with para-5.24 of the scheme. Learned AQA has made reference to comparative study of para-3.2.12 of the handbook of instructions regarding integrated child development services programme, which reads as under:
IV. Anganwadi Worker 3.2.12. The Anganwadi worker should be a lady [18-44 years], from the local village and acceptable in the local community. Special care should be taken in her selection so that the children of scheduled caste and other weaker sections of the society are ensured free access to Anganwadi It is suggested that the AWWs in the selected project areas may be selected by a committee consisting of the District Social Welfare Officer, the BDO, the CDPO, the Medical Officer of the primary health centre, the President of the Taluka Panchayat/Block Advisory Committee, the district representative of the State Social Welfare Advisory Board and any other non-officials which the State Government may consider appropriate.
and contents of paras 5.22, 5.23 and 5.24 and submits that the composition of selection committee is in consonance with these paragraphs and therefore cannot be found fault with. Sri Khureshi, therefore, submits that there is no violation of ICDS scheme/programme in the issue of the government order dated 15-7-2006.
43. Learned AGA has also submitted that irrespective of the validity of the notification, selections having already been made to a large number of Anganwadi centres by the committees constituted in terms of government order dated 15-7-2006, it is not necessary nor feasible to invalidate all such selections at this point of time and even if the government order dated 15-7-2006 is held to be bad for any reason, the consequential selections should not be quashed.
44. One another argument advanced on behalf of the state government is that while the communication dated 28-5-2007 from the central government, which quotes its earlier guidelines/norms, has not positively disapproved the action on the part of the state government in having co-opted the MLAs as non-official members of the selection committees in terms of its earlier letter dated 2-11-2006, the central government having not indicated that it may not be appropriate to include them in the selection process of Anganwadi workers and the state government having subsequently reconstituted the selection committees by excluding MLAs, the challenge to the notification does not continue any more and the writ petitions questioning the validity of the notification have become infructuous and they may be dismissed. It is submitted that as the central government - the profounder of the scheme - has not positively disapproved the inclusion of MLAs in the selection process and had not indicated anything about the selections already made, it is not proper for the court to examine the validity of such selections nor to quash such selections and therefore would urge that all writ petitions should be dismissed.
45. One more argument canvassed by Sri Khureshi, learned AGA, is that such selection should not be examined at the behest of the writ petitioners, who had themselves undergone the selection procedure and had appeared before the very selection committees, as it amounts to petitioners blowing hot and cold and seeking intervention of the court only because they were not selected. It is submitted that such petitioners lack bona fides and court should not entertain such petitions and dismiss the same.
46. Sri Khureshi, learned AGA, also submits that the court cannot examine reasonableness rather unreasonableness of the implementation of the scheme; that in the light of the law declared by the Supreme Court in the case of Express Newspapers [Bombay] Pvt. Ltd v. Union of India , court should not examine the challenge to selections on the touchstone of reasonableness of the action on the part of the state government and urges for dismissal of the writ petitions.
47. Appearing on behalf of the Union of India, which has been impleaded as a party respondent in one of the writ petitions challenging the selection of Anganwadi workers by a non-selected candidate [WP No 16378 of 2006], Sri N. Devhadass, learned senior Counsel appearing for the Central Government Standing Counsel Sri. Padmanabha, would submit that the state government acts only as an agent of the central government in the matter of implementation of the ICDS programme; that the state government has no independent role to play in the implementation of the project; that the state government has been roped in for effective implementation [of the scheme [as it will not be possible for the central government to ensure the implementation of the project throughout the country, which is a gigantic task; that elaborate instructions and guidelines have been issued about the manner of implementation of the scheme in terms of the ICDS manual, which has gathered in one place the periodic instructions and guidelines issued by the central government to the state government from time to time and the state governments are bound to implement the scheme in this manner. Learned senior Counsel further submits that the scheme being a scheme visualized for implementation throughout the country, there cannot be any variation from state to state and there cannot be any flaw or drawbacks in achieving the object of the scheme, which is essentially one of protecting, nurturing and strengthening children below the age of six years and their nursing mothers as also pregnant ladies. Submission is that when the central government noticed some state governments going astray and such deviation from the scheme having an adverse impact on the proper implementation of the scheme, it became necessary for the central government to issue the communication dated 28-5-2007 [Annexure-R15 to the statement of objections filed on behalf of the state government! and it is precisely for this reason, the state governments including the state of Karnataka have now reconstituted the selection committees to ensure that this is in consonance with the guidelines issued by the central government. Submission is that it is left to the wisdom of the government to examine the consequential action that should follow if the court should find that the state government had acted either independently or in variation to the scheme envisaged by the central government and in this regard would submit that if it is possible to sustain the selections already made, such selections may not be affected.
48. Submissions made on behalf of the selected candidates can be bifurcated as submissions made on behalf of such candidates whose selection has been directly questioned in the writ petitions filed before this Court and the submissions made on behalf of the other selected candidates who did not figure as respondent in any of the writ petitions, but who have been notified through paper publication inviting response to the challenge made to the selection of some of the selected candidates in these writ petitions and in the context the entire selection being reviewed by this court, particularly in the light of the earlier writ petitions having questioned the legality of the government order dated 15-7-2006, where under the state government had reconstituted the committees for selection of Anganwadi workers.
49. While many of the selected candidates who have been notified through paper publication on the question of reviewing the orders selecting them and appointing them as Anganwadi workers have filed applications seeking for their impleadment as party respondents in one of the above writ petitions, it is observed earlier that all these applications are not being individually ordered, but they are all deemed to be allowed and such applicants also treated as party respondents in these petitions and having regard to the public notice issued to all the selected candidates, the submissions made on behalf of the candidates who have been selected and who are represented by counsel before the court is taken to be in a representative capacity made on behalf of all the selected candidates and the outcome of the examination of selections to bind all the selected candidates. It is taken that the submissions on behalf of the selected candidates to be in representative capacity and will be examined for the benefit of all the selected candidates.
50. M/s S.S. Haveri, Vinaya Keerthy, Vidyanand V. Nayak, M.V. Hiremath, S.B. Balaraj, Sunitlia Bharamagouda, Sharanabasayya K. Bashetty, B.K. Manjunath, J.M. Umesh Murthy, Mohan Kumar, Parameshwarappa, E.S. Prasannakumar, G. Shivakumar, Chaitanya Hegde, G. Shankar Goud, R. Padmanabha, Patel D. Karegouda, S.S. Sajjan Shetty, H.K. Revanasiddappa, Gururaj K. Kulkarnl, Krishna S. Dixit, Sanket Yenagi, S.S. Patil Bhudihal, Vighneshwar S. Shastry, Qovindaraj, M.B. Naragund, S. Basavaraj, S.S. Patil, Shivanand Metti, etc., have all entered appearance for the selected candidates.
51. Submission of such counsel is that the selection is proper and in accordance with the scheme; that having regard to the requirement of giving preference to SC/ST and backward classes, disabled and disadvantage women, selection made may not be always based on the superior merit of the candidates and a mere comparative better performance of the petitioners in the qualifying examination in itself does not give them a right to seek the job of an Anganwadi worker and in the light of the requirement that different sections of the society are to be represented and to be given preference, it cannot be said that the selections are vitiated due to discriminatory act on the part of the selection committees. It is also submitted that the petitioners having undergone the very process cannot later turn around and question the selections only because they are not selected. It is contended that the petitioners are estopped from questioning the selections. It is also submitted that the selected candidates having worked for the past more than one year or so, there is no need to disturb their present position on technicalities and the writ petitions are to be dismissed.
52. On behalf of the other selected candidates, who have either made applications on their own seeking for impleadment or pursuant to the paper publication notifying the hearing of the cases, M/s Gayathri Raju, Somayaji, Venkatesh Kulkarni, Sanket, Rajaram, S.G. Pandit, Ashok S. Kalyana Shetty and many other learned Counsel have been heard.
53. Submissions are that the job of an Anganwadi worker being not a civil post, as noticed by the Supreme Court in the case of State of Karnataka v. Ameerbi and Ors. JT 2007 (1) SC 278, writ petitions are not tenable to challenge the selection of Anganwadi workers. It is submitted that the post being either not permanent nor confers a right in favour of the selected candidate for continuation in the post for any duration, correctness of selection cannot be challenged, as it is not as though the petitioners can claim that they should have been selected and should be so appointed. Submission is that the post of Anganwadi worker being an honourary post, writ petitions cannot be filed for either challenging the selection or to contend that the petitioners should have been appointed as better merited candidates. It is also submitted that when once the post is not a civil post, in the sense, not an employment opportunity created by the state itself, the action cannot be challenged on the ground of being violative of Articles 14 and 16 of the Constitution of India
54. Defending the selection in the light of the central scheme, it is submitted that the state government has a definite role to play in the scheme of things even under the ICDS programme; that the state government cannot be treated as a stranger or outsider to the implementation of the scheme; that if the state government had to play a role for the purpose of implementation and sustenance of the scheme all these years, no exception can be taken at this point of time and therefore writ petitions should be dismissed, without further examination.
55. It is also submitted that the state government even while formulating guidelines, having retained the ICDS guidelines of the persons to be selected to be a local resident where the Anganwadi centre is to be located and if in a given case, selection of the person to be appointed as an Anganwadi worker is found factually to be one of selecting a non-residence person, while that selection alone would get vitiated, such possibilities cannot be generalized for nullifying all selections.
56. While all these learned Counsel have also adopted the submissions made on behalf of the state by Sri S.A.Z. Khureshi, learned Additional Government Advocate, what is submitted in addition is that interference in such selections under which a large number of Anganwadi workers selected and appointed clearly amounts to interfering with the administrative action which has provided employment opportunity and has rendered social justice to a large number of people; that justice requires protection of interest of so many people and in the larger interest of Anganwadi workers who have already been selected and working and therefore all these writ petitions should be dismissed.
57. It is also very vehemently urged that the selection of persons who do not figure as respondents in the above writ petitions having not been challenged by any person, it is not necessary to disturb their selections assuming for any reason, it is found that the government order dated 15-7-2006 under which the selections have been made, is found to be illegal and liable to be quashed, as a mere challenge to the notification does not automatically result in the challenge to the selection of a particular Anganwadi worker.
58. It is also submitted that the selected candidates have been bona fide applicants for the post of Anganwadi worker and having gone through the process of selection in the normal course, it is not necessary to interfere with such selection at this point of time even if it is found that the government order dated 15-7-2006 is void for any reason and in this regard reliance is placed on the following decisions:
Madan Lal v. State of J & K (1995) 3 SCC 436 - PARAS 9 A 10 K.H. Siraj v. High Court of Kerala 2006 AIR SCW 3136 - PARA 6 Union of India v. Rajesh P.U. Puthuvalinakath 2003 SCC (L & S) 1048.
55. The sum and substance of these submissions on behalf of the selected candidates is that once the selection of candidates which are directly in issue in the above writ petitions is in consonance with the scheme and the guidelines issued in this regard by the state government, and the state government having applied this selection process uniformly throughout the state, no discrimination can be attributed to such selection nor arbitrariness attributed to the state government and therefore there is no need for further scrutiny of the correctness of the selection.
60. It is nextly contended that when the selection itself is in consonance with the scheme and the guidelines, mere presence of MLAs does not vitiate the composition of selection committee nor the selection procedure; that failed candidates approaching court to question the legality of the selection on the basis of composition of the selection committee before which they themselves appeared and participated without any protest or demur but are now questioning the very selection only because they have not been selected and are therefore estopped by their conduct from questioning the legality of the selection of the selected candidate. It is further submitted that the post, being not a civil post, while violation of Article 16 of the Constitution of India cannot be complained of, selection being only in the context of central government scheme and not under any statutory provisions, deviation and modification from the scheme cannot be reviewed to hold that the action becomes illegal, as the action is not in contravention of any statuary provisions.
61. It is in the light of such rival submissions, the matter presents itself for examination and opinion.
62. Writ petitions questioning the legality of the government order dated 15-7 2006 [Annexure-R11 to the statement of objections filed on behalf of the state] are taken up for examination in the first instance, as the selections including the subsequent writ petitions of the year 2007 onwards are all selections made by the selection committees constituted under the government order dated 15-7-2006.
63. As noticed earlier, the challenge is two fold. Firstly that the notification is not in consonance with the scheme as notified by the central government under the ICDS; that it is at variance and works at cross purposes and therefore it is bad. Secondly that when the scheme is sought to be implemented at the panchayat raj institutions level, the state government interfering with even the implementation of the scheme amounts to an unwarranted interference with the functioning of the panchayat raj institutions, which have been given a degree of autonomy and independence under the Act.
64. I CDS programme is a scheme which was mooted by the central government in or around the year 1975 aiming at providing integrated delivery of services like supplementary nutrition, Immunization, child health etc., to pre-school children and pregnant nursing women. Children in the age group of 0 to 6 and women in the age group of 15 to 45, particularly pregnant women and nursing mothers are the identified groups for beneficial provisions. If one should have looked at the administrative part of ICDS programme, it becomes clear that the set up of Anganwadi centres is taken up as a social welfare measure and under the ministry of social welfare of the central government. Rural development and providing health care are the other two main objects of ICDS programme. The administrative chart of the programme is as under:
ICDS PROJECTS (ADMINISTRATIVE CHART) SECRETARY SECRETARY SECRETARY MIN. OF RURAL DEV. MIN. OF SOCIAL WELFARE MIN OF HEALTH AND FAMILY | | WELFARE | ________|________ | | | | | | ALL INDIA | | INST. OF SECRETARY STATE | | MEDICAL DEPTT. OP HEALTH
-------------- --------------------- SCIENCES ) | | | | | NATIONAL STATE AGRIL. NATIONAL DIRECTOR INST. OF PRODUCTION INST. OF (CHILD DEV.) DIR GEN. OF RURAL COMMR. DEV. PUBLIC MIN. OF HEALTH SERVICES DEV. COMMR. COOP AND WELPARE | | | DIRECTOR DIRECTOR STATE DIRECTOR OF STATE MODEL DEPTT. OF HEALTH RURAL DEV. DEPTT. OF COORDINATOR) ICDS (SW/RD/ HEALTH) | | | ZILA PARISHAD/ DIRECTOR DISTRICT HEALTH COLLECTOR/ CELL (ICDs) OFFICER DRDA PROGRAMME OFFICER ICDS | | | PANCHAYAT CHILD DEV MEDICAL OFFICER SAMTI PROJECT (PRIMARY HEALTH) OFFICER CENTRE) | | | SOCIAL EDUCATION SUPERVISOR LADY HEALTH ORGANISER VISITOR MUKHYA SEVIKA | | | VILLAGE LEVEL ANGANDADI AUXILLIARY NURSE WORKER WORKER MIDWIVES (GRAM SEVIKA) The organizational charge of ICDS indicates the interconnections, checks and controls. The organizational charge is as under:
MINISTRIES/DEPARTMENTS CONNECTED WITH ICDS
(Organisational Chart)
Cent- MHW NIP UNI
ral MSW W DAG DRD MIB DE MWH CCD AIIMS PC CEF
| | | | | | | | | | |
PEO UNI
State SDSW DH DAG DCD DIP DPT DPHE TI/ MC (PC) CEF
RI UNITS (ZO)
| | | | | | | | |
DHO
Distt. DC CMO DAO DPO DIPO DEO EEPH TI MC
(H)
| | | | | | |
Proj/ | EO/ AEO JE
Blook CDPO MO | BIO /EO
| | | |
SUP LHV EO EO EO |
(ps) (p) (ed) |
| | |_________ |
|_______ | |
AWW ANM VLW LB PS MM
AEO - Asstt. Extension Officer LB - Local Body
AIIMS - All India Institute of Medical Science LHV - Lady Health Visitor
ANM - Auxiliary House Mid wife MC - Medical College
AWW - Anganwadi worker MHFW - Ministry of Health and Family Welfare
BAD - Block Advisory Committee MIB - Ministry of Information & Broadcasting
BIO - Block Information Officer MM - Manila Mandal
BMS - Block Manila Samiti MO - Medical Officer
CDPO - Child Development Project Officer MSW - Ministry of Social Welfare
DAS - Department of Agriculture MWH - Ministry of Works and Housing
DAO - Distt Agriculture Officer NIPCCD - National Institute of Public Cooperation
DCD - Department of Community Development and Child Development
DE - Department of Education PEO (PC) - Programme Evaluation Organization
DEO - District Education Officer (Planning Commission)
DH - Department of Health PS - Primary School
DHO - District Health Officer RI - Research Investigator
DC (ICDS) - District Cell (ICDS) SDSN - State Department of Social Welfare
DPHE - Department of Public Health Engineering SUP - Supervisors
DIPC - Director of Information and Publicity TI - Training Institute
EEPH - Executive Engineers (Public Health) UNICEF (ZO) - United Nations Children's Fund
EO (Ag.) - Extension Officer (Agriculture) (Zonal Office)
EO (ed) - Extension Officer (Education) VA - Voluntary Agencies
EO (P) - Extension Officer (Panchayat) VLW - Village Level Worker
JE - Junior Engineer
65. An examination of all these aspects from the two charts leaves one with no doubt that the role of the state government is only for the purpose of coordination and for supervision to ensure proper implementation and not to get itself directly involved in the execution. A perusal of the guidelines indicates that in the implementation and working of the scheme, the execution is well insulated from interference by the state government. The state government if at all can play a supplementary role and not a role of arrogating the scheme itself. The CDPO is assigned a very pivotal and prominent role in the implementation of ICDS programme and CDPO has to act as leader and coordinator of ICDS team. When once the project area for implementation of the ICDS programme is identified, selection of Anganwadi workers is provided (as per para-5.13 to 5.18 of the manual on ICDS spell out the role to be played by CDPO in selecting the Anganwadi workers and para-5.22 to 5.24 provide for such selection. Paras 5.13 to 5.18 and 5.22 to 5.24 read as under:
Selection of Anqanwadi 5.13 Starting of Anganwadis in a project should be done in two/three phases beginning with selection of villages which are most willing to have an Anganwadi and are prepared to participate actively in its activities and programmes. Thus the villages to be covered by Anganwadi activities may be selected in a phased manner on the basis of the following considerations:
i) that the need for child development services has been felt by the community as indicated from the pre-project work/survey in the block;
ii) that the village community is desirous of establishing Anganwadi in its village;
iii) that the need and desire for Anganwadi has been manifested in providing necessary cooperation and contribution for ninning of the Anganwadi such as:
a) availability of suitable space for Anganwadi,
b) contribution in cash, kind and labour to supplement the resources of the ICDS.
iv) that village community will make available necessary assistance for running of the Anganwadi and to make the services effective.
5.14 At the village the location of an Anganwadi should be decided on the following criteria
i) Anganwadi should be easily accessible to all the children particularly from vulnerable sections of the community;
ii) Availability of sufficient space for both indoor and outdoor activities; and
iii) Availability of safe drinking water.
5.15 In order that the scheme of ICDS is implemented according to the principles laid down and its benefits accrue to the preschool children, expectant women and nursing mothers and women in the age group 15-44 years, it is necessary that:
i) there should be adequate project staff at all levels. This staff should be appointed as early as possible;
ii) the staff should have sufficient background and training; and
iii) their duties and functions should be properly defined.
5.16 The following categories of project personnel are to be recruited for the implementation of the ICDS scheme at the project level:
i) Child Development Project Officers,
ii) Supervisors (Mukhyasevikas).
iii) Anganwadi Workers,
iv) Anganwadi Helpers.
Each of these staff categories is described below:
Child Development Project Officer 5.17 One Child Development Project Officer (CDPO) is to be selected for each ICDS project who will be incharge of the project. The number of Child Development Project Officers required in each State/Union Territory will be the same as the number of ICDS projects sanctioned to each State/ Union Territory. The CDPO, preferably a lady, should have a Master's degree in any of the following disciplines:
i) Child Development.
ii) Social Work.
iii) Home Science.
iv) Nutrition.
v) Any other allied field 5.18 The CDPO is an important and key functionary whose dynamism and skills, besides his/her educational qualifications, will determine the pace and direction of ICDS programme. The recruitment of CDPO should, therefore, be made by the State Governments/Union Territory Administrations with great care. Besides formal qualifications, stress should be laid on her ability to get along with other members of the project team, voluntary workers and leaders and other non-officials. She should have the ability to lead the team, draw the best and maximum of her team members and recognise the contribution of others in promoting the ICDS programme. She should be imaginative as well as practical and should also possess managerial ability to utilise human and material resources of the project and the community. As she would have to supervise and guide programmes and activities spread over about 100 villages or slum sub-units. She should also be a person who is not desk-bound but can reach to people, clientele, workers and community leaders. It is suggested that an officer having the prescribed qualifications may be selected from any one of the existing State/Union Territory cadres. If no suitable officer is available from any existing cadre of the State Government/Union Territory Administration, steps should be taken to directly recruit an officer with the above mentioned qualification and aptitudes. The selected officer must be borne on some appropriate State/ Union Territory cadre. Her/his pay scale should be the same as that of the Block Development Officer (BDO) in the State/Union Territory. As soon as an officer is identified or selected as CDPO, her name, designation and address should be communicated to the Ministry of Social Welfare and NJPCCD for taking necessary action regarding the training of this officer.
Anganwadi Workers 5.22 The focal point for the delivery of the package of services under 1CDS scheme is an Anganwadi Centre. Anganwadi worker is the kingpin of the JCDS programme whose success rests to a large extent on her ability and capacity to perform her role and responsibilities effectively. As per the schematic pattern, the number of Anganwadi workers has been worked out at the rate of one Anganwadi worker for a population of 1000 in rural and urban projects and one Agnanwadi worker for a population of 700 in tribal projects, subject to the upper limit of 1000. However, the number of Anganwadis and Anganwadi workers will differ from project to project on the basis of population, topography, communication etc. 5.23 The Anganwadi worker is expected to be a woman in the age group 21-45 years and is to be selected from within the village/local community. She should be a person who is acceptable to the local community. Special care has to be taken in the selection of Anganwadi worker so that she can effectively serve the preschool children, pregnant women and nursing mothers and women in the age group 15-44 years of the project area She should be able to work with women and children of the Scheduled Castes and Scheduled Tribes and other weaker sections of the community.
5.24 The selection of the Anganwadi workers should be done only after the CDPO and Mukhyasevikas are in position. The selection of the Anganwadi workers should be initiated by the CDPO either during the pre-projed phase and/or after her/his jointing the project. In other words, the CDPO must be associated with the selection of the Anganwadi workers. Since the Anganwadi worker has to be a local woman, no attempt should be made to select her from outside the project area, particularly through Employment Exchanges or other machinery for recruitment of Government functionaries. Anganwadi workers in the selected project area may be recruited/enlisted by the CDPO on the recommendations of the village institutions/leaders. In the process of selection, he/she may consult/ associate any one or more of the following:
i) Medical Officer.
ii) Block Development Officer (in case of rural and tribal areas).
iii) President of the Taluka Panchayat Committee.
iv) Representative of the Child Development/Training Centre.
v) A representative of the State Social Welfare Advisory Board and
vi) Mukhyasevikas Incharge of the zone (if in position).
66. Thus, viewed from the background of such guidelines issued under the ICDS, the state government order dated 15-7-2006, which provides for the selection committee to be as under:
____________________________________________________________________ 1 Member of Legislative Assembly Chair-person ____________________________________________________________________ 2 Chairperson of taluk panchayat Deputy chairperson ____________________________________________________________________ 3 Executive officer, taluk Member panchayat ____________________________________________________________________ 4 Non-official member (scheduled Member caste/ scheduled tribe only] Or scheduled caste/scheduled tribe/lady member of tahik panchayat nominated by dhairperson of taluk panchayat ____________________________________________________________________ 5 Member of Legislative Council "
____________________________________________________________________ 6 Child Development Project Member Officer Secretary ____________________________________________________________________ obviously present itself as an admission at total deviation from the ICDS programme.
67. The mariner in which the state government has been preoccupied with the task of constituting and reconstituting the selection committees and modifying the composition of selection committees, very clearly indicates that the state government is more interested in yielding to political pressure in the matter of composition of selection committees, which in turn selects the Anganwadi workers, obviously leading to the inference that the representatives of people, particularly the MLA of the area are keen to have their say in the matter of selecting and appointing Anganwadi workers and also to retain their control even after the appointment, as Anganwadi workers of their choice will obviously remain loyal even after their appointment. The very notifications produced as annexures to the statement of objections filed on behalf of the state government traces the devolution of power over a period of time and ultimately as per the government order dated 15-7-2006 being concentrated in the hands of MLAs, who in terms of this government order is appointed as chairperson of the selection committee. In fact, the subsequent notifications have gone still further in issuing a corrigendum to allow a nominee of such MLA to function in place of the MLA as the chairperson! There cannot be any better illustration of the manner in which the power [of appointment] is sought to be relinquished in favour of the MLAs and even dealt with as though the ICDS scheme is a scheme for empowerment of MLAs rather than as a scheme for the welfare and development of children upto the age of six and nursing mothers!
68. When one views the laudable scheme of ICDS, its aims and objectives and the procedure provided for selecting Anganwadi workers, the manner in which the state government has functioned as an agent to implement the scheme only betrays its own scheme of playing power games for virtually reducing the CDPO to a non-entity and imposing overbearing assertive, virulent MLAs to act as chairpersons of the selection committees.
69. The complaint made by several writ petitioners - who are not selected candidates - and also some other representatives of the people like presidents and vice-presidents of zilla panchayat, is indicative that MLAs acting as chairpersons of the selection committees have acted in a gross arbitrary manner and have tried to naturally impose their own methods in the selections and have also totally ignored the views of the other members of the selection committee.
70. To put it in a nutshell, the government order dated 15-7-2006 is an order which does not stand scrutiny being totally at variance with the ICDS programme and guidelines and virtually giving a total go-by to the objectives of the scheme, as if a suitable or proper person is not appointed as an Anganwadi worker, who in terms In terms of paras 5.22 to 5.26 of the manual on ICDS is a key person in the implementation of the project, the scheme can go awry and the very objective of the ICDS programme is defeated.
71. When once it is found that the government order dated 15-7-2006 is totally at variance with the ICDS programme, the question of sustaining the government order dated 15-7-2006 on the premise that the state government has while exercising its executive power and acting as an agent of the central government to implement the scheme has acted in a bona fide manner, does not survive scrutiny and the government order dated 15-7-2006 has to be quashed.
71. While it is no doubt true that the state government can play a supplementary role, acting as the agent of the central government for implementation of the programme and even in terms of the charts [extracted above], it comes immediately below the central government, the role the state government is expected to play in the matter of implementation of the ICDS, is one of providing for achieving uniformity in the matter of selection of Anganwadi workers, such as providing guidelines and norms which can be followed by the selection committees in terms of the ICDS programme and at each selection centre. The state government can also elicit views of the central government in the matter of providing preference to SC/ST, widows, separated women, disabled women etc., and as to how these preferences have to be reconciled with the general requirement of an Anganwadi worker being resident of the village and selections being merit based i.e. on the basis of the performance of the candidate in the qualifying examination, which alone can pass the test of fairness in selections. Though the state government was given ample opportunity to place before the court the guidelines that it had issued to all the selection centres on such aspects, the state government has not placed such guidelines, which it had circulated or issued to all selection centres in advance. It is indicated that at certain centres, members of the selection committee had been given an option to evaluate the ability of the candidates by a method of awarding marks by each member of the committee and here again it is not made known as to on what basis each member was awarding marks and how such marks awarded by the members at the interview have been assimilated with the marks obtained by the candidates in the qualifying examination and how the overall suitability of the candidate is assessed.
73. Even in the matter of providing preferences to disadvantaged groups, unless the manner in which the preference is to be worked out is evolved and made known before hand, there is a risk of the preferred groups working to 100%, if at every centre there is a person from the disabled group.
74. Person belonging to SC or ST category/person belonging to a backward community/a widow/a separated wife etc. and if such a person has to be preferred over even a more meritorious candidate -marks wise at the S.S.L.C. examination - and in such an event, it can amount to elimination of all other candidates. The state government appears to have not bestowed any thought in such a direction for streamlining the process of selection, but appeal's to have been more obsessed with the act of loading the committees with MLAs or MLCs and have gradually moved them to the top of the selection committees in terms of the government order dated 15-7-2006!
75. ICDS programme is a central government scheme, which is sought to be implemented throughout the country through the respective state government/union territories. The annual outlay for the Implementation of the programme is to the tune of about Rs. 5,000 crore. At the state level, the annual outlay appears to be between Rs. 250 to 300 crore. It obviously envisages the outlay of a large quantity of public funds and with the laudable object of ensuring the basic nutritional requirement to infants and nursing mothers. It also seeks to provide basic education to the children at id awareness to the mothers. A scheme of such an importance and of such a magnitude is required to be implemented in its right spirit, with precision and proficiency.
76. While it is true that the act of selection of an Anganwadi worker is forming part of such a gigantic scheme may not be so important an act by itself, when viewed in isolation, and courts may not necessarily venture to examine such actions by the exercise of power of judicial review of administrative action, too obvious things cannot be lost sight of. Firstly, the implementation of the programme is also as part of exercise of executive power on the pail of the central government and through its agents - the state governments - and therefore the entire act is an act of 'state'. Secondly, it is an act at the cost of huge expenditure to the public exchequer i.e. the programme consumes a good amount of public money and therefore any arbitrary action or action which is at variance with the object and purpose of the programme, which can have the effect of affecting or jeopardizing the proper implementation of the programme is brought before the court seeking judicial review of such administrative action, it is not a matter which courts can ignore to examine. While the name of implementation of a scheme is normally the domain of the executive wing of the state and courts are not normally concerned with this, if the implementation of the scheme is either in an arbitrary manner or contrary to the very scheme, courts will have to review such actions.
77. In the present case, it. is not the correctness or the reasonableness of the scheme that is in issue before the court, but an arbitrary, illogical, irrational act on the part of the state government acting as the agent of the central government while implementing the ICDS programme. It is already found, as discussed above, as to what a vital role an Anganwadi worker will play in the implementation of the IOCS programme. While selecting Anganwadi workers for as many as 11313 Anganwadi centres which have been newly established, if the state government interferes with the implementation of the programme in a most adverse manner and whose action is totally at variance with the guidelines and the purpose of the ICDS programme, it is not a matter which can be ignored or overlooked by the courts. It is not mere selection of Anganwadi workers, as perceived by some of the petitioners at their individual level, who complained that the committee wrongly selected respondents or some other candidates instead of petitioners being selected, is bad in law, but much more than that. It is the very implementation of the scheme that is in issue before the court.. It is non-adherence to the professed scheme and the guidelines issued for the implementation of the scheme, that has necessitated examination and corrective action.
78. The government order dated 15-7-2006 and further orders/notification pursuant to the same arid the placing In position the MLA as chairperson of the selection committee and all actions taken by such committees are therefore necessarily to be held as bad in law and are required to be quashed by issue of a writ in the nature of certiorari. When once the government order dated 15-7-2006 is quashed, as a natural consequence, all further actions also fall to the ground and it will be necessary to constitute a proper committee in terms of the guidelines of the ICDS programme and to go through the process of selection afresh.
79. Therefore, it is to be held that WP Nos. 15465, 15466, 11276, 13660, 13908, 14424 and 14425 of 2006 are to be necessarily allowed and the impugned government order dated 15-7-2006 is quashed by issue of a writ of certiorari.
80. Though, normally all consequential actions also automatically fall to ground as a sequel to the quashing of this government order, the consequential effect is still required to be examined in the light of the contentions urged In the subsequent writ petitions which were filed before the court in the context of challenge to the individual selections of Anganwadi workers at each centre.
81. While allowing the writ petitions before the court wherein many other individual selections are questioned by impleading the selected candidates as parties in the writ petitions will be a natural corollary and therefore obviously all the above writ petitions are to be allowed, as a consequence of quashing of the government order dated 15-7-2006, in the light of the submissions made on behalf of the selected candidates who were not originally parties before the court, is a matter which merits examination and answer.
81. in this regard, the foremost and strongest defence put up on behalf of the selected candidates is that the selection of such other candidates having not been questioned before this court by persons said to be aggrieved, it is not necessary for this Court to pronounce on the validity of such selections but to allow the selections to remain as such, is a better alternative. What is submitted is that the quashing of such selections while can cause great harm and prejudice to the selected candidates who are already functioning for the past 1 to 2 years, it will not have any benefit to any one else and it is also submitted that it is virtually in the nature of an examination of a public interest litigation which can be undertaken only by a division bench of this Court and not a single bench. Another aspect strongly canvassed is that there is no need to affect the interest of such large number of selected candidates, who in terms of the list furnished by the learned Additional Government Advocate, total to 7194 persons, the appointments made on and after 15-7-2006 acting on the government order dated 15-7-2006 and there is absolutely no need to affect the interest of such a large number of Anganwadi workers. The affectation to such large number of Anganwadi workers is also pleaded as a ground not to interfere and to render social justice in their favour, in the sense, upsetting their appointment amounts to doing injustice to a large number of working class, such lections shall be left undisturbed. Legal support to submission is sought from the judgments of the Supreme Court to contend that quashing orders of appointment made in favour of nonparties is not proper and particularly if the candidates have not been impleaded by name and the very selection and appointment of the candidates had not been questioned before the court.
83. While it is true that in the case of selection of judicial officers to the post of munsiff magistrate, in the decided case of K.H. Siraj [supra], the Supreme Court had observed that the challenge to selection has to fail on the ground of absence of necessary parties in the array of parties, as observed in para-77 of the judgment, and that situation was not saved by seeking resort to Rule 148 of the Kerala High Court Rules, in the present situation, I am of the view that this observation is not applicable, as the present scrutiny is not exactly in the context of appointment to any post. Secondly, the examination is primarily flora the angle of the manner in which the implementation of the ICDS programme evolved by the central govrnment and being implemented through the state governments is being done. The state government acting as the agent of the central government virtually acts on behalf of the central government and any arbitrary action on t he part of the state government is as good an arbitrary action on the part of the central government itself, as the principal has to own up the action of the agent. It is not a good answer to say that the central governmenl has a very good scheme and the state government messed up, by improper or erroneous implementation of the scheme. Also the number of candidates appointed being so large, as many as 7194 and across the state, the observation made by the Supreme Court does not apply to the present situation at all. But, more importantly, what is being examined is not either the right of some of the writ petitioners who have questioned the legality of the selections at the different Anganwadi centres or it is as though the selected candidates have a right to retain the post on mere selection. In a situation of this nature, if at all it is necessary to afford an opportunity to the selected candidates and to hear them, if an examination of the subject matter before the court is likely to affect such persons who had not been earlier impleaded per se as parties to the writ petitions. Tills requirement is more than met by affording an opportunity to all the selected candidates not only by issue of a public notice fixing the date of hearing before this Court for such purpose, but also the information having reached the selected candidates through respective Anganwadi centres. Such selected candidates are heard in a representative capacity and a good number of counsel have submitted on their behalf.
84. Therefore, I am of the view that the impact of quashing of the government order dated 15-7-2006 cannot and should not be unnecessarily confined to only a few of the selected candidates selected subsequently by the process Involving the terms of the government order dated 15-7-2006, whose selections are directly questioned in the above writ petitions and others should be insulated from the consequences. When the writ petitions questioning the validity of the government order dated 15-7-2006 were filed before this court, the entire selection process under the impugned order had not yet begun nor had been completed before this Court stayed further proceedings pursuant to the government order dated 15-7-2006 and therefore there was no occasion for the petitioners to implead such selected candidates as respondents either.
85. The logic that it is not the rights of the writ petitioners that are being examining per se, but the action of the state government that is being reviewed, equally applies to distinguish the present situation from the ratio of the decision of the Supreme Court in the case of Madan Lal [supra] i.e. to hold that the petitioners have no locus to question the selection for the reason that they themselves have undergone the process of selection.
86. Reliance placed on the decision of the Supreme Court in the case of Rajesh P.U. Puthuvalnikathu [supra], laying down the proposition that if the selections were vitiated by nepotism and favouritism shown to some selected candidates, it was not necessary to cancel the entire selection en bloc and the theory of proportionality does not permit such a drastic action, is not applicable to the present situation, as firstly, the selections are not being examined from the angle of any nepotism and favouritism shown in favour of a few selected candidates, though it may be taken that in some writ petitions even such allegations are made vis-a-vis some selected candidates and the chairpersons of the selection committees, but it is over and above such considerations and in the light of the total deviation resorted to by the state government in the matter of constituting the committees for selecting Anganwadi workers and in respect of as large a number as 11313 centres, which is quite a gigantic size and a deviation from the manner of implementation of the scheme and the action of the state government in straying from the guidelines issued by the central government, which could vitiate(sic) the entire selection process for such a large number of centres, that is being examined and the position is examined comprehensively and also as a consequence of the holding the government order dated 15-7-2006 as bad in law. In addition to these aspects, these matters are not examined from the context of individual selections merit-wise, though it is found that even here, there was no uniform methodology, procedure or yardstick based on which the selections have been made, but from the context of the impact, a large variation in the methodology of selection at different selection centres could have on the implementation of the scheme. When viewed thus, the action becomes totally arbitrary and has to be quashed. The state government, in spite of repeated directions from the court to place on record the actual guidelines it had formulated and circulated to the different selection committees in the matter of the selection procedure to be followed by them, has failed to come up with any answer. Tin only inference can be that no uniform guideline had been formulated nor followed in the selection process. Viewed from this angle, the selection made to any of the 7194 Anganwadi centres from out of the total 11313 centres cannot be sustained and are to be necessarily interfered for correction in terms of the list as furnished by Sri S.Z.A. Khureshi, learned AGA appearing on behalf of the state government.
87. When once it has come to the notice of the court that there is a large scale deviation from the manner and method of implementation of the ICDS programme resorted to by the state government, having a large and adverse impact in the task of putting in place a suitable Anganwadi worker in each of the 11313 additional centres sanctioned by the central government that it is not duly performed by the state government by proper selection and notwithstanding the submission of learned Counsel for respondents that such selections are not to be frowned upon, but are required to be sustained, I am of the view that if this submission is to be accepted then the courts have failed in their duty to perform the constitutional function of playing the corrective role when needed and when the executive wing of the state has not adhered to the rule of law.
88. It may be true that the consequence of quashing the government order dated 15-7-2006 if is taken to its logical conclusion, could affect a large number of selected candidates and they may face the prospects of being replaced in many places, but that cannot be a criterion for withholding from passing necessary orders and refrain from issuing necessary directions. It cannot be that being awed by the consequential impact on the large number of selected candidates, court should refrain from performing its constitutional role envisaged under the Constitution. While it is true that we are governed by a constitutional process of socialistic democratic republic and numbers do matter in a democratic set up, it is not the rule of numbers that matter before the courts, but it is the rule of law. It is the duty of the court to uphold the rule of law even at the cost of numbers. When in the name of numbers, immunity is sought for irregularities arid illegalities and arbitrariness rules, then fairness and rule of law suffers and ultimately justice also fails. Upholding rule of law In itself is doing justice.
89. It is also required to be noticed incidentally that in several writ petitions, questioning the validity of the government order dated 15-7-2006, this Court had initially stayed the operation of this order/notification. The stay order has been issued in several wilt petitions, staying the operation of the very government order dated 15-7-2006 and the state government had also taken steps in some petitions to get the stay order vacated. Such efforts were not made in all the pending writ, petitions, wherein the state government had suffered stay orders. Developments in this regard, though were within the awareness and knowledge of the state government, as recited in the notification dated 13-7-2007 issued by the state government [a copy of which is produced at Anncxure-R17 to the statement of objections filed by the state] and the very notification also recites that the action of the state government was subject to the outcome of the decision of the court in the pending writ petitions, it is rather strange, nay, a positive act of disobedience on the part of the state government in having proceeded with the finalization of the selection pursuant to the selections made by the committees constituted under the government order dated 15-7-2006, operation of which was stayed, even in terms of the preamble to the notification dated 16-8-2007 [Annexure-R16] which recited that in WP No 15465, 13660, 14244 and 11276 of 2006, the stay order in respect of government order dated 15-7-2006 had been continued and the said writ petitions were at the hearing stage.
90. The state government has notwithstanding such awareness, proceeded to finalize the selection in terms of the very government order dated 15-7-2006, which is a very clear act of deliberate disobedience of court orders and a willful disregard of the slay order of this court.. It is this very government order dated 15-7-2006, which is now quashed and the shay order that had been granted earlier in such writ petitions is made absolute.
91. Submission made on behalf of the state government by the learned Additional Government Advocate to nevertheless sustain the selections made by different selection committees constituted by the state government under the government order dated 15-7-2006 and its subsequent modifications virtually amounts to appealing to the court to sustain a positive illegal action, a positive unsustainable action even as found in these writ petitions with regard to the validity of the very government order but also of actions taken in deliberate disregard of the court orders and when there was absolutely no scope as to why the state government and its officers to act contrary to the court stay orders and finalize the matter's in a great hurry and haste. It can only indicate the eagerness on the part of the state government not only to effectuate its order dated 15-7-2006, but also a like eagerness on the part of the selection committees to complete the selection process notwithstanding an order of stay by this court.
90. There is yet another twist in the tale here, as in terms of the communication dated 28-5-2007 from the central government, addressed to all the state governments/union territories, a copy of which is produced at Annexure-R15 to the statement of objections filed on behalf of the state government, had positively disapproved the inclusion of any MLA in the selection process of Anganwadi workers and Anganwadi helpers and in this regard had drawn attention to its earlier communication dated 2-11-2006, which reads as under:
The Anganwadi workers should be a lady (18-44 years) from the local village and acceptable in the local community. Special care should be taken in her selection so that the children of Scheduled Caste and other weaker sections of the society are ensured free access to Anganwadi. It is suggested that the AWWs in the selected project areas may be selected by a committee consisting of the District Social Welfare Officer, the BDO, the CDPO, the Medical Officer of the primary health centre, the President of the Taluka Panchayat/Block Advisory Committee, the district representative of the State Social Welfare Advisory Board and any other non-official which the State Government may consider appropriate.
purporting to be the basis on which the state government had acted for inclusion of MLAs, which action was found to be not in consonance with the earlier communication and wanted the state government and union territories report to the central government the positive corrective action taken in this regard.
93. Though it is contended on behalf of the state and selected candidates that this letter having not positively disapproved the selections made till then, by involving MLAs as members of the selection committees and therefore the selections made upto this point of time should not be interfered with, it is rather intriguing to note that the state government has gone ahead with its selection process even subsequent to the letter dated 28-5-2007 and the very list placed by the state government before this Court indicating that as many as 4604 Anganwadi workers have been selected on and after 28-5-2007, is a testimony of the state government disregarding even the directions of the central government, whose agent it is and whose scheme it was implementing. While the letter dated 28-5-2007 issued by the central government addressed to all the state governments/union territories can never be understood as a letter approving the state government's action in involving MLAs in the selection committees till then, on the other hand, it is a positive disapproval of their inclusion and therefore in the wake of such clear communication by the central government, the very inclusion of an MLA in the selection committee, while vitiates the selection process, the state government acting contrary to the court stay order and going ahead with the illegal acts constitute yet another folly.
95. While it is true that the state government acting as an agent of the central government if disregards its direction and acts beyond its authorization, it is for the central government to take such action as it may deem fit, the action taken, whether by the state government or central government, if ultimately In the context of the implementation of the scheme involving expenditure of the public funds and in such implementation, if it is found that there are gross violations even of the guidelines issued under the very scheme, the matter definitely merits judicial review and calls for corrective action. It is in tills context, the above writ petitions have been examined and answered. It is for this reason I also take the view that examination of the validity or legality of the selections made to all the 7194 Anganwadi centres notwithstanding many of the individual selections have not been questioned through writ petitions and by the very person/s who is/are not selected at the respective centres, does not amount to examination of writ petitions in the nature of a public interest litigation, but it is only as a result of consequential action that follows on the quashing of the government order dated 15-7-2006, which is very much in issue and the legality of which is questioned in several writ petitions and the consequential action of quashing this government order being taken to its logical conclusion. I am of the clear view that It is not examination of a writ petition, which is in the nature of public Interest litigation and at the best it may be an examination of the causes in a representative capacity and the consequences that befalls the respondents who are before the court also being the consequence on all other selected candidates who were not eo nomini parties before the court in the writ petitions, but stand in the same situation and the reason and logic of the decision applies to them also and therefore such selections are also required to be quashed.
97. While disregarding the directions/guidelines of the central government by its agent - state government - can be a matter for the central government for suitable action, this Court cannot overlook the disobedience on the part of the state government and its officers in discarding the order that had been passed by this Court in WP Nos. 15465, 13660, 14244 and 11276 of 2006 and which was very much in operation even in terms of the very recitation in the government order dated 16-8-2007 [Annexure-R16 to the statement; of objections filed on behalf of the state], which reads as under:
The state government is required to answer for its conduct in disobeying the stay order granted by this Court and for such purpose, the Registry is directed to register a contempt case and issue contempt notice to the respondent-authorities in WP No 13660 of 2006.
98. In the result, all the above writ petitions are allowed. Rule issued in all these petitions is made. Government order dated 15-7-2006 is quashed by issue of a writ of certiorari. So also all selections made and which are in challenge in the above writ petitions stand quashed.
99. In addition, the entire list of candidates numbering 7194 in terms of the list as furnished by the learned Additional Government Advocate appearing for the state and its officers, and persons whose selection was not directly challenged in any of the above writ petitions, is also quashed, by issue of a writ of certiorari, for the reasoning given above and the state government is required to ensure selection of suitable and proper candidates in all the Anganwadi centres in accordance with the ICDS scheme/programme alone. Names of such selected candidates are indicated as per the separate list annexed to this order and who are all taken as party respondents in these petitions in terms of the order dated 8-10-2007 passed by this Court in these writ petitions.
100. That will leave the question as to what, consequential directions are required to be issued as a result of the quashing of not only the state government order dated 15-7-2006 but also all subsequent actions taken pursuant to this order, including the selections made to a large number of Anganwadi centres. The submissions made on behalf of the selected candidates who have pleaded for equity and social justice can definitely be examined while issuing the consequential directions.
101. The central government, which has been impleaded as a party respondent in WP No 16378 of 2006 is to reexamine the Implementation of the scheme by the state government and issue necessary directions for the effective implementation of the scheme in all the states/union territories. The central government shall particularly address the issue of selection committees and to ensure that the state governments do not take law into their own hands on this aspect of selection of Anganwadi workers to the detriment, of the proper implementation of the scheme.
102. The state government to take such steps as are necessary for coordinating and effective implementation of the scheme and to restrict its functioning only to the aspects of coordination and supervision and if it is required to supplement the scheme of the central government for proper implementation, particularly in the matter of selection etc., by evolving a uniform guideline, bearing in mind the guidelines under the 1CDS programme so that the selection process is uniform at all centres i.e. the method of selection is uniform and confines its role only to this aspect and not to interfere in the actual process of implementation of the scheme, which function is clearly now given up in favour of panchayat raj institutions.
103. The state government also to keep in mind that the process of selection of Anganwadi workers is very much part of the implementation of the ICDS programme and in the matter of process of selection particularly in the matter of composition of the selection committee, it has no role to play and no business to interfere with the selection process either by constituting the committee by issue of notifications in the exercise of its executive power or otherwise, but to confine its role to the role of an agent in implementing the scheme of the central government as formulated by the central government and to perform its limited role.
104. The state government to ensure that fresh selection process is initiated for appointing suitable Anganwadi workers at all the 11313 additional centres and such process of selection to be concluded within a period of six months from the date of receipt of a copy of this order. Till fresh selections are completed and implemented, the present incumbents who are already working and the present arrangements that are in place in as many Anganwadi centres out of these 11313 additional centres, which the learned Additional Government Advocate submits are already functional, to be continued notwithstanding the quashing of the selection orders appointing Anganwadi workers in 7194 Anganwadi centres as per 1 his judgment.
105. The selection process to be made afresh in respect of these 7194 Anganwadi centres to be confined to the applicants who had already applied and who were before the selection committees, including the selected candidates and there is no need to notify afresh inviting further applications for these centres. This direction is issued in the wake of the submission made on behalf of the state government that re-notifying the vacancies will be a gigantic task involving fresh expenditure, but notifying the earlier candidates can be achieved through the selection centres without much difficulty and also in the light of the submission on behalf of the applicants/selected candidates that in view of lapse of time, many of them could be beyond the upper age limit and therefore if it is to be a case of inviting fresh applications, they will be kept out. Therefore, the state government is directed to ensure that fresh selections are confined to the earlier applicants.
101. The state government, to pay compensatory cost of Rs 2,000/- [Rupees two thousand only] to each of the writ petitioners.
102. All the writ petitions arc allowed in the above terms. Rule made absolute.