STATE OF U P Vs. SHIV MANORATH SHUKLA

JUDGEMENT

(1.) This appeal is arising out of the judgment and order passed by the learned Single Judge on 07th December, 2010 in Civil Misc. Writ Petition No. 56644 of 2010 (Shiv Manorath Shukla and Ors. v. State of U.P. and Ors.), whereunder the policy of the State Government as contained in the Government Order dated 25th August, 2010 regarding holding of fresh selections for the appointment of Gram Rojgar Sewak (Village Employment Worker) after every three years was turned down, with a direction to renew such work after expiry of such period for one year at a time subject to satisfactory work.

(2.) According to us, condition of regular service either on permanent basis or on temporary basis or on ad hoc basis or in lien or in leave vacancy etc. arising out of contingency are required to be governed by one policy, which cannot be equated with the policy of contractual service where the tenure is fixed as against some emoluments to be paid. Learned Single Judge explained by the order impugned that the policy decision will not be interfered with normally but where the policy decision as reflected in a statutory rule pertains to subordinate legislation, indisputably the same would be amenable to judicial review relying upon a judgment of the Supreme Court in A. Satyanarayana and Ors. v. S. Purushotham and Ors., 2008 5 SCC 416. In this regard learned Single Judge has also made reference to the judgments of the Supreme Court in Ugar Sugar Works Ltd. v. Delhi Administration and Ors., 2001 AIR(SC) 1447; Union of India v. Dinesh Engineering Corporation and Anr., 2001 8 SCC 491 and Union of India and Anr. v. International Trading Company and Anr., 2003 5 SCC 437.

(3.) According to us, each and every case has its own factual strength to absolve applicability of law. In the instant case, under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (hereinafter in short called as the "Act") a scheme was formulated with the object to provide at least minimum number of employment to the maximum number of rural adults. The Act has been promulgated with effect from 05th September, 2005 to provide for the enhancement of livelihood security of the households in rural areas of the country by providing at least one hundred days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work and for matters connected therewith or incidental thereto. In order to implement that employment guarantee scheme, the State Government by the pen of appropriate Secretary has issued a Government Order dated 25th August, 2010 providing a condition that the persons, who are to be deployed as Gram Rojgar Sewak as called thereunder, will be deployed maximum for a period of three years as per earlier Government Order dated 23th November, 2007 and thereafter new one will be selected and deployed to discharge similar work. However, at the time of fresh selection the authority concerned will also consider the nature of work discharged by the erstwhile Gram Rojgar Sewak to give preference, if any. In the similar circumstances, a Division Bench of this Court in the judgment in Smt. Geeta Devi v. Uma Shanker Yadav and Ors., 2010 7 ADJ 169 (DB), has held that no legal right is vested to such Gram Rojgar Sewak to claim continuance. Once the contract of engagement has expired and admittedly there was no other extension possible or actually made under any law for the time being in force, there was no occasion to pass any interim order having impact of continuance of service as Gram Rojgar Sewak and thereby, such order, as was impugned in that matter, being unsustainable in nature was set aside by such judgment. We find that though such reference was made before the learned Single Judge on the part of the State by saying that the Respondents-writ Petitioners have no vested right to continue but the learned Single Judge distinguished such Division Bench judgment only on the factual premise that in such case tenure was already expired, therefore, the question of removal lost significance. According to us, learned Single Judge instead of proceeding with the ratio of such judgment with regard to right of an incumbent about the fixed period of contractual service, wrongly entered into the factual premise of the same. Moreover, when the Government Order follows the objects and reasons of the Act to provide at least minimum number of employment to the maximum number of rural adults, any contrary decision in connection thereto will give perpetuity of service of an individual depriving the others, thereby making the scheme propounded under the Act mockery. The basic question hereunder is whether the nature of work required to be discharged by the Respondents-writ Petitioners is contractual or regular in nature. If it is contractual in nature and if there is no fixed period as provided in the Act leaving aside guarantee of at least 100 days of work, providing three years' deployment as Gram Rojgar Sewak and thereby directing such worker to contest with others to have priority on the basis of his satisfactory work for the future is correct application of equity by the State. Unless and until such restriction is imposed, only a group of adult members of households will be beneficiary in the place and instead of entire households of the locality.