The petitioners, who were appointed as Panchayat Mitras in District Kaushambi in December, 2006, have filed this petition for quashing that portion of paragraph 4 of the Government Order dated 25th August, 2010 which provides that where Gram Panchayat Rojgar Sewaks have completed three years of working, fresh selection proceedings should be undertaken for appointment of Rojgar Sewaks in accordance with the Government Order dated 23rd November, 2007. A further prayer has been made for restraining the respondents from taking any action in pursuance to the aforesaid paragraph 4 of the Government Order.
The Panchayat Raj Department of the State Government issued a Government Order dated 3rd July, 2006 notifying a Scheme for appointment of Panchayat Mitras in Gram Panchayats under the National Rural Employment Guarantee Act, 2005 (hereinafter referred to as the ''Act') in twenty two districts including District Kaushambi. The said Government Order dated 3rd July, 2006 provides for appointment of a Panchayat Mitra in each Gram Panchayat of the specified districts to provide administrative assistance for implementing the National Rural Employment Guarantee Scheme (hereinafter referred to as the ''Scheme'). The appointment is to be made on contractual basis for a period of one year or till the continuance of the Scheme, whichever is earlier, on a monthly honorarium of Rs.2000/-. However, after the expiry of the period of one year, fresh selection is required to be made but if the work of the Panchayat Mitra during this period of one year is found to be satisfactory, then the Gaon Sabha can pass a resolution for renewal of the contract for a period of one year at a time subject to the maximum period of two years.
On 23rd November, 2007, the State Government issued another Government Order changing the designation of Panchayat Mitra to Gram Rojgar Sewak and such appointments stood transferred from the Panchayat Raj Department to the Gram Vikas Department of the State Government. The other conditions substantially remained the same.
It is on the basis of the Government Order dated 3rd July, 2006 that the District Magistrate, Kaushambi issued a Circular dated 23rd July, 2006 to all the Block Development Officers of the District for inviting applications for appointment of Panchayat Mitras. The petitioners applied for appointment as Panchayat Mitra and they were appointed on various dates in December, 2006. Subsequently their designation stood altered to Gram Rojgar Sewaks in terms of the Government Order dated 23rd November, 2007 and the contract of appointment of each of the petitioners was also renewed one year at a time for two years. Thus, they have completed three years as Panchayat Mitras/Gram Rojgar Sewaks.
Paragraph 4 of the Government Order dated 25th August, 2010 issued with regard to employment of Gram Rojgar Sewaks provides that on completion of three years of working, fresh selection proceedings shall be undertaken in accordance with the Government Order dated 23rd November, 2007 for appointment of Gram Rojgar Sewaks in which the existing Rojgar Sewaks can also apply and preference shall be given to them if their working is found to be satisfactory.
The petitioners claim to be working as Gram Rojgar Sewaks and because of the stipulation contained in paragraph 4 of the Government Order dated 25th August, 2010 apprehend that their services shall be terminated followed by fresh selection proceedings.
Sri Ashok Khare, learned Senior Counsel appearing for the petitioners assisted by Sri Vijendra Tripathi, learned counsel submitted that paragraph 4 of the Government Order dated 23rd November, 2007, in so far as it provides for fresh selections, is arbitrary as according to him no objective shall be achieved by holding fresh selection and the Gram Rojgar Sewaks who have been continuing for three years should be permitted to continue in the same manner in which their appointments were earlier renewed on finding their services to be satisfactory. The submission of the learned Senior Counsel is that there is no necessity for holding fresh selections after every three years and that such a procedure introduces an element of uncertainty in regard to their service and gives room for nepotism and corruption. In support of his contention he has placed reliance upon the decision of this Court in Chandra Kishore & Ors. Vs. State of U.P. & Ors., 2003 (21) LCD 1383 which was followed by this Court in Writ Petition No.35653 of 2003 (Manoj Kumar Rastogi & Ors. Vs. State of U.P. & Ors.) decided on 28th October, 2003.
Sri V.K. Singh, learned Additional Advocate General for the State of U.P. has, however, contended that the petitioners have no vested right to continue even after three years and paragraph 4 of the Government Order dated 25th August, 2010 does not suffer from any illegality since under the Government Order dated 23rd November, 2007 maximum period for which a Rojgar Sewak could be appointed on contract basis is three years and by the Government Order dated 25th August, 2010 only a benefit has been conferred upon them to participate in fresh selection if their working is found to be satisfactory. In support of his contention he has placed reliance upon the Division Bench judgment of this Court in Smt. Geeta Devi Vs. Uma Shanker Yadav & Ors., 2010 (7) ADJ 169.
I have carefully considered the submissions advanced by the learned counsel for the parties.
Section 3 of the Act provides for guarantee of rural employment to households. It stipulates that the State Government shall provide to every household whose adult members volunteer to do unskilled manual work not less than one hundred days of such work in a calender year in accordance with the Scheme framed under the Act. The State Government has to, under Section 4 of the Act, make a Scheme within one year from the date of the commencement of the Act. Under Section 13 of the Act, the Panchayats at the district, intermediate and village level shall be the principal authorities for planning and implementation of the Scheme made under the Act. Section 15 of the Act provides for appointment of a Programme Officer for every Panchayat at the intermediate level who has to assist the Panchayat in the discharge of its functions. Section 18 of the Act provides that the State Government shall make available to the District Programme Coordinator and the Programme Officer necessary staff and technical support as may be necessary for the effective implementation of the Scheme.
The Government Order dated 3rd July, 2006, accordingly, made provisions for appointment of a Panchayat Mitra in each Gram Panchayat to provide administrative assistance for implementation of the Scheme. Paragraph 1 of the said Government Order provides for the minimum eligibility requirements, while paragraph 2 enumerates the procedure for selection. The applications have to be placed before the Administrative Committee of the Gram Panchayat which shall select the Panchayat Mitras on merit on the basis of the average percentage of marks obtained by the candidates at the High School and Intermediate level and thereafter details of the selected candidates are forwarded to the committee headed by the District Magistrate. The appointment is made for a period of one year on contractual basis and fresh selection has to take place after the expiry of the period of one year but if after the expiry of the said period of one year, it is found that the work of the Panchayat Mitra is satisfactory, then his contract can be renewed for a further period of one year at a time subject to maximum of two renewals.
The petitioners were selected as Panchayat Mitras in December, 2006 under the Government Order dated 3rd July, 2006 for a period of one year and as their work was found to be satisfactory, their appointments were renewed for a period of one year and subsequently for one more year. In terms of the Government Order dated 23rd December, 2007, they were designated as Gram Rojgar Sewak. Under the Government Order dated 3rd July, 2006 and 23rd November, 2007, the maximum period for which they can continue as Panchayat Mitra is three years and, therefore, their appointment came to an end in December, 2009 but they have continued to work as Panchayat Mitras.
The grievance of the petitioners is with regard to paragraph 4 of the Government Order dated 25th August, 2010 which provides for fresh selection of Gram Rojgar Sewaks after the expiry of three years. It is the contention of the petitioners that they should be permitted to continue, if their work is found to be satisfactory, in the same manner as they were permitted to continue earlier and a fresh selection should not be resorted to.
Sri Ashok Khare, learned Senior Counsel appearing for the petitioners has placed reliance upon the decision of this Court in Chandra Kishore (supra) in support of his contention that fresh selection should not take place after every three years for appointment of Gram Rojgar Sewak. The relevant portion of the judgment is as follows:-
"In the instant petitions, the State Government has frankly admitted that there is a need of teachers. They have also admitted that several thousands of posts of teachers are lying vacant. They have not denied their responsibilities to impart education. They have not denied the right to the petitioners to continue but they have contended that they have to go through a fresh selection while admittedly they have already gone through a due process of selection and they are duly selected and qualified Subject Experts. If the posts are there and the work is there and obligation of the State to impart education is there and even then these petitioners are deprived of their right of employment which will be a breach of their fundamental right to continue in employment arbitrarily by imposing unreasonable restriction.
The initial policy of the State Government in making appointment to the teachers on the post of Subject Expert indicates that the Government desire to give preference to the teachers having experience. Now by issuing an order on 30.6.2003, the Director Education is debarring those experienced teachers who had obtained experience before the joining on the post of Subject Experts and those who have further increased their experience by teaching the students in the three academic sessions. Therefore, this restriction that the maximum limit for giving appointment to a Subject Expert will be three years, is most arbitrary and unreasonable and contrary to the requirement as shown in the advertisement."
(emphasis supplied) The aforesaid judgment was followed by this Court in Manoj Kumar Rastogi (supra).
It is not in dispute that the need to employ Rojgar Sewaks exists. The scheme of the Act is to provide at least 100 days of work in a calender year to such adult members of a household who volunteer to do unskilled manual work and Programme Officers are appointed to assist the Panchayat in the discharge of its functions. The Act further provides for making available to the District Programme Coordinators and Programme Officers necessary staff and technical support for effective implementation of the Scheme and it is for this purpose that the State Government issued the order dated 3rd July, 2006 for appointment of a Panchayat Mitra in each Gram Panchayat to provide administrative assistance for implementation of the Scheme though subsequently by the Government Order dated 23rd November, 2007 the designation of Panchayat Mitra was changed to Rojgar Sewak and the implementation of the Scheme was shifted to the Gram Vikas Department from the Panchayat Raj Department. It is, therefore, seen that Rojgar Sewaks have to perform the important task of assisting the District Programme Coordinator and the Programme Officers for the proper implementation of the Scheme framed under the Act. The Government Orders dated 3rd July, 2006 and 23rd November, 2007 provide for a detailed procedure for appointment of such Panchayat Mitra/Rojgar Sewak. An advertisement has to be issued and thereafter the Selection Committee meets and examines the cases and recommends the names on the basis of the marks obtained by the candidates in the High School and Intermediate Examinations. These appointments are then approved by the competent authority and the Rojgar Sewaks are appointed for one year but if their services are found to be satisfactory, then their appointment is renewed for one year at a time subject to a maximum period of two years. The petitioners were initially appointed as Panchayat Mitras in December, 2006 for a period of one year and as their work was found to be satisfactory, their appointment was renewed for one year at a time for two years. Though the Government Orders dated 3rd July, 2006 and 23rd November, 2007 did provide that the maximum period for which the Rojgar Sewak can be appointed is three years but the Government Order dated 25th August, 2010 has relaxed this condition to a certain extent and it provides that such Rojgar Sewaks who have completed three years of service can again apply in the fresh selections and preference shall be given to them.
The grievance of the petitioners is limited to the holding of fresh selections and what they contend is that if their work is found to be satisfactory, their appointment should be renewed without holding fresh selections. According to them they have gained experience and as their services have been found to be satisfactory, there is no good reason to replace them with other persons and, therefore, the requirement of holding a fresh selection is not only arbitrary but introduces an element of uncertainty in their service.
All that has been contended by the learned Additional Advocate General for the State is that the procedure contemplated under the Government Order dated 23rd November, 2007 enables the Department to examine whether better candidates are available to be selected and there is no harm in adopting such a procedure. It is also his contention that the appointment of Rojgar Sewak is purely contractual in nature and since the petitioners were aware of the terms and conditions of appointment when they sought initial appointment they cannot turn around and contend that they should be continued in service even after the expiry of three years.
In Chandra Kishore (supra), the Court accepted the contention of the petitioners therein that the restriction of maximum limit of three years for giving appointment is arbitrary and unreasonable since the petitioners had gone through the selection process and the requirement existed. Observations to the same effect were also made by a Division Bench of this Court in Dr. Dinesh Kumar Rajput & Ors. Vs. State of U.P. & Ors., 2008 (7) ADJ 188 after following the decision of the Supreme Court in Ratan Lal & Ors. Vs. State of Haryana & Ors., (1985) 4 SCC 43. This apart the State Government itself has, by the Government Order dated 25th August, 2010, relaxed the maximum limit of three years term of Rojgar Sewaks, though with a rider that they shall have to compete in fresh selection with others. The Act contemplates framing of a Scheme for implementation of the Act and Section 18 also provides that the State Government shall make available to the District Programme Coordinator and the Programme Officer necessary staff and technical support as may be necessary for the effective implementation of the Scheme. It is for this purpose that the State Government has provided for appointment of Rojgar Sewaks and though the Act does not provide for fresh selections after every three years, the Scheme framed by the State Government provides for holding fresh selections after every three years.
The decision of the Supreme Court in the case of Mohd. Abdul Kadir & Anr. Vs. Director General of Police, Assam & Ors., (2009) 6 SCC 611 clinches the issue in favour of the petitioners. The Government of India formulated the Prevention of Infiltration of Foreigners Scheme for Assam for strengthening the Assam Governmental machinery for detection and deportation of foreigners in the year 1960. The Scheme was extended from time to time. A Selection Board was constituted for selection of ex-servicemen to the various posts which were sanctioned under the additional scheme. The Inspector General of Police, Border Assam issued a circular dated 17th March, 1995 laying down the following procedure for appointment/continuation of the ex-servicemen as ad-hoc Border staff:-
(i) All appointments shall be for a contract period of one year.
(ii) Termination notice should be issued to every ad-hoc employee at least 45 days before the date of expiry of one year from the date of appointment.
(iii) The ad hoc employee, on receiving information regarding termination from service, shall, if he desires to continue, send an application seeking fresh appointment for a further term of one year. The application should reach the office of IGB (B), Assam at least 30 days before the date of expiry of one year.
(iv) The concerned DIGP (Range)/Superintendent of Police shall send a performance report and medical certificate in respect of each ad hoc employee to whom such termination notice has been issued at least 30 days before the date of such termination while forwarding the applications for fresh appointment.
(v) The applications for fresh appointment shall be considered with reference to the respective performance report and medical certificate, and those found fit and suitable will be re-appointed at least 20 days before the date of expiry of the contract period of one year.
(vi) Such fresh appointment letters shall be issued by the Superintendent of Police (Border) Assam and the ad hoc employees cleared for fresh appointment shall sign an agreement and submit his joining report.
(vii) If application for fresh appointment is not received in due time, it will be taken that the ad-hoc employee has not sought fresh appointment and he will not be considered for fresh appointment."
Writ petitions were filed in the Guwahati High Court as the ad-hoc employees felt aggrieved by the process of reappointment introduced by the aforesaid circular dated 17th March, 1995 and it was submitted that such a procedure introduced an element of uncertainty in regard to their service and gave room for nepotism and corruption. The writ petition was allowed by a learned Judge of the High Court but the Division Bench set aside the order and dismissed the writ petition. The matter was taken to the Supreme Court by the employees. The Supreme Court rejected the plea of the appellants-employees regarding regularisation of their services but quashed the Circular dated 17th March, 1995 holding that artificial breaks by annual terminations followed by fresh appointments is contrary to the Scheme and the principles of service jurisprudence and in this context observed:-
"8. We may next consider the challenge to the procedure of annual termination and reappointment introduced by the circular dated 17.3.1995. The PIF Scheme and PIF Additional Scheme were introduced by Government of India. The scheme does not contemplate or require such periodical termination and re-appointment. Only ex-servicemen are eligible to be selected under the scheme and that too after undergoing regular selection process under the Scheme. They joined the scheme being under the impression that they will be continued as long as the PIF Additional Scheme was continued. The artificial annual breaks and reappointments were introduced by the state agency entrusted with the operation of the Scheme. This Court has always frowned upon artificial breaks in service. When the ad-hoc appointment is under a scheme and is in accordance with the selection process prescribed by the scheme, there is no reason why those appointed under the scheme should not be continued as long as the scheme continues. Ad-hoc appointments under schemes are normally co-terminus with the scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement). Irrespective of the length of their ad hoc service or the scheme, they will not be entitled to regularization nor to the security of tenure and service benefits available to the regular employees. In this background, particularly in view of the continuing Scheme, the ex-serviceman employed after undergoing selection process, need not be subjected to the agony, anxiety, humiliation and vicissitudes of annual termination and re-engagement, merely because their appointment is termed as ad hoc appointments. We are therefore of the view that the learned Single Judge was justified in observing that the process of termination and re-appointment every year should be avoided and the appellants should be continued as long as the Scheme continues, but purely on ad hoc and temporary basis, co- terminus with the scheme. The circular dated 17.3.1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the principles of service jurisprudence, is liable to be is quashed.
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10. The appeal is allowed in part accordingly as follows:
(i) The circular dated 17.3.1995 is quashed. The appellants shall not be subjected to annual terminations and re-appointments (subject to observations in para 8 above).
(ii) The benefit of this order will be available to other similarly situated ad hoc border staff, even if they have not approached the court for relief. In view of the above, the interlocutory applications for impleading are disposed of as having become infructuous.
(iii) This order will not however come in the way of ad hoc employees working as Border staff, being subjected to any periodical medical examination or service review to assess their fitness and suitability for continuation."
(emphasis supplied) The relief prayed for by the petitioners in this petition is more or less similar to the relief granted by the Supreme Court in the aforesaid case since what the petitioners are claiming in this petition is that fresh selections should not take place for appointment after every three years and their contract of appointment should be renewed annually subject to satisfactory work.
The Supreme Court in Mohd. Abdul Kadir (supra) found that procedure for reappointment after every year is arbitrary and against service jurisprudence since when appointment is under a Scheme and is in accordance with the selection process prescribed by the Scheme, there is no reason why such appointments under the Scheme should not be continued as long as the Scheme continues subject ofcourse to termination either on medical or disciplinary grounds or for unsatisfactory service or on attainment of normal age of retirement.
The Supreme Court has time and again pointed out that in exercise of the power of judicial review, the Courts do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on the ground of mala fide, unreasonableness, arbitrariness or unfairness as arbitrariness, irrationality, perversity and mala fide render the policy unconstitutional. Thus, when the policy of the Government is found to be arbitrary, the Courts would be justified in interfering with the policy decision. In this connection reference can be made to the decisions of the Supreme Court in M/s. Ugar Sugar Works Ltd. Vs. Delhi Administration & Ors., AIR 2001 SC 1447; Union of India Vs. Dinesh Engineering Corpn. & Anr. (2001) 8 SCC 491 and Union of India & Anr. Vs. International Trading Company & Anr. (2003) 5 SCC 437.
In A. Satyanarayana & Anr. Vs. S. Purushotham & Ors., 2008 AIR SCW 3282 the scope of judicial review of a policy decision reflected in a statutory rule was also examined by the Supreme Court and it was observed:-
"We, however, are of the opinion that the validity or otherwise of a quota rule cannot be determined on surmises and conjectures. Whereas the power of the State to fix the quota keeping in view the fact situation obtaining in a given case must be conceded, the same, however, cannot be violative of the constitutional scheme of equality as contemplated under Articles 14 and 16 of the Constitution of India. There cannot be any doubt whatsoever that a policy decision and, in particular, legislative policy should not ordinarily be interfered with and the Superior Courts, while exercising its power of judicial review, shall not consider as to whether such policy decision has been taken mala fide or not. But where a policy decision as reflected in a statutory rule pertains to the field of subordinate legislation, indisputably, the same would be amenable to judicial review, inter alia, on the ground of being violative of Article 14 of the Constitution of India. {See Vasu Dev Singh & Ors. v. Union of India & Ors. [2006 (1) SCALE 108] and State of Kerala & Ors. v. Unni & Anr. [(2007) 2 SCC 365]."
(emphasis supplied) The only reason pointed out by learned Additional Advocate General for the State is that holding of fresh selections after three years may result in appointment of a better person as a Rojgar Sewak. This does not appeal to reason and a policy for fresh selection every year has been held to be arbitrary and against service jurisprudence by the Supreme Court in Mohd. Abdul Kadir (supra) though with certain exceptions namely when service is found to be unsatisfactory or on medical or disciplinary grounds.
The decision in Geeta Devi (supra) relied upon by the learned Additional Advocate General for the State of U.P. also does not help the respondents inasmuch as this issue was not involved. The relevant observations are:-
"In view of this admitted position that the period of two years of engagement of respondent no. 1 has expired long back, the question as to whether the appellant could have removed him under the impugned order or not, looses significance inasmuch as once the tenure of the respondent no. 1 has come to an end, there is no legal right vested in him to claim continuance. Even otherwise, the order impugned in the writ petition passed, by the appellant, was backed up by a resolution as indicated in the order itself. The respondent no. 1 was also handed over his dues in accordance with the said Government Order. In such a situation, once the contract of engagement has expired and admittedly there was no other extension possible or actually made under any law for the time being in force, there was no occasion for the learned Single Judge to have granted an interim order, the impact whereof was to continue the respondent no. 1 as Gram Rojgar Sevak."
It is, therefore, not possible, in view of the aforesaid decisions of the Supreme Court to uphold the policy of the Government contained in the Government Order dated 25th August, 2010 regarding holding of fresh selections for appointment of Rojgar Sewak after every three years. The appointment of the Rojgar Sewaks should be continued even after they have worked for three years, though one year at a time, subject to satisfactory work as was the procedure adopted prior to the expiry of three years of service.
The condition contained in paragraph 4 of the Government Order dated 25th August, 2010 to the extent that fresh selection shall take place after three years is, therefore, set aside and it is provided that even after expiry of three years of service, the appointment of Rojgar Sewak shall be renewed for a period of one year at a time subject to satisfactory work.
The writ petition is, accordingly, allowed to the extent indicated above.
Date: 07.12.2010 GS