THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.7305 OF 2010 DATED __________AUGUST, 2010 BETWEEN Bakam Mallesham and others. … Petitioners 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.7305 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 petitioners seek to espouse the cause of Thandur, Bheemini, Nennel, Vemanpally, Bellampally and Kasipet Mandals of Adilabad District. They are aggrieved by the proceedings dated 28.03.2010 passed by the District Collector and Programme Co-ordinator, Adilabad District, under the NREGS framed by the State under the provisions of the Act of 2005 according administrative sanction for execution of 13 works. The grievance of the petitioners is that these works were allotted to two villages each in Tandur, Bellampally, Nennel and Kasipet Mandals and three villages in Vemanpally Mandal. It is stated that the District Collector/Programme Co-ordinator did not call for proposals from the concerned Mandal Parishads and Gram Panchayats by conducting Mandal Parishad Meetings/Gram Sabhas. It is pointed out that Tandur Mandal consists of 7 villages, Bheemini and Nennel Mandals of 13 villages each, Vemanapally Mandal of 11 villages, Bellampally of 10 villages and Kasipet Mandal of 19 villages and without following the due procedure contemplated under the Act of 2005, the allotment of works was limited to two villages in each Mandal and three villages in the case of one Mandal. It is further pointed out that though the NREGS requires the works to be executed through manual resources, the respondent authorities were resorting to execution of works through machinery. It is stated that this unequal distribution of works resulted in defeating the purpose of the Act of 2005 which aimed at providing at least 100 days of guaranteed wage employment to every rural household. The District Collector, Adilabad, being the Programme Co-ordinator under the Act of 2005, filed a counter stating that the procedure for identification of works and granting of administrative sanction under G.O.Ms.No.271 dated 08.09.2009 was scrupulously followed in the instant case. He further stated that the petitioners were proceeding on an erroneous presumption that the Act of 2005 mandates equal distribution of works at every level. He pointed out that the NREGS made it clear that priority was to be given to habitations with a higher population and also on the basis of the need for the stipulated work. He further stated that in the initial outlay of allocation of funds for Adilabad District, Rs.28 crores were allotted under G.O.Ms.No.231 dated 24.07.2009. A need based identification of works is said to have been undertaken and administrative sanction therefor was secured on the same basis. The additional allocation of funds resulted in the sanction of the 13 works, subject matter of this writ petition. He stated that the identification of works under the Act of 2005 was a continuous process for providing rural connectivity. The additional funds of Rs.175.00 lakhs released under Government Memo dated 19.03.2010 were intended for laying WBM/Gravel roads to SC/ST habitations and other remote habitations of the subject Mandals in Adilabad District under MPP/ZPP components of the NREGS 2009-10. Further, it is pointed out that while according administrative sanction, the District Collector is permitted to exceed the quota fixed for the Mandal/District subject to the condition that the same is not in excess of five per cent of the allocation given. Accordingly, out of the additional funds allocated under ZPP component, being an amount of Rs.183.38 lakhs (including extra 5% of the allocation), an amount of Rs.138.38 lakhs was allocated for SC/ST localities and the balance Rs.45.00 lakhs was allocated to other habitations. It is stated that the selection of Gram Panchayats/habitations and the works was taken up by the Zilla Parishad General Body and the approved list was sent to him, thereupon administrative sanction was accorded. He further stated that as the works were to be identified by the Zilla Parishad and approved by its General Body, it was not necessary to call for the proposals of the Gram Panchayats/Mandal Parishads. He further pointed out that it would not be possible to cover all Gram Panchayats/habitations within a single phase with limited allocation of funds and as pointed out in the relevant Government orders, road connectivity was to be taken up under the NREGS in a phased manner. 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 district level with the function of finalization and approving the blockwise shelf of projects to be taken up under a programme under the scheme. 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. It is however to be kept in mind that the objective of the Act of 2005 is the creation of employment opportunities for the unskilled manual labour in rural India and not the accomplishment of the work in itself. Therefore, the authorities concerned must necessarily eschew use of machinery in the allocated works under the Act of 2005 which have the effect of substituting manual labour. In the present case, it is not disputed that the general body of the Zilla Parishad, Adilabad District, identified the Gram Panchayats and the works to be undertaken there based on the prioritization of the works. As per the policy guidelines the villages were identified for grounding of the allotted works. 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. 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 mala fide 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 Zilla Parishad, 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