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TMI Blog2006 (12) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... aff has 3 ministerial hands, namely, the Statistical Assistant, Assistant and LDC. For manning these 3 posts, the State Governments/UTs can chose any 3 suitable class III (Category C) posts and designations (such as Senior Clerk, UDC, Jr. Clerk, LDC, Accountant, Accounts Clerk etc.) and let these 3 posts be manned by them. These posts can carry pay scales as per State Government's rules and this Ministry will provide funds fully for all such posts. The redesignation of these posts would depend upon the nature and the type of work involved at the project headquarters and the precise types of personnel whom the State Government consider fit for such work." Anganwadi workers filed an application purported to be under Section 15 of the Administrative Tribunals Act, 1985 (for short "the Act") before the Karnataka State Administrative Tribunal. In one of such applications being Nagarathna B.K. & Others v. The Secretary, Social Welfare Dept. & Others [1992 K.S.L.J. 177], it was held that the said application was not maintainable. Correctness of the said decision came to be questioned. The matter was referred to a larger bench of the Tribunal. By reason of the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted that the nomenclature of payment is not decisive. Our attention in this connection has also been drawn to the definition of 'post' as contained in Section 3(k) of the Act. The Scheme was floated by the Central Government with certain objects. The staff pattern at the project level has been laid down in the Scheme itself. What would be meant by sanctioned post is evident from paragraph 3.1.18 of the Scheme as noticed hereinbefore. Indisputably Anganwadi workers and helpers were not to be appointed on a pay scale. They are to be paid honorarium. The amount of honorarium has since been increased and just at present is as under: "Anganwadi Workers Qualification/ Experience 1975-76 1.4.78 1.7.96 2.10.92 16.5.97 1.4.02 Non Matriculate 100/- 125/ 225/- 350/- 438/- 938/- Matriculate 150/- 175/- 275/- 400/- 500/- 1000/- Non Matriculate with 5 years exp. - - 250/- 375/- 469/- 969/- Matriculate with 5 years exp. - - 300/- 425/- 531/- 1031/- Non Matriculate with 10 yrs. Exp. - - 275/- 400/- 500/- 1000/- Matriculate with 10 yrs. Exp. - - 325/- 450/- 563/- 1063/- The Scheme is on a year to year basis. The Scheme a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here exists a relationship of employer and employee by and between the State and Anganwadi workers but it is another thing to say that they are holders of civil post. We are not oblivious of the fact that their presence in their respective villages is extremely important. They are supposed to make significant contribution to the society. They, we understand, are required to carry a large number of activities, primarily amongst them being the welfare of the children. In a written submission, the interveners state that Anganwadi workers as of necessity are required to perform a large number of functions. We, however, are not inclined to consider the correctness or otherwise of the said statements made before us for the first time. No material in this behalf was brought on the records of the Tribunal. The Tribunal proceeded to deliver its judgment applying certain principles and overruling the decision of the Division Bench, the correctness whereof falls for our decision. We, as at present advised, are not inclined to enlarge the scope of this appeal and, thus, refuse to go to the factual details of the matter, particularly, when they do not form part of the records. Before we adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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." Applying the said principles of law, it was held that a Mauzadar holds a civil post under the State as : (i) the State has the power and the right to select and appoint him; (ii) he is subordinate to public servant; (iii) he receives remuneratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers, duties, remuneration and conditions of service including disciplinary matters of such Secretary shall be such as may be prescribed. 14. The provisions in the Act to which we have adverted, clearly show that several functions which were required to be performed by the State are entrusted to the Panchayats. They also show that the properties vested in the Panchayats and the funds of the Panchayat are that of the Government and those collected by way of tax or fee by exercising the power of taxation vested in the Panchayat by the Government. Above all, provisions of the Act make it abundantly clear that the Panchayats have to function under the ultimate control of the State Government. When it comes to the Secretaries of the Panchayats appointed under the Act, their selection for appointment, their termination from service, their liability for transfer and all other conditions of their services are as provided for under the Rules made under the Act or other rules made under Article 309 of the Constitution in respect of services of the State Government servants. When Sub-section (2) of Section 80 of the Act to which we have adverted states that subject to the provisions of Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a post created by the Central Government or the State Governments in exercise of their power under Articles 77 or 162 of the Constitution of India or under a statute vis-`-vis cases of this nature who are sui generis. Terms and conditions of services of an employee may be referable to acts of appropriate legislature. The matter may also come within the purview of Article 309 of the Constitution of India as proviso appended thereto confers power upon the President or the Governor of a State or other authority, who may be delegated with such power, to make rules during the interregnum. The result of an appointment being made in violation of the Constitutional scheme has recently been noticed by a Constitution Bench of this Court in Secretary, State of Karnataka and Others v. Umadevi (3) and Others [(2006) 4 SCC 1]. One of the questions which was raised before us was in regard to the right of an Anganwadi worker to contest an election. They are indisputably free to do so. A holder of a civil post may not be entitled thereto. In Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and Another [(1992) 4 SCC 404], this Court while considering the provisions of Article 191(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inimum wages irrespective of its financial constraints but it is another thing to say that as to whether such a claim can be raised in respect of those who are working under a project. It is not a case where the concept of minimum wage, living wage or fair wage can be brought in service. Different tests applied even for determining the relationship of employer and employee have recently been noticed by this Court in District Rehabilitation Officer & Ors. v. Jay Kishore Maity & Ors.[2006 (11) SCALE 545]. In that case, in almost similar project, the employees appointed by the District Rehabilitation Centre claimed themselves to be the Central Government employees. Each case, therefore, has to be considered on its own merits. This Court cannot determine a lis only on sympathy. In Ramakrishna Kamat and Others v. State of Karnataka and Others [(2003) 3 SCC 374] albeit in the light of right of regularization in service, this Court opined: "It is clear from the order of the learned single Judge and looking to the very directions given a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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