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 ............................................................
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"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 ............
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"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 cou
