Ram Sarup Vs. State of Haryana &
Ors [1984] INSC 103 (3 May 1984)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) MADON, D.P.
MISRA RANGNATH
CITATION: 1984 AIR 1094 1984 SCR (3) 734 1984
SCALE (1)688
ACT:
Panchayat Samitis, and Zilla Parishads Act,
1961 as amended by Harayna Amendment Act of 1973 deleting Section 33, affect
of-whether any appointment made after the deletion of Section 33 valid
effective.
HEADNOTE:
Section 33 of the Punjab Panchayat Samitis
and Zilla Parishads Act, 1961 provided that subject to rules made by the
Government, a Panchayat Samiti may employ such servants as it may consider
necessary for the efficient performance of the duties imposed upon it by the
Act, rules or bye-laws made thereunder or by any other law for the time being
in force. The Punjab Panchayat Samitis and Zilla Parishads (Haryana Amendment
Act, 1973 which came into force from June, 13, 1973, introduced extensive
amendments. Section 33 of the Act was deleted by Section 13 of the Amending
Act, Sub section (4) of Section 14 the Amending Act, provided that persons
employed by a Panchayat Samiti before April 4, 1973 and who were in service at
the commencement of the Amending Act, "shall continue to serve on the same
terms and conditions on which they were employed by the Panchayat Samiti"
until they are absorbed in the Government Service or retire in such manner as
may be prescribed. Section 35(1) of the Act empowers the State Government to
place at the disposal of a Panchayat Samiti such of its servants as are required
for the implementation of the schemes annexed therewith, and for such other
duties and functions as may be assigned to them by the Panchayat Samitis from
time to time.
The appellant was appointed as a clerk on
June 1, 1963 by the Panchayat Samiti, Loharu. He was confirmed in that post ill
course of time. On January 21, 1974, he was promoted as a Head Clerk on an ad
hoc basis. On March, 14 1975 a resolution was passed by the Samiti regularising
the post of Head Clerk. On April 1, 1975, the appellant was appointed as a Head
Clerk. Acting in pursuance of the provision of Section 14(1) of the. the
Amending Act, The Government of Haryana notified the absorption of the
appellant as a clerk, though he was working as a Head Clerk since January 21,
1974. Being aggrieved the appellant filed a Writ Petition and prayed for a
direction to absorb him as a Head Clerk. The Writ Petition having been
dismissed by the High Court, the appellant has filed this appeal by special
leave.
Dismissing the appeal, the Court,
HELD: 1.1. The Panchayat Samiti had no right
to appoint the appellant to the post of Head Clerk on the date on which it
purported to do so. As a result of the deletion of Section 33 of the Act by the
Amending Act of 1973, the 735 Panchayat Samiti lost its power to make
appointment to the Panchayat. It could not therefore have appointed the
appellant as a Head Clerk, as it purported to do so, in January, 1974 on an basis
or in April 1965 on a regular basis. [737D] 1.2. Though the right to be
considered for promotion is a term and condition of service, in the instant
case, the appointment of the appellant to the post of a Head Clerk being
without the authority of law, the Government was not bound to absorb him in the
post of a Head Clerk. He was appointed lawfully to the post of a clerk and that
is the post in which the Government has absorbed him. [737C; E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1433 of 1977 Appeal by Special leave from the Judgment and Order dated the
16th February, 1.977 of the Punjab and Haryana High Court in Civil Writ
Petition No. 752 of 1977.
J.D. Jain & Mrs. Kawaljit Kocher for the
Appellant.
Harbans Lal, I.S. Goel & R.N. Poddar for
the Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, CJ. Section 33 of the Punjab Panchayat Samitis and Zilla Parishads
Act; 1961 ("The Act") provided in so far as relevant, that subject to
rules made by the Government, a Panchayat Samiti may employ such servants as it
may consider necessary for the efficient performance of the duties imposed upon
it by the Act, rules or bye-laws made thereunder or by. any other law for the
time being in force. In pursuance of this power, the appellant was appointed as
a clerk on June 1, 1963 by the Panchayat Samiti, Loharu, which is respondent 3
in this appeal. He was confirmed in that post in course of time. On January 21,
1974 he was promoted as a Head Clerk on an ad hoc basis. On March 14, 1975 a
resolution was passed by respondent 3 regularising the post of Head Clerk. On
April 1, 1975, the appellant was appointed as a Head Clerk.
The Punjab Panchayat Samitis, Zilla Parishads
(Haryana Amendment) Act, 1973 introduced extensive amendments in the Act of
1961. Section 13 of the Amending Act deleted section 33 of the Act. A plain
consequence of this deletion was that the Panchayat Samitis were divested of
their power to make appointments to the Panchayats. The Amending Act received
the assent of the Governor 736 on April 25, 1973 and was published in the
Haryana Gazette on June 13, 1973.
Sections 35(1) of the Act empowers the State
Government to place at the disposal of a Panchayat Samiti such of its servants
as are required for the implementation of the schemes connected therewith and
for such other duties and functions as may be assigned to them by the Panchayat
Samiti from time to time. Section 35(3) which dealt with the conditions of
service of the Government servants allotted to the Panchayat Samitis, was
amended by section 14 of the Amending Act of 1973. Sub-section (4) of section
14 of the Amending Act provides that persons employed by a Panchayat Samiti
before April 1, 1973 and who were in service at the commencement of the
Amending Act shall continue to service on the same terms and conditions on
which they were employed by the Panchayat Samiti", until they are absorbed
in the Government service or retire in such manner as may be prescribed.
Acting in pursuance of the provision of
section 14(4) of the Amending Act, the Government of Haryana notified the
absorption of the appellant as a clerk though, as stated earlier he was working
as a head Clerk in the Loharu Panchayat Samiti. Being aggrieved by his
absorption on a lower post, he filed a writ petition in the High Court of
Punjab and Haryana, asking that he should be absorbed as a Head Clerk. The writ
petition having been dismissed by the High Court, the appellant has filed this
appeal by special leave.
The appellant was appointed as a clerk by the
Loharu Panchayat Samiti in-1963, long before the Amending Act came into force
on June 13, 1973. He was, therefore, entitled to be absorbed in Government
service as a clerk in any event.
But, as a result of the deletion of section
33 of the Act by the Amending Act of 1973, the Panchayat Samiti lost its power
to make appointments to the Panchayat. The fact that the appellant was promoted
as a Head Clerk on an ad hoc basis in January 1974, or the further fact that he
was appointed as a Head Clerk on April 1, 1975, cannot improve his position for
the simple reason that these appointments were made after June 13, 1973, being
the date on which the Panchayat Samiti lost its power to make appointments to
the Panchayat.
737 It is urged by Shri Jain who appears on
behalf of the appellant that by reason of section 14(4) of the Amending Act,
the appellant was entitled to continue in the service of the Panchayat on the
same terms and conditions on which he was employed by the Panchayat Samiti
until he was absorbed in Government service. Since the appellant, according to
the terms and conditions of his service with the Panchayat, was entitled to be
considered for promotion to the post of a Head Clerk, his appointment as a Head
Clerk prior to his absorption in Government service had to be recognised and
protected, despite the fact that such appointment was made after June 13, 1973
when the Amending Act came into force. There is no substance in this
contention. Even assuming for the purposes of argument that the right to be
considered for promotion is a term and condition of service, what is relevant
for our purpose is not whether the appellant was entitled to be considered for
promotion but, whether the Panchayat Samiti had the right to appoint him to the
post of Head Clerk on the date on which it purported to do so. Clearly, it had
fortified that right on June 13, 1973. It could not, therefore, have appointed
the appellant as a Head Clerk, as it purported to do, in January 1974 on an ad
hoc basis or in April 1975 on a regular basis. The appointment of the appellant
to the post of a Head Clerk being without the authority of law, the Government
was not bound to absorb him in the post of a Head Clerk. He was appointed
lawfully to the post of a Clerk and that is the post in which the Government
has absorbed him.
For these reasons, the appeal fails and is
dismissed.
There will be no order as to costs.
S.R. Appeal dismissed.
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