Holding

Anganwadi workers and helpers are not holders of civil posts; therefore the Administrative Tribunal had no jurisdiction to entertain their application.

Summary

The Supreme Court examined whether Anganwadi workers and helpers appointed under the Integrated Child Development Services (ICDS) scheme are holders of civil posts within the meaning of Articles 309, 310 and 311 of the Constitution. The workers, who are selected by a committee, receive only an honorarium and are not appointed on a pay‑scale or under any statute. They had approached the Karnataka State Administrative Tribunal seeking protection as civil servants, but the Tribunal held them to be civil posts. The Court held that the posts are created by a scheme, not by law, do not involve any function of the State, and are not governed by the constitutional scheme of civil service; consequently the workers are not civil servants and the Tribunal lacked jurisdiction. The appeals by the State of Karnataka were allowed, setting aside the Tribunal’s decision. No costs were awarded.

Issues considered

Whether Anganwadi workers and helpers appointed under the ICDS scheme are holders of civil posts within the meaning of Articles 309, 310 and 311 of the Constitution.
Whether the Administrative Tribunals Act, 1985 applies to the workers’ grievance.
Whether the workers are entitled to minimum wages or parity of employment under the Minimum Wages Act.

Legislation cited

Administrative Tribunals Act, 1985s. 14, s. 15, s. 80
Minimum Wages Act, 1948

Subjects

Anganwadi workersCivil postArticles 309-311Administrative Tribunals ActIntegrated Child Development ServicesHonorariumMinimum Wages ActEmployment lawStatutory postScheme appointment

Judgment

STATE OF KARNATAKA AND ORS. A
v.
AMEERBI AND ORS.

DECEMBER 7, 2006

[S.B. SINHA AND MARKANDEY KAT JU, JJ.] B

Constitution of India, 1950-Articles 309 and 310-Protection under,
to Anganwadi workers and helpers-Entitlement of-Held: Posts ofAnganwadi
workers are not statuto1y posts but created under a Scheme-They do not C
carry any function of the State-Appointments and recruitment process is
carried out through a Committee-Appointment is not ofa permanent nature-
Anganwadi workers and helpers are not appointed on pay scale but paid
honorarium-Thus, are not holders of civil post.

Central Government floated Integrated Child Development Service D
Programme and funded it, though its application was in hands of the State
Government. Anganwadi workers and helpers were appointed from
amongst the local inhabitants for the projects. Selection was done by
Committee. Anganwadi workers filed an application before the State
Administrative Tribunals that they are workers and helpers working 'in
various Anganwadi and are entitled to be treated as civil servants. E
Tribunal held the application to be maintainable opining that although
Anganwadi workers and helpers are paid honorarium, they hold civil post.
Hence the present appeals.

Allowing the appeals, the Court
F
HELD: 1.1. Anganwadi workers do not carry on any function of the
State. The posts of Anganwadi workers are not statutory posts. Their posts
are not created under the statute. They have been created in terms of the
scheme. Recruitment rules ordinarily applicable to the employees of the
State are not applicable in their case. No process of selection for the G
purpose of their appointment within the constitutional scheme existed. The
State is not required to comply with the constitutional scheme of equality
as adumbrated under Articles 14 and 16 of the Constitution. It is one thing
to say that there exists a relationship of employer and employee by and

329 H
330 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.

A between the State and Anganwadi workers bat it is another thing to say
that they are holders of civil post. [335-G-H; 336-A)

1.2. Anganwadi worke~s and helpers were not to be appointed on a
pay scale. They are to be paid honorarium. There is no fixed criteria as
regards honorarium. [333-H; 334-A)
B
1.3. Anganwadi workers have right to contest an election. A holder
ofa civil post may not be entitled thereto. [340-F-G)

1.4. Rules framed under proviso to Article 309 of the Constitution
are not attracted in the case of the respondents. They are appointed under
C a scheme on year to year basis. It is not of a permanent nature though it
might have continued for a long time. Appointments made under a scheme
and recruitment process being carried out through a committee, would
not render the incumbents thereof holders of civil post. [340-B-C)

1.5. A distinction must be made about a post created by the Central
D Government or the State Governments in exercise of their power under
Articles 77 or 162 of the Constitution or under a statute vis-a-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
E 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. [340-C-E)

1.6. Reference to the provisions of the Minimum Wages Act, is not
apposite. The said Act is applicable to the workmen working in the
F industries specified therein. It is not the case of the respondents that the
ICDS programme would constitute an 'industry' or Anganwadi workers
are industrial workmen. There cannot be any doubt whatsoever that it is
one thing to say that the State would be liable to pay minimum wages
irrespective of its financial constraints but it is another thing to say that
G 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. [341-F-H]

1.7. The doctrine of parity of employment cannot be invoked. It is true
that nomenclature of a term of payment is not decisive but the substance, but
H the question has to be determined having regard to the issue involved. With
STATE OF KARNATAKA v. AMEERBI 331
regard to one question, vi7.., whether the respondents are holders of any civil A
post, having regard to the materials on record, it is held that they are not
holders of any civil post. In view of the facts and circumstances, the tribunal
has no jurisdiction to entertain the application. (342-E-G J

State ofAssam & Ors. v. Shri Kanak Chandra Dutta (196711SCR679
and R.N.A. Britto v. Chief Executive Officer and Ors., (19951 4 SCC 8, B
distinguished.

Nagarathna B.K. & Ors. v. The Secretary, Social Welfare Dept. & Ors.,
(1992) K.S.L.J. 177; Union of India and Ors. v. Deep Chand Pandey and
Anr., (19921 4 SCC 432; State of U.P. and Ors. v. Chandra Prakash Pandey C
and Ors., (200114SCC78; The Superintendent of Post Offices and Ors. v.
P.K. Rajamma, (1977) 3 SCC 94; Secretary, State of Karnataka and Ors. v.
Umadevi (3) and Ors., (200614 SCC l; District Rehabilitation Officer & Ors.
v. Jay Kishore Maity & Ors., (2006) 11 SCALE 545; Ramakrishna Kamat
and Ors. v. State of Karnataka and ·ors., (2003] 3 SCC 374; Satrucharla
Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and Anr., (1992J 4 D
SCC 404; Maruti Udyog ltd. v. Ram Lal and Ors, (2005) 2 SCC 638; State of
Bihar & Ors. v. Amrendra Kumar Mishra, (2006) 9 SCALE 549; Regional
Manager, SB/ v. Mahatma Mishra (2006) 11 SCALE 258 and Jaya Bachchan
v. Union of India and Ors., (20061 5 SCC 266, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4953-4957 E
of 1998.

From the Order dated 9.8;1996 of the Kamataka Administrative Tribunal
at Bangalore in Application No. 2841 to 2845/1996.

Sanjay R. Hedge, Anil K. Mishra, Vikrant Yadav and Sashidhar for the F
Appellants.

Indira Jaisingh, Vikas R. and E.C. Vidya Sagar for the Respondent No.5.

Rekha Pandey and Sushma Suri for the Union of India.
G
S.S.S. Reddy, S. Usha Reddy, Keerti Singh, Anitha Shenoy and
Meenakshi Arora for the Intervenors.

The Judgment of the Court was delivered by

H
332 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A S.B. SINHA, J. The Central Government floated a Scheme known as
Integrated Child Development Service (ICDS) Programme in the year 1975. It
is funded by the Central Government. Its application, however, is at the hands
of the respective States. Anganwadi workers are appointed from amongst the
local inhabitants. Selection is made by a committee. Under the Scheme, about
B one hundred Anganwadi workers are required to be recruited from each of the
urban and rural projects and 50 for the tribal projects, whereas one for each
Anganwadi Worker is to be appointed as a helper. The staff pattern for ICDS
Project is stated in para 3.1.18 of the Scheme which is as under:

"3.1.18 Staff for ICDS Project: Presently, a normal !CDS project has
c one post each ofCDPO, Assistant, Statistical Assistant, Clerk/ Typist,
Driver and Peon. Thus the present staff has 3 ministerial hands, namely,
the Statistical Assistant, Assistant and LDC. For manning these 3
posts, the State Govemments/UTs can chose any 3 suitable class Ill
(Category C) posts and designations (such as Senior Clerk, UDC, Jr.
Clerk, LDC, Accountant, Accounts Clerk etc.) and let these 3 posts
D 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
E 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. & Ors. v. The Secretary, Social Welfare Dept. &
F 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 judgment, the Tribunal held the said application to be maintainable
opining that although Anganwadi workers and helpers are paid honorarium,
G they hold civil post.

The State of Karnataka is before us questioning the correctness of the
said judgment. This Court issued notice to Union of India also. It has also
filed a counter affidavit.

H Mr. Sanjay R. Hegde, learned counsel appearing on behalf of the
appellants, took us through the scheme and submitted that whereas certain
STATEOFKARNATAKAv.AMEERBI[S.B. SINHA,J:] 333

posts are sanctioned and created, bulk of them are not sanctioned and A
required to be filled up from amongst the volunteers from the community. It
was contended that they merely act as conduit to implementation of some
welfare schemes. They may have to work for a maximum period of 4 and 112
years. They are not holders of civil posts. They can contest elections. It was
submitted that for filling up of the said posts, no advertisement is required B
to be made, nor the provisions of the recruitment rules are required to be
complied with.

Ms. Rekha Pandey, learned counsel appearing on behalf of Union of
India would support the contention of Mr. Hegde supplementing that
Anganwadi workers are appointed on a budget scheme and if it is to be held C
that they and their helpers who were to work as volunteers to render certain
services, are treated to be State Government or Central Government employee,
the scheme itself would become non-functional. The scheme of the Central
Government, it was pointed out, is an All India scheme and in the event the
judgment of the Tribunal is upheld, the same would lead to serious financial
implications. D
Ms. Indira Jaisingh, learned senior counsel appearing on behalf of the
respondents, on the other hand, would submit that the question as to whether
Anganwadi workers hold civil post or not must be considered having regard
to the tests laid down by this Court in determination of the relationship of
employer and employee. E
The learned counsel would urge that casual railway employees, part-
time employees having been held by this Court to be holders of civil post,
there is no reason as to why the respondents would be treated differently. It
was submitted that Anganwadi workers must not be paid wages less than the F
minimum wages fixed by the State as the same would amount to beggary.
Emoluments of an employee, the learned counsel would urge, must be fair
and reasonable.

It was further submitted that the nomenclature of payment is not decisive.
Our attention in this connection has also been drawn to the definition of G
'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. l. \&
of the Scheme as noticed hereinbefore. Indisputably Anganwadi workers and H
334 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.

helpers were not to be appointed on a pay scale. They are to be paid
A honorarium. The amount of honorarium has since been increased and just at
present is as under:

"Anganwadi Workers
Qualification/
Expreience 1975-76 1.4.78 1.7.96 2.10.92 16.5.97 1.4.02
B Non Matriculate 100/- 125/ 225/- 350/- 438/- 938/-
Matriculate 150/- 175/- 275/- 4001- 5001- 10001-
Non - - 250/- 375/- 469/- 969/
Matriculate
with 5 years
c exp.
Matriculate - - 300/- 425/- 531/- 1031/-
with 5 years
exp.
Non - - 275/- 400/- 5001- 10001-
Matriculate
with 10 yrs.
Exp.
Matriculate - - 325/- 450/- 563/- 1063/-
with 10 yrs.
E Exp.

Anganwadi Helpers

I Helpers I 35/- 50/- 110/- 200/- 260/- 500/-''
F The Scheme is on a year to year basis. The Scheme although is to be
directly under the control of the State Governments, the financial burden is
to be borne by the Central Government.

There is no fixed criteria as regards honorarium. Some States pay
honorarium as fixed by the Central Government but some others pay additional
G honorarium from their own resources. Union of India has also constituted a
Review Committee pursuant to its recommendations the following benefits
have been granted:

"i. The Anganwadi Workers and Helpers have been allowed 'paid
STATEOFKARNATAKAv. AMEERBI (S.B. SINHA,J.] 335
absence' on maternity for a period of 135 days vide letter dated A
28.122001.

ii. The U.0.1. initiated a scheme, on a year to year basis for awards
for selected Anganwadi workers on the basis of their dedication and
performance. The scheme for award for Anganwadi workers was first
introduced for 2000-200 l and thereafter extended for 2002-2003 is B
under process. The scheme provides for:

(a) Award at the Central-level comprising of cash of Rs. 25,000/- and
a citation for 20 Anganwadi Workers, and

(b) Awards at the State-level comprising of cash of Rs. 2,500/- and C
a citation for 1275 selected Anganwadi Workers.

iii. The State Governments have been requested vide letter dated
28.02.200 l to consider and implement the following recommendations
of the committee, which call within the purview of the States:-

(a) State/UT Government should contribute some monetary incentive D
to these workers for the additional work assigned to the Anganwadi
Workers and Helpers under various schemes and programmes.

(b) "Anganwadi Workers and Helpers Welfare Fund" may be set up
by the State/UT Governments at the State/UT level out of the E
contribution from Workers/ Helpers and State/UT Governments.

(c) State/UT Governments should provide group insurance facilities to
Anganwadi Workers and Helpers.

(d) The honorary contributfon in Anganwadi centers ·by Anganwadi
Workers and Helpers should be treated as additional qualifications F
for recruitment as primary school teachers, ANMs and other such
village based positions. Specific quota for recruitment in these positions
may be fixed up."

Recommendations of the Committee have also been directed to be
implemented by the States which would fall within their purview. G
The posts of Anganwadi workers are not statutory posts. They have
been created in terms of the scheme. It is one thing to say that there 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 H
336 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 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.
B
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
C 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,
D when they do not form part of the records.

Before we advert to the rival contentions of the parties, we intend to
examine the decision of this Court whereupon strong reliance has been placed
by the learned course for the respondents.

E In State of Assam & Ors. v. Shri Kanak Chandra Dutta, [1967] l SCR
679, the question before a Constitution Bench was as to whether a Mauzadar
appointed for the purpose of collection of revenue under a system prevailing .
in the Assam Valley would be holder of a civil post. A11swer to the said
question was rendered in the affirmative opining:

F "The question is whether a Mauzadar is a person holding a civil post
under the State within A1t. 311 of the Constitution. There is no formal
definition of "post" and "eivil post". The sense in which they are
used in the Services Chapter of Part XIV of the Constitution is
indicated by their context and setting. A civil post is distinguished in
A1t. 310 from a post connected with defence; it is a post on the civil
G as distinguished from the defence side of the administration, an
employment in a civil capacity under the Union or a State. See
marginal note to Art. 311, In Art. 311, a member of a civil service
of the Union or an all-India service or a civil service of a State is
mentioned separately, and a civil post means a post not connected
with defence outside the regular civil services. A post is a service or
H
STATEOFKARNATAKAv.AMEERBI[S.B. SINHA,J.] 337

employment. A person holding a post under a State is a person A
serving or employed under the State. See the marginal notes to Arts.
309, 31 O to 311. The heading and the sub-heading of Part XIV and
Chapter I emphasise the element of service. There is a relationship of
master and servant between the State and a person holding a post
under it. The existence of this relationship is indicated by the State's B
right to select and appoint the holder of the post, its right to suspend
and dismiss him, its right to control the manner and method of his
doing the work and the payment by it of his wages or remuneration.
A relationship of master and servant may be established by the
presence of all or some of these indicia, in conjunction with other
circumstances and it is a question of fact in each case whether there C
is such a relation between the State and the alleged holder of a post.

·-' In the context of Arts. 309, 310 and 311, a post denotes an office. A
person who holds a civil post under a State holds "office" during the
pleasure of the Governor of the State, except as expressly provided
by the Constitution. See Art. 3 I 0. A post under the State is an office D
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 E
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 F
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
remuneration by way of a commission and sometimes a salary; (iv) there G
exists a relationship of a Master and a Servant; (v) he holds an office on the
revenue side of the administration to which specific and onerous duties in
connection with the affairs of the State are attached; (vi) the office falls
vacant on the death or removal of the incumbent; (vii) he is a responsib\e
officer exercising delegated powers of Government; (viii) he is appointed H
338 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A revenue officer.
Anganwadi workers, however, do not carry on any function of the State.
They do not hold post under a statute. Their posts are not created. Recruitment
rules ordinarily applicable to the employees of the State are not applicable in
their case. The State is not required to comply with the constitutional scheme
B of equality as adumbrated under Articles 14 and 16 of the Constitution of
India. No process of selection for the purpose of their appointment within the
constitutional scheme existed. We do not think that the said decision has any
application in the instant case.

Our attention has also been drawn to a decision of this Court in Union
C of India and Ors. v. Deep Chand Pandey and Anr., [1992] 4 SCC 432,
wherein casual employees were found to come within the purview of Section
14(1) of the Act holding: .,,.
•.
" ....An examination of Section 14 and Section 3(q) clearly indicates
that the Act covers a very wide field, and there is nothing to suggest
D
that the provisions dealing with the jurisdiction of the Tribunal should
receive a narrow interpretation .... "

In that case, the employees were seeking temporary status. They had
claimed their right to continue in employment. In view of the nature of claim,
E it was opined by this Court that the application under Section 14 of the Act
was maintainable.

Local bodies employees having regard to the notification issued under
the Act were also held to come within the purview of the Act in R.N.A. Britto •,.
v. Chief Executive Officer and Ors., [1995] 4 SCC 8, wherein following Shri
F Kanak Chandra Dutta (supra) it was held that the Panchayat Secretaries
having regard to the provisions of the Kamataka Village and Local Boards
Act are government servants, stating:

"13. Another significant provision is Sub-section (2) of Section 80 of
the Act which says that subject to the provisions of Rules made under
G the proviso to Article 309 of the Constitution, the qualifications,
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
H
_,.,
STATE OF KARNATAKA v. AMEERBI [S.B. SINHA, J.] 339

show that several functions which were required to be perfonned by A
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 B
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 c
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 Rules made under the proviso of
Article 309 of the Constitution, the qualifications, powers, duties,
remuneration and conditions of service including disciplinary matters
of such Secretary shall be such as may be prescribed, it leaves no D
room for doubt that the Secretaries of the Panchayats are Government
servants, like other Government servants, who are subjected to the
Rules to be made under the proviso to Article 309 of the Constitution
as regards their service conditions."

The said decision ex facie cannot be said to have any application in
E
the instant case.

Reliance has also been placed by Ms. Jaisingh on State of UP. and
Ors. v. Chandra Prakash Pandey and Ors., [2001] 4 SCC 78, The question
which was involved therein was appointment of Kurk Amins on salary basis F
..,, for realization of dues of cooperative society. Again following Shri Kanak
Chandra Dutta (supra), it was held that Kurk Amins having been appointed
by the State for the purpose of collection of revenue would be holders of civil
post.

We may, however, notice that the Bench referred to a decision of this G
Court in The Superintendent of Post Offices and Ors. v. P.K. Rajamma,
[ 1977] 3 SCC 94, where extra-departmental agent was held to be not a casual
workers but holds a post under the administrative control of the State.

In P.K. Rajamma (supra), a 3-Judge Bench of this Court made a
distinction between a post held under the administrative control of a State H
340 SUPREME COURT REPORTS [2006) SUPP. IO S.C.R.

A and another who is a casual workers.

Each of the decisions referred to hereinbefore centers round application
of a statute. In all those cases, posts are statutory ones. Tenns and conditions
of services of the holder of the posts were governed by statutes.

B However, rules framed under proviso to Article 309 of the Constitution
of India are not attracted in the case of the respondents. They are appointed
under a scheme which is not of a permanent nature although might have
continued for a long time.

Appointments made under a scheme and recruitment process being
C carried out through a committee, in our opinion, would not render the
incumbents thereof holders of civil post. Our attention has not been drawn to
any rule or regulation governing the mode of their recruitment. Some
statements in this behalf have been made by the interveners but for the
reasons stated hereinbefore, we cannot enter thereinto. A distinction must be
D made about 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-a-vis cases of this nature who are sui generis.
Tenns 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
E power upon the President or the Governor of a State or other authority, who
may be delegated with such power, 10 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 Ors. v. Umadevi (3) and
\
F Ors., [2006] 4 sec I.

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.

G in Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev
and Anr., [1992] 4 SCC 404, this Court while considering the provisions of
Article 19l(l)(a) of the Constitution of India in relation to the posts held by
the employees of an Integrated Tribal Development Agency opined that their
employees would not be holder of office of profit although the State exercises
H control thereover holding:
.,.. STATE OF KARNATAKA v. AMEERBI[S.B. SINHA,J.] 341

"It is also necessary to bear in mind that the Government is A
undertaking several projects and activities including commercial
activities through the corporations and local bodies exercising some
control over such corporations or bodies. In that view of the matter
they may come within the meaning of the "State" envisaged in Article
12 but that may not be a decisive factor in deciding the issue. As a B
matter of fact Section I 0 of the Representation of People Act as well
as Article 58(2) of the Constitution oflndia do indicate that all persons
employed in such undertakings, corporations or local bodies cannot
be deemed to suffer disqualification for contesting the elections except
to the extent indicated therein. This aspect also has been conside!ed
in some of the above-mentioned decisions. If a strict and narrow C
construction is to be applied that amounts to shutting cff many
prominent and other eligible persons to contest the elections which
forms the fundamental basis for the democratic set-up. Therefore
several factors as indicated above depending upon the facts of each
case have to be taken into consideration in deciding whether a
particular person is disqualified by virtue of his holding an office of D
profit before concluding that such an office is under the
Government.. .. "

The decision, therefore, is an authority for the propositi~n that those
employees who come within the meaning of Article 12 of the Constitution of E
India are not necessarily government servants. A'fortiori the State in terms
of a scheme may exercise control over a section of the persons working but
thereby only, they do not become entitled to protection under Article 311 of
the Constitution of India.

Reference to the provisions of the Minimum Wages Act, in our opinion, p
is also not apposite. The said Act is applicable to the workmen working in
the industries specified therein. It is not the case of the respondents that the
ICDS programme would constitute an 'industry' or Anganwadi workers are
industrial workmen. There cannot be any doubt whatsoever that it is one
thing to say that the State would be liable to pay minimum wages irrespective
of its financial constraints but it is another thing to say that as to whether G
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 H
342 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 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.

B This Court cannot determine a !is only on sympathy.

In Ramakrishna Kamat and Ors. v. State ofKarnataka and Ors., [2003]
3 SCC 374, albeit in the light of right of regularization in service, this Court
opined:

c " ... .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 the case. While being sympathetic
to the persons who come before the court the courts cannot at the
same time be unsympathetic to the large number of eligible persons
D
waiting for a long time in a long (SIC) seeking employment. .. "

[See also Maruti Udyod Ltd v. Ram Lal and Ors., [2005] 2 SCC 638,
State of Bihar & Ors. v. Amrendra Kumar Mishra, [2006] 9 SCALE 549 and
Regional Manager, SBiv. Mahatma Mishra, [2006] 11 SCALE 258]
E It is also not a case where the doctrine of parity of employment can be
invoked. It is true that nomenclature of a term of payment is not decisive but
the substance is as was held in Jaya Bachchan v. Union of India and Ors.,
[2006] 5 sec 266, but the question has to be determined having regard to
the issue involved. We are concerned herein with only one question, viz.,
F whether the respondents are holders of any civil post. We are, having regard
to the materials on record, of the view they are not.

Keeping in view of the facts and circumstances of this case, we are of
the opinion that the Tribunal has no jurisdiction to entertain the application.
The appeals are allowed accordingly. No costs.
G
N.J. Appeals allowed.

,,.