Jai Bahadur Yadav and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
- - rural employment guarantee (second amendment) scheme, 2008, in so far as it provides for appointment of a service provider for appointment of technical assistants as well as the additional programme officers and computer operators are concerned, is not only violative of the nrega but have also been issued in a completely arbitrary and unreasonable exercise of powers. there was no material whatsoever to arrive at a conclusion that the service provider will provide better employees for technical supervisions in the scheme. in addition to the service charge an additional amount of about 10% of the total costs for appointment of service provider will have to be paid as service tax, putting further burden on the scheme, which is primarily provided to secure employment to the rural poor. the amendment to the scheme is thus ultra vires the act, and the policy of the central government, spelled out clearly in the operational guidelines 2006 and 2008 published by ministry of rural development, government of india. their empanelment was subject to their good conduct and that nothing has been shown that the petitioners were not performing their duties to the satisfaction of the chief development officer. the central government has found it appropriate with the increased productivity and the economic conditions of the nation to provide limited opportunities of livelihood security to the rural poor. 21. the work envisaged under nrega to be performed by the rural poor includes generating productive assets; 30. the object of nrega is to provide limited guaranteed employment to the rural poor for alleviating poverty, within the economic means of the state. this will ensure that works do not suffer because of individual agency failure, and that work seekers get employment on time. there is a presumption in favour of the constitutionality of statute as well as delegated legislation and it is only when there is a clear violation of a constitutional provisions or or a parent statute in case of delegated legislation beyond reasonable doubt that the court should declare it to be unconstitutional. the centralization of selection, the supply and deployment of the technical assistants at the regional level and its control at the state level will not only affect the rights of those persons, who have been appointed as technical assistants on contract without the limitation of the period, and subject to good conduct, but will also remove them far away from the control of the gram panchayats. 41. para 6.4.4 of the operational guidelines, providing that all works must be executed by the workers, who have job cards and who have demanded works and which is necessary to avoid contractors as well para 6.3.3 (iii) provides that contractors as stated in schedule-i of nrega cannot be engaged in any manner in the execution of works.sunil ambwani, j.1. by these writ petitions, the petitioners appointed as 'accredited engineers', under clause 5.5 of the operational guidelines framed by the central government in the year 2006, as non-governmental and non-departmental engineers empanneled on contract, after their selections by the selection committees constituted in accordance with the government order dated 17.7.2006, for preparation and supervision of the projects in the socio-economic schemes framed under the national rural employment guarantee act, 2005, have prayed for quashing the government order dated 23.10.2008 to the extent that it amends clause 5.4 of the national rozgar guarantee yojana published on 8.2.2007 and the advertisement dated 19.12.2008/20.12.2008 by which the state government has provided for obtaining the services of the technical assistants at the village panchayat level and technical assistants at the block development level, through service providers. the advertisement published by the state government under the government order dated 16.12.2008 (ca-2), provides for appointment of the service provider on contract by a committee at the regional level. with this new arrangement the services of the petitioners are to be dispensed with effect from 31.3.2009. 2. heard shri b.n. singh assisted by shri namit kumar sharma; shri ashok khare, senior advocate assisted by shri pradeep verma and shri chetan chatterjee for the petitioners. shri jaideep mathur, additional advocate general assisted by shri ravi ranjan, standing counsel has appeared for the state respondents. dr. ashok nigam, additional solicitor general of india assisted by shri triloki singh, additional standing counsel has appeared for the union of india. shri shashi nandan, senior acvocate, assisted by shri udayan nandan has appeared for rama infotech pvt. ltd. through its director shri ajai gupta, the newly impleaded respondent. after exchange of affidavits and with the consent of parties, all the matters were finally heard. 3. brief facts giving rise to these writ petitions are that the state government issued a government order dated 17.7.2006 for empanelment of junior engineers/technical assistants as accredited engineers under clause 5.5 of the operational guidelines, 2006 issued by the ministry of rural development, department of rural development, government of india for implementing the 'national rural employment guarantee act, 2005' (nrega) at panchayat level. the empanelment was provided to be made through a selection process conducted by a selection committee under the chairmanship of chief development officer of the district. the district development officer is to be the secretary and the project director, district rural development authority, and its assistant engineers are its members. the selection of the candidates by the committee was to be subject to the approval of the state government. 4. in writ petition no. 2072 of 2009 and writ petition no. 2942 of 2009 the petitioners were appointed as accredited engineers in district kaushambi. in writ petition no. 10748 of 2009 the petitioners were appointed as accredited engineers in district sonebhadra. in writ petition no. 12389 of 2009 the seven petitioners were appointed as accredited engineers at the district level in district jalaun. in writ petition no. 3513 of 2009 the petitioners were appointed as accredited engineers in district azamgarh. the advertisement issued in terms of the operational guidelines, 2006 of nrega provides that the junior engineers in the line department can also be engaged, according to their availability. the educational qualifications of the candidates from the open market is intermediate with a diploma of civil or mechanical engineering. they are provided to be paid honorarium in a manner that (a) 0.5% of the cost of the project shall be paid for preparing the estimate of the project; (b) after the constructions work of the project is complete the concerned technical assistants will be paid 0.1% of the cost of the project, in addition, for technical supervision; and (c) the technical assistants shall be paid a sum of rs. 600/- as travelling allowance for preparing measurements and for supervision of the project; (d) the headquarters of the selected engineers will be the concerned kshetra panchayat. 5. the office orders issued by the project director, district rural development authority, provided for approval of the names of the petitioners as technical assistants under the government order dated 3.9.2007. other than the details of the payment as described above and the provisions in clause-5 of the scheme, that the honorarium shall be paid from out of the administrative expenses made available to the programme officer under nrega, and the provisions in clause-6 that the gram panchayat under one nyay panchayat would be allotted by the programme officer/block development officer of the kshetra panchayat, there are no other term in the office orders as regards to the conditions of their service, or the period for which the technical assistants are to be engaged. the last paragraph of each office order provides that if the technical assistant is found to be guilty in any matter, his name will be removed from the panel in accordance with the procedure provided in the government order. the petitioners joined and are working as technical assistants in their assigned gram panchayats. 6. the state government notified a state scheme under section 4(1) of the nrega for its implementation in the state of uttar pradesh. chapter-v of the scheme provides for a technical assistance and the empanelment of the junior engineers and technical assistants from both the engineers of the line department (employees of the state government working in the concerned department) and the engagement from open market on honorarium by a selection committee in the chairmanship of chief development officer. 7. by a notification dated october 23, 2008 the u.p. rural employment guarantee (second amendment) scheme 2008, was notified amending interalia clauses 5.4; 5.5 and 5.9 and inserting 5.5a in the scheme. by these amendments the method of appointment and the payment to the technical assistants was changed. clause 5.4 provides that the services of one technical assistant for 5 to 10 gram panchayats and one technical assistant at block level shall be hired. the services of the technical assistants shall be availed through the service provider. they shall be employees of the service provider and not of the department. the educational qualifications were to remain the same except that the minimum qualifications were changed from intermediate to high school with diploma in civil/mechanical/electrical trade. for engaging the services of technical assistant at the block level, a candidate is required to have eight years experience along with the same educational qualification. the minimum and maximum age was prescribed in a newly inserted clause 5.5a to be 18 years and 62 years respectively with provision to hire retired employees having satisfactory work and conduct. a maximum amount of rs. 4000/- per month is now provided to be the honorarium under a new clause 5.9 for technical assistant at gram panchayat level and a maximum amount of rs. 8000/ as honorarium to the technical assistant at block level. the reservation policy of the state government is required to be complied with at the time of availing their services. 8. the other relevant amendments are with regard to services of the additional programme officers at all development blocks of each district under newly inserted clauses 8.1 to 8.4 of the scheme, who are required to be paid a maximum of rs. 20,000/- as honorarium to be borne out of the administrative account head of the nrega. clause 8.2 provides for two additional programme officers each for the office of the chief development officer and joint development commissioner to strengthen these offices, of service of a computer operator/data entry operator to be availed at each development block with educational qualification prescribed as 'o' level diploma with honorarium of rs. 8000/- per month. their services are also required to be through service provider in addition in clause 8.4 the services of one accounts assistant at every development block with educational qualification as 'b. com' with an honorarium of rs. 8000/- per month. their services shall also be availed through service provider. clause 8.5 provides that a separate order shall be issued by the state government prescribing the procedure for availing the services of technical assistant, additional programme officers, computer operator/data entry operator and accounts assistant through service provider. 9. the state government thereafter issued government order dated 9.2.2009 providing for appointment of service provider in terms of the amended scheme. this government order issued under the signatures of shri rohit nandan, principal secretary, government of u.p amends government order dated 5.2.2009 for the purposes of selection and appointment of service provider. it provides that the approval for the service provider shall be initially for a period of one year, which may be terminated on a three month's notice. the service provider company is required to establish office at the regional level within 15 days and will provide a guarantee by way of a fixed deposit @ 2% of the total amount of honorarium of the services of the employees to be provided by the service provider company. the service provider is also required to pay the service tax and shall provide at least 60% of the employees within 21 days of request by the joint development commissioner and the remaining 40% within next 15 days. the service provider shall not be paid any amount for selection of the employees and that the copies of the certificates of the educational qualifications and the caste certificates shall be provided by the service provider to the joint development commissioner. the service provider will not make any deductions from the honorarium of the employees. they will submit their bills by 25th of every month to be paid by 5th of the next month and if the services are not found to be satisfactory they can be removed by giving one month's notice. in case of any court case the entire responsibility shall be of the service provider. the disputes, if any, are required to be resolved by the commissioner, rural development. in case of any breach of conditions the amount tendered as guarantee amount shall be forfeited and service provider shall be black listed. 10. the state government made wide advertisements inviting applications for service providers at each regional level from the office of the commissioner of the divisions. in respect of the appointment of service provider in allahabad region, the advertisement was published on 20.12.2008 providing for availing the services of additional programme officers, technical assistants, computer operators/data entry operators and accounts assistants at allahabad, kaushambi, pratapgarh and fatehpur. 11. m/s. rama infotech pvt. ltd., appearing through shri udayan nandan, advocate and impleaded as respondent in writ petition no. 2072 of 2009, was appointed as service provider on 30.1.2009 for allahabad region, allahabad. it is stated that out of 11 divisions, rama infotech pvt. ltd had bagged the contracts as service provider in 8 divisions. for allahabad division, the quotation of the service charge of rama infotech pvt. ltd was approved @ 0.888% for 68 posts of additional programme officer; 2.399% for 58 posts of technical assistant at block development level; 2.399% for 377 posts of technical assistants at gram panchayat level; 2.899% for 58 posts of computer operator/computer data entry operator and 2.799% for 58 posts of accounts assistant. the order, by which rama infotech pvt. ltd. has been appointed as service provider, under a contract dated 30.1.2009, is annexed to the impleadment application. it provides that out of three companies, which had submitted 'expressions of interest' in pre-bid conference rama infotech pvt. ltd. was found to have offered most competitive bid. with these appointments the services of the petitioners are liable to be terminated at the end of the financial year on march 31, 2009 after which the employees provided by the service provider have to take over. m/s. rama infotech pvt. ltd., the service provider has issued an advertisement inviting applications for appointment of various categories of employees including technical assistants, numbering 3700 by an interviews on, first come first service basis. 12. shri ashok khare and shri b.n. singh, learned counsels for the petitioners contend that the offending amendment vide notification dated 23.10.2008 of the u.p. rural employment guarantee (second amendment) scheme, 2008, in so far as it provides for appointment of a service provider for appointment of technical assistants as well as the additional programme officers and computer operators are concerned, is not only violative of the nrega but have also been issued in a completely arbitrary and unreasonable exercise of powers. there was no material whatsoever to arrive at a conclusion that the service provider will provide better employees for technical supervisions in the scheme. there was no complaints with regard to the work, conduct and performances of the accredited engineers empaneled at district level. their services could be terminated by the chief development officer, if their work and conduct was not found satisfactory. the fixation of honorarium at a maximum of rs. 4000/- for a technical assistant at village panchayat level and rs. 8000/- for experienced technical assistant at block development level had no object to be achieved. the fixation of an amount equal to 0.6% of the cost of project for its technical assessment and supervision, was more rational than the fixation of the maximum honorarium which is required to be paid even if the projects have not been prepared or are not implemented putting additional recurring burden on the welfare scheme. there was no systematic study carried out before imposing additional costs on the scheme including the number of additional programme officers, technical assistants and computer operators, out of the 40% of the total cost of the scheme for building assets in rural areas. in addition to the service charge an additional amount of about 10% of the total costs for appointment of service provider will have to be paid as service tax, putting further burden on the scheme, which is primarily provided to secure employment to the rural poor. 13. all the counsels appearing for the petitioners would submit that clause-11 of schedule-i of the nrega prohibits the appointment of contractors for projects. this not only includes the contractors which work as a middle man for providing labour but also for any other purpose under the scheme. it is submitted that in none of the social welfare projects the services of a contractor are utilised for hiring employees to carry out or supervise the scheme, and that the appointments of the service provider for providing technical assistants for the projects is nothing but engagement of contractor. the amendment to the scheme is thus ultra vires the act, and the policy of the central government, spelled out clearly in the operational guidelines 2006 and 2008 published by ministry of rural development, government of india. 14. shri b.n. singh would further submit that with no specific period prescribed in the contracts of the petitioners employed as technical assistants, their services could not be dispensed with by amending the scheme and changing the method of appointment. he would submit that the procedure for change in appointment could not be a ground for dispensing with the services of the petitioners. their empanelment was subject to their good conduct and that nothing has been shown that the petitioners were not performing their duties to the satisfaction of the chief development officer. 15. learned counsels appearing for the petitioners would further submit that the amendment to the scheme is not only contrary to the object and the provisions of the act, but has been conceived with malafide intention and oblique motive of providing contract for private employment. m/s. rama infotech pvt. ltd has no experience in providing technical assistants nor any such experience has been shown in their impleadment application. the entire object of the amendment of the scheme is to give benefit to a single individual, who will not be under the control of the district development officers or even at a regional level. in case of any complaint, the district development officer as the programme coordinator at the district level will be constrained to write to the department of rural development. the procedure of dispensing with the services would be too long and cumbersome and would ultimately affect the projects at panchayat level. he would also submit that the projects meant for the purpose of building, socio-economic and socio-environmental assets at the panchayat level will completely loose its purpose and meaning, inasmuch as the panchayats will loose their control over the preparation of projects and their technical evaluation and supervision. the powers will be centralised at the state level and would be under the direct control of the state government. the entire object of providing a service provider is mischievous in nature and is an attempt to frustrate the implementation of the ambitious scheme for alleviating poverty in rural areas and securing guaranteed employment to the unemployed person. the state government, with a purpose to give advantage to some individuals, has compromised with the object of the act. 16. shri jaideep mathur, additional advocate general would submit that the change of method of appointment does not violate the object and provisions of nrega. he has drawn a difference between the definition of a 'scheme' under section 2(p), and a 'project', under section 2(n) of the act, and would submit that under section 4(1) state government can frame a scheme, which is of nature of subordinate legislation. under section 18 of the act the state government is required to make available to the district programme coordinators and the programme officers necessary staff and technical support as may be necessary for the effective implementation of the scheme. the manner, in which the staff and technical support is provided and the method of their appointment, is entirely within the discretion of the state government, with a rider that there should be no additional burden on the cost of the scheme. the state government has not burdened the scheme with any additional cost. he would further submit that clause-11 of schedule-i made under section 4(3) of the act, and appended to the act, does not prohibit engagement of contractor for implementation of the scheme. clause-11 of schedule i is confined to the projects and would preclude the engagement of any contractor for engaging workers in the projects. he would submit that no harm would be caused to the ultimate beneficiary, namely the unemployed family in rural areas in engaging the service provider. he submits that in the absence of any material to show that the cost of scheme would increase or that the amendment to the scheme was not bonafide, the argument that the amendments seek to achieve oblique purposes, should be rejected. 17. shri jaideep mathur further submits that scheme is in the form of delegated legislation made under section 4(1) of nrega. the delegated legislation may be held invalid, if it is beyond the scope of the power given by the enabling act or if it violates any of the provisions of the constitution. in order to find out whether the delegated legislation violate the enabling act, the court has to look into the entire object and purpose of the act. 18. the union of india is party to all these writ petitions. the counsel for union of india had sought instructions and has placed on record a letter sent by shri r.k. sood, under secretary to the government of india to shri triloki singh, central government counsel, to inform the court that the planning and implementation including deputing the staff for these activities is made by the instrumentalities of the state government and not the central government. the required relief can be obtained by the petitioner from the state authorities. the letter is important for the purposes of deciding the case and is thus quoted as below:f. no. l-12060/3/2008-nregagovernment of indiaministry of rural developmentdepartment of rural developmentkrishi bhavan, new delhidated: 25th february, 2009.to shri triloki singh,central government counsel1g/4 new dadari yamuna nagar nainiallahabad subject: writ petition no. 3513 of 2009 (s/s)- jai bahadur yadav and ors. v. union of india and ors. in the high court of allahabad, allahabad sir, please refer to your letter enclosing copy of writ petition on the above subject received in this ministry on 09.02.09. 2. the petitioners are aggrieved by the impugned advertisement dated 20.12.08 issued by respondent no. 4, viz. the joint development commissioner, azamgarh mandal, government of uttar pradesh, regarding appointment of technical staff, which has affected the appointment of petitioners as technical assistants. 3. it may be mentioned that the planning and implementation, including deputing the staff for these activities is made by the instrumentalities of the state government and not the central government. the required relief can be obtained by the petitioner from the state authorities. the central government may not be considered to be a necessary party in this case in accordance with the provisions of civil procedure code. the union of india may be dropped from the list of respondents. 4. you are requested to kindly move an application for bringing the above facts to the kind notice of hon'ble allahabad high court and pray that union of india may be dropped from the list of respondents and prepare a counter affidavit in the case on above lines and send it for vetting to the undersigned. yours faithfully, sd/-(r.k. sood) under secretary to the government of india tel. no. 011-23073787 011-23073787 19. the instructions received by the central government from ministry of rural development does not leave any scope to refer the matter to the central government or to the central council constituted under section 10(1) of the nrega to consider whether the engagement of service provider is in consonance with the scheme. it may be observed here that inspite of requests made both to the central government and state government counsels, they did not provide information to the court whether any service providers have been appointed in any other states in which the nrega has been implemented. 20. the national rural employment guarantee act, 2005 (nrega) seeks to implement an ambitious programme of the central government, which aims to enhance livelihood security in rural areas by providing at least 100 days of guaranteed wage employment in a financial year to every household, whose adult member volunteers to do unskilled manual work. the act fulfils the fundamental rights of the citizens guaranteed under article 21 of the constitution of india. the right to life include right to dignified life and certainly includes right to employment. the directive principle of state policy provides for employment subject to financial resources of the government. the central government has found it appropriate with the increased productivity and the economic conditions of the nation to provide limited opportunities of livelihood security to the rural poor. 21. the work envisaged under nrega to be performed by the rural poor includes generating productive assets; protecting the environment; empowering rural women, with an object to stop rural to urban migration and fostering social equity. the scheme provides for utilisation of 60% of the amount towards wage employment, and 40% towards generating productive assets. it also seeks to build assets for economic and social infrastructure in rural areas. the act came into force initially in hundred districts in the year 2005. it has now covered almost the entire nation. 22. chapter-iii of nrega provides for employment guarantee schemes and unemployment allowance. every state government under section 4 is required to formulate a rural employment guarantee scheme within six months from the date of commencement of the act, and until the scheme is framed the annual action plan and perspective plan for the sampoorna grameen rozgar yojana or the national food for work programme, 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 the act. the scheme is required to provide the minimum features specified in schedule-i of the act, which in turns provide for focus of the scheme; the creation of durable assets; payment of wage rate etc. the scheme does not permit to engage any contractor under clause-11 for implementation of the projects under it. as far as practicable, under clause-12 the tasks funded under the scheme is to be performed by using manual labour and not machines. the scheme is also required under section 5 of the act to specify the conditions for providing guaranteed employment without prejudice to the conditions specified in schedule ii, which provides for minimum facilities and conditions for guarantee of employment in rural areas. section 7 of the act provides for payment of unemployment allowance, if an applicant for employment under the scheme is not provided such employment within fifteen days of the receipt of his application. the liability of the state government under sub section (3) of section 7 to pay unemployment allowance ceases as soon as the applicant is directed by the gram panchayat or the programme officer to report for work either by himself or depute at least one adult member of his household. 23. chapter iv of the act provides for implementing and monitoring authorities. it provides in section 10, a central employment guarantee council at delhi to establish a central evaluation and monitoring system; to advise the central government on all matters concerning the implementation of the act; review the monitoring and redressal mechanism from time to time; promote the widest possible dissemination of information about the schemes made under the act; monitoring the implementation of the act; preparation of annual reports to be laid before parliament by the central government on the implementation of the act and any other duty or function as may be assigned to it by the central government. the state council, under section 12 to be known as state employment guarantee council, is required under sub section (3) to advise the state government on all matters concerning the scheme and its implementation; determine the preferred works; review the monitoring and redressal mechanisms from time to time and recommending improvements; promote the widest possible dissemination of information; monitor the implementation of the act & preparation of annual reports and any other functions, which may be assigned to it by the central council or the state government. 24. the panchayats at district; intermediate and village levels are conceived under section 13 of the act as principal authorities for planning and implementation of the schemes. the chief executive officer of the district panchayat under section 14(1), or the collector of the district or any other district level officer shall be designated as district programme coordinator for the implementation of the scheme. in sub section (2) of section 14 the district programme coordinator is responsible for implementation of the scheme in the district. a person not below the block development officer under section 15(1) is to be appointed by the state government as programme officer at the panchayat at intermediate level. he has to assist the panchayat under sub section (2) at intermediate level in discharging its functions under the act and the scheme made thereunder; take responsibility for matching the demand for employment with the employment opportunities arising from projects in the area. he is also required to prepare the plan under sub section (4) for the block under his jurisdiction by consolidating the project proposals prepared by the gram panchayats and the proposals received from intermediate panchayats. section 16 mandates the gram panchayats to be responsible for identification of the projects in the gram panchayat area to be taken up under a scheme as per the recommendations of the gram sabha and the ward sabhas for the execution and supervision of such works. every gram panchayat under sub section (3) is required to prepare a development plan and maintain a shelf of possible works to be taken up under the scheme as and when demand for the work arises and to forward its proposal under sub section (4) for the development projects. sub section (5) of section 16 provides that the programme officer shall allot at least fifty per cent of the works in terms of its cost under a scheme to be implemented through the gram panchayats. the employment is to be made on muster rolls for the works sanctioned to be executed with the list of employment opportunities available elsewhere to the residents of the gram panchayat. section 17 provides that the gram sabha shall monitor the execution of works within the gram panchayat and that the gram sabha shall conduct regular social audits of all the projects under the scheme taken up within the gram panchayat. section 18 provides that the state government shall make available to the district programme coordinator and the programm officers necessary staff and technical support as may be necessary for the effective implementation of the scheme. 25. the provisions of the act relevant for the purposes of the case are quoted as below:2. in this act, unless the contest otherwise requires,-(g) 'implementing agency' includes any department of the central government or a state government, a zila parishad, panchayat at intermediate level, gram panchayat or any local authority or government undertaking or non-governmental organisation authorised by the central government or the state government to undertake the implementation of any work taken up under a scheme; (k) 'preferred work' means any work which is taken up for implementation on a priority basis under a scheme; (m) 'programme officer' means an officer appointed under sub-section (1) of section 15 for implementing the scheme. (n) 'project' means any work taken up under a scheme for the purpose of providing employment to the applicants; (p) 'scheme' means a scheme notified by the state government under sub-section (1) of section 4; 4(1) for the purposes 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: 13 (1) the panchayats at district, intermediate and village levels shall be the principal authorities for planning and implementing of the schemes made under this act.(2) the functions of the panchayats at the district level shall be-(a) to finalise and approve blockwise shelf of projects to be taken up under a programme under the scheme; (b) to supervise and monitor the projects taken up at the block level and district level; and (c) to carry out such other functions as may be assigned to it by the state council, from time to time. (3) the functions of the panchayat at intermediate level shall be- (a) to approve the block level plan for forwarding it to the district panchayat at the district level for final approval; (b) to supervise and monitor the projects taken up at the gram panchayat and block level; and (c) to carry out such other functions as may be assigned to it by the state council from time to time. (4) the district programme coordinator shall assist the panchayat at the district level in discharging its functions under this act and any scheme made thereunder. 14 (1) the chief executive officer of the district panchayat or the collector of the district or any other district level officer of appropriate rank as the state government may decide shall be designated as the district programme coordinator for the implementation of the scheme in the district. (2) the district programme coordinator shall be responsible for the implementation of the scheme in the district in accordance with the provisions of this act and the rules made thereunder. (3) the functions of the district programme coordinator shall be- (a) to assist the district panchayat in discharging its functions under this act and any scheme made thereunder; (b) to consolidate the plans prepared by the blocks and project proposals received from other implementing agencies for inclusion in the shelf of projects to be approved by the panchayat at district level; (c) to accord necessary sanction and administrative clearance wherever necessary; (d) to coordinate with the programme officers functioning within his jurisdiction and the implementing agencies to ensure that the applicants are provided employment as per their entitlements under this act; (e) to review, monitor and supervise the performance of the programme officers; (f) to conduct periodic inspection of the works in progress; and (g) to redress the grievances of the applicants. (4) the state government shall delegate such administrative and financial powers to the district programme coordinator as may be required to enable him to carry out his functions under this act. (5) the programme officer appointed under sub-section (1) of section 15 and all other officers of the state government and local authorities and bodies functioning within the district shall be responsible to assist the district programme coordinator in carrying out his functions under this act and the schemes made thereunder. (6) the district programme coordinator shall prepare in the month of december every year a labour budget for the next financial year containing the details of anticipated demand for unskilled manual work in the district and the plan for engagement of labourers in the works covered under the scheme and submit it to the district panchayat. 15.(1) at every panchayat at intermediate level, the state government shall appoint a person who is not below the rank of block development officer with such qualifications and experience as may be determined by the state government as programme officer at the panchayat at intermediate level. 16. (1) the gram panchayat shall be responsible for identification of the projects in the gram panchayat area to be taken up under a scheme as per the recommendations of the gram sabha and the ward sabhas and for executing and supervising such works. (2) a gram panchayat may take up any project under a scheme within the area of the gram panchayat as may be sanctioned by the programme officer. (3) every gram panchayat shall, after considering the recommendations of the gram sabha and the ward sabhas, prepare a development plan and maintain a shelf of possible works to be taken up under the scheme as and when demand for work arises. (4) the gram panchayat shall forward its proposals for the development projects including the order of priority between different works to the programme officer for scrutiny and preliminary approval prior to the commencement of the year in which it is proposed to be executed. (5) the programme officer shall allot at least fifty per cent of the works in terms of its cost under a scheme to be implemented through the gram panchayats. (6) the programme officer shall supply each gram panchayat with- (a) the muster rolls for the works sanctioned to be executed by it; and (b) a list of employment opportunities available elsewhere to the residents of the gram panchayat. 18. the state government shall make available to the district programme coordinator and the programme officers necessary staff and technical support as may be necessary for the effective implementation of the scheme. schedule-1{see section 4(3)} 11. the scheme shall not permit engaging any contractor for implementation of the projects under it. 12. as far as practicable a task funded under the scheme shall be performed by using manual labour and not machines. 16. all accounts and records relating to the scheme shall be made available for public scrutiny and any person desirous of obtaining a copy or relevant extracts therefrom may be provided such copies or extracts on demand and after paying such fee as may be specified in the scheme. 17. a copy of the muster rolls of each scheme or project under a scheme shall be made available in the offices of the gram panchayat and the programme officer for inspection by any person interested after paying such fee as may be specified in the scheme. 26. the 'uttar pradesh rural employment guarantee scheme' notified on 8.2.2007 under section 4(1) of nrega provides for its objective; eligibility; general provisions in clauses 1.1 to 1.5. clause 1.6 provides for establishment of u.p. state employment guarantee council. the village development department scheme has been made the nodal department as implementation agency in clause 2.1.1 and that district, region and gram panchayat in their areas are provided to be the main institutions in clause 2.1.2. the scheme provides for chief development officer of the district under clause 2.1.3 as district programme coordinator and the district development officer as additional district programme coordinator at panchayat level. clause 2.1.5 provides for registration and for preparation of job cards. the applications are provided to be made under clause 2.7.1 and that availability of the employment is detailed in clause 2.8. chapter iii of the scheme provides for implementation of the scheme identifying the works in clause 3.1 such as (i) water conservation and preservation; (ii) drought proofing including afforestation and tree plantation; (iii) irrigation, canal (micro and minor irrigation works); (iv) land development projects for the beneficiaries under the indira awas yojana or scheduled caste/scheduled tribe persons or the irrigation of the land occupied by sc/st persons; (v) restoration of the customary water resources and ponds and constructions of drains; (vi) works relating to land development; (vii) works relating to flood controlling and water nikasi; (viii) constructions of public bridge connecting roads; and (ix) any other works in the necessity of local estate building or for regional requirements which shall be notified to the state employment guarantee council and thereafter to the central government. 27. clause 3.2 of the scheme provides that 50% works of the total selected works shall be implemented through the gram panchayat. if the works do not begin within 15 days and the employment is not available the programme officer under clause 3.2.2 will be required to hand over the work from one of the panel of the selected agency to another agency in the annual plan. clause 3.3 prohibits the contractor and labour displacement machine in the implementation of the projects as far as practicable. chapter v providing for technical arrangement is relevant for the purposes of this case. it provides that the work under the scheme shall begin only after its technical and administrative sanction is given. for providing help to the project implementation agencies specially gram panchayats, engineers will be empanneled for preparation of projects, their sanction and measurements. para 5.1 provides that a panel of junior engineers and technical assistants will be prepared by a committee under the chairmanship of the chief development officer; the director of the project; assistant engineers, district rural development agency shall be the member of the committee. the panel can provide for the junior engineers of the involved line departments and that the applications can also be received from outside. the panel will be prepared that the number of engineers shall be fixed in such a manner that one engineer should not have more than ten gram panchayats under improvement. the panel shall be approved by the state government for empanelment of candidates from outside. the minimum qualifications shall be intermediate with a diploma in civil or mechanical engineering. they shall be selected after a detailed advertisement and that a list shall be prepared at panchayat wise. para 5.8 provides that ministry of rural development, government of india has by its letter dated 4.7.2006 agreed for appointment of technical assistants on annual contract basis and if need be technical assistants can be appointed from the panel of the accredited engineers. clause 5.9 provides for method of payment to non-government selected engineers, in a manner that 0.5% of the value of the project shall be paid at the time of preparation of the project in clause 5.9.1 and 0.1% after the work is complete for its technical supervision. the technical assistants are also provided to be paid for rs. 500/- per month for travelling allowance under para 5.9.3. they shall have headquarters in the concerned district/concerned kshetra panchayats and that the departmental engineers shall not be given any honorarium. they however shall be paid travelling allowance and that their services will be obtained only after their local officers approve for taking service from them. the amount of honorarium shall be drawn from the administrative expenses of the national rural guarantee scheme. clause 5.11 provides that the nominated engineers/technical assistants shall regularly visit the projects on the spot and shall enter their notes in the work register which shall be kept in the gram panchayat office. if there is any technical difficulty in the scheme the concerned engineers shall give his suggestion to the implementing agency. clause 5.12 provides that if any engineer or technical assistant is found to be guilty, in any matter the chief development officer shall send his recommendation for removing his name or to cancel the panel on which final decision shall be taken at the state level. the last clause 5.13 provides that the monthly payment to the technical assistants appointed on contract basis and their travelling expenses shall not be more than total amount provided under clauses 5.9.1, 5.9.2 and 5.9.3 in the scheme. 28. the uttar pradesh rural employment guarantee yojana published on february 8, 2007 was amended by the u.p. rural employment guarantee (second amendment) scheme, 2008 notified on october 23, 2008, amending and inserting new paras in the scheme. the amendments relevant for the purposes of this case are detailed as follows:5.4 the services of one technical assistant for 5 to 10 gram panchayats and one technical assistant at block level shall be hired. the services of the technical assistants shall be availed through the service provider. they shall be employee of the service provider and not of the department. 5.5 the educational qualification of the technical assistants shall be as follows:- (1) must have passed high school examination with diploma in civil/mechanical/electrical trade. (2) for hiring services of the technical assistant at the block level, the candidate must have 8 years experience along with above educational qualifications. 5.5a. the minimum and maximum age limit of the technical shall be 18 years and 62 years respectively for hiring the services of retired employees at technical assistants, it must be taken into account that his work and conduct was satisfactory and was not terminated from service. 5.9 a maximum amount of rs. 4000/- p.m. shall be paid as honorarium to the technical assistant at the gram panchyat level and a maximum amount of rs. 8000/- p. m. shall be paid as honorarium to the technical assistant at the block level as provided in the order of the government of india dated january 10, 2006. the reservation policy of the state government shall be complied at the time of availing their services. 8.1 services of additional programme officers shall be availed at all development blocks of every district. they shall be paid a maximum of rs. 20,000/- as honorarium p.m. all the expenditure incurred on these posts shall be borne from the administrative account head of nrega. this honorarium may be revised from time to time according to the availability of resources. 8.2 two additional programme officers each for even office of chief development officer and joint development commissioner and four additional programme officers for office of commissioner narega shall be availed on the above conditions with a view to strengthen these offices. 8.3 services of a computer operator/data entry operator shall be availed at each development block. the educational qualification prescribed for these posts is 'o' level diploma or equivalent of it. an honorarium of rs. 8000/- p.m. maximum shall be paid for this post. their services shall be availed through service provider. the rules/provisions regarding reservation in force from time to time by the state government shall be complied at the time of availing their services. 8.4 it is also proposed to avail the services of one accounts assistant at every development block. the educational qualification for this post shall be b. com. an honorarium of maximum rs. 8000/- p.m. shall be paid. their services shall be availed through service provider. the rules/provision regarding reservation in force from time to time by the state government shall be complied at the time of availing their services.29. it is pertinent to mention here that in the state of uttar pradesh 31 districts have been included in the third phase where the scheme is enforced w.e.f. april 1, 2008. the powers for determining standard of works and schedule of the rates under the scheme have been delegated to the rural development department instead of the rates prescribed by the public works department. the amended schedule 9.2 provides that the committee of the competent officer of the irrigation; public works department and forest department under the chairmanship of the commissioner, rural development shall be constituted and action will be taken according to its recommendation. 30. the object of nrega is to provide limited guaranteed employment to the rural poor for alleviating poverty, within the economic means of the state. the enhancement of livelihood security of the household in rural areas is to be achieved by building socio economic and socio environmental assets at the panchayat level, which can also be found in eleventh schedule of the constitution of india assigned to the village panchayats under article 243-g of the constitution of india. the panchayats in part-x1 of the constitution of india with special reference to article 243-g provide for endowing upon them such powers and authority which may be necessary to enable them to function as institution of self-governance and such laws which may contain provisions for the devolution of powers and responsibilities upon panchayats at the appropriate level subject to such conditions as may be specified therein with respect to:- (a) preparation of plans for economic development and social justice; (b) the implementation of the scheme for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the eleventh schedule. the projects envisaged in the operational guidelines 2006 and 2008 are same which are amongst the 29 items in the eleventh schedule of the constitution of india. the operational guidelines made by the ministry of rural development, government of india entrusts the implementation of the scheme to the village panchayats. the coordination, however, has been handed over to the state government by the schemes to be made by the state government under section 4(1) of the act. the projects are to be selected by the village panchayats in accordance with their local needs for which the scheme reserves 40% for building assets of which 50% of the assets shall be implemented by village panchayats. the coordination including technical supervision for which empanelment of engineers was provided linking the costs of technical supervision with the costs of projects. all the technical assistants were to be under the control of the district programme officers. although much doubt was raised whether this arrangement had adequately decentralized the implementation under the supervision of the gram panchayats, the amendment has virtually taken away the powers and have centralized them in the state. the appointment of the service provider can be cancelled only by the state even if there are any complaints at panchayat level or at zila panchayat level. the local bodies have not been given any right or method of redressal of the complaints against the technical assistants. 31. the high courts in its power under article 226 of the constitution of india can strike down a subordinate legislation, if it is ultra vires the constitution or the enabling act. in this case the scheme of part-ix of the constitution of india decentralizes the powers of socio economic development of the villagers at the grass root level in gram panchayats. the state has by the nrega endowed the panchayats with the powers and authority to enable them to have their say in the scheme to prepare the projects and for its implementation. the operational guidelines 2008 issued by ministry of rural development, government of india for implementation of rural employment guarantee scheme under nrega has provided in para 1.4 'salient features of the act' and under clause (xiii) it provides that at least 50% of works will be allotted for the gram panchayats for execution. clause (xiv) provides that permissible works predominantly include water and soil conservation, afforestation and land development works. clause (xv) provides that a 60:40 wage and material ratio has to be maintained. no contractor or machinery is allowed. the planning process in chapter-4 provides for a development plan under para 4.2. para 4.4.1 provides that gram panchayat has to forward the development plan with its priorities to the programme officer for preliminary scrutiny and approval prior to the commencement of the year in which it is proposed to be executed. the programme officer has to consolidate gram panchayat proposals and the proposals of the intermediate panchayat into a block plan to be forwarded to the district programme coordinator, who will consolidate the block plans and proposals from other implementing agencies and district panchayat will approve the block wise shelf of the projects. the district programme officer will have overall responsibilities under para 4.4.4 to ensure the process of identification of works, their consolidation, and final approval of the shelf of projects. the district perspective plan of five years under para 4.4.5 part-ii has to be prepared with the features in para 4.5.3 to be village-based with the village as the unit for planning and should be holistic and diagnostic to cover all aspects of natural resource management along with socio-economic infrastructure requirements with analysis of poverty. the execution of the works under chapter vi provides the gram panchayats to be the implementing agencies. para 6.3 of the operational guidelines is relevant for the purposes of the case and is quoted as below:6.3. implementing agencies 6.3.1 the gram panchayat is the single most important agency for executing works as the act mandates earmarking a minimum of 50 per cent of the works in terms of costs to be executed by the gram panchayat. this statutory minimum, up to hundred percent of the work may be allotted to the gram panchayat (gp) in the annual self of projects (sop). 6.3.2 the other implementing agencies can be intermediate and district panchayats, line departments of the government, public sector undertakings of the central and state governments, cooperative societies with a majority shareholding by the central and state governments, and reputed ngos having a proven track record of performance. self-help groups may also be considered as possible implementing agencies. 6.3.3. role of line departments. the role of the line department is to give technical support in the nature of estimates, measurement and supervision of the works executed. works will be executed by job card holders. muster rolls will be maintained. no overhead charge will be given to any line department for this. i) the selection of the implementing agency, other than the gram panchayat that has a mandatory responsibility for work execution, will be based on technical expertise resources, capacity to handle work within the given time frame, and proven track record for work, and the overall interests of beneficiaries. the selection of the implementing agency will have to be indicated in the development plan. a panel of agencies approved in order of priority may be considered to ensure that alternative options are available in the event where an agency fails to execute the work. this will ensure that works do not suffer because of individual agency failure, and that work seekers get employment on time. ii) if any implementing agency (including a gram panchayat) is unable to execute the works allotted within 15 days, it will immediately inform the programme officer, who will entrust it to another agency, chosen from a panel of agencies approved project-wise for that block in the development plan for the district. if a gram panchayat does not execute a work within 15 days, the programme officer will direct the applicants to a work being executed by another implementing agency. the time for various activities must be fixed according to the needs of workers, particularly migrant workers. iii) as stated in the act (schedule-i), contractors cannot be engaged in any manner in the execution of works.32. the operational guidelines 2008 do not provide for participation of any outside agency for the purposes of preparation of projects and their implementation. there is no outsourcing for preparation, sanction, execution and implementation of the works and the payment to be made to the job card holders. in the policy document of the central government there is a complete prohibition to engage any contractor for any purposes. nregz has completely banned contractors, in any of its schemes and its implementation. 33. a service provider is nothing but a contractor, with the alleged experience in engaging and providing men, which in the present case include additional programme coordinator, technical assistants and computer programmers. the offending amendments of the scheme providing engagement of technical assistants and other staff through service provider is apparently ultra vires the object, purpose and the provisions of the enabling act. 34. in gadde venkateswara rao v. government of a.p. : [1966]2scr172 the supreme court held that the rules framed by the andhra pradesh government providing that the government had to establish a primary health centre on the recommendations of the panchayat samithis, reduced the samithis to a mere recommending authority. the rules were held to be violative of section 18 of the andhra pradesh panchayat samithis and zila parishads act, 1959. sub section (2) of section 18 provided that the panchayat samithis shall exercise powers and perform functions as specified in the schedule. the statutory powers to establish and maintain primary health centres were vested in the samithis. 35. in bimal chandra banerjee v. state of madhya pradesh : [1971]81itr105(sc) the rule requiring the license vendors to pay excise duty on unsold liquor by them below the ceiling limit was held to be ultra vires the m.p. excise act 1915 authorising the levy of excise duty of alcoholic liquors. in himat lal k. shah v. commissioner of police, ahmedabad : [1973]2scr266 rule 7-a made under section 33 of the bombay police act, empowering commissioner or the district magistrate to refuse permission to hold the meeting was held by the supreme court to be beyond powers conceded by the act in regulating the meeting and not for totally banning them. 36. under the advocates act the qualifications and conditions entitling an advocate to vote in an election of members of the state bar council are required to be prescribed by the bar council of india. the state bar council has no such powers. it has to only prepare and revise electoral rolls. it could not have prescribed disqualification, qualification and conditions subject to which an advocate could find his name in the electoral roll. the supreme court of india in bar council of delhi v. surjeet singh : [1980]3scr946 held that the provisions made by the state bar council were beyond the rule making powers of the state bar council and that the approval of the state bar council of india did not cure defects because such approval could not confer powers on the state bar council. in v. sudeer v. bar council of india : [1999]1scr1048 the supreme court did not approve the bar council of india prescribing additional qualifications of pre-enrolment training inclusive of seeking adjournments and exemptions. the advocates act entrusts the imparting of legal education to the universities and law schools. the bar council of india could not itself impart such education, though it could lay down standard thereof. 37. in agricultural market committee v. salimar chemicals works limited : air1997sc2502 the supreme court held that a delegatee cannot widen or strict the scope of the act or its policy and principles. the a.p. agricultural produce and livestock markets act limited the rebuttal of presumption was only of factor namely moving of the notified agricultural produce out of the notified area. the rules made under the act, however, provided that such rebuttal presumption would be available, if the commodity was weighed, measured or counted. it was held that the additional presumptions were ultra vires the rule making powers. 38. shri jaideep mathur, additional advocate general is correct in submitting that the court should exercise judicial restraint while judging the validity of the delegated legislation. he submits that the scope of interference with the delegated legislation is limited in comparison to the administration action. the delegated legislation, however, should not be ultra vires the provisions of the object and purposes of the act under which it is notified. the delegated legislation may be statutory in character. it however should not violate the provisions of the parent statute. in hinsa virodhak sangh v. mirzapur moti kuresh jamat : air2008sc1892 the supreme court, while examining the validity of the resolutions passed by the municipal corporation under the bombay provincial municipal corporation act, 1949, closing slaughter house on jain festivals, held that the resolutions did not violate the parent statute or any constitutional provisions. there is a presumption in favour of the constitutionality of statute as well as delegated legislation and it is only when there is a clear violation of a constitutional provisions or or a parent statute in case of delegated legislation beyond reasonable doubt that the court should declare it to be unconstitutional. the supreme court felt that if the closure was ordered for considerable period of time, it could be declared as unconstitutional. the closure of slaughter houses for a few days only out of respect for the sentiment of the jain community, which has large population in gujarat was valid. 39. in novva ads v. secretary, department of municipal administration and water supply : air2008sc2941 , the supreme court relied upon state of m.p. v. bhola : [2003]1scr906 and st. johns teachers training institute v. national council for teacher education : [2003]1scr975 in holding that a delegated legislation has to be read in the context of the primary statute under which it is made and in case of any conflict, it is primary legislation that will prevail. in para 10 in st. johns teacher's training institute the supreme court held as follows:10. ...delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. rules and regulations made by reason of the specific power conferred by the statutes to make rules and regulations establish the pattern of conduct to be followed. regulations are in aid of enforcement of the provisions of the statute. the process of legislation by departmental regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of rules and regulations is conferred by parliament. the main justification for delegated legislation is that the legislature being overburdened and the needs of the modern day society being complex, it cannot possibly foresee every administrative difficulty that may arise after the statute has begun to operate. delegated legislation fills those needs.40. the scheme framed by the state government to carry out the purposes of the act and in terms of the policy of the central government in operational guidelines 2008 for implementing the ambitious scheme of nrega, had provided for appointment of technical assistants with proportionate burden upon costs of the projects to be prepared in accordance with the desires and aspirations of the people of the gram panchayats, and to supervise all the projects including 50% of the projects which are to be directly undertaken by the gram panchayats. in case of any misconduct such technical assistants can be removed by the district programme officers on the complaint made by the gram panchayats. the centralization of selection, the supply and deployment of the technical assistants at the regional level and its control at the state level will not only affect the rights of those persons, who have been appointed as technical assistants on contract without the limitation of the period, and subject to good conduct, but will also remove them far away from the control of the gram panchayats. the fixation of their salary and the number of personnel in the district will cause a perennial burden on the scheme, even if there are no projects to be implemented. the state government has not placed before the court the costs of implementation of the projects in the previous years as compared to the costs, which may have to be borne by the state government in fixing the emoluments and number of technical assistants in a district. the fixation of the amount to rs. 4000/- for a technical assistant at village panchayat level and rs. 8000/- at block level is not envisaged either in nrega or in the operational guidelines, 2006 or 2008 providing for the policy for implementing the act. the engagement of a service provider with an additional burden of almost 2.33% as service charges and further burden of service tax on the entire wage bill of the personnel to be provided by the service provider will fix a permanent liability on the scheme and on the amounts allocated to the districts, blocks and panchayats, of which 50% of the works have to be undertaken and implemented by the gram panchayats. 41. para 6.4.4 of the operational guidelines, providing that all works must be executed by the workers, who have job cards and who have demanded works and which is necessary to avoid contractors as well para 6.3.3 (iii) provides that contractors as stated in schedule-i of nrega cannot be engaged in any manner in the execution of works. this clear mandate would certainly include technical assistants and other persons in the scheme, at all its stages. 42. there is no force in the submission of shri b.n. singh that the petitioners engaged as technical assistants without any fixed term have legitimate expectation to continue and to be regularised in the scheme. the petitioners were not engaged for any employment. they were given a contract, linked with the cost of the project for providing technical assistance including the preparation of estimate, supervision and reporting the satisfactory completion of the works. they are not employees of the state government nor can they be treated to be engaged in any manner for the purposes of future employment. they are required to provide technical assistants on a fixed amount based upon and linked to the cost of the project. 43. on the aforesaid discussion and the reasons given in the judgement, the court finds that clauses 4.5, 5.5, 5.5a, 5.9, 8.1, 8.2, 8.3, 8.4, in the u.p. rural employment guarantee (second amendment) scheme 2008, are ultra vires the provisions of the national rural employment guarantee act, 2005 (nrega), and policy of the central government to implement the act contained in the operational guidelines of the years 2006 and 2008. 44. all the writ petitions are consequently allowed. para 5.4, 5.5, 5.5a, 5.9, 8.1, 8.2, 8.3 and 8.4 of the u.p. grameen rozgar guarantee (dwatiya sansodhan) yojana 2008 notified on 23.10.2008 are declared to be ultra vires the provisions of the nrega and operational guidelines of the years 2006 and 2008, made by the department of rural development, ministry of rural development, government of india, new delhi for implementing the nrega. the respondents are restrained from implementing the government orders dated 23.10.2008, 5.2.2009 and 9.2.2009 for appointment of service providers and for engagement of technical assistants provided by the service providers.