Suman Lata vs Govt. Of Nct Delhi & Ors.
2015 Latest Caselaw 1739 Del

$~S-1
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision : February 27, 2015

+                               W.P.(C) 557/2014

      SUMAN LATA                                            ..... Petitioner
              Represented by:         Mr.R.K.Shukla, Advocate for
                                      Mr.U.Srivastava, Advocate

                                       versus

      GOVT. OF NCT DELHI & ORS.                     ..... Respondents
               Represented by: Ms.Ferida Satarwala, Advocate for
                               GNCTD

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR

PRADEEP NANDRAJOG, J. (Oral)

1. Under orders of the Chief Justice the reference made by the learned Single Judge has been placed before us.

2. The claim of the writ petitioner : Suman Lata, is pleaded on the fact that the respondents issued an advertisement inviting applications to appoint honorary Anganwadi Helpers in the year 2004 and in response thereto she applied and was interviewed. A panel was prepared somewhere in the year 2006-07 in which her name was at serial No.38. Whereas honorary appointments were made initially by offering the appointment to the empanelled candidates up to serial No.23 of the select list and thereafter of some other persons from amongst the empanelled candidates (the serial number of these candidates has not been indicated). The grievance is to the list being scrapped all of a sudden in the year 2012. The pleading would show

that Suman Lata learnt that one Ms.Krishna Dabas at Anganwadi Centre No.46 was due to retire and she is claiming appointment at said Anganwadi Centre.

3. Before approaching this Court, Suman Lata had predicated her claim before the Central Administrative Tribunal by filing an Original Application which was registered as OA No.4106/2013. The same was rejected by the Central Administrative Tribunal on December 05, 2013, holding that in view of the law declared by the Supreme Court in the decision reported as (2007) 11 SCC 681 State of Karnataka & Ors. Vs. Ameerbi & Ors., in which it was held that Anganwadi workers appointed from amongst the local inhabitants under the Integrated Child Development Service (ICDS) Programmes, would not be holders of a civil post and thus any claim made by them regarding their employment or service as Anganwadi workers would not lie before the Administrative Tribunals constituted under the Administrative Tribunals Act, 1985, the claim by Suman Lata would not lie before the Administrative Tribunal.

4. Thereafter Suman Lata filed the instant writ petition, which was listed before the learned Single Judge.

5. Making a reference to a Larger Bench vide order dated February 04, 2015, the learned Single Judge has noted the definition of 'service matters' as defined in Section 3(q) of the Administrative Tribunals Act, 1985; para 99 of the Constitution Bench decision of the Supreme Court reported as AIR 1997 SC 1125 L.Chandra Kumar Vs. UOI & Ors.; the decision of a three Judge Bench of the Supreme Court, paras 3 to 6 whereof have been quoted; and the law declared in Ameerbi's case. Noting the decision of the Supreme Court reported as (1989) 2 SCC 754 UOI & Anr. Vs. Raghubir Singh (Dead) by LRs and interpreting the same to lay down the law that a decision of a Larger Bench would prevail over the one pronounced by a Smaller Bench; finding an

apparent conflict between the decision reported as 1992 (4) SCC 432 UOI & Ors. Vs. Deep Chand Pandey & Anr. authored by a three Judge Bench and the two Judge Bench decision in Ameerbi's case, the reference has been made as under:-

―(i) Whether any and every employment of a person with the Union of India in terms of Section 3(q) of the Act, including of the such persons as Anganwadi workers/helpers, will or will not be covered for being decided by the Tribunal as per Section 14 of the Administrative Tribunal Act, 1985, and whether this question is to be answered by holding that the issues of service conditions of Anganwadi workers/helpers in the employment of the Govt. of NCT of Delhi will have to be decided by the Tribunal in view of the judgment of the Division Bench of three Judges in the case Deep Chand Pandey (supra), and that it is not to be decided by the Tribunal though so held by the Division Bench of two Judges in the case of Ameerbi (supra).‖

6. Section 14 of the Administrative Tribunal Act, 1985 reads as under:-

"14. Jurisdiction, powers and authority of the Central Administrative Tribunal.-

(1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts except the Supreme Court in relation to--

(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian;

(b) all service matters concerning -

(i) a member of any All-India Service; or

(ii) a person not being a member of an All-India Service or a person referred to in clause (c)

appointed to any civil service of the Union or any civil post under the Union; or

(iii) a civilian not being a member of an All-India Service or a person referred to in clause (c) appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation or society owned or controlled by the Government;

(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause

(ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation or society or other body, at the disposal of the Central Government for such appointment.

Explanation. - For the removal of doubts, it is hereby declared that references to ―Union‖ in this sub-section shall be construed as including references also to a Union territory.

(2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations or societies owned or controlled by Government, not being a local or other authority or corporation or society controlled or owned by a State Government: Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub- section in respect of different classes of, or different categories under any class of, local or other authorities or corporations or societies.

(3) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation or society, all the jurisdiction, powers and authority exercisable immediately before that date by all courts except the Supreme Court in relation to-

(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation or society; and

(b) all service matters concerning a person other than a person referred to in clause (a) or clause (b) of sub-section (1) appointed to any service or post in connection with the affairs of such local or other authority or corporation or society and pertaining to the service of such person in connection with such affairs.‖

7. The Section uses the expressions 'civil service' and 'civil post', and vests exclusive jurisdiction under the Central Administrative Tribunal to decide recruitment related as also 'service matters' concerning civil service or a civil post under the Union. The Act neither defines what would be 'a civil service' or a 'civil post' or for that matter a 'post'. 'Service matters' has been defined by Section 3(q) of the Administrative Tribunal Act, 1985. It reads as under:-

―service matters‖ in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation owned or controlled by the Government, as respects-

(i) remuneration (including allowances), pension and other retirement benefits;

(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;

(iii) leave of any kind;

      (iv)    disciplinary matters; or

      (v)     any other matter whatsoever;‖

8. To answer the reference, and which would subsume whether there is any conflict in the law declared in Ameerbi's case and Deep Chand Pandey's case, as has been prima-facie opined to exist by the learned Single Judge, we need to note that as held by the Constitution Bench of the Supreme Court in the decision reported as AIR 1967 SC 884 State of Assam & Ors. Vs. Kanak Chandra Dutta, answering the question whether a 'Mauzadar' appointed by the State of Assam vested with the responsibility of collecting revenue of a Mouza, was or was not the holder of a civil post under the State of Assam and hence was entitled or not to the constitutional protection of Article 311(2) of the Constitution of India; the dismissal admittedly being without complying with the provisions of Article 311(2) of the Constitution of India, in paras 9 and 10 of the opinion, the Supreme Court opined as under:-

―9. The question is whether a Mauzadar is a person holding a civil post under the State within Art. 311 of the Constitution. There is no formal definition of "post" and "civil post". The sense in which they are used in the Services Chapter of Part XIV of the Constitution is indicated by their context and setting. A civil post is distinguished in Art. 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State. See marginal note to Art. 311. In Art. 311, a member of a civil service of the Union or an all-India service or a civil service of a State is mentioned separately, and a civil post means a post not connected with defence outside the regular civil services. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State. See the marginal notes to Arts. 309, 301 to 311. The heading and the sub-heading of Part XIV and Chapter I

emphasise the element of service. There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post.

10. In the context of Arts. 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds "office" during the pleasure of the Governor of the State, except as expressly provided by the Constitution. See Art. 310. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post.‖

9. Pithily put, the judgment guides that a post is an office or a position under the State to which duties in connection with the affairs of the State are attached. A post may be created before the appointment or simultaneously with it. Most fundamentally to be noted in the decision is the legal proposition that whereas a post is an employment, but every employment would not be a post, and that a post under the State or the Union means a post under the administrative control of the State.

10. In what manner the legal principle stated in para 9 and 10 of the

decision, needs to be applied on the given facts is illuminated in paragraph 11 of the decision, which reads as under:-

―11. Judged in this light, a Mauzadar in the Assam Valley is the holder of a civil post under the State. The State has the power and the right to select and appoint a Mauzadar and the power to suspend and dismiss him. He is a subordinate public servant working under the supervision and control of the Deputy Commissioner. He receives by way of remuneration a commission on his collections and sometimes a salary. There is a relationship of master and servant between the State and him. He holds an office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State are attached, an office which falls vacant on the death or removal of the incumbent and which is filled up by successive appointments. He is a responsible officer exercising delegated powers of Government. Mauzadars in the Assam Valley are appointed Revenue Officers and ex-officio Assistant Settlement Officers. Originally, a Mauzadar may have been a revenue farmer and an independent contractor. But having regard to the existing system of his recruitment, employment and functions, he is a servant and a holder of a civil post under the State.‖

11. The decision of the Supreme Court in Deep Chand Pandey's case, which was authored by a three Judge Bench, was dealing with the issue whether the claim by casual typists engaged on daily wages pertaining to the termination of their service, with 'additional claim of having acquired a temporary status and thus a right to continue in employment of the Union' could be entertained as a service related dispute by the Administrative Tribunal. The Madhya Pradesh High Court had directly entertained a writ petition and allowed the same. The Supreme Court held that the High Court did not have the jurisdiction to entertain the writ petition. It was held that the writ petitioners : the respondents before the Supreme Court, had to approach the Administrative Tribunal.

12. Whereas the respondents before the Supreme Court urged that engaged only on casual basis, they could not be said to be holding any civil post under

the Union of India and thus urged that the High Court was the only Court available to them. The Union of India argued with reference to Section 3(q) of the Administrative Tribunal Act, 1985 and relied upon the parliamentary debate which took place in the Rajya Sabha on the 9 th to 11th November, 1976, where the then Minister for Law, who was piloting the bill, clarified that anything relating to conditions of service if it related to a claim for a status under the Union, would be a service matter, requiring the issue to be decided before the Administrative Tribunal.

13. In other words, the decision in Deep Chand Pandey's case, which we note has not dealt with the issue of what is a civil service and what would be a civil post, and hence has not made a reference to the Constitution Bench decision in Kanak Chandra Dutta's case (supra), would be an authority on the point that a claim made against the Union of India, if successful, results in the claimant acquiring a status (concerning the employment) for a work which relates to the affairs of the State, the claim would have to be made before the Administrative Tribunal constituted under the Central Administrative Tribunal Act, 1985.

14. A perusal of paragraph 9 to 11 of the decision of the Constitution Bench in Kanak Chandra Dutta's case would also reveal that the same principle has been held to be determinative by the Constitution Bench i.e. whether the employment results in a status. It is trite that the origin of every employment is contractual, but may acquire a status if the Constitution or a law made in exercise of the constitutional power affords a protection to the employment.

15. The Constitution Bench decision of the Supreme Court in the decision reported as (1983) 2 SCC 33 State of Gujarat & Anr. Vs. Raman Lal Keshav Lal Soni & Ors., dealing with the Gujarat Panchayats Act, 1961 and recruitment made in the Taluka, Gram, District, Nayaya, Conciliation Panchayats; on the question whether the employees were Government

servants, in para 27 observed as under:-

―27. We have to first consider the question whether the members of the Gujarat Panchayat Service are Government Servants. Earlier we have already, said enough to indicate our view that they are Government Servants. We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not. Amongst the cases cited before us were AIR 1964 SC 254 Gurugobinda Basu Vs. Sankari Prasad Ghosal, AIR 1965 SC 360, State of U.P. Vs. Audh Narain Singh, AIR 1967 SC 884, State of Assam Vs. Kanak Chandra Dutta, (1969) 1 SCC 466 D.R.Gurushantappa Vs. Abdul Khuddus Anwar, (1970) 1 SCC 177 S.L.Agarwal Vs.G.M.Hindustan Steel Ltd, and Civil Appeals Nos.24 and 25 of 1968, decided on December 20, 1968 Jalgaon Zilla Parishad Vs. Duman Gobind. We have considered all of them and do not consider it necessary to refer to each of the cases.‖

16. The decision of the Supreme Court reported as (1999) 1 SCC 554 UOI & Anr. Vs. Chotelal & Ors. held that dhobis (washerman) appointed to wash clothes of cadets at the National Defence Academy at Khadakwasla and who were paid wages from a fund called ‗Regimental Fund' cannot be said to be holders of a civil post merely because the ‗Regimental Fund' receives a grant- in-aid which can be traced to the Consolidated Fund of India. The Supreme Court noted the Defence Services Regulations where ‗Public Fund' was

defined. The decision held that merely because the source of the salary payable or an allowance payable from a fund is traceable to the Consolidated Fund of India, would not mean that the person concerned holds a civil post.

17. Though not expressly stated in Chotelal's case, the principle of law declared by the Constitution Bench in Kanak Chandra Dutta's case was applied : that the employment must relate to matters connected with the affairs of the State. It is trite that work or job of washing clothes for which payment was made from 'Regimental Funds' does not relate to the affairs of the State.

18. The decision in Ameerbi's case (supra), as noted in paragraph 3 above, concerns a claim by Anganwadi workers. In paragraph 20 of the opinion the Supreme Court categorically held that since Anganwadi workers do not carry out any function of the State, they cannot be said to hold a civil post. In para 21 and 22, the Supreme Court noted the decision of the three judge bench in Deep Chand Pandey's case, and distinguished the same on the plea that Deep Chand Pandey and others were seeking a temporary status and a right to continue in employment, and that the claim of Ameerbi and others was for wages to be paid under the Minimum Wages Act.

19. It needs to be highlighted that Deep Chand Pandey and others were engaged as casual typists on daily wage directly under the Union of India, in the office of the Deputy Chief Engineer (Construction), Central Railway, Gwalior and were discharging duties in connection with the affairs of the Union. Their claim if successful would have resulted in permanent employment.

20. It thus boils down that the real test is to see the nature of the duties performed by the employee as also the nature of the relief prayed for; overlooking whether the appointment is temporary or casual. It is trite that a post may be permanent or temporary. If the employment involves a work and requires duties to be performed in connection with the affairs of the State, and

where the employment is regulated by a law, which could be even an office instruction or a guideline; and at the heart of the matter is a right predicated under the law which would, if the relief is granted, result in a status being conferred, it would be a service matter.

21. This is the reason why, a three bench decision of the Supreme Court reported as (2009) 13 SCC 311 R.R.Pillai Vs. Commanding Officer, HQ Southern Air Command while overruling a two judge bench decision reported as (2001) 1 SCC 720 UOI Vs. M.Aslam, held that employees of Unit run canteens of the armed forces cannot be said to be discharging functions concerning the affairs of the State and thus a dispute concerning their service would not be a service dispute attracting the jurisdiction of the administrative tribunal. The contra view taken in M.Aslam's case was overruled, which gave primacy to the source of the fund. This view taken in R.R.Pillai's case was affirmed by the Supreme Court in the decision reported as (2012) 13 SCC 565 UOI & Ors. Vs. Gobinda Prasad Mula.

22. We answer the reference by holding that the decision of the two Judge Bench in Ameerbi's case and the decision of the three Judge Bench of the Supreme Court in Deep Chand Pandey's case are thus reconcilable, if one looks at the facts of each case a little carefully. There is no conflict between the two. Whereas Deep Chand Pandey and others were discharging duties concerning the affairs of the State, Ameerbi and others were not discharging duties concerning the affairs of the State. It is immaterial whether in both cases the initial appointment was ad-hoc or casual. The issue of the jurisdiction of the Administrative Tribunal to entertain a claim by a person, requiring a consideration whether the dispute pertains to a service matter in connection with the affairs of the Union has to be decided on the principles of law declared by the two Constitution Bench decisions in Kanak Chandra Dutta's case and Ram Lal Keshav Lal Soni's case.

23. As regards the instant writ petition, since the petitioner had initially approached the Central Administrative Tribunal, which held that it had no jurisdiction to entertain the claim in light of the law declared by the Supreme Court in Ameerbi's case, and the fact that in Ameerbi's case the claimants were Anganwadi workers and the petitioner claims a right to be appointed as an Anganwadi worker, she cannot be left without a remedy because the decision of the Administrative Tribunal against the petitioner has attained finality. Thus, the writ petition filed by the petitioner would be maintainable in this Court.

(PRADEEP NANDRAJOG) JUDGE

(SANJIV KHANNA) JUDGE

(ASHUTOSH KUMAR) JUDGE FEBRUARY 27, 2015 mamta