# Kokila Sharma v. U.O.I. & Ors

- **Citation:** (2023) 12 ILRA 586
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-22
- **Case number:** Writ-A No. 5905 of 2023
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kokila-sharma-v-u-o-i-ors-49483
- **Pages:** 7

## Headnote

Law
-
Gratuity
Act,
1972Applicability-Anganwadi
Workers
and
Helpers-Petitioner
engaged
as
Anganwadi Worker since 2012-Claim for
parity in honorarium with other St.s and
benefit
of
Gratuity
Act-Relied
upon
Supreme Court judgment in Maniben
12 All. Kokila Sharma Vs. U.O.I. & Ors.
587
Maganbhai
Bhariya
Vs
District
Development Officer Dahod, Civil Appeal
No.
3153
of
2022-Held,
Anganwadi
Centres constitute "establishments" under
the Act-AWWs and AWHs fall within
definition of "employee", "employer" and
"wages"-U.P.
Govt.
Order
dated
21.03.2023 governing service conditions
is in line with 2013 Gujarat Rules-No
distinguishing
feature
between
AWWs/AWHs
in
Gujarat
and
U.P.-
Directions issued to extend benefits of
Gratuity Act within 4 months.

Held: Judgment of Hon'ble Supreme Court in
Maniben Maganbhai Bhariya (supra) squarely
applicable-Government Order of U.P. dated
21.03.2023
establishes
regulated
appointment, control, and service structureGratuity Act applicable to AWWs/AWHs in
U.P.-St. directed to ensure implementation
within four months.

Petition Allowed.

Case law discussed:

## Text

586 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Upon applicability of aforesaid
judgments
in
the
present
facts
and
circumstances of the case, a conclusion
thus is inevitable that the right to forego
promotion by an employee falls within the
realm of an inherent natural right of such a
person
and
any
restriction
imposed
thereupon
has
to
comply
with
the
conditions indicated in the judgments
referred to herein above, particularly in K.
S. Puttaswamy (supra). In the present facts
and circumstances of the case, it is evident
that the opposite parties have not been able
to
indicate
any
law
whereby
the
fundamental right of an employee to forego
promotion has been restrained. Even
otherwise, no such restrictions as indicated
would
fall
within
the
zone
of
reasonableness.

17. Aforesaid concept has also been
dealt with by the High Court of Bombay at
Goa in Pradeep D. Signapurkar(supra) in
the following manner:-

"Suffice it to state an employee
can
forgo
promotion
and
thus
a
promotion cannot be forced on an
employee.
The
order
dated
21st
September, 2019 does not deal with the
request of the Petitioner to be retained in
Goa as Upper Division Clerk. Whilst it
may be true that forgoing a promotion
does not confer an absolute right on an
individual not to be transferred, but
exigencies
of
service
have
to
be
humanized keeping in view the problems
faced by an individual."

18. This Court is in respectful
agreement with the ratio enunciated in
aforesaid judgment and therefore has no
hesitation in holding that an employee has a
right to forgo his promotion. It is also not
case of the opposite parties that petitioner
on his initial or his promotional post was
inefficient in working or caused any
pecuniary loss to Government or that there
were disciplinary proceedings pending
against him.

19. In view of aforesaid discussion,
the impugned orders dated 07.01.2022 and
15.12.2022 are hereby quashed by issuance
of a writ in the nature of Certiorari so far as
it relates to petitioner. Further, a writ in the
nature of Mandamus is issued commanding
the opposite parties to permit petitioner to
continue on the post of Collection Peon
with all concomitant rights of that post.

20. Resultantly, the petition succeeds
and is allowed. The parties to bear their
own costs.
----------
(2023) 12 ILRA 586
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.11.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ-A No. 5905 of 2023

Kokila Sharma ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Brijesh Kumar Tiwari

Counsel for the Respondents:
A.S.G.I., Anand Dwivedi, C.S.C.

Civil
Law
-
Gratuity
Act,
1972Applicability-Anganwadi
Workers
and
Helpers-Petitioner
engaged
as
Anganwadi Worker since 2012-Claim for
parity in honorarium with other St.s and
benefit
of
Gratuity
Act-Relied
upon
Supreme Court judgment in Maniben
12 All. Kokila Sharma Vs. U.O.I. & Ors.
587
Maganbhai
Bhariya
Vs
District
Development Officer Dahod, Civil Appeal
No.
3153
of
2022-Held,
Anganwadi
Centres constitute "establishments" under
the Act-AWWs and AWHs fall within
definition of "employee", "employer" and
"wages"-U.P.
Govt.
Order
dated
21.03.2023 governing service conditions
is in line with 2013 Gujarat Rules-No
distinguishing
feature
between
AWWs/AWHs
in
Gujarat
and
U.P.-
Directions issued to extend benefits of
Gratuity Act within 4 months.

Held: Judgment of Hon'ble Supreme Court in
Maniben Maganbhai Bhariya (supra) squarely
applicable-Government Order of U.P. dated
21.03.2023
establishes
regulated
appointment, control, and service structureGratuity Act applicable to AWWs/AWHs in
U.P.-St. directed to ensure implementation
within four months.

Petition Allowed.

Case law discussed:

1. Maniben Maganbhai Bhariya Vs District
Development Officer Dahod & anr., Civil Appeal
No. 3153 of 2022

2. St. of Karn. Vs Ameerbi, (2007) 11 SCC 681

3. Akhil Bhartiya Anganwadi Kamgar Union
(Regd.) Vs UOI & anr., Delhi High Court

(Delivered by Hon'ble Manish Mathur, J.)

1. Learned counsel for petitioner is
granted liberty to amend prayer clause of
petition to delete words ( Anganwadi
Workers and Helpers') during course of
day.

2. Learned counsel for petitioner is
also granted liberty to implead the State of
U.P. through Additional Chief Secretary,
Finance Department, Civil Secretariat,
Lucknow as opposite party no.5 during the
course of day.

3. Notices on behalf of newly
impleaded
opposite
party
have
been
accepted in the Office of learned Chief
Standing Counsel.

4. Heard Mr. Brijesh Kumar Tiwari,
learned counsel for petitioner, Mr. S. B.
Pandey, learned Senior Counsel assisted by
Mr. Anand Dwivedi, learned counsel for
opposite party no.1 and learned State
Counsel for opposite parties no.2, 3, 4 and
5.

5. Petition has been filed seeking a
direction to opposite parties to provide
honorarium to petitioner at par with
honorarium which is being paid in other
States of Country and that it should not be
less than the minimum wages as declared
by the State and Central Government.
Further prayer for a direction for grant of
gratuity to petitioner being an Anganwadi
Worker has also been sought.

6. It has been submitted that petitioner
was engaged as an Anganwadi Worker in
the year 2012 in District Bahraich and is
continuing as such till date but the
honorarium being paid to petitioner is not
commensurate with the honorarium being
paid to such Anganwadi Worker and
Anganwadi Helper (for short the "AWW
and AWH") in other States. It is submitted
that the honorarium is even otherwise
below minimum wages notified by the
State Government. It is submitted that
Anganwadi
Workers
are
appointed
/engaged
for
providing
services
in
Anganwadi
Centres
setup
under
the
Integrated Child Development Scheme
(ICDS) and since the aforesaid Centre
would come within the definition of an
establishment as per the payment of
Gratuity Act, 1972, petitioner would be
entitled to payment of such gratuity
588 INDIAN LAW REPORTS ALLAHABAD SERIES
particularly since petitioner would come
within definition of worker and the
honorarium paid would also be within
definition of wages. It is submitted that the
aforesaid
aspects
have
already
been
considered by Hon'ble the Supreme Court
in the case of Maniben Maganbhai
Bhariya
versus
District
Development
Officer Dahod & Ors. Civil Appeal
No.3153 of 2022 and vide judgment and
order
dated
25.04.2022,
Hon'ble
the
Supreme Court has held that the Gratuity
Act of 1972 would apply to Anganwadi
Centre and in turn to AWWs and AWHs
and directions have therefore been issued.
It is submitted that the aforesaid judgment
will be applicable upon petitioner.

7. Learned counsel for opposite
parties while not disputing the aforesaid
proposition of law as held by Hon'ble the
Supreme Court have however drawn
distinction to the effect that in the case of
Maniben Maganbhai Bhariya (supra),
Hon'ble the Supreme Court had passed
judgment considering Rules framed by the
State of Gujarat in the year 2013 whereas
there are no such Rules governing services
of AWWs and AWHs in the State of U.P.
although learned State counsel has drawn
attention to the Government Order dated
21.03.2023
to
submit
that
the
said
Government Order is applicable upon such
persons and the same regulates their service
conditions in U.P. now.

8. Upon consideration of submissions
advanced by learned counsel for parties and
perusal of material on record, particularly
judgment rendered by Hon'ble the Supreme
Court in the case of State of Karnataka
and others versus Ameerbi and others
reported in (2007) 11 SCC 681, it is evident
that earlier the aspect of AWWs and AWHs
being covered under the aforesaid Act had
been considered by Hon'ble the Supreme
Court in the case of Ameerbi (supra) but
the said judgment has thereafter been
distinguished in the judgment of Maniben
(supra) primarily on the ground that at the
time of rendering judgment in the case of
Ameerbi (supra) there were no rules or
notification governing service conditions of
AWWs
and
AWHs,
which
have
subsequently been notified.

9. The Maniben judgment (supra) has
dealt with aspect of applicability of the
Contract
Labour
(Regulation
and
Abolition) Act, 1970, the Code of Wages
2019 and the payment of Gratuity Act,
1972 and has specifically recorded its
satisfaction that Anganwadi Centres would
be
covered
within
definition
of
'establishments' in terms of Section 2(e) of
the Contract Labour (Regulation and
Abolition) Act of 1970 as well as Section
1(3)(b) the Act of 1972. Hon'ble the
Supreme Court has thereafter also referred
to Section 2(e)(f)(s) of 1972 Act to hold
that persons such as petitioner being AWW
& AWH would come within definition of
the terminology 'employee' 'employer'
'wages' and has therefore held that
honorarium paid to such persons would
also be covered by the definition of wages
and as the persons are employed by the
State
Government
for
wages
in
establishment to which the 1972 Acts
applies, they therefore are employees
within meaning of the 1972 Act.

10. It has also been held that the 1972
Act would be applicable to Anganwadi
Centre and in turn to the Workers and
Helpers.

11. A perusal of aforesaid judgment
would also make it evident that the only
distinguishing feature is that the said
12 All. Kokila Sharma Vs. U.O.I. & Ors.
589
judgment is based primarily taking into
consideration the Rules of 2013 as notified
in the State of Gujarat pertaining to service
conditions of Anganwadi workers and
helpers.
After
consideration
of
the
aforesaid Rules of 2013, Hon'ble the
Supreme Court has come to a conclusion
that since the Rules provide appointment
and
termination
to
such
person
by
Government Officials who even otherwise
are within their control, as such their
selection and appointments are made by the
Government of Gujarat; as also the fact that
remuneration
is
paid
by
the
State
Government.

12. The relevant paragraphs of
judgment rendered by Hon'ble the Supreme
Court in the case of Maniben Maganbhai
Bhariya
versus
District
Development
Officer Dahod & Ors. Civil Appeal
No.3153 of 2022 is as follows:

"16. In the case of Ameerbi
(supra), this Court dealt with the issue
whether AWWs and AWHs were holding
civil posts. The issue was whether the
original applications filed by AWWs before
the State Tribunal established under the
Administrative Tribunals Act, 1985 were
maintainable. This Court held that the
posts of AWWs were not statutory posts and
the same have been created in terms of
ICDS. Therefore, there was no relationship
of employer and employee between the
State Government and AWWs. It was held
that the AWWs do not carry on any
function of the State. It was observed that
no Recruitment Rules have been framed for
appointing AWWs. Much water has flown
after the decision in the case of Ameerbi
(supra) was rendered in the year 2007.
When the said decision was rendered by
this Court, the 2013 Act was not on the
statute
book.
As
noted
earlier,
the
Anganwadi centres established under ICDS
have been given statutory status under the
2013 Act. Moreover, under Sections 4, 5
and 6 of the 2013 Act, the Anganwadi
centres perform statutory duties under the
2013 Act. I have already referred to the
Government Resolution of the Government
of Gujarat dated 25th November 2019 in
extenso.

17. The Resolution incorporates
the said Rules which lay down selection
criteria, educational qualifications, the
process of selection, etc. of AWWs and
AWHs. Under the said Rules, a detailed
process of making appointments of AWWs
and AWHs has been incorporated. It also
incorporates the marking system for the
selection of AWWs and AWHs. The said
Rules provide that the AWWs and AWHs
will continue in the service till the age of 58
years. Even the minimum and maximum
age of the candidates for participating in
the process of recruitment has been laid
down. There are provisions made for the
termination of services of AWWs and
AWHs. Though the said rules refer to their
service as honorary service, the use of the
word "honorary" is not determinative of the
status of AWWs and AWHs.

18. In view of the provisions of
the 2013 Act and Section 11 of the RTE
Act, Anganwadi centres also perform
statutory duties. Therefore, even AWWs
and AWHs perform statutory duties under
the said enactments. The Anganwadi
centres have, thus, become an extended
arm of the Government in view of the
enactment of the 2013 Act and the Rules
framed by the Government of Gujarat. The
Anganwadi centres have been established
to give effect to the obligations of the State
defined
under
Article
47
of
the
Constitution. It can be safely said that the
590 INDIAN LAW REPORTS ALLAHABAD SERIES
posts of AWWs and AWHs are statutory
posts.

19. As far as the State of Gujarat
is concerned, the appointments of AWWs
and AWHs are governed by the said Rules.
In view of the 2013 Act, AWWs and AWHs
are no longer a part of any temporary
scheme of ICDS. It cannot be said that the
employment of AWWs and AWHs has
temporary status. In view of the changes
brought about by the 2013 Act and the
aforesaid Rules framed by the Government
of Gujarat, the law laid down by this Court
in the case of Ameerbl will not detain this
Court any further from deciding the issue.
For the reasons stated above, the decision
in the case of Ameerdi will not have any
bearing on the issue involved in these
appeals.

25. I may refer to the provisions
of the Contract Labour (Regulation and
Abolition) Act, 1970 (for short "the
Contract Labour Act"). Establishments
have been defined in clause (e) of Section 2
which reads thus:

(e) "establishment" means-

(i) any office or department of the
Government or a local authority, or -

(ii)
any
place
where
any
Industries, trade, business, manufacture or
occupation is carried on."

The Contract Labour Act is
applicable to establishments as provided in
sub-section (4)(a) of Section 1. In view of
sub-section (2) of Section 1, the Contract
Labour Act is applicable to the State of
Gujarat. Therefore, it is legislation in
relation to establishments in the State of
Gujarat. As stated above, under the said
Rules, now the selection and appointments
of AWWs and AWHs are being made by the
Government of Gujarat. An officer of the
said Government is empowered to issue an
order of termination of employment of
AWWs and AWHs. As stated earlier,
Anganwadi
centres
have
become
an
extended arm of the Government. Now, it
operates as an establishment or a wing of
the Government. The remuneration to
AWWs and AWHs is paid by the State
Government.
However,
the
State
Government gets contributions from the
Central Government. Moreover, it can
always be said that occupation is carried
out in the establishments of Anganwadi
centres. Hence, Anganwadi Centre is an
establishment within the meaning of clause
(e) of Section 2 of the Contract Labour Act.

27. It is not the case of the State
Government that every Anganwadi centre
is a separate entity. Anganwadi centres and
Mini Anganwadi centres are a part of the
Anganwadi establishment of the State
Government. The Anganwadi centres have
been employing ten or more AWWs and
AWHs in the State. Therefore, I have no
manner of doubt that Anganwadi centres
are establishments contemplated by clause
(b) of sub-section (3) of Section 1 of the
1972 Act. The learned Additional Solicitor
General relied upon a decision of this
Court in Bangalore Turf Club (supra). It
was a case arising out of the Employees'
State Insurance Act, 1948. The said Act
does not define "establishment". The
decision has no relevance in this case.

29. The definition of 'wages' is
very wide. It means all emoluments which
are earned by an employee on duty. Thus,
the honorarium paid to AWWs and AWHs
will also be covered by the definition of
wages. As AWWs and AWHs are employed
12 All. Kokila Sharma Vs. U.O.I. & Ors.
591
by the State Government for wages in the
establishments to which the 1972 Act
applies, the AWWs and AWHs are
employees within the meaning of the 1972
Act. In view of the said Rules of the Gujarat
Government, the Anganwadi centres are
not under the control of the Central
Government.
Therefore,
the
State
Government
will
be
an
appropriate
Government within the meaning of clause
(a) of Section 2 of the 1972 Act.
Accordingly,
a
person
or
authority
appointed by the appropriate Government
for the supervision and control of AWWs
and AWHs will be the employer within the
meaning of clause (f) of Section 2.

31. For the reasons recorded
above, I have no manner of doubt that the
1972 Act will apply to Anganwadi centres
and in turn to AWWs and AWHs. In the
impugned Judgment, the Division Bench
was swayed by the view taken by this Court
in the case of Ameerbi which was followed
by the Delhi High Court in the case of
Akhil Bhartiya Anganwadi Kamgar Union
(Regd.) (supra). These decisions, for the
reasons recorded earlier, have no bearing
on the issue involved in these appeals. The
learned Single Judge was right in holding
that the 1972 Act was applicable to AWWs
and AWHs. The Controlling Authority has
granted simple interest at the rate of 10%
on the overdue gratuity amounts. All
eligible AWWs and AWHs shall be entitled
to the benefit of interest."

32. Hence, I allow the appeals and
set aside the impugned Judgment dated 8th
August 2017 of the Division Bench of Gujarat
High Court and restore the Judgment of the
learned Single Judge dated 6th June 2016 in
Special Civil Application no. 1219 of 2016 and
other connected cases by holding that the
provisions of the 1972 Act apply to AWWs and
AWHs working in Anganwadi centres. Within
a period of three months from today,
necessary steps shall be taken by the
concerned authorities in the State of Gujarat
under the 1972 Act to extend benefits of the
said Act to the eligible AWWs and AWHs. We
direct that all eligible AWWs and AWHs shall
be entitled to simple interest @ 10% per
annum from the date specified under subsection 3A of Section 7 of the 1972 Act."

13. In the present case, it is also evident
from a reading of the counter affidavit that in
the State of U.P., service conditions of AWWs
and AWHs are now governed by the
Government Order dated 21.03.2023 which
prescribes eligibility criteria for appointment
of a person as a Worker or a Helper. The
minimum and maximum age limit for being
retained in service have also prescribed
alongwith a selection procedure. The Rules
also indicate that the Selection Committee is
constituted primarily by officials nominated by
the District Magistrate concerned with the
District Programme Officer being the Member
Secretary. Provisions of reservation are also
applicable
to
such
recruitment
and
appointment is to be made only after approval
by
the
District
Magistrate.
Appointing
authority of AWW and AWH has been
indicated as District Programme Officer.
Termination of services are also to be made
only after approval by the District Magistrate
concerned.

14. The aforesaid Government Order
therefore appears to be in conformity with
the Rules of 2013 which governs service
conditions of AWWs and AWHs in the
State of Gujarat.

15. In view aforesaid, this Court does
not find any distinguishing feature with
regard to such AWWs and AWHs engaged
in the State of Gujarat and State of U.P. In
592 INDIAN LAW REPORTS ALLAHABAD SERIES
the considered opinion of this Court, the
judgment rendered by Hon'ble the Supreme
Court in the case of Maniben (supra) is
therefore clearly applicable upon AWWs,
AWHs engaged in Anganwadi Centers in
the State of U.P.

16. In view of judgment rendered by
Hon'ble the Supreme Court in the case of
Maniben Maganbhai
Bhariya
versus
District Development Officer Dahod &
Ors. Civil Appeal No.3153 of 2022 and
exercising extra ordinary power under
Article 226 of the Constitution of India,
opposite parties collectively are directed to
extend benefits of payment of Gratuity Act,
1972 to all eligible AWWs & AWHs
within a period of four months from the
date a certified copy of this order is
produced before the concerned authority.

17. Resultantly, the petition succeeds
and is allowed. The parties to bear their
own costs.
----------
(2023) 12 ILRA 592
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.11.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ-A No. 8246 of 2023

Mahendra Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rohit Nandan Shukla

Counsel for the Respondents:
C.S.C.

Held:
Transfer - Administrative transfer - Grounds
of public interest - Challenge to transfer order
citing it to be stigmatic and punitive - Initial
transfer order merely St.d to be in public
interest - No stigma reflected therein -
Subsequent order passed in compliance of court
direction
considered
past
conduct
and
complaints - Such reference cannot render the
original order stigmatic or punitive - Long stay
of 32 years at one place also a valid ground for
transfer - Transfer is an incidence of service
and scope of judicial review is limited - No
interference warranted.

Case Law Discussed:

1. Somesh Tiwari Vs U.O.I., (2009) 2 SCC 592

2. Kalabharati Advertising Vs Hemant Vimalnath
Narichania, (2010) 9 SCC 437

3. Registrar General, Madras High Court Vs R.
Perachi, (2011) 12 SCC 137

4. Sabhapati Pathak Vs St. of U.P., 2012 (30)
LCD 1344

5. Dharmendra Kumar Saxena Vs St. of U.P.,
2013 (7) ADJ 53

6. Dinesh Kumar P. Vs St. of U.P., Writ-A No.
7338 of 2023, decided on 03.11.2023

7. Ramakrishna Pal Vs St. of U.P., Writ Petition
No.
17746
(S/S)
of
2018,
decided
on
29.08.2018

Petition Dismissed.

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard learned counsel for petitioner
and Mr. Aniruddh Singh, learned State
Counsel appearing for opposite parties 1 to
8.Affidavit of service has been filed
indicating notice upon opposite party no.9
who has however not put in appearance.

2. Petition has been filed challenging
order dated 30.06.2023and relieving dated