THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.7373 OF 2010 DATED __________AUGUST, 2010 BETWEEN N.Laxman and others. … Petitioners And The Government of Andhra Pradesh, Department of Panchayath Raj, Rep. by its Secretary, A.P. Secretariat Buildings, Hyderabad. And Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.7373 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 proceeding dated 10.01.2010 of the District Collector/ District Programme Co-ordinator, Adilabad, under the NREGS framed under the Act of 2005 is called in question. By the said proceeding, the District Collector allocated additional funds of Rs.50.00 lakhs sanctioned under G.O.Ms.No.236 dated 31.07.2009 for the NREGS 2009-10, according administrative sanction for undertaking 18 specific works in various habitations of Kubeer Mandal of Mudhole Division in Adilabad District. The petitioners being Mandal Parishad Territorial Constituency members of Sawnli, Pasli, Chondi and Nigva in Kubeer Mandal, filed the present writ petition complaining that the sanction and disbursal were not in accordance with the proposals in the General Body Meetings at the Mandal Parishad level, to the effect that there should be equal distribution of works. They allege that the identification of works was undertaken in an arbitrary manner and that major works were approved only for Pardi Gram Panchayat, Jamgaon village and Brameshwar village in Marlagonda Gram Panchayat. They pointed out that lesser works had been approved for their constituencies. They further allege that the District Collector, being the Programme Coordinator, had not acted in a transparent manner and had discriminated amongst the beneficiary segments. It is their case that the same results in defeating the very purpose of Act of 2005, i.e., ensuring hundred days of guaranteed wage employment in a financial year to every rural household. They further stated that they made a representation on 26.03.2010 bringing these facts to the notice of the District Collector, Adilabad, duly pointing out that the work distribution was unequal, but no action was initiated thereupon. In his counter, the District Collector, Adilabad, stated that the instant work allocation was undertaken strictly in accordance with the guidelines issued by the State, giving due priority to habitations with higher populations and also on the basis of the need for the stipulated work in that habitation/Gram Panchayat. He pointed out that the writ petitioners were labouring under a misconception that the Act of 2005 mandates equal distribution of the funds to all the Gram Panchayats in the area. He clarified that the identification of works was not ordained on such egalitarian principles, but as indicated hereinabove. He further stated that the Mandal Parishad in its General Body Meeting held on 23.09.2009 had identified the works and the habitations in which they were to be grounded and acting thereupon, administrative sanction was accorded only for 18 of the said works. One work pertaining to Khasra habitation of Chondi Gram Panchayat, Kubeer Mandal, was rejected as it was found to be unfeasible of compliance. It is stated that the Government of Andhra Pradesh vide G.O.Ms.No.236 dated 31.07.2009 allotted an additional amount of Rs.50 lakhs for each Mandal for providing internal roads and drains in habitations, roads to fields and burial grounds under the NREGS 2009-10. The works were to be identified and approved by the Mandal Parishad General Body and priority was to be given to habitations having a higher population. Accordingly, the Mandal Parishad General Body of Kubeer Mandal of Adilabad District in its meeting held on 23.09.2009 identified 19 works. But as stated above, administrative sanction was accorded only for 18 of the said works at the estimated cost of Rs.49.50 lakhs. He further pointed out that out of the said funds, an amount of Rs.33.75 lakhs was allocated for SC/ST localities while the remaining Rs.15.75 lakhs were allocated to general localities in the interest of the public. He further stated that the guidelines prescribed in G.O.Ms.No.236 dated 31.07.2009 read with G.O.Ms.No.271 dated 08.09.2009 were strictly followed. Referring to the petitioners’ complaint dated 26.03.2010, the District Collector stated that the works were approved by the Mandal Parishad in its General Body Meeting and the same was pointed out to the petitioners; as such there was no merit in the said complaint. He further stated that identification of works and habitations/Villages under the NREGS being a matter of economic management was not reviewable by this Court in exercise of writ jurisdiction. 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. I find merit in the arguments advanced by the learned Special Government Pleader. It is no doubt true that in undertaking the mandate of the Act of 2005, the State would inevitably encounter various problems and difficulties which it would necessarily have to resolve for effective implementation of the enactment. As regards the present case, it is to be noted that Section 13 of the Act of 2005 vests the Panchayat at the intermediate level (Mandal level) with the function of approving the block level plan for forwarding it to the Panchayat at the district level for final approval. The provision makes it clear that the Panchayats at the District, Mandal and Village levels are to be the principal authorities for planning and implementation of the schemes under the Act of 2005. In the present case, it is not disputed that the Mandal Parishad General Body of Kubeer Mandal identified 19 works out of which 18 works were accorded administrative sanction. The petitioners, being members of the Mandal Parishad Territorial Constituencies, were also involved in the said process. The majority decision however prevailed. As pointed out by the State, it would not be possible for an equitable distribution of works and employment opportunities in every allocation. It would only be after the implementation of the Act of 2005 in a phased manner that such equable distribution can be hoped for over a period of time. Though the Act itself envisioned that this could be achieved within five years, it still remains a distant dream and is yet to materialize. It is not the case of the petitioners that any malafide or extraneous consideration played a role in the allocation and identification of the subject works. In the absence of such allegation, I see no reason to interfere with the exercise undertaken by the respondents based on the decision of the general body of the Mandal Parishad, Kubeer Mandal, Adilabad District. The writ petition is therefore devoid of merit and is accordingly dismissed. No 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