This document summarizes a high court judgment regarding an employee's claim for pension benefits.
The petitioner was appointed as an Octroi Clerk by Kayavarohan Gram Panchayat in 1962 before the Panchayati Raj system came into effect in 1963. He worked for 40 years and retired in 2002. The Panchayat denied his pension claim, arguing his appointment was illegal as it did not follow recruitment rules.
The court analyzed the 1983 Supreme Court judgment in State of Gujarat v. R.K. Soni, which said employees of Panchayats are entitled to equal treatment and benefits as government servants. It also examined the Panchayat's claim that the employee's appointment was
This document summarizes a high court judgment regarding an employee's claim for pension benefits.
The petitioner was appointed as an Octroi Clerk by Kayavarohan Gram Panchayat in 1962 before the Panchayati Raj system came into effect in 1963. He worked for 40 years and retired in 2002. The Panchayat denied his pension claim, arguing his appointment was illegal as it did not follow recruitment rules.
The court analyzed the 1983 Supreme Court judgment in State of Gujarat v. R.K. Soni, which said employees of Panchayats are entitled to equal treatment and benefits as government servants. It also examined the Panchayat's claim that the employee's appointment was
Original Description:
Original Title
State of Gujarat vs Chandubhai Chhotabhai Patel 03GJ201822081815393134COM123055
This document summarizes a high court judgment regarding an employee's claim for pension benefits.
The petitioner was appointed as an Octroi Clerk by Kayavarohan Gram Panchayat in 1962 before the Panchayati Raj system came into effect in 1963. He worked for 40 years and retired in 2002. The Panchayat denied his pension claim, arguing his appointment was illegal as it did not follow recruitment rules.
The court analyzed the 1983 Supreme Court judgment in State of Gujarat v. R.K. Soni, which said employees of Panchayats are entitled to equal treatment and benefits as government servants. It also examined the Panchayat's claim that the employee's appointment was
This document summarizes a high court judgment regarding an employee's claim for pension benefits.
The petitioner was appointed as an Octroi Clerk by Kayavarohan Gram Panchayat in 1962 before the Panchayati Raj system came into effect in 1963. He worked for 40 years and retired in 2002. The Panchayat denied his pension claim, arguing his appointment was illegal as it did not follow recruitment rules.
The court analyzed the 1983 Supreme Court judgment in State of Gujarat v. R.K. Soni, which said employees of Panchayats are entitled to equal treatment and benefits as government servants. It also examined the Panchayat's claim that the employee's appointment was
Letters Patent Appeal No. 409 of 2017 in Special Civil Application No. 7684 of 2002 and Letters Patent Appeal No. 1520 of 2017 in Special Civil Application No. 7684 of 2002 Decided On: 03.05.2018 Appellants: State of Gujarat Vs. Respondent: Chandubhai Chhotabhai Patel Hon'ble Judges/Coram: Anant S. Dave and Biren Vaishnav, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Dhawan Jayswal, A.G.P. For Respondents/Defendant: Bipin I. Mehta JUDGMENT Biren Vaishnav, J. 1. Year 2018 has almost half gone and we are still called upon to decide and sit over and re- appreciate what has been finally set at rest in the judgment of the Supreme Court rendered in 1983 in the case of State of Gujarat and Raman Lal Keshav Lal Soni (MANU/SC/0346/1983 : AIR 1984 SC 161). The opening words of the author of the judgment rendered then, still sound so true and therefore it will be in the fitness of things to reproduce the same to begin our analysis of the facts and the judgment that we render:-- "The attitude of the State of Gujarat in these cases has 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." 2. The facts in brief that give rise to the present appeals are as under:-- 2.1 These appeals arise at the hands of the State of Gujarat and the Panchayat Authorities who yet again want to deprive a Panchayat servant of his pensionary dues, on the ground that the employee concerned was a part of the non-converted Gram Panchayat and his appointment
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was not in accordance with the provisions of the Gujarat Panchayats Act, 1961 and his appointment was illegal and irregular. 2 . 2 The original petitioner/respondent in this appeal, (hereinafter referred to as "the petitioner") was appointed as an Octroi Clerk in October 1962 with the Kayavarohan Gram Panchayat. Pursuant to a notice placed in the Office of the Panchayat in September 1962 for appointment of Octroi Clerk, the petitioner applied for the said post. The petitioner was interviewed and thereafter appointed to the said post. The respondent Panchayat passed a resolution in its meeting held on 19.1.1963 approving the petitioner's appointment. During the service tenure with the Panchayat, the petitioner was given all the regular benefits of Pay/Dearness Allowance and Pay-Revisions available to State Government employees according to the Pay Commissions at the relevant point of time. 2 . 3 After having completed the age of 58 years, the petitioner addressed a letter dated 29.06.2002 to the Sarpanch that since the petitioner was appointed on 1.10.1962 and had completed 58 years of age he requested for retirement and also prayed that he be paid pension and gratuity as per Government Rules. On 29.06.2002 itself the Talati-cum-Mantri passed a Resolution permitting the petitioner to retire with effect from 30.06.2002 with a recommendation that the benefits of pension and gratuity be paid to the petitioner as per Government rules. Since the petitioner did not receive his terminal benefits, he approached this Court by way of the petition stating that he was appointed in the year 1962 before the Panchayati Raj came into force with effect from 1.4.1963. There were no recruitment rules in force at the relevant time and his appointment by a Resolution was in accordance with the rules then prevalent, the petitioner could not have been denied pension in accordance with the law laid down by the Supreme Court in the case of R.K. Soni (supra). It is the case of the petitioner that in the interregnum the Administrator and the Talati-cum-Mantri passed a Resolution on 1.5.2001 holding that the appointment of the petitioner was not in accordance with the provisions of the Gujarat Panchayat Act and therefore the services ought to be terminated. However, the petitioner was continued and paid a fixed amount which is a subject- matter of challenge in another petition. The petitioner therefore prayed for a direction that the respondents/appellants herein be directed to give retirement benefits which include pension gratuity etc. 2 .4 The District Development Officer filed an Affidavit-In-Reply to the petition. It was the stand of the District Panchayat that the petitioner was appointed by the Kayavarohan Gram Panchayat without following the due procedure of recruitment and as such the appointment was totally illegal and irregular. The appointment was not on a sanctioned post. No sanction of the Development Commissioner was obtained. Section 203 of the Gujarat Panchayat Act, 1961 was pressed into service to contend that the Panchayat is consisting of three cadres and there are rules of recruitment and promotion framed thereunder. The District Development Officer further contended that the employees of the Gram Panchayat are not employees of the State and the service regulations and rules of the Gram Panchayat are applicable to them. A further affidavit was also filed by the Panchayat to contend that the Gram Panchayat had not sought prior approval from the Authority and the appointment was not on a sanctioned post. The Kayavarohan Gram Panchayat is not a converted Gram Panchayat and therefore the petitioner is not entitled to the benefit of pension and other retirement benefits from the respondent State. Government Resolution dated 17.10.1983 was pressed into service on the issue of benefits available to employees of the converted Gram Panchayat. The Resolution of 1983 provided that all employees of the converted Gram Panchayat who have retired after 11.2.1969 would be entitled to pensionary benefits. Name of Kayavarohan Gram Panchayat did not figure in the list of duly converted Gram Panchayats and Municipalities in the Resolution dated 29.9.1992. 2.5 The petitioner filed a Rejoinder to such affidavits stating that he was appointed in 1962 before the Panchayat Act of 1963 came into force. At that time the Panchayat had powers to appoint an employee by passing a Resolution and that the petitioner was continued till his retirement and no objection was raised till his retirement and therefore the respondents were
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estopped from making it as an issue. The petitioner stated that it was not open for the Panchayat to now state that his appointment was illegal and irregular. There were no rules in existence when the petitioner was appointed and therefore the Panchayat had appointed him by passing a Resolution which then was a regular and a recognised mode of appointment. That the procedure as envisaged by the respondent, was not the procedure that could have been followed as the petitioner was appointed prior to 1963. An additional affidavit was also filed placing on record various resolutions. In the Letters Patent Appeal also an Affidavit was filed which in a nutshell stated that the Government had decided to give pension to the employees working with the Gram/Nagar Panchayats who were appointed from 1.4.1963 to 5.6.1984. That an amendment was made in 1978 to the Gujarat Panchayat Act and the powers of appointment were given to the Gram/Nagar Panchayats and during that period several appointments were made by the Gram/Nagar Panchayats and therefore the State Government decided to regularise services of those employees who were appointed from 1963 to 1984. Reference was made to a letter dated 9.9.1996 addressed by the State Government to all the DDOs that a list of such employees recruited between 1.4.1963 and 6.7.1978 be prepared and sent with a proposal for getting sanction to such appointments with retrospective effect. The letter further stated that appointments made by the Gram/Nagar Panchayat made between 10.7.1978 and 5.7.1984 on the posts which were sanctioned were to be treated as valid appointments. 2.6 The State filed a rejoinder in the appeal affirmed by the Under Secretary of the Panchayats Rural Housing and Rural Development Department. Extensive reliance was placed on Section 203 of the Gujarat Panchayat Act, 1961 and it was stated that the petitioner's case did not fall within the purview of the legal provisions and Rules and the said appointment was not in accordance with the procedure prescribed under the Act. A resolution was passed pursuant to the judgment in the case of R.K. Soni (supra) on 17.10.1983 whereby it was resolved to grant pensionary benefits to the regular employees of the converted Panchayats who were in service as on 11.2.1969 and had retired or passed away thereafter. For appointments made between 1.4.1963 to 9.7.1978 proposals ought to have been made immediately for getting sanction of the District Development Officer. The State rebutted the claim of the petitioner who placed reliance in the cases of the Mendarda and Okha Gram Panchayats on the ground that the said Panchayats were converted Gram Panchayats whose employees were either allocated employees or were recruited after following due procedure. 2.7 Based on such rival contentions between the parties, the learned Single Judge by his oral judgment dated 5.08.2016 relying on the decision of the Supreme Court in the case of Harijan Paniben Dudabhai v. State of Gujarat (Civil Appeal No. 5441 of 2016 arising out of SLP(C) No. 2324 of 2010) held that indisputably the petitioner was appointed in the year 1962 i.e. prior to the Gram Panchayat Service (Classification & Recruitment) Rules, 1967 and therefore is covered by the findings in the case of Harijan Paniben (supra). A direction was accordingly issued to the Panchayat to prepare a fresh proposal and send the same to the Government and the Government was directed to take an appropriate decision in the case. 2.8 Both the State and the Panchayat Authorities are in appeal before us against the judgment of the learned Single Judge. 3 . Mr. Dhawan Jayswal, learned Assistant Government Pleader has vehemently assailed the judgment of the learned Single Judge. Ms. Sejal Mandavia, learned Advocate in the appeal on behalf of the Panchayat Authorities has supported his submissions. 3.1 Shri Jayswal has contended thus:-- (i) That the Learned Single Judge failed to appreciate that the judgment in the case of R.K. Soni (supra) was not applicable in the facts of this case. It was applicable in case of converted Panchayats and the present Panchayat namely Kayavarohan Gram Panchayat was not a converted Panchayat. According to the Resolutions of the Government, the pension and terminal benefits could be paid only to such Panchayats
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who were converted Panchayats. (ii) The case of Harijan Paniben (supra) was a case where the Okha Municipality was a converted Panchayat and the Supreme Court had on facts found that the appointment therein was made on a sanctioned post whereas in the facts of the present case, evident it was from the Affidavit of the Panchayat and the State that the petitioner was not appointed after following a due procedure in accordance with Section 203 of the Gujarat Panchayat Act, 1961 and therefore the said judgment would not be applicable. In support of this submission, the learned Assistant Government Pleader placed reliance on the judgment of the Division Bench in the case of Dahyabhai Vajesing Aanjna Patel v. State of Gujarat rendered in Letters Patent Appeal No. 1099 of 2016 on 27/1/2017 wherein the Division Bench observed that in the case of Harijan Paniben (supra) it was categorically held that the employee was holding the post within the sanctioned set up. The Division Bench observed that if one is appointed in the post within the sanctioned set up of the Gram Panchayat, he totally stands on a different footing than that of a person who is appointed to a post which is not sanctioned by the Gram Panchayat. The Division Bench affirmed the judgment of the learned Single Judge by which the petitioner's petition for pensionary benefits was dismissed. Shri Jayswal in support of such submission also pressed into service a judgment of the Learned Single Judge in the case of Jagdishbhai Mohanbhai Vidja v. State of Gujarat in Special Civil Application No. 14889 of 2013. This was a case where a petitioner of a non-converted Gram Panchayat had approached the Court for pension and the petition was dismissed on the ground that pensionary benefits are not available to a Panchayat employee of a non-converted Panchayat. (iii) It was further contended that the appointment was not in consonance with the Rules and after following the provisions of Section 203 of the Gujarat Panchayat Act, 1961. The benefit of pension and terminal benefits could not extend to an employee whose appointment was illegal and was without sanction from the Development Commissioner. Extensive reliance was placed on the provisions of the Gujarat Panchayat Act, 1961 which came into force with effect from 1.4.1963 to contend that a detailed procedure with regard to Panchayat Services was laid out in Section 203 of the Act and once it was found that there was an infraction in the appointment of the employee inasmuch as such a procedure was not followed, the employee not being so appointed in accordance with such rules and not on a sanctioned post could not get the benefit of the terminal benefits as his appointment itself was void ab-initio. 4. Mr. Bipin Mehta who appeared on behalf of the petitioner-respondent herein supported the decision of the learned Single Judge. Shri Mehta suggested that it was not open for the State to undertake a microscopic division of converted v. non-converted Gram Panchayats in view of the binding decision of the Constitution Bench in the case of R.K. Soni (supra). 4 . 1 Reliance was also placed on a Division Bench judgment rendered in Special Civil Application No. 1205 of 1978 filed by the Halol Nagar Panchayat. The Nagar Panchayat had moved the Court for directions to give the Panchayat and its employees the same and uniform treatment as was bound to be given in view of R.K. Soni's decision and prayed that they be accorded the benefits of Pay Revision. The stand of the State Government there was that in view of the Amendment Act of 1978, the Panchayat Service was a separate service. The Division Bench fell back on the decision in the case of G.L. Shukla v. State of Gujarat reported in MANU/GJ/0125/1967 : 8 GLR 833 wherein it was held that ex-municipal employees were entitled to the benefit on coming over to Panchayat service in view of R.K. Soni's decision. 4.2 Mr. Mehta further relied extensively on the rejoinder filed and also on the decision of Harijan Paniben (supra) to suggest that there was no question of getting into the issue of illegality/irregularity of appointment as, the Panchayat at the relevant time could make such appointments by passing resolutions in absence of any Recruitment Rules. The Gram Panchayat had to act as a body through resolutions and therefore the appointment was in
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accordance with law. 4.3 Resolutions placed on record with the additional affidavit would suggest that what was laid down in the said Resolutions was with regard to employees recruited in the period from 1.4.1963 to 1978 and post 1984, and in such cases as per letter dated 9.9.1996 proposals had to be moved for sanction/regularisation of posts. In the case on hand, admittedly, the appointment was made before the Panchayat Act and the Rules came into force and therefore there was no illegality or irregularity in the appointment made prior to the Act having come into force, in accordance with the Resolution of the Government. At the relevant time, the Panchayat namely the Gram Panchayat could only act though the Resolutions and the resolution appointing the petitioner is on record suggesting that there was no illegality or irregularity in appointing the petitioner. 5. Looking to the issues involved in these appeals, neither of the parties dispute that the focal point of the issue is the decision in the case of R.K. Soni (supra) which governs the case and only that would settle the issue, whether the petitioner who is an employee of the non- converted Gram/Nagar Panchayat/Municipality would be entitled to pension. 6 . We would, therefore, embark upon an analysis of the law as discussed by the Supreme Court in the case of R.K. Soni (supra). In the case of R.K. Soni (supra) employees working under various Panchayat Institutions were denied benefits of the Sarela and Desai Pay Commissions on the sole ground that before they came to work under the Panchayat Institutions they were employed in Municipalities (local bodies) while others were Government servants, though Panchayat employees in the higher hierarchical ladder were extended such benefits. The employees succeeded before the Gujarat High Court and an appeal was filed before the Supreme Court. The Supreme Court, it would be relevant to suggest, referred to the provisions of the Gujarat Panchayat Act, 1961 and observed that the Gram Panchayat, Nagar Panchayat, Taluka Panchayat and the District Panchayat are bodies corporate with perpetual succession and a common seal. Historical perspective of the enactment of the Gujarat Panchayat Act from the Bombay Acts has been succinctly set out in the "tour of inspection "as the Court called it of the Panchayat Act. Relevant Paragraphs of the judgment would support our endeavour to show that the Panchayat is a local-self-Government institution of which the State is the master. Relevant paras so discussing the structure of the Panchayat system are as under:-- "6. 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
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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. 7 . 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. 8 . 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. 9 . 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. 10. 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'. 1 1 . S ec. 155 provides for the transfer of the functions previously performed by District School Boards under the Bombay and Saurashtra Primary Education Act to
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taluqa and district Panchayats. 12. 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. 13. 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. S ec. 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. (1) 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. 1 4 . 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 therefore. 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. 15. 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. 16. 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. 1 7 . S ec. 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. 1 8 . 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
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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. 19. 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. 20. 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. 21. 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
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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. 22. 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 and 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." 6.1 Analysing Section 203 of the Gujarat Panchayat Act, 1961 in para 21, the Court observed that in 1978 Panchayat Service was declared as a distinct service providing for a three tier system of district cadres; taluka cadres and local cadres. The State Government under the Section was empowered to make Rules for recruitment etc. of such employees. The issue arose before the Court when the State Government did not extend the benefits of revisions of pay to the staff born on the local cadre of Panchayat service though such benefits were extended to the District and Taluka Cadre. No promotional avenues were also provided for such local cadres. Writ Petitions were filed by such employees of the local cadre which were resisted by the State of Gujarat on the principal ground that the members of the Panchayat Service were not Government Servants. The High Court allowed the petitions holding that the members of the Panchayat Service belonging to the local cadre were Government Servants. The Government to overcome the judgment brought in an ordinance of 1978 which was later replaced by the Gujarat Panchayat (Third Amendment) Act, 1978. 7. While discussing the merits of the case on hand prior to such amendment what substantial features the judgment suggests need to be briefly stated:-- (1) The broad and general picture 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 de-centralization of important Governmental functions by vesting such functions in gram, nagar, taluqa and district Panchayats and, besides, by enabling the State Government to transfer other powers, functions and duties to the Panchayat institutions. 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
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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 Panchayat 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. For the purpose of efficiently discharging the functions and duties of the various Panchayat institutions and having 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 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. (2). Considerable stress was laid by the Counsel for the State of Gujarat on the statement in Section 203 that such service (Panchayat Service) shall be distinct from the State Service. 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 State Service and not in the sense that members of the service are not servants of the State. 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. (3) The Court was of the view that the Panchayat Service constituted under Section 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 Court of Gujarat more than 15 years back in G.L. Shukla v. State of Gujarat, MANU/GJ/0125/1967 : (1967) 8 Guj LR 833, 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 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
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Government and its strength is also to be determined by the State Government. Section 203. sub-Section (2) says that the Panchayat Service shall consist of such classes, 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 by order from time to time determine............................................................................................................... "The provision of different cadres in 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 Gram or Nagar in the same taluka emphasize that the Panchayat Service is one single service with one master. namely, the State and each Panchayat is not the master of the servant employed in the discharge of its functions and duties. It is difficult to imagine that the Legislature should have provided for transfer of servants from one master to another..............................."The mode of recruitment, the conditions of service and matters relating to appointments, transfers and promotions of persons employed in the Panchayat Service as also disciplinary action against them are all determined by the State Government and that is consistent only with the State being the master in the entire Panchayat Service. The mandatory provision for promotion from Panchayat Service to State Service which is required to be made in the rules also shows that both the services are services of the State. There could be no question of promotion from one service to another if the masters in the two services were different. Then it would be a case of termination of one service and appointment to another......................" Then comes Sec. 206 which provides for making of an order of allocation to the Panchayat Service.............." This provision relating to allocation of Officers and servants under clauses (i) and (iii) does not contemplate any termination of service of such Officers and servants or any fresh appointment to a new service. There is no concept of termination of the existing service and reappointment to a new service involved in the process of allocation; the concept is only of transfer from one service of the State to another without any break in the continuity of service and that clearly postulates that both services are under the same master, namely, the State. Sec. 206-A also reinforces this conclusion. It makes the initial allocation provisional and permits the State to review the allocation within a period of four years from 1st April, 1963.......... "It is not possible to believe that the Officer or servant could have been intended by the Legislature to be treated like a chattel which can be tossed about from one master to another. The only reasonable way of looking at the matter seems to be and that conclusion is inevitable on the language of these provisions, that the Panchayat Service is a civil service of State like the State Service and since both the services are civil services of the State with the State as the master, an Officer or servant can be allocated from the State Service to the Panchayat Service and re- allocated from the Panchayat Service to the State Service....................." The conclusion which emerges from this discussion is that the Panchayat Service is a distinct and separate service set up for serving the Panchayat Organization of the State and it is as much a civil service of the State as the State Service. The State can have many services such as State Service. Police Service. Engineering Service etc. and Panchayat Service is one of them. In the Panchayat Service, as in the State Service, the State is the master and every Officer or servant employed in the Panchayat Service is the servant of the State and not of the Panchayat under which he may be serving for the time being. The Panchayat Service is one single service with the State as the master." (4) When the Panchayat Service was initially constituted soon after the passing of the Gujarat Panchayats Act, there were three cadres, the district cadre, the taluqa cadre
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and the local cadre, Secretaries, Officers and servants of the old Village Panchayats under the Bombay Village Panchayats Act, 1958 became Secretaries, Officers and servants of the new Gram Panchayats under Section 325(2)(x) of the Gujarat Panchayats Act, 1961. Talatis and Kotwals, who were Government servants were Secretaries and Officers of the old Village Panchayats under the Bombay Village Panchayats Act And so they became Secretaries and Officers of the new Gram Panchayats under the Gujarat Panchayats Act, 1961. Some Municipalities constituted for Municipal Districts and Municipal boroughs under the Bombay District Municipal Act and the Bombay Municipal Boroughs Act as applied to areas in the State of Gujarat, were converted into Gram and Nagar Panchayats under S. 307 of the Gujarat Panchayats Act and all Officer and servants in the employ of such Municipalities became Officers and servants of interim Panchayats and allocated to the Panchayat Service. Thus, Secretaries and Officers of dissolved Municipalities also became Secretaries and Officers of Gram and District Local Boards constituted under the Bombay Local Boards Act stood dissolved on the passing of the Gujarat Panchayats Act and all Officer and servants in the employment of the Board were deemed to be transferred to the service of the successor District Panchayat under Section 326 of the Gujarat Panchayats Act. Also allocated to the Panchayat Service were those Government servants who were transferred to the Panchayats under Section 157 and such other Officers and servants employed in the State Service as were necessary (S. 206). All these Secretaries, Officers and servants became members of a service under the State as soon as they were allocated the Panchayat Service. Now, by the Amending Act, Secretaries, Officers and servants of Gram and Nagar Panchayats who were allocated to the Panchayat Service from the ranks of the ex-Municipal employees are sought to be meted out differential treatment from the other members of the Panchayat Service, more particularly the Secretaries, Officers and servants of Gram and Nagar Panchayats who were drawn from the ranks of Secretaries, Officers and servants of old Village Panchayats, that is the Talatis and Kotwals. Their status as members of a service under the State is to go with no option to them. Retrospectivity is sought to be given to the Amending Act so that they could not claim that they were ever Government servants and so could not be made to cease to be Government servants and so that they could not claim that were singled out for differential treatment, for, if they were never in the Panchayat Service, they could not complain of being taken out of the Panchayat Service. In 1978 before the Amending Act was passed, thanks to the provisions of the Principal Act of 1961. the ex- Municipal employees who had been allocated to the Panchayat Service as Secretaries. Officers and servants of Gram and Nagar Panchayats, had achieved the status of Government servants. Their status as Government servants could not be extinguished, so long as the posts were not abolished and their services were not terminated in accordance with the provisions of Art. 311 of the Constitution. Nor was it permissible to single them out for differential treatment. That would offend Art. 14 of the Constitution. An attempt was made to justify the purported differentiation on the basis of history and ancestry, as it were. It was said that Talatis and Kotwals who became Secretaries. Officers and servants of Gram and Nagar Panchayats were Government servants, even to start with, while Municipal employees who became such Secretaries. Officers and servants of Gram and Nagar Panchayats were not. Each carried the mark of the 'brand' of his origin and a classification on the basis of the source from which they came into the service, it was claimed, was permissible. We are clear that it is not. Once they had joined the common stream of service to perform the same duties, it is clearly not permissible to make any classification on the basis of their origin. Such a classification would be unreasonable and entirely irrelevant to the object sought to be achieved. It is to navigate around these two obstacles of Art. 311 and Art 14. that the Amending Act is sought to be made retrospective, to bring about an artificial situation as if the erstwhile
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Municipal, employees never became members of a service under the State. Can a law be made to destroy today's accrued constitutional rights by artificially reverting to a situation which existed seventeen years ago. [Emphasis Supplied] 8 . Salient features of the judgment in R.K. Soni (supra) therefore can be summarized as under:-- (A) Panchayat Institutions were grass root level institutions carrying out functions of the State service assigned to them under the provisions of the Panchayat Act, 1961. Essential functions basic to the rural infrastructure and basic human needs are catered to by the Institution which is manned at the local cadre by its employees who were recruited through the Panchayats even prior to coming into force of the Gujarat Panchayat Act, 1961 with effect from 01.04.1963. (B) In the Panchayat Service, as in the State Service, the State is the master and every Officer or servant employed in the Panchayat Service is the servant of the State and not of the Panchayat under which he may be serving for the time being. The Panchayat Service is one single service with the State as the master" (C) The employees of the Panchayat institution namely that of the local cadre carry the mark of the 'brand' of his origin and a classification on the basis of the source from which they came into the service, was sought to be justified as a reasonable classification. The Court held that it wasn't. Once they had joined the common stream of service to perform the same duties, it is clearly not permissible to make any classification on the basis of their origin. Such a classification would be unreasonable and entirely irrelevant to the object sought to be achieved. These basic tenets lead us to trace the history of the Bombay Village Panchayats Act, 1958, a precursor to the Gujarat Panchayats Act of 1961 which undisputedly came into force on and from 1.4.1963 and the Recruitment Rules came into force in 1967. The relevant Sections are reproduced hereunder:-- Section 3(14) - "Panchayat" means a Panchayat established or deemed to have been established under this Act; Section 9 - Every Panchayat shall be a body corporate by the name of "the Village Panchayat of ", having perpetual succession and a common seal, with power to acquire and hold property, both moveable and immoveable, whether within or without the limits of the village over which it has Authority and may in its corporate name sue and be sued. Section 38 - (1) The executive power, for the purpose of carrying out the provisions of this Act and the resolutions passed by a Panchayat, vests in the Sarpanch who shall be directly responsible for the due fulfillment of the duties imposed upon the Panchayat by or under this Act. In the absence of the Sarpanch, the powers and duties of the Sarpanch shall, save as may be otherwise prescribed by rules, be exercised and performed by the Upa-Sarpanch. (2) Without prejudice to the generality of the foregoing provisions-- (i) the Sarpanch shall-- (a) preside over and regulate the meetings of the Panchayat; (b) keep the records and registers of the Panchayat in his custody; (c) exercise supervision and control over the acts done and action
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taken by all Officers and servants of the Panchayat (d) incur contingent expenditure up to ten rupees at any one occasion; (e) operate on the village fund including authorisation of payment, issue of cheques and refunds; (f) issue receipts under his signature for sums of money received by him on behalf of the Panchayat; (g) be responsible for the safe custody of the village fund; (h) cause to be prepared all statements and reports required by or under this Act; (i) exercise such other powers and discharge such other functions as may be conferred or imposed upon him by this Act or rules made thereunder; (j) call meeting of Gram Sabha as provided in Section 7 and preside over them; (ii) the Upa-Sarpanch shall,-- (a) in the absence of the Sarpanch preside over and regulate the meetings of the Panchayat (b) exercise such of the powers and perform such of the duties of the Sarpanch as the Sarpanch may, from time to time, delegate to him; (c) pending the election of a Sarpanch or in case the Sarpanch has been continuously absent from the village for more than fifteen days or is incapacitated, exercise the powers and perform the duties of the Sarpanch. (3) Every meeting of a Panchayat shall, in the absence of both the Sarpanch and the Upa-Sarpanch, be presided over by such one of the members present as may be chosen by the meeting to be Chairman for the occasion." Section 45 - (1) Subject to the general control of the Panchayat Mandal, it shall be the duty of a Panchayat, so far as village fund at its disposal will allow, to make reasonable provision within the village in regard to all or any of the following matters, namely:- I. In the sphere of sanitation and health-- (a) the supply of water for domestic use and for cattle; (b) the cleansing of public roads, drains, bunds, tanks and wells (other than tanks and wells used for irrigation) and other public places or works; (c) sanitation, conservancy, the prevention and abatement of nuisance, and the disposal of carcasses of dead animals; (d) the preservation and improvement of the public health; (e) the regulation by licensing or otherwise of tea, coffee and milk shops,
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(f) provision, maintenance and regulation of burning and burial grounds; (g) the lay out and maintenance of play grounds and of public gardens; (h) the disposal of unclaimed corpses and unclaimed cattle; (i) the construction and maintenance of public latrines; (j) the taking of measures to prevent the outbreak, spread or recurrence of any infectious disease; (k) the reclaiming of unhealthy localities; (l) the removal of rubbish heaps, jungle growth, prickly pear, the filling in of disused wells, insanitary ponds, pools, ditches, pits or hollows, the prevention of water logging in irrigated areas and other improvements of sanitary conditions; (m) maternity and child welfare; (n) providing medical relief; (o) the encouragement of human and animal vaccination. II. In the sphere of public Works- (a) removing of obstructions and projections in public streets or places and in sites, not being private property, which are open to the public whether such sites are vested in the Panchayat or belong to Government; (b) construction, maintenance and repair of public roads, drains, bunds and bridges; Provided that if the roads, drains, bunds and bridges vest in any other public Authority, such works shall not be undertaken without the consent of that Authority; (c) maintenance and regulation of the use of buildings handed over to the Panchayat or of Government buildings under the control of the Panchayat, grazing lands, forest lands including lands assigned under Section 28 of the Indian Forest Act, 1927. and tanks and wells (other than tanks and wells for irrigation) vesting in or under the control of the Panchayat; (d) lighting of the village; (e) control of fairs, bazars, tonga-stand and cart stands ; (f) construction and maintenance or control of slaughter houses; (g) planting of trees in market places and other public places and their maintenance and preservation; (h) the destruction of stray and ownerless dogs; (i) construction and maintenance of Dharmashalas;
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(j) management and control of bathing and washing ghats which are not managed by any Authority; (k) establishment and maintenance of markets; (l) construction and maintenance of houses for conservancy staff and village functionaries of the Panchayat; (m) the provision and maintenance of camping grounds; (n) the establishment, control and management of cattle pounds; (o) the establishment and maintenance of works or the provision of employment particularly in times of scarcity; (p) the extension of village sites and the regulation of buildings in accordance with such principles as may be prescribed; (q) the establishment and maintenance of warehouses; (r) excavation, cleansing and maintenance of ponds for the supply of water to animals III. In the sphere of education and culture-- (a) the spread of education; (b) the establishment and maintenance of akhada, parks, clubs and other places of recreation; (c) the establishment and maintenance of theatres for promotion of art and culture; (d) the establishment and maintenance of libraries and reading rooms; (e) promotion of social and moral welfare of the village including the promotion of prohibition, the removal of untouchability, amelioration of the condition of backward classes, the eradication of corruption and the discouragement of gambling and other useless litigation. IV. In the sphere of self-defence and village-defence-- (a) watch and ward of the village, and of the crops therein:--Provided that the cost of watch and ward shall be levied and recovered by the Panchayat from such persons in the village, and in such manner, as may be prescribed; (b) regulating, checking and abating of offensive or dangerous trades or practices; (c) rendering assistance in extinguishing fires, and protecting life and property when fire occurs. V. In the sphere of administration- (a) the numbering of premises; (b) the drawing up of programmes for increasing the output of agricultural and non-agricultural produce in the village;
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(c) the preparation of the statement showing the requirement of supplies and finances needed for carrying out rural development schemes; (d) acting as a channel through which assistance given by the Central or State Government for any purpose reaches the village; (e) making surveys; (f) the control of cattle stands, threshing floors, grazing grounds and community lands; (g) the establishment, maintenance and regulation of fairs, pilgrimages and festivals; (h) the preparation of statistics of unemployment; (i) reporting to proper Authorities village complaints which are not removable by Panchayat; (j) the preparation, maintenance and up-keep of Panchayat records; (k) the registration of births, deaths and marriages in such manner and in such form as may be laid down by Government by general or special order in this behalf; (l) the preparation of plans for the development of the village. VI. In the sphere of the welfare of the people-- (a) assistance in the implementation of land reform schemes; (b) the relief of the crippled, destitute and the sick: (c) assistance to the residents when any natural calamity occurs; (d) making arrangements for co-operative management of lands and other resources in the village, and organisation of collective farming, credit societies and multipurpose co-operative societies; (e) the reclamation of waste land and bringing waste land under cultivation with the previous permission of the State Government; (f) organising voluntary labour for community works and works for the uplift of the village. (g) opening of fair price shops. VII. In the sphere of agriculture and preservation of forests-- (a) the improvement of agriculture and establishment of model agricultural farms; (b) the establishment of granaries; (c) bringing under cultivation waste and fallow lands vested by Government in the Panchayat; (d) securing minimum standards of cultivation in the gram with a view to increasing agricultural production;
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(e) ensuring conservation of manurial resources, preparing composts and sale of manure; (f) the establishment and maintenance of nurseries for improved seeds and provision of implements and stores; (g) the production and use of improved seeds; (h) the promotion of co-operative farming; (i) crop experiments and crop protection; (j) minor irrigation; (k) raising, preservation and improvement of village forests. VIII. In the sphere of breeding and protecting cattle-- (a) improvement of cattle and cattle-breeding and the general care of livestock. IX. In the sphere of Village Industries-- (a) the promotion, improvement and encouragement of cottage and village industries. X. In the sphere of collection of land revenue-- (a) collection of land revenue when so empowered by the State Government under Section 169; and (b) maintenance of village records relating to land revenue in such manner and in such form as may be prescribed from time to time by or under any law relating to land revenue. (2) A Panchayat may with the previous sanction of the Chairman of the Panchayat Madal, also make provision for carrying out, outside the village, any work of the nature specified in sub-Section (1). (3) A Panchayat may also make provision for carrying out within the village any other work or measure which is likely to promote the health, safety, education, comfort, convenience, or social or economic, or cultural well being of the inhabitants of the village. (4) A Panchayat may by resolution passed at its meeting and supported by two thirds of the whole number of its members make provision for any public reception, ceremony or entertainment within the village or may make contribution towards an annual gathering or such other gathering of Panchayats in the district or the State:-- Provided that except with the previous sanction of the Chairman of the Panchayat Mandal the Panchayat shall not incur expenditure exceeding rupees fifteen on any such reception, ceremony, entertainment or gathering. (5) If it comes to the notice of a Panchayat that on account of the neglect of a landholder or dispute between him and his tenant the cultivation of his estate has seriously suffered, the Panchayat may bring such fact to the notice of the Collector.
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(6) A Panchayat shall in regard to the measures for the amelioration of the condition of Scheduled Castes and Scheduled Tribes and other backward classes, and in particular, in the removal of untouchability carry out the directions or orders given or issued in this regard from time to time by the State Government, the Collector or any Officer authorised by the Collector. (7) A Panchayat shall perform such other duties and functions as are entrusted to it by any other law for the time being in force. Section 61 - A Panchayat may appoint such servants as may be necessary for the proper discharge of its duties under this Act and pay their salaries from the village fund. A Sarpanch may also, in cases of emergency, engage such temporary servants as he may deem necessary. A Panchayat may from time to time, by written order, fine, suspend or dismiss any servant appointed by it; but an appeal shall lie against any such order passed by the Panchayat to the Panchayat Mandal, within one month from the date of the communication of the order to the servant." 9. Similarly, Section 325 of the Gujarat Panchayats Act, 1961 which provides for Repeal of the Bombay Act reads as under:-- "(1) The Bombay Village Panchayats Act, 1958 is hereby repealed. (2) Notwithstanding the repeal of the said Act- (i) any local area declared to be a village immediately before the [date of the coming into force of this Section] shall be deemed to be a gram under this Act; (ii) the Panchayats constituted under the said Act immediately before the said date (hereinafter called "the old village Panchayats") shall be deemed to be Panchayats of the respective Grams (hereinafter called "the new Gram Panchayats."); (iii) the Sarpanch or Upa-Sarpanch and the members or panchas elected or appointed for the old village Panchayats and holding office immediately before the said date shall respectively be deemed to be the Sarpanch, the Upa- Sarpanch and the members of the new Panchayats; (iv) the said Sarpanch, the Upa-Sarpanch and the members shall hold office as such Sarpanch, the Upa-Sarpanch and members for the period for which they would have held office under the said Act, subject however to the provisions relating to disqualification, resignation, removal and vacancy provided in this Act; (v) any Nyaya Panchayats constituted by or for the old village Panchayats shall be deemed to have been constituted by or for the said gram or grams for the new Gram Panchayat thereof and shall continue to exercise the powers conferred on them as if they had been conferred under this Act until they are reconstituted under this Act and the chairman & deputy chairman, members or panchas elected or appointed for the N.P. of the old village Panchayats and holding office immediately before the said date shall respectively be deemed to be the chairman, deputy chairman, and the members or Panchas of the Nyaya Panchayats of the new Gram Panchayats; (vi) the unexpended balance of the village fund and all the properties (including arrears of rates, taxes and fees) vesting in the old village Panchayats shall from the said date vest in the new Gram Panchayats and such arrears of rates, taxes and fees shall be recoverable under the provisions of
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this Act as if they had been imposed and recoverable under the provisions of this Act; [(via) the unexpended balance of the District Village Development Fund established in a district under Section 133 of the Act so repealed shall be transferred to and shall form part of the District Development Fund established under Section 199 of this Act, in the corresponding District.] (vii) all debts an obligations incurred and all contracts made by or on behalf of the old village Panchayats immediately before the said date and subsisting on the said date shall be deemed to have been incurred and made by the new Gram Panchayats in exercise of the powers conferred on them by this Act; (viii) any appointment, notification, notice, tax, fee, order scheme, licence, permission, rule, bye-law, or form made, issued, imposed, or granted in respect of the said villages and in force immediately before [the said date] shall in so far as they are not inconsistent be deemed to have been made, issued, imposed or granted under this Act in respect of the village and shall continue in force until it is superseded or modified by any appointment, notification, notice, tax, fee order, scheme, licence, permission, rule, bye-law, or form made, issued, imposed or granted under this Act; (ix) all budget estimates, assessments, assessment lists, valuations or measurements made or authenticated immediately [before the said date] by the old village Panchayats shall be deemed to have been nude or authenticated by the new Gram Panchayats under this Act; (x) the Secretaries, all Officers and servants in the employ of the old village Panchayats immediately before the said date shall be Secretaries, Officers and servants of the new Gram Panchayats and shall until other provision is made in accordance with the provisions of this Act, receive the salaries and allowances and be subject to the conditions of service to which they were entitled or subject on such date:-- Provided that it shall be competent to the State Government, after giving a Secretary such notice as is required to be given by the terms of his employment, to discontinue his services if in the opinion of the Government he is not necessary or suitable to the requirements of the Panchayat service; and every Secretary whose services are so discontinued shall be entitled to such leave, pension, provident fund, gratuity, other rights and privileges as he would have been entitled to take or receive on being invalided out of service if he had continued in the employ of the Panchayat or Panchayats after the said date; (xi) all proceedings pending before the old village Panchayats and Nyaya Panchayats of the old village Panchayats shall be deemed to have been instituted and to be pending before the New Panchayats and Nyaya Panchayats of the new Gram Panchayats, as the case may be, and shall be heard and disposed of by the said Panchayats or Nyaya Panchayats as the case may be, under this Act; (xii) all prosecutions instituted by or on behalf of the (Ad village Panchayats and all suits or other legal proceedings instituted by or against the old village Panchayats or any Officer of such Panchayats pending at the said date shall be continued by or against the new Gram Panchayats:-- (xiii) [any reference in] any enactment or in any instrument to the Act hereby repealed or to any provision thereof or any Authority elected or appointed
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thereunder shall be construed as a reference to the Gujarat Panchayats Act, 1961, (Guj. VI of 1962) or to the corresponding provision thereof or to the corresponding Authority elected or appointed thereunder." 10. A conjoint reading of the provisions of the Bombay Village Panchayat Act and the Gujarat Panchayat Act bring out the following scenario:-- (A) Prior to 1/4/1963 the Gram Panchayat/Village Panchayat as per Section 9 of the Bombay Village Panchayats Act, 1958 was a Body Corporate by the name of "the Village Panchayat of....." having a perpetual succession and a common seal. (B) The Sarpanch had the power vested in him to take actions in implementation of the Panchayat's duties through Resolutions. (C) Section 61 of the Bombay Village Panchayats Act, 1958 provided that the Panchayat may appoint such servants as may be necessary for the proper discharge of its duties under this Act and pay salaries from the Village Fund. (D) Till the promulgation of the Gujarat Panchayats Act, 1961 w.e.f. 1.04.1963 therefore the Village Panchayat was competent to appoint its servants/Officers and act through Resolutions. The appointment of the Respondent made under such provisions was therefore valid and in accordance with the prevalent law in force, prior to the coming into force the provisions of Section 203 of the Gujarat Panchayats Act, 1961 and the Rules thereunder. Therefore it was not a case where the prior sanction of the Development Commissioner or the State was inevitably a sine-qua non. No such provision existed. That the Panchayat in discharge of its duties under Section 45 of the Bombay Act, through its Resolution of the Sarpanch appointed the Respondent herein. That such appointment was on a sanctioned post was not a germane consideration as it was so presumed to be in accordance with law and therefore the appointment could not have been termed to be irregular or illegal. (E) In the case of Harijan Paniben (supra) also, considering the question of appointment of servants prior to the 1961 Act which came into force on 1/4/1963, there was no question of a distinction being drawn on the appointment being on a sanctioned post or not, and therefore the Division Bench judgment in the case of Dahyabhai (Supra) would, in our opinion, made a distinction and dismissed the Petition of the employee on the ground that the appointment was not on a sanctioned post, would not be in consonance with the law laid down in the case of Harijan Paniben (supra) and the judgment of the Constitution Bench in R.K. Soni (supra). It categorically held that all such employees carried a common birth mark and therefore to hold that the appointment was not on a sanctioned post or that it was irregular or that the Panchayat employee belonged to a non-converted Gram Panchayat could not have been held to be against the respondent as that would lead to a microscopic discrimination which was set aside by the judgment of the Constitution Bench in the case of R.K. Soni (supra). (F) Referring to the decision in the case of G.L. Shukla (supra) reaffirmed in R.K. Soni (supra), the inevitable conclusion that is culled out is that the State is the master. Panchayat Service is a distinct and separate service set up for serving the Panchayat Organization of the State and it is as much a civil service of the State as the State Service. The State can have many services such as State Service, Police Service, Engineering Service etc. and Panchayat Service is one of them. In the Panchayat Service, as in the State Service, the State is the master and every Officer or servant employed in the Panchayat Service is the servant of the State and not of the Panchayat under which he may be serving for the time being. The Panchayat Service is one single service with the State as the master. 11. Accordingly, we hold that the objections of the State and the Panchayat Authorities in the
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