Roshini Devi vs State & Ors on 26 April, 2017

[Cites 14, Cited by 0]

Rajasthan High Court - Jodhpur

Roshini Devi vs State & Ors on 26 April, 2017

1. By way of this writ petition, the petitioner has questioned the legality of the action of the respondents in granting license in favour of the fourth respondent to operate Indian Made Foreign Liquor (IMFL) Retail Shop for the location Zone No.3 of Churu district.

(2 of 12) [CW-3915/2017]

2. Precisely, the challenge is made by the petitioner on the ground that the fourth respondent is employed as ASHA Sahyogini under National Rural Health Mission (NRHM) and therefore, was not eligible to apply for the IMFL Retail Shop as per Eligibility Condition No.1 (vii) of the Guidelines issued by the Department of Excise, Government of Rajasthan.

3. The Condition No. 1 (vii) of the Guidelines reads as under:-

"jkT; ljdkj@ dsUnz ljdkj @ LFkkuh; fudk;ksa @ vU; fdlh Hkh jktdh; vFkok v)Zjktdh; laLFkku esa lsokjr O;fDr jktdh; vf/kdkfjrk ds vykok O;fDrxr {kerk esa vuqKki= tkjh djus ds fy;s ik= ugha gksaxsA**

4. Learned counsel appearing for the petitioner submitted that the key component of NRHM is to provide every village in the country with a trained community female activist and the ASHA Sahyogini employed under the Mission is responsible to promote good health practices and provide a minimum package of curative care as appropriate and feasible for the level and make timely referrals. Learned counsel would submit that ASHA Sahyogini employed under the NRHM is a Government employee for all intent and purposes and therefore, in terms of the Condition No. 1

(vii) of the Guidelines, the fourth respondent was ineligible to participate in the process of allotment of IMFL Retail Shop. Learned counsel submitted that the eligibility conditions laid down for grant of license have to be adhered to strictly and therefore, only the person who fulfills the eligibility criteria and satisfy the requirement laid down under the guidelines could file the application for grant of license. Learned counsel submitted that ignoring the ineligibility in terms of clause 1 (viii) of the Guidelines, the fourth respondent could not have been included in (3 of 12) [CW-3915/2017] the process undertaken for grant of license. In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of "Ashok Lanka and Anr. Vs. Rishi Dixit and Ors." AIR 2005 SC 2821. Learned counsel submitted that despite representation being made, the respondents have not initiated any action for cancellation of the license issued in favour of the fourth respondent. Learned counsel would submit that the petitioner being next empanelled candidate, she is bound to be allotted the shop in question if the license issued in favour of the fourth respondent is cancelled on account of her ineligibility.

5. On the other hand, learned counsel appearing for the Department of Excise contended that the Clause 1 (vii) debars only those candidates from participating in the process of issue of license to operate of IMFL Shop who are substantively appointed in service under the State Government/ Central Government/ Semi Government Institutions/ Local Bodies etc. or who are holding the civil posts. Learned counsel submitted that on the complaint made by the petitioner, the matter was inquired into and it was revealed that the fourth respondent is engaged as ASHA Sahyogini at the Anganbadi Centre, Lohasana Bada for an honorarium of Rs.1850/- and she is not a regular employee of the State Government or Central Government. Learned counsel submitted that under NRHM, ASHA Sahyogini is a voluntary worker who gets performance linked incentives and the honorarium paid is linked with her performance indicators, cannot be treated to be Government servant and thus, the action of the (4 of 12) [CW-3915/2017] respondent in granting license in her favour does not suffer from any infirmity or illegality so as to warrant interference by this Court. In support of the contentions, learned counsel has relied upon the decisions of the Hon'ble Supreme Court in "Phool Badan Tiwari and Others Vs. Union of India and Others" (2003) 9 SCC, 304, "Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and Others" (2006) 2 SCC, 482, "State of Karnataka and Others Vs. Ameerbi and Others" (2007) 11 SCC, 681 and the Bench decisions of this Court in "Bidami Devi Vs. State of Rajasthan and Others" (D.B.Civil Special Appeal (W) No. 663/2006 decided vide order dated 15.9.16 and "Rajendra Singh Rathore Vs. State of Rajasthan" (2015) Supreme (Raj.) 92.

6. Mr. Harish Purohit, learned counsel appearing on behalf of the fourth respondent while adopting the arguments advanced on behalf of the counsel appearing for the State submitted that under the Condition No. 1 (iv) only those persons who are employed under the State who are holding the civil post under the State Government/ Central Government or the person employed in Local Bodies and the Government or Semi Government Institutions under the relevant recruitment rules, are covered. Learned counsel submitted that the employment as Government servant presupposes payment of salary and not honorarium and therefore, the fourth respondent who is engaged as ASHA Sahyogini on honorarium basis under a scheme cannot be treated to be a person in service of the Central or State Government. In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in Ameerbi's case (supra). Learned (5 of 12) [CW-3915/2017] counsel submitted that to avoid any controversy, the fourth respondent has already resigned from her engagement as ASHA Sahyogini.

7. Replying the arguments advanced by the learned counsel appearing for the respondents, learned counsel for the petitioner contended that the condition incorporated nowhere provides that the person employed who is debarred from participating in the process of allotment of IMFL Shop should be a permanent employee of the Government holding the civil post and thus, nothing can be read in the condition incorporated as suggested by the respondents, which is not there. Learned counsel submitted that the guidelines issued by the Government includes all sorts of employment and therefore, giving restricted meaning to Clause 1

(viii) of the Guidelines would be violative of the true spirit of the provision incorporated. Learned counsel submitted that rule of literal interpretation has to be applied and no departure therefrom is permissible. In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of "B.Premanand & Ors. vs. Mohan Kolkal & Ors.", AIR 2011 SC 1925. Learned counsel submitted that the fourth respondent and her likes employed as ASHA Sahyogini in the project undertaken by the Central Government are working under direct control of the state authorities which shows that there exists a relationship of employer and employee between them. Learned counsel submitted that merely because the fourth respondent is being paid honorarium and not the remuneration as such, it cannot be said that there is no relationship of employer and employee between (6 of 12) [CW-3915/2017] the Government and the fourth respondent. In support of the contention, learned counsel has relied upon decisions of the Hon'ble Supreme Court in "District Rehabilitation Officer and Ors. Vs. Jay Kishore Maity and Ors." AIR 2007 SC 290 and "Davinder Singh and Ors. Vs. State of Punjab and Ors." JT 2010 (10) SC 294 and a decision of this court in the matter of "Iswhar Singh and Ors. Vs. State of Rajasthan and Ors." 2015 (2) CDR 545 (Raj.). Referring to the meaning of "employee" as contained in Black's Law Dictionary, learned counsel submitted that a person who works in service of another person (the employer) under an express or implied contract of hire under which the employer has right to control the details of the work performance has to be treated as an employee and thus, the ASHA Sahyogini engaged for performing the specified work under the direct control of the Government has to be treated a person employed by the Government and thus, the contention raised on behalf of the respondents giving restricted meaning to clause 1 (vii) of the Guidelines is devoid of any merit.

8. I have considered the rival submissions of the learned counsel for the parties and perused the material on record.

9. Indisputably, the Clause 1 (vii) of the Guidelines debars the persons in-service of the State Government/ Central Government/ Local Bodies and in any other Government or Semi Government Institutions from applying for the license to operate IMFL and Beer Shop in their individual capacity.

10. The only question comes up for consideration of this court is whether the fourth respondent who has been engaged as ASHA (7 of 12) [CW-3915/2017] Sahyogini under the NRHM Scheme of the Central Government on payment of fixed honorarium, neither governed by the statutory service rules nor holding the civil post under the Central or the State Government can be said to be a government servant.

11. As a matter of fact, the question with regard to the status of a person engaged on contractual basis by the Government, not governed by the relevant service rules and not holding the civil post has been dealt with by the Hon'ble Supreme Court time and again in various decisions wherein after due consideration it has been categorically held that a contractual employment not governed by the statutory rules and the persons not holding the civil posts cannot be treated to be a government servant.

12. In the matter of "Roshanlal Tandon vs. Union of India", AIR 1967 SC 1889, a Constitution Bench of Hon'ble Supreme Court while considering the nature of the rights possessed by a government servant and also his status after his appointment to a post under the government, held:

"(6)... It is true that the origin of government servant is contractual. There is an offer and acceptance in every case.

But once appointed to his post or posts the government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not be mere agreement of the parties. The emolument of the government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government the consent of the employee. It is true that Article 311 imposes constitutions restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship (8 of 12) [CW-3915/2017] is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. ....xxxxxx..." (emphasis supplied)

13. In Girish Jayantilal Vaghela's case (supra), where the petitioner therein was appointed as Drug Inspector on short term contract basis on a fixed period of six months from the date of joining or till the candidate selected by the Union Public Service Commission joined duties on regular basis , whichever was earlier claimed relaxation in age admissible to the Government servant upto five years in accordance with the instructions issued by the Central Government, the Hon'ble Supreme Court while dealing with various features relevant for determining the status of an employee as a Government servant, observed:

"19. It, therefore, follows that employment under the Government is a matter of status and not a contract even though the acquisition of such a status may be preceded by a contract, namely, an offer of appointment is accepted by the employee. The rights and obligations are not determined by the contract of the two parties but by statutory rules which are framed by the Government in exercise of power conferred by Article 309 of the Constitution and the service rules can be unilaterally altered by the rule-making authority, namely, the Government.

....xxxxxx.....

21. It is neither pleaded nor is there any material to show that the appointment of Respondent 1 had been made after issuing public advertisement or the body authorised under the relevant rules governing the conditions of service of Drugs Inspectors in the Union Territory of Daman and Diu had selected him. His contractual appointment for six months was dehors the rules. The appointment was not made in a manner which could even remotely be said to be compliant with Article 16 of the Constitution. The appointment being purely contractual, the stage of acquiring the status of a government servant had not arrived. While (9 of 12) [CW-3915/2017] working as a contractual employee Respondent 1 was not governed by the relevant service rules applicable to Drugs Inspector. He did not enjoy the privilege of availing provident fund nor was he entitled to any pension which are normal incidents of a government service. Similarly, he could neither be placed under suspension entitling him to a suspension allowance nor could he be transferred. Some of the minor penalties which can be inflicted on a government servant while he continues to be in government service could not be imposed upon him nor was he entitled to any protection under Article 311 of the Constitution. In view of these features it is not possible to hold the Respondent 1 was a government servant.

..x.xxxxxx........

24. For the reasons discussion above, we are clearly of the opinion that Respondent 1 cannot be said to be a government servant as he was working on contract basis and, therefore, he was not eligible for any relaxation in upper age-limit. The view taken by the High Court is clearly erroneous in law and is liable to be set aside." (emphasis supplied)

14. In Ameerbi's case (supra), the Hon'ble Supreme Court while dealing with the issue as to the Anganwadi workers engaged under the Scheme are holders of civil post so as to make them entitled to invoke the jurisdiction of Karnataka State Administrative Tribunal, observed:

"20. Anganwadi workers, however, do not carry on any function of the State. They do not hold post under a statute. Their posts are not created. Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Article 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional scheme exists. ......xx..

....xxxxxx..

29. Appointments made under a scheme and recruitment process being carried out through a committee, in our opinion, would not render the incumbents thereof holders of civil post. Our attention has not been drawn to any rule or regulation governing the mode of their recruitment. Some statements in this behalf have been made by the interveners but for the reasons stated hereinabove, we cannot enter thereinto. A distinction must be made about a post created by (10 of 12) [CW-3915/2017] the Central Government or the State Governments in exercise of their power under Articles 77 and 162 of the Constitution of India or under a status vis-a-vis cases of this nature which are sui generis. Terms and conditions of services of an employee may be referable to Acts of appropriate legislature. The matter may also come within the purview of Article 309 of the Constitution of India as proviso appended thereto confers power upon the President or the Governor of a State or other authority, who may be delegated with such power, to make rules during the interregnum." (emphasis supplied) Accordingly, the court held that Anganwadi workers are not holder of any civil post.

15. In Badami Devi's case (supra) , a Bench of this court held that engagement of the Anganwadi worker as agents of the Government for dissemination of welfare scheme with regard to woman and children on contractual basis do not hold a civil post and are not government employees.

16. Similarly, in Rajendra Singh Rathore's case (supra), a Division Bench of this court while considering the issue with regard to nature of employment of various categories of employees working in various capacities in the NRHM categorically held that they cannot be said to be Government servant as they were working on contract basis.

17. In the backdrop of the position of law settled as aforesaid, adverting to the facts of the present case, admittedly, the fourth respondent has been engaged as ASHA Sahyogini under NRHM launched by the Government of India and Government of Rajasthan to address the health needs of rural population specially vulnerable sections of the society. To achieve the objectives and goal of providing quality health care for the poor and oppressed section of the society the new band of community based (11 of 12) [CW-3915/2017] functionaries named as Accredited Social Health Activist (ASHA) was proposed in NRHM. In this proces, in each Anganwadi Centre, apart from the Angawadi worker and Sahayoka one additional worker named Sahyogini was inducted to provide door to door information and services of Nutrition Health Pre School Education. Under the NRHM, ASHA Sahyogini is a voluntary worker who gets performance linked incentives. The honorarium is linked with the performance indicators of ASHA Sahyogini. If she works as per the expected standards she earns the fixed monthly honorarium Rs.1850/-. Apart from the above package, she also gets prices for extra ordinary performance from untied funds. The ASHA Sahyogini is not the post created under any of the services of the State nor any of the Service Rules governing the various services under the State are applicable to them. Thus, taking into consideration the nature of engagement of ASHA Sahyogini under NRHM Scheme, the fourth respondent cannot be said to be a person in service of the Government or holding any civil post under the Centre or the State Government and thus, she cannot be held ineligible to participate in the process initiated by the respondents for grant of license to operate the IMFL shop in question by virtue of Condition No.1 (vii) of the Guidelines.

18. There is yet another aspect of the matter. The respondents have taken a categorical stand that the bar as contained in clause 1 (vii) has been created so as to debar the persons who are government servant or holding the civil post and whose services are governed by their respective service rules, appears to be plausible and acceptable inasmuch as, the persons who are (12 of 12) [CW-3915/2017] engaged on contractual basis under a Scheme or otherwise cannot be treated to be persons in service of the Government. In the considered opinion of this court, if the extended meaning is given to the clause so as to include the contractual employment with the Government within the purview of the bar created, it would render the provision too harsh inasmuch as, in that case even the persons whose contractual engagement with the Government is liable to be brought to an end at any time, shall also stand deprived from participating in the process of allotment.

19. In view of discussion above, the writ petition lacks merits, it is hereby dismissed. No order as to costs.

(SANGEET LODHA)J. Aditya/

Unlock Advanced Research with PRISMAI

Rajasthan High Court - Jodhpur