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Andhra High Court · body

2013 DIGILAW 946 (AP)

P. Murali v. Government of Andhra Pradesh

2013-10-31

C.V.NAGARJUNA REDDY

body2013
ORDER :- This batch of writ petitions involve common issues. Hence, they are heard and being disposed of together. 2. The brief background in which these writ petitions are filed is mentioned hereunder: The Government of Andhra Pradesh has issued G.O. Ms. No.13, Information Technology and Communications Department, dated 10.1.2003, for setting up Service Delivery Points (SDPs) through conversion of STD/ PCOs located in semi urban and rural areas. The main object behind establishment of these SOPs is to make the information technology benefits available to the people in the rural areas through the use of internet and e-commerce technologies by providing services to the people on G2C (Government to Customer), G2B (Government to Business) and B2C (Business to Customer) on a one stop, non-stop, any time and anywhere basis. The State Government has issued G.O. Ms. No.12, Information Technology and Communications Department, dated 4.5.2005, providing for establishment of Rajiv Kiosks under Rajiv Internet Village Programme (Rajiv) by authorising the Director (EDS) to issue letters of intent and signing agreements with M/s BEL for establishment of 5,550 Rural Kiosks and with M/s TIMES for establishment of 3,068 Rural Kiosks. Later, the State Government has issued G.O. Ms. No.4, Information Technology and Communications Department, dated 4.3.2006, for effective implementation of Rural Service Delivery Points (RSDPs). To avoid hardship to the beneficiaries of the Scheme, the State Government has decided to permit granting of 694 RSDPs in addition to the existing 831 RSDPs. It is further provided that if any of those locations fall in the list of the villages identified for Rajiv Internet Village Programme, the Principal Rajiv Partners shall be offered alternative villages by the District Rajiv Committee. Subsequently, the Government of India, respondent No.2, framed a scheme providing for establishment of Common Services Centers (CSCs). This scheme provides for establishment of Kiosks across the country with an equitable spread at the rate of one CSC for every six census villages and the State Government will have to work out the number of CSCs that would be established in each block across the State based on this programme. It is further provided therein that the State Government would make every effort to subsume the existing Kiosks within the ambit of the CSC Schemes either in the form of Service Center Agencies (SCAs) or Village Level Entrepreneurs, as applicable. Following this Scheme, the State Government has issued G.O. Ms. It is further provided therein that the State Government would make every effort to subsume the existing Kiosks within the ambit of the CSC Schemes either in the form of Service Center Agencies (SCAs) or Village Level Entrepreneurs, as applicable. Following this Scheme, the State Government has issued G.O. Ms. No.20, Information Technology and Communications (Infrastructures) Department, dated 4.10.2008. Guidelines were issued by the State Government in the said G.O. for setting up of 4,687 ICT enabled Centers in rural areas covering all the Districts/Mandals of the State by implementing the Scheme on a Public Private Partnership (PPP) framework. This G.O. provides for a three tier implementation framework comprising Village Level Entrepreneur (VLE), Service Center Agency (SCA) for one or more districts to manage the VLEs and a State Designated Agency (SDA) to facilitate the implementation process at the State level. The entire State was divided into six zones and they were allotted to different entrepreneurs selected as CSCs and SCAs. Each of the petitioners, as a part of this Scheme, was allotted RSDP Center and an organisation called Setwin has sanctioned loans for establishment of these Centers. In pursuance of the above Scheme, respondent No.3 has issued a Master Service Agreement and a request for proposal for Selection of SCAs to set up, manage and operate CSCs in the State of Andhra Pradesh. One of the conditions stipulated by respondent No.3 is that the SCA is not permitted to open and run CSC Centers in the villages where RSDP kiosks or other kiosks approved by the Director (EDS) are already in operation. The State Government has issued G.O. Ms. No.4, dated 1.3.2012, designating the Joint Collectors of all the districts as Additional Director (EDS) and launched 'Mee-seva' services as a pilot project in Chittoor District. When certain complaints were received by respondent No.3 that new CSCs have been established in locations where RSDPs are already functioning, he has intervened and addressed Letter No.9000/EDS/RESEVA 1/2011 - 12, dated 2.6.2011, to all the Joint Collectors and Additional Directors of e-Sevas of all the districts except Hyderabad, wherein he has narrated the history of RSDPs and the evolution of the scheme leading to establishment of CSCs. It is instructive to reproduce the relevant part of the letter hereunder: "It is to further bring to your notice that RSDPs (Rural Service Delivery Points) were established in rural and semi urban areas vide G.O. Ms. No.13, dated 10.1.2013, IT & C Dept., by converting STD booths into ICT Kiosks. The selection and sanction of RSDPs was done by District Level Committees headed by District Collector. Later, when Government introduced Rajiv Internet Village (RIV) project, protection was given to RSDPs by which RIV centers should not be established in RSDP location. But, it was also proposed to subsume RSDPs under RIV project. Very few RSDPs may have subsumed into RIV scheme. Later, the Government introduced CSC (Common Service Center) project to establish rural ICT centers under NeGP (National e-Governance Plan) of Government of India replacing Rajiv project. As per provisions of the CSC project the SCA (Service Provider under CSC scheme), if Rajiv and RSDP operators so desire, should make every effort to subsume existing kiosks (Rajiv and or RSDP) within the ambit of CSC scheme. In case, subsuming does not happen for any reason, the SCA is not pem1itted to place the new CSC center in those villages where existing centers are operating. The spirit of the CSC project is to bring all rural kiosks including RSDP and RIVs within the ambit of CSC program. Many CSCs have been rolled out and functioning in various districts offering services. In view of the above, it is requested to ensure that (a) New delivery channels including RIV, CSC, A.P. Online Centers are not started in RSDP locations. (b) New delivery channels are not started in entirely RIV/CSC locations. (c) New A.P. Online Centers are not started in rural areas." In the above reproduced letter, respondent No.3 has requested all the Joint Collectors to ensure that New Delivery Channel including RIV, CSC and A.P. Online Centres are not started in RSDP locations; that New Delivery Channels are not started in entirely RIV/CSC locations; and that New A.P. Online Centers are not started in rural areas. In spite of the said request, as new Centers were being started, the petitioners and others filed a batch of writ petitions, i.e., Writ Petition No.26744 of 2011 and Batch. In spite of the said request, as new Centers were being started, the petitioners and others filed a batch of writ petitions, i.e., Writ Petition No.26744 of 2011 and Batch. The said batch of writ petitions was dismissed by a learned Division Bench of this Court by order, dated 12.7.2013, on the ground that the State Government has issued a new G.O. i.e., G.O. Ms. No.45, Information Technology and Communications (Infra) Department, dated 9.10.2012. It is this G.O., which is questioned in these writ petitions. 3. Under the impugned G.O., the State Government has, inter alia, authorised the District e-Governance Societies (DeGS) to identify villages for establishing new Centers on need basis depending on the population or proximity or public convenience and establish additional center(s), where already operational Centre(s) is/are existing on need basis depending on the population or proximity or public convenience. 4. The main grievance of the petitioners in these writ petitions is that while issuing the impugned G.O., the State Government has completely ignored Para 6 of the guidelines framed by the Government of India and that by giving free hand to the DeGS for establishing additional centers even where the centers are already in existence, the State Government has put the existing centers at peril of extinction due to unfair competition. 5. In the counter-affidavit filed on behalf of respondent No.1, it is pleaded that the main purpose of establishment of CSCs is to make available various services rendered by different departments of the State Government to the doorsteps of the common man, especially in rural and semi urban areas and therefore, as their interests are of paramount importance, respondent No.1 has envisaged opening of additional centers by issuing the impugned G.O. 6. Learned Special Government Pleader, representing the learned Additional I Advocate General, submitted that the ceiling on the number of CSCs placed by the Government of India in its guidelines was intended only to see that the financial burden on the Government of India is minimised and that the State Government is free to establish additional centers without seeking the revenue support from the Government of India. 7. In order to examine the respective contentions of the learned Counsel for the parties, it is necessary to refer to the relevant paras in the guidelines issued by respondent No.2, which are as under: 6. 7. In order to examine the respective contentions of the learned Counsel for the parties, it is necessary to refer to the relevant paras in the guidelines issued by respondent No.2, which are as under: 6. Determining the CSC locations : "6.1 The aim of the CSC Scheme is to establish 1,00,000 rural kiosks across the country with an equitable spread at the rate of one (1) CSC for every six (6) census villages. State Governments would have to work out the number of CSCs that would be established in each block across the State, based on the above parameter. 6.2 The SCA may be given the discretion to locate the CSCs anywhere within a Block within the overall ceiling arrived at, based on the criterion mentioned ill Para 6.1. The SCA, however, would need' to ensure that, not more than one (1) CSC is established in one Gram Panchayat, unless the number of Gram Panchayats in a Block is less than the number worked out, based on the criteria mentioned in Para 6.1. 6.3 Wherever the State Government proposes to set up a larger number of CSCs than those prescribed as per criteria mentioned in Para 6.1 for certain specific reasons, prior approval of DIT, GOI, would need to be taken by the concerned State Government." 9. Approvals and Modifications: 9.1 The Draft REP would be reviewed by the SDA appointed by the State for the CSC Scheme and the requisite approval would be taken from appropriate authorities for issuance of the RFP. 9.2 In order to facilitate implementation of the CSC Scheme, appropriate policy and regulatory amendments, if required, could be made by the State Government. 9.3 Before fomalising the RFP, it is recommended that specific approvals should be sought by the SDA from the State Government authorities, on the following issue: (a) Integration Plan for existing kiosks (b) Number of CSC locations (c) Branding of CSCs (d) Pricing of Government Services and revenue sharing arrangement for such services (e) Number of SCAs to be selected for the Scheme (f) Pre-qualification criteria for SCAs Support to be provided to SCAs in terms of use of State infrastructure as indicated at Para 4.3.1 and specific charges thereof, if any." 8. It is an admitted position that RSDPs, which were established under different Schemes of the State Government, are intended to be subsumed into CSCs envisaged by the Government of India at the village level. The Government of India has placed ceiling on the number of CSCs to be established i.e., there must be one CSC for every six census villages and there must not be more than one CSC in one Gram Panchayat, unless the number of Gram Panchayats in a block is less than the number worked out based on the criteria mentioned in Para 6.1 of the guidelines issued by respondent No.2. Para 6.3 thereof unequivocally directs that whenever the State Government proposes to set up a larger number of CSCs than those prescribed as per the criteria mentioned in Para 6.1, for certain specific reasons, prior approval of the Director of Information Technology (DIT), Government of India needs to be taken by the State Government concerned. It is also the admitted case that the present Centers, being run in whatever name, providing services to the public through internet connected with the Government departments, are traceable to the Scheme evolved by the Government of India. It would quite well be that the intendment of the Government of India in placing the ceiling on the number of CSCs to be operated is with a view to control revenue expenditure. If the State Government feels that there is need for more and more CSCs, it is bound to obtain the prior approval of DIT, Government of India. 9. As submitted by the learned Special Government Pleader, if such approvals are not taken, the inevitable consequence would be that the Government of India would not fund those additional Centers. The guidelines issued by the Government of India not being statutory in nature, they do not confer enforceable right on the existing CSCs. Therefore, to that extent, the petitioners would not be able to enforce these Guidelines through a mandamus. 10. But, at the same time, the State Government which is operating the CSCs under the scheme evolved by the Government of India cannot completely ignore these guidelines farmed by the latter. Therefore, to that extent, the petitioners would not be able to enforce these Guidelines through a mandamus. 10. But, at the same time, the State Government which is operating the CSCs under the scheme evolved by the Government of India cannot completely ignore these guidelines farmed by the latter. While it is certainly open to the State Government to establish new additional Centers on need basis by meeting the expenditure from its own funds, it, however, cannot create a situation where unhealthy competition arises between the agencies running these establishments. It is the duty and responsibility of the State Government to ensure that the existing Centers are viable and in the guise of providing services to the people, it shall not encourage unfair competition among the agencies. In Para 9 of the impugned G.O., a blanket permission is accorded by the State Government to DeGS to identify the villages for establishing new centers on need basis depending on the population or proximity or public convenience. The impugned G.O. does not contain any guidelines or criteria for determination of the population, proximity or public convenience by the DeGS. In the absence of fixing such criteria, there is a possibility that each DeGS fixes its own criteria, as a result of which, there will be no uniformity between two districts in the State in establishing the number of Centers, An unhealthy situation will thus emerge creating chaos in the matter of establishment and running of additional centers. 11. It needs to be noted that the services being rendered by the CSCs fall in the realm of various Government functions such as issuance of documents and certificates tinder various Enactments. Indeed, the State Government has entrusted a part of its sovereign function to these private entrepreneurs. While the wisdom of the Government in this regard is not the subject-matter of these writ petitions, the Government should be aware of the consequences arising out of entrustment of such sovereign functions to the private agencies. Be that as it may, unless the agencies running the CSCs are provided with sufficient revenue or ensured proper viability, there is a likelihood of their misusing the facilities made available to them by indulging in activities such as creation/fabrication of documents. Such a situation causes serious hardship to the public at large. 12. Be that as it may, unless the agencies running the CSCs are provided with sufficient revenue or ensured proper viability, there is a likelihood of their misusing the facilities made available to them by indulging in activities such as creation/fabrication of documents. Such a situation causes serious hardship to the public at large. 12. In the light of the above discussion, while this Court is not inclined to interfere with the impugned G.O., it however, feels it appropriate that respondent No.1 evolves proper criteria to be followed by the DeGS for identifying the villages for establishment of additional Centers. The criteria must be based on the three aspects mentioned in Para 9 of the impugned G.O. i.e., population, proximity and public convenience in order to ensure that there will be uniformity in the matter of number of Centers to be established in all the districts in the State of Andhra Pradesh. While fixing the criteria, respondent No.1 shall keep in mind the viability of the Centers, both existing and additional, as of paramount consideration, besides public convenience. Till such criteria are evolved and communicated to all the DeGS, the respondents shall not open new Centers. 13. Subject to the above observations and directions, the writ petitions are disposed of. 14. As a sequel to disposal of the writ petitions, WPMP Nos.26920, 26923, 27235, 27236, 27808, 27809, 28047, 28048, 28049, 28050, 28356, 28357, 28363 and 28364 of 2013 filed by the petitioners for interim relief are disposed of as infructuous.