State Of West Bengal & Ors vs Kaberi Khastagir & Ors

through the Department of Human Resources 2

Development for integrated delivery of

certain services to pre-school children,

pregnant and lactating women. The object of

the Scheme was to improve the health and

nutritional status of children and women

and to reduce the incidences of school

drop-outs and physical and social welfare

and development of the child.

3. According to the writ petitioners,

voluntary organizations and local bodies

were given priority to act as Implementing

Agencies of the Scheme. However, in some

States, such as West Bengal, no voluntary

organizations or local bodies were

recommended and the State Government itself

was appointed as the Implementing Agency to

run and/or implement the Scheme within the

territories of West Bengal.

4. It was also the case of the writ

petitioners that the Scheme provided that

all actions and decisions had to be taken

by the State Government, with the approval 3

of the Central Government, which agreed to

fund the entire project. It is the further

case of the writ-petitioners that according

to the staff pattern for giving effect to

the ICDS Project, the petitioners were

appointed as Supervisors, which is the

feeder post for promotion to the post of

Assistant Child Development Officer

(hereinafter referred to as `the ACDPO').

The said promotional post is also the

feeder post for promotion to the post of

Child Development Project Officer

(hereinafter referred to as `the CDPO').

According to the writ petitioners, under

the Scheme it was mandatory on the part of

the State Government to fill up the post of

Supervisors from female candidates only and

that the same was also reflected in the

Scheme where a specific observation is said

to have been made to fill up most of the

posts under the ICDS Project from female

candidates since the entire object and 4

motto of the said Scheme was to promote the

welfare of women and children.

5. It was also the case of the writ

petitioners that a specific provision had

been made in the Scheme to frame rules and

to set out the procedure to fill up the

post of CDPO under the ICDS Project

whereunder 75% of the CDPO posts were to be

filled up from the female Supervisors of

the ICDS Project, while the remaining 25%

could be filled up by direct recruitment.

The petitioners, therefore, contended that

the State of West Bengal was under an

obligation to fill up 75% of the posts of

CDPO from the female Supervisors of the

existing ICDS Project, subject however, to

the fulfillment of the essential

qualifications prescribed.

6. According to the writ petitioners, in the

month of October, 2002, they received two

interview letters whereby they were asked

to appear before the Public Service 5

Commission for selection to the post of

CDPO and ACDPO. According to the writ

petitioners, no panel was ever published

thereafter by the State Government and its

authorities in their capacity as the

Implementing Agency. However, all of a

sudden a list of candidates appointed on

promotion to the post of CDPO was published

on 23.2.2004, which did not conform to the

procedure as indicated hereinabove, with

the result that a large number of under-

graduate male employees from different

zones of the cadre were promoted to the

post of CDPO and ACDPO. Despite several

representations made to the State

Government and the Director of Women and

Child Development and Social Welfare of the

State Government, no steps were taken to

alleviate the grievances of the writ

petitioners and, on the other hand, a

second list was published which was 6

prepared on the same basis as the earlier

list.

7. Aggrieved by the said action on the part of

the State Government and its authorities,

the respondent Nos. 1,2 and 3 herein filed

a writ petition, inter alia, for the

following reliefs:

a) A writ of and/or in the nature of Mandamus commanding the respondent authority to fill up 75% post of CDPO and ACDPO by way of promotion from the female Supervisors working under the ICDS Project as per provisions laid down under the said Scheme;

b) A writ of and/or in the nature of Mandamus directing the respondents authority to cancel, set aside and/or rescind the promotion of the candidates from the outside cadre of Supervisors under the ICDS

c) A writ of and/or in the nature of Mandamus commanding the respondents authority to set aside, cancel and/or rescind the promotion of the candidates having not fulfilled the requisite qualification of graduate in Social Science to the post of CDPO and also ACDPO."

7

8. The said writ application came up for

hearing before the learned Single Judge

who, on an analysis of the Scheme, came to

hold that although the State was acting as

a nodal agency, the employees under the

Scheme were not Government employees but

Project employees and that if and when the

Project was withdrawn, their employment

would also cease. The learned Judge also

held that the State Government had all

throughout acted in a manner contrary to

the provisions of the Scheme. However,

without disturbing the status existing when

the order was made by the learned Single

Judge, directions were given to the State

Government to adhere to the Scheme while

giving appointments thereunder. The learned

Judge also directed that only 25% of the

vacancies for the posts of CDPO could be

filled up by direct recruitment and the

rest by promotion, as prescribed under the

Scheme, subject to the candidates having 8

requisite qualifications. It was also

directed that the State Government should

ensure that the posts should be filled up

by lady officers as far as practicable and

in case a male officer was appointed, the

State Government would be required to pass

a reasoned order to be kept in the record

to the effect that there was no suitable

lady candidate available for the post.

9. The writ application was disposed of with

the aforesaid observations and aggrieved

thereby the State Government preferred an

appeal before the Division Bench, being

F.M.A. No.796/07, which was dismissed with

the learned Judges endorsing the views

expressed by the learned Single Judge and

holding that the issues raised in the writ

petition had been correctly decided and

that no interference was called for with

the same. While passing the said order, the

Division Bench came to a definite finding

that the writ petitioners were all employed 9

in the ICDS Project and could not,

therefore, be treated as State Government

employees. On the aforesaid finding the

Writ Appeal was also dismissed against

which the present appeal has been filed by

the State of West Bengal.

10. On behalf of the appellants it was

submitted by Mr. K.K. Venugopal, learned

Senior Advocate, that the ICDS Scheme was a

Central Government Scheme which was

promulgated on 2nd October, 1975, through

the Department of Human Resource

Development with the object of integrated

delivery of certain services such as

supplementary nutrition, immunization,

health check-up, referral service, non-

formal education and health & nutrition

education to pre-school children and

pregnant and nursing women. In addition to

improvement in the health and nutritional

status of the children, the scheme aimed at

reduction of the incidence of school 10

dropouts and laying the foundation for

proper psychological, physical and social

development of the child. Mr.Venugopal

submitted that the Scheme admittedly

contemplated the implementation thereof by

the State Government within their

respective States. In that regard the

Central Government issued guidelines from

time to time and the number of ICDS

projects which still required to be

allotted by the Central Government.

For implementation of the Scheme, the

Government of India at each project level,

sanctioned posts of Child Development Project

Officer, Assistant Child Development Project

Officer, Supervisors and other infrastructural

posts. The Scheme categorically laid down that all

the personnel under the Scheme, were to be borne

on the respective cadres of the State

Government/Union Territory Administration and the

said posts should, therefore, be sanctioned in the 11

appropriate pay scales of the State Government/

Union Territory Administration.

11. The Scheme also provided that the CDPOs and

Supervisors should preferably be females.

Mr.Venugopal also pointed out that

although the Scheme was Centrally-sponsored

and the major funding was done by the

Central Government, the State Government

also contributes about 40% of the costs of

the projects within the State.

12. According to Mr.Venugopal, from time to

time various projects under the Scheme were

allotted to the State of West Bengal and on

such allotment of each project the State of

West Bengal issued orders for the manning

of each project according to the staff

pattern laid down in the Scheme and

granting them scales of pay of each cadre.

13. Mr.Venugopal submitted that on 3.6.1983, in

supersession of all earlier notifications

in this regard the State of West Bengal 12

issued a fresh Notification constituting

the West Bengal Junior Social Welfare

Services (hereinafter referred to as

`WBJSWS') in which the post of CDPO in the

ICDS Project stood included. Consequently,

the post of CDPO in the ICDS project became

part of the regularly constituted State

Service.

14. Mr. Venugopal submitted that the contesting

respondent No.1, Smt. Kaberi Khastagir, was

appointed by the State of West Bengal in

the Department of Social Welfare as

Supervisor of the ICDS Project at Jagat

Ballavpur in the District of Howrah in West

Bengal, on a pay scale of Rs.380-910/- plus

usual allowances as admissible under the

Government Orders from time to time. The

other conditions of service were made the

same as those applicable to other

Government employees of the same category

under the Rules and Orders of the State

Government. Similarly, other contesting 13

respondents were also appointed in the same

fashion.

15. Mr. Venugopal then submitted that on

11.10.1985 in exercise of the powers

conferred by the proviso to Section 309 of

the Constitution and in supersession of

earlier Notifications the State Government

notified Recruitment Rules for the posts

included in the WBJSWS, which provided for

filling up of posts in the said service by

direct recruitment through the State Public

Service Commission for 60% of the posts and

the rest 40% were to be filled up by

promotion from the feeder cadres. This

apparently led to an anomaly as the direct

recruit quota of posts in the WBJSWS was

reduced to 50% from 60% and the promotee

quota was increased from 40 to 50%. On

16.10.1989 in supersession of all earlier

Notifications covering the field the State

Government issued a fresh Notification

framing Recruitment Rules for the posts of 14

Supervisors of ICDS in exercise of powers

under Article 309 of the Constitution. By

these Recruitment Rules the method of

recruitment was to be direct recruitment by

selection from candidates sponsored by

Employment Exchanges and from Aanganwadi

workers of ICDS on the basis of the result

of a written-cum-oral test to be conducted

by the Directorate of Social Welfare,

Government of West Bengal.

16. Mr. Venugopal urged that it was, therefore,

quite clear that the State Government had

always treated the posts of CDPF and

Supervisor in the ICDS as posts under the

State Government and granted Government

scales of pay and all other service

conditions, including pension benefits, as

per the Rules of the State Government. In

fact, all other categories of staff working

in the ICDS Project were also granted

Government scales of pay and all Government

benefits, including pension benefits, 15

treating all categories of staff of ICDS as

Government employees. Mr. Venugopal

submitted that the introduction of the new

Recruitment Rules led to the filing of the

Writ Petition No.11539(W) of 2004 in the

Calcutta High Court, inter alia, for the

issuance of a Writ in the nature of

Mandamus to command the respondent

authorities to fill up 75% of the posts of

CDPO and ACDPOs by way of promotion from

the female Supervisors working in ICDS

Projects. The grievance highlighted in the

Writ Petition was that while the Scheme had

provided for filling up of 75% of the posts

of CDPO and ACDPO by promotion of female

Supervisors and the remaining 25% by direct

recruitment, the authorities were not

filling up the same and were depriving the

female Supervisors of promotion to the

posts of CDPO and ACDPO. According to Mr.

Venugopal, the stand of the Government of

India was very definite in that the 16

Supervisors and CDPOs of the Scheme were

employees of the State Government and the

terms and conditions of their employment,

such as promotion and other service

benefits were to be determined as per the

Rules framed by the State Government. Mr.

Venugopal submitted that as far as the

State Government was concerned, promotion

to the posts of CDPO and ACDPO were made

following the Recruitment Rules framed by

the State Government and hence there was no

question of any violation of any mandatory

direction under the ICDS Project. It was

also the stand of the State Government that

the writ petitioners were Government

employees and were not, therefore, entitled

to file a writ petition in the High Court

regarding their service conditions and that

they should have instead approached the

State Administrative Tribunal for necessary

relief.

17

17. Mr. Venugopal urged that the approach of

the High Court was completely wrong since

the Scheme itself stipulated that though

the same was a Centrally Sponsored Scheme

its implementation was left entirely to the

State Governments which were funded by the

Central Government to the extent of about

50% of the actual expenditure. Mr.

Venugopal also emphasised that a specific

provision had been made in the Scheme for

its implementation and that in paragraph 47

of the Scheme it has been indicated as

follows:

"Even though funds will be provided by the Central Government, the Staff will be borne on the appropriate cadres of the States and therefore, the State should sanction the posts (as per Appendix) in the appropriate corresponding State pay scale. The anganwadi workers and their helpers will be honorary workers."

18. Mr. Venugopal urged that the finding of the

learned Single Judge, that the private

respondents herein were not State 18

Government staff but Project workers in

connection with the Scheme, was in complete

variance with paragraph 47 of the Scheme

and apparently even the Division Bench in

appeal had not considered the said

provision properly. Mr. Venugopal, however,

urged that if the status of Project workers

given to the respondents by the High Court,

was to be accepted, it would amount to

accepting the fact that the respondents

were left with no job security and that

with the completion of the Project, their

services would stand the danger of being

terminated without any retiral benefits.

Mr. Venugopal submitted that it was in the

interest of the private respondents that

the orders passed by the learned Single

Judge and the Division Bench holding them

to be Project workers be set aside.

19. Mr. Apurba Lal Basu, learned Senior

Advocate, appearing for the respondent

Nos. 6 to 9 , who were similarly placed as 19

the respondent Nos. 1 to 3, adopted the

submissions made by Mr. Venugopal but also

relied on the affidavit filed by the

respondent No.7 on his own behalf and on

behalf of the respondent Nos. 8 to 10

wherein it was also indicated that the fact

that the staff of the ICDS Project were

State Government employees, would be

evident from the facts that their services

are interchangeable in different projects

of the State Government according to the

needs and exigencies of the concerned

Departments of the State Government. Taking

the case of the respondent No.1 as an

example, Mr. Basu submitted that she had

been appointed on 22.3.1984 by the State

Government in the Department of Social

Welfare as Supervisor of the ICDS Project

at Jagat Ballavpur in the District of

Howrah in West Bengal in the pay-scale of

Rs.380-910/- which is scale No.9 of the

Revision of Pay and Allowances Rules, 1991, 20

together with usual allowances as

admissible under Government orders from

time to time. He urged that the other

conditions of service of the respondent

No.1 were the same as those applicable to

other Government employees of the same

category under the Rules and orders of the

State Government.

20. Mr. Basu submitted that both the learned

Single Judge and the Division Bench of the

High Court misconstrued the provisions of

the Scheme and in particular the provisions

contained in paragraph 47 thereof.

21. Ms. Amreshwari, learned Senior Advocate,

who appeared for the Central Government

also adopted the submissions made by Shri

Venugopal and Mr.Basu, and submitted that

in terms of the ICDS Scheme, the employees

thereof were to be borne on the State cadre

and were subject to service conditions of

similarly placed State Government

employees.

21

22. Mr. Saharangshu Bhattacharya, learned

advocate, who appeared for the respondent

Nos.1 to 3, submitted that under the ICDS

Project the financial responsibility for

the implementation of the Scheme has been

mentioned in paragraph 35 of the Scheme

which, inter alia, provides that the said

Scheme had been classified as a Centrally-

sponsored programme to be implemented

through the State Government with full

financial assistance from the Central

Government for inputs, other than

supplementary nutrition, which would have

to be looked after by the State Government.

The Scheme also contemplates active

involvement of voluntary organizations,

local bodies, Panchayati Raj Institutions,

in implementing and soliciting community

support. The object of the Scheme was to

entrust the running of Anganwadis to

voluntary organizations, local bodies and

Panchayati Raj Institutions and provide 22

them with grant-in-aid on the basis of the

support required for the Anganwadis. It was

also indicated that the State Government

could thus run an Anganwadi only if no

organization as suggested was available.

23. Mr. Bhattacharya reiterated the

submissions made before the High Court that

the State Government was functioning only

as a nodal agency and that the writ

petitioners were all Project employees and

could not be regarded as State Government

employees. Mr. Bhattacharya urged that both

the learned Single Judge and the Division

Bench of the High Court had rightly came to

the conclusion that the writ petitioners

before the High Court were all employed in

the ICDS Project and their promotion from

the post of Supervisor to the post of CDPO

would have to be governed under the

provisions of the Scheme itself and the

State Government could not regulate such

appointment and/or promotion in any manner 23

other than what had been set out in the

Scheme.

24. Mr. Bhattacharya submitted that in the Writ

Petition filed by the respondent Nos. 1 to

3 herein two-fold prayers had been made -

(i) for a writ in the nature of Mandamus to

command the respondents to fill up 75% of

the posts of CDPO and ACDPO by way of

promotion from the female Supervisors

working under the Project as per the

provisions of the Scheme and (ii) a further

writ in the nature of Mandamus commanding

the respondents to cancel and set aside the

promotion of the candidates to the post of

CDPO outside the cadre of Supervisor under

the ICDS Scheme and in addition to cancel

and/or rescind the promotion of the

candidates who had not fulfilled the

requisite qualification of being a graduate

in Social Science. In support of his

submission Mr. Bhattacharya referred to the

decision of this Court in State of Haryana 24

vs. Piara Singh and others [(1992) 4 SCC

118], wherein while considering the case of

ad hoc temporary employees in temporary

organizations like the Adult Education

Scheme and the Integrated Child Development

Scheme, it was held that a person who had

continued in service for more than one year

without notional breaks, would be entitled

to the benefits of service and the benefits

of directions issued by this Court in the

case of Bhagwan Dass vs. State of Haryana

{(1987) 4 SCC 34], and none of the services

of such ad hoc temporary employees would be

terminated except on abandonment of the

Scheme.

25. Mr. Bhattacharya submitted that both the

learned Single Judge and the Division Bench

had rightly come to the conclusion that the

writ petitioners were Project employees and

not employees of the State Government and

they were not, therefore, amenable to the 25

conditions of service of State Government

employees.

26. Having considered the submissions made on

behalf of the respective parties, we find

ourselves unable to agree with the

reasoning either of the learned Single

Judge or the Division Bench of the High

Court in holding that the writ petitioners

were Project employees in respect of the

ICDS Project and not employees of the State

Government and that their services were co-

terminus with the Project. Paragraph 35 of

the Scheme clearly provides that though the

same was a Centrally-sponsored scheme, its

implementation was left to the respective

State Governments with 100% financial

assistance from the Central Government for

inputs other than supplementary nutrition

which was identified as the responsibility

of the State Government. In fact,

paragraph 47 of the Scheme, which has been

extracted hereinabove, in no uncertain 26

terms makes it very clear that even though

funds for the Scheme would be provided by

the Central Government, the staff would be

borne on the appropriate cadres of the

States which would sanction the posts in

the appropriate corresponding State pay

scale. In the face of such provision it is

difficult to accept that the writ

petitioners were Project workers and not

employees of the State Government.

27. From the various Annexures set out in the

Special Leave Petition and referred to by

Mr. Venugopal it will be apparent that

persons appointed as Child Development

Project Officers of the Integrated Child

Development Scheme Project were employees

of the State Government as contemplated

under Paragraph 47 of the Scheme. The

notification dated 3rd June, 1983, issued by

the Relief and Welfare Department,

Department of Government of West Bengal

provides for the constitution of the West 27

Bengal, Junior Social Welfare Service which

includes Child Development Project Officers

of the ICDS Project. From the orders of

appointment issued by the Director of

Social Welfare, Government of West Bengal

on 22nd March, 1984, 29th March, 1984 and 31st

March, 1984 in favour of respondent Nos. 1,

2 and 3, it will be apparent that the

service conditions of the said respondents

were also to be that as were applicable to

other government servants of the same

category under the Rules and Orders of the

Government.

28. Even the Rules made on 11th October, 1985 in

supersession of the earlier Rules framed by

the Department of Relief and Welfare,

Government of West Bengal, dated 23rd March,

1981, which deals with the method of and

the qualifications required for recruitment

to posts included in the West Bengal Junior

Social Welfare Services under the Welfare

Branch of the Relief and Welfare Department 28

of the State Government provides that the

Appointing Authority would be the Governor

of West Bengal and that the method of

recruitment would be by selection on the

results of the West Bengal Civil Services

(Executive) Examination or by promotion on

the basis of a preliminary written test to

be conducted by the Public Service

Commission, West Bengal, for screening of

candidates, followed by interview of the

successful candidates by the said

Commission. Since the ICDS Project was

included under the W.B.J.S.W.S., the said

Rules of 1985 would no doubt be applicable

to the Officers of the said Scheme as well.

29. Subsequently, on 16th December, 1989 further

Rules were made in the Relief and Welfare

Department (Welfare Branch) of the

Government of West Bengal relating to

recruitment of Supervisors in the ICDS

Project which again provides that the

Appointing Authority would be the 29

Directorate of Social Welfare, West Bengal.

A similar notification dated 23rd December,

2002, was issued by the Department of Women

and Child Development and Social Welfare,

Government of West Bengal, regarding the

post of ACDPO where again the Appointing

Authority is the Director of Social

Welfare, West Bengal.

30. All the aforesaid Rules promulgated by the

State Government under Paragraph 47 of the

Integrated Child Development Scheme leaves

little room for doubt that the respondent

Nos. 1, 2 and 3 and others similarly

situated, were, in fact, State Government

employees. The learned Single Judge, as

well as the Division Bench of the High

Court, appear to have been swayed by the

submissions made on behalf of the

respondent Nos. 1, 2 and 3 (writ

petitioners before the High Court) that the

State of West Bengal is merely a nodal

agency to supervise the implementation of 30

the Scheme which was in the nature of a

Project and that the employees thereunder

were, therefore, Project employees,

overlooking the overall intention and

object of the Scheme that in order to

provide child care and nutrition for

children and lactating mothers, the Central

Government was willing to fund the entire

project but left the implementation thereof

to the State Governments who were

authorized under the Scheme to appoint the

staff of the Project, who were to be borne

on the appropriate cadres of the States.

Paragraph 35 of the Scheme, which deals

with the functional responsibilities, makes

this position very clear.

31. Having regard to the above, we are unable

to accept the reasoning both of the Learned

Single Judge and the Division Bench of the

High Court. We accordingly allow the

Appeal and dismiss the Writ Petition filed

by the respondent Nos. 1, 2 and 3. 31

32. There will, however, be no order as to

costs.

________________J.

(ALTAMAS KABIR)

________________J.

(MARKANDEY KATJU) New Delhi Dated: December 10,2008