MOHD GULAM JILANI BEG Vs. UNION OF INDIA

JUDGEMENT

(1.) SHRI Ram Sakal Mishra has accepted notice on behalf of Union of India. Learned standing counsel appears for respondent nos. 2 to 5. The respondents are granted four weeks to file counter affidavit. The petitioners will have one week thereafter to file rejoinder affidavit. List on 25.5.2009. So far as prayer No. 1 is concerned, the Notification dated 23.10.2008, by which Second Amendment to the U.P. Rural Employment Guarantee Scheme 2007, was notified, specially with regard to paras 5.5, 5.5, 5.5A, 5.9, 8.1, 8.2, 8.3 and 8.4, has been declared to be ultra vires in Writ Petition No. 3513 of 2009, Jai Bahadur Yadav vs. Union of India and Ors, after exchange of affidavits and after hearing Additional Solicitor General of India and Additional Advocate General, State of U.P and that entire bunch of writ petitions were disposed of on 20.3.2009, with following directions: "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." With regard to the second prayer, it is contended that by order dated 22.3.2009 relying upon Government Order dated 3.3.2009, the Chief Development Officer, Mahoba has directed that petitioners' services were required to continue only upto 31.3.2009 and that thereafter the services of 45 technical assistants empanneled as Accredited Engineers for implementation of the various projects are not required. Learned counsel for the petitioners would contend that the Government Order dated 3.3.2009 was issued to implement para-5.4 of the Notification dated 23.10.2008 providing for appointments after 1.4.2009 or after the period of contract of technical assistants comes to an end. He would submit that since the Government Order dated 3.3.2009 was issued to enforce para 5.4 of the Notification dated 23.10.2008, which has been quashed by this Court, the petitioners' disengagement was not justified. Further the petitioners have relied upon the contract on which the petitioners were appointed as Accredited Engineers. This contract does not provide for any fixed period. The subsequent contracts provided that they shall be initially appointed for a period of one year subject to renewal and these contracts were extended subject to good conduct and satisfactory performance of the petitioners' duties under NREGA. In Writ Petition No. 1807 (S/S) of 2009 Arjun Singh and others vs. Union of India and others, learned Single Judge hearing the matter at Lucknow High Court has relied upon Jai Bahadur Yadav's case and has issued directions on 25.3.2009, that the petitioners' services (who are similarly situate) will not be dispensed with until further orders. He has also directed that if they have already been disengaged, then they shall be reengaged and shall be allowed to continue on the said post and will be allowed the honorarium which was being paid to them. The terms and conditions of contract will remain the same as they were governed by original unamended scheme under which they were engaged. Taking into account the fact, that in Jai Bahadur Yadav's case para 5.4 of the Notification dated 23.10.2008 was set aside on the ground that the NREGA and the schemes do not provide for engagement of any contractors for any purposes, the interim orders are issued to the petitioners in the same terms as in Writ Petition No. 1807 (S/S) of 2009 Arjun Singh and others vs. Union of India and others, pending in the High Court at Lucknow. Until further orders the petitioners' services shall not be dispenses with. If they have already been disengaged, then they shall be reengaged and shall be allowed to continue on the same terms and conditions on which they were engaged on contract. Their services shall continue subject to their good conduct, and satisfactory performance on the payments on percentage linked to the cost of project as provided in the contract.