IMPORTANT POINT
The performance appraisal of Ombudsman is mandatory for extending tenure beyond two years, and termination without appraisal is unlawful.

JUDGMENT :

(D.K. SINGH, J.)

1. The petitioners are working as Ombudsman in the nature of pro bono public service under the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) (hereinafter referred to as “the Scheme” for short). The said Scheme is fully funded by the Central Government which aims to generate and provide employment in rural areas of the Country. The Scheme envisages the appointment of Ombudsman under Section 27 of the National Rural Employment Guarantee Act, 2005. The Central Government has issued instructions for appointment and continuation of the Ombudsman on 07.09.2009 in Exhibit P-2.

2. The appointment of Ombudsman under the Scheme is to be made by the recommendations of the Selection Committee consisting of Chief Secretary of the State Government as Chairperson, Representative of Union Ministry of Rural Development as Member, Eminent Civil Society Person nominated by Union Ministry of Rural Development as a member and Secretary, State Nodal Department as Member Convenor. The Ombudsman selected by the Selection Committee is to be appointed for a tenure of two years extendable by one year based on performance appraisal or till the incumbent attains the age of 65 whichever is earlier. It further provided that there shall be no re-appointment. The performance appraisal is made by the Selection Committee and a copy of the performance appraisal report is to be furnished to the State Employment Guarantee Council.

3. On unsatisfactory performance, the Ombudsman may be removed by the State Government on the recommendation of the Selection Committee.

4. The petitioners were appointed as Ombudsman for a period of two years as per the Scheme and Instruction on Ombudsman. The Selection Committee undertook to evaluate the performance of these candidates but without completing the performance appraisal, the process of selection of new appointments of Ombudsman has been undertaken by the Selection Committee.

5. The revised guidelines have been issued in the year 2023 by the Government of India, Ministry of Rural Development, Department of Rural Development, Mahatma Gandhi NREGA Division on 20.03.2023. Clause 2.2.9 of the said guidelines provides as under;

“2.2.9 The Ombudsman shall be appointed for tenure of 2 (two) years extendable not more than twice by one year each based on a performance appraisal process or till the incumbent attains the age of 68 (sixty eight) years, whichever is earlier. There shall be no reappointment.”

6. The learned Counsel for the petitioners submits that there is no ‘separate statement’ and only ‘shall’ has been used in the single sentence which means that the ‘tenure of the Ombudsman is for a period of two years and it shall be extendable by one year each based on the performance appraisal’. The submission is that the language of Clause 2.2.9 of the guidelines dated 20.03.2023 mandates for conducting the performance appraisal and only if in the performance appraisal some person working as Ombudsman has not been found fit for continuation, then only the tenure shall not be extended.

7. Ms. K. R. Deepa, the learned Special Government Pleader submits that it is the discretion of the State Government to extend the engagement of the Ombudsman after an initial period of two years. The State Government is not bound to extend and carry out performance appraisal. However, if the State Government decides to extend the period beyond two years, then the performance appraisal has to be done.

8. I have considered the submissions. The Court is required to give correct construction to the language employed in Clause 2.2.9 of the guidelines dated 20.03.203 issued by the Government of India, Ministry of Rural Development. The said Clause has already been extracted above. The sentence; “The Ombudsman shall be appointed for tenure of 2 (two) years extendable not more than twice by one year each based on a performance appraisal process ………………..” is a ‘single sentence’. Only one verb ‘shall’ has been used in