MESMA and Nature of Service of Anganwadi workers




         
          Recently, Government of Maharashtra passed an order which decided to bring anganwadi workers under the scope of Maharashtra Essential Services Maintenance Act, 2017 (hereinafter referred to as “the MESMA” for the sake of brevity). Later the said order was revoked and the operation of the MESMA against anganwadi workers was stayed. This article attempts to simplify the issue by analyzing it critically.

          It is duty of the State to see that every person gets essential services such as transport, water, milk, gas, electricity, public health etc. For which Central Act namely The Essential Services Maintenance Act, 1968 was enacted. The MESMA is State Legislation connected with matters in respect of which the State Legislature has power to make laws. Object of the MESMA is to provide for the maintenance of certain essential services and the normal life of the community.  Section 2 of the MESMA defines essential services. It is necessary to understand context of Section 2(a)(v) and 2(a)(vi) which extends scope of ‘essential services’ to include various incidental and connected services. It certainly gives discretion to State Government to extend scope of provisions of the MESMA over connected matters in respect which State Legislature has power to make laws.
         
          Anganwadi is a type of rural mother and child centre in India. They were started by the Indian Government in 1975 as part of the integrated child development services program. 1 It basically provides preschool education, food and primary healthcare to children under 6 years of age and their mothers.2

     Anganwadi workers are appointed to carry out abovementioned functions. It is also apposite to examine the nature of service of anganwadi workers. They are appointed under Integrated Child Development Services (hereinafter referred as “ICDS” for the sake of brevity) scheme which is not of  a permanent nature although might have continued for a long time. The dictum of Supreme Court in State Of Karnataka & Ors v. Ameerbi & Ors3 rests doubt regarding nature of service. It deals with anganwadi workers’ appointed under the said Scheme and the maintainability of an application filed by the workers under Section 15 of the Administrative Tribunals Act, 1985. Supreme Court has elucidated that anganwadi workers do not fall under civil posts hence Article 309 or 311 of the Constitution cannot be invoked. Neither they can invoke Section 15 of Administrative Tribunals Act, 1985 nor they are protected under Minimum Wages Act.  It was held in the said case that the post of such workers was not a statutory post and their recruitment process was not governed by the Constitution or any statute and thus the application was not maintainable. It was specifically held that ICDS Programme would neither constitute an "industry" nor anganwadi workers "industrial workmen". The post of anganwadi workers was not a statutory post and had been created in terms of the said Scheme. During 2011 Delhi High Court while deciding the case of Akhil Bhartiya Anganwadi Kamgar Union v. Union of India and Ors4 reiterated the fact that anganwadi workers do not fall under the civil posts. But Court remarked that, ‘it was on the humanitarian grounds that we felt that the matter must be looked at sympathetically by the Government itself’.

          In the case of P.Narayanan v. The Director Of Social Welfare & Ors, 5 anganwadi worker was terminated from service. Later she died as she was suffering from cancer. Her husband challenged an order of termination by filing writ petition before Madras High Court wherein it was held that State is not under any obligation to carry statutory  enquiry while terminating service of anganwadi worker. It is hence much clear that Article 309 or Article 311 of Constitution cannot be invoked in case of anganwadi workers. They fall under the scheme of ICDS which is well governed and funded by the Central Government.
         Recently, in the Lok Sabha the question regarding wages / honorarium of anganwadi workers was raised by Member of Parliament Dr. Parayamparanbil Kuttappan Biju  wherein Minister of Women and child development answered that Anganwadi Workers and Anganwadi Helpers are honorary workers under the Integrated Child Development Services Scheme, they are not entitled for minimum wages. In a ruling of 07.12.2006 in Civil Appeal No.4953-4957 of 1998 – State of Karnataka & Ors. Vs. Ameerbi & Ors. the Hon’ble Supreme Court has also held that Anganwadi Workers do not hold any civil post and Minimum Wages Act is also not applicable to them.6

          Now it is much clear that anganwadi workers do not hold any civil post nor they are protected under minimum wages act. They are appointed as per the scheme of  ICDS which is not permanent. It is seen that most of them are working since very long period of time. Their honorarium varies from State to State. Their service can be terminated at any point of time without any specific statutory / constitutional obligation as to enquiry upon the appropriate Government. The ICDS scheme is implemented nationwide.

        The scheme of Anganwadi is not limited to any particular State in India. It is seen all over India. As the scheme of anganwadi is nationwide, I feel it is necessary that any rule / law / restriction / orders passed against any of their interest has to be passed by Central Government. Technically orders passed under Section 3 of the MESMA can be contended to be valid under Section 2(a) (vi) which says, any other service, post, employment or class thereof, connected with matters in respect of which the State Legislature has power to make laws and when the State Government is of opinion that strike in such service, post, employment or class thereof would prejudicially affect the public safety or the maintenance of the supplies or services essential to the life of the community or would result in the infliction of grave hardships on the community, and which the State Government by notification in the Official Gazette, declares to be an essential service for the purpose of this Act.  

        During October 2017 High Court of Karnataka had stayed the operation of order passed by Karnataka State Government under Karnataka Essential Services Maintenance Act  as it was contended by the petitioner that  the exercise of powers under Section 3 of ESMA so as to bring BMRCL under the control of the state government, was illegal. Therefore, the state has no jurisdiction to issue the impugned notification and prohibit any form of strike, they contended.7
          
        Undoubtedly, any service essential to the life of community if terminated may cause huge hardship. It also cannot be denied that functions performed by Anganwadi workers and helpers are vital. The issue is whether services rendered by Anganwadi falls within the meaning of essential services under MESMA.
          
             Technically, it might be possible to contend that it falls but I think it is necessary to balance the equation. Anganwadi workers not being permanent employees under civil services, adequate attention towards their welfare is necessary. Maintaining welfare does not only include giving honorarium but also other factors. Anganwadi workers are not full time workers but part time which has been reiterated through various judicial pronouncements. I think it requires attention as to whether work allotted to them amounts to part time work. Ultimately, MESMA can be invoked anganwadi workers technically but thorough analysis is necessary to balance both the sides.





3. Civil Appeal No. 4953-4957 of 1998 (Supreme Court)
4. WP(C) No. 1158 of 1992 ( Delhi High Court)
5. WP No. 36115 of 2006 (Madras High Court)
6. https://www.gservants.com/2018/02/22/wages-to-anganwadi-workers/19165                                    (Lok Sabha, Starred Que. No.109- Answered on 09/02/2018)



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