Allahabad High Court
Harendra Yadav And 56 Others vs State Of U.P. And 14 Others on 12 December, 2017
Bench: Sudhir Agarwal, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 28.11.2017 Delivered on 12.12.2017 Court No. - 34 1. Case :- WRIT - A No. - 46769 of 2017 Petitioner :- Harendra Yadav And 56 Others Respondent :- State Of U.P. And 14 Others Counsel for Petitioner :- Shantanu Khare, Akhilesh Kumar Singh, Ashok Khare Counsel for Respondent :- C.S.C., Sanjay Kumar Om, Shashi Nandan 2. Case :- WRIT - A No. - 46935 of 2017 Petitioner :- Satish Kumar Srivastava And 57 Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Gunjan Sharma,Namit Kumar Sharma Counsel for Respondent :- C.S.C. 3. Case :- WRIT - A No. - 45462 of 2017 Petitioner :- Lalman Kushwaha And 25 Others Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Munna Tiwari,Sanjay Kumar Counsel for Respondent :- C.S.C. 4. Case :- WRIT - A No. - 45454 of 2017 Petitioner :- Hem Narayan Chaurasia And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Manoj Kumar Maurya Counsel for Respondent :- C.S.C.,Sanjay Kumar Om 5. Case :- WRIT - A No. - 50101 of 2017 Petitioner :- Smt. Rambha Chauhan And 9 Ors. Respondent :- Union Of India And 4 Ors. Counsel for Petitioner :- Kanhaiya Lal,Mohd. Isa Khan Counsel for Respondent :- C.S.C.,Shyam Singh Sengar 6. Case :- WRIT - A No. - 51420 of 2017 Petitioner :- Smt. Meena Devi And 21 Others Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Kanhaiya Lal,Mohd. Isa Khan Counsel for Respondent :- C.S.C. 7. Case :- WRIT - C No. - 46985 of 2017 Petitioner :- Megh Singh And 12 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Alkesh Singh Counsel for Respondent :- C.S.C.,Sanjay Kumar Om 8. Case :- WRIT - C No. - 50205 of 2017 Petitioner :- Bhupendra Kumar Dixit And 70 Others Respondent :- State Of U.P. And 32 Others Counsel for Petitioner :- Kumar Anish,Beenu Singh Counsel for Respondent :- C.S.C.,Sanjay Kumar Om 9. Case :- WRIT - C No. - 50316 of 2017 Petitioner :- Dharmendra Kumar And 14 Others Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Ram Kumar Dubey Counsel for Respondent :- C.S.C. 10. Case :- WRIT - C No. - 51675 of 2017 Petitioner :- Rajveer Singh And 49 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Alkesh Singh Counsel for Respondent :- C.S.C. 11. Case :- WRIT - C No. - 53394 of 2017 Petitioner :- Ahivaran Singh And 7 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pawan Kumar Tiwari Counsel for Respondent :- C.S.C. 12. Case :- WRIT - A No. - 45067 of 2017 Petitioner :- Satish Chandra Maurya And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Surnedra Prasad Shukla,Nilam Shukla Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
Hon'ble Ajit Kumar,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Petitioners claimed to have worked as Members of Social Audit Teams (hereinafter referred to as the "SAT") constituted for Audit work performed under Mahatma Gandhi National Rural Employment Guarantee Scheme, have challenged circular dated 04.09.2017 issued by Director, Social Audit, U.P., Lucknow giving guidelines for selection and engagement of SAT Members including eligibility and other conditions for engagement, to the extent it provides that eligible persons should be 40 years of age on 01.04.2017 and not more than 65 years on the said date. Fixation of minimum age of 40 years has been challenged on the ground that it is arbitrary, irrational, discriminatory and violative of Articles 14 and 16 of the Constitution.
2. On behalf of petitioners Sri Ashok Khare, learned Senior Advocate assisted by Sri Akhilesh Kumar Singh, Advocate, Sri Namit Kumar Singh and Sri S.P. Shukla, Advocates have addressed this Court and other counsels for petitioners have adopted their arguments. On behalf of respondents, Sri Shashi Nandan, learned Senior Advocate assisted by Sri Sanjay Kumar Om, Advocate has addressed the Court.
3. Since basic question is common in all writ petitions, therefore, for the purpose of brief factual matrix, this Court is referring pleadings of Writ Petition No. 46769 of 2017 which has been filed by 57 petitioners led by Harendra Yadav.
4. Writ Petition No. 45067 of 2017 has been drafted in slightly different manner and case set up by petitioners is that for appointment of reserved category candidates, age limit should not be applied and fixation of age limit from 40 to 65 years is arbitrary but with regard to argument that minimum age of 40 years is arbitrary, the contentions advanced in other writ petitions have been adopted and followed.
5. Parliament enacted Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (hereinafter referred to as the "MGNREG Act, 2005"). The aforesaid Act was enacted for enhancement of livelihood security of households in rural areas of country by providing atleast 100 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. Aforesaid enactment was made as a recognition of right of earning livelihood with dignity since without such right fundamental right of life and liberty would have been a meaningless protection for real masses of country residing in rural areas having no vocational or technical qualification and mostly are engaged in unskilled work which is not available all times. MGNREG Act, 2005 provides atleast 100 days of guaranteed wage employment in a financial year to every household whose adult members volunteered to do unskilled manual work. It also envisages a cooperative partnership with Central Government, State Government, Local Bodies and Local Community. In exercise of powers under Section 24(1) of MGNREG Act, 2005, Mahatma Gandhi National Rural Employment Guarantee Audit of Scheme Rules, 2011 (hereinafter referred to as the "Audit Rules, 2011") were framed and notified on 30.06.2011. Rule 4 thereof provides for facilitation of SAT by State Government and reads as under:
"4. Social audit facilitation--(1) The State Government shall identify or establish, under the Act, an independent organization (hereinafter referred to as Social Audit Unit) to facilitate conduct of social audit by Gram Sabhas.
(2) The Social Audit Unit shall be responsible for the following, namely:-
(a) build capacities of Gram Sabhas for conducting social audit; and towards this purpose, identify, train and deploy suitable resource persons at village, block, district and State level, drawing from primary stakeholders and other civil society organizations having knowledge and experience of working for the rights of the people;
(b) prepare social audit reporting formats, resource material, guidelines and manuals for the social audit process;
(c) create awareness amongst the labourers about their rights and entitlements under the Act;
(d) facilitate verification of records with primary stakeholders and work sites;
(e) facilitate smooth conduct of social audit Gram Sabhas for reading out and finalizing decisions after due discussions;
(f) host the social audit reports including action taken reports in the public domain."
6. Vide Government Order dated 04.07.2012, a Society for Social Audit of projects under MGNREG Act, 2005 was constituted known as U.P. (Mahatma Gandhi National Rural Employment Guarantee Scheme) Social Audit Organisation (hereinafter referred to as the "Society"). Aforesaid Society is registered under Societies Registration Act, 1860 (hereinafter referred to as the "Act, 1860") and has its own Memorandum of Association and bye laws. The main objectives of Society are:
(i) To create an enabling environment for the conduct of impartial and objective Social Audits;
(ii) To ensure that the Social Audit Process remains autonomous from main stream government administration as well as the implementing agency at all time;
(iii) To be responsible for Social Audits of the MGNREGA Schemes and other government programme/ schemes as and when entrusted by State Government of Uttar Pradesh;
(iv) To work towards building grass roots capacity (both civil societies and citizens) to conduct Social Audits;
(v) To create a resource base for conducting Social Audit as well as to evolve process to conduct Social Audit; and,
(vi) To do all such things as may be necessary, incidental or conducive to the attainment of all or any objectives of the organization.
7. State Government order dated 04.10.2012 provided revised scheme of Social Audit at District, Block and Village Panchayat level. It contemplated a District Coordinator for District level, Block Coordinator for Block level and a SAT of five members at Village Panchayat level. Minimum educational qualification for Members of SAT was prescribed as High School except the Member who is a Labour. Selection process includes an advertisement in widely circulated daily newspaper inviting applications in 15 days and completion of selection within one month. Members of SAT are entitled for honorarium of Rs. 1000/- per month. The appointment of Members of SAT is for one year. Earlier selection was made by advertising age for selection between 18 to 62 years. The Members of SAT selected and recruited for the year 2015-16 completed tenure on 31.03.2016. Thereafter for appointment of SAT for the year 2016-17, Director, Social Audit, U.P., issued circular dated 19.11.2015 and therein also, prescribed age for recruitment was 18 to 62 years on 01.04.2016.
8. Petitioners were selected and appointed as Members of SAT in various years. Some persons initially appointed in 2013-14, continued thereafter and some were appointed subsequently.
9. Again in Financial Year 2017-18 Director, Social Audit, issued circular dated 15.11.2016 and therein also prescribed age for recruitment between 18 to 62 years and tenure of said team was upto 31.03.2018. A similar circular was issued for making appointment of SAT for Financial Year 2017-18 on 02.05.2017 but therein prescribed age was altered as 45 to 65 years as on 01.04.2017. The aforesaid selection process, however, was cancelled vide circular dated 16.06.2017. Thereafter impugned circular dated 04.09.2017 has been issued wherein prescribed age is between 40 to 65 years as on 01.04.2017. Since most petitioners are below 40 years of age, therefore, they have rendered ineligible in aforesaid selection and that is how these writ petitions have come up challenging aforesaid circular in so far as it prescribe minimum age as 40 years for appointment as Members of SAT.
10. It is argued on behalf of petitioners that minimum qualification for Member of SAT is only High School, which, one can acquire at a age of even less than 18 years, hence prescribing higher age for recruitment, i.e., 40 years, though earlier appointments were made with minimum age of 18 years, is wholly irrational, arbitrary and has no nexus with the object sought to be achieved, therefore, is liable to be set aside. It is also contended that persons who were earlier appointed as Members of SAT, no weightage or recognition has been given to their experience and this is also irrational and arbitrary. Learned Senior counsel for petitioners contended that there is nothing on record to show that performance of Members of SAT who were appointed earlier with age group of 18 to 62 years was not satisfactory or they lacked requisite efficiency etc., hence there is no justification for alteration in minimum age for appointment as Members of SAT in Financial Year 2017-18 and this is wholly irrational and illegal.
11. On behalf of Director, Social Audit, a counter affidavit has been filed and writ petitions have been contested by it. Basic facts are not disputed but it is said that with regard to conditions of eligibility for engagement as Members of SAT, Society being independent body has its own independent role. Members of SAT are appointed for one year. There is no provision for any extension or renewal. No right of renewal was conferred to any Member appointed with SAT at any point of time. It is basically a Social Service and not en employment under State Government or any department of State Government or any instrumentality of State Government. The initial experience of making appointment of younger people as Member of SAT showed that Members were mostly engaged in preparation of better employment and engagement. Membership of SAT was treated as a formal and temporary source of income till better permanent employment is available to them. This approach on the part of most of the members selected and appointed in SAT was not yielding desired result since Members were not able to concentrate on their work but they were more interested in preparation for better employments and Social Audit work was treated as incidental and ancillary to help them financially in interregnum period. It was also experienced that volunteers of very young age, i.e., 18 years and above had no idea of social fabric of village and needs therefor, and this was also adversely affecting formulation of future projects and awareness of programmes. Society also found a claim of sense of security on the part of persons appointed as Members of SAT inasmuch as many of them treating it to be an employment sought more attractive conditions and also raised claim for regularization. An association was formed, namely, U.P. Social Audit Mahasangh and representation was made on 03.10.2017 claiming renewal of Members already appointed else there would an indefinite hunger strike. It is in this backdrop, Governing Body of Society held its meeting on 31.03.2016 under Chairmanship of Agriculture Production Commissioner and it was decided that for Social Audit more matured and experienced persons should be engaged who have better experience of social fabric of village. Governing Body proposed to make appointments in the age group of 50 to 65 years as per the minutes dated 31.03.2016. Subsequently, it was realized that between age group of 50 to 65 years requisite number of persons may not be available, therefore, in the meeting dated 27.12.2016 it was decided to have Members of SAT in the age group of 45 to 65 years. This decision was challenged at Lucknow Bench of this Court in Writ Petition No. 12487 (S/S) of 2017 (Juglesh and others Vs. State of U.P. and others). Court disposed of writ petition vide judgment dated 31.05.2017 with observation that decision of age group may be reconsidered and also observed that till decision is taken existing Members of SAT would continue though it will not confer any right upon then to claim continuance under the arrangement having a right on post. Matter was reconsidered and in the meeting dated 28.06.2017, Society has taken a decision for appointment of Members of SAT between age group of 40 to 65 years. Accordingly it has been communicated to all concerned by circular dated 04.09.2017. Advertisements have been issued by concerned District Magistrates pursuant to circular dated 04.09.2017 but due to interim orders passed by this Court, process could not be completed.
12. It is argued on behalf of respondents that there is no employee and employer relationship between Members of SAT and Society. Appointment is virtually a fixed tenure contract for which honorarium is paid. Neither anyone can claim benefit of experience for putting forth his right for renewal nor the mere fact that work and performance is satisfactory, any other right could have been claimed by any Member or similarly placed persons. There is no sanctioned post of Members of SAT but it is constituted having five members, therefore, it is a kind of nomination. For the work performed, honorarium is paid recognizing social work performed by Members. The policy of Government is to involve maximum number of villagers and to educate them by informing about Government welfare projects. Every time, therefore, preference is given to new Members so that they may be trained and made aware about Social Audit and projects. The object is to expand information, awareness and education about welfare schemes to maximum numbers and that is why engagement is made for one year only, everytime, and thereafter fresh selection is made. By the very nature of job requirement, experienced and matured persons are required who are not in search of any other employment and may perform their requisite social work with more concentration and devotion without sharing their time for another employment or preparation for another employment. It is said that whenever a cut off date or age is determined, anyone can raise an objection thereto but by itself it cannot be said to be arbitrary and irrational particularly when age has been fixed as stated in counter affidavit after due deliberation in the meetings held by Executive Committee of Society.
13. In the rejoinder affidavit, facts stated in writ petition, are reiterated. It is also pointed out that recruitment for various civil services like Indian Administrative Service, Indian Police Service etc. is at the minimum age of 21 years, then prescribing 40 years minimum age for Members of SAT is patently arbitrary.
14. It in these backdrop we have to examine whether prescription of minimum 40 years of age for appointment as Member of SAT is per se arbitrary, irrational so as to justify interference by this Court or not.
15. First question in this regard would be, whether engagement / appointment as Member of SAT can be said to be an employment or service and it generates a relationship of employer employee between Members and Society.
16. There is no thumb rule to determine as to when an engagement / appointment can be said to have resulted in employer-employee relationship but various tests or factors have been applied from time to time. Relationship of master and servant is a question of fact and depends upon power of employer not only to direct what a servant is to do but also the manner in which work is to be done.
17. In Dharangadhara Chemical Works Ltd vs State Of Saurashtra, AIR 1957 SC 264 Court observed that a prima facie test for determination of relationship between master and servant is the existence of right in the master to supervise and control work done by the servant, not only in the matter of directing what work the servant is to do, but also, the manner in which he shall do his work. Court also observed that proper test is whether or not the hirer had authority to control the manner of execution of the act in question. This view was reiretated in National Aluminium Company Ltd. and Ors. vs. Ananta Kishore Rout and Ors. 2014(6) SCC 756.
18. In Short v. J. & W. Henderson, Ltd. (1946) 62 TLR 427 Lord Thankerton referred to four indicia of a contract of service, i.e., (a) master's power of selection of his service; (b) payment of wages or other remuneration; (c) master's right to control the method of doing work; and, (d) master's right of suspension or dismissal.
19. In Ram Singh and Ors. vs. Union Territory, Chandigarh and Ors. 2004(1) SCC 126, Court considered the concept of control in an employer-employee relationship and said:
"In determining the relationship of employer and employee, no doubt 'control' is one of the important tests but is not to be taken as the sole test, in determining the relationship of employer and employee all other relevant facts and circumstances are required to be considered including the terms and conditions of the contract. It is necessary to take a multiple pragmatic approach weighing up all the factors for and against an employment instead of going by the sole 'test of control'. An integrated approach is needed. 'Integration' test is one of the relevant tests. It is applied by examining whether the person was fully integrated into the employer's concern or remained apart from and independent of it. The other factors which may be relevant are - who has the power to select and dismiss, to pay remuneration, deduct insurance contributions, organise the work, supply tools and materials and what are the 'mutual obligations' between them ...." (emphasis added)
20. Recently in Balwant Rai Saluja vs. Air India Ltd. 2014(9) SCC 407, referring to various early decisions of Supreme Court and English Courts, it has been said:
"Thus, it can be concluded that the relevant factors to be taken into consideration to establish an employer-employee relationship would include, inter alia, (i) who appoints the workers; (ii) who pays the salary/remuneration; (iii) who has the authority to dismiss; (iv) who can take disciplinary action; (v) whether there is continuity of service; and (vi) extent of control and supervision, i.e. whether there exists complete control and supervision. As regards, extent of control and supervision, we have already taken note of the observations in Bengal Nagpur Cotton Mills case (supra), the International Airport Authority of India case (supra) and the NALCO case (supra). " (emphasis added)
21. In the light of above exposition of law we proceed to examine, whether engagement of Members of SAT give rise to an element of employment generating relationship of employer and employee between such Members and the Society.
22. At this stage it may also be appropriate to examine MGNREG Act, 2005. The aims and objectives of MGNREG Act, 2005 have already been referred. Its implementation is subject to notifications issued by Government of India. Section 1(3) empowers to implement MGNREG Act, 2005 in different States and different areas on different dates. The proviso, however, contemplates that entire Act shall be made effective and applicable to entire country within a period of five years from the date of enactment.
23. Section 3 guarantees rural employment to households stating that except as provided otherwise, State Government shall in such rural areas of State as notified by Central Government, provide to every household whose adult members volunteer to do unskilled manual work not less than 100 days of such work in a financial year in accordance with scheme made under said Act.
24. Section 4(1) provides that for the purposes of giving effect to the provisions of Section 3 every State Government shall, within one year from the date of commencement of MGNREG Act, 2005, by notification, make scheme for providing not less than 100 days of guaranteed employment in a financial year to every household to 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 MGNREG Act, 2005 and the Scheme.
25. Section 5 talks of conditions for providing guaranteed employment and reads as under:
"5. Conditions for providing guaranteed employment.--(1) The State Government may, without prejudice to the conditions specified in Schedule II, specify in the Scheme the conditions for providing guaranteed employment under this Act.
(2) The persons employed under any Scheme made under this Act shall be entitled to such facilities not less than the minimum facilities specified in Schedule II."
26. Sections 6, 7, 8 and 9 talks of wage rate, payment of unemployment allowance, non disbursement of unemployment allowance in certain circumstances and disentitlement to receive unemployment allowance in certain circumstances. These provisions are not relevant for our purpose hence are being skipped.
27. Section 10 talks of constitution of Central Employment Guarantee Council by Central Government by notification. The functions and duties of said Council are provided in Section 11(1) and reads as under:
"11. Functions and duties of Central Council.--(1) The Central Council shall perform and discharge the following functions and duties, namely:--
(a) establish a central evaluation and monitoring system;
(b) advise the Central Government on all matters concerning the implementation of this Act;
(c) review the monitoring and redressal mechanism from time to time and recommend improvements required;
(d) promote the widest possible dissemination of information about the Schemes made under this Act;
(e) monitoring the implementation of this Act;
(f) preparation of annual reports to be laid before Parliament by the Central Government on the implementation of this Act;
(g) any other duty or function as may be assigned to it by the Central Government."
28. Section 12 provides for State Employment Guarantee Council (hereinafter referred to as the SEGC") which is to be constituted by State Government for the purpose of monitoring and reviewing implementation of MGNREG Act, 2005 at State level. Duties and functions of SEGC are elaborated in Section 12(3) as under:
"12. State Employment Guarantee Council. .....
(3) The duties and functions of the State Council shall include--
(a) advising the State Government on all matters concerning the Scheme and its implementation in the State;
(b) determining the preferred works;
(c) reviewing the monitoring and redressal mechanisms from time to time and recommending improvements;
(d) promoting the widest possible dissemination of information about this Act and the Schemes under it;
(e) monitoring the implementation of this Act and the Schemes in the State and coordinating such implementation with the Central Council;
(f) preparing the annual report to be laid before the State Legislature by the State Government;
(g) any other duty or function as may be assigned to it by the Central Council or the State Government.
29. Section 13 lays down Principal authorities for planning and implementation of Schemes and reads as under:
"13. Principal authorities for planning and implementation of Schemes.--(1) The Panchayat 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 finalize and approve blockwise shelf of projects to be taken up under a programe 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."
30. Section 14 says that Chief Executive Officer of District Panchayat or Collector of District or any other District Level Officer of appropriate rank as the State Government may decide, shall be designated as "District Programme Coordinator". Functions of "District Programme Coordinator" are lays down in Section 14(3) and reads as under:
"14. District Programme Coordinator.--....
(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."
31. Then comes "Programme Officer" vide Section 15 which shows that State Government shall appoint at every Panchayat at intermediate level a person not below the rank of "Block Development Officer" as "Programme Officer" at the Panchayat at intermediate level. Functions of such "Programme Officer" are lays down in sub-section (5), which reads as under:
"15. Programme Officer.--......
(5) The functions of the Programme Officer shall include--
(a) monitoring of projects taken up by the Gram Panchayats and other implementing agencies within the Block;
(b) sanctioning and ensuring payment of unemployment allowance to the eligible households;
(c) ensuring prompt and fair payment of wages to all labourers employed under a programme of the Scheme within the Block;
(d) ensuring that regular social audits of all works within the jurisdiction of the Gram Panchayat are carried out by the Gram Sabha and that prompt action is taken on the objections raised in the social audit;
(e) dealing promptly with all complaints that may arise in connection with the implementation of the Scheme within the Block; and
(f) any other work as may be assigned to him by the District Programme Coordinator or the State Government."
32. Section 16 talks of responsibility of Gram Panchayats and reads as under:
"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 elsewhere 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."
33. Section 17 then provides for Social Audit of work by Gram Sabha and says that Gram Sabha shall monitor execution of work within Gram Panchayat. It also says that Gram Sabha shall conduct regular social audit of all the projects under the scheme taken up within Gram Panchayat. Every Gram Panchayat is under an obligation to make available all relevant documents including muster rolls, bills, vouchers, measurement books, copies of sanction orders etc. to Gram Sabha for the purpose of conducting social audit.
34. Section 18 lays down responsibility upon State Government in implementing Scheme to provide necessary staff and technical support as may be necessary for effective implementation of Scheme.
35. Section 19 contemplates grievance redressal mechanism and reads as under:
"19. Grievance redressal mechanism.--The State Government shall, by rules, determine appropriate grievance redressal mechanisms at the Block level and the district level for dealing with any complaint by any person in respect of implementation of the Scheme and lay down the procedure for disposal of such complaints."
36. Sections 20 and 21 talks of establishment of National Employment Guarantee Fund by Government of India and State Employment Guarantee Fund by concerned State Governments. For transparency and accountability Section 23 of MGNREG Act, 2005 reads as under:
"23. Transparency and accountability.--(1) The District Programme Coordinator and all implementing agencies in the District shall be responsible for the proper utilization and management of the funds placed at their disposal for the purpose of implementing a Scheme.
(2) The State Government may prescribe the manner of maintaining proper books and accounts of employment of labourers and the expenditure incurred in connection with the implementation of the provisions of this Act and the Schemes made thereunder.
(3) The State Government may, by rules, determine the arrangements to be made for the proper execution of Schemes and programmes under the Schemes and to ensure transparency and accountability at all levels in the implementation of the Schemes.
(4) All payments of wages in cash and unemployment allowances shall be made directly to the person concerned and in the presence of independent persons of the community on pre-announced dates.
(5) If any dispute or complaint arises concerning the implementation of a Scheme by the Gram Panchayat, the matter shall be referred to the Programme Officer.
(6) The Programme Officer shall enter every complaint in a complaint register maintained by him and shall dispose of the disputes and complaints within seven days of its receipt and in case it relates to a matter to be resolved by any other authority it shall be forwarded to such authority under intimation to the complainant."
37. Section 24 contemplates audit of accounts and reads as under:
"24. Audit of accounts.--(1) The Central Government may, in consultation with the Comptroller and Auditor General of India, prescribe appropriate arrangements for audits of the accounts of the Schemes at all levels.
(2) The accounts of the Scheme shall be maintained in such form and in such manner as may be prescribed by the State Government."
38. Section 31 confers power upon Government of India to make rules on various subjects to carry out provisions of MGNREG Act, 2005 and sub-section (2) thereof reads as under:
"31. Power of Central Government to make rules.-- .....
(2) In particular, and without the prejudice of the foregoing power, such rules may provide for all or any of the following matters, namely:--
(a) the number of representatives of the State Governments under clause (e) of sub-section (3) of section 10;
(b) the terms and conditions subject to which the Chairman and other members of the Central Council may be appointed, and the time, place and procedure of the meetings (including the quorum at such meetings) of the Central Council, under sub-section (4) of section 10;
(c) the manner in which and the conditions and limitations subject to which the National Fund shall be utilised under sub-section (3) of section 20;
(d) the rules relating to funding pattern to meet the cost of certain items under sub-section (1) of section 22;
(e) any other matter which is to be, or may be, prescribed or in respect of which provision is to be made by the Central Government by rules."
39. Section 32 confers power upon State Government to frame rules which is to be subject to the conditions of previous publication and consistent with MGNREG Act, 2005 and rules made by Central Government. Sub-section (2) details certain subjects on which State Government would have power to make rules and reads as under:
"32. Power of State Government to make rules.-- .....
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--
(a) the terms and conditions upon which eligibility for unemployment allowance may be determined under sub-section (2) of section 7;
(b) the procedure for payment of unemployment allowance under sub-section (6) of section 7;
(c) the terms and conditions subject to which the Chairperson and members of the State Council may be appointed, and the time, place and procedure of the meetings (including the quorum at such meetings) of their appointment to the State Council, under sub-section (2) of section 12;
(d) the grievance redressal mechanism at the Block level and the District level and the procedure to be followed in such matter under section 19;
(e) the manner in which and the conditions and limitations subject to which the State Fund shall be utilised under sub-section (2) of section 21;
(f) the authority who may administer and the manner in which he may hold the State Fund under sub-section (3) of section 21;
(g) the manner of maintaining books of account of employment of labourers and the expenditure under sub-section (2) of section 23;
(h) the arrangements required for proper execution of Schemes under sub-section (3) of section 23;
(i) the form and manner in which the accounts of the Scheme shall be maintained under sub-section (2) of section 24;
(j) any other matter which is to be, or may be, prescribed or in respect of which provision is to be made by the State Government by rules."
40. Various sets of rules have been framed by respective Governments but for our purposes Audit Rules, 2011 framed by Central Government are relevant and we may refer to relevant provisions thereof.
41. Aforesaid Rules show the importance of social audit in respect of implementation of scheme under MGNREG Act, 2005 and deals on the subject in detail in Rules 3 to 7, which read as under:
"3. Social audit to be part of audit of schemes.--(1) The State Government shall facilitate conduct of social audit of the works taken up under the Act in every Gram Panchayat at least once in six months in the manner prescribed under these rules.
(2) A summary of findings of such social audits conducted during a financial year shall be submitted by the State Government to the Comptroller and Auditor General of India.
4. Social audit facilitation.--(1) The State Government shall identify or establish, under the Act, an independent organisation (hereinafter referred to as Social Audit Unit) to facilitate conduct of social audit by Gram Sabhas.
(2) The Social Audit Unit shall be responsible for the following, namely: --
(a) build capacities of Gram Sabhas for conducting social audit; and towards this purpose, identify, train and deploy suitable resource persons at village, block, district and state level, drawing from primary stakeholders and other civil society organizations having knowledge and experience of working for the rights of the people.
(b) prepare social audit reporting formats, resource material, guidelines and manuals for the social audit process;
(c) create awareness amongst the labourers about their rights and entitlements under the Act;
(d) facilitate verification of records with primary stakeholders and work sites;
(e) facilitate smooth conduct of social audit Gram Sabhas for reading out and finalising decisions after due discussions;
(f) host the social audit reports including action taken reports in the public domain.
5. Social audit pre-requisites.--(1) The Social Audit shall be a process independent of any process undertaken by the implementing agency of the scheme.
(2) The implementing agency shall at no time interfere with the conduct of social audit.
(3) Notwithstanding anything contained in sub-rule (2), the implementing agency of the Scheme shall provide requisite information to the Programme Officer for making it available to Social Audit Unit at least fifteen days prior to the date of commencement of the social audit.
(4) The resource persons deployed for facilitating social audit in a Panchayat shall not be residents of the same Panchayat.
6. Process for conducting social audit.--(1) The Social Audit Unit shall, at the beginning of the year, frame an annual calendar to conduct at least one social audit in each Gram Panchayat every six months and a copy of the calendar shall be sent to all the District Programme Coordinators for making necessary arrangements.
(2) For facilitating conduct of social audit by Gram Sabha, the resource persons deployed by Social Audit Unit, along with primary stakeholders shall verify --
(i) the muster rolls, entry and payments made in the specified time period, by contacting the wage seekers whose names are entered in such muster rolls;
(ii) the work site and assess the quantity with reference to records and also quality of work done;
(iii) the cash book, bank statements and other financial records to verify the correctness and reliability of financial reporting;
(iv) the invoices, bills, vouchers or other related records used for procurement of materials to testify such procurement was as per the estimate, as per procedure laid down and was economical;
(v) any other payment made by the implementing agency from the funds of the scheme.
(3) The labourers and the village community shall be informed about the Gram Sabha conducting social audit by the resource persons as well as the Programme Officer to ensure full participation.
(4) To conduct social audit process, a Gram Sabha shall be convened to discuss the findings of the verification exercise and also to review the compliance on transparency and accountability, fulfillment of the rights and entitlements of labourers and proper utilisation of funds.
(5) All elected members of Panchayats and staff involved in implementing the schemes under the Act (including the staff of the Non-Governmental Organisations, the Self Help Groups, and disbursing agencies) shall be present at the Gram Sabha and respond to queries.
(6) The Gram Sabha shall provide a platform to all villagers to seek and obtain further information and responses from all involved in the implementation. It will also provide a platform to any person who has any contribution to make and relevant information to present.
(7) The District Programme Coordinator shall attend the Gram Sabha meeting or nominate an official of appropriate level for smooth conduct of the Gram Sabha.
(8) The social audit reports shall be prepared in local language by the Social Audit Unit and displayed on the notice board of the Gram Panchayat.
(9) The action taken report relating to the previous social audit shall be read out at the beginning of the meeting of each social audit.
7. Obligation of certain persons in relation to social audit.--(1) The Programme Officer shall ensure that all the required information and records of all implementing agencies such as, Job card register, Employment register, Work Register, Gram Sabha Resolution, Copies of the sanctions (Administrative or Technical or Financial), Work Estimates, Work Commencement Order, muster-roll issue and receipt register, muster Rolls, Wage Payment Acquittance & order, Materials - Bills and vouchers (for each work), Measurement Books (for each work), Asset Register, Action Taken Report on previous social audits, grievance or complaints register, any other documents that the Social Audit Unit requires to conduct the social audit process are properly collated in the requisite formats; and provided, along with photocopies, to the Social Audit Unit for facilitating conduct of social audit at least fifteen days in advance of the scheduled date of meeting of the Gram Sabha conducting social audit.
(2) The information referred to in sub-rule(l) shall be publically available at the same time and the photocopies shall be available at nominal cost.
(3) Every District Programme Coordinator or any official on his behalf, shall, --
(a) ensure that all records for conduct of social audit are furnished to the Social Audit Unit by implementing agencies through the Programme Officer;
(b) ensure that corrective action is taken on the social audit report;
(c) take steps to recover the amount embezzled or improperly utilised; and issue receipts or acknowledgement for amount so recovered;
(d) pay wages found to be misappropriated, within seven days of the recovery of such amount, to the wage seekers;
(e) maintain a separate account for amounts recovered during the social audit process;
(f) ensure that the appropriate action (including initiating criminal and civil proceedings or termination of services) is initiated against individual or class of individuals or persons who misutilised or embezzled the amount meant for the schemes under the Act.
(4) The State Govt. shall be responsible to take follow up action on the findings of the social audit.
(5) The State Employment Guarantee Council shall monitor the action taken by the State Government and incorporate the Action Taken Report in the annual report to be laid before the State Legislature by the State Government.
(6) The costs of establishing the Social Audit Unit and conducting social Audit shall be met by the Central Government as a central assistance in accordance with the instructions issued in this regard."
42. Work of Social Audit Unit, from perusal of aforesaid rules, makes clear that it is perennial in nature but different from process of implementation of scheme. The basic objective of the Act is to provide employment opportunities for certain number of days in a year so that unemployed deprived poor people who find it difficult to earn livelihood and maintain themselves and their family may gracefully earn livelihood and this is in furtherance of right to life and liberty guaranteed under Article 21 of Constitution which means a graceful honourable life and not a mere animal like existence. For effective implementation of aforesaid objective, various provisions have been made authorizing framing of scheme by concerned State Governments and monitoring, supervision and implementation of such scheme at different levels. At Gram Panchayat level basically District Officers in connection with Panchayat department have been involved besides concerned Panchayats. For maintaining transparency and accountability, a specific provision has been made in MGNREG Act, 2005 involving District Programme Coordinator and all implementing agencies in District. Audit of all the schemes at all levels is the statutory responsibility of Central Government in consultation with Comptroller and Auditor General of India. State Governments while framing schemes have made provisions for local level audits of Gram Sabhas and such audit is termed as "Social Audit". This is governed by Rules 3 to 7 of Audit Rules, 2011.
43. There is nothing in statute which contemplates creation of regular cadre of SAT so as to create a permanent employment in furtherance of its anxiety in ensuring transparency and accountability in implementation of scheme at Gram Sabha level by having Social Audit at such level. It is also not the case of petitioners that any cadre of Members of SAT has been created or posts have been sanctioned in any particular pay scale and recruitment and appointments are provided under any statutory provision. Responsibility of constituting Social Audit has been conferred upon Society by State Government under State since Social Audit is part of scheme and looking to the fact that SAT is not supposed to do a day-to-day work, it has made provisions for appointment of individuals as Members of SAT engaging them on annual basis with further objectives of spreading awareness of various schemes amongst rural people etc. as detained in Rule 4 of Audit Rules, 2011. Thus we have no hesitation in holding that appointment of Members of SAT under the scheme is not an appointment on a civil post and an incumbent appointed cannot be said to be holder of civil post. It is a contractual appointment under a scheme and has to be governed by the provisions made from time to time by Competent Authority.
44. It is in this backdrop, now we have to examine, whether prescription of minimum age of 40 years for appointment of Members of SAT can be said to be per se arbitrary and discriminatory.
45. As we have already discussed, earlier appointments were made within the age group of 18 to 65 years and that continued for 2-3 years. It is always open to policy framers to change their policy in the light of their experience. Looking to responsibilities and objectives of SAT we cannot simply reject contention of respondents that incumbents who are to be appointed must have some experience and exposer which may help in effective observance of responsibilities, duties and obligations which such Members have to discharge, which also includes responsibilities described in Rule 4(2) of Audit Rules, 2011.
46. Prescription of minimum age per se is not arbitrary. It does not confer any right upon the persons fulfilling aforesaid qualification that the policy makers cannot provide any further condition in making appointment if such condition is reasonable and has nexus to the object sought to be achieved. The respondents in increasing minimum age from 18 to 40 years have given reasons that younger persons were more involved in completion of their education, better employment opportunities etc. and, therefore, not able to concentrate on their functioning as Members of SAT and to effectively discharge responsibilities provided under statute. Further experience of policy makers shows that such Members must have some exposer and experience for efficient discharge of functions. These reasons given by respondents cannot be said to be imaginary, fictional or per se arbitrary. These reasons, we find, also commensurate to requirements of responsibilities of Social Audit Units as contemplated in statute which we have already discussed above.
47. Whenever a date or age is prescribed, it has to be one chosen by policy makers and decision taken by policy makers in this regard in judicial review cannot be interfered and be held per se arbitrary unless Court finds from record that such determination of cut off date or age is totally irrational and no person of ordinary prudence would have determined or acted by providing such date or age. In the context of cut off date, challenge on the ground that determination of policy makers is arbitrary and irrational, has been examined time and again.
48. Generally speaking, cut-off date/age does not violate Article 14 simply because one person is distinct from another by a single day or otherwise. It may often happen but that by itself is not arbitrary or discriminatory. Whenever it is within the domain of the prescribed authority to fix certain limit/cut-off date/age, it can always fix any date or the principle for determining such cut-off date/age in the manner it finds appropriate. It is a matter of policy and by itself cannot be said to be arbitrary or discriminatory. Choice of a date or age, as a basis for classification, is decided by legislature or its delegate and must be accepted unless it is shown to be capricious, whimsical or very wide off the reasonable mark.
49. In Union of India v. Parameswaram Match Works, 1978(2) ELT 436 (SC) the Apex Court, in para 10 of the judgment, observed:
"....The choice of a date as a basis, for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the Legislature or its delegate must be accepted unless we can say that it is very wide of the reasonable mark."
50. Somewhat similar objection with reference to cut-off date/age was raised in State of Bihar v. Ramjee Prasad, 1990(3) SCC 368. Rejecting the same, Court held:
"8. In the present case as pointed out earlier the past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement. Following the past practice the State Government fixed the last date for receipt of applications as 31st Jan., 1988. Those who had completed the required experience of three years by that date were, therefore, eligible to apply for the posts in question, The respondents and some of the intervenors who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution. It is obvious that in fixing the last date as 31st January, 1988, the State Government had only followed the past practice and if the High Court's attention had been invited to this fact it would perhaps have refused to interfere since its interference is based on the erroneous belief that the past practice was to fix 30th of June of the relevant year as the last date for receipt of applications. Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date. As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark. The choice of the date for advertising the posts had to depend on several factors, e.g., the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc. It is not the case of any one that experienced candidates were not available in sufficient numbers on the cut-off date. Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31 st Jan., 1988 to 30th June, 1988 is no reason for dubbing the earlier date as arbitrary or irrational. We are, therefore, of the opinion that the High Court was clearly in error in striking down the Government's action of fixing the last date for receipt of applications as 31 st January, 1988 as arbitrary." (emphasis added)
51. When a cut-off date/age is prescribed in a rule and is uniformly applicable, it deals every person in the same manner and cannot be said to be arbitrary only by referring to one or two illustrations based on different facts and circumstances in an individual case which have arisen not on account of universal or uniform application of the Rule but for other reasons. In the present case there is no discrimination in such fixation. All have been dealt with in an uniform manner. In considering validity of cut-off date/age prescribed in the Rules we are not concerned with the wisdom of rule framing authority for determining cut-off date/age but its validity. In order to adjudge cut-off date/age, prescribed, to be per se arbitrary, it has to be shown that no person in any circumstance could have fixed such cut-off date/age and it is ex facie, capricious and whimsical on the face of it.
52. Learned Counsel for the petitioners, thus could not show that cut-off date/ age is outright whimsical or capricious. On the contrary, he submit that prescribing minimum age ignoring past practice, makes it arbitrary and discriminatory. The argument, pre supposes, that, as a universal proposition of law prescription of minimum age, for the purposes of eligibility, must always be the same and cannot be altered. We do not find that there is any such exposition of law or principle of universal application. Neither petitioners could place any authority in support of aforesaid submission nor do we find anything to support it.
53. On the contrary, we are fortified by various authorities of Supreme Court and this Court that cut-off date/age in respect to eligibility has to be determined in accordance with policy and per se it is not arbitrary.
54. In Ashok Kumar Sharma and Ors. v. Chander Shekhar and Anr. (1997) ILLJ 1160 SC in para 6 it was observed where applications are called for by prescribing a particular date as the last date for filing applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone. The person who acquires prescribed qualification subsequent to such prescribed date cannot be considered at all.
55. Relying on the aforesaid observations subsequently it was contended that cut-off date/age other than the last date of submission of application forms published in advertisement would be illegal and arbitrary. Rejecting the same, Court in Bhupinderpal Singh and Ors. v. State of Punjab and Ors.,(2000)5 SCC 262 while affirming the view taken by High Court, in para 13 of the judgment, held, that cut-off date/age by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications. However, if there be no such date appointed either in the rules or in advertisement, then eligibility criteria shall be applied by reference to the last date by which the applications have to be received by the competent authority.
56. In Shankar K. Mandal and Ors. v. State of Bihar and Ors. 2003(3) SCR 796, Court in para 5 of the judgment culled out following principles for determining cut-off date/age:
(1) The cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules.
(2) If there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications.
(3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority.
57. In Dr. Ami Lal Bhat v. State of Rajasthan, AIR 1997 SC 2964 validity of cut-off date in a rule came up for consideration. In that case, Rule 11(1) of Rajasthan Medical Services (Collegiate Branch) Rules 1962 provided maximum age as 35 years on the 1st day of January following the last date fixed for receipt of applications. Considering validity of Rule insofar as it mentions the words "the first day of January following" in Rule 11(1), High Court found it arbitrary, unreasonable and accordingly struck it down. Reversing the judgment of High Court, and upholding Rule, Supreme Court in paragraphs 5 to 7 of judgment held as under:
"5. This contention in our view is not sustainable. In the first place the fixing of a cut off date for determining the maximum or minimum age prescribed for a post is not per se, arbitrary. Basically, the fixing of a cut off date for determining the maximum or minimum age required for a post, is in the discretion of the Rulemaking Authority or the employer as the case may be. One must accept that such a cut off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut off date is fixed there will be some persons who fall on the right side of the cut off date and some persons who will fall on the wrong side of the cut off date. That cannot make the cut off date per se arbitrary unless the cut off date is so wide off the mark as to make it wholly unreasonable. This view was expressed by this Court in Union of India v. Parameshwaran Match Works 1978(2)ELT436(SC) and has been reiterated in subsequent cases. In the case of A. P. Public Service Commission, Hyderabad v. B. Sharat Chandra (1990) IILLJ 135 SC the relevant service rule stipulated that the candidate should not have completed the age of 26 years on the 1st day of July of the year in which the selection is made. Such a cut off date was challenged. This Court considered the various steps required in the process of selection and said:
"when such are the different steps in the process of selection the minimum or maximum age of suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific and {determinate as on a particular date for candidates to apply and for the recruiting agency to scrutinise the applications."
This Court, therefore, held that in order to avoid uncertainty in respect of minimum or maximum age of a candidate, which may arise if such an age is linked to the process of selection which may take an uncertain time, it is desirable that such a cut off date should be with reference to a fixed date. Therefore, fixing an independent cut off date, far from being arbitrary, makes for certainty in determining the maximum age.
6. In Union of India v. Sudhir Kumar Jaiswal, (1995) ILLJ 1773 SC the date for determining the age of eligibility was fixed at 1st of August of the year in which the examination was to be held. At the time when this cut off date was fixed, there used to be only one examination for recruitment. Later on, a preliminary examination was also introduced. Yet the cut off date was not modified. The Tribunal held that after the introduction of the preliminary examination the cut off date had become arbitrary. Negativing this view of the Tribunal and allowing the appeal, this Court cited with approval the decision of this Court in Parmeshwar Match Works case (supra) and said that fixing of the cut off date can be considered as arbitrary only if it can be looked upon as so capricious or whimsical as to invite judicial interference. Unless the date is grossly unreasonable, the Court would be reluctant to strike down such a at off date.
7. In the present case, the cut off date has been fixed by the State of Rajasthan under its Rules relating to various services with reference to the 1st of January following the year in which the applications are invited. All Service Rules are uniform on this point. Looking to the various dates on which different departments and different heads of administration may issue their advertisements for recruitment, a uniform cut off date has been fixed in respect of all such advertisements as 1st January of the year following. This is to make for 'certainty. Such a uniform date prescribed under all service Rules and Regulations makes it easier for the prospective candidates to understand their eligibility for applying for the post in question. Such a date is not so wide off the mark as to be construed as off date is less than a year. It takes into account the fact that after the advertisement, time has to be allowed for receipt of applications, for their scrutiny, for calling candidates for interview, for preparing a panel of selected candidates and for actual appointment. The cut off date. therefore, cannot be considered as unreasonable. It was, however, strenuously urged before us that the only acceptable cut off date is the last date for receipt of applications under a given advertisement. Undoubtedly, this can be a possible cut off date. But there is no basis for urging that this is the only reasonable cut off date. Even such a date is liable to question in given circumstances. In the first place, making a cut off date dependent on the last date for receiving applications, makes it more subject to vagaries of the department concerned, making it dependant on the date when each department issues an advertisement and the date which each department concerned fixes as the last date for receiving applications. A person who may fall on the wrong side of such a cut off date may well contend that the cut off date is unfair, since the advertisement could have been issued earlier; Or in the alternative that the cut off date could have been fixed later at the point of selection :or appointment. Such an argument is always open, irrespective of the cut off date fixed and the manner in which it is fixed. That is why this Court has said in the case of Parameshwaran Match Works, AIR 1974 SC 2349 (supra) and later cases that the cut off date is valid unless it is so capricious or whimsical as to be wholly unreasonable. To say that the only cut off date can be the last date for receiving applications, appears to be without any basic. In our view the cut off date which is fixed in the recent case with reference to the beginning of the calendar year following the date of application, cannot be considered as capricious or unreasonable. On the contrary, it is less prons to vagaries and is less uncertain."
58. Cut off date prescribed in Rule 12 of U.P. Higher Judicial Service Rules, 1975 as first day of January of next following year in which notice inviting applications as published, was challenged in this Court in Sanjay Agarwal Vs. State of U.P. and another, 2007(3) UPLBEC 2558 and the sme has been affirmed after discussing various authorities noticed above and in para 27 of judgment, Court said:
"27. Judging the issue in the light of law laid down by the Apex Court in Dr. Ami Lal Bhat (Supra), cut-off date prescribed under Rule 12 of 1975 Rules cannot be said to be per se arbitrary or discriminatory. In respect of various judicial services, practice of fixing cut-off date with respect to age, in the manner, it has been provided in Rule 12 of 1975 Rules appears to be consistent inasmuch as, recruitment to the post of Civil Judge earlier was governed by U.P. Nyayik Sewa Niyamavali 1951 (hereinafter referred to as "1951 Rules") which have been superseded by U.P. Judicial Service Rules 2001 (hereinafter referred to as "the Rules 2001"). Rule 11 of 1951 Rules provided cut-off date with respect to age being the "first day of January next following the date of commencement of the examination by the commission for recruitment to the service". Similarly , in Rule 2001, Rule 10 provides for age and cut-off date provided therein is "the first day of January next following the year in which the notification for holding the examination by commission inviting applications is published". Therefore, for determining cut-off date, with respect to age, it appears that an uniform practice has been followed for recruitment in various judicial services. Such a date is not so wide off the mark so as to be construed grossly unreasonable or arbitrary. The time gap between the advertisement and the cut-off date is less than a year. It takes into account that after the advertisement, reasonable time has to be allowed for receipt of applications, their scrutiny, the time to call for candidates for written test or interview and for preparing a panel of selected candidates for actual appointment. Judged from all these factors, the cut-off date cannot be considered as unreasonable particularly when the said fixation of cut-off date is not hedged or restricted or controlled by any provision of the Constitution or any other statute requiring authorities to provide cut-off date in a particular manner. "
59. Examining the issue raised in present case with regard to determination of minimum age for engagement as Member of SAT, we find it difficult to hold that per se said fixation of minimum age is arbitrary or discriminatory. Moreover, it comes within the realm of policy decision and reason for change in policy has also been noticed above which also cannot be said to be per se irrational or arbitrary or a decision having no nexus to the object sought to be achieved. In these circumstances in exercise of judicial review Courts are not normally supposed to interfere in a policy decision.
60. In Narmada Bachao Andolan Vs. Union of India, (2000) 10 SCC 664, it was held that Government has an inherent right to review its policy decisions and as long as decision is based on bonafide consideration, the same cannot be assailed in law. In para 229, Court said:
"229. It is now well settled that the Courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. .... The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution."
61. Above passage was quoted and followed in BALCO Employees' Union vs. Union of India, (2002) 2 SCC 333. Following above authorities in State Of H.P & Ors vs Rajesh Chander Sood, (2016)10 SCC 77, Court said:
"It is evident from the above that it is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical."
62. In the matters involving economic and development activities expediencies and expertise of executive or body responsible for its execution has to be believed unless it can be shown that it is apparently in violation of any provision of law. In State Of H.P & Ors vs Rajesh Chander Sood (supra), Court said that in the matters relating to economic, issues, Government has, while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within limits of authority. No person including even an employee has vested right in a scheme so as to compel employer to continue with such scheme and not to have a change therein. It has been held time and again that a policy which may have an impact upon workers' right, nevertheless, it is an incidence of service for an employee to accept a decision of employer which has been honestly taken and which is not contrary to law. Even a Government servant, having protection of not only Articles 14, 16 and 311, has no absolute right to remain in service. When a policy is changed those who are adversely affected, including even employees, cannot claim that there is any particular estopple to be applied so as to confer a right upon them to continue without any change in policy.
63. Giving an illustration of abolition of post in M. Ramanatha Pillai vs. State of Karela, (1973) 2 SCC 650, Court said that abolition of post is an executive policy decision. Whether after abolition of post Government servant who was holding post would be offered any employment under State would therefore be a matter of policy decision of Government because abolition of post does not confer on person holding abolished post any right to hold the post. This decision has been followed in State Of H.P & Ors vs Rajesh Chander Sood (supra).
64. Therefore, in view of above discussion, we do not find ourselves persuaded to subscribe the argument of learned counsel for petitioners that minimum age of 40 years determined by Competent Authority for appointment as Members of SAT for year 2017-18 is per se arbitrary and illegal.
65. No other point has been argued.
66. Writ petitions lack merit. Dismissed accordingly.
67. There shall be no order as to costs.
68. Interim order, if any, stands vacated.
Order Date :-12.12.2017 AK