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2017 DIGILAW 1158 (ALL)

SUNITA YADAV v. STATE OF U. P.

2017-05-02

A.P.SAHI, SANJAY HARKAULI

body2017
JUDGMENT By the Court.—Heard learned counsel for the appellants. 2. The appeal had been entertained and the order was passed on 14.12.2016 by us to the following effect: “Heard learned counsel for the appellant. Learned Standing Counsel prays for and is granted two weeks time to file a counter-affidavit to the delay condonation application and also an affidavit explaining as to on what basis has the calculation of the non-availability of fund been made and as to what are the limits which are fixed for the purpose of calculating or assessing the availability of funds for making payments to such engagees. The affidavit be filed accordingly. List after the expiry of the two weeks.” 3. We have heard the appeal and have perused the records and have also heard the learned Standing Counsel. 4. The appellants claim themselves to have been selected as ‘Gram Rojgar Sewak’ who are to function as administrative assistants in a Gram Sabha at the village level in terms of the Government Order dated 23.11.2007. This Scheme under the Government Order was floated in order to provide employment under the National Employment Guarantee Scheme and also to aid and help the Gram Panchayat in achieving the targets of promotion of agriculture in the village. For this, the said Government Order makes a provision for appointment of a ‘Gram Rojgar Sewak’ on contract basis for a period of one year or till the Scheme lasts, whichever is earlier, with a further stipulation that the incumbent can be re-engaged provided his services are satisfactory for a further period of two years. Initially, the honorarium as fixed was Rs. 2,000/- per month but by subsequent revision, the same was enhanced to Rs. 3630/- and subsequently to Rs. 6,000/- per month. 5. The appellants contend that they faced selection proceedings and they were selected and recommended for being appointed as ‘Gram Rojgar Sewaks’ which selection was subject to approval by a Committee, the Chairman whereof is the District Magistrate of the District alongwith the Chief Development Officer and the District Development Officer as it’s member and secretary respectively. The appellants contend that in spite of these selections having been held, the appellants were not offered appointment and instead the matter was kept pending. They filed Writ Petition No. 6962 of 2012(SS) and a direction was issued on 27.2.2013 calling upon the respondents to take a decision. The appellants contend that in spite of these selections having been held, the appellants were not offered appointment and instead the matter was kept pending. They filed Writ Petition No. 6962 of 2012(SS) and a direction was issued on 27.2.2013 calling upon the respondents to take a decision. The fact remains that in spite of having been recommended, the selections were never approved and an order was passed on 27.6.2013 rejecting the representation of the petitioner relying on the Government Order dated 12.7.2010 to the effect that since the funds as were available in the ratio under the aforesaid Government Order were not sufficient to meet the demand, the approval could not be made and accordingly the representations were rejected. 6. Assailing the aforesaid order dated 27.6.2013, the appellants filed Writ Petition No. 5178 of 2013 (SS) that has given rise to the present appeal. 7. The said writ petition has been dismissed by the learned Single Judge on a consideration of the Government Order dated 21.7.2010 and also in view of the tenure of the contract appointment which according to the learned Single Judge has already come to an end. Consequently, the learned Single Judge found that the appellants cannot claim payment on the said post of ‘Gram Rojgar Sewak’ as a matter of right but at the same time has observed that keeping in view that the services of such ‘Gram Rojgar Sewaks’ is required in the villages, the District Magistrate shall look into the matter and in the event if the Scheme is still in force and if the petitioners are eligible, they may also be considered for engagement in accordance with law. It was also observed by the learned Single Judge that in case the requirement of appointment of ‘Gram Rojgar Sewaks’ did exist then the same shall be considered within a period of four months. 8. Learned counsel for the appellants submits that the Government Order dated 21.7.2010 existed at the time when the appellants had been selected and the said Government Order itself provides that if paucity of funds is noticed by the concerned officials, then a proposal should be made that has to be forwarded by the State Government to the Central Government for releasing adequate funds for making payments to such ‘Gram Rojgar Sewaks’ who may be selected and appointed keeping in view the need of the concerned village. 9. 9. Learned counsel for the appellants therefore contends that the learned Single Judge has not taken notice of this aspect of the matter whereby recommendation can be made for releasing the funds, hence, the judgment deserves to be modified accordingly with a direction to consider the engagement of the appellants and also for release of adequate funds by the appropriate authority for paying the honorarium to such selectees and appointees. 10. We have heard and considered the aforesaid submissions and also heard learned Standing Counsel who contend that selection does not give any right of appointment and even otherwise if there was a paucity of funds, then it’s non-availability, being a condition under the Government Order dated 21.7.2010, has rightly been made the basis for rejecting the representation of the appellants. He submits that the learned Single Judge has already made observations in this regard that in the event the funds are available, it will be open to the concerned District Magistrate to take appropriate steps if the Scheme is still surviving and the need of engaging ‘Gram Rojgar Sewak’ still subsists. 11. The contention on behalf of the appellants about they having a right of being appointed cannot be countenanced as firstly the selections and recommendations are for offering employment on contract basis, the tenure whereof is clearly defined as one year and further extendable by two years. Even assuming for the sake of argument that the same would take effect only from the date of appointment, it is evident that appellants due to paucity of funds were never given any appointment. The learned Standing Counsel is, therefore, right in his submission that mere selection does not give any right of appointment and consequently, the payment of honorarium also does not arise. 12. Coming to the impact of the Government Order dated 21.7.2010, it is undisputed that the same was existing as and when the selections of the appellants were made and, therefore, such selections were subject to the terms and conditions of the said Government Order dated 21.7.2010. The said Government Order clearly stipulates that only 6% of the amount available for administrative expenses can be utilized for making payment of honorarium to such engagees. 13. The Government Order is binding and the same is not under challenge. The said Government Order clearly stipulates that only 6% of the amount available for administrative expenses can be utilized for making payment of honorarium to such engagees. 13. The Government Order is binding and the same is not under challenge. Thus, any selection or appointment on the post of ‘Gram Rojgar Sewak’ would be subject to the condition of availability of the aforesaid funds which in the present case on the facts as indicated in the order dated 27.6.2013 was not available. The utilization of the funds for honorarium is to the extent of 6% of the administrative funds. Thus on a simple mathematical calculation if the ‘Gram Rojgar Sewak’ is to be paid a sum of Rs. 6,000/- per month, the annual expenditure of this head would be Rs. 72,000/- and, therefore, a sum of Rs. 12 lacs is to be available in the event the ‘Gram Rojgar Sewaks’ are to be engaged and paid honorarium in view of the term and conditions of the Government Order dated 21.7.2010. Consequently, the said finding recorded in the order impugned dated 27.6.2013 does not suffer from any infirmity and consequently the conclusion drawn by the learned Single Judge on that count cannot be faulted with. 14. As observed here-in-above, the learned Single Judge has himself made it clear that in case the Scheme still subsists and the funds are available then the requirement of a ‘Gram Rojgar Sewak can be considered and in that event the appellants can approach the District Magistrate for any appropriate consideration. 15. One of the arguments advanced by the learned counsel for the appellants is that in view of the terminology of the Government Order dated 21.7.2010, the District Magistrate ought to have sent a proposal for release of appropriate funds for the said purpose. 16. In our considered opinion, the appointment could not have been made so long as the funds were not available inasmuch as the very nature of appointment was dependent upon the availability of the funds as indicated above. The dismissal of the writ petition or this appeal, therefore, would not be an impediment in the engagement of the Gram Rojgar Sewak for the village in question if any funds are made available as and when on the requisition made by the District Authorities. 17. The dismissal of the writ petition or this appeal, therefore, would not be an impediment in the engagement of the Gram Rojgar Sewak for the village in question if any funds are made available as and when on the requisition made by the District Authorities. 17. If the appellants have offered any gratuitous services without availability of funds, they cannot claim payment as a matter of right. Any such expectation cannot be termed as a legitimate expectation inasmuch as in service jurisprudence the argument of legitimate expectation is available only on the basis of any existing right which cannot be gathered from the documents on record in the present case. 18. We, therefore, find no reason to interfere with the impugned judgment dated 17.10.2016. The appeal is accordingly rejected subject to observations made here-in-above.