IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR SB CIVIL WRIT PETITION NO.5760/2010 Dulhe Ram Versus State & others DATE OF ORDER : 26/04/2010 HON'BLE MR. JUSTICE AJAY RASTOGI ***
Mr. Arvind Gupta, for petitioner.
Petitioner, who is an elected Sarpanch of Gram Panchayat- Sop, Panchayat Samiti- Nadoti, District- Karauli, has filed the instant writ petition assailing the Circular issued by the State Government dt.27/07/2009 on the premise that all development works, planning & implementation of the Scheme under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (Act, 2005) are to be implemented only through Gram Panchayats at the village level and the present circular issued by the State Government, holding the Panchayat Samitis to be competent for development work, planning & implementation of such Schemes is in violation of S.13 of the Act, 2005, and so also contrary to the provisions of the Rajasthan Panchayati Raj Act, 1994.
Counsel further submits that under the Rajasthan Panchayatiraj Act, 1994, Panchayati raj Institutions have been established for rural areas i.e. at village level- Gram Panchayat; at block level- Panchayat Samiti and at district level- Zila Parishad; and the powers and duties have been separately defined under the Act, 1994. But under the Circular, impugned herein, the powers have been vested with the Panchayat Samiti, and the authority is not competent to issue such administrative Circular which is in contravention of provisions of the Act, 2005. In support, Counsel has relied upon the judgment of the coordinate Bench of this Court in Jagdish Singh & Ors Vs. Sanvarmal (2008(3) WLC (Raj) 648.
Before considering the submissions, provisions relevant for present purpose are taken note of. Sub-Section (g) of Section 2 of the Act, 2005 provides ad under:-
2(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 organization authorized by the Central Government or the State Government to undertake the implementation of any work taken up under a Scheme.
S.13 provides principal authorities for planning & implementation of Schemes under the Act, 2005 ad infra:
13. Principal authorities for planning and implementation of Schemes.-
(1) The Panchayats at district, intermediate and village levels shall be the principal authorities for planning and implementation 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.
S.16 postulates responsibilities of the Gram Panchayats ad infra:
16. Responsibilities of the Gram Panchayats.-
(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 else where to the residents of the Gram Panchayat.
(7) The Gram Panchayat shall allocate employment opportunities among the applicants and ask them to report for work.
(8) The works taken up by a Gram Panchayat under a Scheme shall meet the required technical standards and measurements.
Keeping in view the Scheme of the Act, 2005 quoted supra, what has been urged by Counsel in the opinion of this Court is without substance for the reason that the Act, 2005 has been basically enacted with the object to provide for the enhancement of livelihood security of the households in rural areas of the country by providing atleast 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.
All the projects under the Scheme providing employment to applicants are to be implemented through a Programme Officer appointed U/s 15(1) of the Act, 2005; and at the same time, there shall be a district programme co-ordinator U/s 14(1) for implementation of the scheme in the district. S.2 (g) defines implementing agency through which State Govt. undertakes implementation of any work taken up under the Scheme, and which includes department of the Central Government or State Government, Zila Parishad, Panchayat at intermediate level, Gram Panchayat or any local authority or Government undertaking or Non-Governmental organization (NGO) authorized by Central Government or State Government, as the case may be.
At the same time, S.13 lays down principal authorities for planning & implementation of Schemes. Scheme has been defined U/s 2(p) which means a Scheme notified by State Government under sub-section (1) of S.4, which are to be implemented by Panchayats at district, intermediate & village levels. U/s 13(3), it is the function of the Panchayat at intermediate level to supervise and monitor the projects taken up at the Gram Panchayat and block level and U/s 13(4) the District Programme Coordinator is required to assist the Panchayat at the district level in discharging its function under this Act.
Functions of District Programme Co-ordinator has been defined U/s 14(3) and so also of Programme Officer U/s 15(5) of the Act, 2005. S.14(3) clearly postulates that the District Programme Coordinator shall assist the district panchayat in discharging its functions while at the same time, U/s 15(5), the programme officer shall monitor projects taken up by the Gram Panchayats and other implementing agencies within the block. However, as provided U/s 15(6), programme officer will function under the direction, control and superintendence of the district programme coordinator; while S.15 (7) provides that State Government may, by order, direct that all or any of the functions of a programme officer shall be discharged by the Gram Panchayat or a local authority, which clearly postulates that for every block, State Government shall appoint Programme officer for implementing the scheme in that block.
However, it is the responsibility of Gram Panchayats U/s 16 for identification of projects and to take up any project under a Scheme within its area to be taken up & duly sanctioned by the programme officer. All the projects under the Scheme have to be ultimately regulated by the programme officer under the direction, control & superintendence of the district programme co-ordinator. U/s 18 of the Act, 2005, it is the ultimate responsibility of State Government in implementing the Schemes through district programme co-ordinator or programme officer.
The impugned Circular dt.20/07/2009 issued by State Government lays down guidelines for being uniformly followed for inviting open tenders by Panchayat Samitis/ Gram Panchayat, as the case may be. In the opinion of this Court, guidelines under Circular impugned being a policy decision cannot be said to be in violation of provisions of the Act, 2005. The legislature has made a specific distinction in regard to the projects under the Scheme notified U/s 4(1) of the Act and the role for being played by Gram Panchayats for implementation by the principal authority as provided U/s 2(g) of the Act, 2005.
As regards submission made in regards to institutions of self Government established under Rajasthan Panchayatiraj Act, 1994, suffice it to say that indisputably Gram Panchayats, Panchayat Samitis & Zila Parishads certainly have their independent legal status; but the Schemes covered under the Act, 2005 being a Central legislation, have to be implemented and executed only in terms of provisions U/s 13 through its implementing agency as defined in S.2 (g) of the Act, 2005. In the opinion of this Court, policy having been laid down under Circular impugned is nothing but general guidelines for being followed by the authority competent while initiating open tender for various kinds of purchases, which is not in contravention of the provisions of the Act, 2005 nor does it in any manner supplant either of its provisions which may call for interference in writ jurisdiction of this Court U/Art.226 of the Constitution. This Court finds no justification to entertain instant petition.
Consequently, writ petition fails and is hereby dismissed.
[AJAY RASTOGI], J.
K.Khatri/Raghu/p.9/
5760CW2010Apr26DsNarega.doc