ARVIND KUMAR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) LEARNED standing counsel appears for respondent nos. 1, 2, 3, & 5. Shri Anuj Kumar has accepted notice on behalf of respondent nos. 4. The respondents are granted four weeks to file counter affidavit. The petitioner will have one week thereafter to file rejoinder. List on 25.5.2009. Shri H.P. Dube, learned counsel for the petitioner submits that the Government Order dated 3.7.2006 provides for procedure for taking action against the Panchayat Mitra. Clause-7-Cha of the Government Order dated 3.7.2006 provides that the Gram Panchayat shall have complete administrative control over the Panchayat Mitra. If his work and conduct is not satisfactory, the Gram Panchayat can take proceedings against him. He will be given a show cause notice and if any reply is given, two-third members of the Gram Panchayat, after considering his reply, may cancel his appointment after giving him one month's notice or one month's honorarium in lieu thereof. The Panchayat Mitra removed by following the procedure shall not be given another opportunity of hearing. By the second amendment to the U.P. Rural Employment Guarantee Scheme 2007 vide Notification dated 23.10.2008, clause-9.3 has been added to the scheme and provides that if the work and conduct of the Gram Rozgar Sewak is not satisfactory, the Gram Pradhan can remove him. If the Gram Pradhan does not remove him, he shall be held responsible and would be required to submit his explanation to the Block Development Officer. The contract of appointment between the petitioner and Gram Pradhan provides in paragraph-5 that even during the period of contract, the work and conduct of Panchayat Mitra is found to be unsatisfactory and if he is found to be engaged in any misconduct, the contract can be terminated by the Gram Panchayat at any time after giving him an opportunity of hearing for which the Panchayat Mitra will not have any objection. Under the U.P. Rural Employment Guarantee Scheme 2007 made under Section 4 (1) of the National Rural Employment Guarantee Act, 2005, the employment of the Panchayat Mitra now known Gram Rozgar Sewak is contractual in nature. He is not a civil servant within the meaning of Article 311 of the Constitution of India. It is contended on behalf of respondents that the Government Order dated 3.7.2006 is referable to Article 162 of the Constitution of India, whereas U.P. Rural Employment Guarantee Scheme 2007 made under Section 4 (1) of the National Rural Employment Guarantee Act, 2005 is a piece of subordinate legislation and is statutory in nature. This writ petition calls for a question to be decided by the Court as to whether the second amendment of the U.P. Rural Employment Guarantee Scheme 2007 notified on 23.10.2008 will override the Government Order dated 3.7.2006, so far as the procedure of terminating contract of Panchayat Mitra (Gram Rozgar Sewak) is concerned. In any case since the petitioner is not a civil servant, at best, he will be entitled to one month's salary and damages for terminating his services, if the exercise of power is found to be illegal and arbitrary. The petitioner does not have a right to any interim order during the pendency of the writ petition. LEARNED counsel for the petitioner contends that the petitioner has not been paid his honorarium from January, 2008 to till date his contract was terminated on 10.11.2008. In case the petitioner has not been paid his honorarium, the respondent no. 2 shall pay the same to the petitioner after verifying his work. The payment of the arrears of honorarium will not give any right to the petitioner to continue to work as Gram Rozgar Sewak.