Orissa High Court
Jitendra Kumar Pati vs State Of Orissa And Others on 11 October, 2017
Author: S.N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) Nos.19627, 18513, 14396, 11726, 11728, 11731, 11734, 11735,
11737, 12015, 12016, 12017, 12018, 12019, 12021, 12022, 12023,
12024, 12025, 12027, 12029, 12030, 12031, 12032, 11889, 17916,
18515, 19833, 19831, 20298, 20299 of 2017 & 18089 of 2016
In the matter of the applications under Article 226 and 227 read with Article 14,
16 and 21 of the Constitution of India, 1950.
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Jitendra Kumar Pati (In W.P.(C) No.19627 of 2017)
Madhumita Patra (In W.P.(C) No.18513 of 2017)
Sanjib Khamari (In W.P.(C) No.14396 of 2017)
Prabhat Kumar Ratha (In W.P.(C) No.11726 of 2017)
Soubhagyabanta Sahu (In W.P.(C) No.11728 of 2017)
Sibaram Mishra (In W.P.(C) No.11731 of 2017)
Biren Ku. Das (In W.P.(C) No.11734 of 2017)
Amaresh Ch. Panda (In W.P.(C) No.11735 of 2017)
Rakesh Ku. Mishra (In W.P.(C) No.11737 of 2017)
Pramod Kumar Pradhan (In W.P.(C) No.12015 of 2017)
Pramila Sahoo (In W.P.(C) No.12016 of 2017)
Sri Pranaya Kumar Das (In W.P.(C) No.12017 of 2017)
Sri Sarbeswar Swain (In W.P.(C) No.12018 of 2017)
Sri Bipra Charan Swain (In W.P.(C) No.12019 of 2017)
Smt. Pranabi Patnaik (In W.P.(C) No.12021 of 2017)
Sri Smruti Ranjan Sahoo (In W.P.(C) No.12022 of 2017)
Sri Ashish Mishra (In W.P.(C) No.12023 of 2017)
Smt. Lopamudra Panda (In W.P.(C) No.12024 of 2017)
Smt. Lopamudra Swain (In W.P.(C) No.12025 of 2017)
Sri Hemanta Kumar Tripathy (In W.P.(C) No.12027 of 2017)
Smt. Sasmita Nayak (In W.P.(C) No.12029 of 2017)
Miss Monalisa Ray (In W.P.(C) No.12030 of 2017)
Radhakanta Hati (In W.P.(C) No.12031 of 2017)
Sri Sanjaya Kumar Pradhan (In W.P.(C) No.12032 of 2017)
Smt. Nibedita Das (In W.P.(C) No.11889 of 2017)
K. Chiranjibi Kumar (In W.P.(C) No.17916 of 2017)
Suresh Kumar Padhan (In W.P.(C) No.18515 of 2017)
Akshaya Ku. Jena (In W.P.(C) No.19833 of 2017)
Keshab Ch. Sahoo (In W.P.(C) No.19831 of 2017)
Sri Keshab Chandra Sahoo (In W.P.(C) No.20298 of 2017)
Sri Akshya Ku. Jena (In W.P.(C) No.20299 of 2017)
Binaya Bhusan Behera and others (In W.P.(C) No.18089 of 2016)
...... Petitioners
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- Versus-
State of Orissa and others (In all the cases)
...... Opposite Parties
For Petitioners : M/s. Pitambar Acharya, S. Rath, A. Satpathy,
D. Panigrahy, G. Patra, N. Jena,
S.P. Behera, S. Rath, A. Satpathy,
D. Panigrahy, G. Patra, N. Jena, &
S.P. Behera.
M/s. Trilochan Nanda & B.K. Panda
Mr. Aparesh Bhoi.
M/s. Ajit Ku. Choudhury & K.K. Das.
M/s. Biswabihari Mohanty, J.N. Panda,
M. Harichandan, B. Tripathy &
B. Samantaray.
M/s. P.K. Rath, R.N. Parija, A.K. Rout,
S.K. Pattnaik, A.K. Behera, P.K. Sahoo,
S.K. Behera, A.K. Behera & B.K. Dash.
M/s. Amitav Das, H.K. Mahali, M.M. Das,
P.K. Sahoo & S. Mohanty.
For Opposite Parties : Mr. B.P. Tripathy,
Additional Government Advocate &
Ms. Samapika Mishra,
Additional Government Advocate.
M/s. P.K. Rath, R.N. Parija, A.K. Rout,
S.K. Pattnaik, A.K. Behera, P.K. Sahoo,
S.K. Behera, A.K. Behera & B.K. Dash.
(For opposite party no.5 in WP(C) Nos.12016 &
12018 of 2017)
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PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 11.10.2017
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S. N. Prasad, J.In all these batch of writ petitions the common issue has been raised and as such, the same has been directed to be heard together and being disposed of by this common order.
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2. The petitioners have raised issues challenging the jurisdiction of the State authorities in transferring the Gram Rojgar Sevak (in short "the GRS") engaged under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (in short "the MGNREG Act, 2005").
3. The petitioners have also challenged the order dated 21.3.2013 issued by the Commissioner-cum-Secretary, Panchayatiraj Department whereby and whereunder the Collectors have been conferred with the power to transfer the GRSs from one Gram Panchayat to the other.
4. The fact which has been argued by the learned counsel appearing for the petitioners is that the GRSs are being engaged in pursuant to the scrutiny instruction issued under the signature of Commissioner-cum-Secretary, Panchayatiraj Department contained in letter No.17146 dated 25.8.2006 whereby and whereunder the GRSs are being appointed by the Panchayatiraj Institution Bodies, in which, Government has got no role or linkage to the engagement and as such, it is only the Sarpanch being the member of the Panchayatiraj Institution is competent to take decision to transfer GRSs from one Panchayat to other or from one Block to another Block within the district. 4
5. The contentions advanced by the petitioners are as follows:-
(i) The GRSs are being appointed on
contract basis and are being paid meager
amount by way of remuneration. Hence, it is
very difficult for them to maintain their family by living outside Panchayat.
(ii) The decision taken by the Commissioner-cum-
Secretary, Panchayatiraj Department or the Collector has got no jurisdiction in transferring the GRSs and as such, the decision taken by the Collector in transferring one or the other petitioners, who are working as GRSs is nullity in the eye of law.
(iii) The Commissioner-cum-Secretary, Panchayatiraj Department or the Collector cannot transfer the GRSs from one Block to another Block at best they can be transferred within the Panchayat, but ignoring this, some of the GRSs have been transferred even from one Block to another Block.
(iv) The GRSs can be transferred only on administrative ground, but the order of transfer does not discloses the administrative ground 5 and as such, the same has been issued without any application of mind and only to harass them.
6. The contention is that since the Government has got nothing to do with the transfer of GRSs and as such, the Commissioner-cum- Secretary to Government of Orissa, Panchayatiraj Department while issuing the communication dated 21.3.2013, which is also impugned in one of the writ petition being W.P.(C) No.18089 of 2016 is without any jurisdiction. It is for the reason that the GRSs are being appointed on contract basis having no concerned with the Government and there being appointed by giving preference Gram Panchayat-wise. Hence, transferring another Gram Panchayat is contrary to the original guideline dated 25.8.2006. The Commissioner-cum-Secretary, Panchayatiraj Department while issuing the instruction dated 21.3.2013 has not taken care of the guideline dated 25.8.2006 wherein there is no provision for transferring of GRSs. However, there is a stipulation regarding transfer of Gram Panchayat Technical Assistants.
7. Per contra, Mr. B.P. Tripathy, learned Additional Government Advocate appearing for the State-opposite parties has submitted that the GRSs are being appointed for proper implementation of the mission of the Government, which has been launched by way of introducing the MGNREG Act, 2005 and in the said Act, provision has been made under 6 Section-13, which provides the function of the principal authorities for planning and implementation of Schemes, Section-14, which confers power upon the District Programme Coordinator, who will be the Chief Executive Officer of the District Panchayat or the Collector of the district or any other district level officer of appropriate rank as the State Government may decide, the functions of the District Programme Coordinator shall be to assist the district Panchayat in discharging its functions under this Act and any Scheme made thereunder.
It has been submitted by referring to these provisions of law that the GRSs are being appointed to achieve the mission of the Central Government and as such, it is the authority of the State Government or its officials to monitor the proper implementation of the Scheme to attain maximum benefit to be extended to the beneficiaries and as such, it is the prerogative of the State authorities to post one or other engagee for the organizational interest.
It has been further submitted that there is no dispute about the fact that GRSs are not regular Government employees rather, they are contract engagees under the Scheme, but they are beyond the control of the State Government or its officials, as would be evident from the provision of Sections-13, 14, 15 of the MGNREG Act, 2005.
He refers to the provision of Section-16 of the MGNREG Act, 2005 wherein the responsibilities of the Gram Panchayats has been 7 referred, who 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.
He disputes the arguments made on behalf of the petitioners that the Sarpanch is the appointing authority. Rather, according to him, the Chief Executive Officer being the head of the District Board (Zilla Parishad), who is the Ex-Officio Chairman by virtue of holding the post of Collector of the district, is the competent authority to appoint GRSs and also the Disciplinary Authority to take any final action against them. Hence, the Collector being the Appointing Authority is only authorizing the Sarpanch to enter into an agreement for carrying out the work after being engaged by providing certain terms and conditions contained therein, but it does not mean that Sarpanch is the Appointing Authority of the GRSs. He further submits that the Circular issued by the Finance Department is no way related with the service of the GRSs because the Finance Department Circular dated 17.5.2008 is only for the purpose of contractual engagees working in the different Government establishment and in that respect the Finance Department has come out with a Circular not to transfer the contractual engagees wherein there is no target is to be achieved by the contractual engagees while in the instant cases, GRSs are entrusted with achieving the target to achieve maximum benefit as 8 provided under the Scheme. Hence, it is the requirement that the GRSs, if not fulfilling the target or for any other reasons may be transferred, but not outside the district. As such, the reliance put by the petitioners upon the Finance Department Circular dated 17.5.2008 is not worth to be considered by this Court. He further submits that the GRSs, who are getting Rs.5,000/- remuneration per month, are working in a Gram Panchayat for more than a decade and thereby the administrative reasons demand that they may be shifted at least from one Panchayat to other or may be shifted within the district so that smooth functioning of the Scheme may carry on.
Learned Additional Government Advocate, on the strength of this submission, has argued that the Government has not committed any illegality either in issuing the order dated 21.3.2013 or 15.5.2017 or the order of transfer for transferring one or the other GRS from one Block to another Block within the district.
8. Learned counsel for the petitioners has relied on the Finance Department Circular dated 17.5.2008 by putting reliance of the same it has been submitted that when the contractual employee working under the regular institution of the Government is not being decided to be transferred, then transferring the GRSs, who are working not against the sanctioned post rather, under the Scheme, is contrary as also discriminatory.
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9. Heard the learned counsel for the parties and perused the documents available on record.
10. This Court, after appreciating the arguments advanced on behalf of the opposite parties, thought it proper to deal with the mission of enactment of the MGNREG Act, 2005.
The same has been enacted upon to provide for enhancement of livelihood security in rural areas of the country by providing at least 100 days of guarantee wages employment in every financial year to every household whose adult members volunteer to do unskilled manual work and the matters connected therein or incidental thereto. That the prime mission of legislation is to secure wage employment for the poor households in the rural areas as a guarantee employment of this Scheme.
11. The MGNREG Act was originally known as "National Rural Employment Guarantee Act, 2005" which has got amended in the year 2009 wherein the Act has been added with the name of the father of nation "The Mahatma Gandhi". Thereafter, it has been known as "Mahatma Gandhi National Rural Employment Guarantee Act". The MGNREG Act, 2005 contains the provision of Block which means a community development areas within the district compiling a group of Gram Panchayats.
The District Programme Coordinator has been defined which means an officer of the State Government designated as such under sub- 10 section-1 of Section-14 of the MGNREG Act, 2005 for implementation of the Scheme in a district.
Implementing agencies has been defined which includes any department of the Central Government or the State Government, Zilla 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 under the Scheme.
Section-13 of the MGNREG Act, 2005 provides the principal authorities for planning and implementation of Schemes which contains the provision that the Panchayats at district, intermediate and village levels shall be the principal authorities for planning and implementation of the Schemes made under this Act.
Sub-section(2) of Section-13 of the said MGNREG Act, 2005 confers power upon the Panchayats at the district level which 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.
11Sub-section(3) of the Section-13 of the said MGNREG Act, 2005 provides functions of the Panchayat at intermediate level which 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.
Sub-section(4) of Section 13 of the said MGNREG Act, 2005 provides the function of power of the District Programme Coordinator, who shall assist the Panchayat at the district level in discharging its functions under this Act and any Scheme made thereunder.
Section-14 of the said Act defines the District Programme Coordinator, who shall be the Chief Executive Officer of the District Panchayat or the Collector of the district or any other district level officer of appropriate rank as the State Government may decide shall be designated as the District Programme Coordinator for the implementation of the Scheme in the district, who shall be responsible for the implementation of the Scheme in the district in accordance with the provisions of this Act and the rules made thereunder. 12
The functionaries of the District Programme Coordinator has been stipulated under sub-section(3) of the said Act which reads as under:-
(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.
Section-15 of the said MGNREG Act, 2005 contains the power of functions of the Programme Officer, who shall be appointed by the State Government at every Panchayat at intermediate level, who shall assist the Panchayat at intermediate level in discharging its functions under this Act and any Scheme made thereunder. The Programme Officers shall function under the direction, control and superintendence of the District Programme Coordinator.
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Section-16 of the said MGNREG Act, 2005 provides the responsibilities of the Gram Panchayat, who 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. The functions of the Gram Panchayat as stipulated under the provision of sub-sections(2) to (8)of Section-16 are enumerated herein below:
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 recommendationis 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 be residents of the Gram Panchayat.14
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.
12. It is evident from these provisions that the Central Government in order to achieve the maximum under the Scheme has conferred power upon the functionaries of the State Government by giving the name of the post as District Project Coordinator or District Project Officer. The District Project Coordinator would be the officer at the level of the Collector, who heads the Zilla Parishad in the capacity of Chief Executive Officer under which the Gram Panchayat and Block Level Offices functions.
13. The Human Resources Development Department has also formulated a Human Resources Policy Manual for MGNREGA contractual employees in order to encourage building of a shared vision of the project among all the project staff to ensure that their respective jobs are complementing each other, the policy aims to build a culture of trust, transparency and integrity among all staff.
Under that policy, at Gram Panchayat level, a post has been created in the name of GRS, who helps with preparation of annual action plan, in taking of measurement of work in the field, liaison with Line Department at Gram Panchayat level in technical matters, for better Co- 15 ordination & successful implementation of scheme under convergence activities, identification and categorization of number and nature of employment opportunities, receipt of applications for registration, identification and verification of applications and registration of job seekers, issue of job card, recording work demand by job card holders, intimation to applicant allotting dates of work and work site, supervision and monitoring of works assist/guide VLE for any data entry which is technical in nature, maintenance and updation of all types of statutory registers prescribed by MGNREGA Act.
Likewise, the work of the other functionaries, who will work under the Scheme, has also been referred in the said policy, but the same has not been referred herein, since the matter pertains to GRS.
Under the said policy, the provision has been made to transfer the contractual employees within the district purely on the organization's interest only. The portion of the Chapter contains in the Human Resources Policy Manual for MGNREGA Contractual Employees wherein the provision of transfer as referred in Chapter-7.3 which speaks "Transfer of employees within the district is permissible purely on the Organization's interest only".
14. The different States like the State of Madhya Pradesh, State of West Bengal and State of Bihar has come out with their instruction in 16 this regard for transferring the contractual employees involved in the MGNREGA.
15. The State of Odisha through the Commissioner-cum- Secretary, Panchayatiraj Department has also come out with a instruction addressed to all the Collector-cum-D.P.C. and all Project Director, DRDAs dated 21.3.2013 whereby and whereunder the Collector has been empowered to transfer the GRS from one Gram Panchayat to the other within a specific block. Subsequently, another instruction has been issued on 15.5.2017 for transferring the GRS from one Gram Panchayat to other within the district on administrative ground.
The instruction dated 21.3.2013 has been assailed in one of the writ petition being W.P.(C) No.18089 of 2016 wherein a coordinate Bench of this Court has also passed an interim order on 14.10.2016 by staying the operation of the paragraph-1 of the order No.8409 dated 21.03.2013 issued by the Commissioner-cum-Secretary, Panchayati Raj Department.
The other writ petitions have been filed challenging the order of transfer. Some of have been transferred within the block and some transfer is inter block.
16. The main thrust of the arguments advanced on behalf of the petitioners is regarding jurisdiction of the Commissioner-cum-Secretary in issuing the instruction dated 21.3.2013.
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According to them, Commissioner-cum-
Secretary has got no jurisdiction to issue the same, since the GRSs are contractual engagees and the Government has got no linkage of their engagement. Hence, they have got no business to transfer from one place to another as also the instruction is contrary to the Finance Department Circular of the State Government dated 17.5.2008 wherein the transfer of the contractual engagee working as Class-III and Class-IV post has been restricted.
17. This Court, while appreciating the arguments advanced on behalf of the parties, have taken into consideration the rival submission and is not in agreement with the submission advanced on behalf of the petitioners regarding the jurisdiction having not been conferred upon Commissioner-cum-Secretary in issuing the letter dated 21.3.2013 reason being that as has been referred hereinabove the provisions of the MGNREG Act, 2005, i.e., Section-12 which confers power upon the State Government to constitute a State Employment Guarantee Council with a Chairperson, who shall have the power to undertake and evaluation of the Scheme operating in the State as also the provision of Sections-13, 14 and 15 under which the power has been conferred to the designated post, i.e., District Programme Coordinator and Programme Officer on different level which suggests that although the Scheme is of the Central Government, but it has to be implemented properly to achieve its mission 18 through the State Government and its agency and for that the State Government cannot be said to have got no jurisdiction to look into the affairs in achieving the larger public interest.
Further in the Human Resources Policy Manual for MGNREGA Contractual Employees, the service condition of the GRS has been provided therein which contains the policy of transfer. Hence, the Commissioner-cum-Secretary cannot be said to have no jurisdiction to issue such order, which is for the larger public interest and to achieve the maximum under the Scheme as provided under the MGNREG Act, 2005.
It is further important to refer herein that huge funding is coming out from the Central Government to reach its to the ground level to provide the employment guarantee to the down trodden people and that is to be executed at the grass root level, i.e., through Gram Panchayat and the main executants is the GRS.
It has been submitted by the learned counsel for the parties that the GRSs once engaged, are continuing in the same Gram Panchayat, which cannot be held to be healthy process wherein the huge amount of transaction of money is involved.
Keeping the fact into consideration the scope of transfer so that there may not be any illegality in the proper implementation and functioning of the project or any other work and that is the reason of transferring and employing from one place to another. 19
Hence, it is called administration of service, as would be evident from the Human Resources Policy Manual for MGNREGA Contractual Employees issued by the Human Resources Department and there are certain conditions which speaks transfer policy. Hence, the jurisdiction of the State Government cannot be questioned by the candidates, who have been engaged as GRSs.
18. Learned counsel appearing for the petitioners has also questioned the jurisdiction of the Collector-cum-District Project Coordinator, who has issued transfer order, as impugned in these writ petitions by submitting that the Collector has got nothing to do with the engagement of the GRS rather, it is the Sarpanch, who has entered into the agreement with the candidates which has been entered for smooth functioning of work and as such, it is only the Sarpanch, who can take decision regarding transfer or any other condition pertaining to their engagement, but since it has been taken by the Collector which is without jurisdiction. This argument has vehemently opposed by the learned Additional Government Advocate.
This Court, after appreciating the rival submission of the parties and after going through the guideline dated 25.8.2006, has found that the engagement will be done by the committee, which is to be chaired by the Collector-cum-CEO and after the candidate having been engaged, the engagement will be effected by Panchayat Raj Institution 20 Bodies, Government will have no roll or linkage in engagement of the personnel, deployment and other related matters.
Further it is evident that the selection is to be made strictly on the basis of mark obtained in the 10+2 examination and shall be made at the District Level Committee headed by Collector-cum-CEO, Zilla Parishad, other members of the Committee being nominated by Collector- cum-CEO. Likewise, Collector-cum-CEO, Zilla Parishad is also competent to take disciplinary action including removal for unsatisfactory performance, discipline or otherwise after getting feedback from concerned Gram Panchayat through Programme Officer. This suggests that the Government will have no role or linkage, but the Collector while functioning as Collector-cum-CEO, who will also functioning as District Project Coordinator as per the definition defined under Section-14 of the MGNREG, Act, 2005 is competent enough to take any decision regarding engagement, deployment and other related matters and further the Collector-cum-CEO has been empowered to take disciplinary action and as such, the contention raised by the petitioner that the Sarpanch is the appointing authority of the GRS is not acceptable because the Sarpanch is only empowered to give effect of the engagement, as would be evident from Clause-2 of the letter dated 25.8.2006 and it is only after engagement which to be made in pursuant to Clause-3(ii) of the said letter. An agreement is to be entered with the Sarpanch, since he is the 21 local body and authorized to implement the work as per the provision made under Section-16 of the MGNREG, Act, 2005. Hence, the contention raised by the petitioners challenging the jurisdiction of the Collector in transferring the petitioners is rejected.
19. The other contention raised by the petitioners is that the contractual employees, working under the Finance Department on contract basis, are not being transferred, then why the GRSs will be transferred. Hence, it is discriminatory. This also is not applicable in the eye of law, as because the Finance Department Circular dated 17.5.2008 speaks about the contractual engagements of Class-III and Class-IV posts of the regular Government establishments and their appointment is specifically made for a particular establishment with fixing of headquarters in a particular place and as such, they are not being transferred, but fact in the instant cases is totally different, as because the GRS is vested with the power to monitor the execution of work of the Scheme for effective implementation and as such, the Human Resources Department of the Government of India has come with a Human Resources Policy Manual for MGNREGA contractual employees which contains provision of the contractual engagee wherein the provision of transfer has also been made and hence, the petitioners will not get any help from the Finance Department Circular dated 17.5.2008. It is also for the reason that the GRS is to achieve its maximum to achieve the aim 22 of the MGNREG Act, 2005 wherein the huge amount of money is involved and that is the reason the policy contains a provision to transfer the contractual engagees in the organizational interest.
The other contention raised by the petitioners is that they have been engaged and functioning in pursuant to the agreement executed in between one of the petitioner and the Sarpanch wherein there is no clause of transfer and as such, transferring beyond the terms and conditions of the agreement is arbitrary exercise of power.
This argument as also refuted by the Additional Government Advocate by submitting that the agreement is only to apprise the candidates that they will not claim any permanent engagement merely because of performing duty as GRS, but it does not mean that the competent authority cannot take any decision regarding the transfer of one or other GRS in the organizational interest.
This Court, after appreciating the rival submission of the parties, is of the considered view that the agreement is subsequent action of the engagement to apprise the candidates that they are being engaged purely on temporary basis and they cannot claim any right to be absorbed permanently under the Government establishment, save and except there is no other conditions in the agreement. Moreover, the said agreement also does not restrict the authority not to come out with any 23 policy decision of taking work from the GRS by posting them in one place or the other.
Further contention as has been raised is that the guideline dated 25.8.2006 contains the provision under Clause-3(ii) wherein it has been provided that preference will be given to the candidates belonging to the Gram Panchayat, then to the Panchayat Samiti area and then to the District in case suitable candidates are not available in the G.P. or Block, Hence, it has been submitted that since the GRSs are to be engaged for a particular Gram Panchayat where the residence is there, they cannot be transferred from one place to another, but this argument is not acceptable in view of the fact that this clause only speaks about preference to be given. It does not mean that if they will be engaged, they cannot be transferred from one Gram Panchayat to other Gram Panchayat or one Block to other Block within the district.
20. The last contention raised by the petitioners is that the order of transfer even accepting that there is power to transfer the GRS, but that can only be on the basis of administrative ground, but none of the transfer order reflects any administrative ground and as such, the order of transfer is nothing, but without any application of mind and only to harass.
Learned Additional Government Advocate appearing for the State-opposite parties has submitted that it is not required that each and 24 every transfer order reflects with the administrative reason rather, the specific stand has been taken by the State-opposite parties in the counter affidavit that they have been transferred on administrative ground as because most of the GRSs are being functioning for more than a decade in a place and as such, adopting the normal reason of transfer, the Government has taken a decision on administrative reason to transfer them and the prime object is to achieve the mission fully, which will be in the larger interest of the people.
This Court has appreciated the arguments advanced on behalf of the parties and it is settled proposition of law that it is not required that the authority while issuing the order of transfer will reflect the reason of transfer rather, it is the authority of the State Government to take decision on administrative ground to move one engagee from another in order to avoid stagnancy in a place of posting for long period.
21. In view of the elaborate discussion made hereinabove and considering the scope and jurisdiction of the High Court sitting under Article 226 of the Constitution of India in making interference in the matter of transfer, this Court is of the considered view that the petitioners have failed to make out a case for showing interference in the impugned orders rather, it is the prerogative of the competent authority to post one or the other employee to take maximum work from them which cannot be looked into by the High Court unless any arbitrariness or malice is being 25 shown, but the petitioners have failed to show any arbitrariness or malice in these writ petitions and as such, this Court declines from interfering with the impugned orders.
22. In the result, the writ petitions are dismissed.
Interim order stands vacated.
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S.N. Prasad, J.
Orissa High Court, Cuttack, Dated the 11th October, 2017/D. Aech