Akhil Bharatiya Ashanghathit ... vs The State Of Maharashtra
2012 Latest Caselaw 189 Bom

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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 




                                                              
                       BENCH AT AURANGABAD

               WRIT PETITION NO. 4207 OF 2011




                                      
                               
     Akhil Bharatiya Ashanghathit Rozandari
     Kamgar Sanghathana (Reg.No.MWB-2203/06)
     Through its President Ankush M. Pawar,




                                     
     Age: 46 years, Occ: President of 
     The Sangathana Office, Plot No. F-41/12, N-7, 
     CIDCO,Ayodhyanagar, Aurangabad.      ...PETITIONER 




                             
            VERSUS             

     1.            
            The State of Maharashtra,
            Through The Secretary,
            The Ministry of Rural Development,
            Mantralaya, Mumbai.
                  
     2.     The State Rural Employment Guarantee
            Commissioner/Member Secretary of the
            S.E.G.C.
      


     3.     The District Programme Coordinator Cum
   



            District Collector, Aurangabad.

     4.     The Programme Officer, Rural 
            Employment Guarantee Officers.





     5.     The Joint Programme Officers Rural 
            Employment Guarantee Officers....RESPONDENTS

                          





                          ...
     Mr. S.R. Bobade, Advocate for petitioner.
     Mr. K.B. Choudhari, A.G.P. for Resp Nos. 1 to 3.
     Respondent Nos.4 & 5 : Served (Absent).
                          ...

         




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                            CORAM: R.M. BORDE &
                                   S.S. SHINDE, JJ.

DATE : 16TH OCTOBER, 2012

ORAL JUDGMENT : [ PER S.S. SHINDE, J.]

. Rule. Rule made returnable forthwith.

With consent of the parties, petition is taken up

for final disposal at admission stage.

2.

This writ petition takes exception to the

communication dated 20th January, 2011 by the

District Programme Co-ordinator, Maharashtra Rural

Employment Guarantee Scheme cum Collector,

Aurangabad, thereby directing the Functional

Officer, Maharashtra Rural Employment Guarantee

Scheme (for short, "MREG Scheme") cum Tahsildar,

Sillod District Aurangabad and Assistant

Functional Officer, MREG Scheme cum Block

Development Officer, Panchayat Samiti, Kannad

that, the persons who are local residents of

concerned village are only eligible to be

registered under the MREG Scheme and accordingly

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steps should be taken. It was further directed

that, names of persons belongs to VJNT and whose

names are registered under the said scheme, the

said names should be deleted. It was further

observed in said letter that, while giving work

under the said scheme, it should be allotted only

after ascertaining that, the concerned person is

resident of said village.

.

The petitioner-organization has prayed

that, impugned communication dated 20th January,

2011 may be quashed and set aside and respondent

No. 3 may be directed to allot job card and

provide employment to the members of petitioner

organization under the aforesaid scheme.

3. It is the case of the petitioner that,

the petitioner is registered organization, mainly

registered for agitating the grievances and

welfare of the unskilled, unorganized labourers,

who are from the tribal communities i.e. VJNT,

Banjara, Wadar etc. It is the case of the

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petitioner that, members of the petitioner

organization are mostly uneducated. Their names

were registered under the old Employment Guarantee

Scheme. The petitioner organization used to offer

work to their members who are unskilled labourers.

. It is the case of the petitioner that,

the Union of India promulgated and enacted the

National Rural Employment Guarantee Act, 2005,

(for short, "Act of 2005") which is having the

main object to provide employment for enhancement

of livelihood and security of the households in

rural areas of the country by providing at least

100 days of guarantee wage employment in every

financial year to every household whose adult

member volunteer to do unskilled manual work. It

is further case of the petitioner that, in

response to the said Act, the State Government

framed various schemes. The Government of

Maharashtra has also framed scheme in the name and

style, such as, Maharashtra Gramin Rozgar Hami

Yojana 2005, the Mahatma Gandhi Gramin Rozgar Hami

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Yojna etc. (for short, "MGEG Scheme").

. It is the case of the petitioner that,

members of the petitioner organization are mainly

tribal and not permanent residents of any

particular village. They have to travel for

livelihood from place to place. According to the

petitioner, the restriction imposed by the

impugned communication dated 20th January, 2011

that, only persons who are residents of particular

village, their names should be registered under

MGEG Scheme is arbitrary, discriminatory and would

defeat basic purpose of the Act of 2005.

4. The learned Counsel appearing for the

petitioner submitted that, the petitioner

submitted representation on 3rd November, 2009 to

the Deputy District Programme Officer, Aurangabad

and requested for issuance of directions to the

concerned Village Development Officer for

registration of the names of the members of the

petitioner organization and for providing

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employment to them. The petitioner has also

submitted representation to respondent No. 3 and

also to other officers. However, by impugned

communication, respondent No. 3, in stead of

acceding to the request of the petitioner to

provide work to its members, directed to delete

their names and not to enroll the members of the

petitioner. According to the Counsel for the

petitioner, such directions are arbitrary and

would defeat the object of the Act of 2005.

Therefore, the Counsel appearing for the

petitioner submits that, the petition may be

allowed.

5. In pursuance of the notice issued to the

respondents, one Mr. Balchand Kacharuji Jamdhade,

working as Assistant Accounts Officer, in the

office of the Collector, Aurangabad, duly

authorised by respondent No.1 has filed affidavit

in reply, it is stated in the said affidavit in

reply that, the Government of Maharashtra is

implementing 'National Rural Employment Guarantee

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scheme' and 'the State of Maharashtra Employment

Guarantee Scheme'. It is stated in paragraph-2 of

the affidavit in reply that, both the aforesaid

schemes are implemented under the National Rural

Employment Guarantee Act of 2005. It is stated

that, none of the provisions of the above Act

restrained the petitioner from obtaining identity

card for work, if they fulfill the conditions,

i.e. (1) the person applying may be a local

resident. This includes those who might have

migrated some time ago but may return to their

place of abode, (2) the person willing to do

unskilled manual work and (3) apply as a household

of local panchayat. It is stated in paragraph-9 of

the affidavit in reply that, as per the Employment

Guarantee Act, it is clearly mentioned that, an

employment sucker who is unskilled labour should

be a local resident which includes those who may

have migrated sometimes ago but may return.

Therefore, any person who is unemployed and is in

need of work in the country should at the first

instance be a permanent resident of said village.

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It is further stated that, if the labourers are

moving from place to place and village to village

and expecting to be registered at each place and

at each village, such provision is not made under

the Act of 2005.

. It is further stated in the affidavit in

reply that, objective of the Act of 2005 is to

provide employment to an unemployed persons of the

village who are willing to do work within a radius

of 5 kms. from the village and if such work is not

provided by the authorities, concerned person who

is registered under the scheme is paid unemployed

allowance. It is further stated in paragraph-15 of

the affidavit in reply that,work can be provided

to the labourers under MREG Scheme, who belong to

tribal community, provided that, the tribal who

are residing at one place during rainy season for

continuous period and same is certified by the

'Panchayat' of such tribe and thus, on the basis

of such certification, the said labourers are

provided registration. It is further stated that,

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no such person belongs to particular Tribe whose

case is certified by 'Panchayat' has been denied

registration.

6. Upon hearing the Counsel for the

petitioner and learned A.G.P. appearing for the

State and upon perusal of the pleadings in the

petition, annexures thereto and affidavit in reply

filed by the respondent State, we are of the

considered opinion that, the prayer of the

petitioner cannot be considered within four

corners of the provisions of the Act of 2005 and

also under the Mahatma Gandhi National Rural

Employment Scheme.

7. The objective of the National Rural

Employment Guarantee Act, 2005 is to enhance the

livelihood security of the poor households in

rural areas of the country by providing at least

one hundred days of guaranteed wage employment to

every poor household whose adult members volunteer

to do unskilled manual work. The provisions of

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Section 3 of the said Act reads thus :

GUARANTEE OF EMPLOYMENT IN RURAL AREAS.

3. Guarantee of rural employment to poor households.-(1) Save as otherwise provided, the State

Government shall, in such rural area in the State as may be notified by the Central Government, provide to every household whose adult members

volunteer to do unskilled manual work not less than one hundred days of such work in a financial year in

accordance with the Scheme made under this Act.

(2) Every person who has done the work given to him under the Scheme shall be entitled to receive wages at the wage rate for each day

of work.

(3) Save as otherwise provided in this Act, the disbursement of daily wages shall be made on a weekly basis or in any case not

later than a fortnight after the date on which such work was done.

(4) The Central Government or the State Government, may within the

limits of its economic capacity and development, make provisions for securing work to every adult member of a household under a Scheme for any period beyond the period guaranteed under sub-section (1), as may be expedient.

11 wp4207.11

8. Therefore, upon careful perusal of

provisions of the said Act which are reproduced

herein above, it is abundantly clear that, only

local residents are entitled to register and apply

for work. The word 'local' implies the person

residing within limits of Grampanchayat. 'Local'

also includes, those persons who are migrated some

time ago but may return to the said village.

Therefore, in our considered opinion, prayer of

the petitioner that, the members of the petitioner

who move from one place to another place and from

village to village be registered at every village

and they may be issued identity card of every

village cannot be entertained which would dehors

the provisions of the Act of 2005. There is no

provision under the Act of 2005 to accede to the

request/prayer of the petitioner.

9. The word 'household' appearing in Section

3 is defined in clause (f) of Section 2 of the

said Act, which reads thus :

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(f) "household" means the members of a family related to each other by blood, marriage or adoption

and normally residing together and sharing meals or holding a common ration card. (emphasis supplied).

. Upon perusal of definition 'household',

it is abundantly clear that, household in its

sweep also includes, holding of common ration

card.

10.

The provisions of Section 5 of the said

Act provides for conditions for providing

guaranteed employment. The provisions of Section 5

refers to the conditions specified in Schedule II

under the said Act. Under Schedule II, the

conditions for guaranteed rural employment under a

scheme and minimum entitlement of labourers are

given. Under the said Schedule, the adult members

of every household who reside in any rural areas

and are willing to do unskilled manual work, may

submit their names, age and the address of the

household to the Gram Panchayat at the village

level in the jurisdiction of which they reside for

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registration of their household for issuance of a

job card. The duty is also cast upon the Gram

Panchayat to register the household, after making

such enquiry as it deems fit and issue a Job Card

containing essential details of registered adult

members of the household which are enumerated

under the said Schedule. One factor out of 10

factors which are required to be looked into by

Grampanchayat is, elector's photo identity card

number voters identity, if any. The condition No.

3 under the Schedule is also makes obligatory on

the concerned authority to ascertain, Job Card

issued shall bear the photographs of only

registered adult members of the households to whom

the Job Card has been issued. Under said Schedule,

applications for work may be submitted in writing

either to the Gram Panchayat or to the Programme

Officer, as may be specified in the Scheme. The

Gram Panchayat shall prepare and maintain or cause

to be prepared and maintained such registers,

vouchers and other documents in such form and in

such manner as may be specified in the Scheme

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containing particulars of job cards and pass books

issued, name, age and address of the head of the

household and the adult members of the household

registered with the Gram Panchayat.

. Under clause (p) of Section 2 of the Act

of 2005, 'Scheme' means a Scheme notified by the

State Government under sub-section (1) of section

4.

11. Therefore, it follows from the careful

perusal of the provisions of the said Act of 2005,

and Schedule II under Section 5 that, the person

applying to register his name under said Scheme

should be resident, within the jurisdiction of

village panchayat. Under Schedule II of the said

Act, it is also provided that, as far as

possible, employment shall be provided within

radius of 5 kms., of the village where the

applicant resides at the time of applying.

Therefore, adult members of every household who

resides in any rural areas and are willing to

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unskilled manual work, can file application with

the Gram Panchayat at the village level in the

jurisdiction of which they reside for registration

of their household for issuance of a Job Card.

12. Therefore, the contentions of the

petitioner that, the members of the petitioner who

have no particular place of abode and who belongs

to VJNT, Banjara etc., should be allowed to

register their names with the Gram Panchayat of

different villages and they should be provided

work all over the State, cannot be considered

within the provisions of the Scheme and Schedule

II under Section 5 of the Act of 2005. Therefore,

on careful consideration of the provisions of the

Act of 2005, Schedule II under Section 5 and the

Scheme framed by the State Government, we are of

the considered opinion that, by any stretch of

imagination, prayer of the petitioner organization

cannot be considered and granted.

13. In the light of discussion herein above,

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in our opinion, the impugned communication dated

20th January, 2011, which is assailed in this writ

petition, cannot be said to be illegal or

arbitrary, rather it is in consonance with the

provisions of the Act of 2005 and Scheme framed

thereunder by the Government of Maharashtra.

14. Hence, writ petition sans merit and same

stands rejected. Rule stands discharged.

[S.S. SHINDE, J.] [ R.M. BORDE, J.]

sut/OCT12