JUDGMENT By the Court.—The respondents-appellants aggrieved by the order dated 20.03.2009 passed by a learned Single Judge in Civil Misc. Writ Petition No. 2072 of 2009 have preferred this appeal under Rule 5 Chapter VIII of the Allahabad High Court Rules, 1952. 2. Several writ petitions involving the very same controversy were clubbed together and have been decided by the impugned judgment or those not clubbed together have been decided in terms of the judgment impugned. 3. Special Appeal No. 551 (D) of 2009 (Ravi Shanker Singh and 94 others v. Sumit Kumar and others) has been filed by the Service Provider (Appellant No. 95) and the Appellants No. 1 to 94 claim to have been appointed and sent for training in pursuance to the Government Order dated 9.2.2009 issued as a consequence of the U.P. Rural Employment Guarantee (Second Amendment) Scheme 2008. Special Appeal No. 680 of 2009 (Ajai Gupta v. Sumit Kumar and others) is by the Service Provider selected in pursuance to the advertisement issued after the enforcement of the Second Amendment Scheme 2008. The challenge to the impugned judgment in both these Special Appeals is on common grounds as taken in the other connected Special Appeals. All the Special Appeals arising there from have been heard and are being decided together. Learned counsels for all the parties have been heard at length. 4. By the judgment impugned in this intra-Court appeal, the clauses No. 5.4, 5.5, 5.5-A, 5.9, 8.1, 8.2, 8.3 and 8.4 of the U.P. Rural Employment Guarantee (Second Amendment) Scheme, 2008 have been declared ultra vires the provisions of National Rural Employment Guarantee Act, 2005 and policy of the Central Government to implement the Act contained in the operational guidelines of the years 2006 and 2008. 5. The submission of Sri J. N. Mathur, learned Senior Counsel and Additional Advocate General appearing for the appellant State of U.P. is that the ban under Clause 11 of Schedule 1 of the Act is for engagement of any contractor for implementation of the projects under the Scheme. The service provider or the staff provided are not being used for implementation of the projects. It is only the ‘applicants’ as defined under the Act, who are engaged for working in a project. These ‘applicants’ are provided employment in the project and no other personnel apart from the ‘applicants’ perform the works of the project. The service provider or the staff provided are not being used for implementation of the projects. It is only the ‘applicants’ as defined under the Act, who are engaged for working in a project. These ‘applicants’ are provided employment in the project and no other personnel apart from the ‘applicants’ perform the works of the project. The execution of NREGA works is not done by the persons engaged through the service providers. His further submission is that Clause II refers to implementation of projects which clearly means execution of the work and it cannot be interpreted to include any administrative or supervisory function. The Technical Assistants and other administrative support staff are not engaged in performing any NREGA works, which is performed only by the ‘applicants’ who are given employment. 6. Learned counsels for the writ petitioners-respondents have argued that Clause 11 of Schedule 1 of the Act is a total ban on engagement of any contractors not only for implementation or execution of NREGA works but also for preparation and sanction of the projects. The Technical Assistants provided by the service provider perform duties involving preparation and sanction of the projects, hence the service provider, who is nothing but contractor, is clearly banned under the Act. While interpreting the Operational Guidelines it is submitted that when all works under NREGA are to be done by the job card holders and contractors are to be avoided then even engagement of Technical Assistants through a contractor is neither permissible nor it was ever a part of the Scheme. It is also submitted that the Scheme has been framed under the Act and any delegatee cannot exercise more powers than those delegated. As such the Scheme 2008 is in excess of the powers delegated to the State under the Act. 7. The reasons in the order impugned for holding the aforementioned clauses ultra vires are inter alia : (a) The object of NREGA being to provide limited guaranteed employment to the rural poor for alleviating poverty, within the economic means of the State and enhancement of livelihood security of the household in rural areas the amendment has virtually taken away the powers from the Panchayats and have centralized them in the State by appointment of service providers and the local bodies have not been given any right or method of redressal of complaints against technical assistants provided by such service providers. (b) The Operational Guidelines, 2008 of the Central Government do not provide for participation of any outside agency for the purpose of preparation of projects and their implementation. When there is no outsourcing for preparation, sanction, execution and implementation of the works and payment is to be made to the job card holders, there is a clear prohibition to engage any contractor for any purpose, which is also banned under Clause 11 of Schedule I of the National Rural Employment Guarantee Act, 2005. (c) A service provider is nothing but a contractor for engaging and providing men including additional programme coordinator, technical assistants, computer programmers and other staff, which is apparently ultra vires the object, purpose and the provisions of the Act. (d) By the Second Amendment Scheme, 2008, the State Government has provided for appointment and payment of honorarium to technical assistants at village panchayat level and block level, which is not envisaged in the Act or in the operational guidelines, 2006 and 2008 issued by the Central Government hence it would be a burden on the NREGA fund along with an additional burden of almost 2.33% as service charges and service tax on the entire wage bill which is a permanent liability on the scheme at the districts, blocks and panchayats level, particularly when the works undertaken have to be implemented by the Gram Panchayats. (e) In view of the specific guidelines that all the works should be executed by the workers having job cards and to avoid contractors, the engagement of technical assistants and other persons through the service providers was never a part of the scheme of the Central Government and hence they could not be engaged in the execution of work. 8. It is at the outset recorded that we do not in any manner dispute that a delegatee cannot widen or restrict the scope of the Act or its policy and principles. Whether it has been so done by the State in the present case, as held by the learned Single Judge, is to be considered before applying the law laid down on the issue. 9. Whether it has been so done by the State in the present case, as held by the learned Single Judge, is to be considered before applying the law laid down on the issue. 9. Admittedly, the scheme under the Act provides that 50% of the works will be allotted for the gram panchayats to execute and a ratio of 60:40 wage and material ratio has to be maintained, no contractor or machinery is allowed and the development plan has to be forwarded by the gram panchayat with its priorities to the programme officer for scrutiny and approval. The programme officer has to consolidate the proposal and the District Programme Coordinator is to approve the block wise projects and identification of work and financial approval. The execution of works under Chapter VI clearly provides that the gram panchayats are to be the implementing agencies. It is the aforesaid guidelines which do not permit any outside agency. 10. The Second Amendment Scheme, 2008 of the State Government has been found to be against the object of the Act and the Operational Guidelines where Clause 5.4 has been amended and now provides for one technical assistant for 5 to 10 gram panchayats and one technical assistant at the block level who are to be engaged through a service provider but will not be employees either of the Government or under the Scheme and will be governed as per their contract with the service provider. The unamended Clause 5.4 had provided for a panel of such personnel to be prepared at the district level and after approval by the State, work could be taken from them. The unamended and amended Clause 5.4 is quoted hereunder : 11. The difference in the unamended Clause 5.4 and the amended Clause 5.4 is not with respect of taking the services of technical assistants at the panchayats or block level but it is the manner of empanelling/engagement of such technical assistants. The unamended clause provided for empanelment by the district authorities whereas under the amended clause 5.4 it is also the service provider, who can provide such technical assistant. The unamended clause provided for empanelment by the district authorities whereas under the amended clause 5.4 it is also the service provider, who can provide such technical assistant. Therefore, Clause 5.4 which provides for empanelment of technical assistant even after amendment provides for engagement of technical assistant, the difference being that it would now also be through the service providers and such engaged persons would be working under the terms and conditions which would be contractual in nature. 12. The service provider has been made entitled to service charges. The Operational Guidelines 2008 envisaged appointment of technical assistants to supervise all projects and the burden for payment of their salaries was on the costs of the project. Under the U.P. Government Order dated 8.2.2007 Chapter V provided for technical arrangements. It provided for empanelment of Junior engineers and Technical Assistants already working in Government Departments in the district. Under Clause 5.2, it was made permissible to consider applicants even from outside the district. By the amendment made by the State Government, there is no change to Clause 5.2 and the Junior Engineers and Technical Assistants working in Government Departments in the district can be empanelled by the Committee. It is the Technical Assistants who were also to be empanelled under Clause 5.1 and who under Clause 5.2 were to be considered even if they were from outside the district, who have been dealt with by the Amendment. The amendment does not affect the empanelment of Junior Engineers or Technical Assistants from within the district. It has channelized the applicants from outside the district through the Service Provider. 13. Administrative fund is to be determined by the Central and State Governments under Section 22 dealing with Funding Pattern. Section 22 reads as quoted hereunder : “22. The amendment does not affect the empanelment of Junior Engineers or Technical Assistants from within the district. It has channelized the applicants from outside the district through the Service Provider. 13. Administrative fund is to be determined by the Central and State Governments under Section 22 dealing with Funding Pattern. Section 22 reads as quoted hereunder : “22. Funding Pattern.—(1) Subject to the rules as may be made by the Central Government in this behalf, the Central Government shall meet the cost of the following, namely : (a) the amount required for payment of wages for unskilled manual work under the Scheme; (b) up to three-fourths of the material cost of the Scheme including payment of wages to skilled and semi-skilled workers subject to the provisions of Schedule II; (c) Such percentage of the total cost of the scheme as may be determined by the Central Government towards the administrative expense, which may include the salary and allowances of the Programme Officers and his supporting staff, the administrative expenses of the Central Council, facilities to be provided under Schedule II and such other items as may be decided by the Central Government. (2) The State Government shall meet the cost of the following, namely:- (a) the cost of unemployment allowance payable under the Scheme; (b) one-fourth of the material cost of the Scheme including payment of wages to skilled and semi-skilled workers subject to the provisions of Schedule II; (c) the administrative expenses of the State Council.” 14. From a reading of Section 22 of the Act it is clear that the Central Government has to meet the expenditure for payment of wages, up to three fourth of the material cost, a percentage of the scheme towards administrative expenses which includes salaries and under clause (2) the State has also to meet certain costs. In short the liabilities of the Governments has been defined. This liability is apart from and not included in the funds to be created by the respective Government known as National Employment Guarantee Fund and State Employment Guarantee Fund. 15. Section 22 of the Act deals with the power of the Government to decide a percentage of the cost of the scheme towards administrative expenses, and these expenses may include salary and allowances of programme officers and his supportive staff. 16. 15. Section 22 of the Act deals with the power of the Government to decide a percentage of the cost of the scheme towards administrative expenses, and these expenses may include salary and allowances of programme officers and his supportive staff. 16. Section 2 (n) defines ‘project’ to mean any work taken up under a scheme for the purpose of providing employment to the applicants and Section 2(b) defines ‘applicant’ to mean the head of a household or any of its other adult members who has applied for employment under the scheme. There is no ambiguity in the provisions of the Act that contractors are prohibited in execution of works to be done by NREGA applicants. Therefore, when a project is a work to provide employment to the applicant and applicant is the specified person to do such work then contractors cannot be engaged to do the work in a project which can only be done by either the head of the household on any of its other adult members. 17. On the other hand Clause 11 of Schedule 1 of the Act is related to Section 4 in Chapter III and does not relate to the administrative arrangements referred to in Chapter V. It reads as follows : “11. The Scheme shall not permit engaging any contractor for implementation of the projects under it.” 18. It is an item under Schedule 1 which is primarily the minimum features of a Scheme contemplated under Section 4 which finds place in Chapter III of the Act. Hence the fields covered under Chapter III are notifying of schemes providing Employment Guarantee to the rural households where contractors are prohibited, whereas Chapter V deals with Administrative Arrangements including administrative funds. Section 22 (1)(c) of the Act falling under Chapter V therefore, cannot be subject matter of the fields covered by Section 4 or Schedule 1 of the Act. The administrative fund is for engagement of personnel as part of the administrative support system and their hiring through service providers on a contract basis is clearly distinct from the use of contractor in the execution of NREGA works. 19. The administrative fund is for engagement of personnel as part of the administrative support system and their hiring through service providers on a contract basis is clearly distinct from the use of contractor in the execution of NREGA works. 19. The qualifications given in Clause 5.5 have been amended by the Second Amendment Scheme, 2008 providing that technical assistant should have a minimum qualification of High School and a Diploma in Civil, Mechanical, Electrical Trade and for the purpose of engagement at the block level must also have 8 years working experience. The age limit has been provided as minimum 18 years and maximum 62 years. Under the unamended clause 5.5 the candidates selected from outside the districts were required to have a minimum qualification of Intermediate and Diploma in Civil, Mechanical Engineering. The unamended and amended Clause 5.5 is quoted hereunder: 20. It appears from the aforesaid unamended and amended clause 5.5 that under the amended clause the minimum qualification has been reduced from Intermediate to High School but the other qualification of diploma remains the same and an additional qualification has been provided by the amendment of 8 years minimum work experience which was not there in the unamended clause. The aforesaid amendment, therefore, cannot be held to have provided qualification which is lesser in any way to the unamended qualification or even to hold that the minimum qualification under the amended clause is in any manner inferior to the qualification provided by the unamended clause. The primary reason being that the nature of work to be performed by Technical Assistants is obviously technical and the qualification of either High School or Intermediate is not of a technical field. It is the Diploma in the specific trade that is the qualification required to perform work of a technical nature. Possession of a Diploma in the trade is common in both the amended and the unamended clause. By the amendment, the State has further required the Diploma Holder to also have 8 years’ work experience. It is an increase in the technical qualification of an aspirant for engagement as a Technical Assistant whose nature of work is technical and not clerical. In fact, the State Government which has been made responsible to make available necessary staff and technical support for effective implementation of the scheme under Section 18 of the Act has now provided for better qualified Technical Assistants. In fact, the State Government which has been made responsible to make available necessary staff and technical support for effective implementation of the scheme under Section 18 of the Act has now provided for better qualified Technical Assistants. Consequently it cannot be held that by the amendment to Clause 5.5 by the State of U.P., it is in any manner in violation of the operational guidelines issued by the Central Government or that it is ultra vires the provisions of the Act. 21. Clause 5.9 fixes the honorarium of such selected Junior Engineers/Technical Assistants and the amended clause 5.9 in accordance with the Central Government order dated 10.01.2006 made them entitled to a maximum of Rs. 4000/- honorarium at the village panchayat level and maximum of Rs. 8000/- honorarium at the block level and further that at the time of engagement, the reservation policy of the government will be followed. The unamended and amended Clause 5.9 is quoted hereunder : 22. The difference between the amended and unamended clause 5.9 is that the amended clause fixed maximum honorarium that can be paid whereas the unamended clause provided that for preparing proposal, a sum of 0.5% of the cost of the project will be paid and after completion of the project 0.1% of the total cost of the project will be given to the person. It was further provided that they will be entitled to Rs. 500/- per month as travelling allowance. 23. The grounds of challenge to this Clause 5.9 in the writ petition on the basis of Clause 11 Schedule I of the Act are meritless since Clause 11 Schedule I is related to Chapter III and Clause 5.9 is in fact referable to and is in reference to the Administrative Fund and Section 22 of the Act occupies that field. Clearly the payment of honorarium to the personnel engaged for the administrative support system are from the Administrative Fund and these personnel are quite distinct from use of contractor in execution of NREGA works. 24. Clauses 8.1 to 8.4 introduced in the Second Amendment Scheme, 2008 relate to taking the services of Additional Programme Officers at the level of Development Blocks, in the office of the chief Development Officer and the Joint Development Commissioner. 24. Clauses 8.1 to 8.4 introduced in the Second Amendment Scheme, 2008 relate to taking the services of Additional Programme Officers at the level of Development Blocks, in the office of the chief Development Officer and the Joint Development Commissioner. Computer Operator/Data Entry Operator Account Assistants are also required to be engaged in the above referred offices and these personnel are required to be provided by the Service Provider. Clauses 8.1 to 8.4 are quoted hereunder : 25. These clauses have also been struck down for the very same reason of interpretation of Clause 11 of Schedule 1 of the Act. The prohibition under Clause 11 of Schedule 1 of the Act is not at all with reference to the administrative arrangements contemplated under Chapter V of the Act. Hence, the honorarium to be paid for engagement of personnel or the payment to the Service Provider can only be referable to Section 22 of the Act and it would be incorrect to hold that such administrative expenditure would be an additional financial burden on the NREGA fund released by the respective Governments to achieve the laudable objective of providing employment to the rural household. Therefore, the Clauses 8.1 to 8.4 being referable to the administrative expenditure are not ultra vires the Act or the operational guidelines, more particularly since such administrative expenditure has sanction under the Act. 26. The preparation of the proposal to be implemented in the village panchayats relating to water conservation, preservation drought proofing, afforestation, trees plantation, irrigation works, land development and construction of roads etc. are to be drawn out by the village panchayats to be approved by the coordinator. From a reading of these clauses, it appears that the proposals are prepared by the persons empanelled at the district level and now under the amended scheme, its preparation would also involve technical assistants and other staff having the requisite eligibility. The preparation part of the proposals provides for involvement of the village panchayats. These clauses do not deprive the village panchayat’s involvement in preparation of the proposal. It cannot be denied that preparation of the proposal such as water conservation, preservation drought proofing, afforestation, tree plantation, irrigation works, land development and construction of public projects, bridges and roads are all of technical nature and would require persons with technical knowledge for its preparation. These clauses do not deprive the village panchayat’s involvement in preparation of the proposal. It cannot be denied that preparation of the proposal such as water conservation, preservation drought proofing, afforestation, tree plantation, irrigation works, land development and construction of public projects, bridges and roads are all of technical nature and would require persons with technical knowledge for its preparation. Therefore, it cannot be held that the Operational Guidelines required mostly non technical members of the gram panchayats to prepare such proposals and hence, as a corollary, involvement of technical personnel is a mandate under the Act and Guidelines for the specific purpose. Therefore, with the State amendment of the Scheme, technical assistants and other staff cannot be held to have been given the exclusive entitlement to make proposals and it cannot be a case that the gram panchayat has no role to play in preparing the proposals and their priority. The amended Scheme clearly does not do away with the rights of the gram panchayats to send its proposals regarding development of the village. The proposals have to be given technical shape by technicians duly empanelled and after the amendment also by those whose technical qualifications make them fit for preparing projects and who have been engaged on honorarium instead of percentage of the total cost of the project. 27. Here also there is nothing on record nor any material is there to demonstrate that the village panchayats have been ousted from giving of proposals for development of the village panchayats. The power of the panchayats to give proposals and their priority have not been touched by the amendment and the proposals and their priority are within their powers. It is only the technical/financial side of preparation of proposals which were with the Junior Engineers and Technical Assistants earlier, still remain so after the amendment. Therefore, it cannot be held that the amendment made by the State of U.P. in the scheme has in any manner infringed upon the operational guidelines issued by the Central Government or that it has in any manner defeated the very object and the provisions of the enabling Act. It has in no way affected the power of the panchayats for giving proposals and fixing their priority. 28. It has in no way affected the power of the panchayats for giving proposals and fixing their priority. 28. In view of the above recorded reasons, we are of the view that the the Second Amendment Scheme, 2008 has not in any manner either widened or restricted the policy and principles enshrined in the Act or even in the Operational Guidelines and, therefore, the decisions referred to in the judgment impugned on the powers of a delegatee are of no relevance in the controversy raised in these proceedings. 29. There is yet another aspect of the case that requires consideration. The scheme of the State Government has been framed and is referable to Section 4(1)(2) and (3) of the Act. Prior to its amendment, the writ petitioners were engaged on honorarium. The process of their engagement, as alleged, was in accordance with the unamended scheme and they are stated to have been duly selected by the Selection committees under the Chairmanship of the Chief Development Officer, a government servant. After approval given by the State Government, the writ petitioners were given appointment letters. The appointment letters are available as annexures to the writ petition, all being quite identical. The salient feature, common to all appointments are that the engagement is on honorarium and are co-terminus with the particular project inasmuch as the payment provided for services rendered is 0.5% of the cost of the project with an additional 0.1% of the cost of the project at its conclusion. There is also a provision to remove a person from the panel prepared for engagement. The writ petitioners, therefore, cannot claim any more or additional rights of employment over and above those contemplated in their contract of service. Admittedly, their engagement is contractual in nature and neither they were State Government employees nor they were permanent employees under the unamended scheme of the State Government. Therefore, when the Second Amendment Scheme, 2008 has been upheld herein, then the relief claimed in the writ petition to continue to pay the salary/remuneration cannot be granted to them, in case their engagement does not continue any further. There is no provision in the Act, Operational Guidelines or the scheme of the State Government which guarantees employment to the Junior Engineer or Technical Assistants and the other supportive staff. 30. The Government Order dated 17.7.2006 deals with empanelment of Junior Engineers and Technical Assistants. There is no provision in the Act, Operational Guidelines or the scheme of the State Government which guarantees employment to the Junior Engineer or Technical Assistants and the other supportive staff. 30. The Government Order dated 17.7.2006 deals with empanelment of Junior Engineers and Technical Assistants. It refers to line department Junior Engineers who can be empanelled as also it refers to Technical Assistants who can be considered for empanelment, but who do not belong to the District in question. The entire scope of the Government Order is for preparing a panel of Junior Engineers and Technical Assistants. Clause 7 therein says that according to the panel published, these persons will not be allotted less than 5 or more than 10 Gram Panchayats. It is after the panel has been prepared that appointments can be given. Mere inclusion in the Select Panel cannot give any right to a candidate to claim appointment nor can he enforce his claim in law if appointment is not required and the panel has not been exhausted. The writ petitioners allege to be persons who were empanelled and given appointment letters. Therefore, when there is no provision that they shall be permanent employees under the scheme, then such a condition cannot be read into it. The writ petitioners shall therefore be governed strictly in accordance with the terms and conditions of their contract of employment and the panel prepared being for a fixed period under the Government Order dated 3.9.2007, the writ petitioners cannot claim to continue indefinitely. In any case, this claim of the writ petitioners has been rejected by the learned Single Judge in paragraph 42 of the judgment with which we are in agreement. 31. For the reasons aforementioned, these Special Appeals are liable to be allowed. They are allowed and in the result the impugned judgment dated 20.3.2009 is set aside. 32. There will be no order as to costs. ————