w w w . L a w y e r S e r v i c e s . i n



Dev Singh Paikra & Others v/s State Of Chhattisgarh, Through The Secretary, Department Of Panchayat & Rural Development, Chhattisgarh & Others


    WPS No. 453, 464, 465, 472, 474, 483, 506, 510, 2615 & 2647 of 2014

    Decided On, 02 August 2021

    At, High Court of Chhattisgarh

    By, THE HONOURABLE MR. JUSTICE SANJAY K. AGRAWAL

    For the Petitioners: A.N. Pandey, Jitendra Shrivastava, Harish Khuntiya, Animesh Verma, Aniket Verma, Ajeet Kumar Yadav, Diksha Gouraha, Advocates. For the Respondents: R3 & R4, Prasun Kumar Bhaduri, Rahul Tamaskar, Advocates, Sunil Otwani, Addl. A.G.



Judgment Text

C.A.V. Order

1. Since common question of law and fact is involved in this batch of writ petitions, therefore they have been heard together and are being decided by this common order.

2. Petitioners were appointed on contract basis on the post of Gram Rozgar Sahayak under the Scheme under Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (in short 'MNREGA'). They have called in question the advertisement dated 08/01/2014 (Annexure P/1) issued by Zila Panchayat, Jashpur inviting applications for the post of Rozgar Sahayak including the posts already held by the petitioners on contract basis for a period of one year in all the writ petitions except in WPS Nos. 2615/2014 and 2647/2014. In these two writ petitions, the petitioners have challenged the legality and validity of memo dated 19/05/2014 (Annexure P/1 in those writ petitions) issued by the CollectorcumProgramming Coordinate, Surguja by which it has been directed to the Chief Executive Officer, Janpad Panchayat, LakhanpurSurguja for recruitment of Rozgar Sahayak on contract basis under MNREGA Scheme. As such, in sum and substance, the new/fresh recruitment on the post of Rozgar Sahayak sought to be made by Zila Panchayat, Jashpur and Janpad Panchayat, LakhanpurSurguja has been called in question. Since detailed return has been filed in WPS No. 472/2014, it is taken as the lead case.

3. The case of the petitioners is that they are working on the post of Gram Rozgar Sahayak for the year running from 20062007 on contractual basis and there is no complaint against the conduct of the petitioners but without any intimation to them, they have been sought to be replaced by other contractual employees which is totally impermissible in law in line with the decision rendered by the Supreme Court in the matter of Hargurpratap Singh v. State of Punjab (2007 (13) SCC 292), therefore, the advertisement dated 08/01/2014 (Annexure P/1) is liable to be set aside in this batch of writ petitions and in WPS Nos. 2615/2014 and 2647/2014, memo dated 19/05/2014 (Annexure P/1) is liable to be set aside.

4. Return has been filed mainly by the respondent Zila Panchayat, Jashpur stating inter alia that petitioners were appointed on contractual basis as Rozgar Sahayaks under the MNREGA scheme issued on 14/12/2007 (Annexure R/1) and thereafter, as per memo dated 14/09/2012 it was informed that the Accountant General has raised audit objection with respect to extension of service tenure of Rozgar Sahayaks beyond the period of one year which is contrary to the Circular dated 14/12/2007 and further according to the instruction issued by the Commissioner, Rojgar Guarantee, Raipur the appointment of Rozgar Sahayak should be for a period of one year starting from 1st January and ending on 31st December and for the next year roster should be prepared and finally on 28/07/2011, the Commissioner, Rojgar Guarantee, Raipur has issued a Circular that extension of tenure of service should not be granted to the Rozgar Sahayaks already working and fresh applications should be invited in which roster should be prepared and followed, but this Circular has not been called in question by the petitioners, therefore, the writ petitions be dismissed. Similar returns have also been filed in WPS Nos. 2615/2014 and 2647/2014.

5. Mr. A.N. Pandey, Mr. Jitendra Shrivastava, Mr. Harish Khuntiya, Mr. Animesh Verma, Mr. Aniket Verma, Mr. Ajeet Kumar Yadav and Ms. Diksha Gouraha, learned counsel appearing for the petitioners, would submit that the action of Zila Panchayat, Jashpur inviting fresh applications for replacing the present petitioners/contractual employees with other contractual employees is totally unconstitutional and bad in law in view of the decisions rendered by the Supreme Court in the matters of Hargurpratap Singh (supra) and Dr. A.K. Jain and others v. Union of India and Others (1987) Supp. SCC 497). They would also submit that petitioners are continuously working for more than five years and there is no allegation of misconduct against them and there is no reason for replacing them with other contractual employees, as such, the impugned advertisement deserves to be quashed.

6. Mr. Sunil Otwani, learned Additional Advocate General, would submit that the impugned advertisement has been issued strictly in accordance with law as per the Circulars issued by the State Government and the principle that contractual employees should not be replaced with other contractual employees would not be applicable to the present case as there is no regular sanctioned post of Rozgar Sahayak, therefore, the principle of law laid down in Hargurpratap Singh (supra) would not be applicable.

7. Mr. Prasun Kumar Bhaduri, learned counsel appearing for respondents No. 3 and 4 in WPS No. 2647/2014 and Mr. Rahul Tamaskar, learned counsel appearing for Zila Panchayat, Jahspur, in all the other writ petitions, would submit that the principle laid down by the Supreme Court in Hargurpratap Singh (supra) would not be applicable in the instant case as there is no permanent post of Rozgar Sahayak and as per Circular dated 14/12/2007 issued under the MNREGA scheme, Rozgar Sahayaks are appointed for a period of one year, which has not been called in question by the petitioners, and consequently, vide Annexure R/2 serious objection has been raised by the competent authority that the Circular dated 14/12/2007 is not being followed by the concerned Zila Panchayat and the tenure of contractual employees is being extended which is contrary to law and further vide letter dated 28/11/2007, the State Government has clearly directed the Collectors of all the Districts not to extend the tenure of Rozgar Sahayak appointed on contractual basis and fresh applications be invited and roster for the purpose of rotation be followed. They would further submit that the Punjab and Haryana High Court in the matter of Joginder Singh v. Union of India (2015 SCC Online P&H 9348) has clearly held that replacement of contractual employee with another contractual employee would not be applicable in the case where no permanent post exists, as such, the instant writ petitions deserve to be dismissed.

8. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the records with utmost circumspection.

9. The Parliament enacted National Rural Employment Guarantee Act, 2005 with an object to enhance livelihood security in rural areas by providing at least 100 days of guaranteed wage employment in a financial year to every household whose adult members volunteer to do unskilled manual work. Subsequently the nomenclature was changed with effect from 02/10/2009 as Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (in short 'MNREGA, 2005').

10. The Central Government through the Ministry of Rural Development issued an operational guideline vide Clause 3.1.1 which provides for appointment of Gram Rozgar Sahayak (Village Employment Assistant) for implementation of the scheme. It states as under:

“3.1.1 Gram Rozgar Sahayak: The implementation of NREGA involves considerable organizational responsibilities at the level of the Gram Panchayat. To ensure that these are effectively discharged by the Gram Panchayat, the appointment of an 'Employment Guarantee Assistant', in each Gram Panchayat is suggested. The 'Employment Guarantee Assistant' could be called 'Gram Rozgar Sahayak', or an equivalent term in the local language. The functions of the Gram Rozgar Sahayak are given in Annexure A4. The function of Gram Rozgar Sahayak (GRS) and the Panchayat Secretary should be clearly distinguished. GRS is a dedicated staff under NREGA. The cost of GRS is the first charge on the administrative expenses under NREGA. To start with, there should be one GRS in each Gram Panchayat. Annual review of the performance of GRS should be undertaken by the Programme Officers and District Coordinators and follow up action taken accordingly.”

11. The responsibilities of Gram Rozgar Sahayak have also been provided under the aforesaid guideline which state as under:

”a. Overseeing the process of registration, distribution of job cards, provision of dated receipts against job applications, allocation of work to applicants etc.;

b. Ensuring that the requisite Gram Sabha meetings and social audit are held;

c. Recording attendance of labour every day either himself/herself or through the mate in the prescribed Muster rolls at worksite;

d. Ensuring that Group mark outs are given at work site for every labour group so as to ensure minimum wages every day;

e. Attending all review meeting called upon by Programme Officer;

f. Ensuring that all Mates attend worksites on time and take roll calls/attendance in prescribed muster roll at worksite only;

g. Ensuring worksite facilities at all worksites by engaging a person for Aaya services wherever required and by arranging a first aid box and shade at work site;

h. Updating the job cards regularly;

i. Maintaining all MGNREGSrelated registers at the Gram Panchayat level, including prescribed accounts, and ensuring that these documents are conveniently available for public scrutiny.”

12. The Development Commissioner issued a detailed guideline on 14/12/2007 filed as Annexure R/1 and in accordance with those guidelines, the petitioners were appointed as Gram Rozgar Sahayak on contract basis for a period one year by respondent Zila Panchayat, Jashpur under the MNREGA scheme noticed hereinabove. However, their appointment was extended from time to time and continued till filing of the writ petitions. In the meantime, the impugned Advertisement dated 08/01/2014 (Annexure P/1) was published calling in fresh applications for the posts of Gram Rozgar Sahayak and memo dated 19/05/2014 (Annexure P/1) has been issued by the Collector in WPS Nos. 2615/2014 and 2647/2014.

13.It is the case of the petitioners that they will be replaced by another set of contractual Gram Rozgar Sahayaks and they have filed these writ petitions seeking quashment of the impugned Advertisement dated 08/01/2014 (Annexure P/1) and memo dated 19/05/2014 (Annexure P/1 in WPS Nos. 2615/2014 and 2647/2014) on the said ground that they cannot be replaced by other set of contractual employees stating that appointment of the petitioners have been made by following the due process and one contractual employee cannot be replaced by another contractual employee as laid down by the Supreme Court in Hargurpratap Singh (supra). In the said judgment, their Lordships have held as under:

“3. We have carefully looked into the judgment of the High Court and other pleadings that have been put forth before this Court. It is clear that though the appellants may not be entitled to regular appointment as such it cannot be said that they will not be entitled to the minimum of the pay scale nor that they should not be continued till regular incumbents are appointed. The course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc arrangement which is not at all appropriate for these persons who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on ad hoc basis. Therefore, we set aside the orders made by the High Court to the extent the same deny the claim of the appellants of minimum pay scale and continuation in service till regular incumbents are appointed. We direct that they shall be continued in service till regular appointments are made on minimum of the pay scale. The appeals shall stand allowed in part accordingly.”

14. It is the case of the State Government that appointment of petitioners earlier made was not on regular sanctioned post but purely on a contractual post available under the MNREGA scheme vide guideline dated 14/12/2007 (Annexure R/1) and as per the said scheme, the appointment on the post of Gram Rozgar Sahayak is purely contractual for only one year starting from 1st January and ending on 31st December of every year. The memo dated 14/12/2007 states as under:

“LANGUAGE”

15. It is the case of respondent Zila Panchayat, Jashpur that after the audit objection dated 14/09/2012 (Annexure R/2), fresh Advertisement has been issued for the appointment of Gram Rozgar Sahayak. It has also been stated that vide notification dated 28/11/2017, the Development Commissioner under the Rozgar Guarantee Yojana has directed not to extend the service tenure of Gram Rozgar Sahayaks who have already completed one year of service and to make fresh appointment on the post of Gram Rozgar Sahayak following the reservation on rotation basis and therefore, fresh advertisement (Annexure P/1) has been issued. It is further stand of the respondent Zila Panchayat, Jashpur that a contractual employee cannot claim an indefeasible right to continue on a post sine die and when the nature of the post itself is not regular/sanctioned, the petitioners cannot claim to continue on such post.

16. From the aforesaid, it is quite vivid that in accordance with the MNREGA scheme, detailed guidelines have been issued by Circular dated 14/12/2007 (Annexure R/1) for appointment of Gram Rozgar Sahayak under which the petitioners were appointed, but thereafter, the audit objection was raised by Accountant General specifically objecting that the Scheme, 2007 is not being followed and tenure of one year of Rozgar Sahayak is being extended which is contrary to the Scheme itself which was taken cognizance of on 14/09/2012. The audit objection by Accountant General dated 17/07/2012 / 06/08/2012 has been convened by the State Government to all the Collectors by memo dated 14/09/2012 (Annexure R/2) seeking rectification. Paragraph 5 of memo dated 14/09/2012 (Annexure R/2) states as under:

“LANGUAGE”

17. The Commissioner in view of the abovestated passed order dated 28/11/2007 directing all the Collectors not to extend the tenure of the existing Gram Rozgar Sahayaks and to invite fresh applications and make appointment on the said post by following reservation rules on rotation basis. The memo dated 28/11/2007 issued by the Commissioner, Rozgar Guarantee Yojana states as under:

“LANGUAGE”

Thus, in accordance with the aforesaid memo, fresh advertisement (Annexure P/1) has been issued inviting applications for the post of Gram Rozgar Sahayak on contractual basis.

18. From the aforesaid narration of facts, it is quite clear that the post of Gram Rozgar Sahayak is not a regular sanctioned post, but it is a purely temporary and contractual post and the tenure of a Gram Rozgar Sahayak, once appointed, is for one year as per the Scheme which has been floated in accordance with the Circular dated 14/12/2007 (Annexure R/1) issued by the State Government. As such, it is not a case where awaiting the regular appointment on regular sanctioned post, the contractual employees are being replaced by other contractual employees. In that view of the matter, the principle of law laid down by the Supreme Court in Hargurpratap Singh (supra) referred by the petitioner is clearly distinguishable as the post of Gram Rozgar Sahayak is not a regular sanctioned post rather it is a purely temporary and contractual post and looking to the requirement of work as per the Scheme, the appointments are made and since earlier petitioners' appointment was made on the post of Gram Rozgar Sahayak but as their service tenure have been extended even after completion of one year, the Accountant General raised an audit objection pursuant to which the Commissioner has issued the direction on 28/11/2007 (Annexure R/3) for fresh appointment every year following the rules of reservation. It is pertinent to mention here that the scheme of the State Government dated 14/12/2007 (Annexure R/1) and the order of the Commissioner dated 28/11/2007 (Annexure R/3) directing for fresh appointment on the post of Gram Rozgar Sahayak every year following the rules of reservation have not been questioned by the petitioners in these writ petitions except the advertisement dated 08/01/2014 (Annexure P/1) in all the writ petitions and in WPS Nos. 2615/2014 and 2647/2014 memo dated 19/05/2014 (Annexure P/1), as such, the scheme dated 14/12/2007 (Annexure R/1) and memo dated 28/11/2007 (Annexure R/3) have become final in absence of challenge to them in this batch of writ petitions.

19. In the matter of State of Gujarat v. P.J. Kampavat (1992) 3 SCC 226) where the appointment was purely on contractual and temporary basis for a limited period without conferring any right of absorption or regularization, the Supreme Court interfered with the order of the High Court granting relief to the appointee and held in paragraphs 10 and 11 as under:

“10. The High Court has relied upon the said rule to hold that the writ petitioners are covered by clause (b) to the proviso. It has further held that the respondent must be deemed to be holders of temporary posts within the meaning of Rule 9(56) which defines the expression temporary post to mean a post carrying a definite rate of pay sanctioned for a limited time. On the above basis, the High Court has applied Rule 33 which provides the mode of terminating the service of a temporary Government servant. In short, the rule provides for a prior notice, the duration of which depends upon the length of service put in by the temporary Government servant. We are, however, of the opinion that the said rules have no application to the respondents herein and that they cannot be deemed to be temporary Government servants within the meaning of the said rules inasmuch as the terms of their appointment clearly amount to an otherwise provision within the meaning of the nonobstante clause ("except where it is otherwise expressed or implied") with which Rule 2 begins. The order appointing the respondents expressly states not only that their services shall be terminated at any time without giving any notice and without assigning any reason but also that their appointment is for a limited period coterminus with the concerned minister's tenure. They were also asked to execute an undertaking in the above terms which they did. It is evident that the terms of their appointment and the undertaking are clearly inconsistent with the said rules and in particular with rule 33. Rule 33 (1)(b) and the term making their tenure coterminus with their minister cannot go together. Subrule (1) of rule 33 of the Bombay Civil Service Rules may be set out at this stage, for the reason that the High Court has rested its case on clause (b) of the said subrule.

"33.(1)(a) The service of a temporary government servant shall be liable to termination at any time by a notice in writing given to him by the appointing authority.

(b) Where a temporary government servant has put in service for a period exceeding one year the period of such notice shall be one month and where such government servant has put in service for one year or any period less than one year the period of such notice shall be one week:

Provided that the services of any such government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowance for the period of the notice due the same rates at which he was drawing pay and allowances immediately before the termination of his service or as the case may be, for the period by which such notice falls short of the notice period."

11. For the reasons given above, we are of the opinion that the appointment of the respondents was a pure and simple contractual appointment and that such appointment does not attract and is outside the purview of the Bombay Civil Service Rules, 1959. Since the tenure of the ministers at whose instance and on whose recommendation they were appointed has come to an end with December 10, 1989 their service also came to an end simultaneously. No order of termination as such was necessary for putting an end to their service, much less a prior notice. They ought to go out in the manner they have come in.”

20. Similarly in the matter of Director, Institute of Manangement Development, U.P. v. Pushpa Srivastava (Smt) (1992) 4 SCC 33), their Lordships of the Supreme Court referred to the order of appointment of the respondent in paragraph 18 and concluded in paragraph 19 as under:

“19. The following are clear from the above order:

(i) The respondent was appointed on a contractual basis.

(ii) The post was to carry a consolidated pay of Rs 2400 per month.

(iii) The duration of appointment was six months from the date of the respondent joining charge.

(iv) It is purely on ad hoc basis.

(v) It is terminable without any notice.”

In that view of the matter, their Lordships held that respondent's appointment was purely adhoc and on contractual basis for a limited period, therefore by expiry of period of six months her right to remain on the post comes to an end.

21. Likewise, in the matter of Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and Others (1992) 4 SCC 99), with respect to the employment scheme under Jawahar Rozgar Yojna, their Lordships of Supreme Court held as under:

“22. The above figures show that if the resources used for the Jawahar Rozgar Yojna were in their entirety to be used for providing full employment throughout the year, they would have given employment only to a small percentage of the population in need of income, the remaining vast majority being left with no income whatsoever. No fault could, therefore, be found with the limited object of the scheme given the limited resources at the disposal of the State. Those employed under the scheme, therefore, could not ask for more than what the scheme intended to give them. To get an employment under such scheme and to claim on the basis of the said employment, a right to regularisation, is to frustrate the scheme itself. No court can be a party to such exercise. It is wrong to approach. the problems of those employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work. These concepts, in the context of such schemes are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get to keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the schemes are meant. That would also force the state to wind up the existing schemes and forbid them from introducing the new ones, for want of resources. This is not to say that the problems of the unemployed deserve no consideration or sympathy. This is only to emphasise that even among the unemployed a distinction exists between those who live below and above the poverty line, those in need of partial and those in need of full employment, the educated and uneducated, the rural and urban unemployed etc.”

22. In the matter of Hindustan Education Society and Another v. SK. Kaleem SK. Gulam Nabi and Others (1997) 5 SCC 152) again a similar view has been taken by their Lordships of the Supreme Court after considering the terms and conditions of appointment in paragraph 3 of the judgment.

23. Finally in the matter of Joginder Singh (supra), the Punjab and Haryana High Court has categorically held as under:

“In the case in hand, the posts in question are contractual in nature and as per the Scheme, are required to be filled up only on contractual basis. This part of the Scheme is not under challenge by the petitioners. That

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being so, posts, which are contractual in nature, would necessarily be filled up through employees, to be appointed on contract. The judgments cited by the counsel for the petitioners pertain to posts, which are regular in nature, wherein directions have been issued not to replace employees appointed on contract basis by another set of contractual employees till regular appointments are made. In view of the facts of the case in hand, this situation could not arise herein.” 24. The order passed by Punjab and Haryana High Court in Joginder Singh (supra) was challenged in LPA No. 1205/2015 which was dismissed on 18/08/2015 affirming the order passed in the writ petition. 25. Reverting to the facts of the present case in light of the aforesaid pronouncements of the Supreme Court and Punjab and Haryana High Court, it is quite vivid that admittedly the post of Gram Rozgar Sahayak is a purely temporary and contractual post and it is not a regular sanctioned post and as per the Scheme, it has to be filled up on contractual basis for a period of one year as per the scheme dated 14/12/2007 (Annexure R/1) and as per the order of the competent authority dated 28/11/2007 (Annexure R/3), therefore the principle of law laid down in Hargurpratap Singh (supra) that one set of contractual employees cannot be replaced by another set of contractual employees would not be applicable to the facts of the present case. Moreover, the Scheme under which the impugned advertisement dated 08/01/2014 (Annexure P/1) and memo dated 19/05/2014 (Annexure P/1) have been issued as well as the scheme dated 14/12/2007 (Annexure R/1) and the order of the Commissioner dated 28/11/2007 (Annexure R/3) clearly directing appointment of Gram Rozgar Sahayak to be made for one year has not been challenged by the petitioners in any of these writ petitions and they have become final. That being the clear position and appointment on the posts of Gram Rozgar Sahayak being contractual in nature on temporary post, it has to be filled up afresh after completion of one year. In that view of the matter, I do not find any merit in this batch of writ petitions calling in question the impugned advertisement dated 08/01/2014(Annexure P/1) inviting fresh applications for the post of Gram Rozgar Sahayak for one year and memo dated 19/05/2014 (Annexure P/1) in WPS Nos. 2615/2014 and 2647/2014 issued by the Collector directing the Chief Executive Officer, Janpad Panchayat, LakhanpurSurguja for fresh recruitment on the post of Rozgar Sahayak on contractual basis. 26. Accordingly, all the writ petitions deserve to be and are accordingly dismissed. No cost(s).
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