MGNREG Act | Collector Can Transfer Gram Rozgar Sevaks For 'Administrative Exigencies': Orissa High Court

While dismissing challenges to such transfers, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Chittaranjan Dash held,

"In view of the above statutory framework and set up Operational Guidelines and instructions, the Court is satisfied that the Collector was authorised to issue orders of transfer of GRSs and it was not in violation of any of the provisions of the OGP Act (Orissa Gram Panchayat Act). There is a basic misconception in construing the engagement of the GRSs as being covered by the OGP Act whereas it is covered under Section 18 of the MGNREG Act read with the Operational Guidelines issued thereunder."

Brief Facts:

The impugned transfer orders were issued by the Collector, Kalahandi. The reason given in the impugned office order was that they were being transferred on "administrative ground".

The Single Judge, while dismissing the writ petitions filed by the GRSs, relied on an earlier judgment of the Court dated 11^th October, 2017 in Jitendra Kumar Pati v. State of Orissa [W.P.(C) No.19627 of 2017], which had been dismissed holding that 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 shown.

Being aggrieved by the same, the Appellants have filed these writ appeals before the Division Bench.

The appellants contended that the Single Judge failed to appreciate that a master and servant relationship exists between the Gram Panchayat (GP) and the GRS and the same is governed by the provisions of the Orissa Gram Panchayat Act, 1964 (OGP Act). Thus, the Collector had no authority to issue such orders of transfer.

Secondly, it was submitted that the impugned orders of transfer are violative of principles of natural justice since no opportunity of hearing was afforded to any of the appellants before the transfer orders were passed. It was submitted that the authority of the GP cannot be taken away by the Collector who has exceeded his power and authority in passing the impugned orders of transfer.

Court's Observations:

The Court highlighted that in the counter affidavit, it was explained in detail by the Additional Secretary, Panchayati Raj & Drinking Water Department, Government of Odisha that the engagement of the GRS was only pursuant to Section 18 of the MGNREG Act and not under the OGP Act.

Under Section 18 of the MGNREG Act, the State Government is mandated to make available to the District Programme Coordinator, who happens to be the Collector and the Programme Officer i.e. the Block Development Officer (BDO), necessary staff and technical support as may be necessary for the effective implementation of the MGNREG Scheme.

The Court further referred to para 2.4.2. of the MGNREGA's Operational Guidelines, 2013, which reads,

"2.4.2 State Government Responsibilities of the State Government include:

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viii) Ensure that full time dedicated personnel, wherever required, are in place for implementing MGNREGA, specially the Employment Guarantee Assistant (Gram Rozgar Sahayak), the PO and the staff at state, district and Cluster level;

ix) Delegate financial and administrative powers to the DPC and the Programme Officer, as is deemed necessary for the effective implementation of the Scheme."

The Court accordingly held that in terms of the above guidelines, clear instructions were issued regarding selection and engagement of GRSs on 6^th April, 2018. Separately, on 2^nd June 2018, the Government of Odisha had authorised inter alia the Collector-cum-CEO, Zilla Parishad to transfer the GRSs within the district in view of administrative exigencies.

Accordingly, it was concluded that the Collector was empowered to transfer a GRS from one GP to another GP within the District for administrative reasons. Therefore, there is no illegality attached to the impugned transfer orders. Further, as none of these appellants were able to show that the impugned transfer orders suffer from any malice in law or are manifestly arbitrary so as to warrant interference by the Court, the writ appeals and consequently, the writ petitions were also dismissed.

Case Title: Gagan Bihari Patra & Ors. v. State of Odisha & Ors.

Case No.: W.A. No. 401 of 2017 & other connected matters

Judgment Dated: 19^th September 2022

Coram: Dr. S. Muralidhar, CJ. & Chittaranjan Dash, J.

Judgment Authored By: Dr. S. Muralidhar, CJ.

Counsel for the Appellants: Mr. Sukanta Kumar Dalai & Mr. Aparesh Bhoi, Advocates

Counsel for the Respondents: Mr. Manoja Kumar Khuntia, Additional Government Advocate

Citation: 2022 LiveLaw (Ori) 142