Delhi High Court
Sunita Kumari & Ors vs Government Of Nct Of Delhi & Anr on 28 May, 2019
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 28.05.2019
+ W.P.(C) 7203/2018
SUNITA KUMARI & ORS ..... Petitioners
Through Mr.K. Prabhakara Rao, Adv.
versus
GOVERNMENT OF NCT OF DELHI & ANR ..... Respondents
Through Mr.Naushad Ahmed Khan, ASC with
Ms.Manisha Chauhan, Adv. for R-1.
Mr.Anil Kumar Yadav, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (ORAL)
1. Vide the present petition, the petitioner seeks direction thereby
directing the respondent no.1 to reinstate the petitioner in the posts of
Anganwari Workers.
2. The petitioners are women, initially joined as Anganwari Workers in
Integrated Child Development Scheme (hereinafter referred to as 'ICDS')
with respondent no.1 department. After they put about 10 years of service as
Anganwari Workers with respondent no.1, respondent no.2 invited
applications for the post of Anganwari supervisor on 20-21.07.2016 to be
deputed to respondent no.1 department. The petitioners applied for the post.
After written test and interview conducted by the officials of the respondent
no.1, petitioners were selected for the post of Anganwari Supervisor on
contractual/outsourced basis w.e.f. 20-21.07.2016. Just after one year, their
services were discontinued as Anganwari Supervisors w.e.f. 01.10.2017 on
the ground that regular appointments were being made in Anganwari
Supervisor posts. Accordingly, the petitioners became unemployed.
3. Thereafter, the petitioners sent request letters to respondent no.1
seeking their reinstatement in their earlier post i.e. Anganwari Workers as
they were deputed for only a short time in Supervisor's posts and also they
had not resigned to the Anganwari worker posts. But the respondent no.1
has not reinstated them nor gave any reply to their representations.
4. Counsel appearing on behalf of petitioner submits that respondent
no.1 is the Women and Child Welfare Department, Government of NCT of
Delhi, which is operating the Integrated Child Development Scheme, 1975.
Respondent no.2 is a joint venture of TCIL-A Government of India
Enterprise and DSIIDC-an undertaking of Delhi Government and deploys
Anganwari Supervisors on contractual basis to respondent no.1 and
administrative control rests with respondent no.1.
5. It is stated that ICDS is perhaps the largest of all the food
supplementation programmes in the world, was initiated in the year 1975
with the following objectives formulated by the Planning Commission:
(i) To improve the health and nutrition status of children of 0-6
years by providing supplementary food and by coordinating
with State Health Departments to ensure delivery of required
health inputs.
(ii) To provide conditions necessary for pre-school children's
psychological and social development through early stimulation
and education.
(iii) To provide pregnant and lactating women with food
supplements.
(iv) To enhance the mother's ability to provide proper child care
through health and nutrition education.
(v) To achieve effective coordination of policy and implementation
among the various departments to promote child development.
6. It is further submitted that to implement the above said scheme,
respondent no.1 invited applications online to fill up the vacancies of
Anganwari workers. The petitioner applied online and an interview was held
before selection. After interview, the petitioners were selected as Anganwari
workers. The respondent no.1 fixed honorarium of Rs.1,500/- per month for
the said post. In the letters of appointment, the retirement age is fixed as 60
years. After selection as Anganwari workers, the petitioners had undergone
to various training programmes conducted by respondent no.1 from time to
time and had been doing their jobs to the utmost satisfaction of respondent
no.1. In the year 2016, respondent no.2 invited applications for post of
Anganwari supervisors posts to depute them to respondent no.1, Department
on contractual/outsourced basis. The petitioners applied for the same. The
officials of respondent no.1 held a written examination and also interview
and selected the petitioner for the post of Anganwari supervisor posts w.e.f.
20.07.2016 and 21.07.2016. But the appointment letters were issued by
respondent no.2 clearly mentioning that the petitioners were deputed to
respondent no.1 on contractual/outsourced basis. After receiving these
appointment letters, the petitioners gave their joining report in the same
department from the post of Anganwari workers to Anganwari supervisors.
The petitioners continued their job till 30.09.2017 about 14 months and
thereafter respondent no.2 issued letter dated 25.09.2017 discontinuing the
services of petitioners w.e.f. 01.10.2017 on the ground that Anganwari
Supervisors on regular basis are being appointed in the respondent no.1
department.
7. Counsel for the petitioner submits that from the year 2006, till the
date of termination of the services of the supervisor, the petitioner continued
to work as Anganwari workers and supervisors. The petitioners never
resigned from the post of Anganwari workers nor their services were
terminated from the said post. Thus, the petitioners are entitled to continue
in the services as Anganwari workers.
8. The counter affidavit has been filed by respondent no.1 whereby it is
admitted that the petitioners were initially appointed by respondent no.1 to
the honorary post of Anganwari workers on the honorarium which keeps on
changing as per the decision of the Government of India. The said
respondents in the year 2016 proposed for the post of Anganwari supervisor
on contractual basis through outsourcing from respondent no.2 (ICSI Ltd.).
Thereafter, the petitioner withdrew from the honorary of Anganwari workers
and applied for the contractual post of Anganwari supervisor on outsource
basis. The contractual appointment on outsource basis was needed to meet
the public purpose as the regular appointment/recruitment takes some time.
The process for regular appointment was initiated by DSSSB with respect to
the post for Anganwari supervisor and the recruitment process has been
completed and the incumbents have been appointed following the rule of
regular appointment as per existing recruitment rules. The contractual/
outsourced employees through the ICSI Ltd. completed their period of terms
of contract as per contractual conditions, thereafter their services have been
terminated by respondent no.2, therefore, the petitioners have no right to
continue as Anganwari supervisor which has already been terminated.
9. Learned counsel for respondent no.1 submits that the petitioners were
appointed by respondent no.1 on the basis of Anganwari workers (Honorary
Post) carrying an honorarium amount and there is no scope for permanent
employment in the department which is very much within the knowledge of
petitioners. The similar view has been held by the Hon'ble Supreme Court in
catena of the judgment viz. State of Karnataka & Ors. Vs. Ameerbi & Ors:
(2007) 11 SCC 681; and Secretary, State of Karnataka & Ors. Vs.
Umadevi & Ors.: (2006) 4 SCC 1.
10. It is further submitted that Anganwari workers are not governed by
any service rules nor there provision for giving pension or paid leave salary
to them. They are not covered and governed by the CCS(CCA) Rules 1965
and Conduct Rules nor do they undergo rigorous specialized training,
nonetheless, the Anganwari workers are free to continue their services on
honorary post, however, in case Anganwari workers are absent from service
for more than 3 months they stand terminated from service as per rule. The
petitioners have withdrawn from the honorary work as Anganwari workers
and have then opted for Anganwari supervisor with respondent no.2 on
purely contractual/ outsourced basis as per their own choice. Moreover, the
engagement letter of respondent no.2 and the terms thereof, are interalia
with the terms that the engagement is purely on contractual period for a
fixed period and in case contract terminated earlier by the department,
engagement will automatically stand terminated and contract agreement
does not confer any right to claim appointment in the department.
11. During the course of arguments, learned counsel for respondent no.1
has shown the consent of the petitioners joining Anganwari supervisors with
respondent no.2 whereby the petitioners stated that they give their consent
and accept the terms and conditions of the engagement for the post of
Anganwari supervisors which is purely on contractual/outsourced basis.
Accordingly, they joined their duties as Anganwari supervisors w.e.f.
21.07.2016.
12. I have heard learned counsel for the parties and perused the material
available on record.
13. It is not in dispute that respondent no.1 invited applications for the
post of Anganwari workers and the petitioners applied for the same and
gone through the interviews before finally selected for the post. On various
dates, respondent no.1 issued appointment letters to the petitioners in the
year 2007 and they continued as Anganwari workers till the offer of
Anganwari supervisors was issued by the respondent no.2. Even after
getting the appointment with respondent no.2 as Anganwari supervisor on
contract basis, they continued to do the same work and from the post of
Anganwari workers, the petitioners never resigned nor their services have
been terminated by respondent no.1. Clandestinely, respondent no.2 came
in between in the year 2016 and invited applications for the post of
Anganwari supervisor to be adopted by respondent no.1 department.
Accordingly, the petitioners applied for the post and after written test and
interview conducted by office of respondent no.1, the petitioners were
selected for the post of Anganwari supervisors on contractual/outsourced
basis w.e.f. 20-21.07.2016. Thereafter, vide letter dated 25.09.2017, their
appointment as Anganwari supervisors had been discontinued by respondent
no.2.
14. The fact remains that the petitioners never resigned from the post of
Anganwari workers nor their services have been terminated by respondent
no.1 as Anganwari workers, thus, they continued till date as Anganwari
workers though for around 14 months they worked as Anganwari supervisor
and they received the salary for the same. Thereafter no honorarium has
received either from respondent no.1 or from respondent no.2.
15. I note, vide advertisement dated 13.07.2017 published in Indian
Express, it is clarified that the work of Anganwari worker is honorary and
not equivalent to any employment. Presently, the monthly honorarium for
the post of Anganwari worker is ₹5,000/-. Thus, by the said advertisement,
respondent no.1 is not going to fill up post of Anganwari worker on regular
basis. Since the petitioners are working as Anganwari worker from the year
2007 and thereafter worked 14 months as Anganwari supervisor, therefore,
by the advertisement dated 13.07.2017, respondent no.1 is not going to
appoint better candidates than the petitioners who served number of years
for the said post.
16. Even otherwise, the settled law is that the contractual employees
cannot be replaced by the other set of contractual employees. In the present
case, the petitioners are working on honorarium as Anganwari workers and
they continued. Therefore, I hereby declare that the petitioners are continued
in the service of respondent no.1 as Anganwari workers.
17. Since the petitioners have not worked from 01.10.2017, therefore, I
hereby make it clear that no honorarium amount shall be given to the
petitioners but make it clear that their services shall be continued from the
date of appointment till the date they resume their duty with respondent
no.1.
18. I further make it clear that they shall remain on the same terms and
conditions as per the decision of the NCT of Delhi applicable as on date.
19. It is made clear that the petition has been allowed by establishing the
case of the petitioners that they never resigned from the post and their
services have not been terminated by respondent no.1.
20. Keeping in view of the aforesaid facts, the petition is allowed.
21. Respondent no.1 is directed to assign their place of posts within one
week from the receipt of this order.
(SURESH KUMAR KAIT)
JUDGE
MAY 28, 2019
ab
