IN THE GAUHATI HIGH COURT (High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) PIL No. 125 of 2015 1. [ENTITY], a voluntary organization Having its office at 5A, Subhansiri Appartment Zoo Road Tiniali, PO-Zoo Road, PS-Geeta Nagar, Guwahati-24, [ENTITY](M), Assam represented by Its Organizational Secretary Shri [ENTITY] S/o Shri Kashi Ram Kalita. 2. Shri [ENTITY], S/o Shri Kashi Ram Kalita authorized representative and Organizational Secretary of [ENTITY], c/o 5A, Subhansiri Apartment, Zoo Road Tiniali, PO-Zoo Road, PS. Geeta Nagar, Guwahati-24, [ENTITY](M), Assam. Petitioner -Vs- 1. The State of Assam to be represented by the Chief Secretary to the Government of Assam, Dispur,Ghy-6. 2.The Commissioner and Secretary to the Government Of Assam, Panchayat and Rural Development Department, Dispur, Ghy-6. 3. The Commissioner and Secretary to the Government Of Assam, Agriculture Department, Dispur,Ghy-6. 4. The Commissioner, Panchayat and Rural Development, Assam, Dispur, Ghy-6,Dist-[ENTITY](M) Assam. 5. The Director of Agriculture, Assam, Khanapara, Ghy- 22, [ENTITY] (M), Assam. 6. The Indian National Congress, represented by its State President, c/o [ENTITY], ABC, Bhangagarh, PO & PS-Bhangagarh, Ghy-32, [CASE NUMBER] Page 1 of 23 [ENTITY] (M), Assam. 7. The Bharatiya Janta Party, represented by its State President, having its party office at Atal Bhavan, Hengrabari, PO-Hengrabari & PS Dispur, Ghy-36, [ENTITY](M), Assam. 8. The Assam Gana Parishad, represented by its President, having its party office at Ambari, PO & PS Latasil, Ghy-1, [ENTITY] (M), Assam. 9. All India United Democratic Front (AIUDF), Represented by its President, having its party office At Hatigaon, Friends Path, PO & PS- Hatigaon, Ghy-38, [ENTITY] (M), Assam. Respondents.
BEFORE HON'BLE MR JUSTICE [ENTITY], CHIEF JUSTICE (ACTING) HON'BLE MR. JUSTICE [ENTITY] For the petitioner : Mr. [ENTITY], Sr. Advocates Mr. [ENTITY], Mr. [ENTITY], Mr. [ENTITY], Mr. [ENTITY], Mr. [ENTITY], Advocates For the respondents: Mr. [ENTITY], A.G. Ms. [ENTITY], GA.
Mr. [ENTITY], Sr. Advocate Mr. [ENTITY], advocate Date of Hearing : 11.12.2015 Date of Judgment : 05-01-2016 JUDGMENT AND ORDER (CAV) ([ENTITY],C.J.(Acting).
In this PIL, the petitioners are essentially questioning the legality and propriety of various schemes launched by the State Government under the name of "CM's Special Schemes" for the period 2015-16, which are (i) "Financial Assistance for construction of one lakh eight hundred Dwelling House for homeless people/minority people @ 25,000/- each; (ii) Financial Assistance for 1000 women SHG per LAC (Legislative Assembly Constituency) @ 5,000/- each in 126 LAC,; (iii) Financial Assistance for Artisans/Petty Traders at @ 2520/-; (iv) Assistance for 200 poor widow per LAC in 126 LAC @ 10,000/-; (v) Old Age Pension for one lakh people (not covered under [ACT]); and (vi) Special Package for Erosion affected families ( 5,000/- per family and 2 bundles of GCI Sheets); (vii) Financial assistance to small and marginal farmers @ 5000/- each for 1000 farmers per LAC and (viii) [ENTITY] with budget allocation of 6,000 lakhs, on the eve of the election to the Legislative Assembly of Assam.
2. For implementation of these schemes, the State-respondents have decided to constitute, and have, in fact, constituted LAC Level Beneficiary Selection Committees and District Level Selection Committee with political and non-political members. These Committees have prepared the list of beneficiaries at the LAC level, which are yet to be finally approved by the State Government. According to the petitioners, while launching these schemes, the State-respondents do not lay down adequate guidelines, criteria, parameters and modalities for implementation and selection of beneficiaries against each scheme. As a result, allege the petitioners, the Selection Committee, which have been given the upper hand, have prepared the list of beneficiaries as per their whims and fancies keeping their political interest in mind thereby enabling undeserving persons, who are affiliated to such political parties, to enjoy the benefits leaving out the needy poor and down-trodden ones high and dry. Further all political parties having positions in the Committees are utilizing the schemes to further their electoral prospect by providing benefits to their favoured ones. There is thus an urgent need for laying down proper and adequate guidelines/criteria/modalities/parameters for selection of these beneficiaries so that only deserving people receive the benefits without any political interference at the time of the selection. The reliefs claimed in the PIL are: to issue a writ of mandamus directing the respondent authorities to frame proper and effective guidelines/parameters/criteria for implementation of the Chief Minister's Special Scheme referred to earlier; (2) to constitute a selection committee with non-political members; (3) for directing the respondent authorities not to proceed with the implementation of the scheme without laying down the criteria for selection of the beneficiaries.
3. Opposing the PIL, the State-respondents in their affidavit have raised a preliminary objection against the maintainability of the PIL on the ground that the same is premature, is filed by a non-registered organization and is also not filed in conformity with the guidelines for entertaining a PIL inasmuch as no inquiry was ever made by them as to the source of knowledge of the facts alleged by them in the PIL or of the further enquiries made by them to determine the veracity of the same. Nor does the petitioner no. 2, who is said to be the Organizational Secretary of the petitioner No. 1, place on record any authorization from the petitioner No. 2 to file the PIL. The PIL, submits the respondent authorities, is, therefore, not maintainable and is, therefore, liable to be dismissed at the very threshold. It is stated by the answering respondents that the petitioners are motivated by self-gain and politically inspired and have filed the PIL just to malign the image of the Government. The objection regarding the maintainability of the PIL need not detain us inasmuch as there is substantial compliance with the guidelines for PIL worked out by this Court. According to the petitioners, the eligible intending candidate would apply before the Legislative Assembly Constituency Level Selection Committee, which after verification of the said applications would forward the same for the approval of the District Level Selection Committee, which forwarded the applications to the Director/Commissioner of the concerned Department for onward transmission to the Commissioner/Secretary to the Government of Assam for finalization. The respondents have not received, on record, any complaint from any of the eligible beneficiaries of the said schemes. The petitioners also do not implead such deprived eligible beneficiaries as party respondent in the PIL. The petitioners also do not implead members of the Selection Committee at the State and District level against whom mala fides/unfair practices are alleged though they are necessary parties. The answering respondents deny that any anomalies have occurred in the implementation of the said schemes or that no criteria or guidelines are laid down by them for implementation of the said schemes.
4. According to the answering respondents, for example, the Chief Minister's Special Scheme providing two bundles of CGI sheets and Cash Assistance of 2,000/- (now enhanced to 5,000/-) to BPL/Rural Poor for shelter is an ongoing scheme, which were formulated and implemented as early as 2010 vide the notification dated 2-11-2010. Similarly, the guidelines of the Chief Minister's Special Schemes for financial assistance to Women Self-Help Group for the year 2015-16 have been formulated and the criteria for selecting the beneficiaries were laid down therein. The financial assistance to Women Self-Help groups was earlier granted on two occasions to encourage the well performing Self-Help Groups (SHG) during 2009-10 ( 2 crores) and during 2010-11 ( 5 crores) i.e. during the Eleventh Plan Period. For the year 2015-16, it is decided to provide such assistance to one thousand SHGs per LAC in 126 LAC's covered rural areas, thereby providing assistance @ 5,000/- per SHG to 1,26,000 selected SHGs with financial involvement of 6,300/- lakhs. As on earlier occasions, only well- performing SHGs would be granted the financial assistance for encouragement. In pursuance of the budgetary allocation, the Cabinet approval and the concurrence of the Finance Department have already been obtained for implementation of the said schemes.
5. It is also the case of the answering respondents that the guidelines of the Chief Minister's Special Schemes for financial assistance to artisans and petty traders for the year 2015-16 as well as the criteria for selecting them have already been formulated. The artisans and petty traders who were earlier provided training on various skill developments by the Panchayat and Rural Development through SIRD/ASRLM but were unable to start their own business are the beneficiaries of the said scheme. The Government with a view to provide an opportunity to the said artisans and petty traders have proposed to grant financial assistance at the rate 5,000/- per artisan and petty trader. It is proposed to provide such assistance to one thousand artisans and petty traders in 126 LAC covered rural areas with involvement of 6,300/- lakhs. According to the answering respondents, only artisans and petty traders who had undergone the training provided by the Panchayat and Rural Development Department through SIRD/ASRLM would be eligible for receiving financial assistance to start their own business. Following the budgetary allocation, the concurrence of the Finance Department has been obtained, but the approval of the Cabinet is still awaited. It is also stated by the answering respondents that the guidelines of Chief Minister's Special Scheme for financial assistance for construction of one lakh six thousand dwelling houses for Homeless People @ 25,000/- each (800 beneficiaries from general categories and 200 minority communities) for the year 2015-16 has been formulated and the criteria for selecting homeless people from rural areas have also been laid down in the said guidelines. For the year 2015-16, they proposed to provide such assistance to one thousand homeless persons per LAC in 126 LAC covered rural areas thereby providing assistance @ 25,000/- per homeless persons with a financial involvement of thirty-one lakhs and five hundred. Only homeless persons from rural areas, who are not entitled to get the benefits of the Government of India's [ACT], shall be eligible for such financial assistance under the said scheme. Budgetary support, the concurrence of the Finance Department and the Cabinet approval for the said schemes have already been obtained, but selection of the beneficiaries have not been finalized as the schemes are yet to be finalized.
6. As for the Chief Minister's Special Scheme for financial assistance to Widows and Old Age Pension Scheme for the year 2015-16, it is pointed out that the respondents have formulated the guidelines and the criteria for selecting the widows and old aged person as evident from the said guidelines itself. For the year 2015-16, it is proposed to provide such assistance to 833 widows per LAC in 126 LAC covered rural areas thereby providing assistance @ 200/- per widow and 1,87,500 old aged persons with financial involvement of 25,18,99,200/- and 45 crores respectively. Only widows who are not covered by [ACT] or any other Central Government Scheme would be covered under the said scheme of financial assistance to widows and only poor persons above the age of 60 years, who are not the beneficiaries under [ACT], would by covered be the Old Age Pension Scheme. On the basis of the budgetary allocation made by the legislature, the Old Age Pension Scheme has received the concurrence of the Finance Department and Cabinet approval. As for Chief Minister's Special Schemes for financial assistance to the Erosion Affected Families, it is the case of the answering respondents that the scheme is an ongoing scheme, the guidelines whereof were formulated in the year 2010, while the criteria for selection of the beneficiaries are also laid down therein. For the year 2015-16, it is proposed to provide such assistance to 360 households per LAC in 126 LAC covered areas, thereby providing assistance @ 5,000/- per homeless persons with financial involvement of 22.68 crores. According to the answering respondents, only persons from rural areas who have been rendered homeless due to erosion, landslide and wild animal depredation are eligible for such financial assistance under the scheme. Budgetary allocation has made, while approval of the Cabinet and concurrence of the Finance Department have also been obtained for implementation of the scheme.
7. We have heard both Mr. [ENTITY], the learned counsel for the petitioners, Mr. [ENTITY], the learned Advocate General, Assam and Mr. [ENTITY], the learned senior counsel for the State-respondents. We have also carefully perused the materials on record placed by both the parties. The contention of Mr. [ENTITY], the learned senior counsel for the petitioners, is that such action of the respondent authorities is in blatant violation of [SECTION] of the [ACT] inasmuch as there are serious defects in the selection process for the beneficiaries as deserving people other than those affiliated to political parties never have a chance for applying such benefits. Drawing our attention to the various schemes launched by the State-respondents, the learned senior counsel submits that [SECTION] of the [ACT] applies to the policy decisions taken by the Government and such policy or action would be unconstitutional if it fails to satisfy the test of reasonableness. He argues that the right to equality under [SECTION] of the [ACT] requires that the state must make a reasonable classification based on intelligible differentia, and such classification must have a nexus with the object of the law. In making free distributions of State largesse, contends the learned senior counsel, the State-respondents must show that they have identified the class of persons to whom such distributions are sought to be made using intelligible differentia, and that such differential has a rational nexus with the object of the distribution. For example, the State-respondents have failed to mention the procedure for implementation of the schemes as well as selection of beneficiaries in respect of giving publicity by way of advertisement of the schemes, inviting eligible citizens to apply for the benefits, formats of the applications to whom they should be submitted, the last date of submission of the applications, so on and so forth. He also contends that [SECTION] of the [ACT] categorically provides that the task of identifying the beneficiaries for implementation of the development schemes pertaining to villages should be entrusted to the Gaon Panchayat, but the guidelines annexed to the PIL do not show that such entrustment has been made: by-passing of the Gaon Panchayat for selection of beneficiaries for welfare and development programmes is against the constitutional mandate. In the absence of formulating the criteria for selecting the intended beneficiaries, which is the case here, all these schemes will be hit by the mischief of [SECTION] of the [ACT] and will enable the Selection Committee dominated by ruling parties to choose the beneficiaries at their whims and fancies. He, therefore, strenuously urges this Court to strike down these various schemes as unconstitutional or direct the respondent authorities to formulate the criteria for selection of the intended beneficiaries to bring about transparency in the selection of beneficiaries consistent with [SECTION] of the [ACT]. He relies on [PRECEDENT] and [PRECEDENT] to buttress his contentions.
8. Refuting the contentions of the learned senior counsel for the petitioners, Mr. [ENTITY], the learned senior counsel appearing for the State- respondents, that the PIL is not maintainable by contending that the instructions contained in [SECTION] of the [ACT] have been violated especially the clause relating to disclosure of the source of knowledge of the facts alleged in the writ petition and the further enquiries/investigation made to determine the veracity of the same and of details of the representation to the authorities concerned for remedial actions and replies, if any, received thereto. It is the contention of the learned senior counsel that wide publicity about the Chief Minister's Special Scheme have been given in the LAC areas by print and electronics media, while notices have been displayed in the notice boards of Gaon Panchayat and every other Government offices; pamphlets have been circulated in the rural areas for wide publication and for the benefit of the public at large. It is asserted by the learned senior counsel that adequate supervision mechanism, contrary to the apprehension expressed by the petitioners, is provided for to ensure that the applications of the intending beneficiaries are being processed at four governmental levels, viz. the eligible intending beneficiaries would apply before the Legislative Constituency Level Selection Committee, which, after verification of the said applications, would forward the same for approval of the District Level Selection Committee. The approved applications, contends the learned senior counsel, would thereafter be forwarded to the Director/Commissioner of the concerned Departments for onward transmission to the Commissioner and Secretary to the Government of Assam of the concerned Departments for finalization. He, therefore, denies that free hand has been given to the Beneficiary Selection Committee in the selection of beneficiaries without being answerable to anyone. The entire process of selection of beneficiaries, according to the learned senior counsel, is thus open, transparent and fair and free from the influence, control and domination of political parties including those at the helm of the affairs of the State Government as well as Zilla Parishal, Anachalik Panchayat and Gaon Panchayat. It is also denied by the learned senior counsel that every such entity is desperately trying to garner maximum mileage by favouring party members and supporters in view of the ensuing Assembly Election scheduled for April/May, 2016.
9. According to the learned senior counsel for the respondents, local self-government being the constitutional goal, the State-respondents have to involve the institutions of Zilla Parishad, Anchalik Panchayat and the Gaon Panchayat members in the selection of beneficiaries; the grievance of the petitioners against the involvement of these institutions in the selection of beneficiaries is, on the contrary, antithesis to the constitutional mandate of local self government. The learned senior counsel submits that edifice of the State Government being founded on parliamentary democracy, it cannot obviously function without the involvement of political parties; the petitioners cannot, therefore, raise a grievance against the role of political parties in the governance of the State. He submits that the apprehension of the petitioners that there is every possibility of clash of political interest in nominating the members in-Charge, Minister and the local MLA, is a figment of their imagination. As the beneficiaries are selected on the basis of the eligibility criteria laid down by the guidelines in the respective schemes, maintains the learned senior counsel, there is no possibility of the Indian National Congress, BJP, AGP and AIUDF providing these benefits only to their supporters/loyalists. According to the learned senior counsel, there is substantial public interest in the implementation of the Chief Minister's Special Schemes: the said schemes have not been formulated on the eve of the Assembly election to gain political mileage by the present ruling party, and the same have been continuing for the last more than five years. For example, the Chief Minister's Special Schemes for providing two bundles of GCI sheets and cash assistance of 2,000/- (now enhanced to 5,000/-) to the shelter less was started in the year 2010. He maintains that the guidelines for the schemes as well as the criteria for selection of the beneficiaries have been formulated, but the petitioners, without bothering to find out these guidelines by means of RTI applications, rushed to this Court through this PIL, and the PIL is, therefore, politically motivated and is based on apprehensions, presumptions and surmises merely to restrain the State Government from undertaking welfare works for the poor and the needy sections of the society; the petitioners are not entitled to any relief claimed in the PIL. The learned senior counsel finally submits that the Chief Minister's special schemes are time-bound schemes and are under lapsable fund. If the execution of these schemes is interfered with by this Court at this stage, the welfare of lakhs of intended beneficiaries will be adversely affected as the funds will lapse on 31-3-2015. He, therefore, submits that the PIL is premature and is solely based on unreasonable and unsubstantiated apprehensions and there is no cause of action for filing this PIL at this stage, and the same is liable to be dismissed in limine with exemplary costs.
10. [SECTION] of the [ACT] contains "Directive Principles of State Policy" which is fundamental in the governance of the country and it is the duty of the State to apply these principles in making law. [SECTION] of the [ACT] provides that the State shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. The State Governments have, from time to time, framed policies so that the State wealth and natural resources are equitably distributed among all sections of people so that the have-nots of the society can aspire to compete with the haves. The law in this field has now been virtually well-settled, but the difficulty lies in applying it on the facts obtaining in a particular case. Though a number of decisions have been cited by both the learned senior counsel for both the parties, we do not want to burden this judgment with such decisions for the sake of brevity
11. The first of the scheme is known as "Financial Assistance to the Women SHGs (Self-help Group) for the year 2015-16". Annexure-1 to the affidavit-in-opposition filed by the State-respondents on 11-12-2015 will show that this is part of the composite schemes announced by the Chief Minister on 18-5-2015. Annexure-2 is the Notification dated 23-11-2015 cancelling the earlier notification dated 20-8-2015 containing the new guidelines for the Scheme. The scheme targeted financial assistance to 1000 women SHG per Legislative Assembly Constituency (LAC) in 126 LACs @ 5,000/- per SHG, the total number whereof to be covered under the scheme is 1,26,000 women SHG with a total financial involvement of 6,300 lakhs. As the composition of the LAC Level Selection Committee vide the notification dated 2-7-2015 is virtually common to other schemes, the same is reproduced is as follows:
Sl. No. Name & designation 1. Circle Officer Chairman 2. Block Development Officer having Member Secretary The largest area with LAC 3. Two women PRI Members as nomin- Members ated by the I/C Minister district. Members 4. Representative of the local MLA Member 5. Two social workers to be nominated Member by the I/C Minister Members 6. Other Block Development Officers Members
In District level Committee (notified on 17-6-2015), the following are the composition of the Committee:
Sl.No. Name and designation 1. In charge Minister of the District Chairman 2. The Deputy Commissioner/Principal Vice-Chairman Secretary in the Sixth Scheduled areas Member 3. Local MLA (from each selected Block) Member 4. Social Worker (one woman) to be nom- Member inated by the I/C Minister 5. Executive Engineer, DRDA Member 6. Two PRI members (both women) to Member be nominated by the I/C Minister Member 7. Block Development Officers Member 8. Project Director, DRDA Member-Secretary
12. It is also interesting that though the functions of the Committee, the manner in which the scheme is to be implemented, the procedures for monitoring and maintenance of record or for submission of utilization certificate or for preparing the progress report or the action calendar for implementation of the scheme are mentioned in the guidelines, yet the criteria for the selection of the beneficiaries are conspicuous by their absence therein. However, Annexure-10 to the affidavit filed by the respondent authorities shows that notice was published on 7-10-2015 inviting applications from willing and eligible persons for the scheme. Therefore, it cannot be said that no publicity was given on this scheme at all.
13. Coming now to CM's Special Scheme-Financial Assistance to the Artisans, Petty Traders for the year 2015-16, as in the previous scheme, no mention is made about the criteria for selection of the beneficiaries for this scheme. Of course, the composition of the scheme, procedure to be adopted by the Selection Committee for selection of the intended beneficiaries and other related items are all there, but not the criteria for choosing the beneficiaries or for giving adequate publicity to inform the eligible beneficiaries of their right to apply for the benefits under the scheme. This scheme was, however, said to be notified on 20-8-2015, but when was the publication made in the Gazette notification or in the local papers? In the affidavit, all that they said is that the criteria for selecting the artisans and petty traders have been laid down in the guidelines and that these artisans and petty traders who were earlier provided training on various skill developments by the Panchayat and Rural Development through the SIRD/ASRLM but were unable to start their own business are the beneficiaries of the said scheme. The financial grant in the scheme is to the order of 5,000/- per artisan and per petty trader and is proposed to be extended to one thousand artisans and petty traders per constituency in 126 LAC covered rural areas with a financial involvement of 6,300/- lakhs. The notice dated 8-10-2015 (Annexure-10 to the affidavit of the respondents) indicates that the people of Titabor Development Block and Jorhat Developmen Block were informed about the scheme. But then, there are many Development Blocks in the State, for which there is no evidence to indicate that wide publicity for the scheme in the remaining Development Blocks has been made. Though the criteria for selection of the beneficiaries given therein are not very satisfactory, they cannot be entirely condemned as arbitrary or vague.
14. This then takes us to CM's Special Scheme-Financial assistance for construction of 1,26,000 dwelling houses for homeless people @ 25,000/- each (800 beneficiaries from General Category and 200 dwelling houses for minority community) for the year 2015-2016 with financial involvement of 31,500/- lakhs. In this scheme, the criteria for selecting the beneficiaries are that only those household who are homeless or residing in a katcha ghar in rural areas are eligible. Now, when there are likely to be lakhs and lakhs of homeless people or are residing in katcha houses in the rural areas of this State, in our opinion, such criteria are hardly adequate for selection of beneficiaries free from arbitrariness, nepotism and favouritism. Moreover, no whisper of statement is made by the answering respondents with respect to the kind of publicity made by them to notify the public about the launching of the scheme. Coming now to the CM's Special Scheme for Financial Assistance to widows for the year 2015-16, this scheme pertains to the selection of 200 poor widows per LAC for payment of @ 200/- per month in 126 LAC. The composition of the Selection Committee is one and the same like the Selection Committee in all the previous Selection Committees. The eligibility criteria are that the widow must be a poor person and that she should not be covered by NSCAP i.e. Central Government scheme till now.
True, the criteria laid down therein are quite adequate to identify and select the genuine and deserving widow, but except for Titabor Development Block and Jorhat Development Block, no publicity worth the name was done to enable interested widow to apply for the benefit under the said scheme.
15. This, then, takes us to the Scheme for Financial Assistance to Small & Marginal Farmers during 2015-16 under the Chief Minister Special Scheme, which is meant to improve the economic conditions of the farmers by way of active participation in agricultural practices. This scheme is said to have a budgetary provision of 6,300 lakhs, and is for extending special assistance to the small and marginal farmers @ 5,000/- each for 1000 farmers per LAC (126)(Plan) during 2015-16 for purchase of high quality seeds, fertilizer, PP chemicals, agricultural tools and implements. The criteria for the selection of the beneficiaries are that the farmers (male/female) must not be below 21 years of age, that the farmers must not have land under cultivation above 2 hectares i.e. 15 bighas, that 50% of total selection of 1000 farmers per LAC to be asmall farmer (7.5 bighas to 15 bighas of land under cultivation), that 50% of total 1000 farmers per LAC to be marginal farmer (maximum 7.5 bighas of land under cultivation), that the name must be crop register of VLEW concerns, that he must be a full time practicing farmer, that at least 30% of selected farmer must be a far women, that there must 5% ST(H) farmers, 7.5 % SC farmers and 12% ST(P) farmers, that there should proportionate representation of farmers from villages of each LAC to be taken into consideration and that interested farmer will have to apply through an application (standard format at Annexure-I). In our opinion, there are adequate criteria for selecting the intended beneficiaries. Annexure-10 series to the same affidavit will also show that due publicity was given to this scheme on 10-10-2015 vide "[ENTITY]", "The Assam Tribune", "The Sentinel", "[ENTITY]" and the notice issued by the Director, Agriculture.
16. Then, there is Chief Minister's Special Scheme for providing two bundles of GCI Sheet and cash assistance for 2,000/- to the rural poor and erosion affected families. As evident from the guidelines of the Scheme at Annexure-9 to the affidavit-in-opposition, it is seen that the scheme was introduced in 2010 and is, therefore, not of recent origin. Every year, many rural people are rendered homeless due to erosion, landslides and wild animal depredation. Under this scheme, the benefits were and are being extended to such poor houseless/shelter less people of the State who are not covered by the Indira Awas Yojana of the Central Government/State Rural Housing Scheme of Assam. The intended beneficiaries are those household who must belong to BPL/poor and requiring housing shelter, or whose existing houses should not have GCI roof/pucca roof/Half brick wall and not beneficiaries of IAY scheme (Rural housing) of Govt. of India or State Rural Housing Scheme during the recent past or at present. Under this scheme, assistance should also be given to the erosion/landslide/wildlife affected household, who must be ordinary residents of rural areas covered by Gaon Panchayat. The Member Secretary of the Selection Committee is required to give wide publicity of the scheme. As per the instructions given by the Deputy Secretary to the Govt. of Assam, Panchayat & Rural Development Department, in his letter dated 12-11-2010 addressed to the Principal Secretaries (Sixth Schedule Districts) and the Deputy Commissioners of Non-Scheduled Districts, it obvious that emphasis has been given for adequate publicity to the interested beneficiaries. Thus, this scheme is not a new scheme launched by the State-respondents contrary to the claim made by the petitioners. As this is an ongoing scheme, we do not think that the procedure for selection of the beneficiaries or for giving publicity of the scheme suffers from any constitutional infirmity.
17. In so far as CM's Special Scheme for financial assistance for implementation of Special Old Age Pension Scheme for the year 2015-16 is concerned, the composition of the Selection at the District Level Selection Committee is as follows:- (1) Chairman is the Minister in Charge of the District, (2) The Deputy Commissioner of the District/Principal Secretary in the Six Scheduled Districts as Vice-Chairman, (3) Two Social Workers (one woman) to be nominated by the in-charge Minister as Member, (4) Chief Executive Officer of the Zilla Parishad, DRDA, Six Scheduled Areas as Member Secretary, (5) Two PRI Members (one woman) to be nominated by the in-Charge Minister as Member, (6) All MLAs of the District as Member and (7) All Block Development Officers of the District as Member. The composition of the LAC Level Selection Committee is as follows:- (1) Circle Officer as Chairman, (2) Development Officer having the largest area within the LAC as Member-Secretary, (3) Two PRI Members (one woman) as nominated by the I/C Minister of the district as Members, (4) Representative of the local MLA as members, (5) Two social workers (one woman to be nominated by the I/C Minister and (6) Other Block Development Officers as Members. Eligibility criteria are:- 1. The beneficiary must be a poor person,
2. The beneficiary must be 60 years and above, 3. The beneficiary must not be benefited under the [ACT]. Publicity was given on 7-10-2015 by the Offices of the Jorhat Development Block, Baghchong and Titabor Development Block vide Annexure-10 series to the counter affidavit.
18. Then, there is "[ENTITY]", which is meant for increasing food grain production and productivity by means of double cropping, etc. However, no pleading is made by the respondent authorities about this scheme except enclosing the handout on the scheme. A perusal of the handout will reveal that sufficient criteria are laid down therein for selection of the beneficiaries of the scheme, but there is no provision for publicity at all nor is there any whisper of statement made therein by the respondent authorities in this behalf. After perusing the all the booklets containing the schemes under challenge in this PIL as well as the replies of the respondent authorities, we have come to conclusion that the respondent authorities did not lay down the criteria for selection of beneficiaries in some of the schemes and where they do lay down the criteria, they are hardly adequate thereby exposing them to arbitrariness and nepotism. Similarly, on the publicity aspect also, the steps taken or being conceived are far from satisfactory thereby lacking transparency which is the mantra of these days.
19. In [PRECEDENT], the Apex Court restated the role of the Government as a service provider by quoting from [PRECEDENT]:
"49. The role of the Government as provider of services and benefits to the people was noticed in [PRECEDENT] (supra) in the following words:
"11. Today the Government in a welfare State, is the regulator and dispenser of special services and provider of a large number of benefits, including jobs, contracts, licences, quotas, mineral rights, etc. The Government pours forth wealth, money, benefits, services, contracts, quotas and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth. These valuables which derive from relationships to Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of State and local welfare. Then again, thousands of people are employed in the State and the Central Governments and local authorities. Licences are required before one can engage in many kinds of businesses or work. The power of giving licences means power to withhold them and this gives control to the Government or to the agents of Government on the lives of many people. Many individuals and many more businesses enjoy largesse in the form of government contracts. These contracts often resemble subsidies. It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with the Government. The Government owns and controls hundreds of acres of public land valuable for mining and other purposes. These resources are available for utilisation by private corporations and individuals by way of lease or licence. All these mean growth in the Government largesse and with the increasing magnitude and range of governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges."
50. For achieving the goals of justice and equality set out in the Preamble, the State and its agencies/instrumentalities have to function through political entities and officers/officials at different levels. The laws enacted by Parliament and the State Legislatures bestow upon them powers for effective implementation of the laws enacted for creation of an egalitarian society. The exercise of power by political entities and officers/officials for providing different kinds of services and benefits to the people always has an element of discretion, which is required to be used in larger public interest and for public good. In principle, no exception can be taken to the use of discretion by the political functionaries and officers of the State and/or its agencies/instrumentalities provided that this is done in a rational and judicious manner without any discrimination against anyone. In our constitutional structure, no functionary of the State or public authority has an absolute or unfettered discretion. The very idea of unfettered discretion is totally incompatible with the doctrine of equality enshrined in the [ACT] and is an antithesis to the concept of the rule of law."
20. In [PRECEDENT], the legal position has been succinctly explained in the following manner:
"24. While [SECTION] permits a reasonable classification having a rational nexus to the objective sought to be achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective criteria/procedure has to be evolved so that the choice among the members belonging to the same class or category is based on reason, fair play and non-arbitrariness. It is essential to lay down as a matter of policy as to how preferences would be assigned between two persons falling in the same category. If there are two eminent sportsmen in distress and only one petrol pump is available, there should be clear, transparent and objective criteria/procedure to indicate who out of the two is to be preferred. Lack of transparency in the system promotes nepotism and arbitrariness. It is absolutely essential that the entire system should be transparent right from the stage of calling for the applications up to the stage of passing the orders of allotment. The names of the allottees, the orders and the reasons for allotment should be available for public knowledge and scrutiny. Mr [ENTITY] has suggested that the petrol pumps, agencies etc. may be allotted by public auction categorywise amongst the eligible and objectively selected applicants. We do not wish to impose any procedure on the Government. It is a matter of policy for the Government to lay down. We, however, direct that any procedure laid down by the Government must be transparent, just, fair and non-arbitrary."
21. Viewed against the law declared by the Apex Court in the afore- mentioned cases and on the facts found by us earlier, we are of the considered opinion that actions taken by the respondent authorities hitherto for wide publicity of the schemes and selection of beneficiaries except in the case of the Scheme for Financial Assistance to small and marginal farmers and the Special Scheme for providing 2 bundles of GCI Sheets and cash assistance of 2,000/- to BPL/rural poor and erosion affected families, etc., fall far short of the requirement of law for distribution of State largesse consistent with [SECTION] of the [ACT]. The final question which now calls for consideration is what orders can exactly be passed by this Court on the peculiar facts of this case. There are three undisputed facts which shall have to be taken into account, firstly, the respondent authorities have already selected some beneficiaries, if not all, for all or some of the schemes, secondly, the fund for all these schemes will dry up after 31-3-2016 since they belong to lapsable fund and, thirdly, all these schemes were not of recent origin but were conceived and launched in the month of June, 2015. If, at this stage, all the schemes are quashed, all the funds will lapse thereby depriving the people of this State of welfare development funds for sometimes to come, more so, when there is already financial crunch in every department. This Court cannot shut its eyes to these practical realities and the disastrous consequences for the State if all such funds dry up after 31- 3-2016; Courts cannot live in an ivory tower nor should they be too trigger happy to shoot down every State actions for violation of [SECTION] of the [ACT]. Secondly, though the schemes were conceived before or during budget session of the Assembly or launched sometime in June, 2015, which were publicly announced, filing of this PIL only at the fag end of November, 2015, to be precise, on 30-11-2015, by which time some selections have been made, this Court should be loath to quash all the actions hitherto taken by the respondent authorities for the implementation thereof. True, there is no period of limitation for filing a PIL or, for that matter, a writ petition. After all, it is doubtful whether any such period of limitation can be prescribed at all. In every case, it would have to be decided on the facts and circumstances whether the petitioners are guilty of laches and that would have to be done without taking into account any specific period as a period of limitation. There may be cases where even short delay may be fatal while there may be cases even when a long delay may not be evidence of laches on the part of the petitioner. See [PRECEDENT]. For example, in the case of [PRECEDENT], where the writ petition was filed by the appellant more than five months after his acceptance of the tender of the respondent 4 and during this period, respondent 4 incurred considerable expenditure aggregating to about 1,25,000 in making arrangement for putting up the restaurant and the snack bars and in fact set the snack bars and started running the same, the Apex Court held that it would be most iniquitous to set aside the contracts of respondent 4 at the instance of the appellant. The Apex Court further observed therein that the position would have been different if the appellant had filed the writ petition immediately after the acceptance of the tender of respondents 4 but the appellant allowed a period of five months to elapse during which respondent 4 altered their position and that it was not a fit case to interfere and grant relief to the appellant in exercise of their discretion under [SECTION] of the [ACT]. In the instant case also, keeping in mind the facts that the funds for these schemes are to lapse on 31-3-2016, that some selections of beneficiaries, if not all, for the various schemes, having been made and that the PIL was filed over five months after the conception and launching of the schemes, we are not inclined to quashed the schemes or the selections already made by the respondent authorities as on today. However, if further selections are to be made, such selections shall have to be made only after formulating workable criteria for the schemes free from ambiguity or arbitrariness and after making wide publicity of such schemes in local dailies, etc. to ensure transparency and also to enable the targeted individuals/groups to apply for the benefits made available thereunder.
22. The result of the foregoing discussion is that this PIL is disposed of with the following directions:
1. The respondent authorities are free to release all the benefits made available under the six of the aforesaid eight schemes, namely, (i) "Financial Assistance for construction of one lakh eight hundred Dwelling House for homeless people/minority people @ 25,000/- each; (ii) Financial Assistance for 1000 women SHG per LAC (Legislative Assembly Constituency) @ 5,000/- each in 126 LAC,; (iii) Financial Assistance for Artisans/Petty Traders at @ 2520/-; (iv) Assistance for 200 poor widow per LAC in 126 LAC @ 10,000/-; (v) Old Age Pension for one lakh people (not covered under [ACT]); and (vi) [ENTITY], to the beneficiaries already selected by them as on 31-12- 2015 in accordance with the procedure laid down in the schemes.
2. The respondent authorities are, however, directed, not to make fresh selection of beneficiaries for any of such schemes without first formulating workable criteria and, that too, only after making due publicity thereof in accordance with our aforesaid observations to ensure that the mandate of [SECTION] of the [ACT] is scrupulously complied with.
3. There shall be no interference in the selection of beneficiaries for the Special Schemes on Financial Assistance to small and marginal farmers and Special Scheme for granting 2 bundles of sheets and cash assistance to BPL/rural poors/erosion affected families, etc., or for the release of such benefits to the selected beneficiaries.
4. There shall be no order as to cost.
JUDGE CHIEF JUSTICE (ACTING) [ENTITY]