THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.7216 OF 2010 DATED _________AUGUST, 2010 BETWEEN Y.Srinivasa Rao … Petitioner And The Government of Andhra Pradesh, Rep. by its Principal Secretary, Panchayath Raj and Rural Development Department, A.P. Secretariat, Hyderabad. And Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.7216 OF 2010 O R D E R Global poverty is one of the most important problems facing the world today. Recent estimates put a total of 2.5 billion people surviving on less than US $ 2 per day[1]. The National Rural Employment Guarantee Act, 2005 (for brevity, ‘the Act of 2005’) is perhaps India’s response to this growing affliction which is finding an alarming resonance in our rural hinterlands. It was promulgated by the Parliament with the lofty objective of securing the right to work as ordained by Article 41 which finds place in the Directive Principles of State Policy enshrined in Part-IV of the Constitution, by providing at least 100 days of guaranteed wage employment in a financial year to every rural household whose adult members volunteer to do unskilled manual work. India contains the largest concentration of rural poor and the largest number of landless households on the planet[2]. The Act of 2005 requires the Government to frame schemes which would meet the employment requirements of rural unskilled labour so as to cover the entire country by the end of five years. The Act ordains that whoever voluntarily offers to do manual labour shall be provided with work on payment of such minimum wages as may be prescribed so as to enhance the livelihood and security of rural households by ensuring a minimum 100 days of employment to each household in a financial year. The Statement of Objects and Reasons of the Act of 2005 demonstrates that the productive absorption of under- employed and surplus labour force in the rural sector had been a major focus of planning for rural development and as the situation of unemployment was compounded by absence of a social security mechanism, there was an urgent need to ensure at least some minimum days of employment in the shape of manual labour to every household in rural areas. It was also felt necessary to empower the poor in the rural areas by an appropriate legislation so that they could demand work on the strength of a legal enactment. The Act was envisioned as a pioneering endeavour to secure wage employment for the poor households in the rural areas. As it was a programme contemplated on a massive scale it had to be necessarily implemented in phases so as to eventually cover all the rural areas in the country. Five years down the road, the vision still remains elusive. Chapter-I of the Act of 2005 entitled ‘Preliminary’ deals with the short title, extent and commencement of the Act and the definitions, under Sections 1 and 2 respectively. Chapter-II consisting of Section 3 contains the mandate of the enactment, i.e., the guarantee of rural employment to poor households. Chapter-III comprising Sections 4 to 9 details employment guarantee schemes and unemployment allowance. Section 7 in Chapter-III stipulates that in the event an applicant is not provided within 15 days of the receipt of his application seeking employment or from the date on which the employment was sought in the case of an advance application, he/she would be entitled to a daily unemployment allowance as provided therein. This indicates the unstinting and inexorable nature of the mandate. Section 9 details the conditions of disentitlement for receiving unemployment allowance in certain circumstances. Chapter-IV, consisting of Sections 10 to 19, provides for implementing and monitoring authorities at various levels, including the grievance redressal mechanism. Chapter-V entitled ‘Establishment of National and State Employment Guarantee Funds and Audit’ deals with the financial aspects involved, under Sections 20 to 24. Section 25, under Chapter-VI captioned ‘Miscellaneous’, speaks of the penalty for non-compliance with the provisions of the Act of 2005, while Sections 26 to 34 in the said Chapter deal with various house- keeping provisions, so to say, ranging from the powers of delegation and amendment, protection of actions taken in good faith, power to make rules and removal of difficulties, etc. In furtherance of the objective of implementing the Act of 2005, the Government of Andhra Pradesh came out with various instructions, both executive and statutory. Under G.O.Ms.No.231, Panchayat Raj & Rural Development (RD.II) Department, dated 24.07.2009, the Government of Andhra Pradesh issued guidelines with regard to providing rural connectivity, a permissible work under the Act of 2005. Road works under this scheme, were proposed to be taken up under two projects – (i) for providing road connectivity to SC/ST habitations and (ii) for providing road connectivity to other unconnected habitations. The works to be taken up were to be identified by the Zilla Parshid with the approval of the Zilla Parshid General Body. Habitations with higher population were to be given priority. Under G.O.Ms.No.236, Panchayat Raj and Rural Development (RD.II) Department, dated 31.07.2009, the Government of Andhra Pradesh undertook providing of internal roads and drains in the habitations along with burial grounds and roads to agricultural fields. Funds of Rs.50 lakhs were allotted for each Mandal to take up these works in the financial year 2009-10. Under G.O.Ms.No.271, Panchayat Raj & Rural Development (RD.II) Department, dated 08.09.2009, certain guidelines were stipulated for implementation of the works under the two aforestated G.Os. Under G.O.Ms.No.272, Panchayat Raj & Rural Development (RD.II) Department, dated 08.09.2009, the Government of Andhra Pradesh stipulated the procedure to be followed for securing administrative approval for the works under G.O.Ms.No.231 dated 24.07.2009 and G.O.Ms.No.236 dated 31.07.2009. Some of the provisions of the aforestated Government Orders were found to be not in conformity with the Act of 2005 by this Court and the authorities were given necessary directions in this regard. Pursuant thereto, the Government of Andhra Pradesh issued G.O.Ms.No.41, Panchayat Raj & Rural Development (RD.II) Department, dated 29.01.2010, adverting to the suspension of Clause 6 of G.O.Ms.No.271 dated 08.09.2009 by this Court and issued certain modifications. G.O.Ms.No.368, Panchayat Raj and Rural Development (E.VII-1) Department, dated 01.08.2007 was issued by the Government of Andhra Pradesh stipulating the rules and responsibilities for Additional Programme Officers appointed for supervising National Rural Employment Guarantee Schemes (NREGS) formulated under the Act of 2005. Needless to state, while undertaking this gargantuan exercise involving disbursal of huge amounts of funds for schemes to be implemented at various levels, there is bound to be a clamour and demand for priority from various agencies/elected representatives. The writ petition on hand is a case in point. The petitioner, the Mandal Vice President of Varni Mandal, Nizamabad District, challenges the proceedings dated 26.03.2010 passed by the District Collector-cum-District Programme Co-ordinator, Nizamabad District, respondent 3, and seeks a consequential direction to the authorities to follow the earlier proceedings dated 17.03.2010 passed by respondent 3 pursuant to the resolution dated 07.03.2010 of the Varni Mandal Parishad. Under the National Rural Employment Guarantee Scheme (NREGS), additional funds were released by the Government of Andhra Pradesh towards the Mandal Praja Parishad component to the tune of Rs.1 crore which was in addition to the earlier allocation of Rs.62 lakhs. Commencement of the works had to be grounded by 31.03.2010 failing which the funds lapsed. The Varni Mandal Praja Parishad conducted a meeting on 07.03.2010 for identification of works in this regard and passed a resolution identifying 43 works. These works, according to the petitioner, were major works relating to formation of roads etc. for exclusive development of SC/ST areas. This meeting was headed by the President, Mandal Praja Parishad, Varni, who is impleaded eo nominee as respondent 7. It is the petitioner’s case that after conclusion of the meeting, some of the members reconvened and proposed that the funds of Rupees One Crore and Sixty Two Lakhs should be distributed to 19 MPTC Members at Rs.8 lakhs each and the remaining Rs.10 lakhs should be allocated to the President of the Mandal Parishad. Both these proposals are said to have been forwarded to the Zilla Parishad and thereafter respondent 3, being the Programme Co-ordinator for the District, considered the proposals so sent and accorded administrative sanction for the 43 identified works as per the resolution dated 07.03.2010, by his proceedings dated 17.03.2010. The grievance of the petitioner is that respondent 7 thereafter made a representation to respondent 3 on 20.03.2010 stating that the earlier proposals were submitted by only nine Mandal Parishad Territorial Constituency Members and sought rectification. Pursuant thereto, the Executive Engineer, Panchayat Raj Department, Bodhan, Nizamabad District, respondent 5, issued letter dated 21.03.2010 requesting submission of a revised list of works, if any, duly approved by a special general body meeting of the Mandal Parishad, Varni. It appears that the Chief Executive Officer of the Zilla Parishad, Nizamabad, also instructed respondent 5 to hold the works earlier sanctioned under the administrative order dated 17.03.2010. Thereupon, respondent 7 issued notice dated 21.03.2010 calling for a meeting on 24.03.2010, a public holiday owing to ‘Sri Rama Navami’. The petitioner alleges that this notice was defective being in violation of the norm requiring two clear days notice to be given as per the provisions of the Andhra Pradesh Panchayat Raj Act, 1994. The notice is said to have been served on the petitioner only on 22.03.2010, thereby violating the time specification aforestated. Further, it is his case that no specific agenda was tabled for cancelling the earlier agenda dated 07.03.2010. However, it appears that in the meeting conducted on 24.03.2010, 11 members adopted the proposal for distribution of Rs.8 lakhs each to the 19 Mandal Parishad Territorial Constituency Members and Rs.10 lakhs to respondent 7. The petitioner assails the procedure followed in convening this meeting and the manner in which the earlier resolution was given a go-by. He alleges that the earlier resolution dated 07.03.2010 was not cancelled by the subsequent resolution dated 24.03.2010. He further contends that the manner in which the monies were allocated was not ‘work- concentric’ but ‘individualized’ as each MPTC Member was allocated an equal amount, while the President was favoured with an extra Rs.2 lakhs. This, according to the petitioner, was not in public interest. He further alleges that only minor works were considered, overlooking the major works identified earlier. In spite of the petitioner raising the contention that the earlier resolution had not been cancelled, respondent 3 acting upon the resolution dated 24.03.2010 cancelled the sanction granted vide proceedings dated 17.03.2010. The proceedings dated 26.3.2010 of respondent 3 doing so is challenged. The Mandal Development Officer, Varni, respondent 6, filed a counter on behalf of respondents 1 to 6. He stated therein that no steps were initiated by the Gram Panchayat to ground the works sanctioned earlier and in the meanwhile, respondent 5 had been asked to put the works on hold. Acting upon the complaint of respondent 7 with regard to the proposals being limited to only 9 Mandal Parishad Territorial Constituency Members, it is stated that a further opportunity was given to submit a revised list of works. The Officer sought to justify the convening of the general body meeting on a public holiday stating that the same was in accordance with the Rule, requiring two clear days notice. He further stated that it was not necessary to cancel the earlier resolution adopting 43 works, as the discretion was with respondent 3 to accord sanction to such works as are found worthy. He admitted that the resolution of the 11 Members on 24.03.2010, proposing distribution of the works of Rs.8 lakhs to each of the 19 Mandal Parishads Territorial Constituencies and allocation of the balance Rs.10 lakhs to the President, was adopted as it would ensure employment potentialities in all the territorial constituencies. It is stated that the revised administrative sanction covers all the territorial constituencies providing for 138 works in the place of 43 works identified earlier. Further, this allocation is said to have been made to all the Mandal Parishad Territorial Constituencies in the District fixing monetary ceiling of allocation to each Mandal equally. It is denied that any political considerations weighed with respondent 3 in revising the administration sanction and it was purely at the instance of Mandal Parishad, Varni, that the same was undertaken. It is stated that pursuant to the revised administrative sanction, work commencement letters were issued by respondent 5 so as to avoid lapsing of the funds on 31.03.2010. It is further stated that as on 07.06.2010, 25 works out of the total 138 had been completed in full or partially, and Rs.30.09 lakhs payment had been disbursed. The remaining works were said to be in progress. Sri Sriram, learned Special Government Pleader representing the learned Advocate General for the State, advanced arguments generic to this batch of cases. He stated that the Act of 2005 was a social welfare legislation and that checks and balances had been provided therein in the shape of participation and approvals of Panchayat bodies at the village, mandal and district levels. He submitted that it was on the basis of this process that works were identified under the NREGS and that as long as there was broad compliance with the statutory framework so as to garner the majority’s decision, there would be no ground for invalidation of any decision taken, merely because there were minor glitches or changes of heart/mind at different levels. He pointed out that considering the mammoth exercise to be undertaken for achieving the objective of the Act of 2005, the legislature itself had left vast areas for the Government to respond to and fill in. Considering the humongous nature of the programme, he submitted that it would be unrealistic to expect that each allocation of funds and works would result in equal distribution of employment opportunities. The Act would necessarily have to be implemented over a period so as to achieve equable work allocation throughout the country. It is his submission that this would be a process in continuum and as long as the broad guidelines and parameters are adhered to and there is no malice attributed, the choice and identification of works cannot be termed to be arbitrary. He pointed out that the instructions issued by the Government indicated the priority areas for identification of works and this process involved the grass root level self-governing bodies. Owing to political considerations, if there are bickerings within these self-governing bodies with regard to inequitable distribution, the same would not have the import or effect of rendering illegal the undertaking of the works upon proper identification and sanction. Learned Government Pleader also pointed out that the elected representatives of the local bodies were harbouring a misconception that the Act of 2005 envisioned equitable distribution of works and employment opportunities in each and every allocation. This, according to the learned counsel, is not the norm being followed or required to be followed by the Act of 2005. The majoritarian exercise undertaken through the local bodies for identification of the works in accordance with the prescribed priorities obviates arbitrariness and the phenomena of revision of the list of works being undertaken owing to differences of opinion amongst the local bodies, being only reflective of the democratic process, cannot be construed to be a reason to vitiate the exercise. He pointed out that under G.O.Ms.No.550 dated 06.12.2007, a Grievance Redressal Mechanism had also been provided as required under the Act of 2005 and the same would ensure that the system of checks and balances inbuilt within the legislation would cut down the possibility of arbitrariness and nepotism creeping into the decision making process. Though there is merit in the submission made by the learned Special Government Pleader, it is to be noted that this case marks a clear departure from the uniform stand being taken by the State in other cases of this nature. All along, it has been the State’s contention that the Act of 2005 does not envision equitable distribution of works and employment opportunities in every allocation and that such a situation can be achieved only by implementation of the mandate of the Act of 2005 in a phased manner over a period of time. It is on this basis that the State justified its action in identifying works and particular locations for the grounding of such works in Writ Petition Nos.7305 and 7375 of 2010. The State specifically contended therein that the local bodies were under a misconception that equal distribution of funds, works and employment opportunities was the norm under the Act of 2005. However, in the present case it is seen that basing on the earlier resolution of the General Body of the Mandal Parishad, Varni, the District Collector-cum-District Programme Co-ordinator, Nizamabad, granted administrative sanction under proceedings dated 17.03.2010 in respect of 43 works. This resolution of the Mandal Parishad was based on the majority decision of 9 MPTC Members. In such circumstances, there was no necessity to allow further opportunity to the Mandal Parishad to submit a revised list of works. Further, the procedure followed by the Mandal Parishad, Varni, in calling for a Special General Body Meeting appears to be not in conformity with the requirements under the Andhra Pradesh Panchayat Raj Act, 1994. It is pertinent to note that the Chief Executive Officer, Zilla Praja Parishad, Nizamabad, in his letter dated 21.03.2010 addressed to respondent 7 herein, specifically adverted to the fact that the earlier resolution had to be undone by way of a resolution of the Mandal Praja Parishad General Body supported by not less than one half of its Members. It is no doubt true that the authorities were working against time as the funds allocated for the proposed works were to lapse on 31.03.2010. However, this would not justify departure from the statutory procedure, as rightly contended by the learned counsel for the petitioner. However, no interim orders were granted by this Court with regard to the execution of the works sanctioned under the revised proceedings of the District Collector-cum-District Programme Co- ordinator, Nizamabad, dated 26.03.2010. It is now pointed out that most of the works so sanctioned have already been grounded and some have also attained completion. The scope for interference at this stage is therefore minimal. Having uniformly stated that equal distribution of works, funds and employment opportunities was not the required norm and was not the procedure actually being followed in respect of the schemes under the Act of 2005, there is no explanation forthcoming from the State as to why in this particular case such equal distribution was found to be more attractive. By the subsequent resolution, the Mandal Parishad, Varni, decided upon allocation of equal amount of funds to each of the Mandal Parishad Territorial Constituencies leaving the Mandal President with an extra amount of Rs.2 lakhs. This mode of allocation was a clear departure from the norm followed in other similar cases. As pointed out earlier, as the works have already been grounded and are in the stage of execution/completion, this Court is not inclined at this stage to set aside the sanction of these works under proceedings dated 26.03.2010 by respondent 3. The State would however be well advised to ensure that a uniform and even procedure is followed in respect of the allocation of funds and the identification of works, while implementing the schemes framed under the Act of 2005 so that these disparities do not arise in future. It is no doubt true that while implementing the Act of 2005, the State would inevitably encounter various problems and difficulties but it must necessarily resolve them for effective implementation of the enactment. Adopting different yardsticks in different cases would not serve either public interest or the objective of the Act of 2005. Allocation of the funds as per the State’s own stand in these cases, should be work-concentric and not be based on ‘equal distribution’ to the local bodies. That being so, the present case constitutes an unexplained exception where the State adopted the practice of distributing the funds equally amongst the Mandal Territorial Constituencies without regard to the prioritization in terms of the works or the need for them. But for the passage of time with its concomitant developments, this case eminently warranted interference by this Court. The Writ Petition is accordingly disposed of with the aforestated observations. In the circumstances of the case, there shall be no order as to costs. -------------------------- SANJAY KUMAR,J _________ AUGUST, 2010 PGS/VGSR [1] S.Chen & M.Ravallion, Development Research Group, World Bank; ‘The Developing World Is Poorer Than We Thought, But No Less Successful In the Fight Against Poverty’, Policy Research Working Paper No.4703 (August, 2008). [2] Government of India 11th Five Year Plan, Sec.1.105