alNGLE BE IN THE HIGH COURT OT CHHATTISGARH AT BILASPUR W. P. (Cl N0. _35^l /2010 PETITIONERS ^ .^' 0-f ••' . ^\^ JyT ^^ { . .-\..^ i^\/' /c^ <^^ •^y ^ 1. Atul Kumar Gupta, S/o. Arun Kumar Gupta, Aged about 38 years, Chartered Accountant, Atul Arun 85 Co. Maharaj Gali, Jodapipal, Ambikapur, Distt. SurgujafC.G.) 2. Santosh Kumar Sinha, S/o. Santan Prasad Sinha, aged about 42 years, Chartered Accountant, S. Kuinar Sinha Associastes Tripathi Complex Bramh Road, Ambikapur 3./ Dinesh Agrawal, S/o. Shri Nandu Ram Agrawal, aged about 39 years, Chartered Accountant, Dinesh Rashmi, Agrawal SE Co. Khare Complex, Gudari, Chowk, Ambikapur. 4. Santosh Kumar Singh, S/o. Late Shri Ram Iqbal Singh, aged about 39 years, Chartered Accountant Santosh Singh SE Co. Church road, Kedarpur, Ambikapur 5. Ajay Kumar Gupta S/o. Shri Raghunath Prasad Gupta aged about 33 years, Chartered Accountant Ajay Gupta 85 Co. Church Road, Joda Pipal, Ambikapur. 6. Prashant Kumar Agrawal, S/o. Somraj Agrawal, Aged about 30 years, Chartered Accountant R/o. Bauripara, Ambikapur, Distt.Surguja 7. Abhishek Jain. S/o. Late Shri Kamlesh Kumar Jain Aged about 37 years, Abhishek K Jain SE Co., Behind Amar Peta-ol Ambedkar Chowk, Ambikapur. 8. Jitendra Sinha S/o. Shri Vishwanath Prasad, Singh, Aged about 42 years, Chartered Accountant, J.P. RMM & Co. near Kali Mandir, Ring Road,,; Chopdpara, Ambikapur. RESPONDENTS '^WIS^ ^^-.<^. ..? fty'' l's'/:.: /^.x 1 Q { S.R.(^A»1— e& \ •~::\ 1. 2. 3. VERSUS State of Chhattisgarh, Through the Secretary, Panchay and rural Development, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) Additional Secretary, C.G. Govt. Panchay and rural Development, Raipur (C.G.) Commissioner, Mahatma National Rural Employraent Guarantee Scheme Development Commissioner, Office Raipur (C.G.) Collector/District Program Coordinator, Mahatma National Rural Employraent Guarantee Scheme, Ambikapur Distt. Surguja (C.G.) 5. Jain Kalpana Vinay & Associates, Chartered Accountant, D.N. Plaza Raipur (C.G.) 6. V. Jaiswal &, Co. Chartered ^" Accoi-uitant, Sector -III, Vidya •B,(A^,./ Nagar, Ambikapur, Distt. Surguja (C.G.) WRIT PETITIQIL UNDER ARTICLE 226 OF THE COWSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRIT/WRITS, DIRECTIONS ETC., IN THE NATURE OF MANDAMUS. CERTIORARI AND/OR ANY OTHER SUITABUE WRIT OF LIKB NATURE The petitioner, _aboy_e. •<,;:-;3?;<gl"^1;^^g^T^^^.gKfg^ s^^^ssS!&SsSisssssssS!sS9SSS9SSiSSSSSS8!^SSS9SS i.-ii*fe'. HIOM COURT OF GI-fHATTISGARH : BILASPUR WRITPETITION(C) N0.3931 OF 2010 PETmQNERS AtulKumarQupta&Others Versus RE®P0NDENTS gtateefChhattisgarh&Others „: •f*\ '•'. ^ _ ..'•:^ ,''.^...^:^^.L P9$tforpronoyncementQf'the:order6n /0'davofSeptember,2010 -1__ ' T Sd/- "j'ugg a ^-9^010 l?^"?^^'r'Fs^ << HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (0 N0.3931 OF 2010 PETlTlONERS Atul Kumar Gupta & Others Versus RE8PONDENTS State of Chhattisgarh & Others (Writ petitions under Article 228 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri A.K. Prasad, Advocate for the petitioners. Shri A.S. Kachhwaha, Deputy Advocate General for the State. Shri Sunil Otwani, Advocate for fhe respondent No.5. Ms. Hamida Siddiqui, Advocate forthe respondent No.6. ORDER (Delivered on this /O day of September, 2010) 1. Challenge in this petition is to the order dated 08/07/2010 (Annexure P/1) whereby the respondent Nos.5 & 6 have bsen appointed as Chartered Accountants (for short "CAs") for the purpose of auditing of Surguja District under the Mahatma Gandhl National Rural Employment Guarantee Scheme (for short "the MGNREGA"). 2. The indisputable facts, in nutshell, as projected by the petitloners, are that the petitioners are CAs. They have made applications for empanelment as CAs for auditing of funds of the MGNREGA pursuant to the advertisement dated 24/06/2010 (Annexure P/2). During pendency of their applications, by impugned order dated 08/07/2010, the rsspondents Nos. 5 & 6 .^' ii^ wereappointed as CAs for auditing ofthefund ofthe MGNREGA in the Surguja District. Thus, this petition. 3. Shri Prasad, learned counsel appearing for the petitioners, would submit that the appointment of CAs at District level cannot be done by the State Level Empowered Commlttee. The appointment of CAs has to be done by the District Programme Coordinator only. Shri Prasad would further submit that without considering the applications of the petitioners pursuant to the advertisement dated 24/06/2010, the impugned order has been passed in an illegal ahd arbitrary manner and the same may be quashed. 4. On the other hand, Shri Kachhwaha, learned Deputy Advocate General appearing for the State, would submit that having regard to the urgency of auditing in Surguja and Durg Districts, the CAs were appointed as per the directions of the Commissioner of the MGNREGA by order dated 15/06/2010 (Annexure R/5). The MGNREGA does not provide for appointment of CAs by the District Programme Coordinator only at District Level, but it is prescribed that it is for the State to conduct audit on behalf of the Central Government. 5. Shri Kachhwaha would further submit that the National Rural Employment Guarantee Act, 2005 (for short "the Act, 2005"), the Operational Guidelines, 2006 (for short "the Guidelines") and the Chhattisgarh Employment Guarantee Scheme (for short "the Scheme") provide for auditing to be done either by local fund auditors or by the CAs appointed by the State Government. sss srt '•^? ^. ::'./ Further, in clause 6.5.1.2 (Part 6) of the Scheme, it is provided that the audit has to be done at State Level by the CAs appainted by the State Level Empowered Committee. and at District Level by the District Programme Coordinator. It is not that the State Level Empowered Committee cannot appoint the CAs for auditing at District Level. The audit was required to be done by the CAs appointed by the State Level Empowered Committee keeping in view the fact that the audit was to be done wlthin a period of 2-3 months. There was no other ulterior motive or extraneous consideration in appointing the CAs for the said purpose. 6. Shri Otwani and Ms. Siddiqui, learned counsel appearing for the respondent No. 5 & 6, respectively, adopt the arguments advanced by the learned counsel appearing for the State. Learned counsel would further submit that the aforesaid arrangement was made only to ensure that the financial assistance comes within time. 7. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 8. The Act, 2005 was framed with the purpose to provide for the enhancement of livelihood security of the households in rural areas of the country by providing at least one hundred days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work and for matters connected therewith or incidentai thereto. •K, ' '! •iv:i-i'S^ 9, Section 4 of the Act, 2005 provides for framing of a scheme, which reads as under:- "4. Employment Guarantee Schemes for rural areas. - (1) For the purpose of giving effect to the provisions of section 3, every State Government shall, within six months from the date of commencement of this Act, by notification, make a Scheme, for providing not less than one hundred days of guaranteed employment in a financial year to every household in the rural areas covered under the Scheme and whose adult members, by application , volunteer to do unskilled manual work subject to the conditions laid down by or under this Act and in the Scheme : Providing that until any such Scheme is notified by the State Government, the Annual Action Plan or Perspective Plan for the Sampooma Grameen Rozgar Yojana (SGRY) or the National Food for Work Programme (NFFWP) whichever is in force in the concerned area immediately before such notification shall be deemed to be the action plan for the Scheme for the purposes of this Act. (2) The State Government shall publish a summary ofthe Scheme made by it in at least two local newspapers, one of which shall be in a vernacular language drculating in the area or areas to which such Scheme shall apply. (3) The Scherne made under sub-section (1) shall provide for the minimum features specified in Schedule I." 10. The Guidelines were framed by the Central Government to facilitate the design and implementation ofthe Act, 2005. 11. Clause 10.3.1 ofthe Guidelines reads as under:- "10.3.1 Financial Audit is mandatory. This must be carried out at the end of the flnancial year by each District. The audit will be done either by Local Fund .^' •ft-1' Auditors or by the Chartered Accountants appointed by the State Government. A copy of the Audit Notewill be sent to the State Government. A concurrent audit will be undertaken in addition to this." 12. The Scheme was framed by the State Government under Section 4 (1) of the Act, 2005. Clause 6.5.1.2 (Part 6) provides for appointment of CAs at the District Level by the District Programme Coordinator and the State Level by the State Level Empowered Committed. Clause 6.5.1.2 reads as under:- "6.5.1.2 (1) ^Tuq '^r RT^FT ^tR tR sm^e cpr cf^ -EH^ ^cfire^e gTO 3Tf;Tc)ri ^nq ^T •ER^TETT ull^ll | 7T?q ^RN 1^ ^T<:tS ^cpra^e •cf?r pTqf^T ^TOcRT Trf^Tfrr STCT tTSTT fvlcTF ^R ^R ^T^S l?cprecf5 ^ fiii\^\ f"fcrn 'c|5T4's:l;>TI WT^ra?P gKT ^t ullcl'n ] (2) ^arT'fn.r f-tiSr aNia'cpf gm ift arrf^e! cf>T qirf 'iWlRd ^toT ^TT^TT] 3TT^' Tt?r 'I:;^F) irRr ^rcftwTs' 7ruTTD-? TmS\ TR?? 'c^' Ttuft (3) ^^lc'l'isll^K, W.TT. &RT tft ^frjl'fT ^ ^@T cpr sfc^gm q?r4 f^TT uii^ii i ^gi^yicpN cbl^Id^i cf?| ^TT cpf grrfee -Sf^ ^g zTrcfe ^chlvi'^d 5T?T f^ TT^ STrfee ^r ^ fff?T ^^fST ?l7fri (4) q'ETTOtT ?CT ^PTM ^TT 1^*TF1' c^ f^Tc-TT 3T^8: f ^ gm ift 7TP:T q^racTf 'cfi'l f^erfRtT srgw? snf^ d5T4 ^^iRd ^TT -£,j3ifc.a ^^! ^*-"^ ^ 13 The Act, 2005 does not provide for any auditing to be done by the CAs appointed by the District Programme Coordinator alone. The accounting has to be done by the State Government on behalf of the Central Government. The Scheme, which has been framed, is an arrangement to implement the object sought to be achieved by the statutory enactment. 14 Even, if the Scheme does not provide for appointment of the CAs at State Level, the appointment of CAs can be done at the State Levet, which does not run counter to the provisions of the Act, 2005 and the Guidelines. Further, the same is not in contravention to the object and purpose of the Act, 2005, the Guidelines and the Scheme. Thus, it cannot be held that the appointment, being contrary to the scheme, is vitiated. 15. The Scheme is an administrative action and the same cannot supersede the provisions of a statute. (See Kishan Prakash Sharma and Others v. Union oflndia and Others). 16 The letter dated 15/06/2010 issued by the Commissioner of the MGNREGA clearly instructs the concerned authorities to appoint CAs at State Level for the purpose of auditing of the fund of financial year 2009-10. The said order became necessary in :view of the fact that 'rf the auditing is not done witbin a period of 2-3 months from 15/06/2010, the State may not receive the grants from the Central Government. It appears to be a laudable purpose. (2001)6 SCC 212 -t> -'».. y 17, In respect of the contention of the petitioners that the appointment of CAs has to be done only from the panel of CAs prepared at District Level or at State Level is rejected, as there is no provision either in the Act, 2005 or in the Guidelines or In the Scheme. In fact, there is no provision to prepare a panel of CAs and for appointment of CAs only from the panel maintained at the District Level or at the State Level, only. 18, Preparing the panel is not the requirement under the provisions of law. The State might have kept a panel to appoint CAs. The same does not give a right to a CA to claim appointment only on: the basis of panel not othfirwise. That does not permit the learned counsel for the petitioners to contend that the appointment of CAs can be made only from the panel prepared at the District Level or at the State Level. The impugned actlon of respondent State is just & proper and does not warrant any interference ofthis Court. 19. In the result, the writ petition, being bereft of merit, is llable to be and is hereby dismissed. 20 There shall be no order asto costs. Gowri Sd/- Satish K. Agnihotri Judge