Allahabad High Court
Vimlesh Kumar & 199 Others vs State Of U.P. & Others on 28 January, 2010
Author: Amreshwar Pratap Sahi
Bench: Amreshwar Pratap Sahi
Court No. - 38 Case :- WRIT - A No. - 4010 of 2010 Petitioner :- Vimlesh Kumar & 199 Others Respondent :- State Of U.P. & Others Petitioner Counsel :- Prakash Padia Respondent Counsel :- C.S.C. Hon'ble Amreshwar Pratap Sahi,J.
The petitioners claim that they had been working as Kisan Mitra but now the State Government has changed the policy and they are proceed to engage subject experts as a substitute of the petitioners and that too even through tenders invited from service providers. The contention raised is that the engagement is public employment and, therefore, the engagement has to be transparent and in accordance with Rules or else it would be hit by Article 14 of the Constitution of India. Learned counsel for the petitioner further contends that the period for which the petitioners were validly appointed their honorarium has not been cleared and thirdly a policy decision is to be taken in a meeting to be held under the Chairmanship of Principal Secretary, of department concerned and, therefore, a direction should be issued to the State Government not to proceed with such engagements before any final decision is taken.
Sri Prakash Padia further submits that the advertisement has been made only in a local newspaper and, therefore, the same is not in accordance with the policy of the state government which requires the advertisement to be published in a state level widely circulated newspaper.
Having heard learned counsel for the petitioner and learned Standing counsel, the decision of policy making for the purpose of executing a scheme falls within the realm of the executive. It is a scheme which has been promulgated and the same is not governed by any statutory law. The engagement for such schemes, therefore, can be formulated through a policy decision which can be scrutinized on the anvil of Article 14. The change of policy by the state government of making engagement through service providers could not have in any way be demonstrated as being arbitrary so as to invoke the jurisdiction of this Court under Article 226 of the Constitution of India so as to hold it to be violative of Article 14. Service providers can always be engaged for the purpose of engaging a person under a scheme which is not a public employment in the sense that it is not a substantive engagement in order to treat it a civil post under the government. The scheme envisages advertisement and selection. According to the petitioners the advertisement has been made only in a local newspaper. It is not understood as to how the petitioners are aggrieved by it inasmuch as they have knowledge of the said publication and it was for engagement through service providers for the post. The question is as to whether the same was published in a state level newspaper or not would arise as and when any selections are held and the said selections are challenged on the ground of nonfulfillment of the procedure prescribed in the scheme. Therefore, it does not require any scrutiny at the instance of the petitioner as this stage.
The next contention of the petitioner is with regard of non- payment of honorarium. In the event they have not been paid their honorarium for the period for which they were validly engaged it is the competent authority who shall release the funds in favour of the petitioners in accordance with Rules.
The third contention relating to the decision of the state government on a matter of policy, this Court does not find itself well equipped to issue a mandamus of the nature as prayed for inasmuch as the state government is not obliged under any law for the time being in force to take an executive decision in the matter. It is open to the state government to render its opinion and formulate a policy at the executive level.
Thus there is no occasion to entertain this writ petition and accordingly the writ petition is consigned to record subject to the directions that the petitioners claim with regard to payment of honorarium shall be considered and orders be passed by the concerned authority.
Order Date :- 28.1.2010 Shiraz