Madhyahn Bhojan Yojna Karmachari ... vs State Of Gujarat
2021 Latest Caselaw 7679 Guj

      C/SCA/7323/2018                             ORDER DATED: 05/07/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 7323 of 2018
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             MADHYAHN BHOJAN YOJNA KARMACHARI SANGH
                              Versus
                    STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. ANSHIN DESAI, SENIOR ADVOCATE with MR KR KOSHTI(1092) for
the Petitioner(s) No. 1
MS. DIVYANGANA JHALA, AGP, (1) for the Respondent(s) No. 1,2
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 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                            Date : 05/07/2021
                             ORAL ORDER

[1] This petition under Article 226 of the Constitution of India is filed by the petitioner, inter alia, praying as under:-

"7(B). Your Lordships may be pleased to issue a writ or mandamus or any other appropriate writ, order or direction to hold and declare that the action of the respondent authorities in not treating the members of the petitioner association at par with regular employees and in not paying them the salary and other service benefits at par with other government employees is illegal, arbitrary and bad in law;

(C) Your Lordships may be pleased to issue a writ or mandamus or any other appropriate writ, order or direction to direct the respondents to treat the members of the petitioner association and to pay them the salary and other service benefits at par with other government employees.

(D) Your Lordships may be pleased to issue a writ or mandamus or any other appropriate writ, order or direction to direct the respondents to implement the directions issued by the Honourable Supreme Court in Writ Petition (Civil) No.196 of 2001 with effect from 1st May 2004 and to pay the arrears to each and every Sanchalak/Organiser of Midday Meal Scheme;

(E) Your Lordships may be pleased to issue a writ or mandamus or any other appropriate writ, order or direction to direct the respondents to make the payment to Sanchalaks/Organisers of Midday Meal Schemes at the same

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rate as provided under Minimum Wages Act decided by the State Government from time to time."

[2] Though the petition is agitating the issue of payment/salary/benefits of those who are engaged in service under a scheme popularly known as Mid-Day-Meal Scheme, the Court would like to examine such rights vis-a-vis the object of the scheme which is predominantly for the benefit of the primary school going children. These children have no voice for their grievances and their interest usually gets compromised while balancing the rights of those meant to serve them and the rights of children themselves.

[3] Learned senior advocate appearing for the petitioner submits that one of the purposes of implementation of Midday Meal Scheme is also providing employment opportunities in the village. As per Government Resolution of the State Government and the guidelines given by the Hon'ble Supreme Court, the priority should be given to the women belonging to the backward community and preferably widows, destitute and deserted woman and belonging to a class below poverty line. He submits that in each Midday Meal Centre, one Sanchalak/Organizer, one Cook and one Assistant/Helper are appointed. Although such appointment is given every year upon commencement of the new term of the school, most of the employees are continuously engaged in the Scheme. It has also been provided that in absence of any irregularity, the women employees who are already serving in the Centre should be preferred to be continued appointment. Accordingly, although fresh appointment orders are given upon commencement of the new term, all the members of petitioner association are continuously in service since last many years. He submits that the petitioner association has made several representations to the respondent authorities time and again for absorption of all the employees as employees of the State Government and grant them all the service benefits at par with the other Government employees. However,

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such representations have not been considered and decided by the respondent authorities till date.

[3.1] Learned senior advocate for the petitioner submits that the Midday Meal Scheme has also object of providing opportunity of employment and the nature of the scheme is permanent as the same has been floated under the directions of the Apex Court. In that view of the matter, keeping the members of petitioner association on contractual basis without creating the post in the establishment is amounting to exploitation. From the provisions of the scheme, learned senior advocate has tried to point out that the conditions for appointment are stipulated and even disqualifications have also been stipulated. Therefore, for all purposes, members of the petitioner association are made to understand that they are under the employment of the Government through the scheme.

[3.2] Learned senior advocate further submitted that members of the petitioner union were not only given the work under the Midday Meal Scheme, but have also been assigned election duties which are ordinarily given to the Government servants and therefore, the State also treats the members of the petitioner association as the Government servants. Learned senior advocate has thereafter, drawn attention of this Court to the affidavit filed on behalf of the respondent authorities to submit that in para-11 averments made on affidavit are completely contrary to the State policy by stating that there is no bar on the persons engaged in the scheme to seek employment/work/business elsewhere. In fact, in the provisions of the scheme itself, it is specified that the person engaged with Midday Meal Scheme will not be permitted to take employment elsewhere.

[4] As against this, learned Assistant Government Pleader appearing for respondent No.1-State submits that in a Midday Meal Centre, the persons are one organizer, one cook and one helper and

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they are hired by the Government for easy implementation of the scheme. They are hired by the District Collector or Deputy Collector of the concerned District and the same is done by an advertisement issued by the aforementioned authorities and subsequently an open interview is conducted and those featuring in merit list are appointed. It is further specified that these services are purely contractual in nature and that a fixed amount of honorarium is granted to the people hired under the scheme. Furthermore, it is specified that during the time of school vacations, the services of these people hired under the scheme is usually not required. He submits that the cook/helper work for only 4-5 hours a day. They are not employee because hiring the service of these people is done under the scheme for a specific period of 11 months as per the Government Resolution dated 03.10.2016 and after the completion of this period they are relived automatically and hence they cannot be considered even under the Minimum Wages Act. He submits that in such recruitment, priority is given to person belonging to Schedules Cast and Scheduled Tribe and Economically Backward Class and also to those falling under the poverty line. Widows and women are also given priority for the same. Further, it is clarified that recruitment to such centers are given to those candidates falling within the local area. No education qualifications are prescribed for cook, helper though it is desirous that they should possess minimum qualification of standard 7. The people who are hired in this scheme are of an age ranging from 20 to 60 years. This scheme is partially funded by the Central Government as well as the State Government on 60:40 basis.

[4.1] He further submits that the contractual workers cannot be given the status of a permanent employee and therefore, cannot be treated at par with regular employee and cannot avail benefits available to the regular employees. It is submitted that the present resolution for the Midday Meal Schemes only provide for contractual

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hiring and thus prayers for giving benefits as available to regular Government employees cannot be granted. It is further submitted that a total number of 96,229 approximately persons are currently working under the Midday Meal Scheme and granting the prayers to the members of the petitioner association would open floodgates of litigation wherein employees of such nature would seek regular benefits.

[5] In rejoinder, learned senior advocate submits that according to the version of the respondent the work of Midday Meal Scheme is 4-5 hours a day, but according to the petitioner and on the basis of report submitted by high level committee appointed by the State Government on 22.12.1995, and the said committee headed by Mr. A.R.Banerjee has submitted its report to the Government wherein the committee has observed that the work of organizer and cook is taking a minimum of 6 hours a day. Learned senior advocate also places reliance upon the decision of this Court in Special Civil Application No.6568 of 2006 and allied matter and submitted that in similar fact situation, the directions were issued in favour of the petitioners who were being paid honorarium.

[6] The Court has heard learned advocates for the parties and perused the documents placed on record. The petitioner is a registered association of the persons who are working as Sanchalaks/Organizers under the Midday Meal Scheme. From the pleadings it appears that the Central Government, with a view to improve nutritious value among children, had floated a scheme known as National Programme of Nutritional Support of Primary Education. The object of the said scheme was to provide the children at the primary level nutritious food so as to improve the nutritious level of the children of Class 1 to 5 studying in Government Local Body. The said Scheme was to be implemented through State Government and accordingly, the State Government, being welfare State, and with a view to implement the said Scheme

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effectively in the State of Gujarat, had given grants to the local body and Government aided schools for setting up kitchen in each and every school run by local body and Government aided schools so that the children studying in the said schools get fresh and nutritious food in the school itself. The State Government through its Education Department had issued Government Resolution dated 09.11.1984 framing scheme for providing Midday Meal to the children of Primary Schools in the State of Gujarat.

[7] The Midday Meal Scheme appears to have been floated in consonance with the directions issued by the Apex Court with a laudable object that it is estimated that 45% people are living below the poverty line in the Gujarat. Although a number of target group oriented scheme have been implemented in the state for poverty alleviation, much remains to be done to make a positive impact on poverty alleviation. Raising the standard of nutrition to improve the literacy, nutrition and quality of life that can be measured from life expectancy is very important, especially among the potential human resourceful youth of the country. In this context, the plan to provide nutritious food to school going children seems to be need of the hour considering its various beneficial effects. The Government of Gujarat has been considering to introduce mid-day meal scheme in the primary schools of the state since long. In order to achieve the objectives outlined below in the above context, a more comprehensive basis has to be considered for this scheme. Giving mid-day meal to primary school children will complement the state's effort to alleviate poverty. As a result of such scheme, the nutritional standard of children in the developing age group will rise substantially. In addition to preventing middle school dropouts and improving general attendance, the mid-day meal scheme will attract more students, especially those from poorer sections, to school. This scheme will provide some employment opportunities in every

village. This scheme will be a step towards social and national unity.

       C/SCA/7323/2018                           ORDER DATED: 05/07/2021




[8]    The modus for implementing the scheme adopted by the

State is (1) This scheme will be implemented in all primary schools run by the government, panchayats and nagarpalikas.(2) Mid-day meal, will be provided to children during school working days. The number of working days is about 220 days in a year. Mid-day meal will not be provided on holidays and (3) The entire cost of the scheme shall be borne by the State Government only. However, local collaboration and assistance from panchayats, voluntary organizations, private organizations or private individuals would also participate.

[9] Further, the State Government have a 60:40 ratio for the purposes of grant of funds for the implementation of this scheme and for the welfare of those working within the scheme. The Government though its implementation authorities time and again revises the monthly fixed amount of honorarium. The State vide Government Resolution dated 11.11.2016 has increased the fixed amount of honorarium paid to the people working under the Midday Meal Scheme. The honorariums to these people are now divided into three broad categories as under.

(a) Those centers having upto 25 students the organizer would get a monthly fixed amount of honorarium of Rs.1,600/- as against Rs.1,000/- which was given earlier, the cook would get a monthly fixed amount of honorarium of Rs.500/- as against of Rs.400/- which was given earlier and the helper would get Rs.300/- as against Rs.200/- which was granted earlier.

(b) Centers having students ranging from 26-100 the organizer would get Rs. 1600/- as against Rs.1000/- given in the erstwhile monthly fixed amount of honorarium, the cook would get Rs1400/- as against Rs.1000/- paid earlier and the

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helper would get Rs.500/- as against Rs.400/- given earlier.

(c) As centers have been more than 101 students, the organizer would get Rs.1600/- and the cook cum helper would get Rs.1400/.

[10] It appears from the pleadings that the State High Level Committee headed by the then Commissioner, Midday Meal Scheme and Additional Chief Secretary, Education Department was constituted for the better implementation of Midday Meal Scheme and vide its final report dated 24.11.1997 had observed that the services of the organizer, cook cum helper and helpers are working only for 4-5 hours a day and that they are not regular employees thereof and cannot be treated at par as Government employees. It appears that a similar petition being Special Civil Application No.1150 of 2015 had been filed before this Court seeing prayers to direct the respondent authorities to pay remuneration as per Minimum Wages Act to the workers to the Midday Meal Scheme. The petition was preferred through Gujarat Rajya Madhyan Bhojan Yojna Karmachari Sangh Mahandal Gandhinagar, through its President.

[11] The engagement of the members of the petitioner association was for the purpose of achieving the objects of the Midday Meal Scheme. The scheme has a special allocation, where the major portion of the allocation is expected to reach the beneficiaries i.e. the school students. Such allocation for the scheme is fixed and in case claim of the members of the petitioner for receiving the emoluments comparable to the State servants, then perhaps the entire financial allocation for the scheme would be consumed in making the payment of salaries and other benefits which are sought by the members of the petitioner association and ultimately leaving nothing for being used in the benefit of the children, who are actually beneficiaries.

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[12] The members of the petitioner association were given an order of being engaged in the Midday Meal Scheme as organizers or Cook or Assistant Cook. What honorarium would be paid to them, what will be their entitlement were all made clear and with open eyes they have accepted the work and have performed their part against receiving of honorarium for the period for which they have been engaged. The orders of engaging them clearly stipulated their functioning for part time and the period of academic session between the two vacations of the school. It is only during this period, when the school is functional, children are coming to the school and Midday Meals are being served to the children. This type of managing the Midday Meal Scheme has been functional and to satisfaction to the beneficiaries and therefore, the Court would not like to interfere into the functioning of the scheme.

[13] The Apex Court in case of State of Maharashtra and others v/s. Anita and Another, reported in 2016 8 SCC 293 has held in paras-16 and 17 as under:-

"16. The High Court did not keep in view the various clauses in the Government Resolutions dated 21.08.2006 and 15.09.2006 and also the terms of the agreement entered into by the respondents with the government. Creation of posts was only for administrative purposes for sanction of the amount towards expenditure incurred but merely because the posts were created, they cannot be held to be permanent in nature. When the government has taken a policy decision to fill up 471 posts of Legal Advisors, Law Officers and Law Instructors on contractual basis, the tribunal and the High Court ought not to have interfered with the policy decision to hold that the appointments are permanent in nature.

17. In the result, the impugned judgment of the High Court is set aside and these appeals are allowed. Consequently, all other appeals are also allowed. No costs."

[14] The Apex Court in the case of Lekhraj Sathramdas Lalvani v/s. N.M.Shah, Deputy Custodian cum Managing Officer, Bombay and others, reported in AIR 1966 SC 334 while dealing

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with the issue of contractual appointment has held in para-5 as under:-

"5.In our opinion, the order of the Deputy Custodian-P-13 and P-16-removing the appellant from the management of the business is not vitiated by any illegality. But even on the assumption that the order of the Deputy Custodian terminating the management of the appellant is illegal, the appellant is not entitled to move the High Court for grant of a writ in the nature of mandamus under Art. 226 of the Constitution. The reason is that a writ of mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties prescribed by statute and to keep the subordinate tribunals and officers exercising public functions within the limits of their jurisdictions. In the present case, the appointment of the appellant as a Manager by the Custodian by virtue of his power under S.10(2)(b) of the 1950 Act is contractual in its nature and there is no statutory obligation as between him and the appellant. In our opinion, any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Art. 226 of the Constitution. In Commr. Of Income-tax, Bombay Presidency and Aden v. Bombay Trust Corporation Ltd, 63 Ind App 408 (AIR 1936 PC 269), an application was made under S.45 for an order directing the Commissioner to set aside an assessment to income tax and to repay the tax paid by the applicant; the Bombay High Court made the order asked for but the decision of the Bombay High Court was set aside by the Judicial Committee. At page 427 of the report it is observed by the Judicial Committee :

"Before mandamus can issue to a public servant it must therefore be shown that a duty towards the applicant has been imposed upon the public servant by statute so that he can be charged thereon, and independently of any duty which as servant he may owe to the Crown, his principal."

(Emphasis Supplied).

[15] In so far as the submissions of learned senior advocate regarding non-application of mind in filing the affidavit that there is

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no bar on the people working under the scheme to seek employment/work/business anywhere else and therefore, the members of the petitioner be treated at par with the Government servant, is fallacious as if the relevant provisions under the scheme for engaging the claims which were put as condition of appointment is perused, it is a disqualification for an individual who is engaged at any other place with a honorarium, such person would not be given appointment (See Clause 14(B)(5) of the Resolution dated 30.10.2016)f Education Department), which is to mean that such scheme also envisages the employment to people of lower strata of society. There may not be a case where an individual is drawing honorarium from two organizations at a same time.

[16] In so far as the submission of learned senior advocate to draw parity with the benefits given by this Court in the order dated 27.10.2010 in Special Civil Application No.6568 of 2006 and allied matter is concerned, circumstances under which the order came to be passed is made clear itself in the opening paras. Moreover, the said directions were only at interim stage and nothing is brought on record by the petitioners to indicate the final outcome of such pending case.

[17] Considering the work and the method for implementing the scheme including the method of making payment to the organizers etc., the Court does not find anything to suggest exploitation methods are being adopted. It may happen as it happens in many of the beneficial scheme that some scrupulous elements do find loopholes in the scheme and take advantage for personal benefit mostly monetary or otherwise. The Scheme appears to be achieving it objective to provide meal to school children and employment opportunity to the target section at the village level and any interference in such functionality will run a risk of affecting the working of the benevolent scheme especially a scheme where the beneficiaries i.e. the primary school children have no voice of their

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own.

[18] For the foregoing reasons, the Court does not find any reason to issue directions as prayed for by invoking Article 226 of the Constitution of India. The present petition deserves to be and the same is hereby dismissed. However, it would be open for the members of the petitioner association to pursue their claim regarding enhancing their emoluments/honorarium .

(A.Y. KOGJE, J) SIDDHARTH