Santosh vs General Administration ...
2023 Latest Caselaw 16152 MP

                          -1-


      IN THE HIGH COURT OF MADHYA PRADESH
                      AT I N D O R E
                           BEFORE
             HON'BLE SHRI JUSTICE VIVEK RUSIA
                WRIT PETITION No. 2634 of 2020

BETWEEN:-
   SANTOSH S/O DARIYAV SINGH CHOUHAN, AGED
1. ABOUT 59 YEARS, OCCUPATION: SERVICE JILA
   PANCHAYAT KHARGONE (MADHYA PRADESH)
   VIKRAM S/O SHRI PRATAPSINGH PATIL, AGED
   ABOUT 56 YEARS, OCCUPATION: SERVICE R/O:
2.
   JILA  PANCHAYAT    KHARGONE     (MADHYA
   PRADESH)
   SHEIKH JAKIR S/O SHRI ISRAIL SHEIKH, AGED
   ABOUT 49 YEARS, OCCUPATION: SERVICE R/O:
3.
   JILA  PANCHAYAT     KHARGONE      (MADHYA
   PRADESH)
                                                 .....PETITIONER
( BY SHRI VIKAS JAISWAL-ADVOCATE)

AND
   STATE OF M.P. THROUGH SECRETARY GENERAL
1. ADMINISTRATION    DEPARTMENT   PRINCIPAL
   VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)
     PRICIPAL SECRETARY FINANCE DEPARTMENT
2.
     VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)
   PRINCIPAL SECRETARY PANCHAYAT AND RURAL
3. DEVELOPMENT      DEPARTMENT     VALLABH
   BHAWAN, BHOPAL (MADHYA PRADESH)
   COMMISSIONER    PANCHAYAT  AND RURAL
4. DEVELOPMENT DEPARTMENT VINDHYACHAL
   BHAWAN BHOPAL (MADHYA PRADESH)
5. CHIEF EXECUTIVE OFFICER JILA PANCHAYAT
   KHARGONE    DIST  KHARGONE     (MADHYA
                                   -2-


      PRADESH)
                                                         .....RESPONDENTS
( BY SHRI ANIKET NAIK-ADVOCATE)
This petition coming on for orders this day, the court passed the
following:
        Heard on                  :     17.08.2023
        Order pronounced on       :     03.10.2023


                                O R D E R

Petitioners have filed the present petition challenging the order dated 25.09.2019 passed by respondent No.1 whereby they have been denied the benefit of 6th Pay Commission from 01.01.2006 to the employees of Janpad Panchayat and Jila Panchayat.

[2] The petitioners were appointed to the District Rural Development Authority and thereafter their services were absorbed into the Jila Panchayat Khargone. Petitioner No.1 was promoted to Accountant and Petitioner No.2 was promoted to the post of Assistant Grade II. They approached before this Court by way of Writ Petition No.2494/2001 for the grant of benefit of the 5th Pay Commission. Vide order dated 20.06.2001, the Writ Petition was allowed with a direction to the respondents to grant the benefit.

[3] Vide order dated 21.07.2010, the Panchayat and Rural Development Department directed all Chief Executive Officers of Jila Panchayat to grant the benefit of the 6th Pay Commission to the employees of DRDA as well as employees of Panchayat. Vide order dated 10.05.2018, the benefit of 7 th Pay Commission, dearness allowance to the employees working in the Jila Panchayat and Janpad Panchayat. In compliance of the aforesaid order, the pay fixation of the petitioners was done on 16.08.2018.

[4] The petitioners submitted a representation to the respondents for extending the benefit of the 6th Pay Commission w.e.f. 01.01.2006 i.e. at par with the State Government employees, who had already been given the said benefit from 01.01.2006. Petitioners approached before this Court by way of Writ Petition No.186/2015 for grant of 6th Pay Commission which was disposed of vide order dated 26.10.2016 with direction to consider the representation, vide annexure P/1 the respondents have rejected the representation that the State Government vide order dated 08.08.2013 directed to give the 6th Pay Commission 01.04.2013 to the employees of Jila Panchayat and Janpad Panchayat and Jila Panchayat is not having any additional source of income, hence claim of benefit from 01.01.2006 cannot be allowed, hence, present petition before this Court. [5] Initially, the respondents filed a very brief reply by submitting that vide order dated 08.09.2008, the State Government directed all the Chief Executive Officers of Jila Panchayat and Janpad Panchayat to grant the benefit of 5th Pay Commission to the employees of Jila Panchayat and Janpad Panchayat from 01.04.2006 and thereafter vide order dated 08.08.2013 further directed to grant the 6th Pay Commission w.e.f.01.04.2013 with the rider that the State Government would not provide any separate funds in respect of such grant. The services of the petitioners were governed by Madhya Pradesh Panchayat Services (Recruitment and General Condition of Service) Rules, 1999 (henceforth '' Rules, 1999''), they cannot claim their eligibility for 6th Pay Commission like their counter part in State Government employee. [6] Petitioners filed a rejoinder that Jila Panchayat Khargone has decided to give the 6th Pay Commission to its employees like State Government employees and the said resolution has been implemented.

[7] This court vide order dated 20.04.2023, has directed the State Government to seek instruction as to what is the position about the implementation of the 6th Pay Commission in other Gram Panchayats, Janpad Panchayats and Jila Panchayats of M.P. to examine disparity in the date of grant of benefit of 6th Pay Commission amongst the employees of Panchayats. That Shri Malay Shrivastava, Additional Chief Secretary, Panchayat and Rural Development Department, Bhopal filed an affidavit to the effect that the Finance Department had granted approval for grant of benefit of revision of pay by accepting the recommendation of 5 th and 6th Pay Commission w.e.f. 06.07.2013. Shri Naik, Deputy Advocate General was directed to seek instructions under which provision of law, the State Government gets authority to decide the date of implementation 6 th Pay Commission for the Panchayat employees. The notification dated 28.02.2009 whereby M.P. Revision Rules,2009 were notified by the Finance Department, Government of Madhya Pradesh w.e.f.01.01.2006 under the power conferred under Article 309 of the Constitution of India hence under which authority Government decided that date of implementation for panchayats 'employees.

Appreciations & Conclusion [8] The core issue in this Writ Petition which requires consideration by this Court is "whether employees of Gram Panchayat, Janpad Panchayat and Jila Panchayat are to be treated at par with State Government employees in respect of date of implementation of recommendation of the 6th pay commission?"

Another issue which is to be examined is "under which authority the State Government is competent to fix the date of implementation for the members of Panchayat services ?"

[9] Chapter 9 of the Constitution of India mandates the establishment of the Gram Panchayat, Janpad Panchayat and Jila Panchayat in each State . As per definition 243 (d) "Panchayat" means an institution by whatever name called of self-government constituted under article 243B, for the rural areas. Art. 243B says there shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part. Art. 243C provides the composition of Panchayat for which the legislature of a State may, by law, make provisions with respect to the composition of Panchayats. All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area. As per Art. 243E, every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. Art. 243G defines the power, authority and responsibility of Panchayat subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government. The Legislature of a State may, by law, authorise a Panchayat to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and further provides for making such grants-in-aid to the Panchayats from the Consolidated Fund of the State. Art. 243J provides an audit of accounts of Panchayat that too by making the law by legislature.243K deals with the election. It is clear from above that each and every Panchayat is an independent self Government enabled to take its own decision in respect of the law made by the legislature of the State.

[10] Article 309 of the Constitution of India says that subject to the

provisions of this Constitution, the act of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State, therefore the State Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affair of State meaning thereby the State Government is not competent to decide the recruitment conditions of the employees of Panchayat. The Government of M.P. in exercise of power conferred under Article 309 of the Constitution of India framed the Madhya Pradesh Vetan Punrikshan Niyam, 2009 and made it applicable w.e.f. 01.01.2006 for its government employee but in an order dated 08.08.2013, the Panchayat and Rural Department of State Government has not disclosed any power by which the date of grant of benefit of 6 th Pay Commission has been fixed from 01.04.2013 after approval of the Finance Department. [11] By way of additional return, it is submitted that the State being a welfare State decided to give benefit of the 5 th and 6th Pay Commission subject to the availability of funds in head of salary and that too absence of any legal right to claim revision of pay. According to the State Government, the Panchayat has been given the power to make recruitment under the Madhya Pradesh Panchayat (Bharti Tatha Sewa ki Samanya Sharte) Niyam, 1999 and pay salaries and other monetary benefits from the fund of the Panchayat. It is further submitted by the learned Dy. Advocate General that if Jila Panchayat and Janpad Panchayat which are independent bodies are willing to give enhanced pay considering their financial condition may grant such benefit for which the State shall have no objection. If that be so, the State Government has no authority to fix the date for the grant of the benefit of the 5 th or 6th pay commission. It should

have been left to the discretion of the Panchayat to decide its own dates for the grant of pay revision or accept the recommendation of the 5th and 6th Pay Commission. The Madhya Pradesh Janpad Budget Anuman Niyam, 1997 is already enforced merely because employees are working in the affair in the Panchayat cannot be denied the benefit of pay revision on the basis of profit and loss. No State Government submit its budget in profits despite that the Government grants all the monetary benefit to its employees like pay revision, dearness allowance etc. by creating separate fund for it. At the time of granting benefits to the Panchayat employees, the shortage of funds and budget should not be the criteria. Shri Naik, learned Deputy Advocate General has placed reliance on the judgment passed by the Division Bench of Janpad Panchayat and Jila Panchayat Karmachari Sangh and others Vs. State of Madhya Pradesh reported in 1992 MPLJ 804 wherein the Writ Petition filed for similar relief had already been dismissed by this Court at the motion stage. The said Writ Petition was filed relying on the judgment passed in the case of State of Gujarat v. Raman Lal Keshav Lal Soni, (1983) 2 SCC 33: AIR 1984 SC

161. The Division Bench in the case of Janpad Panchayat and Jila Panchayat Karmachari Sangh (supra) held that the employees of Panchayat are not government servants merely because the Acts gives power to State Government to prescribe the conditions of service of employees of a Panchayat constituted under the Act, the servants covered by such rules do not become servants of the Government. Government is only a rule-making authority in such a case. However, Shri Naik, Deputy Advocate General has also placed reliance on the case of State of West Bengal and another Vs. West Bengal Registration Copywriters Association and another reported in (2009) 14 SCC 132 in which it has

been held that the Panchayat service constituted under Section 203 of the Gujarat Panchayats Act, 1962 was a civil service of the State and members of the service were government servants but in State of Madhya Pradesh there is no such Section 203 of MP Panchayat Raj and Gram Swaraj Act 1993, therefore, this judgment will not help the petitioners. [12] So far as the judgment Janpad Panchayat (supra) is concerned, this judgment was passed when the Panchayat Act, 1962 was in enforce and its provisions were considered while dismissing the writ petitions but now the MP Panchayat Raj and Gram Swaraj Act 1993 has come into force by repelling the Act, 1962 and Act, 1992. Section 53 of the Act, 1993 defines the power of State Government in relation to the functions of Panchayats. Section 53 (1) (b) of Act, 1993 says that the State Government may, by notification, endow Panchayats at the appropriate level with powers and responsibilities for the selection, recruitment, appointment and management of any cadre or cadres of employees required for the efficient implementation of schemes, subject to the staffing pattern approved by the State Government and such other conditions as it may deem fit but section 53 (1) (a) of Act, 1993 says that State Government, the Panchayat at the appropriate level shall have the powers and authority as may be necessary to enable them to function as institutions of self Government. Section 51 and Section 52 deals with entrustment of certain functions of State Government to Janpad Panchayat and Jila Panchayat and it says that the State Government may entrust, to a [Janpad Panchayat or Jila Panchayat] functions in relation to any matter to which the executive authority of the State Government extends or in respect of functions which have been entrusted to the State Government by the Central Government and further says that Subject to the provisions of this Act and rules made thereunder

and subject to policy, directions, instructions, general or special orders as may be issued by the State Government from time to time in respect of preparation of budget, administer and control the employees appointed and posted in Panchayats including staff transferred by the State Government to the Panchayats, thus the State Government has taken complete control on the function of Panchayat and Panchayat is bound to follow the each and every direction issued by the State Government. Every power conferred under the Panchayat Act starts with words that are subject to the Rules as the State Government may make or subject to any Act direction, or orders issued by the State Government, therefore, the State Government virtually controls all the Panchayats in respect of budget, funding, aid, expenditure, collection of tax, recruitment, condition of service and pay revision etc. [13] Relevant para in the case of West Bengal and another (supra) is reproduced below:-

117. This takes us to State of Gujarat v. Raman Lal Keshav Lal Soni [(1983) 2 SCC 33 : 1983 SCC (L&S) 231] . The question, which fell for consideration was as to whether personnel drawn from different sources, namely, government departments, as well as, the local authorities or municipalities merged together to constitute a single integrated civil service under the State by a legislative enactment, would become the State Government employees, irrespective of their original status. The question was answered in the affirmative.

118.Raman Lal case [(1983) 2 SCC 33 : 1983 SCC (L&S) 231] was very heavily relied upon by Shri Mitra, learned Senior Counsel for the respondents, since the end result went in favour of the employees and they were held to be holding the civil posts. In para 27, the Court observed: (SCC p. 49) "27. ... 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."

(emphasis supplied) Reference was made to Guru Gobinda Basu v. Sankari Prasad Ghosal [AIR 1964 SC 254] , State of U.P. v. Audh Narain Singh [AIR 1965 SC 360] , Kanak Chandra Dutta [AIR 1967 SC 884] , D.R. Gurushantappa v. Abdul Khuddus Anwar [(1969) 1 SCC 466] and S.L. Agarwal v. Hindustan Steel Ltd. [(1970) 1 SCC 177]

119. In para 31, this Court in Raman Lal case [(1983) 2 SCC 33 : 1983 SCC (L&S) 231] noted that the Panchayat service constituted under Section 203 of the Gujarat Panchayats Act, 1962 was a civil service of the State and members of the service were government servants. It was noted that this question was decided by the High Court of Gujarat more than 15 years back in G.L. Shukla v. State of Gujarat [ILR 1967 Guj 560] by Hon'ble Bhagwati, J. (as he then was).

120. In G.L. Shukla case [ILR 1967 Guj 560] Hon'ble Bhagwati, J. observed:

"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 of another...."

The learned Judge further said:

"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...."

121. Considering other provisions, ultimately, this Court in Raman Lal case [(1983) 2 SCC 33 : 1983 SCC (L&S) 231] held the employees to be belonging to the government service and found that there existed the master-and-servant relationship.

[14] In the State of Madhya Pradesh also, the State Government has control to make rules and regulations for recruitment in Panchayats. The services provided to the citizens residing within a rural area, the Panchayats are constituted under Article 243B of the Constitution of India, therefore, those benefits which the State Government provides to all citizens of Madhya Pradesh through various departments by recruiting employees, the same facilities/services have been given by the Panchayats through its employees. In India there is a 3 tier system of Government, the Panchayat is the lowest self-governed body having elected members, a Chairman, President to make decisions in respect of their territory but so far as employees are concerned, they are at par with the State Government as they are discharging the same duties one is being State Government and another other is being municipal employees. The Panchayats, Nagar Parishads Municipal Councils and Corporations all render common services to the public on behalf of the Government, therefore, the employees of the Panchayat cannot be discriminated with the State Government employee or other local body employees. The Apex Court has

rightly said that the employees of Panchayat are also public servants and State Government employees. The Provisions of the Gujarat Panchayat Act and the Madhya Pradesh Panchayat Act are identical. Whenever the State Government recommends the pay revision, it should be applied to all employees of the State Government or Panchayat employees from the same date. There cannot be a reason for fixing two dates for two sets of employees only on the grounds of the profit and loss budget of Panchayat. If the Panchayat is lacking its funds to run, the State Government may increase aid. The benefits pay, revisions and allowances should not depend on the profit or loss of any statutory body.

[15] In view of the above, Writ Petition is allowed. Petitioners and all other Panchayat employees/ staff be given the benefit of the 6 th Pay Commission w.e.f. from 01.01.2006 as granted to the State Government Employees.

No order as to cost.

(VIVEK RUSIA) JUDGE praveen

Digitally signed by PRAVEEN Date: 2023.10.03 17:37:54 +05'30'