Punjab-Haryana High Court
Manju Devi vs State Of Haryana And Ors on 1 December, 2022
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
LPA-384-2018 (O&M)
Manju Devi ......Appellant(s)
Versus
State of Haryana & others ......Respondent(s)
(2) LPA-1488-2016 (O&M)
Shiksha Rani ......Appellant(s)
Versus
State of Haryana & others ......Respondent(s)
(3) LPA-466-2019 (O&M)
State of Haryana & others ......Appellant(s)
Versus
Bimla Devi & another ......Respondent(s)
(4) CWP-32277-2019
Rekha ......Petitioner
Versus
State of Haryana & others ......Respondent(s)
Reserved on: 21.11.2022
Pronounced on : 01.12.2022
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
HON'BLE MS.JUSTICE HARPREET KAUR JEEWAN
Present:- Ms.Jai Shree Kaushik, Advocate, for
Mr.Ajay Chaudhary, Advocate
for the appellant in LPA-384-2018.
Mr.R.K.Selwan, Advocate, for
Mr.Sardavinder Goyal, Advocate,
for the appellant in LPA-1488-2016
and for the respondents in LPA-466-2019.
Mr.Randhir Singh, Addl.A.G., Haryana.
*****
G.S. Sandhawalia, J.
The issue in the present set of cases is whether an Anganwari Worker is entitled to continue in service having been elected as a Sarpanch or as a Member of the Municipal Committee. The Three learned Single 1 of 8 ::: Downloaded on - 06-12-2022 00:41:13 ::: LPA-384-2018 (O&M), LPA-1488-2016 (O&M), LPA-466-2019 (O&M) & CWP-32277-2019 2 Judges of this Court have taken the view that an Anganwari Worker is not entitled to continue in service on account of having been elected and therefore, held that the termination from the said post was justified whereas one learned Single Judge has taken a contrary view.
The facts in brief in the cases are to the extent that in LPA- 1488-2016, challenge is to the order passed in CWP-12866-2016 titled Shiksha Rani Vs. State of Haryana & others, decided on 28.07.2016 whereby the learned Single Judge dismissed the writ petition wherein challenge was raised to the order dated 16.06.2016 wherein services of the writ petitioner were dispensed with by the District Programme Officer, Women & Child Development Department, Yamuna Nagar on account of the fact that show cause notice had been issued that the writ petitioner had a choice as to which of the 2 posts is to be retained as she was elected to the post of Sarpanch of Village Kalyanpur.
The defence of the State was that an Anganwari Worker has to work from 8.45 AM to 2.45 PM and have to discharge their duties. There were instructions dated 07.02.2012 of the Government of India that elected Members of the Panchayat and local bodies would take them away from the core activities and would affect the delivery of the services under the Integrated Child Development Scheme (ICDS). Similarly, the Director, Women & Child Development Department, Haryana had also issued instructions vide letter dated 31.03.2016, clarifying that Anganwari Workers could contest elections but after elections they cannot work on 2 posts. It was accordingly justified that the show cause notice was issued on 21.04.2016 giving an option to the writ petitioner as to which of the services she would opt for. Another learned Single Judge has taken a 2 of 8 ::: Downloaded on - 06-12-2022 00:41:13 ::: LPA-384-2018 (O&M), LPA-1488-2016 (O&M), LPA-466-2019 (O&M) & CWP-32277-2019 3 similar view in CWP-6332-2016 titled Smt. Manoj Kumari Vs. State of Haryana & others, decided on 12.07.2016.
In LPA-384-2018, similar view was taken by the learned Single Judge in CWP-1566-2018 decided on 25.01.2018 while dismissing the writ petition wherein challenge had been raised to the show cause notice dated 14.03.2017 regarding the resignation as Anganwari Worker as she was also elected as a Councillor of the elected Member of Municipal Committee Mahendergarh and that her services had been terminated w.e.f. 07.07.2016 on account of holding 2 posts and her failure to appear before the authorities. The directions dated 27.06.2016 (Annexure P-2) was also subject matter of challenge that she had not given any response that she had to resign from either of the 2 posts. The learned Single Judge relied upon the earlier view which he had taken in Smt. Bali Devi Vs. State of Haryana, 2014 (1) RCR (1) 1034 wherein he had dismissed the writ petition whereby challenge was raised to the termination order of the service of an Anganwari Worker on account of being elected as a Sarpanch. He also relied upon another view taken by another learned Single Judge in Jatinder Kaur Vs. State of Haryana, 2014 (3) SCT 717 who in turn had relied upon the earlier view and rejected the challenge whereby option had been given to Anganwari Worker to resign and continue as a Member of the Block Samiti. The judgment of the Apex Court in Anokh Singh Vs. Punjab State Election Commission, 2011 AIR (SC) 230 was also distinguished.
In CWP-3227-2019 titled Rekha Vs. State of Haryana & others, which has been tagged along with the present cases, challenge is to the order dated 16.07.2019 (Annexure P-3) wherein on account of the fact 3 of 8 ::: Downloaded on - 06-12-2022 00:41:13 ::: LPA-384-2018 (O&M), LPA-1488-2016 (O&M), LPA-466-2019 (O&M) & CWP-32277-2019 4 that she had been appointed as an Anganwari Worker which was subject to the decisions of the High Court in CWP-16396-2016 titled Suman Devi Vs. Union of India & others, decided on 07.09.2018, her services were terminated with immediate effect and thus, challenge had been raised that there were contrary views, as such.
In LPA-466-2019 titled State of Haryana & others Vs. Smt. Bimla Devi & another, challenge by the State of Haryana is to the order of the learned Single Judge passed in CWP-4769-2016 dated 10.09.2018 wherein writ petition filed by Smt.Bimla Devi was allowed and the letter whereby her services were terminated on 20.06.2013 was quashed including the letter dated 07.09.2010. The learned Single Judge relied upon the judgment of the Apex Court in Anokh Singh (supra), to come to the conclusion that it had been held by the Apex Court that Anganwari Workers do not hold a civil post and thus, are not holding any office of profit under the State Government. Resultantly, it was held that they have every right to contest election and she was held entitled to continue to hold the post of Anganwari Worker. The letter dated 07.09.2010 was quashed and directions were issued to reinstate the writ petitioner with continuity in service and all consequential benefits. Resultantly, the issue is before this Court due to the contrary views taken by three different Single Judges on one side in contrast to the other view by another Judge.
Apparently, the matter had also come before a Co-ordinate Bench of this Court in LPA-2073-2013 titled Kanta Devi Vs. State of Haryana & others, wherein a bunch of cases were decided and the appeals of the Anganwari Workers were dismissed upholding the order of the learned Single Judge wherein removal from the elected post had been done 4 of 8 ::: Downloaded on - 06-12-2022 00:41:13 ::: LPA-384-2018 (O&M), LPA-1488-2016 (O&M), LPA-466-2019 (O&M) & CWP-32277-2019 5 on account of the fact that there was an appointment order as an Anganwari Worker. The reasoning given was that there was a responsibility to impart education to the children between the age of 3 to 5 years and a Sarpanch has to perform other duties and may be called for Gram Panchayat's emergent meetings or visit other offices etc. and the availability is not possible. Reliance was also placed upon letter dated 07.02.2012. Relevant portion of the judgment reads as under:
"It is also on record that before contesting election, the appellants in these cases sought permission from the department, which was declined. However, they went ahead and contested election for the post of Sarpanch.
In some cases, permission was granted to contest election. It appears that the said orders were passed in ignorance to the contents of letters dated 26.5.2010 and 4.6.2010. On the basis of consent given under above circumstances, no benefit can be given to the such like candidates.
It is also an admitted fact that Anganwadi Worker is not a holder of a civil post and does not have the protection of Article 311 of the Constitution in matters regarding her removal.
We are satisfied that duties of Sarpanch and Anganwadi Worker can not well go together. Anganwadi Worker is responsible to impart education to the children between age of three and five years. In a way, she is supposed to be present in the school during the specified hours. If there is a call from other residents asking the Sarpanch to perform other duties, may be to call Gram Panchayat's emergent meetings or visit other offices etc., probably that is not possible.
In view of facts mentioned above, no case is made out for interference.
All the appeals are dismissed."
Apparently, the matter was taken to the Apex Court also in SLP (C) No. 13248/2014 and the same was dismissed on 21.07.2014. The said fact was never brought to the notice of the learned Single Judges. The 5 of 8 ::: Downloaded on - 06-12-2022 00:41:13 ::: LPA-384-2018 (O&M), LPA-1488-2016 (O&M), LPA-466-2019 (O&M) & CWP-32277-2019 6 fact also remains that it would have a binding effect on them especially the view taken whereby the learned Single Judge has allowed the writ petition in Bimla Devi's case (supra).
A perusal of the judgment would also go on to show that the letter dated 07.09.2010 had been quashed though admittedly, a Civil Suit had already been filed challenging the validity of the said letter which was dismissed on 09.05.2013 and upheld on 21.05.2015 before the District Judge. Thereafter the writ petition had been filed. The learned Single Judge, in our considered opinion, fell in error in entertaining the writ petition. Once the Civil Suit had been dismissed and the Regular Second Appeal had not been filed to challenge the same, the writ petitioner could not have been allowed to change the track and forum and challenge the said letter against which challenge had failed before the Civil Court. Therefore, the judgment is not sustainable on that account also and reliance can be placed upon the principle of relegation of remedy as has been held by the Full Bench in Sukhi Ram Vs. State of Haryana, 1982 PLR 717. The relevant para reads as under:
"10. Coming now to the second distinct category where the right or obligation giving rise to the industrial dispute springs from a source other than the Act - that is, under the general law (including therein any other statutues) then under principle, (2) the workman is expressly given two alternatives remedies. In such a case, it is in his discretion to either make resort to the ordinary jurisdiction of the civil Courts or to seek the remedies under the Act. However, he must distinctly elect his remedy. It is now authoritatively settled that he cannot have both. He is to choose one or the other."
Even otherwise, reliance upon Anokh Singh (supra) would not be applicable in as much as it was a case wherein the issue was of 6 of 8 ::: Downloaded on - 06-12-2022 00:41:13 ::: LPA-384-2018 (O&M), LPA-1488-2016 (O&M), LPA-466-2019 (O&M) & CWP-32277-2019 7 debarring from contesting the elections by Lambardars and Anganwari Workers and it had been held by this Court that Anganwari Workers are permitted to participate in elections as Sarpanch but Lambardars were disqualified. The issue before the Apex Court was regarding the fact whether the person could be debarred for contesting the election of a Member of Panchayat and whether the Lambardars could be free to contest the elections and whether it would a disqualification under the provisions of Section 11(g) of the State Election Commission Act, 1994 and whether they were holding office of profit or not. The Apex Court, thereafter, modified the said order that even Lambardars could be permitted to seek elections of Panchayats. However, the Apex Court was never seized of the issue that whether 2 posts could be held simultaneously. We are of the considered opinion that the view taken in Kanta Devi (supra) is a more probable view and a practical approach. The fact that the appointment as Anganwari Worker, as noticed, entails certain amount of responsibility and a person who is politically active would not be able to give that kind of devotion to the said duties which are required on having been elected. One of the learned Single Judges has found that it is also a matter of policy that the State Government would prefer that the person should choose after being elected as to which post he is to hold. Therefore, in such circumstances, once the Anganwari Workers were not resigning from their services who were elected as Member of Panchayat, which in our considered opinion cannot be faulted in any manner as Anganwari Workers are performing various duties and even the Union of India has held that it would adversely affect the services under the ICDS Scheme.
7 of 8 ::: Downloaded on - 06-12-2022 00:41:13 ::: LPA-384-2018 (O&M), LPA-1488-2016 (O&M), LPA-466-2019 (O&M) & CWP-32277-2019 8 In such circumstances, we are of the considered opinion that the view taken by the learned Single Judges, dismissing the writ petitions, cannot be faulted. Accordingly, LPA-1488-2016, LPA-384-2018 and CWP-32277-2019 are liable to be dismissed while the appeal filed by the State bearing LPA-466-2019 is allowed and the judgment of the learned Single Judge in CWP-4769-2016 dated 10.09.2018 is set aside.
(G.S. SANDHAWALIA)
JUDGE
01.12.2022 (HARPREET KAUR JEEWAN)
Sailesh JUDGE
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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