Tripura High Court
The Union Of India vs Smt. Anjana Roy (Chakraborty) And ... on 11 January, 2022
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HIGH COURT OF TRIPURA
AGARTALA
WA No.284/2021
The Union of India.
............. Appellant(s).
Vs.
Smt. Anjana Roy (Chakraborty) and Ors.
............. Respondents(s).
WA No.285/2021
The Union of India.
............. Appellant(s).
Vs.
Smt. Sumita Sinha and Ors.
............. Respondents(s).
WA No.286/2021
The Union of India.
............. Appellant(s).
Vs.
Smt. Kalpana Biswas and Ors.
............. Respondents(s).
WA No.287/2021
The Union of India.
............. Appellant(s).
Vs.
Smt. Laxmi Bala Bhowmik and Ors.
............. Respondents(s).
WA No.288/2021
The Union of India.
............. Appellant(s).
Vs.
Smt. Rina Purkayastha and Ors.
............. Respondents(s).
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WA No.289/2021
The Union of India.
............. Appellant(s).
Vs.
Smt. Reba Das and Ors.
............. Respondents(s).
For Appellant(s) : Mr. Bidyut Majumder, Asstt. S. G.
For Respondent(s) : Mr. Raju Datta, Advocate,
Mr. D Sharma, Addl. Govt. Advocate.
HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
HON'BLE JUSTICE MR. S G CHATTOPADHYAY
_O_R_D_E_ R_
11/01/2022
(Indrajit Mahanty, CJ).
Heard Mr. Bidyut Majumder, learned Asstt. S. G., appearing on
behalf of Union of India. Also heard Mr. Raju Datta, learned counsel
appearing for private respondents as well as Mr. D Sharma, learned
Additional Government Advocate representing the State-respondents.
In the present appeal, challenge has been made to the following
directions passed by the Hon'ble Single Judge which read as follows :
"9. The State government has not accepted the upper age limit
of discharge as suggested by the said memorandum dated
22.10.2012 issued by the Ministry of Women and Child
Development. After the stock-taking exercise, the Union of
India in the Ministry of Women and Child Welfare and Child
Development Department, by virtue of the said memorandum
dated 22.10.2012 has observed that AWWs/AWHs will be
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disengaged on completion of 65 years of age. Since some of the
state governments have not accepted the maximum age of 65
years, the central government shall take a uniform policy
decision and it is expected that such change should be brought
about by prescribing a uniform age of 65 years in all states and
UTs. Since, the State government has taken a decision that the
age of discharging for AWWs/AWHs has been decided to be
on completion of the age of 60 years, most of the states have
accepted the age of 65 years. It would be appropriate that the
Central government in the Ministry of Women and Child
Development to adopt a uniform policy in terms of the clause
(e) of the communication dated 22.10.2012 (Annexure-1 to the
reply filed by the respondents). Such uniform policy in respect
of age of relieving or disengagement of AWWs/AWHs shall be
taken by the Central government within a period of four months
from the date when they would receive a copy of this order
from the petitioners. Till then, if the petitioner has crossed the
age of 60 years be allowed to continue."
While challenging the aforesaid direction of the Hon'ble Single
Judge for framing a common policy within four months learned Astt. S. G.
submits that the Union of India had communicated their policy in their
communication dated 22nd October 2012 (under Annexure - 1 to the reply
filed by the respondents). Consequently, there is no necessity of passing
any direction for further policy decision in the matter.
It is important to take note herein that a batch of cases [WP(C)
No.886/2019 and connected petitions] were filed by persons who were
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working as Angwadi Workers in the State of Tripura relying upon the
communication dated 22nd October 2012 issued by Government of India,
Ministry of Women and Child Department wherein the department had
annexed detailed guidelines for implementation of the age of retirement
which reads as under :
"(e) Relieving AWWs/AWHs on completion of 65 years of
age. The existing guidelines do not provide uniform age limit
for their retirement. Rather, this has been left to the State
Governments to decide. Thus, as on date no age has been
prescribed for dispensing with the services of AWW/AWH.
Prescribing maximum age limit of 65 years for an AWW/AWH
has been supported by most of the State Governments at
various forums. In view of the above, a uniform policy decision
would be undertaken to discontinue the services of
AWW/AWH at the age of 65 years and EPC would ensure its
implementation in all the States/UTs."
This batch of cases, out of which the present appeal is one such
case, came to be considered by a Division Bench of this Court [in WA
No.173/2021 and other connected appeals in case of State of Tripura Vs.
Smt. Rina Purkayastha and Ors.] by an order dated 29th June 2021 filed by
the State of Tripura itself. The said appeal came to be dismissed by the
Division Bench inter alia holding that since 90% of the funding comes
from the Government of India Revenue and the State contributes barely
10% of the expenditure, in such back ground when the Government of
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India Policy specifically formulated for such purpose provided that all State
Governments must formulate the uniform policy of age of retirement which
pegs the age of retirement at 65 years, we find no reason why the
Government of Tripura, should have taken a different view.
In other words, the Hon'ble Division Bench came to also
conclude that the discrimination meted out to Anganwadi Workers in the
State of Tripura was discriminatory vis-à-vis their counterparts in other
States. Learned Asstt. S. G. reiterates that the communication dated 22nd
October 2012, as noted hereinabove, continues to be in force but submits
that it is not for the Union of India to make a uniform policy but it was left
with the respective States, under whom the petitioners (private respondents
herein) were employees, to take such a decision. Consequently, his
contention is that the direction issued to the Union of India in the present
case ought to be set aside.
We find that the judgment of the Hon'ble Single Judge was
confirmed by this Court in the appeal as noted herein above wherein the
Division Bench came to conclude that since service of the respondents was
not pensionable and thus, there is no question of pensionable service being
higher with higher retirement age leading to greater pension liability for the
State Government. Age of retirement of the employees engaged in the
scheme is essential part of implementation of the scheme. Therefore,
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considering the higher age of retirement as suggested by the Union of India
in the aforesaid notification the Division Bench dismissed the appeal and
affirmed the judgment passed by the Hon'ble Single Judge.
In the present case also, an identical order has been passed by the
Hon'ble Single Judge. It would be appropriate also to take note of the fact
that no appeal in the present case has been preferred by the State. Yet it
would be important to take also note of the fact that order dated 29th June
2021 passed in WA No.173/2021 has not been challenged by the State of
Tripura and hence the State of Tripura is bound by the same. However, in
view of the prayer made in the present appeal, the direction to the Union of
India to frame a common policy, in our considered opinion, is wholly
redundant.
Learned Astt. S. G placed reliance on the judgment rendered by
the Hon'ble Supreme Court in case of Directorate of Film Festivals and
Ors. Vs. Gaurav Ashwin Jain and Ors. reported in (2007) 4 SCC 737 and
in particular paragraph 16 thereof which reads as under :
"16. The scope of judicial review of governmental policy is
now well defined. Courts do not and cannot act as Appellate
Authorities examining the correctness, suitability and
appropriateness of a policy, nor are courts advisors to the
executive on matters of policy which the executive is entitled to
formulate. The scope of judicial review when examining a
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policy of the Government is to check whether it violates the
fundamental rights of the citizens or is opposed to the
provisions of the Constitution, or opposed to any statutory
provision or manifestly arbitrary. Courts cannot interfere with
policy either on the ground that it is erroneous or on the ground
that a better, fairer or wiser alternative is available. Legality of
the policy, and not the wisdom or soundness of the policy, is
the subject of judicial review [vide : Asif Hameed v. State of
J&K - 1989 Supp (2) SCC 364; Shri Sitaram Sugar Co. Ltd., v.
Union of India - 1990 (3) SCC 223; Khoday Distilleries v. State
of Karnataka - 1996 (10) SCC 304, Balco Employees Union v.
Union of India - 2002 (2) SCC 333), State of Orissa vs.
Gopinath Dash - 2005 (13) SCC 495 and Akhil Bharat Goseva
Sangh vs. State of Andhra Pradesh - 2006 (4) SCC 162]."
If we take note of the aforesaid judgment of the Hon'ble Supreme
Court, the said judgment itself clarifies that a Writ Court can interfere with
the policy decision of a State if the same is "manifestly arbitrary". The
arbitrariness, in the present set of cases, related to the policy of the State of
Tripura in not accepting the suggestion made by the Union of India under
its communication dated 22nd October 2012 and clearly, as noted herein
above, the State of Tripura has not sought to challenge the outcome of
dismissal of its appeal before this Court. Therefore, on merits, insofar as
the directions are concerned, the State of Tripura has implemented the
same and consequently, we are of the considered view that no further
direction is necessary for the Union of India to issue any common guideline
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as directed. However, since on merits of the matter the earlier Division
Bench of this Court has already upheld the judgment of the learned Single
Judge, we similarly while setting aside the direction to the extent of
directing the Union of India to pass a common policy, affirmed rest of the
judgment and accordingly, all the appeals are partly allowed and disposed
of.
Pending application(s), if any, also stands disposed of.
( S G CHATTOPADHYAY, J ) ( INDRAJIT MAHANTY, CJ )
Sukhendu
