State of Gujarat & ANR Vs. Raman
Lal Keshav Lal Soni & Ors [1983] INSC 7 (27 January 1983)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) VARADARAJAN, A. (J) CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED MURTAZA
TULZAPURKAR, V.D.
CITATION: 1984 AIR 161 1983 SCR (2) 287 1983
SCC (2) 33 1983 SCALE (1)66
CITATOR INFO :
F 1984 SC 385 (11,20) MR 1985 SC 421 (79)
E&R 1987 SC 415 (16,17) R 1987 SC1858 (22) RF 1991 SC1047 (8)
ACT:
Gujarat Panchayat Act, 1961-As amended by the
Gujarat Panchayat (Third Amendment) Act, 1978-officers and servants of the
panchayats - Whether Government servants.
Master and servant relations-Tests for the
determination of Constitution of India, 1950, Articles 14 and 311-Status of
Government servant-If could be determined retrospectively.
Interpretation-Legislature, if has power to
take away or impair a constitutional right etrospectively.
HEADNOTE:
The Gujarat Panchayats Act, 1961 was enacted
to consolidate and amend the law relating to village panchayats and district
local boards with a view to reorganise the administration pertaining to local
Government in furtherance of the object of democratic decentralisation of
powers in favour of different classes of panchayats. It was provided that the
state Government should exercise control over panchayats either directly or
through such officer or officers as it may appoint for that purpose. The
Panchayat organisation consisted of Gram Panchayats, Taluqa Panchayats and
District Panchayats which are bodies corporate with perpetual succession and
common seal. Notwithstanding that they were separate bodies corporate, the
panchayats formed part of the panchayat organisation set up for securing a
greater measure of participation by the people in the local governmental
functions. They were enjoined to perform functions and duties assigned by or
under the Act so as to conform to the State plans, National plans and the State
policy in general. The State Government was empowered to cause inspection to be
made and to call for and examine the record of the proceedings of any
panchayat. On the enactment of the 1961 Act, the District Local Boards, village
panchayats and municipalities constituted under earlier Acts stood transformed
as District Panchayats, gram or nagar panchayats, depending on population. Officers
and servants of the District Local Boards were deemed to be transferred to the
service of the district panchayats, Secretaries, Officers and servants in the
employ of the old village panchayats became Secretaries, Officers and servants
of the new gram panchayats and h officers and servants in the employ of
municipalities became Officers and servants of the interim panchayats.
288 The gram panchayats were entrusted with
the work of looking after sanitation and health, public works, community development,
agriculture, preservation of forests and a number of other subjects. They were
entrusted with the work of collection of land revenue and do any or all the
functions and duties of village accountant or Patel or other similar functions
of any other person in relation to the collection of land revenue and dues
recoverable as arrears of land revenue. Provision had been made in the Act for
the transfer to the District Panchayats of such powers, functions and duties
relating to any matters as are exercised or performed by the State Government
or any officer of the Government under any enactment which the State
Legislature is competent to enact or otherwise in the executive power of the
State. The Act also provided that any functions and duties relating to any of
the matters specified in the panchayat functions list, previously being
performed by the State Government, shall be transferred to the District
Panchayats together with the funds provided and the staff employed therefor. On
such transfer, the District Panchayat may delegate, with the approval of tho
Government, to any panchayat subordinate to it any of the functions and duties
so transferred. A fund called the Gram Fund or Nagar Fund was created and the
proceeds of any tax or fee imposed by or assigned to the Panchayat under the
Act, sums contributed to the fund by the State Government and all other sums
received by the Panchayat were to be credited in the fund. The Act provided for
appointment of a Secretary and such other servants as may be determined for
every Gram Panchayat and Nagar Panchayat in accordance with rules prescribed by
the Government. Depending on the facts and circumstances of a case, the State
Government may direct that a group of Panchayats shall have one Secretary only.
The Secretary and other servants were
required to do all the administrative functions as may be conferred on them by
the Panchayat. The Act provided that there shall be a Secretary for every
Taluqa Panchayat and that the Taluqa Development officer who shall be an officer
belonging to the State service and posted under the panchayat, shall be
ex-officio Secretary of the panchayat. The District Development officer posted
under the District Panchayat was to be the ex-officio Secretary of the District
Panchayat.
For the purpose of bringing about uniform
scales of pay and uniform conditions of service-for persons employed in the
panchayats, the Act provided for the constitution of a panchayat service which
was declared to be distinct from the State service. Power was given to the
State Government to determine from time to time classes, cadres and posts of
officers and their strength A servant belonging to district cadre was liable to
be posted whether by promotion or transfer, to any post in any other cadre as
provided in the rules. The State Government was empowered to make rules
regulating the mode of recruitment either by holding examinations or otherwise
and their conditions of service.
Appointments to posts in the panchayat
service were to be made by direct recruitment or by promotion or by transfer of
a member of the State service to the Panchayat service. The Stale Government
was empowered to allocate to the Panchayat service the requisite number of
officers and servants who shall be taken over by the panchayat in such cadre
and on such tenure, remuneration and other conditions of service as the State
Government may determine and the it expenditure on account of pay and
allowances of officer and servants of the Panchayat was to be met from the
funds of The panchayat. The Act enabled 289 the State Government to direct the
posting of officers of the Indian Administrative Service and of Class-ll
services of the State Government in panchayat institutions. Provision was made
for the constitution of a Panchayat Service Selection Board and District
Panchayat Service Selection Committees for selection of officers and other
members of staff.
After the coming into force of the 1961 Act
the State Government made several sets of rules, one of which was the Gujarat
Panchayat Service (Absorption, Seniority, Pay and Allowances) Rules, 1965. The
Rules provided for the equation of posts, fixation of seniority, scales of pay
and allowances of "allocated employees". An "allocated
employee" meant a person allocated to the panchayats service Under the
rules every allocated employee holding a corresponding post immediately before
the appointed day shall be appointed to the equivalent post, that is, a post in
the Panchayat service, which the State Government may, by order, determine to
be generally corresponding to a post held by an allocated employee immediately
before the appointed day (called corresponding post) having regard to the pay
scales, minimum educational and other qualifications prescribed for the
equivalent post and the corresponding post and the nature and magnitude of
responsibilities attached to such posts.
Therefore, unless equivalence of posts was
first determined by order of the State Government, the 1965 Rules could not be
applied The State Government did not make any order regarding the equation of
posts of the staff in the local cadre and the fixation of their scales of pay,
although such orders were made in respect of posts of other cadres. The
Government did not extend to the staff borne on the local cadre, the benefit of
revision of scales of pay made on the basis of the recommendations of the two
Pay Commissions, though such benefit was extended to the District and Taluqa
Cadres; nor did the Government make any order providing for promotional avenues
to employees of the local cadre.
Aggrieved by the inaction of the Government,
the employees of the local cadre of the panchayat service filed a writ petition
in the High Court seeking various reliefs.
'The Government contended that members of the
panchayat service were not Government servants and so were not entitled to
claim the reliefs asked for by them.
Allowing the petitions the High Court held
that the employees belonging to the local cadre were Government servants and
directed the State Government to make suitable orders under the 1965 Rules to
initially fix the pay scales and other conditions of service, lo revise the
scales of pay in accordance with the recommendations of the Pay Commission.
Certain other reliefs were also given.
The State Government filed in this Court an
appeal against the, judgment of the High Court. In the meantime, the Governor
promulgated the Gujarat Panchayats Amendment ordinance, 1978 which later became
the Gujarat Panchayats (Third Amendment) Act, 1978.
The amending Act of 1978 was enacted to get
over the effect of the judgment of the High Court. It denied the status of
Government servants to certain categories of employees and their allocation to
the Panchayat service was cancelled with retrospective effect.
290 In their writ petitions the employees of
the local cadre contended that the provisions of the Amendment, Act of 1978
were violative of Article 311 of the Constitution, that the Act was
discriminatory and that the benefits acquired by them could not be taken away
with retrospective effect.
In the appeal it was contended that having
regard to the various provisions of the Act the members of the panchayat
service were Government servants.
Dismissing the appeal and allowing the
petitions,
HELD: The panchayat service constituted under
the Act is a civil service of The State and the members of the service are
Government servants.
[309 C] It is not possible to lay down any
distinctive test to determine when a person may be said to hold a civil post
under the Government. The presence of all or some of the factors such as the
right to select for appointment, the right to appoint, the right to terminate
the employment, the right to take disciplinary action or determine the service,
(he source from which wages or salary are paid and a host of such circumstances
may have to be considered to determine the existence of the relationship of
master and servant.
[ 306 B-D] Gurugobinda Basu v. Sankari Prasad
Ghosal, [1964] 4 SCR 311; State of Uttar Pradesh v. Audh Narain Singh, [1964] 7
SCR 89; State of Assam v. Shri Kamakchandra Dutta, [1967] 1 SCR 679;
Gurushantappa v. Abdul Khuddus, [1959] 3 SCR 425;
S.L. Aggarwal v. Hindustan Steel Ltd., [1970]
3 SCR 363;
Jalgaon Zilla Parishad v. Duman Gobind and
others, C.A. No. 24 & 25 of 1968 decided on December 20, 1968, referred to.
In the instant case, members of the service
are required to perform functions in connection with those affairs of the State
entrusted to the panchayats either by the Act itself or by transfer by the
Government-under the Act. It may be that the pay and other allowances of the
officers were paid out of the panchayats' own funds but the sums consisted of
funds contributed or lent by the State Government and of the proceeds of any
tax or fee imposed by or assigned to the panchayats under the Act. This
imposition of a tax or fee J in the nature of a tax is essentially a function
of the State. So the salary and allowances of servants and officers are paid
out of the funds contributed or lent by Government or raised by the discharge of
an essential governmental function. Officers and staff are to be appointed by
an authority prescribed by the Government and their conditions of service shall
be as may be prescribed by the Government. The Act contemplates the
constitution of a single centralised panchayat service, the classes, cadres and
posts of which have to be determined by the Government from time lo time. Such
other topics like recruitment, conditions of service, transfer, promotions,
disciplinary action to be taken against the officers and servants are to be
regulated by rules made by the Government. There cannot be any question of a
rule providing for promotion from the panchayat service to the State service
unless the panchayat service is also a service under the State. The provisions
291 relating to inter district transfers of servants of the panchayat service
and provisions which provide for promotion and transfer of servants belonging
to the different cadres within the District, Taluqa and Gram or Nagar panchayat
clearly show that these servants are not the servants of the individual
panchayat but belong to a centralised service.
The provision relating to transfer and
allocation of members of the State service to the panchayat service necessarily
implies that the panchayat service is also a service under the State and such
transfers would be impermissible unless the panchayat service is also a service
under the State. The very idea that there can be an allocation to the Panchayat
service from a State service and a reallocation from the panchayat service to
the State service is only consistent with the panchayat service also being a
service under the State.
[306 G-H, 307 A-H, 308 E] The provision under
the Act that the panchayat service shall be distinct from the State service does
not indicate a disclaimer by the Legislature that the panchayat service is a
service under the State; it is a distinct service from the state service
because the panchayat institutions constitute an almost parallel but subsidiary
Government. Again Government servants do not cease to be Government servants
merely because, for the time being, they are allocated to different panchayat
institutions and are paid out of the funds of institutions which are declared
to be bodies corporate. [308 F-H, 309 B-C] G.L. Shukla v. State of Gujarat, 8
G.L.R. 833 approved.
The Gujarat Panchayats (Third Amendment) Act,
1978 is unconstitutional as it offends Articles 311 and 14 and is arbitrary and
unreasonable. The provisions are so intertwined with one another that it is
impossible to separate the offending sections from the others. [320 E-G] The
object of the 1961 Act was "democratic decentralisation of power and the
consequent re-organisation of the administration of local Government" and
even after the 1978 amendment this object continued to be the same.
Even so, section 11 (1) which declared that
the different panchayats shall constitute a panchayat organisation was omitted.
The Statement of objects and reasons stated that the amendments were
necessitated to get over the judgment of the High Court that the panchayat
service was a State service. That could not be a reason to go against the
object of the principal Act and to abandon the constitution of the State
panchayat organisation [312 E-H] The effect of the amending Act was that
non-Talati Secretaries and other officers and servants of the Gram and Nagar
panchayats were to be deemed to be the servants of the respective panchayats
notwithstanding the judgments of courts declaring them to be Government
servants. The District panchayats were barred from transferring their staff to
Gram and Nagar panchayats consequent on the delegation of functions, powers and
duties to Gram and Nagar panchayats. A panchayat service consisting of persons
employed in connection with the affairs of Taluqa panchayats and District
panchayats and of specified servants was constituted notwithstanding anything
contained in any judgment, decree or order of any court and such persons and
servants were deemed to have always been the officers and servants of tho
Taluqa panchayats or tho District panchayats for the ostensible reason 292 of
enabling the respective panchayats to exercise their powers and perform their
functions efficiently. In so doing it omitted the Gram and nagar panchayats
which are at the very base of democratic decentralisation and on which the
superstructure stands. [314 C-H, 315 E-F] Before the Amending Act of 1978 was
passed, ex- municipal employees who had been allocated to the panchayat service
as Secretaries, officers and servants of Gram and Nagar panchayats had achieved
the status of Government servants. The amending Act hag done away with their
status as members of a service under the State without giving them an option.
Retrospectivity is given in order that they could not claim that they were ever
Government servants. But their status as Government servants could not be
extinguished so long as the posts were not abolished and their services were
not terminated in accordance with the provisions of Article 311 of the Constitution
nor was it permissible to single them out for differential treatment because
that would offend Article 14 of the Constitution. [319 B-D] There is no force
in the contention that some of the officers and servants of the Gram and Nagar
panchayats were Government servants from the beginning while other officers and
servants of Gram and Nagar panchayats were not and that a classification on the
basis of source of their services was permissible. Once they had joined the
common stream of service and performed the same duties, it is not permissible
to make any classification on the basis of their origin.
[319 D-E] Undoubtedly, the Legislature is
competent to legislate with retrospective effect to take away or impair any
vested right but since laws are made under a written constitution and have to
conform to the do's and don'ts of the constitution neither prospective nor
retrospective laws can be made so as to contravene the fundamental rights. A
Legislature cannot legislate today with reference to a situation that obtained
20 years ago and ignore the constitutional rights accured in the course of 20
years. A law which, if made today, would be plainly invalid as offending
constitutional provisions in the context of the existing, situation cannot
become valid by being made retrospective [319 G-H, 320 B, E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 359 of 1978.
Appeal by Special leave from the Judgment and
order dated the 28th January, 1977 of the Gujarat High Court in Special Civil
Application No. 309 of 1975.
AND Writ Petition Nos. 4266-4270 of 1978.
(Under Article 32 of the Constitution of
India) V.M. Tarkunde, Diranjan Mehta, P.H. Parekh and Mrs.
Manik Tarkunde for the Petitioners in MPs.
and R.R. 1-3 and in CA. 359.
D.V. Patel, C.V. Subba Rao, Dy. Govt.
Advocate, M.N.
Shroff, G.N. Desai and R. N. Poddar for the
Appellant in CA.
359 and RR 1 and 2 in WPs.
293 Vimal Dave and Miss Kailash Mehta for the
Intervener in W.P.
Mukul Mudgal for Respondent No. 9 in CA.
359/79 and for Respondent No. 6 in WPs.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. The attitude of the State of Gujarat in these cases bas
indeed left us puzzled and wondering. On the one hand, there are lakhs of
employees working under various Panchayat Institutions, call them Government
servants or no, to whom the benefits of the recommendations of the two Pay
Commissions, the Sarela and the Desai Commissions, have been extended while on
the other hand, there is a microscopic number (comparatively) of about six
thousand employees of the lowest category, also working under Panchayat
Institutions, who are denied the benefits of those recommendations, on the sole
ground of a birth-mark, if we may so call it, since they are denied the
benefits because before they came to work under the Panchayat Institutions,
they were employed in municipalities while the others were Government servants
to start with. The unfairness and the injustice of the distinction is patent,
whatever legal justification may be put forward. Surely, the State, dedicated
as it is to socialism, equality and economic justice and enjoined by the
Directive Principles to secure the right to work, a living wage, equal pay for
equal work and so on cannot make such a distinction But the distinction has
been made; it is sought to be sustained by those making it and we are
constrained to examine whether there is any Constitutional or other legal
sustenance for the distinction. We did request the Counsel for the State of
Gujarat to communicate with his clients to find out if the benefits cannot
gracefully be extended to the erstwhile employees of municipalities presently
working under Panchayat Institutions also. We are told that the answer of the
State of Gujarat is in the negative.
The appeal and the Writ Petitions were heard
once before by a Constitution Bench consisting of Chandrachud, CJ, Sarkaria,
Untwalia, Kailasam and Venkataramiah, JJ. The opinion of the Constitution Bench
was pronounced by Venketaramiah, J., on July 13, 1980. (The opinion is reported
in [1981] 1 SCR 144), But on the application of the appellants, the opinion was
set aside and the appeal and the Writ Petitions were directed to be set down
for hearing once more by the Constitution Bench. That is how the matters have
again come before us.
294 Pursuant to the Constitutional mandate in
Art. 40 that "the State shall take steps to organise village panchayat and
endow them with such powers and authority as may be necessary to function as
units of self-Government". the State of Gujarat enacted the Gujarat Panchayats
Act 1961 (Act No. VI of 1962) 'to consolidate and amend the law relating to
village Panchayats and district local boards with a view to reorganise the
administration pertaining to local Government in furtherance of the object of
the democratic decentralisation of powers in favour of different classes of
Panchayats'.
The Gujarat Panchayats Act 1961 was
substantially amended in 1978 in an attempt, as we shall presently point out,
to circumvent the judgment of the Gujarat High Court which is under appeal
before us. The constitutional validity of the Amending Act is in question in
the Writ Petitions which are before us.
We shall first refer to the provisions of the
Gujarat Panchayats Act, as they stood before they were amended in 1978. By s.
11 (1) of the Act, as it originally stood, a Panchayat organisation was
constituted for the State of Gujarat, consisting of Gram Panchayats, Taluqa
Panchayats, District Panchayats, Gram Sabhas, Nyaya Panchayats and Conciliation
Panchas lt is provided by Section 11 (2) that the State Government shall
exercise control over Panchayats either directly or through such officer or
officers as it may appoint for that purpose. Local areas comprising of revenue
villages or groups of revenue villages or hamlets forming parts of revenue
villages or other administrative units or parts thereof are to be declared
Grams under the Act, if the population of the local areas does not exceed
10,000 and Nagars if the population of the local areas exceed 10,000 but does
not exceed 20,000. There is to be a Gram Panchayat for each Gram and Nagar
Panchayat for each Nagar. There is also to be a Taluqa Panchayat for each
taluqa and a District Panchayat for each district, as constituted from time to
time under the Land Revenue Code.
The Gram Panchayat, the Nagar Panchayat, the
Taluqa Panchayat and the District Panchayats are to be bodies corporate with
perpetual succession and common seal. Sec. 8 prescribes the hierarchy and
provides that, subject to the control of the Government, a Gram Panchayat is to
be subordinate to the Taluqa Panchayat and the District Panchayat, while a
Nagar Panchayat and Taluqa Panchayat are to be subordinate to the District
Panchayat. While the Gram Panchayats, Nagar Panchayats, 295 Taluqa Panchayats
and District Panchayats are to be bodies corporate, Sec. 287 makes it explicit
that, notwithstanding that they are separate bodies corporate having distinct
territorial jurisdiction and territorial functions to perform, the Gram
Panchayats, Nagar Panchayats, Taluqa Panchayats and District Panchayats shall
form part of the panchayat organisation, set up for the purpose of securing a
greater measure of participation by the people of the State in local government
functions and shall perform the functions and duties assigned to them by or
under the Act so as to conform to the State plans, National plans and the State
policy in general, and also so as to give effect to general or special
directions as may be issued by the State Government. Sec. 292 (A) and Sec. 305
authorise the State Government to cause inspection to be made and to call for
and examine the record of the proceedings of any panchayat.
At this juncture, we may mention that prior
to the enactment of the Gujarat Panchayats Act, 1961, there were in force in
the State of Gujarat the Bombay Village Panchayat Act, 1958, the Bombay Local
Boards Act, 1923, the Bombay District Municipal Act, 1901 and the Bombay
Municipal Boroughs Act, 1925. The Bombay Village Panchayat Act 1958 and the
Bombay Local Boards Act, 1923 are repealed by Secs. 325 and 326 of the Gujarat
Village Panchayats Act, 1961. A local area declared to be a village under the
Bombay Village Panchayats Act, 1958 and a Panchayat constituted under that Act,
are deemed to be gram and panchayat under the Gujarat Gram Panchayats Act.
1961. The Secretaries and all officers and servants under the employment of the
old village Panchayats are to be Secretaries, officers and servants of the new
gram panchayats. A District Local Board constituted under the Bombay Local
Boards Act for a local area is to stand dissolved. All property which stood
vested in the district local board P immediately before the appointed day is to
be deemed transferred to the district panchayat constituted for the local area,
called the successor panchayat. All officers and servants in the employment of
the District Local Board are similarly to be deemed transferred to the service
of the successor panchayat. Where local areas are declared to be grams or
nagars under Sec. 9 of the Gujarat Gram Panchayats Act, 1961 and such areas
correspond to the limits of a municipal district or municipal borough under the
Bombay District Municipal Act or Bombay Municipal Borough Act, it is provided
by Sec. 307 of the Gujarat Panchayats Act that the municipality previously
functioning in such local area shall cease to exist and that the councillors of
such municipality shall constitute an interim 296 gram panchayat or interim
nagar panchayat as the case may be for the gram or nagar. It is also provided
that all officers and servants in the employment of the municipality
immediately before the date of declaration of the local areas as gram or nagar,
shall be officers and Servants of the interim panchayat.
Thus broadly, District Local Boards under the
Bombay Local Boards Act stand transformed as District Panchayats, village
panchayats under the Bombay Village Panchayats Act as gram panchayats and
municipalities under the Bombay District Municipal Act and Bombay Municipal
Boroughs Act as gram or nagar panchayats, depending on the population.
Officers and servants in the employ of the
District Local Boards are deemed to be transferred to the service of the
district panchayats; Secretaries, officers and servants in the employ of the
old village panchayat become Secretaries, officers and servants of new gram
panchayats and officers and servants in the employ of municipalities become
officers and servants of interim panchayats.
To continue our tour of inspection (if one
may use such an expression) of the provisions of the Act, Sec. 88 of the Act
empowers each gram panchayat to make, in the area within its jurisdiction, and
so far as the fund at its disposal will allow, reasonable provision in regard
to all or any of the matters specified in Sch. I. Sch. I enumerates a host of
matters under the heads 'Sanitation and Health 'Public works', 'Education and
Culture', Self Defence and Village Defence', 'Planning and Administration',
'Community Development, Agriculture, Preservation of forests and Pasture
Lands', 'Animal Husbandry', 'Village Industries' and 'Collection of Land P
Revenue'. Under each of these heads innumerable subjects are specified. In
regard to the collection of land revenue express provision is further made by
Sec. 149 that the Government shall, notwithstanding anything contained in Land
Revenue Code or any other law, entrust to every Gram Panchayat and every Nagar
Panchayat, any or all of the functions and duties of village Accountant or
Patel or other similar functions of any other person by whatever name called,
in relation to the collection of land revenue and dues recoverable as arrears
of land revenue and all other functions and duties of village Accountant under
the Land Revenue Code. Sec. 150 provides that the panchayat so entrusted under
Sec. 149 shall be responsible for the collection of land revenue and other dues
of the gram or nagar as the case may be.
297 In addition to the functions enumerated
in Sch. E. Sec. 89 imposes certain other duties and functions on the panchayat.
A panchayat may, for example, carry out in the area within the limits of
jurisdiction, any other work or measure which is likely to promote health,
safety, education, comfort, convenience or social or economic or culture
well-being of the inhabitants of the area including secondary education. A
panchayat is also required to carry out the directions or orders given or
issued from time to time by the State Government for the amelioration of the
condition of scheduled castes and scheduled tribes, and other backward classes.
Taluqa and District Panchayats are required
by secs.
117 and 137 respectively to make reasonable
provision in respect of matters specified in Schedules II and III. In Schedule
II, a number of subjects are enumerated under the beads 'Sanitation and
Health', 'Communication', 'Education and Culture', 'Social Education',
'Community Development', 'Agriculture and Irrigation', 'Animal Husbandry',
'Village and Small Scale Industries', 'Corporation'. 'Women's Welfare', 'Social
Welfare', 'Relief', 'Collection of Statistics', 'Trusts', 'Forests', 'Rural
Housing,' and 'Information'. ID Schedule III, similarly, a number of subjects
are enumerated under the heads 'Sanitation and Health', 'Public Works',
'Education and other Cultural Activities', 'Administration', 'Community
Development', 'Agriculture', 'Animal Husbandry', 'Village and Small Scale
Industries', 'Social Welfare', 'Relief' and 'Minor Irrigation Projects'.
Sec. 155 provides for the transfer of the
functions previously performed by District School Boards under the Bombay and
Saurashtra Primary Education Act to taluqa and district panchayats.
Sec. 156 provides for the delegation to
district and taluqa panchayats such powers and functions and duties of the
Registrar or any other authority under the Bombay Cooperative Societies Act, as
may be specified.
Sec. 157 provides for the transfer to
District Panchayats of such powers, functions and duties relating to any
matters as are exercised or performed by the State Government or any officer of
the Government under any enactment which the State Legislature is competent to
enact, or otherwise in the executive power of the State. On the transfer of
such functions, the Government is also required to allot to the District
Panchayats such funds and personnel 297 as may be necessary to enable the
District Panchayats to exercise the powers and discharge functions and duties
so transferred. Sec. 157 (2) mentions the subjects which in particular may be
transferred to the District Panchayats.
Sec. 157 (3) further provides that on the
transfer of powers, functions and duties under sub-Sec. (I) and (2), the
District Panchayat shall, if the State Government so directs and may with the
previous approval of the Government, delegate to any panchayat subordinate to
it any of the functions, powers and duties so transferred and allot to such
Panchayats such funds and staff as may be-necessary to enable the Panchayat to
discharge the functions and duties so delegated.
Sec. 158 provides that any function and
duties relating to any of the matters specified in the Panchayat functions
list, which were previously being performed by the State Government, shall be
transferred to the District Panchayats together with the funds provided and the
staff employed therefor. On such transfer, the District Panchayat may delegate,
subject to the approval of the Government, to any panchayat subordinate to it
any of the functions and duties so transferred.
Sec. 96 of the Act authorises the State
Government to vest in a Panchayat open sites, waste, vacant or grazing lands or
public roads, streets, bridges, ditches, dikes and fences, wells, river banks,
streams, lakes, nallas, canals, water courses, trees or any other property in
the gram or nagar.
Sec. 99 provides for the creation of gram and
nagar funds. Each gram and nagar is to have a fund called the Gram Fund or the
Nagar Fund into which are to be paid, inter- alia, the proceeds of any tax or
fee imposed by or assigned to the panchayat under the Act, sums contributed to
the fund by the State Government or the Taluqa Panchayat or the District
Panchayat and all sums received by way of loans from the State Government or
the Taluqa Panchayat or the District Panchayat or out of the District
Development Fund or otherwise.
Sec. 119 vests in the Taluqa Panchayat every
road building and other work constructed by the Taluqa Panchayat any land or
property transferred to the Taluqa Panchayat by the State Government and any
land or property transferred by any other Panchayat. Sec. 139 vests in the
District Panchayat every road 299 building or other work constructed by the
Panchayat, any land or property transferred to a District Panchayat by the
State Government and any land or other property transferred to the District
Panchayat by any other Panchayat, We may now refer, conveniently, at this stage
to the provisions relating to services. Sec. 102 provides that there shall be a
Secretary for every gram panchayat and nagar panchayat, who shall be appointed
in accordance with the rules. Rules, of course, have to be made by the
Government under Sec. 323. Sec. 102 also provides that a gram panchayat and
nagar panchayat may have suck other servants as may be determined under Sec.
203, who shall be appointed by such authority and with such conditions of
service, as may be prescribed. 'Prescribed' again means 'prescribed by rules'
and rules have to be made by the Government. It is further provided that having
regard to the population of a gram and its income, the State Government may
direct that a group of gram panchayats shall have one Secretary only. The
Secretary is required to keep in his custody all records and registers of the
panchayats, issue receipts on behalf of the panchayats, prepare all statements
and reports required under the Act and perform such other functions and duties,
as may be prescribed under the Act.
Other servants of the panchayat are required
to perform such functions and duties and exercise such powers as may be imposed
or conferred on them by the Panchayat, subject to any rules which may be made.
Sec. 122 provides that there shall be a
Secretary for every Taluqa Panchayat and that the Taluqa Development officer,
who shall be an officer belonging to the State service and posted under the
panchayat, shall be the ex- officio Secretary of the panchayat. Sec. 122
further provides that the taluqa panchayat shall have such other officers and
servants as may be determined under Sec. 203, who may be appointed by such
authority, with such conditions of service, as may be prescribed.
Similarly, Sec. 142 provides that the
District Development officer posted under the District Panchayat shall be the
ex-officio Secretary of the District Panchayat.
In addition, the District Panchayat shall
have such officers and servants, as may be determined under Sec. 203,
performing such functions as may be prescribed and appointed by such authority
with such conditions of service, as may be prescribed. We have earlier referred
to Secs. 157 and 158 300 which provide for the allotment and transfer of staff
to the District Panchayat when functions are transferred by the Government to
the District Panchayats under those provisions. We have already referred to
Sec. 326 which provides that all officers and servants in the employment of an
existing District Local Board shall be deemed to be transferred of the service
of the successor District Panchayat. We have also referred to Sec. 325 which
stipulates that the Secretaries and all officers and servants in the employ of
old village panchayats under the Bombay Village Panchayats Act shall be
Secretaries, officers and servants of the new Gram Panchayats. We have further
referred to Sec. 307 which provides that all officers and servants in the
employment of municipalities whose local areas have been declared as grams or
nagars as the case may be, shall be officers and servants of the interim
panchayats of such grams or nagars.
Sec. 203, as it stood before it was amended
in 1978, provided for the constitution of a Panchayat Service for the purpose
of bringing about uniform scales of may and uniform conditions of service for
persons employed in the discharge of functions and duties of Panchayats. Such
service, it was declared, shall be distinct from the State Service. The
panchayat service was to consist of such classes, cadres and posts and the
initial strength of officers and strength of such classes cadres and posts was
to be such as the State Government might determine from time to time. District
Panchayats were empowered to alter, with the previous approval of the State
Government, any class, cadre or number of posts determined by the Government.
The cadres were to consist of district cadres, taluqa cadres and local cadres.
A servant belonging to a district cadre was
liable to be posted, whether by promotion or transfer, to any post in any
taluqa or of the district. A servant belonging to the taluqa cadre was liable
to be posted whether by promotion or transfer to any post in any gram or nagar
in the same taluqa. A servant belonging to a local cadre was liable to be
posted whether by promotion or transfer to any post in the same gram or nagar.
In addition to the posts in the district taluqa and local cadres, a panchayat
might have such other posts of such classes as the State Government may, by
general or special order, determine such posts being called 'deputation posts'.
They were to be filled in accordance with the provisions of Sec. 207. The State
Government was empowered to make rules regulating the mode of recruitment
either by holding examinations or otherwise and conditions 301 of service of
persons appointed to the panchayat service and powers of appointment, transfer
and promotion of officers and servants in the panchayat service and
disciplinary action against such officers and servants. The rules were required
to make provision entitling servants of such cadres in the Panchayat Service to
promotion to such cadres in the State service as may be prescribed. The rules
were also required to provide for inter-district transfer of servants belonging
to the panchayat service.
Subject to the rules made under Sec. 203,
appointment to posts in the panchayat service, Sec. 205 provides, shall be made
by direct recruitment by promotion or by transfer of a member of the State
service to the panchayat service. Sec. 206 obliges the State Government by
general or special order to allocate to the panchayat service: "(i) such
number of officers ar d servants out of the staff allotted or transferred to a
panchayat under sections (157, 158 and 325) as it may deem fit, (ia) all
officers and servants of the municipalities dissolved under Sec. 307, (ii) all
officers and servants in the service of district local boards and district
school boards immediately before their dissolution under this Act and
transferred to the panchayats under secs.
155 and 326". It is further provided that
officers and servants so allocated shall be taken over by such panchayats in
such cadre and on such tenure, remuneration and other conditions of service, as
the State Government may determine. Sec. 204 provides that, subject to the
rules which the State Government may make, the expenditure towards the pay,
allowances and other benefits allowed to an officer or servant of the panchayat
service serving for the time being under any panchayat shall be met by that
panchayat from its own fund. Sec. 207 enables the State Government to direct
the posting of officers of the Indian P administrative service and of Class II
services of the State under panchayat institutions. Sec. 208 enables a
panchayat to obtain the services of any officer of Government on loan.
Sec. 210 provides for the constitution of a
Panchayat Services Selection Board and Sec. 211 provides for the constitution
of District Panchayat Service Selection Committees and District Primary
Education Staff Selection Committees.
The broad and general picture that we have on
a perusal of the relevant provisions of the Act, as it stood before it was
amended in 1978, is that the Gujarat Legislature aimed at the democratic
decentralization of important governmental functions by vesting 302 such
functions in gram, nagar, taluqa and district panchayats (see Sec. 88 read with
Sch. I, Sec. 117 read with Sch. II and Sec. 137 read with Sch. III) and,
besides, by enabling the State Government to transfer other powers, functions
and duties to the Panchayat institutions (see Secs. 89, 149, 150, 155, 156, 157
and 158). A perusal of the lists of subjects entrusted to the Panchayat
Institutions shows that they are not merely the ordinary run of subjects
entrusted to municipal bodies, such as, public health, sanitation, etc, but
they include a great variety of subjects intimately connected with all aspects
of community life and vital to it, except functions, such as, law and order,
administration of justice and the like. Even part of the revenue administration
is entrusted to panchayat institutions, as evident from the fact that
collection of land revenue is one of the duties of the gram panchayats under
the Act. Since decentralisation was not to mean mere chaotic fission and
confusion, a three-tier organisation was set up, subject to the overall control
of the Government and it was as if a parallel but subsidiary or subordinate
Government was set up by the Government itself to discharge some of its
functions. Not merely were the panchayat institutions required to discharge governmental
functions, the organisation and its three-tier units were to have very close
links with the Government at every twist and turn, as it were. The property of
the panchayats was that which previously belonged to the Government but came to
be vested in them or transferred to them and the funds of the panchayats were
those to be provided substantially by way of. contribution or loan by the
Government. The Government was not only empowered to make the rules to carry
out the objects of the Act. But also to issue directions from time to time to
all or any of the panchayats. The Government was also, empowered to cause
inspection to be made and, further, to call for the proceedings of the
panchayat, to satisfy itself as to the legality or propriety of any order made
by the Panchayat. For the purpose of efficiently discharging the functions and
duties of the various panchayat institutions and havining regard to the
three-tier system which had been established, it was apparently thought
necessary to constitute a panchayat service, the members of which would have
uniform scales of pay and uniform conditions of service. So a single
centralised Panchayat Service was constituted which was to be 'distinct from
the State Service'. The distinction lay in that it was a service parallel to
the State Service and not in that the members of the service were not
Government servants. The question 303 whether the members of the panchayat
service are Government servants or not is the principal question to be answered
in the appeal and we will come back to it again later.
After the coming into force of the 1961 Act,
several sets of rules were promulgated and orders were made which concerned the
Gujarat Panchayat Service. One such order was that made on January 2, 1967
under Sec. 203 (2) directing that the Panchayat service shall consist of
district cadre, taluqa cadre and local cadre and further specifying the posts
which belonged to each of the cadres. Amongst the rules made were the Gujarat
Panchayat Service (Absorption, Seniority, Pay. and Allowances) Rules, 1965,
which provided for the equation of posts, fixation of seniority, scales of pay
and allowances of "allocated employees". "Allocated employees'
were defined in the rules to mean persons allocated to the panchayat service
under the provisions of Sec. 206 (i). The rules provide that every allocated
employee holding a corresponding post, immediately before the appointed day,
shall be appointed to the equivalent post. Equivalent post is defined to mean a
post in the panchayat service, which the State Government may, by order,
determine to be generally corresponding to a post held by an allocated employee
immediately before the appointed day (called corresponding post) having regard
to the pay scales, the minimum educational and other qualifications prescribed
for the equivalent post and the corresponding post and the nature and magnitude
of responsibilities attached to such posts. Therefore, unless equivalence of
posts is first determined, by order, by the Government the Gujarat Panchayat
Service Absorption Seniority Pay and Allowances Rules, 1965 cannot be
effectively applied. Even so, the State Government did not make any order
regarding equation of posts of the staff in the local cadre and the fixation of
their scale of pay, although such orders were made in respect of posts of other
cadres. The State Government did not also extend to the staff borne on the
local cadre of the panchayat service the benefit of revision of scales of pay,
etc. which were made on the basis of the recommendations of the two Pay
Commissions, though such benefit was extended to the District and Taluqa
cadres; nor did the Government make any order providing for promotional avenues
to employees of the local cadre. Aggrieved by the deaf ear turned to their
representations, certain ex-municipal employees now included in the local cadre
of the Panchayat Service, for themselves and on behalf 304 of other
ex-municipal employees now in the local cadre of the Panchayat Service, filed a
Writ Petition in the High Court of Gujarat seeking various reliefs. The Writ
Petition was resisted by the State of Gujarat and the Development Commissioner
on the principal ground that the members of the Panchayat Service were not
Government servants and therefore, they were not entitled to claim the reliefs
asked by them. The High Court of Gujarat allowed the Writ Petition holding that
the members of the panchayat service belonging to the local cadre were
Government servants and directed the State Government .
"(1) To make suitable orders under the
Gujarat Panchayat Service (Absorption, Seniority, Pay and Allowances) Rules,
1965 as regards the equivalence of posts, fixation of pay scales for such
posts, fixation of the petitioners and the person to whom they represented an
appropriate stage in such pay scales and other incidental matters covered by
the said rules and to give effect to such orders from the date of allocation of
the petitioners and the persons whom they represent to the Panchayat Service,
that is to say, from February 11, 1969.
(2) To initially fix the pay scales and
allowances and other conditions of service, including the grant of house rent
allowance, compensatory local allowance, leave benefits, medical benefits,
retirement benefits, etc. Of the petitioners and the persons whom they
represent in the equivalent posts in the Panchayat Service in accordance p with
the provisions of the Gujarat Panchayats Service (Absorption, Seniority, Pay
and Allowances) Rules, 1965 and simultaneously give to them the benefit of such
of the accepted recommendations of the First Pay Commission (Sarala Commission)
in the said matters as were extended to the other officers and servants of the
Panchayat Service;
alternatively, having initially fixed the pay
scales, allowances and other conditions of service in the equivalent post in
accordance with the said rules, to revise subsequently such pay scales and
other conditions of service as per the accepted recommendations of the First
Pay Commission (Sarala Commission) in the said matters with effect from
February 11, 1969.
305 (3) To further revise the pay scales and
allowances and other conditions of service, including the grant of house rent
allowance, compensatory local allowance, leave benefits, medical benefits,
retirement benefits, etc. of the Second Pay Commission (Desai Commission) in
the said matters and to give effect to such revision on and with effect from
January 1, 1975.
(4) To extend to the petitioners and the
persons whom they represent the benefit of interim relief in the same manner in
which such benefit was extended to the other officers and servants of the
Panchayat Service.
(5) To pay to the petitioners and the persons
whom they represent the amount payable to them as a consequence of the
rationalisation or revision of pay scale and allowances and other conditions of
service in pursuance of the directions contained in clauses (I) to (4)
hereinabove.
(6) To consider the question of making
suitable provisions in the Gujarat Panchayats Service (Promotion to Cadres in
State Service) Rules, 1974 or by framing appropriate Rules for promotion of the
ex-municipal staff of the Panchayat Service to consider the question of
providing to such staff, by framing appropriate rules, pro motional avenues to
the other two cadres in the Panchayat Service, namely, the taluka cadre and the
district cadre".
The State Government and the Development
Commissioner have filed the appeal which is now before us. But during the
pendency of the appeal, in an effort to undo the basis of the decision of the
High Court, the Governor of Gujarat promulgated the Gujarat Panchayats
Amendment ordinance, 1978, later replaced by the Gujarat Panchayats (Third
Amendment) Act, 1978. The constitutional validity of the Amending Act is
questioned in the Writ Petitions by the ex- municipal employees now included in
the local cadre.
The appeal was argued first as if the
Amending Act had not been passed and the main question argued in the appeal was
whether the members of the Panchayat service were Government servants. The Writ
Petitions were argued next and the question argued in the Writ Petitions was
about the constitutional validity of the Amending Act.
306 We have to first consider the question
whether the members of the Gnjarat Panchayat Service are Government Servants.
Earlier we have already said enough to indicate our view that they are
Government Servants. We do not propose and indeed it is neither politic nor
possible to lay down any definitive test to determine when a person may be said
to hold a civil post under the Government. Several factors may indicate the
relationship of master and servant.
None may be conclusive. On the other hand, no
single factor may be considered absolutely essential. The presence of all or
some of the factors, such as, the right to select for appointment, the right to
appoint, the right to terminate the employment, the right to take other
disciplinary action, the right to prescribe the conditions of service, the
nature of the duties performed by the employee, the right to control the
employee's manner and method of the work, the right to issue directions and the
right to determine and the source from which wages or salary are paid and a
host of such circumstances, may have to be considered to determine the
existence of the relationship of master and servant. In each case, it is a
question of fact whether a person is a servant of the State or not. Amongst the
cases cited before us were Guru Govinda Babu v. Sankar Prasad Ghosal(1), State
of Uttar Pradesh v. Audh Narasin Singh(2), State of Assam v.
Shri Kanakchandra Dutt(3), Gurushantappa v.
Abdul Khuddus(4) S.L. Aggarwal v. Hindustan Steel Ltd.(5) and Jalgaon Zila
Parishad v. Duman Gobind and others(6). We have considered all of them and do
not consider it necessary to refer to each of them.
We may now revert to the question whether the
members of the Gujarat Panchayat Service are Government servants.
First, we see that the duties which they are
required to perform are in connection with those affairs of the State which are
entrusted to the Panchayat Institutions, by the statute itself or by transfer
by the Government under the statute. Next, the expenditure towards the pay and
allowance of officers and servants of the panchayat service, serving for the
time being under any panchayat has, no doubt, to be met by the panchayat from
its own fund, but, as we have seen, the 307 fund consists substantially of sums
contributed or lent by the State Government and of the proceeds of any tax or
fee imposed by or assigned to the panchayat under the Act. The imposition of a
tax or a fee in the nature of a tax, as we know, is essentially a function of
the State. So the salary and allowances of the servants and officers of the
panchayat service are paid out of funds contributed or lent by the Government
or raised by the discharge of an essential governmental function. Secretaries
of Gram and Nagar Panchayats are to be appointed in accordance with the rules
made by the Government, while the Taluqa Development officer is to be the
Secretary of the Taluqa Panchayat and the District Development officer is to be
the Secretary of the District Panchayat. Taluqa and District Development
officers are, of course, officers of the State service. Gram and Nagar
panchayats may have other servants, as may be determined under Sec. 203, but
they have to be appointed by such authority as may be prescribed by the
Government and their conditions of service shall be such as may be prescribed
by the Government. Sec. 203, as already noticed by us, contemplates the
constitution of a single centralised Panchayat Service, the classes, cadres and
posts of which have to be determined by the Government from time to time.
The mode of recruitment, whether by
examination or otherwise, the conditions of service the powers in respect of appointments,
transfers and promotions of officers and servants and disciplinary action which
may be taken against them, are to be regulated by the rules made by the
Government. The rules so made are particularly required to contain "a
provision entitling servants of such cadres in the panchayat service to
promotion to such cadres in the State service, as may be prescribed: vide Sec.
207 (4) (a).
this is an important provision. There cannot
be any question of a rule providing for promotion from the panchayat service to
the 17 State service unless the Panchayat Service is also a service under the
State. Again Sec. 203 (5) requires that rules may provide for inter-district
transfers of servants belonging to the panchayat service and the circumstances
in which and the conditions subject to which such transfers may be made This
provision along with the provisions of Sec. 203 which provide for the promotion
and transfer of servants belonging to the district, taluqa and local cadres
within the district taluqa and gram or nagar clearly show that the servants are
not the servants of the individual panchayats but belong to a centralised
service. Sec. 205 provides that appointments to posts in the Panchayat service
shall be made (i) by direct recruitment, (ii) by promotion or (iii) by transfer
of a member of the State service to the Panchayat service. This provision which
enables an appointment to be 308 made to a post in the Panchayat Service by
transfer of a member of the State service necessarily implies that the panchayat
service is also a service under the State. Secs. 157 and 158 provide for the
transfer of certain functions performed by the Government to Panchayat
Institutions together with funds and staff. Sec. 325, as we have already seen,
provides that secretaries, all officers and servants in the employ of old
village panchayats shall be secretaries, officers and servants of the new gram
panchayats. It is not disputed that Talaties and Kotwals, who were Government
Servants, were the Secretaries and officers of old village panchayats. Now,
Sec. 206 (1) (i) provides for the allocation to the Panchayat service of such
number of officers and servants out of the staff transferred to the panchayat
under Sec. 157, 158 and 325, as the Government may deem fit. Sec. 206 (1) (iii)
further provides for the allocation to the Panchayat service of such other
officers and servants employed in the state service as may be necessary to
enable the panchayats to discharge efficiently their functions and duties under
the Act.
Obviously this transfer and allocation of
members of State services to the Panchayat service under Sections 157, 158,
325, 206 (1) (i) and 206 (l) (iii) will be impermissible unless the Panchayat
service is also a service under the State. Otherwise, there would be a patent
violation of the provisions of Art. 311 of the Constitution. Sec. 206A
authorises a review of allocation within a period of four years and
reallocation to the State service of these transfers under Sections 157 and
158. The very idea that there can be an allocation to the Panchayat Service
from a State service and a reallocation from the Panchayat Service to the State
Service is only consistent with the Panchayat Service also being a service
under the State.
Considerable stress was laid by the Counsel
for the State of Gujarat on the statement in Sec. 203 that such service
(Panchayat Service) shall be distinct from the State service. We do not think
this is to be interpreted as a disclaimer by the Legislature that the Panchayat
service is a service under the State. All that it can possibly mean is that the
Panchayat service is not a service which can be identified with other State
Services for the reason that while the Panchayat service too discharges the
duties connected with the affairs of the State, it does so not directly under
the State but under the various Panchayat Institutions to whom are delegated or
transferred certain functions of the State Government. Panchayat Service is
distinct from a State Service because the Panchayat institutions whom it serves
together constitute an almost parallel but subsidiary Government. It is only in
that sense Panchayat Service is distinct from a 309 State Service and not in
the same that members of the service are not servants of the State.
It is also argued that the several Panchayat
Institutions are declared to be bodies corporate by the Act and, therefore,
their servants cannot be Government servants. We are unable to see any force in
the submission.
Government servants do not cease to be
Government servants merely because, for the time being, they are allotted to
different Panchayat Institutions and are paid out of the funds of those
institutions. We have already explained why the servants belonging to the
various cadres of the Panchayat service cannot be considered to be servants of
individual panchayats. It is unnecessary to pursue the matter further.
We are, therefore, of the view that the
Panchayat Service constituted under Sec. 203 of the Gujarat Panchayats Act is a
civil service of the State and that the members of the service are Government
servants. This very question had been decided by the High D Court of Gujarat
more than 15 years back in G.L. Shukla and Anr. v. The State of Gujarat(1) and
there appears no good reason to depart from the view then taken by the High
Court. Bhagwati J., who spoke for the Court had said, "The Panchayat
Service contemplated under the Act is as much a civil service of the State as
the State Service. The legislature by enacting the Act provided for the
establishment of the Panchayat organisation of the State and for the efficient
administration of the Panchayat organisation, particularly in view of the fact
that a large part of the service personnel would be drawn from different
sources and would, therefore, be heterogeneous in composition with widely
differing scales of pay and conditions of service, the Legislature felt l? that
it would be desirable to have a separate civil service of persons employed in
the discharge of functions and duties of panchayats with uniform scales of pay
and uniform conditions of service and, therefore, with that end in view the
Legislature provided for constitution of the panchayat service. All the
provisions of the Act relating to the panchayat service point unmistakably and
inevitably to one and only one conclusion, namely, that the panchayat service
is one single service with the State as the master. The panchayat service is to
be constituted by the State Government and its strength is also to be
determined by the State Government. Sec. 203 subsec. (2) says that the
panchayat service shall consist of such classes, 310 cadres and posts and the
initial strength of officers and servants in each such class and cadre shall be
such as the State Government may be order from time to time determine ............................................................
............................................................
"The provisions of different cadres in
the panchayat service and the transferability of persons employed in the
panchayat service from a post in the district cadre to a post in any taluka in
the district and from a post in the taluka cadre to a post in any taluka in the
district and from a post in the taluka cadre to a post in any gram or nagar in
the same taluka emphasize that the panchayat service is one single service with
one master, namely, the State and each panchayat is not the master of the
servant employed in the discharge of its functions and duties. It is difficult
to imagine that the Legislature should have provided for transfer of servants
from one master to another ............
............................................................
"The mode of recruitment, the conditions
of service and matters relating to appointments, transfers and promotions of
persons employed in the panchayat service as also disciplinary action against
them are all determined by the State Government and that is consistent only
with the State being the master in the entire panchayat service. The mandatory
provision for promotion from panchayat service to State service which is
required to be made in the rules also shows that both the services are services
of the State.
There could be no question of promotion from
one service to another if the masters in the two services were different.
Then it would be a case of termination of one
service and appointment to another .....................................
............................................................
"Then comes Sec. 206 which provides for
making of an order of allocation to the panchayat service .....................
............................................................
"This provision relating to allocation
of officers and servants under clauses (i) and (iii) does not contemplate any
termination of service of such officers and servants or any fresh appointment
to a new service. There is no concept of termination of the existing service
and reappointment to a new service involved in the process of allocation: the
concept is only of transfer from one service of the State to another without
any break in the continuity cf service and that clearly postulates that both
services are under the same master, namely, the State. Sec. 206A also
reinforces this conclusion. It makes the initial allocation provisional and
Permits the State to 311 review the allocation within a period of four years
from 1st April, 1963 ................................................
"It is not possible to believe that the
officer or servant could have been intended by the Legislature to be treated
like a chattel which can be tossed about from one master to another. The only
reasonable way of looking at the matter seems to be and that conclusion is
inevitable on the language of these provisions, that the panchayat service is a
civil service of State like' the State service and since both the services are
civil services of the State with the State as the master an officer or servant
can be allocated from the State service to the panchayat service and
reallocated from the panchayat service to the State service ...........................................................
"The conclusion which emerges from this
discussion is that the panchayat service is a distinct and separate service set
up for serving the Panchayat organisation of the State and it is as much a civil
service of the State as the State service. The State can have many services
such as State Service, police service, engineering service etc. and panchayat
service as one of them. In the panchayat service, as in the State service, the
State is the master and every officer or servant employed in the panchayat
service is the servant of the State and not of the panchayat under which he may
be serving for the time being. The panchayat service is one single service with
the State as the master." We entirely agree with the above observations of
the learned Judge.
It was argued that the High Court was wrong
in issuing directions for equation of posts, revision of pay scales and payment
of salaries. We do not think that the High Court committed any error in issuing
the directions which were consequential to its findings. The High Court had
directed the State Government to discharge its statutory duty to make orders
for the equation of posts and to extend the benefits arising out of the reports
of the two Pay Commissions, which benefits bad been denied to the local cadre
only. The obligation to make provision for the payment of salaries, allowances
and other benefits to Government servants did not cease by their being
allocated to Panchayat Institutions, notwithstanding that Sec. 204 places an
obligation on the Panchayat under whom an officer or servant of the Panchayat
service may service for the time being to meet the expenditure towards the pay,
allowances and benefits available to such officer or servant. We do not have
any doubt that the case was correctly decided by the High Court and 312 that
the appeal deserves to be dismissed with costs which we quantify at Rs. 15,000.
We then come to the Writ Petitions. As
mentioned by us earlier the Gujarat Panchayats Act was amended during the
pendency of the appeal in an effort to nullify the effect of the judgment of
the Gujarat High Court. First, the Government promulgated an ordinance and next
the legislature enacted the Amending Act.
Sec. I of the Amending Act stipulates the
dates from which the various amending provisions must be deemed to have come
into force. We shall refer to the dates from which some of the provisions are
deemed to have come into force when we refer to those provisions.
By Sec. 2 of the Amending Act, original Sec.
11 (1) which declared that the Gram panchayats, Taluqa panchayats, District
panchayats, Gram sabbas, Nagar Panchayats and Conciliation Panchas shall
constitute the Panchayat organisation of the State of Gujarat was omitted and
original Sec. 11 (2) which provided for the control of the State Government
over panchayats directly or through their officers was made Sec. 11. It is
extremely difficult to understand the omission of old Sec. 11 (1). The whole
object of the Gujarat Panchayats Act is "democratic decentralisation of
power and the consequent reorganisation of the administration of Local
Government". The object is to decentralise and reorganise. So it was
thought that Gram Panchayats, Nagar Panchayats, Taluqa Panchayats, District
Panchayats, etc. should constitute the panchayat organisation of the State of
Gujarat. The object of the Act is still the same, yet s. 11(1) has been
omitted. Does it mean that there is a disbandment of organisation ? According
to the Statement of objects and Reasons, the amendments were necessitated to
get over the judgment of the Gujarat High Court that the Panchayat Service is a
State Service. But surely that can't be a reason to go against the object of
the Principal Act and to abandon the constitution of a State Panchayat
organisation. No wonder it was described as an act of cutting the nose to spite
the face. We may mention here that s. 2 is deemed to have come into force on
February 24, 1962, the date on which the origina s. 11 came into force.
313 Sec. 3 of the Amending Act introduced
substantial changes in s. 102. While the provision that there shall be a
Secretary for every Gram panchayat and Nagar panchayat, who shall be appointed
in accordance with the rules, was retained, a proviso was added in the following
terms:
"Provided that where on account of
conversion of municipality into a Gram panchayat or a Nagar panchayat under. s.
307, an officer of a municipality becomes a Secretary of such panchayat or
where any person not being a Talati-cum-Panchayat Secretary is appointed as a
Secretary to such panchayat, such Secretary shall not be governed by the rules
so made and the rules for regulating recruitment and conditions of service of
such Secretary shall be such as the Panchayat may, subject to general or
special order of the State Government, by its resolution determine". The
provision in the original s. 102 (1) (b) which enabled the Gram panchayat or
Nagar panchayat to have such other servants as may be determined under s. 203
and which provided that such servant shall be appointed by such authority and
their conditions of service shall be such as may be prescribed was omitted and
in its place a new s. 102 (1) (b) was substituted enabling the Gram panchayat
itself to appoint such servants as may be necessary for the proper exercise of
its powers, discharge of duties and performance of functions and further
providing that the rules for regulating recruitment and conditions of service
of such servants shall be made by the Punchayat itself. An explanation was
added to say that the expression 'servants' included a Secretary referred to in
the proviso to cl. (a).
A further cl. (c) was introduced after cls.
(a) and (b) of s. 102 (1) and it is as follows: "Notwithstanding anything
contained in any judgment, decree or order of any court,-(i) the officers and
servants of a Gram Panchyat, as the case may be, bf a Nagar Panchayat shall be
and shall be deemed to have always been the officers and servants of such Gram
Panchayat or Nagar Panchayat; (ii) the expenditure towards the pay and
allowances of, and other benefits available to, a servant of the Gram Panchayat
or, as the case may be, Nagar Panchayat, shall be met by that Panchayat from
its own fund".
The mischief of the new proviso to s. 102 (1)
(a) is manifest. Amongst persons to be appointed as Secretaries of Gram and
Nagar Panchayats, persons who were previously Talati-cum-Panchayat Secretaries
were to be appointed as Secretaries in accordance with the rules, but the rules
were not to apply to officers of municipalities, who became Secretaries of
Panchayats consequent on conversion 314 of municipalities into Gram and Nagar
Panchayats under s. 307. The conditions of service of the latter category were
to be regulated by the panchayat itself, by resolution. and not by any rules
made by the Government as in the case of the others. Other servants of Gram and
Nagar Panchayats were also to be appointed by the Panchayats and their
conditions of service were also to be regulated by the Gram and Nagar
Panchayats Notwithstanding any judgment of the court, the officers and servants
of Gram and Nagar Panchayats were to be deemed to have always been officers and
servants of such Nagar and Gram Panchayats The amended s. 102 (1) was to be
given retrospective effect from February 24, 1962. In other words, the
non-Talati Secretaries and other officers and servants of the Gram and Nagar
Panchayats were to be deemed to be servants of the Gram and Nagar Panchayats,
notwithstanding the judgments of the courts which had declared them to be
Government servants.
By Sec 4 of the Amending Act a proviso was
added to s. 157 (3) of the Principal Act barring the District Panchayat from
transferring its staff to a Gram or Nagar Panchayat consequent on the
delegation of functions, powers and duties to a Gram or a Nagar PanchaYat.
By sec. 6 of the Amending Act, s. 203 of the
Principal Act was substantially amended. While s. 203 (1) of the Principal Act,
as it stood originally, provided for the constitution of a Panchayat Service
for the purpose of bringing about uniform scales of pay and uniform conditions
of service for persons employed in the discharge of functions and duties of
panchayats and declared that such service shall be distinct from the State
Service, the new sub-sec. (1) introduced by cl. (l) of s. 6 of the Amending
Act, is as follows: '(1) In order to enable taluka panchayats and district
panchayats to exercise their powers, discharge their duties and perform their
functions effectively and efficiently, there shall be constituted a Panchayat
Service consisting of persons employed in connection with the affairs of taluka
panchayats and district panchayats and of specified servants, and
notwithstanding anything contained in any judgment, decree or order of any
court such persons and Servants shall be and shall be deemed to have always
been the officers and servants of the taluka panchayats or, as the case may be,
the district panchayats.
315 Explanation-In this sub-sec., the
expression "specified servants" means- (a) talatis-cum-Panchayat
secretaries discharging the functions of gram Panchayat or of nagar panchayats,
and (b) kotwals." See. 203 (2A) was amended by omitting reference to local
cadres Old Sec. 203 (4) (a) which obliged the making of a rule containing a
provision entitling servants of such cadres in the panchayat service to
promotion to such cadres in the State service as may be prescribed was omitted
and in its place a new cl. (a) was substituted by cl. (4) of s. 6 of the
Amending Act and it is as follows :- "(a) A provision entitling persons
holding such class of posts Din the district cadre to be recruited to such
cadre in the State service as may be prescribed." The opening clause of
the new s. 203 is extremely curious It gives the reason for constituting the
new Panchayat Service of the Amending Act. The reason, it appears, is to enable
taluka panchayats and district panchayats to exercise their powers, discharge
their duties and preform their functions effectively and efficiently. But then
what about the Gram and Nagar Panchayats which are at the very foundations of
the whole idea of democratic decentralisation of powers in favour of panchayat
institutions ? The entire Panchayats superstructure has to stand on the base of
F Gram and Nagar Panchayats and obviously there can be no vigorous and strong
Local Self- Government institutions without efficient and effective Gram and
Nagar Panchayats. It is, therefore, difficult to discover the logic behind
excluding Gram and Nagar Panchayats from the benefits of a centralised, effective
and efficient service.
The vice of the new provision is again
obvious. Local cadre is made to appear to be excluded from the Panchayat
Service, but not truly so. In the guise of 'specified servants' are brought in,
as if by the back door, talatis- cum-Panchayat Secretaries functioning in Gram
or Nagar panchayats and Kotwals. What is done in 316 truth is that employees of
gram or nagar panchayats, other than Talatis-cum-Panchayat Secretaries and
Kotwals alone, and this primarily means, the ex-Municipal employees are
excluded from the Panchayat Service and the judgment of the court that they
form part of a centralised State Service, is sought to be nullified, by giving
effect to cls (1) and (4) of s. 6 of the Amending Act from February 24, 1962.
By s. 8 of the Amending Act, s. 206 (1) (i)
was amended by substituting the figures and word '157 and 158' for the figures
and word '157, 158 and 325'. In Sec. 206 (1) (la), the clause 'All officers and
servants of municipalities dissolved under s. 307' was substituted by the
clause "all persons who have under cl. (x) of S. 325 become the
secretaries of new gram panchayats and kotwals". In the rest of S. 206
wherever the words 'the panchayats' were used, the words 'the district and
taluqa panchayats' were substituted.
The real effect of S. 8 of the Amending Act
is to take out "all officers and servants of the municipalities dissolved
under S. 307" from the applicability of S. 206 though S. 206 is made
otherwise applicable to all other categories of officers and servants allotted
to a panchayat.
By S. 10 of the Amending Act, two new
sections S. 206 (AB) and S. 206 (AC) are introduced, the object of which is
really to give options to those officers and servants who are allotted or
transferred to panchayats, under the various provisions of the Act. These
provisions are obviously introduced to defeat an argument that allotment and
transfer of Government servants to a non-Government service is violative of
Art. 311.
By Sec. 14 of the Amending Act, a new Sec. 21
I(A) is introduced the effect of which is that the allocation of officers and
servants of erstwhile municipalities and officers and servants of old village
panchayats was to cease and those officers and servants were to be deemed to
have always been officers and servants of the gram and nagar panchayats. It was
as if these officers and servants never had to be allocated by any order of the
Government, but they had automatically became officers and servants of the new
gram panchayats. There was no question of any option. They could take it or
leave it. They were not to be treated as having been Government servants at any
time.
317 Other provisions of the Amending Act were
merely consequential to the confining of the Panchayat Services to district or
taluqa cadres.
From the summary of the provisions of the
Amending Act that has been set out above it requires no perception to recognise
the principal target of the amending legislation as the category of
ex-municipal employees', who are, so to say, pushed out of the Panchayat
Service and are to be denied the status of Government servants and the
consequential benefits. The ex-municipal employees are virtually the "poor
relations", the castle, the Panchayat Service, is not for them nor the
attendant advantages, privileges and perquisites, which are all for the
"pedigree descendants" only. For them, only the out-houses. As a
result of the amendments they cease to be Government servants with
retrospective effect. Their earlier allocation to the Panchayat Service is
cancelled with retrospective effect. They become servants of Gram and Nagar
Panchayats with retrospective effect. They are treated differently from those
working in taluqa and district panchayats as well as from the talatis and
Kotwals working in Gram and Nagar Panchayats. Their conditions of service are
to be prescribed by panchayats, by resolution, whereas the conditions of
service of others are to be prescribed by the Government.
Their promotional prospects are completely
wiped out and all advantages which they would derive as a result of the
judgments of the courts are taken away.
Several grounds were urged before us to
attack the constitutional validity of the Amending Act. It was said that the
provisions of the Act were violative of Art. 311.
It was said that the Act was discriminatory.
It was urged that the retrospectivity given to the provisions of the Amending
Act could not cure the discrimination introduced by the Act and sought to be
perpetuated by it. In any case it was said that the benefits acquired could not
be taken away with retrospective effect. On the other band, it was argued that
there was good reason for the classification and that in the circumstances of
the case, the classification was legitimately made with retrospective effect.
It is here necessary to recapitulate a few
facts. When the Panchayat Service was initially constituted soon after the
passing of 318 the Gujarat Panchayats Act, there were three cadres, the
district cadre, the taluqa cadre and the local cadre.
Secretaries, officers and servants of the old
village panchayats under the Bombay Village Panchayats Act, 1958 became
Secretaries, officers and servants of the new Gram Panchayats under s. 325
(2)(x) of the Gujarat Panchayats Act, 1961. Talatis and Kotwals, who were
Government servants were Secretaries and officers of the old village panchayats
under the Bombay Village Panchayats Act and so they became secretaries and
officers of the new gram panchayats under the Gujarat Panchayats Act, 1961.
Some municipalities constituted for municipal districts and municipal boroughs
under the Bombay District Municipal Act and the Bombay Municipal Boroughs Act
as applied to areas in the State of Gujarat, were converted into gram and nagar
panchayats under s. 307 of the Gujarat Panchayats Act and all officers and
servants in the employ of such municipalities became officers and servants of
interim panchayats and allocated to the Panchayat Service. Thus, Secretaries
and officers of dissolved municipalities also became Secretaries and officers of
gram and nagar panchayats. District Local Boards constituted under the Bombay
Local Boards Act stood dissolved on the passing of the Gujarat Panchayats Act
and all officers and servants in the employment of the Board were deemed to be
transferred to the service of the successor district panchayat under s. 326 of
the Gujarat Panchayats Act. Also allocated to the Panchayat Service were those
Government servants who were transferred to the Panchayats under s. 157 and
such others officers and servants employed in the State Service as were
necessary (s. 206 (iii)). All these Secretaries, officers and servants became
members of a service under the State as soon as they were allocated the
Panchayat Service. Now, by the Amending Act, secretaries, p officers and servants
of Gram and Nagar Panchayats who were allocated to the Panchayat service from
the ranks of the ex-municipal employees are sought to be meted out differential
treatment from the other members or the Panchayat Service, more particularly
the Secretaries, officers and servants of Gram and Nagar Panchayats who were
drawn from the ranks of secretaries, officers and servants of old village
panchayats, that is the Talatis and Kotwals Their status as members of a
service under the State is to go with no option to them. Retrospectivity is
sought to be given to the amending act so that they could not claim that they
were ever Government servants and so could not be made to cease to be
Government servants and so that they could not claim that they were singled out
for differential treatment, for, if they were never in the Panchayat 319
service, they could not complain of being taken out of the Panchayat Service.
Now, in 1978 before the Amending Act was
passed, thanks to the provisions of the Principal Act of 1961, the ex-
municipal employees who had been allocated to the Panchayat Service as
Secretaries, officers and servants of Gram and Nagar Panchayats, had achieved
the status of government servants. Their status as Government servants could
not be extinguished, so long as the posts were not abolished and their services
were not terminated in accordance with the provisions of Art. 311 of the
Constitution. Nor was it permissible to single them out for differential
treatment.
That would offend Art. 14 of the Constitution.
An attempt was made to justify the purported differentiation on the basis of
history and ancestry, as it were. It was said that Talatis and Kotwals who
became Secretaries, officers and servants, of Gram and Nagar Panchayats were
Government servants, even to start with, while municipal employees who became
such secretaries, officers and servants of Gram and Nagar Panchayats were not.
Each carried the mark or the 'brand' of his origin and a classification on the
basis of the source from which they came into the service, it was claimed, was
permissible. We are clear that it is not. Once they had joined the common
stream of service to perform the same duties, it is clearly not permissible to
make any classification on the basis of their origin. Such a clarification
would be unreasonable and entirely irrelevant to the object sought to be
achieved. It is to navigate around these two obstacles of Art. 311 and Art. 14
that the Amending Act is sought to be made restrospective, to bring about an
artificial situation as if the erstwhile municipal employees never became
members of a service under the State.
Can a law be made to be destroy today's
accured constitutional P rights by artificially reverting to a situation which
existed seventeen years ago? No. The legislation is pure and simple,
self-deceptive, if we may use such an expression with reference to a
legislature-made law. The legislature is undoubtedly competent to legislate
with retrospective effect to take away or impair any vested right acquired under
existing laws but since the laws are made under a written Constitution, and
have to conform to the do's and don'ts of the Constitution neither prospective
nor retrospective laws can be made so as to contravene Fundamental Rights. The
law must satisfy the requirements of the Constitution today taking onto account
the accrued or 320 acquired rights of the parties today. The law cannot say,
twenty years ago the parties had no rights, therefore, the requirements of the
Constitution will be satisfied if the law is dated back by twenty years. We are
concerned with today's rights and not yesterday's. A legislature cannot
legislate today with reference to a situation that obtained twenty years ago
and ignore the march of events and the constitutional rights accrued in the
course of the twenty years. That would be most arbitrary, unreasonable and a
negation of history. It was pointed out by a Constitution Bench of this Court
in BS. Yadav and others etc. v. State of Haryana and others etc.(1) Chandrachud
CJ., speaking for the Court, "Since the Governor exercises the legislative
power under the proviso to Art. 309 of the Constitution, it is open to him to
give retrospective operation to the rules made under that provision. But the
date from which the rules are made to operate, must be shown to bear either
from the face of the rules or by extrinsic evidence, reasonable nexus with the
provisions contained in the rules, especially when the retrospective effect
extends over a long period as in this case". Today's equals cannot be made
unequal by saying that they were unequal twenty years ago and we will restore
that position by making a law today and making it retrospective. Constitutional
rights, constitutional obligations and constitutional consequences cannot be
tempered with that way law which if made today would be plainly invalid as
offending constitutional provisions in the context of the existing situation 3
cannot become valid by being made restrospective. Past virtue (constitutional)
cannot be made to wipe out present vice (constitutional) by making
retrospective laws. We are, therefore, firmly of the view that the Gujarat
Panchayats third Amendment) Act, 1978 is unconstitutional, as it offends Arts.
311 and 14 and is arbitrary and unreasonable. We have considered the question
whether any provision of the Gujarat Panchayats (Third Amendment) Act, 1978
might be salvaged. We are afraid that the provisions are so interwined with one
another that it is well-nigh impossible to consider any life saving surgery.
The whole of the Third Amendment Act must go.
In the result the Writ Petition Nos. 4266-70 are allowed with costs quantified
at Rs. 15,000. The directions given by the High Court, which we have cor
firmed, should be complied with before June 30, 1983. In the meanwhile, the employees of the Panchayats covered by the appeal and the Writ Petitions will
receive a sum of Rs. 200 321 per month over and above the emoluments they were
receiving before February 1, 1978. This order will be effective from February
1, 1983 The interim order made on February 20, 1978 will be effective upto
January 31, 1983. The amounts paid are to be adjusted later.
P.B.R. Appeal dismissed.
Petitions allowed.
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