Bal Sevika Association and Another vs Union of India (UOI) and Others

P.K. Sarkar, J.—This is a petition under Article 226 of the Constitution of India filed by the Petitioners'' association on behalf of the Balsevikas appointed in different Balwadi in the State of Tripura claiming a direction to the Union of India and other Respondents to grant same scales of pay to the Balsevikas like that of the Gram-Sevikas working in the State of Tripura and to implement the direction for extending the pay scale prescribed for the trained primary or secondary school teachers of the same qualification in the State of Tripura as recommended by the Child Welfare Committee constituted by the Ministry of Education, Government of India.

It is stated in the petition that Respondent No. 1, Union of India, formulated programmes for integrated child welfare and in furtherance of its programmes the Balsevika Central Training Programmes were undertaken and the prospectus and syllabus for such Balsevikas show the emphasis on the integrated approach to child welfare with the aim and object 10 meet multiferious needs of the child during their growing period. The training are imparted to equip the Balsevikas to meet the total needs of the child and in the context of the family and the community living, the field of work being Balwadi Creche etc.

The Respondent No. 1 has always accepted the recommendations of different committees in respect of the benefit to be given to the Balsevikas in keeping with the spirit of recommendation for extending the benefits to the Balsevikas. The Respondent No. 1 by a communication under No. F. 18-3/63/SE-3 dated 13th August, 1963 communicated its decision of acceptance of recognition of Balsevikas Training Certificates awarded by the Indian Council of Child Welfare. It further communicated its decision of the parity in the salary of trained Balsevikas with the trained primary or secondary school teachers of the same qualifications of the State concerned. It was further reiterated in the letter of the Central Government that the salaries of the trained Balsevikas should be me same as prescribed for trained primary or secondary school teachers of the same qualifications of the state concerned.

The Tripura Council for Child Welfare, Respondent No. 6 is a registered society under the Societies Registration Act. The aims and objectives of the said society are similar with the aims and objectives of Respondent No. 4, the Indian Council for Child Welfare. The Respondent No. 4 by various decision revised the scales of pay for the ICCW staff with effect from 1st December, 1987 and the new scales look into consideration Dearness Allowance, Additional Dearness Allowance, House Rent Allowance, City Compensatory Allowance etc. which were at that lime allowed to the staff and the said allowances were merged into the scales of pay. The Respondent No. 4 communicated the decision of the revised scales of pay of its staff to Respondent No. 6.

The Respondent No. 6 is a constituent of the Respondent No. 4 and Respondent No. 4 has from time to lime sanctioned recurring grant-in-aid for running the Balwadi Centres and Nutrition Programmes.

The Respondent No. 6 appointed Balsevikas who are the members of the Petitioner''s association on different dates and such Balsevikas were appointed as teachers on whole lime basis. The Respondent No. 4 revised the scale of pay of its staff as per recommendation of the Respondent No. 1, but no such revision of pay were granted to the Balsevikas appointed by Respondent No. 6. On the contrary, the Respondent No. 4 converted the pay of the Balsevikas under Respondent No. 6 to a monthly honorarium. Before changing of such pay into honorarium the Balsevikas were not heard and, therefore, the Petitioner challenged the validity of the such conversion from pay into honorarium. It is further alleged that the conversion of pay into honorarium has been made with an object of depriving the Balsevikas from getting the revised pay scales.

The Respondent Nos. 6 and 7 issued appointment letter appointing Balsevikas with certain fixed pay and not with honorarium. Further the appointment of the Balsevikas were on whole time basis and the services of the Balsevikas under the Respondent No. 6 are transferable. It is further stated in the petition that the Government of Tripura revised the pay scales of Gram Sevikas who are similarly situated like Balsevikas in 1988, but the benefits of revision of pay scales has not been extended to the Balsevikas. The Petitioners having felt aggrieved by the non-extension of the scales of pay to the Balsevikas served a notice to Respondents but no relief has been granted to them. It is also stated that since the Balsevikas are discharging the same functions as that of Gram Sevikas under the States they are entitled to get the same pay scales. Hence the present petition.

The Respondents contested the writ petition by filing different counter affidavit. The Respondent Nos. 1, 2 and 3 filed the counter affidavits in which the said Respondents denied the claim of the Petitioner. It is, however, admitted by the Respondents 1, 2 and 3 that the Central Government framed scheme of Balwadi Nutrition Programmes and for implementing such scheme grant-in-aid is given to the Central Social Welfare Board, Bhartiya Adimjati Sevak Sangh, Indian Council for Child Welfare (Respondent No. 4). Harijan Sevak Sangh and Kasturba Gandhi National Memorial Trust, who in their turn release the grant-in-aid to their local units in all States for running the Balwadis. The local units of the above organisations engages Balsevikas and pay them consolidated amount at the rate of Rs. 200/- per month (for trained Balsevikas), Rs. 150/- per month (for un-trained Balsevikas) and also pay Rs. 75/- per month to the helpers. These Balsevikas and helpers are drawn from local community to work in Balwadis and are engaged for providing supplementary nutrition to pre school children in the age group of 3 to 5 years and they are to perform their duties for 3/4 hours a day and they are not full time workers. These Balsevikas are not employed by the Central Government but by the voluntary organisation like the Respondent No. 6. These Balsevikas are not Government Employees and they are not even appointed by the Government. It is further stated that the qualifications, nature of duties, responsibility and dependability of the Balsevikas of Balwadis Nutrition Programmes are not similar or comparable to those trained primary or secondary school teachers on full time basis. It is also stated that Government''s Communication dated 13th August, 1963 (annexure I to the writ petition) and the Government''s Communication dated 26th June, 1964 (annexure 2 to the writ petition) are not applicable to the Balsevikas. It is also stated in the reply that Balsevikas are paid honorarium and this honorarium cannot be treated as pay and, therefore, the revision of pay to the Balsevikas may not rise. The scheme do not contemplate employment on full time Balsevikas and the scheme only provides for giving consolidated honorarium to Balsevikas who are drawned from local community to work in Balwadis as honorary workers. Consequently the Balsevikas are not entitled to get any amount beyond what has been given to them as honorarium. It is also stated in the reply that no fundamental or legal right of the Petitioners have been infringed and, therefore the writ petition is not maintainable.

The Respondent Nos. 4 and 5, the Indian Council for Child Welfare and the General Secretary of the said council filed a joint counter affidavit in which they have opposed the prayer of the Petitioner. It is admitted by the Respondent Nos. 4 and 5 that the certificate issued by the Respondent No. 4 to the Balsevikas has been recognized by the State Government, but it is denied that the trained Balsevikas are entitled to get the same scales of pay like that of trained primary or secondary school teachers having same qualifications in the State concerned. The Respondent Nos. 4 and 5 receives financial assistance from the Central Government for implementation of Child Nutrition Programmes and the Respondent No. 4 remits the grant to the Respondent No. 6 for implementation of the programme in the State. It is also stated that the manner in which the grant is made by Central Government, the Respondent No. 4 sanctions the amount to the State unit, the Respondent No. 6 and the Respondent No. 4 has no power to change or modify the grant given by the Central Government. It is further stated that unless the Central Government allocates necessary funds for enhancing the wages of the Balsevikas, the Respondent No. 4 is not in a position to sanction any amount to the Respondent No. 6 for payment of higher wages to the Balsevikas. Therefore, the fixation of pay scales and granting of other benefits to the Petitioners is beyond the ambit and purview of the Respondent Nos. 4 and 5. The Respondent No. 4 is a voluntary organisation and is the implementing agency of various programmes run by the Central Government. The Respondent No. 4 implements the scheme of the Central Government through its state council. It is further stated that the Petitioners are not permanent employees appointed under any pay structure but they are appointed on the basis of budgetary allocation and financial assistance provided and sanctioned by the Central Govt. Consequently the impendent Nos. 4 and 5 are not in a position to enhance the wages of the Petitioners.

The Tripura Council for Child Welfare and its Secretary, the Respondent No. 6 and Respondent No. 7 respectively filed a joint counter affidavit and opposed the claim, of the Petitioner. It is admitted in the reply that the Union of India, the Respondent No. 1 by its order dated 13.8.63 (annexure 1) advised the Respondents that the salaries of trained Balsevikas should be the same as prescribed for the trained primary or secondary school teachers of the same qualifications of the state concerned. It is averred by the Respondent No. 6 that aforesaid recommendation is mere advise, it is not binding on the Respondent No. 6 to grant the scales of pay of primary teachers to the Balsevikas. The Respondent No. 6 is a voluntary organisation and it is implementing the child nutrition programmes of the Central Government as per guidelines issued by the Respondent No. 1 and 4. The Respondent No. 6 utilizes the grants received from Respondent No. 4 as per instructions and guidelines issued by the Central Government and the Respondent No. 6 is not in a position to grant higher wages if such amount is not sanctioned by the Respondent Nos. 1 and 4. The Respondent No. 6 is a voluntary organisation and it depends wholly on the grants made by Respondent No. 4. The Balsevikas are paid fixed honorarium and, therefore, they cannot be granted regular scales of pay like State government employees. Consequently the Respondent No. 6 is not is a position to grant any higher pay to me Balsevikas if such higher wages tire not sanctioned by the Respondent Nos. 1 and 4.

From the pleadings of the parties it appears that the Tripura Council for Child Welfare is a society registered under the Society Registration Act, 1960. One of its objective is to implement the nutrition programmes through Balwadis for pre SCHOOL children (3 to 5 years), a scheme framed by Government of India. Department of Women and Child Development in the Ministry of Human Resource Development. The scheme of Nutrition Programmes through Balwadi and Day Care Centres for pre school children (3 to 5 years) has been made by the Government of India in the Department of Women and Child Development of the Ministry of Human Resource Development. The objective of the scheme is the growth and development of the pre school children. The department of Women and Child development of the Ministry of Human Resource Development is implementing tie Nutrition Programmes for children between the age of 3 to 5 years through Balwadi and Day Care Centres since 1970-71. The programme envisages the fulfilment of some of the basic principles of nutrition for children. It aims to provide food which would supply approximately one-fourth of the daily calorie requirement of the child. The preparations are such that they do not involve elaborate processing and cooking which are not feasible in most of the Balwadis or Day Care Centres where the meals are supplied to the children. The community participations by way of provision of accommodation etc. in the organisation of nutrition programme is also ensured. It also seeks to ensure satisfactory conditions of health and hygiene, environmental sanitation and immunisation besides regular health check-up. Every child is offered opportunities of creative expression so that he is able to develop his faculties according to aptitute and their social requirements. To implement the scheme, the Central Government is giving financial assistance and such financial distance are given to the five national level social welfare/development organisations. The Central Government grants the financial assistance to the Indian Council for Child Welfare, the Respondent No. 4 for implementation of the Child Nutrition Programmes through Balwadi who in turn reimburses the amount to its State unit, the Tripura Council for Child Welfare for implementing the said programmes. For implementation of the Child Nutrition Programmes the Respondent No. 6 established various Balwadi Centres in the State of Tripura and appointed Balsevikas teachers and helpers. The Respondent No. 6 while establishing the Balwadi Centres stipulated a conditions that each Balwadi Centres will have 40 children under one Balsevika teacher and helpers. According to the scheme the Balsevikas s were appointed on whole time basis on a consolidated pay of Rs. 150/- per month, some of the Balsevika teachers were also appointed on whole time teachers on consolidated pay of Rs. 120/- per month as it is evident in annexure 3(a) to annexure 3(i). The Tripura Council for Child Welfare is a voluntary organisation and is implementing the Child Nutrition Programmes of the department of Women and Child Development in the Ministry of Human Resource Development. The Balwadi Centres has been established by the Respondent No. 6 to implement the Child Nutrition Programmes of the Central Government. Initially, the Balsevika teachers were appointed on a consolidated fixed pay but subsequently they were paid honorarium only and at no time they had any regular scales of pay. The Union of India bears the expenditure for implementation of the Child Nutrition Programmes through Respondent No. 4, the Indian Council for Child Welfare. The Gram Sevikas of the Respondent No. 6 are the employees employed at various centres of the Council who are working on fixed pay or on honorarium without there being any provision in any scale of pay and oilier benefits like gratuity, pension, provident fund etc. Terms and conditions or the tenure of service of the Gram Sevika teachers have not been regulated by any rules framed by the Council.

The Petitioner has asserted that employees of the Council are paid low wages and their salaries are far less than what is paid to the employees doing similar nature of work in the State of Tripura. It is asserted that the Council is a State within the meaning of Article 12 of the Constitution and, therefore, the Respondents are under constitutional obligation to prescribe, similar scales of pay as applicable to the Gram Sevika employees of the State of Tripura who are doing the same work as perfomed by the Balsevikas of the Council. The Petitioner has claimed the relief for issue of a direction directing the Respondents to pay equal pay as paid to the similar employees doing similar work in the State of Tripura alongwith other benefits. The Petitioners'' claim for equal pay as paid to the Gram Sevikas of the, State Government has been opposed by the Respondents. In the counter affidavit filed on behalf of the Respondents it is asserted that the council is a voluntary organisation and has been set up with an object to implement the Child Nutrition Programmes of the Central Government. The Balsevika teachers are to perform voluntary work for which they are given some honorarium and there was no intention to provide them with any regular employment. The Gram Sevikas working, in the Balwadis are not regular employees and the duties performed by them are not comparable, to any employees working under the Government. The duties performed by the Balsevikas are different and distinct from the duties discharged by the Gramsevikas under the Government. Consequently the Ld. Counsel for the Respondents submitted that the Balsevikas are not entitled to got the equal pay us are given to the Gramsevikas under the State Government.

Mr. S. Deb, Senior Advocate submitted that the Central Government by as letter No. F. 18-3/63-SW-3 dated 13th August, 1963 (Annexure 1) communicated the recommendation made by the Child Welfare Committee in its meeting held 11th and 12th July, 1963 to all Educational & Social Welfare Secretaries of State Government and Union Territories. The recommendation of the committee runs as follows:

The salaries of trained Bal Sevikas should be the same as prescribed for the trained primary or secondary school teachers of the same qualifications in the State concerned.

In the aforesaid letter the Central Government also requested to implement the aforesaid recommendations of the Committee as early as possible. Mr. S. Deb, Senior Advocate also submitted dial in persuance of the aforesaid recommendations some of the State Governments has already extended the scales of primary or secondary school teachers to the trained Bal sevikas. From the prospectus and syllabus of the Bal Sevika Training Programme ii appears that the Director of Education, Delhi Administration by his letter No. DE. 107 (Misc)/Gen-64 dated 26.6.64 issued a direction that the salaries of the trained Bal Sevikas shall be the same as prescribed for trained primary or secondary school teachers of the same qualifications in the States concerned. The Ld. Counsel Mr. Deb further submits that the Government of Madhya Pradesh has also issued a direction mat the trained Bal Sevikas will be entitled to all facilities as are applicable to the trained lady teachers employed in the primary school under the Government of Madhya Pradesh. The Ld. Counsel also submitted that the Govt. of Tripura by its notification No. 35 (249)/D/73 dated 1.5.64 has recognized the Bal Sevika Training Certificate but same scale of pay to the trained Bal Sevika has not been given. The Ld. Counsel, therefore, submitted that though the trained Bal Sevikas in Union Territory of Delhi and State of Madhya Pradesh are getting the pay scales of the primary or secondary school teachers, the said scale of pay has not been extended to the Bal Sevikas working in the State of Tripura. Therefore, there is clear discrimination in the pay of the Bal Sevikas working in Delhi, Madhya Pradesh and Tripura. Consequently the Ld. Sr. Advocate submitted that the Bal Sevikas working in Tripura should be given the pay scales of primary or secondary school teachers to avoid any discrimination.

The Ld. Counsel for the Central Government Mr. K.P. Sarma submitted that the Bal Sevikas are not full time employees and they discharge voluntary duties for 3/4 hours a day and they are paid honorarium in recognition of their voluntary service. Mr. Sarma further submitted that Central Government has recently revised the honorarium of Bal Sevikas and now they are getting honorarium at the rate of Rs. 325/- per month in the case of trained Bal Sevikas and honorarium Rs. 275/- per month for un-trained Bal Sevikas. Mr. Sarma also submitted that since the Bal Sevikas are not whole time workers and they are giving voluntary service therefore, no regular pay scale has been given to them and instead they are getting honorarium.

Mr. A.M. Lodh, Ld. Sr. Counsel appearing on behalf of the Respondent No. 6, the Tripura Council for Child Welfare draws the attention of the court to a letter of the council No. TCCW/Admn/76-77/691 dt. 16.1.76 where it has been specified the working hours of the Bal Sevikas in Balwadi Centres. From the said letter it appears that the working hour of Bal Sevika is from 8.30 a.m. to 11.30 a.m. during the period of November to April and 7.30 a.m. to 10.30 a.m. from May to October. From the aforesaid letter it appears that Bal Sevikas work for 3 hours in a day. The Ld. Advocate for the Council further submitted that the Bal Sevikas are part-time employees working for 3 hours a day and they are not full time employees of the Council and consequently they are paid honorarium for the services rendered by them. It is true that the council has specified the duty hours of the Bal Sevikas indicating that they are required to discharge duties for 3 hours in a day. The Union of India has also in their written reply submitted that the Bal Sevikas are required to discharge duties for 3/4 hours a day. I cannot agree with the submission of the Ld. Counsel for the Council and the Central Government because from the appointment letter (Annexure 3(a) to annexure 3(i) it appears that Bal Sevika teachers were appointed by the Council, the Respondent No. 6, and were engaged on whole time basis with a consolidated fixed pay. Even if the Bal Sevikas are required to discharge duties for 3/4 hours a day they cannot take up any other part time job as they are engaged on whole lime basis.

Mr. S. Deb, Sr. Advocate appearing on behalf of the Petitioner submitted that the Bal Sevika teachers, appointed by the Council, are well qualified and there are graduate trained Bal Sevikas working in Balwadi Centres for implementation of the Child Nutrition Programmes. Mr. Deb further submitted that the pay of honorarium even at the revised rate of Rs. 325/- per month is abnormally low and it is a clear exploitations by the Council on the Bal Sevikas. The Ld. Counsel also submitted that even the part-time Class IV employees working for three hours a day are gelling more than Rs. 800/- per month and the Bal Sevikas who are discharging the duties of Class III employees are getting Rs. 325/- per month as honorarium. This is a clear injustice done to these Bal Sevikas and such a unfair and unreasonable pay or honorarium cannot continue. The Ld. Counsel also submitted that such a unfair and unreasonable terms of appointment entered into between Bal Sevikas and the Council is required to be strike down as the Bal Sevikas had to accept this unfavourable terms as they were not in a position to bargain with their employers, These poor Bal Sevikas had to accept the terms for their livelihood. The Ld. Counsel consequently submitted that this Court has jurisdiction and power to strike down pi set-aside unfavourable terms in the contract of employment which purports to give effect to any concernable bargain violating Article 14 of the Constitution. There is sufficient force in the submission of the Ld. Counsel of the Petitioner. The Bal Sevikas are discharging a very difficult job. Apart from Child Nutrition programme they are required to see health and hygiene of the children and these children are offered opportunities of creative expressions so that he is able to develop his faculties according to aptitude and social requirements. Every Bal Sevikas is looking after about 40 children in a Balwadi Centre and for discharging such difficult job they are being paid Rs. 325/- per month as pay or honorarium which is undoubtedly a very low sum. A person takes up a job or work for career. If such a person is not paid a reasonable and adequate sum for his works, the services is bound to deteriorate. The duties and functions discharged by the Bal Sevika teachers are of great importance and if they are dis-satisfied with their pay, the career of the children will be at jeopardy. Consequently considering the services rendered by the Bal Sevika teachers I have no hesitation to say that the pay or honorarium paid to the Bal Sevikas are abnormally low and it is a clear exploitations to the services the Bal Sevikas.

Considering the importance of the work discharged by the Bal Sevika, the Child Welfare Committee constituted by the Ministry of Education recommended as back as in 1963 to fix the salaries of the trained Bal Sevikas at the same rate as are given to the trained primary or secondary school teachers having the same qualifications. It is unfortunate that even though the Central Government has directed for implementation of the aforesaid pay scales to the trained Bal Sevikas the said recommendation has not yet been implemented by all the State Governments even after 33 years.

Mr. K.P. Sarma, the Ld. Counsel, appearing on behalf of the Central Government, submitted that the Central Government framed the Child Nutrition Programmes scheme for the benefits of the rural children and the scheme is being implemented through voluntary organisation. The Ld. Counsel further submitted that the present increase of honorarium from Rs. 200/- per month to Rs. 325/- per month to the Bal Sevikas working throughout India involves additional five crores rupees. The Ld. Counsel also submitted that it may not be possible for the Central Government to bear the expenditure if the regular scales of pay of primary or secondary school teachers are given to the Bal Sevikas. I cannot agree with the submission of the Ld. Counsel for the Central Government because the Central Government is implementing various schemes in the States and the Central Government should include in such shemes the salaries of implementing staff for effective implementation of the scheme. The different schemes of the Central Government are being implemented through voluntary organisations. But it is not necessary or likely that employees who are appointed by such voluntary organisations for implementation of the scheme will also render voluntary service. Consequently each scheme should provide for the salary of the implementing staff. Here in the Child Nutrition Programme the scheme should include the salary of Bal Sevikas and Helpers for effective implementations of the scheme. Effective implementations of a scheme cannot be expected from dis-satisfied employees, consequently in the interest of the society the Central Government should provide a decent salary for Bal Sevikas and Helpers so as to enable them to implement the scheme without any grudge or dis-satisfaction.

Mr. S. Deb, the Ld. Sr. Advocate, appearing on behalf of the Petitioner submitted that the gram sevikas working under the State Government are discharging the same functions as Bal Sevikas and, therefore, the scales of pay given to the Gram Sevikas of the State Government should also be extended to the Bal Sevikas. The facts and circumstances set out in the case will show that employment in the council is a unique in character that is to say it is not comparable with any other employment. The Gram Sevikas under the State Government discharge different types of functions and they are to discharge duties in different fields. Consequently, the services of Gram Sevikas under the State Government cannot be a comparable service with the Bal Sevikas.

Mr. K.P. Sarma, the Ld. Counsel for the Central Government and Mr. A.M. Lodh, the Ld. Sr. Counsel for the Tripura Council for Child Welfare, the Respondent No. 6, argued that Respondent No. 6 is the employer of the Bal Sevikas and the council is not a State within the meaning of Article 12 of the Constitution and, therefore, the Petitioner has no right to move this Court for enforcement of any fundamental or legal right under Article 226 of the Constitution. I cannot agree with the submission of the Ld. Counsel on the ground that though Balwadi Centres are managed by the council as contemplated by rules of the Registered Societies, the Union of India have the control over its functions, it is an instrumentality and agency of the Union of India and, therefore, is a State within the meaning of the Article 12 of the Constitution. Consequently. I am of the opinion that the Petitioners are entitled to enforce their fundamental rights against the council. I accordingly proceed that the Respondent Nos. 4 and 6 is a State for the purpose of chapter IV of the Constitution and consequently this petition under Article 226 of the Constitution is maintainable and the Petitioners are entitled to invoke the jurisdiction of this Court for the enforcement of their fundamental rights founded on the principle of equal pay for equal work. Having regards to the facts and circumstances I am of the opinion that the Bal Sevikas working under the Respondent No. 6 are entitled to the scales of pay of trained primary or secondary school teachers as are given by the Delhi Administration and Madhya Pradesh Government.

Considering the facts and circumstances stated above I am of the opinion that the Respondents are under obligation to implement the recommendation made by the Child Welfare Committee constituted by the Ministry of Education as communicated by the Central Government vide letter No. F. 18-3/63/SW-3 dated 13th August, 1963 (Annexure-1) in respect of the salaries of the Bal Sevikas working in different Balwadi Centres in the State. The Respondents are, therefore, directed to implement the aforesaid recommendation within a period of six months from today. Till implementation of the recommendation, the Respondents are directed to pay the Bal Sevikas a monthly honorarium of Rs. 1000/- per month which is the minimum wage for a fixed pay Class III employee in the State.

Before I part with the case I must mention that the honorarium paid to the Helpers at the rate of Rs. 165/- per month is abnormally and unreasonably low. The Respondents are, therefore, directed to consider the honorarium of the Helpers and raise the amount at a level which may satisfy their minimum requirements for livelihood.

With the aforesaid directions and observations the writ petition is disposed of.