Anganwadi Workers Perform Onerous Statutory Duties, Not Considering Them As Part Of State Civil Services Is Discriminatory: Gujarat HC
The Gujarat High Court in an order passed recently observed that although Anganwadi Workers (AWWs) and Helpers (AWHs) are not formally part of State Civil Services, they perform a "unique role" as well as onerous statutory duties under the Right to Education Act (RTE) and the National Food Security Act (NSF).
In doing so the court the found the State's refusal to recognize them within State Civil Services as "discriminatory", violating the rights to equality and equal opportunity under Articles 14 and 16(1) of the Constitution of India. The court passed the order in a batch of petitions seeking a direction to the State authorities to regularize the services of over 300 petitioner anganwadi workers/helpers on regular pay scale/pay band.
A Single Judge Bench of Justice Nikhil S. Kariel in its August 2 order (uploaded on October 30), referred to the Supreme Court's explanation of equality under Articles 14 and 16(1) in E.P. Royappa v. State of Tamil Nadu (1974), emphasizing that Article 14 and Article 16(1) are rooted in equality and opposition to discrimination.
It noted that the Supreme Court had described equality as a broad and adaptable concept, which cannot be limited by rigid, traditional interpretations. Articles 14 and 16 aim to prevent arbitrariness in state actions and ensure fair, equal treatment. State actions, therefore, must be guided by relevant principles that apply equally to everyone in similar situations.
Justice Kariel after considering view of the Supreme Court observed that “concept of equality being a dynamic concept cannot be confined to a straight jacket formula, to this Court, it would appear that merely on account of there being no comparable equivalent post in the State or Central service, would not render the AWWs and AWHs unable to challenge the State's arbitrary action in paying meagre amount per month by categorizing their services as voluntary/honorary services.”
Furthermore, the Court in its 122 page order observed that discrimination should be assessed based on the overall functions, duties, and responsibilities of Anganwadi Workers (AWWs) and Helpers (AWHs). The State's decision to deny them salaries and benefits equivalent to those of regular civil servants cannot be justified by claiming they are “employees of a scheme”.
The Court also noted that the role of an Anganwadi Worker (AWW) is "unique", as she fulfils various roles, including paramedic, counsellor, coordinator, public relations manager, event manager, clerk, and pre-school teacher. AWWs must keep the Anganwadi Centre open from 9:00 am to 3:45 pm, but their responsibilities often require more than six and a half hours daily. Their duties extend beyond the centre itself, covering the entire area served by the Anganwadi.
It noted that an Anganwadi Helper (AWH) is responsible for cleaning the Anganwadi, escorting children to and from their homes, arriving half an hour early, preparing and serving food, maintaining hygiene, and assisting the AWW with public relations. Both AWWs and AWHs also follow directions from supervisors and took on additional duties during the COVID-19 pandemic, such as delivering rations, educating communities, and tracking visitors in villages, it noted.
The Court then observed “Thus, as observed by this Court as hereinabove, the responsibilities and duties entrusted to AWWs and AWHs are onerous, yet, they are paid a meager amount per month under the guise of honorarium and whereas the AWWs and AWHs are not entitled to any other attendant benefits which a regular employee holding a civil post in the State is entitled to.”
This Court further considered another aspect regarding the State's decision not to recognize Anganwadi Workers (AWWs) and Anganwadi Helpers (AWHs) as employees of the State, which seems arbitrary. Despite the government praising the Integrated Child Development Services (ICDS) as a key initiative for tackling child malnutrition and education, it treats AWWs and AWHs worse than temporary Class-IV employees, who are entitled to a minimum pay of Rs. 15,000, according to a 2019 government resolution, it noted. This disparity should be addressed, it said.
The Government Resolution states that a Class-IV employee working 4 hours a day is entitled to Rs. 15,000, while an AWW and AWH, appointed through a regular recruitment process, only receive Rs. 10,000 and Rs. 5,500 per month, respectively. This is not only arbitrary but also discriminatory, as the Class-IV employee gets 50% more than an AWW and nearly three times more than an AWH.
Justice Kariel further refereeing to the observation of the Apex Court observed that people who work for lower wages do so out of necessity, not choice, to support their families, "often at the cost of their dignity and self-respect".
"To elaborate, in the considered and humble opinion of this Court, in this age where sustainable employment is very hard to find, the Government by using its domineering position has framed a scheme whereby persons are engaged to do variety and multiple tasks, which has great bearing on the future generation of the State and by now, the Hon'ble Supreme Court having laid down that the AWWs and AWHs are in fact fulfilling the statutory obligation of the State under the RTE Act, 2009 and NFS Act, 2013, yet, the State is neither treating such persons as a part of its own establishment nor paying them wages commensurate to the work done by them. As a matter of fact, the State is providing honorarium to the AWWs and AWHs, at a rate much lesser than even the minimum wages as prescribed under the Minimum Wages Act. It would thus be observed that persons look for a means of employment in Anganwadi as AWWs and AWHs would be doing so to sustain themselves and their family and but for unequal bargaining position and the need to sustain oneself and their family, as the case may be, no self respecting human being would be willing to work on emolument lesser than the minimum wages that too when the ultimate employer is the State," the high court underscored.
Considering the argument of the state that AWWs and AWHs are paid an honorarium not wages, the Court observed the process for appointing AWWs and AWHs follows strict guidelines, ensuring fair selection based on merit, qualifications, and other criteria like medical exams and training. These workers are also subject to supervision, discipline, and regulations regarding their age and tenure. This clearly indicates that their role is regular employment, and the term "honorary" is used only to deny them the benefits of regular employment, it noted.
The Court then observed “Thus, from the above discussion, to this Court, it would clearly appear that the both the Central Government and the State Government are discriminating the AWWs and AWHs in the matter of treating them unequally than the persons employed on the civil post of the State and are also discriminating the AWWs and AWHs in the matter of payment of emoluments.”
The State failed to provide a valid reason for treating AWWs and AWHs differently, therefore, the claim that they are providing voluntary services has no legs to stand, the court said.
The Court furthermore observed “…this Court has no hesitation in observing that the AWWs and AWHs are clearly being discriminated, which discrimination is violative of the fundamental right of equality and equality in matters of public employment guaranteed under Articles 14 and 16(1) of the Constitution of India and hence, the AWWs and AWHs are entitled to seek the benefit of being regularized in services at a post equivalent to their job profile in the Government.”
Findings of the Court
Based on the discussion and conclusions, the Court noted:
- The Supreme Court's decision in the Ameerbi case does not prevent the petitioners from claiming benefits due to changes since then, including the Right to Education Act, 2009, the National Food Security Act, 2013, and the Government Resolution of 25.11.2019.
- The Supreme Court's decision in the Maniben Maganbhai Bhariya case applies to this situation, especially regarding the scope of the ICDS scheme and the statutory status of AWWs and AWHs.
- AWWs and AWHs are entitled to be regularized as Government employees, and the method for their inclusion or absorption will be decided by the respective Governments.
Directions
Furthermore, considering the discussion, observation and conclusion the answers to the questions formulated, Justice Kariel issued following directions:
- AWWs and AWHs are entitled to be treated the same as permanent employees in the State or Central Government. The Central and State Governments will work together to create a policy for absorbing AWWs and AWHs into government service and providing them with the benefits of regularization.
- When creating the policy, the Central and State Governments must address the following:
- The classification of posts for AWWs and AWHs according to Government rules.
- The pay scale or grade for AWWs and AWHs.
- The cut-off date for when AWWs and AWHs are entitled to arrears, which should be at least three years before the petition was filed.
- Any other relevant issues that may arise.
- The Central and State Governments must finalize the policy within 6 months from the date this judgment is uploaded on the Gujarat High Court's portal. Until then, the petitioners will be entitled to a salary at the minimum pay scale as stated.
The Court then considering the observations and issuing directions, disposed of the petition as allowed.
Case Title: Adarsh Gujarat Anganwadi Union & Ors. v/s State of Gujarat