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High Court of Judicature at Calcutta
PATHERYA
Chakdaha Panchayet Samity & Another
Versus
State Of West Bengal & Others
W. P. No.14543 (W) of 2010
Decided On : 05-10-2010
CONSTITUTION OF SELECTION COMMITTEE - ICDS SCHEME - ACT SECTION REFERRED : ARTICLE 39(F), ARTICLE 162, ENTRY-6 LIST-II, ENTRY-20 LIST-III, ARTICLE 73 - The petitioner challenges the constitution of the Selection Committee for Anganwadi Workers, alleging that it violates the guidelines issued by the Central Government and is contrary to the directives issued by the Central Government with regard to the Constitution of the Selection Committee.
Fact of the Case:
The petitioner, the Sabadhipati of the Panchayat Samiti, sought a declaration that the Selection Committee constituted pursuant to order dated 21st January, 2006 for selection of Anganwadi Workers is bad in law, alleging that it violated the guidelines issued by the Central Government and was contrary to the directives issued by the Central Government with regard to the Constitution of the Selection Committee.
Finding of the Court:
The court held that the letter dated 28th May, 2007, which was relied upon by the petitioner to support the contention that the Constitution of the Selection Committee was bad, could not be termed as an executive order and therefore had no legal force. The court further held that the Government Order dated 25th January, 2006, which constituted the Selection Committee, was issued under Article 162 of the Constitution of India and was binding.
Issues: 1. Whether the letter dated 28th May, 2007, issued by the Central Government, was an executive order and had the force of law. 2. Whether the Government Order dated 25th January, 2006, issued by the State Government, was valid and binding.
Ratio Decidendi: The court held that the letter dated 28th May, 2007, was not an executive order as it was not issued in the name of the President and did not state under whose order or authority it was issued. The court further held that the Government Order dated 25th January, 2006, was valid and binding as it was issued under Article 162 of the Constitution of India.
Final Decision: The court dismissed the writ petition, holding that the Constitution of the Selection Committee was not bad in law and that no interference was called for.
PATHERYA J
1. By this writ petition the petitioner seeks a declaration that the Selection Committee constituted pursuant to order dated 21st January, 2006 for selection of Anganwadi Workers is bad in law.
2. PETITIONER’S CASE
2.1 The case of the petitioner is that under the Integrated Child Development Services (ICDS) scheme, (scheme) Anganwadi Workers and Helpers are appointed. The said Scheme was launched in 1975 by the Central Government and guidelines issued. On the basis of such guidelines the Selection Committee is to be constituted. Such guideline was revised in November, 2006 by the Central Government which postulated that a Medical Officer of the Primary Health Centre was to be included in the Selection Committee. The said revision was communicated to the Secretaries of the ICDS Cells. Pursuant to the guidelines issued by the Central Government on 25th January, 2006 the Government of West Bengal issued an administrative order wherein the Constitution of Selection Committee was set out. The said Government Order is contrary to the directives issued by the Central Government with regard to the Constitution of the Selection Committee and required approval of the Central Government.
2.2 Some of the States were not following the guidelines framed by the Central Government and on 28th May, 2007 a specific decision was taken not to include Members of the Legislative Assembly (MLA) as Chairperson, as Anganwadi Workers are honorary and grass root functionaries under the ICDS Scheme. The State ignored the said instructions, and continued to include MLAs in the selection process. This renders the Constitution of the Selection Committee bad.
2.3 The ICDS Scheme was initiated under Article 39(f) of the Constitution. Article 162 of the Constitution empowers the Governor to issue administrative orders. Entry-6 in List-II of the 7th schedule entitles the state to enact legislation. Entry-20 of List-III of the 7th schedule entitles the Central Government and all the State Government to enact laws. Admittedly, under Entry-6 of List-II no law has been legislated by the State Government. Therefore, the guidelines have been issued by the Central Government under Entry-20 of List-III and the States have been asked to implement the same.
2.4 90% of the funds for administrative purposes is received from the Central Government while in case of nutrition it is shared equally by the States and the Central Government. The said Scheme is run under the 5 year Plan of the Central Government. Therefore, it is a Scheme of the Central Government which has been sought to be implemented by the States.
2.5 The Union of India has the power to make laws under Article 73 of the Constitution of India. For such proposition reliance is placed on (2008) 8 SCC 765; (2008) 10 SCC 368 and (2008) 7 SCC 117. For all the said reasons the constitution of the selection committee is bad and the process initiated under Notification dated 9.11.2010 be stayed.
3. STATE RESPONDENT’S CASE
3.1 Counsel for the State respondent submits that the Scheme of 1975 is a Scheme of the Government of India, and the State Governments are the implementing agencies. There is no Central or State enactment, in respect of the said Scheme. The guideline is a mere suggestion. Therefore, implementation is at the discretion of the State.
3.2 On 8th April, 1985, an executive instruction was issued under Article 162 of the Constitution, which is not only binding but has legal force. The exclusion of the MLA is not supported by any rational as the Chairman of the Municipality continues to be a member of the Selection Committee. The directive principles of the State policy are not germane to the issue and the policy decision may defer State to State.
3.3 There has been no enactment by the State, although the subject is in the State List. In 1985 and 2006 by executive orders these guidelines have been implemented. From a reading of the letter dated 28th May, 2007 it appears that a reque
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