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2017 DIGILAW 956 (ALL)

BIBHUTI KUSHWAHA v. UNION OF INDIA

2017-04-07

ASHOK KUMAR, V.K.SHUKLA

body2017
JUDGMENT : V.K. SHUKLA, J. 1. Bibhuti Kushwaha and six others are before this Court for quashing of the order dated 21.2.2017 issued by the Under Secretary of the State of U.P. along with the order dated 22.2.2017 issued by the Additional Commissioner, MGNREGA, Gram Vikas, U.P. informing the petitioners that the period of their functioning as Ombudsman has come to an end on 5.2.2017 and, accordingly, concerned District Magistrates should proceed to fill up the vacancies of Ombudsman in respect of their district. 2. Brief background of the case is that each one of the petitioner has been performing and discharging their duties as Ombudsman in different districts of State of U.P. To understand the agony of the petitioners, we proceed to examine and trace the history that contains the origin to the post of Ombudsman in the State of U.P. The Constitution of the country in 7th Schedule exercising the power as conferred under Article 246 of the Constitution of India has prescribed list under three heading i.e. List I (Union List), List II (State List) and List III (Concurrent List). Article 246 deals with the 'subject matter of laws made by Parliament and by the Legislatures of States'. Since the subject of welfare of labour comes within the heading of Concurrent List i.e. List III, wherein the power is entrusted to both the Parliament and State Legislature to form the laws. To achieve the object as being given in the Concurrent List an Act came into picture bearing nomenclature as the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (hereinafter referred to as the "Act 2005"). The assent of the said Act was obtained by the President on 5.9.2005 and the same was published on 7.9.2005. The statement and object of the Act 2005 was given herein below: "Productive absorption of under employed and surplus labour force in the rural sector has been a major focus of planning for rural development. In order to provide direct supplementary wage employment to the rural poor through public works, many programmes were initiated by the Government of India, namely, National Rural Employment Programme (NREP), Rural Landless Employment Guarantee Programme (RLEGP) and Jawahar Rozgar Yojana (JRY). Currently, Sampoorna Gramin Rozgar Yojna (SGRY) is being implemented all over the country with the objective to provide supplementary wage employment in the rural areas, create durable rural infrastructure and to ensure food security. Currently, Sampoorna Gramin Rozgar Yojna (SGRY) is being implemented all over the country with the objective to provide supplementary wage employment in the rural areas, create durable rural infrastructure and to ensure food security. Though the SGRY is providing some relief to the rural poor, its reach has been inadequate in view of the dimension of the unemployment in rural areas. It has been observed that the scale of employment generation under SGRY in 2002-03 and 2003-04 was barely adequate to provide on an average 20 days of employment to each Below Poverty Line (BPL) household in the rural areas. Secondly, there is no guarantee that employment will be available to the rural households on demand as SGRY is an allocation based programmes. This situation of unemployment has been compounded by the absence of any social security mechanism. There is, therefore, an urgent need to ensure at least some minimum days of employment in the shape of manual labour to every household in the rural areas. Recognizing the urgent need to ensure a certain minimum days of wage employment, the United Progressive Alliance (UPA) Government has declared in its National Common Minimum Programme (NCMP) that it "...... will immediately enact a National Employment Guarantee Act. This will provide a legal guarantee for at least 100 days of employment, to begin with on asset creating public works programmes every year at minimum wages for at least one able-bodied person in every rural, urban poor and lower middle class household." it is also necessary to empower the poor in the rural areas by appropriate enactment so that they can demand work on the strength of this legal entitlement." 3. Section 27 of the 2005 Act empowers the Central Government to give such directions as it may consider necessary to the State Government for the effective implementation of the provisions of this Act, for ready reference same is as follows: "27. Power of Central Government to give directions.- (1) The Central Government may give such directions as it may consider necessary to the State Government for the effective implementation of the provisions of this Act. Power of Central Government to give directions.- (1) The Central Government may give such directions as it may consider necessary to the State Government for the effective implementation of the provisions of this Act. (2) Without prejudice to the provisions of subsection (1), the Central Government may, on receipt of any complaint regarding the issue or improper utilisation of funds granted under this Act in respect of any Scheme if prima facie satisfied that there is a case, cause an investigation into the complaint made by any agency designated by it and if necessary, order stoppage of release of funds to the Scheme and institute appropriate remedial measures for its proper implementation within a reasonable period of time." 4. Section 28 of the 2005 Act has overriding effect'. Exercising such powers as conferred under Section 27 (1) of 2005 Act, an order was published form the Government of India, Department of Rural Development dated 7.9.2009. The said order was bearing the subject as 'Order under Section 27 (1) of National Rural Employment Guarantee Act for establishment of the office of Ombudsmen for redressal of grievances in a time bound manner'. The directions which were issued vide order dated 7.9.2009 was to the State Government to set-up the office of the Ombudsman in accordance with the instructions enclosed with the order within three months of the date of this order. Along with the order dated 7.9.2009 an elaborate procedure was provided by the Central Government under the heading of 'Instructions on Ombudsman'. The said instructions as referred above elaborated detailed procedure in respect of appointment, tenure and removal of the post of Ombudsman. Under Chapter II (2.1) of the scheme a Selection Committee was to be constituted bearing the following members to be the internal part:- (a) Chief Secretary of the State Government - Chairperson (b) Representative of Union Ministry of Rural Development - Member (c) Eminent Civil Society Person nominated by Union Ministry of Rural Development (d) Secretary, Station Nodal Department - Member Convenor 5. Under Chapter III (8) the power and duties of the Ombudsman has been defined. Chapter II (2.2) (2.2.5) deals with the tenure of the Ombudsman and the same is being quoted herein below:- "The Ombudsman shall be appointed for a tenure of 2 years extendable by one year based on performance appraisal or till the incumbent attains the age of 65 years, whichever is earlier. Chapter II (2.2) (2.2.5) deals with the tenure of the Ombudsman and the same is being quoted herein below:- "The Ombudsman shall be appointed for a tenure of 2 years extendable by one year based on performance appraisal or till the incumbent attains the age of 65 years, whichever is earlier. There shall be no reappointment. Performance appraisal report shall be furnished to the State Employment Guarantee Council." 6. The provisions, quoted above, gives a tenure of two years to an Ombudsman which could be extended by one year based on performance appraisal or till the incumbent attains the age of 65 years, whichever is earlier. Performance appraisal was to be scrutinized by the Selection Committee as has been referred in Clause (2.1) of Chapter II. In pursuance to the instruction as issued by the Central Government in the form of appointment of an Ombudsman an advertisement was issued by the State of U.P. on 1.9.2012 requiring applications of the interested persons for the post of Ombudsman and therein qualification was shown to be a remarkable job in various field along with a considerable good character in the society. In pursuance to the said advertisement dated 1.9.2012, as issued by way of paper publication, the petitioners applied for the said post of Ombudsman and after making due investigation in respect to the qualification and the moral character a list of selected candidates was issued by State of U.P. vide its notification dated 7.2.2014 in respect of various districts of the U.P. Petitioners, thereafter, have been performing and discharging their duties pursuant to the appointment made as Ombudsman and this much is also accepted position that period of two years has been completed and, thereafter, a further renewal for a period of one year has been extended to them. 7. 7. Petitioners submit that once earlier notification dated 7.9.2009 stood superseded on 24.5.2013, then it has to be presumed that no notification existed except the notification bearing No. J-11011-21-2008-MGNREGA (Part III) dated 24.5.2013 and as there has been remarkable difference between the notification dated 24.5.2013 and 7.9.2009 and the nature of payment has been changed from compensation to honorarium basis and the jurisdiction of Ombudsman was made multiple i.e. from having one district to multiple districts and in respect of tenure of the Ombudsman also changes have been sought to be effectuated by providing that Ombudsman shall be appointed for the tenure of two years expendable not more than twice by one year each based on performance appraisal process or till the incumbent attains the age of 68 years. Petitioners have been permitted to perform and discharge their duties as Ombudsman for a period of two years followed by renewal of one year and, thereafter, directives have been issued by the State Government for taking steps for making new selection and appointment and at this juncture petitioners are before this Court with the contention that their terms and conditions of the appointment as Ombudsman should be governed by the new guidelines, as has been issued by the Central Government on 24.5.2013 and 16.1.2014 amending the earlier notification dated 7.9.2009 and, in view of this, asking the petitioners to sit after completion of two years of services and a further renewal of one year as Ombudsman, at the first instance, is bad, in view of this, petitioners are contending that their claim for renewal is liable to be considered and it has also been informed and stated before us that raising identical question writ petitions have been filed before the Lucknow Bench of this Court being Writ Petition Nos. 4317 (S/S) of 2015 and 581 (S/S) of 2016 wherein this Court proceeded to pass an order that "considering the provisions of the instructions dated 24.5.2013, the petitioners are entitled to continue in terms of Clause 2.2.11 and, accordingly, the Principal Secretary, Rural Development, Government of U.P., Lucknow, should reconsider the case of the petitioners." The Principal Secretary, Rural Development, Government of U.P., Lucknow, thereafter, has proceeded to reconsider the matter and has proceeded to turn down the same and as the said order in question has the effect of defeating the rights of the petitioners also though it was passed in reference of some similarly situated incumbents, they have also proceeded to move amendment application and same has been allowed by this Court for assailing the validity of the order dated 1.3.2016 as the Principal Secretary, Rural Development, Government of U.P., Lucknow, on principle has proceeded to non-suit the claim of similarly situated incumbents. 8. The claim, that has been set-up by the petitioners, has been sought to be disputed by the State respondent nos. 2 and 3 by coming up with the case that selection process of petitioners had started in view of instructions dated 7.9.2009 issued by the Central Government in relation to the Ombudsman and final selection has also been completed in view of the instructions issued on 7.9.2009 and since appointment of these Ombudsmen were made for two years in view of instructions dated 7.9.2009 and on the basis of their work and conduct the appointment in question is extendable for a further period of one year to the maximum age of 65 years and further in the appointment letter, that has been so issued, such terms and conditions stood incorporated and petitioners accepted the same without any reservation, in view of this, the benefit of the instructions issued on 24.5.2013 proceeding to extend the age limit of Ombudsman along with two renewals cannot be extended to the petitioners. Mention has also been made that after completion of 2+1 year total 3 years of tenure of Ombudsman appointed on 7.2.2014, the orders dated 21.2.2017 and 22.2.2017 have been passed by the State Government indicating therein regarding the completion of tenure of Ombudsman and to initiate the process for selection on the available vacancies on the post of Ombudsman. 9. Mention has also been made that after completion of 2+1 year total 3 years of tenure of Ombudsman appointed on 7.2.2014, the orders dated 21.2.2017 and 22.2.2017 have been passed by the State Government indicating therein regarding the completion of tenure of Ombudsman and to initiate the process for selection on the available vacancies on the post of Ombudsman. 9. Rejoinder affidavit has also been filed and therein the averments, mentioned in the writ petition, have been reiterated along with the fact that appointment in question will have to be treated in reference to the date of consideration when the matter was being considered and not to policy over which application has been made long year back and, in view of this, it has been contended that once for all practical purposes the subsequent policy decision has been adhered by constituting selection committee in the same manner and by assigning duties based on the same and even by paying honorarium in lieu of the same, then no interference is required with the working of petitioners. 10. After pleadings mentioned above have been exchanged, present matter has been taken up for final hearing and disposal. 11. Sri Nisheeth Yadav, Advocate, appearing for the petitioners, submitted before this Court that once the instructions dated 7.9.2009 stood superseded and stood substituted by new instruction dated 24.5.2013, then the terms and conditions of the appointment on the post of Ombudsman ought to have been governed under the new policy and especially when selection committee has been constituted in consonance with the new policy, task has also been appointed for multiple districts and honorarium has also been paid, in view of this, petitioners have legitimate right to be considered for one year more extension in consonance with the modified policy, that has been holding the field on the date of selection in question. 12. 12. Sri Ravi Shankar Prasad, Additional Chief Standing Counsel, along with Sri Vivek Shandilya, Advocate, on the other hand, contended that in the present case petitioners have been offered appointment as Ombudsman strictly in consonance with the terms and conditions of the advertisement in question, that has been published in consonance with the instructions dated 7.9.2009 and further even at the point of time when selection committee has met and has proceeded to make recommendations for making appointment on the post of Ombudsman, the minutes of the meeting in paragraph 2.2.5 clearly proceeds to make a mention that Ombudsman would be appointed for a period of two years and, thereafter, on the basis of evaluation of performance one year extension can be provided or till the attaining the age of 65 years and, thereafter, there will be no reappointment and, in view of this, once appointment letter has been issued containing the same terms and conditions, then petitioners cannot claim as a matter of right that they should be extended the benefit of revised policy and especially when the nature of engagement as Ombudsman is part time and of pro bono public service and no posts are created in the State for that purpose, accordingly, no interference be made by this Court, in the facts of the case. 13. Arguments to the similar effect has been advanced by Sri Ashish Srivastava, Advocate, holding brief of Smt. Rajkumari, Advocate, appearing for Union of India, by contending that petitioners cannot claim as a matter of right that in spite of the fact that their tenure as Ombudsman after three years has come to an end, in spite of the same they should be further permitted to continue for a further one year as terms and conditions of appointment of Ombudsman has subsequently been changed. 14. After respective arguments have been advanced the factual situation that is so emerging that in exercise of authority conferred under Section 27 (1) of 2005 Act an order was published form the Government of India, Department of Rural Development dated 7.9.2009 and the said order was bearing the subject as 'Order under Section 27 (1) of National Rural Employment Guarantee Act for establishment of the office of Ombudsmen for redressal of grievances in a time bound manner'. In this direction, directives were issued vide order dated 7.9.2009 to the State Government to set-up the office of the Ombudsman in accordance with the instructions enclosed with the order within three months of the date of the order and along with the said institutions an elaborate procedure was provided by the Central Government under the heading of 'Instructions on Ombudsman'. This much is clearly reflected that in pursuance to the said instructions an advertisement was got issued on 1.9.2012, annexure 3 to the writ petition, wherein at condition nos. 3 and 4 a categorical mention was made that the maximum age limit for being appointed as Ombudsman would be 65 years and further the period/tenure of appointment would be for two years and, thereafter, based on the evaluation of work and conduct the period of functioning could be extended for one more year or till the incumbent attains the age of 65 years, whichever is earlier and it was also made clear that there will be no reappointment whatsoever. 15. This much is also accepted position in the present case that pursuant to the said advertisement petitioners proceeded to apply for consideration of their candidature and this much is also reflected that while the matter has been pending for further exercise to be undertaken in the matter of selection and appointment of Ombudsman, the Government of India, Ministry of Rural Development, Department of Rural Development, MGNREGA Division received various representations from the State Government, Civil Society Organisations and Ombudsmen to amend the various provisions of instructions annexed to the Ombudsman Order notified on 7.9.2009 to improve grievance redressal under MGNREGA and in pursuance thereto draft revised instructions were shared with all the State Governments and Union Territories and also uploaded on the Ministry's website on 31.1.2013 for inviting comments and suggestions of all concerned and this much is reflected that thereafter concerned Ministry received valuable suggestions from the State Government, Ombudsman and Civil Society Organisations and then a final revised instruction on Ombudsman was issued superseding all previous instructions and clarifications issued by the Ministry in the said regard and a mention was also made under covering letter dated 24.5.2013 that these instructions be brought to the notice of all concerned immediately for information, necessary action and compliance. In the new instructions, that has been so issued, various changes have been made wherein smaller districts having low expenditure under MGNREGA may be clubbed together to have a common Ombudsman and further in paragraph 2.2.11 a mention was made that Ombudsman shall be appointed for tenure of two years extendable not more than twice by one year each based on a performance appraisal process or till the incumbent attains the age of 68 years, whichever is earlier. Here mention has also been made there will be no reappointment and in reference of remuneration also it was clarified that Ombudsman shall be allowed compensation in the form of fee. The constitution of committee was also changed under paragraph 2.1.1. 16. In the present case, this is accepted position that petitioners have proceeded to make application for consideration of their appointment as Ombudsman and this is also equally true that earlier notification in question stood superseded and on 7.2.2014 list of Ombudsmen, who have been selected, had been published and condition no. 2 clearly proceeds to make a mention that the appointment of petitioners is specified for a period of two years and based on the work evaluation same be extended for a further period of one year or till the incumbent attains the age of 65 years, whichever is earlier. The terms and conditions of the appointment letter dated 7.2.2014 have been clear and categorical and this much is also accepted position that petitioners proceeded to accept the same and have proceeded to utilize the entire term, that have been provided therein, and their grievance, as of now, is that as per the revised scheme as their work and conduct is satisfactory they should be permitted to further continue for a period of one year. 17. Petitioners, right from the day one, are aware of this fact that nature of their engagement is totally part time and they are obligated to associate themselves in a pro bono public service and only by way of compensation, honorarium is being paid to them. Once such is the factual situation, then the issue i.e. to be answered by us is as to whether ipso facto the engagement of petitioners would be governed by the new policy once the earlier policy stood superseded on the date when selection proceedings took place. 18. Once such is the factual situation, then the issue i.e. to be answered by us is as to whether ipso facto the engagement of petitioners would be governed by the new policy once the earlier policy stood superseded on the date when selection proceedings took place. 18. Record in question reflects that on the earlier occasion instructions have been issued by the Central Government in reference of engagement of Ombudsman and, thereafter, the Ministry has received the representations from the State Government, Civil Society Organisations and Ombudsman to amend the various provisions of instructions annexed to the Ombudsman Order notified on 7.9.2009 to improve grievance redressal under MGNREGA and in pursuance thereto draft revised instructions were shared with all the State Governments and Union Territories and after inviting comments/suggestions of all concerned, final revised instructions on Ombudsman were issued superseding all previous instructions and clarifications issued by the Government of India, Ministry of Rural Development, MGNREGA Division. 19. A perusal of the letter dated 24.5.2013 clearly gives an impression that all previous instructions and clarifications issued by the Ministry in regard to appointment of Ombudsman stood superseded and further directives were issued that these instructions be brought to the notice of all concerned immediately for information, necessary action and compliance. In the present case, what is reflected from the record that as far as constitution of selection committee is concerned, same has not at all been made in consonance with the earlier notification dated 7.9.2009 rather the selection committee, that has proceeded to make selection and appointment of petitioners, in effect has been constituted in consonance with the revised instructions on Ombudsman as communicated by the Government of India, Ministry of Rural Development, Department of Rural Development, MGNREGA Division under covering letter dated 24.5.2013 and not only this what we find, in the present case, is that even Commissioner, Gram Vikas, U.P. on 20.2.2014 has proceeded to give directives that revised instructions dated 24.5.2013 and 16.1.2014 be complied with and in the select list dated 7.2.2014 it is clearly reflective of the fact that the incumbents, who have been appointed as Ombudsman, their appointment in question was not at all confined to one particular district rather there area of operation was extended to other districts also, as is reflected from column no. 4, page 36 of the paper book in question. 4, page 36 of the paper book in question. Not only this, even the remuneration was paid as per the modified scheme. 20. The crucial question is that on one hand the respondents are implementing the revised instructions in the matter of selection appointment and in the matter of posting and in the matter of paying honorarium but in the matter of tenure of Ombudsman a very restrictive view is being taken by placing reliance on the terms and conditions of the advertisement in question that same was clear and categorical. Once there has been a policy decision dated 7.9.2009 and on its face value the said policy decision being subjected to criticism, leading to receiving of representations from the State Governments, Civil Society Organisations and Ombudsman to amend the some provisions of the instructions in question and in this direction twice revision has been carried out on 24.5.2013 and 16.1.2014 respectively and the authorities have been asked to carry out the said instructions. In this backdrop petitioners are contending that it may be true that in the advertisement in question different terms and conditions have been mentioned but once the instructions in question stood amended and superseded thereafter, then selective implementation should not be approved of by us as it has to be implemented in-to. State cannot be permitted to have all the advantages i.e. you use the revised instruction to your advantage and read the instructions to the advantage of the incumbents, who admittedly have come on part time basis but legitimately under new revised amended instruction, hope for getting another chance to serve on account of their clean record. 21. State cannot be permitted to have all the advantages i.e. you use the revised instruction to your advantage and read the instructions to the advantage of the incumbents, who admittedly have come on part time basis but legitimately under new revised amended instruction, hope for getting another chance to serve on account of their clean record. 21. In our considered opinion, once final revised instructions have been issued on Ombudsman superseding all previous notifications and clarifications issued by the Ministry in the said regard and based on the same selection committee has been constituted, posting has been accorded and honorarium has been paid, then in reference of extension of their tenure also same principle will have to be followed and old principle cannot be relied upon to deprive functioning of the petitioners for a further period of one year, on its face value appears to be attractive argument but keeping in view the settled law in the case of A.A. Calton v. Director of Education, 1983 SCC (3) 280, that selection proceeding has to be undertaken as per the law, as it existed prior to amendment when proceedings commenced i.e. when advertisement in question has been made such a relief cannot be accorded. Said judgment has been followed in the case of N.T. Devin Katti v. Karnataka Public Service Commission & Others, 1990 (3) SCC 157 , by the Apex Court by mentioning that where proceedings are initiated for selection by issuing advertisement, the selection should normally be governed by the then existing rules and government orders and any amendment would not affect selection. 22. Learned counsel for the petitioners has placed reliance on Full Bench judgment of this Court in the case of Anand Kumar Sharma v. State of U.P. & others, 2014 (2) ADJ 742 , for the preposition that matter ought to have been dealt with as per the policy that has been holding the field. 23. 22. Learned counsel for the petitioners has placed reliance on Full Bench judgment of this Court in the case of Anand Kumar Sharma v. State of U.P. & others, 2014 (2) ADJ 742 , for the preposition that matter ought to have been dealt with as per the policy that has been holding the field. 23. Principles pertaining to the selection and appointment are altogether different wherein selection and appointment would be governed as per the existing rule/policy when advertisement had been made; said principles are not at all attracted in the matter of grant of State largess, as in said matter the application in question would be dealt with as per the policy holding the field on the day of consideration whereas in the matter of selection/appointment, application would be dealt with as per the policy in question when advertisement has been made. Accordingly, judgment in the case of Anand Kumar Sharma (supra) cannot be pressed into service and would not help the petitioners. 24. Eligibility in particular cannot be altered, once advertisement has been made and after amendment has been carried out no fresh advertisement has come forward. Date of advertisement is 24.8.2012, last date of receiving applications is 14.9.2012. Maximum age is 65 years as on 1.7.2012. Appointment period is two year, subject to extension of one year on work being evaluated to be satisfactory. Eligibility has been provided to the effect that person should be of eminent standing and impeccable integrity with at least twenty years of experience in public administration, law academics, social work or management. Under the revised instructions eligibility has been changed as incumbents with twenty years of experience in law have been left out and further the zone of consideration has been extended up to 68 years with initial appointment for two years with two one year renewal on work being satisfactory. Under the revised instructions eligibility has been changed as incumbents with twenty years of experience in law have been left out and further the zone of consideration has been extended up to 68 years with initial appointment for two years with two one year renewal on work being satisfactory. Once in consonance with revised policy fresh advertisement/corrigendum has not been issued enlarging the area of selection, then petitioners who had proceeded to make application pursuant to advertisement dated 24.8.2012 and who have been offered appointment strictly in consonance with the said terms and conditions and had also proceeded to accept it unconditionally, then merely because amended policy has come into force altering eligibility criteria and extending the zone of consideration and extending tenure also for one year, same cannot be invoked as a ground by the petitioners to claim as a matter of right for consideration of their further extension of one year and specially when State never gave any impression or indication to petitioners that their duration of functioning would be taken. Action of State is in consonance with the terms and conditions of engagement and, accordingly, the engagement of petitioners being part time in nature on pro bono basis warrants no redressal by us.