Gujarat High Court
Ashishkumar Hasmukhbhai Modi & vs State Of Gujarat & 3 on 21 October, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/14180/2015 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14180 of 2015
With
SPECIAL CIVIL APPLICATION NO. 14181 of 2015
With
SPECIAL CIVIL APPLICATION NO. 14202 of 2015
With
SPECIAL CIVIL APPLICATION NO. 14233 of 2015
With
SPECIAL CIVIL APPLICATION NO.14892 OF 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== ASHISHKUMAR HASMUKHBHAI MODI & 1....Petitioner(s) Versus STATE OF GUJARAT & 3....Respondent(s) ========================================================== Appearance:
MR GM JOSHI, ADVOCATE for the Petitioner(s) No. 1 - 2 ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1 MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 3 NOTICE SERVED BY DS for the Respondent(s) No. 4 Page 1 of 31 HC-NIC Page 1 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 21/10/2016 CAV ORDER
1. Since the issues raised in all the captioned writ applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
2. For the sake of convenience, the Special Civil Application No.14180 of 2015 is treated as the lead matter.
3. By this application under Article 226 of the Constitution of India, the writ applicants, serving as the Panchayat employees, have prayed for the following reliefs;
"(A) This Honourable Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the form of mandamus for quashing and setting aside the order dated 14.08.2015, transferring the petitioner to Botad District and the relieving order dated 17.08.2015 and be pleased to direct the respondents to retransfer the petitioner to Ahmedabad District with full consequential benefits and continuity of service as if the impugned order were never passed;
(B) During the admission, pendency and final disposal of this petition be pleased to stay the operation, implementation and execution of the order dated 14.08.2015, transferring the petitioner to Botad District and the relieving order dated 17.08.2015.
(C ) Be pleased to award the cost of this petition.
(D) Any order and/or further relief/s that may deem fit looking to the facts and circumstances of the case may Page 2 of 31 HC-NIC Page 2 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER be granted to the petitioner."
4. The facts of this case may be summarized as under;
4.1 The writ applicants were appointed as the Gram Panchayat Sahayak by the District Panchayat, Kutch in March, 2004 pursuant to the regular selection process and were posted in the different villages of the Kutch District.
4.2 On completion of five years of service, they were absorbed in the pay scale of Rs.5200-20,200, grade pay 1900/- as the Secretary of the Gram Panchayat.
4.3 The writ applicants applied for the inter-district transfer, and vide order dated 18th December, 2014, they all came to be transferred to Ahmedabad.
4.4 It is the case of the writ applicants that for the purpose of seeking the inter-district transfer of their choice, they had to sacrifice their seniority of five years. The writ applicants started working with the Ahmedabad District Panchayat. At the time when the writ applicants were transferred to the District Ahmedabad, the District of Botad was already constituted by including few Taluakas of the District of Bhavnagar and few of the District of Ahmedabad. This happened in the year 2013.
4.5 In the Ahmedabad District, out of the total sanctioned posts of the Talati cum Secretary, only 61% of the posts have been filled up. It is pointed out by the writ applicants that there is already a shortage of manpower in the cadre of the Talati cum Secretary so far as the Gram Panchayats, falling under the Ahmedabad District Panchayat, is concerned.
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4.6 Within seven months of their service in the District of Ahmedabad, they received a communication dated 14.08.2015, informing them that they all were being transferred to the Botad District. Being dissatisfied with such decision and action, the writ applicants have filed the present writ applications.
5. The principal issue raised in this writ application is with regard to the power of the State Government to allocate, by general or special order, the service of the servants working in one Panchayat to another Panchayat. The stance of the respondents is that having regard to the provisions of sections 227 to 234 of the Gujarat Panchayats Act, 1993, the Government has the power.
6. Mr. Joshi, the learned counsel appearing for the writ applicants put forward the following submissions;
6.1 The power of the State Government to allocate the officers and the servants to the Panchayat Services flows from section 230 of the Act, 1993. The power with the State Government under section 230 of the Act, 1993 is limited to allocating the members of the Government Service to the Panchayat Service.
6.2 There is no power of allocation of the employees of the Panchayat Service from one district to another except the power to frame rules for transfer under section 227(7) of the Act, 1993.
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6.3 The Gujarat Panchayat Service (Transfer of Servants)
Act, 1995 empowers the State Government or an officer authorized by it to transfer an employee of one district to another in two contingencies; (i) in the interest of public, or (ii) in order to absorb the member on account of his services becoming surplus for requirements of the district from which he is transferred.
6.4 The term "district", as defined under section 2(6) of the Act, 1993 means a district constituted from time to time under the Land Revenue Code; except the area over which a District Panchayat has no authority under section 6.
6.5 According to Mr. Joshi, the District Botad was already constituted in the year 2013. The position, as on the date of the constitution of the district, has to be considered for the transfer to the new district.
6.6 All the writ applicants were transferred to Ahmedabad District after the formation of the Botad District. If there was already surplus in the Ahmedabad District, the State ought not to have transferred them to the Ahmedabad District.
6.7 Surplus, by itself, denotes "overflowing". Indisputably, there is a deficit of 39% so far as the staff is concerned and, therefore, on both the counts, the impugned order deserves to be quashed.
6.8 Except section 227(7) read with the Gujarat Panchayat Rules, 1999, there is no other power with any authority to transfer an employee of a Panchayat belonging to the district Page 5 of 31 HC-NIC Page 5 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER cadre from one district to another.
6.9 Even the policy decisions relied upon by the respondents (Government Resolution dated 5th January, 2000) makes it clear that the employees from the old district to the new district can be sent only on deputation.
6.10 The Panchayat Act refers to two terms "allocation" and"transfer". The allocation of the employees of the State Service to the Panchayat, as contemplated by sections 230 and 231 read with the Gujarat Panchayat (Allocation Rules), 1999 and transfer as it figures in section 227(7). Both the terms are different and distinct and not interchangeable.
6.11 The individual decision, as contemplated by virtue of section 227(7) read with Rule 3 of the 1999 Rules has got to be taken by the State Government in each case. In such circumstances, the decision dated 14th August, 2015 is without jurisdiction.
6.12 In such circumstances referred to above, Mr. Joshi prays that there being merit in the issue raised in all the writ applications, the reliefs, as prayed for, be granted.
7. On the other hand, this writ application has been vehemently opposed by the learned AGP appearing for the State-respondents and Mr. Munshaw appearing for the Panchayat.
8. Mr. Munshaw seeks to rely on the following averments made in the affidavit-in-reply, duly affirmed by the District Development Officer, Ahmedabad District Panchayat;
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"3. The respnt. no.3 submits that as admitted by the petitioners herein they were originally employed in Kutchh District Panchayat as "Panchayat Sahayak" and on completion of a period of five years were placed in the regular pay scale. It is submitted that petitioners applied for inter-district transfer to Ahmedabad District Panchayat and the same was granted after following due procedure under the rules for the inter-district transfer and accordingly he was in Ahmedabad District Panchayat pursuant to order dated 18.12.14 passed by respnt. no.1
4. The respnt. no.3 submits that the Govt. oif Gujarat through its Revenue Dept. issued Notification dated 27.11.14 for reorganization of Talukas and Districts and accordingly in all seven new Districts were constituted and a copy of the notification is annexed as ANNEXURE- A. The respnt. no.3 submits that accordingly the Talukas of Barvala and Ranpur of the District of Ahmedabad have become part of new District of Botad.
5. The respnt. no.3 submits that subsequently respnt. no.1 herein through Govt. Resolution dated 15.12.14 resolved for due allocation of posts of the Cadres of Class III and Class IV to the newly constituted Districts in proportion of a population and a copy of the resolution is annexed as ANNEXURE-B. The respnt no.3 craves leave to annex herewith a statement of the posts of Class III cadres to be allocated to the new District of Botad as ANNEXURE-C. From a kind perusal thereof it would ber clear that ______ posts were to be transferred to newly created District of Botad. It is pertinent to note that a the cad re of Talati cum Mantri is a village level cadre and the entire Talukas of Barvala and Ranpur have become the part of new District of Botad all the posts were to be transferred to the new District of Botad. It is submitted that there were in all 479 sanctioned posts in the Ahmedabad District Panchayat but as against that only 293 posts were filled up. It is pertinent to note that there were in all 56 "Sejas" in the Talukas of Barvala and Ranpur and considering 61% of filled up posts it was necessary to transfer in all 32 Talati cum Mantri to the newly constituted Botad District Panchayat on deputation basis.
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6. The respnt no.3 submits that though 32 employees pertaining to the cadre of Talati cum Mantri were to be send on deputation to Botad District Panchayat, in all seven employees opted for Botad District Panchayat on permanent basis and accordingly they are transferred to Botad District Panchayat on permanent basis. The respnt no.3 submits that in view of this in all 25 employees were to be shifted to Botad District Panchayat on deputation basis after following the instructions issued by the respnt. no.1 from time to time and a copy thereof is annexed as ANNEXURE-D. In view of this those who are appointed on fixed salaried basis were not transferred enblock but a ratio was to be determined and followed for transfer of employees to the newly constituted District District Panchayat. It is pertinent to note that there is a specific direction from the respnt. No1 that those who were given benefit of inter-district transfer were not to be given exemption and the seniority list of the employees of the cadre was to be followed for transfer to the newly constituted District Panchayat. In other words, the respnt. no.3 was required to determine the ratio on the basis of the posts for fixed term employees and regular salaried employees and follow the seniority list of the cadre of Talati cum Mantri.
It is submitted that at the time of constitution of Botad District Panchayat there were in all 71 fixed salaried employees as against 222 regular employees in the cadre of Talati-cum-Mantri and, therefore, the ratio was decided in to 1:3. In view of this it was necessary to transfer 8 fixed salaried employees and 24 regular salaried employees to Boatd District Panchayat. It is pertinent to note that the Govt. Resolution dated 5.1.2000 issued by the respnt. no.1 was also to be followed for transferring the employees on deputation basis. It is stated that the said agreement was to be ad hoc and temporary as per the provisions of the Govt. Resolution annexed as Annex.D. It is pertinent to note that apart from seniority and ratio of fixed salaried and regular salaried employees it was also necessary for the respnt. Authority to consider the reservation while sending the employees on deputation basis. It is stated that the same was to be considered as under;
A] SCHEDULE CASTE; 11%
B] SCHEDULE TRIBE; 10%
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C] SOCIALLY AND
EDUCATIONALLY
BACKWARD CLASS; 27%
D] OPEN CATEGORY 52%
The respnt no.3 submits that after following all the provisions of applicable Govt. Resolution and instructions from the higher authority it was decided to send 25 employees of Ahmedabad District Panchayat belonging to the cadre of Talati-cum-Mantri on deputation basis and a copy of statement giving complete details is annexed as ANNEXURE-E. It is submitted that accordingly the administrative orders were passed on 14.8.15 and a copy of the order passed in the present case is annexed as ANNEXURE-F. It is stated that accordingly the same is followed by relieving order dated 17.8.15 and accordingly petitioners stand relieved and transferred to Botad District Panchayat.
7. In view of the above mentioned facts and circumstances it is crystal clear that no injustice is caused to the petitioners and their contention that they cannot be transferred to newly constituted district is baseless. It is further stated that on reconstitution of districts the employees of the cadres of the District Panchayat are to be considered for transfer on deputation basis to the newly constituted districts on administrative grounds on the basis of seniority and the policy with regard to district-wise cadre and, therefore, inter district transfer to Ahmedabad district Panchayat has nothing to do with a transfer on deputaion to a newly formed district Panchayat. The respnt. no.3 submits that even otherwise the petitioners are sent on deputation purely on temporary and adhoc basis and, therefore, their contention have no force."
9. Mr. Munshaw also seeks to rely on the averments made in the further affidavit-in-reply, duly affirmed by the District Development Officer, Ahmedabad District Panchayat.
"2. The respondent No.3 submits that as such the respondent no.1 herein has issued G.R. Dated 05.01.2000 in this regard to deal with the situation arising on constitution of new District Panchayat for a Page 9 of 31 HC-NIC Page 9 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER newly created District and a copy of the said resolution is annexed herewith and marked as ANNEXURE-B.
3. The respondent No.3 submits that subsequently a Circular dated 08.05.2001 is addressed by the respondent no.1 in this regard clarifying that the employees sent to new District Panchayats be brought back to old District Panchayats within a period of 5 years and a copy of the letter addressed to on priority basis and it would not be treated as inter district transfer, and a copy of the letter is annexed as ANNEXURE-C.
4. The respondent No.3 submits that on constitution of Botad District Panchayat in all 18 employees including the present petitioners belonging to the cadre of Talati cum Mantri are sent on deputation from Ahmedabad District Panchayat including the present. Respondent No.3 humbly states that the petitioners are accordingly deputationists and accordingly are required to get a treatment as per the Government Resolution dated 05.01.2000 and letter dated 08.05.2001 of respondent no.1 referred to herein above.
5. The respondent no.3 submits craves leave to submit that the petitioner who are on deputation to Botad District Panchayat would be repatriated on direct recruitment by Botad District Panchayat in the cadre of Talati cum Mantri and as soon as District Development Officer, Botad District Panchayat relieve them considering after examining administrative exigencies.
6. The respondent no.3 submits that, it is difficult to provide time limit for repetriation of the present petitioners of Ahmedabad District Panchayat at this stage in view of the administrative exigencies of Botad District Panchayat and Government policies qua the time limit."
10. The learned AGP as well as Mr. Munshaw has placed strong reliance on a decision of this Court rendered by a learned Single Judge in the case of Snehlata R. Patel vs. Bharuch District Panchayat, 2006(2) GCD 1272.
11. The view taken by the learned Single Judge in the case of Page 10 of 31 HC-NIC Page 10 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER Snehlata R. Patel (supra) is that it is within the power of the State Government, having regard to the provisions of sections 227 to 234 of the Act, 1993, to allocate, by general or special order, the service of the servants working in one Panchayat to another Panchayat.
12. Reliance is also placed on the following other decisions;
(I) K.N. Suthar vs. S.J. Munsha, 1988 (1) GLR 70; (II) State of U.P. & Ors. vs. Gobardhan Lal, AIR 2004 SC 2165;
(III) Union of India & Ors. vs. S.L. Abbas, AIR 1993 SC 2444;
13. At this stage, it is apposite to note the submission of Mr. Munshaw that there is no power vested with the State Government to allocate the officers and servants of one Panchayat to any other Panchayat. According to Mr. Munshaw, the District Development Officer passed the order, allocating the writ applicants to the District Botad pursuant to the order passed by the State Government. Mr. Munshaw also made himself very clear that the allocation of the writ applicants to the District Botad could not be termed even as sent on deputation.
14. The learned AGP would submit that having regard to the administrative exigencies, the decision of the State Government, impugned herein, may not be disturbed in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India.
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15. In such circumstances referred to above, the learned AGP would submit that there being no merit in the writ applications, they be rejected.
16. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicants are entitled to the relief as prayed for in the writ applications.
17. Before adverting to the rival submissions canvassed on either sides, I deem just and proper to look into the provisions of law.
17. Section 227 of the Panchayat Act, 1993 reads as under;
"227. Panchayat service to be regulated by rules.- ( 1) For the purpose of bringing about uniform scales of pay and uniform conditions of service for persons employed in the discharge of functions and duties of panchayats, there shall be constituted a panchayat service in connection with the affairs of panchayats. Such service shall be distinct from the State service.
(2) 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 :
Provided that nothing in this sub--section shall prevent ti district panchayat from altering, with the previous approval of the State Government any class, cadre or number of posts so determined by the State Government.
(3)(a) The cadres referred to in sub-section (2) may consists of district cadres. taluka cadres and local cadres.Page 12 of 31
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(b) A servant belonging to a district cadre shall be liable to be posted whether by promotion or transfer to any post in any taluka in the district.
(c) A servant belonging to a taluka cadre shall be liable to be posted whether by promotion or transfer to any post in any ' village in the same taluka.
(d) A servant belonging to a local cadre shall be liable to be posted whether by promotion or transfer to any post in the same village.
(4) In addition to the posts in the cadres referred to in sub- section (3), a panchayat may have such other posts of such classes as the State Government may by general or special order determine. Such posts shall be called "deputation posts" and shall be filled in accordance with the provisions of section 231.
(5) Subject to the provisions of this Act, the State Government may make rules regulating the mode or recruitment either by holding examinations or otherwise and conditions of service or persons appointed to the panchayat service and the powers in respect of appointments, transfers and promotions of officers and servants in the panchayats service and disciplinary action against any such officers or servants. (6) Rules made under sub-section (5) shall in particular contain-
(a) a provision entitling servants of such cadres in the panchayat service to promotion to such cadre in the State service as may be prescribed;
(b) a provision specifying the classes of posts recruitment to which shall he made through the District Panchayat Service Selection Committee. and the classes of posts, recruitment to which shall be made by the Gujarat Panchayat Service Selection Board. and
(c) a provision regarding the percentage of vacancies to be, reserved for the members of Scheduled Castes, Scheduled Tribes and Other Backward Classes in the panchayat service.
(7) Such 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.
(8) The promotion of servant in a cadre in the panchayat Page 13 of 31 HC-NIC Page 13 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER service to a cadre in the State service in accordance with rules made under clause (a) of sub-section (6) shall not affect--
(a) any obligation or liability incurred or default committed by such servant during the period of his service in a cadre in the panchayat service while acting or purporting to act in the discharge of his duties as such servant, or
(b) any investigation, disciplinary action or remedy in respect of such obligation, liability or default, and any such investigation, disciplinary action or remedy may be instituted, continued or enforced in accordance with the law applicable thereto during the said period of service by such authority as the State Government may by general or special order specify in this behalf.
18. Section 229 of the Panchayat Act, 1993 reads as under;
"229. Mode of appointment.- Subject to any rules made under section 227 appointments to the 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."
19. Section 230 of the Panchayat Act, 1993 reads as under;
"230. Allocation of officers and servants to panchayat Services-
(1) The State Government shall, by a general or special order, allocate to the panchayat service-
(i) Such number of officers and servants, out of the staff allotted or transferred to a panchayat under sections 175 and 276 as it may deem fit.
(ii) all officers and servants of the nagar panchayats dissolved under section 261.Page 14 of 31
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(iii) such other officers and servants employed in the State service as may be necessary to enable the panchayat to discharge efficiently their functions and duties under this Act.
(2) The Officers and servants allocated to the panchayat service under sub-section (1), shall be taken over by such panchayats in such cadre, on such tenure, remuneration and other conditions of service, as the State Government, may, by general or special order determine :
Provided that the conditions of service of any such officer or servant shall not be less favourable than those applicable to him immediately before such allocation ; Provided further than nothing in the aforesaid proviso shall entitle an officer or servant to claim the same cadre and designation which he had before allocation."
20. Section 231 of the Panchayat Act, 1993 reads as under;
"231. Allocation to panchayat service to be provisional for certain period and re-allocation of officers and servants to State service-
(1) Notwithstanding anything contained in section 230, the allocation to the panchayat service made under section 230 of officers or servants allotted or transferred to a panchayat under section 176, shall initially be provisional and it shall be lawful for the State Government to review their allocation within a period of four years from such allocation or transfer, and if necessary to, reallocate by an order made in that behalf any of such officers or servants to the State Service for any of the following reasons, namely--
(i) if out of the officers and servants so allocated, any officers or servants are found to be surplus in any category of the panchayat service;
(ii) if in the interest of public service it is considered necessary to recall any such officer or servant;
(iii) if in pursuance of any information called for in this behalf by or on behalf of the State government at any time within the aforesaid period of four years, any such officer or servant has preferred to revert to the State Page 15 of 31 HC-NIC Page 15 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER service and after taking into consideration the exigencies of service in the panchayat organisation, and also of service under the State Government the State Government thinks fit to recall such officer or servant,
(iv) any other reason prescribed by rules. (2) Any Officer or servant who is no re-allocated under sub» section (1) and continues in the panchayat service immediately before the expiry of the aforesaid period of four years, shall on such expiry, be deemed to be finally allocated to the panchayat service.
(3) The conditions of service of an officer or servant re-
allocated to the State service shall not be less favourable than those applicable to him immediately before such re~allocation.
(4) The re-allocation of any officer or servant to the State service under sub-section (1) whether made before or after the commencement of the Gujarat Panchayat and 'the Gujarat New Capital (Periphery) Control (Amendment) Ordinance', 1984 (Gui. 0rd. 2 of 1964), shall not affect-
(a) any obligation or liability incurred or default committed by such officer or servant during the period of his allocation to the panchayat service while acting or purporting to act in the discharge of his duties as such officer or servant, and
(b) any investigation, disciplinary action or remedy in respect of such obligation, liability or default. and any such investigation, disciplinary action or remedy maybe instituted, continued or enforced in accordance with the law applicable thereto during the said period of allocation by such authority as the State Government may by general or special order specify in this behalf.
21. Section 232 of the Panchayat Act, 1993 reads as under;
"232- Posting under panchayats of officers and servants in the State service.~(1) For the purpose of enabling the panchayats to discharge their functions and duties under this Act, it shall be lawful for the State Government to direct by a general or special order that such number of officers of the Indian Administrative Service and of Class I Page 16 of 31 HC-NIC Page 16 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER and Class II service of the State and such number of officers or servants allotted or transferred to a panchayat under section 175 but not allocated to the panchayat service under section 230 shall be posted under such panchayat and for such period and subject to such conditions as may be specified in the order and accordingly the officers specified in the order shall be posted under such panchayat.
(2) The pay and allowances of an officer posted in accordance with sub-section (1) shall during the period of posting, be paid by the panchayat from its fund. (3) Notwithstanding anything contained in sub-section (1), if in the opinion of the State Government, it is necessary so to do in the public interest, it shall be lawful for the State Government to post by an order in writing any servant of class III services of the State under such panchayat, and for such period and subject to such conditions as may be specified in the order, and accordingly the servant specified in the order, shall be posted under such panchayat and the provisions of sub-
section (2) shall apply to such servant as they apply to an officer posted in accordance with sub-section ( 1). (4) The procedure in respect of disciplinary action against any Officer or servant posted under a panchayat otherwise than as a member of the panchayat service, the authorities competent to take such action and the powers of such authorities shall be such as may be prescribed."
22. Rule 3 of the Gujarat Panchayat Service Selection Board (Functions) Rules, 1998, reads as under;
"3. Direct recruitment :-
(1) When recruitment to any of the post mentioned in the schedule is to be made by direct recruitment, the Panchayat concerned shall as required;
(i) intimate to the Board, the number of vacancies which are to be filled in and likely to arise within one year on account of retirement;
(ii) specify the number of vacancies reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes, Socially Page 17 of 31 HC-NIC Page 17 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER and Educationally Backward Classes, Physically Handicapped, Ex-Servicemen and Women;
(iii) furnish to the Board all particulars regarding cadres, grades, pay- scale, etc. in respect of the posts:
Provided that in the case of recruitment to any of the posts which have been allotted to or transferred to the Panchayat Service under Secs. 175, 231 or 276, the recruitment shall be, subject to and be in accordance with such general or special order of Government as may be made from time to time in this behalf.
(2) After receipt of the details specified in sub-rule (1), the Board may
(a) invite applications by publishing an advertisement in as many newspapers as considered necessary by the Board (out of which at least one news paper being in Gujarati) circulating in the area concerned, specifying the qualifications required to be possessed by the candidates and the number of vacancies likely to be filled in,
(b) consider all applications and recommendations received, and
(i) where a qualifying written examination or elimination test for recruitment is prescribed under the rules framed under sub-
sec. (5) of Sec. 227 of the Act, or otherwise, hold such examination or test for the candidates who possess the requisite qualifications and are eligible for the post according to the provisions laid down in such rules;
(ii) where no qualifying written examination or elimination test is prescribed, arrange interviews of the candidates as are eligible for appointment to the post. The suitability of the candidates called for interview shall be determined by the Board having regard to their personality, extra curricular activity, educational qualifications, previous experience, knowledge of Panchayat and Rural activities, general knowledge etc. having regard to the requirements of the post concerned:
Provided that where the Board, before the commencement of Page 18 of 31 HC-NIC Page 18 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER the Gujarat Panchayat Service Selection Board (Functions) (Amendment) Rules, 1999 (hereinafter referred to as "the Amending Rules") Ha invited applications by publishing an advertisement and has considered the applications and arranged interview of the candidates who are eligible for the appointment to the relevant post, the candidates so eligible for appointment shall be permitted to appear at the competitive examination to be held by the Board in accordance with the principal rules as amended by the amending rules."
(3) The Board may invite such representative of the Panchayat as may be nominated by the Panchayat to be present at the interviews and the representative so present may take part in the deliberations of the Board.
(4) The Board may in its discretion, invite more experts to assist the Board at the interviews. The expert so present may take part in the deliberations of the Board."
23. Rule 2(e) and 4 of the Gujarat Panchayats Service Classification & Recruitment (Genreral) Rules, 1998 reads as under;
"2(e) Panchayat Service means the Panchayat Service as constituted under section 227;"
4. Caderisation of Panchayat Services:- (1) The Panchayat Services shall consist of District Cadre, Taluka Cadre and Local Cadre, namely:-
(I) The posts specified in Schedule III shall belong to a district Cadre.
(ii) The posts specified in Schedule IV shall belong to a Taluka Cadre.
(iii) The posts specified in Schedule V shall belong to Local Cadre."
24. The Gujarat Panchayat Allocated Servants (Re-allocation to State Service) Rules, 1996 reads as under;
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"Short title.~ These rules may be called the Gujarat Panchayat Allocated Servants (Re-allocation to State Service) Rules, 1996.
2. Definitions.- In these rules, unless the context otherwise requires -
[i] "the Act" means the Gujarat Panchayats Act, 1993:
(ii) "Section" means a section of the Act.
3. Reasons for re-allocation of allocated servants to State Service.-
(1) An Officer or servant allotted or transferred to a panchayat under section 175 and allocated to the Panchayat Service under section 230 of the Act may be re-allocated to the State Service for any of the following reasons, namely :-
(i) if at any time before the expiry of the period mentioned in section 231 such office or servant would have become eligible for Promotion to any higher post or cadre in the State Service and would have been Promoted thereto had he not been allocated or transferred to a panchayat:
Provided that no such officer or servant who has already been promoted to a higher post in the Panchayat Service shall be so re-allocated to the State Service unless he agrees in writing of such re-allocation:
(ii) If, for completing a departmental inquiry instituted against such officer or servant prior to his allotment or transfer and for passing final orders therein. it is necessary to re-allocate him to the State Service;
(iii) if, it is found absolutely essential to re-allocate such officer or servant to the State Service. on some humanitarian or medical ground, so as to enable him to serve in his home district or taluka or at a place suitable to his health.
(2) Nothing in sub-rule (1) shall be deemed to affect the re- allocation of an officer or servant to the State Service for any of the reasons specified in clauses (i) and (ii) of sub-section (1) of section 231.Page 20 of 31
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4. The Gujarat Panchayat Allocated Servants (Re- allocation to State Service) Rules. 1964 are hereby repealed. Such repeal shall not affect anything done or any action taken under the rules so repealed. "
25. Rule 3 of the Gujarat Panchayat Service (Transfer of Servants) Rules, 1995;
"3. Inter-District Transfers.- (l) A member of panchayat service belonging to a district cadre and taluka cadre in a district may, by an order in writing, be transferred by the State Government or an officer authorised by it in his behalf to the corresponding cadre in the other district if -
(a) in the Opinion of the State Government or an officer authorised by it in this behalf, such transfer is required to be made -
(i) in the interest of public, or
(ii) in order to absorb the member on account of his service becoming surplus for requirements of the district from which he is transferred, or
(b) an application is made to the District Development Officer in that behalf by the member and the District Development Officer of the other District agrees to such transfer under sub-rule (2) :
Provided that such an application is made by those District Cadre Panchayat Servants who have completed three years service in the same district Panchayat after successful completion of the probation period and such pre-service training, if any, as may be required under the rules.
(2) On receipt of an application under sub-rule (1) the District Development Officer shall having regard to the interest of the relevant panchayat in the District. decide whether the member may be transferred or not. Where he decides that the member may be transferred he shall consult the district Development Officer of the District. to th corresponding cadre of which the member is to be transferred as t whether he agrees to the transfer. Where the latter District Development Officer agrees to the transfer, the former district Development Officer shall forward the application together with other records to the State Government or the officers authorised by it in this Page 21 of 31 HC-NIC Page 21 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER behalf, for taking action under sub-rule(1)."
26. Let me now look into the decision of the learned Single Judge in the case of Snehlata R. Patel (supra). Snehlata was appointed by the Bharuch District Panchayat and was holding the post of Treasurer in the set-up of the Bharuch District Panchayat. The original Bharuch Revenue District came to be divided into two parts, i.e., the Bharuch District and Narmada District. In the District of Narmada, three Talukas were included (i) Nanded (ii) Dediapada and (iii) Sakbara. On account of the formation of the new Narmada District, and as a part of the area of the Bharuch District was also included in the Narmada District, the services of Snehlata were allocated to the Narmada District Panchayat. The State Government passed an order for the purpose of allocation of the various employees of the Bharuch District Panchayat to the Narmada District Panchayat, and based on the said order of the State Government, the District Development Officer, Bharuch passed the order for allocation of service of the employees of the Bharuch District Panchayat to the Narmada District Panchayat. The power of allocation was the issue raised before the learned Single Judge. The learned Single Judge, while rejecting the writ application filed by Snehlata, held as under;
"[6] It is true that a person cannot be sent on deputation without his consent and the law is settled on the said aspect as per the decision of this Court in case of Bhagwatiprasad Gordhandas Bhatt v The State of Gujarat and Ors. reported in 1977 GLR, 562. However, the distinguishing feature in the present case is that the order cannot be termed as that of deputation and is rather an order for allocation of service. There is no dispute on the point that the service of the petitioner is Page 22 of 31 HC-NIC Page 22 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER governed by the Gujarat Panchayat Act (hereinafter referred to as 'the Act') read with the relevant Rules and the petitioner was appointed in service of Bharuch District Panchayat. Chapter 13 of the Act provides for matters relating to the services. The said Chapter, inter alia, provides for services of the Panchayat employees to be regulated by Rules. Sub-section (4) of Section 227 of the Act provides that in addition to the post in the cadre referred to in the Sub-section (3) , a Panchayat may have such other posts of such class as the State Government may general or special order determine. Such posts are to be called as deputation posts and shall be filled in accordance with the provisions of Section 231. Section 228 of the Act provides for the expenditure towards the pay and allowances of and other benefits available, to an officer or servant of the Panchayat to be met by that Panchayat. Section 229 of the Act provides for mode of appointments. Section 230 which is relevant for the purpose of this petition reads as under: 230 (1) The State Government shall, by a general or special order, allocate to the panchayat service- (i) Such number of officers and servants, out of the staff allotted or transferred to a panchayat under Section 175 and 276 as it may deem fit. (ii) all oficers and servants of the nagar panchayats dissolved under section 261. (iii) such officers and servants employed in the State service as may be necessary to enable the panchayats to discharge efficiently their functions and duties under this Act. (2) The Officers and servants allocated to the panchayat service under sub-section (1) , shall be taken over by such panchayats in such cadre, on such tenure, remuneration and other conditions of service, as the State Government may, by general or special order determine: provided that the conditions of service of any such officer or servant shall not be less favourable than those applicable to him immediately before such allocation.
[7] Therefore, Section 231 (1) of the Act provides that allocation to the Panchayat service can be provisional for a certain period and reallocation of the Officers or servants to the State service. Therefore, Section 231 of the Act, inter alia, provides for the power of the State Government to review the allocation within a period of four years from the date of Page 23 of 31 HC-NIC Page 23 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER allocation or transfer.
[8] Section 232 of the Act provides for posting of the Officers of Class-I and Class-II Cadres and also for the posting of officers of Class-III Cadre working with the State Government.
[9] Section 233 of the Act provides that any Panchayat may, subject to the rules made in this behalf, obtain the services of any officer of Government on loan.
[10] Section 234 of the Act provides that such officer or servant who is allocated to the Panchayat service under Section 203, shall not be entitled to any compensation under the Industrial Dispute Act or law and no claim for any such compensation shall be entertained by any Court, Tribunal, or Authority."
27. In the case of K.N. Suthar (supra), a Division Bench of this Court considered the contention canvassed on behalf of the appellant that it was not open to the Development Commissioner to order the transfer of the third respondent therein to the Sabarkantha District Panchayat since the Panchayat service was district-wise and if, at all, the third respondent could have been only sent to the Sabarkantha on deputation. While rejecting such contention, the Division Bench held as under;
"[3] Mrs. Mehta, learned Counsel for the appellants, submitted that it was not open to the Development Commissioner to order the transfer of the third respondent to Sabarkantha District Panchayat since Panchayat Service was district-wise and if at all the third respondent could only be sent to Sabarkantha on deputation. We see no merit in this submission. Section 203 of the Gujarat Panchayats Act, 1961 provides that the Panchayat Service shall be regulated by rules. Sub- sec. (3) of that Section empowers the State Government to make rules regulating the mode of recruitment, transfers and promotions of officers and servant in the Page 24 of 31 HC-NIC Page 24 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER Panchayats service. Sub-sec. (5) of that Section in terms states that such rules may provide for inter-district transfers of servants belonging to the Panchayat service and the circumastances in which and the conditions subject to which such transfers may be made. It is, therefore, obvious that the State Government is entitled to frame rules in regard to the transfer of a Panchayat servant from one district to another district. The expression 'district', so far as Panchayat service is concerned, means a district formed under the provisions of the Act, vide Sec. 2(6) of the Act. In exercise of powers conferred by the said provision, the Government of Gujarat framed the Gujarat Panchayat Service (Transfer of Servants) Rules, 1968. Rule 3 deals with inter-district transfers. It provides that a member of Panchayat service belonging to a district cadre in a district may, by an order in writing, be transferred by the Development Commissioner to the corresponding cadre in the other district if-(a) in the opinion of the Development Commissioner such transfer is required to be made - (i) in the interest of public, or (ii) in order to absorb the member on account of his services becoming surplus for requirements of the district from which he is transferred, or (b) an application is made to the District Development Officer in that behalf by the member and the District Development Officer of the other district agrees to such transfer under Sub-rule (2). Sub-rule (2) of that Rule requires that on receipt of such an application the District Development Officer shall, having regard to the interest of the relevant Panchayat in the District, decide whether the member may be transferred or not. Where he decides that the member may be transferred, he is bound to consult the District Development Officer of the District, to the corresponding cadre of which the member is to be transferred, to know whether he agrees to the transfer. The former District Development Officer has to forward the application together with other records to the Development Commissioner for taking action, that is, for effecting the transfer. In the present case we have pointed out earlier that the District Development Officer, Sabarkantha was consulted beforehand and the transfer was effected only after he had consented thereto. It was only after the transfer order was made by the Development Page 25 of 31 HC-NIC Page 25 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER Commissioner that the District Development Officer, Sabarkantha changed his mind and raised an objection. Naturally such an objection raised post-transfer could not be entertained by the Development Commissioner and the Development Commissioner therefore rightly insisted on his order being implemented by the concerned District Development Officer. Under Rule 4 of the said Rules the inter-district transfers are subject to certain conditions one of which is that the member shall not claim seniority over the persons who rank last in a post having clear vacancy in the cadre to which he is appointed as a result of the transfer. We are, therefore, of the opinion that the provisions of law discussed above make it amply clear that the Development Commissioner had the power to transfer the third respondent from Junagadh District Panchayat to Sabarkantha District Panchayat, We, therefore, do not see any merit in the contention that the posting of the third respondent at Sabarkantha could only be on deputation and not by way of transfer. We reject the contention. "
28. The two decisions of the Supreme Court relied upon by the learned AGP are absolutely of no avail as they do not even remotely touch the issue in hand. They are on general principles so far as the transfer is concerned.
29. Mr. Joshi relied on the decision of the Supreme Court in the case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd, 2003 (2) SCC 111, wherein, in para-30, the Supreme Court observed as under;
"30. Sections 20 and 21 of the said Act are required to be read conjunctively with Sections 12 and 17. We may notice that clause (k) of sub-section (2) of Section 12 does not find mention in sub-section (2) of Section 17 as regards proposed reservation for the State and other statutory authorities but clauses (n) and (b) of sub- section (2) of Section 12 are specifically mentioned in Page 26 of 31 HC-NIC Page 26 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER Section 20. In Section 20, provisions of clauses (b), (d),
(f), (k) and (o) of sub-section (2) of Section 12 have specifically been mentioned. The High Court has proceeded on the basis that the words "designation" or "reservation" are interchangeable for the purpose of the Act. The said finding of the High Court is not in question."
30. Mr. Joshi has also relied on an extract from G.P. Singh's, Principles of statutory interpretation, 14th Edition on the subject "use of different words". The same reads as under;
"When in relation to the same subject-matter, different words are used in the same statute, there is a presumption that they are not used in the same sense.
In construing the words 'distinct matters' occurring in section 5 of the Stamp Act, 1989, and in concluding that there words have not the same meaning as the words 'two or more of the descriptions in Schedule I' occurring in section 6, VENKATARAMA AIYAR, J., observed: "when two words of different import are used in a statute in two consecutive provisions, it would be difficult to maintain that they are used in the same sense."
31. Mr. Joshi also invited my attention to the decision of the Supreme Court in the case of State of Punjab vs. Inder Singh, 1997 (8) SCC 372, in which, the Supreme Court has explained the concept of deputation. The observations in para- 18 are relevant. The same are elicited as under;
"18. The concept of "deputation" is well understood in service law and has a recognised meaning. "Deputation"
has a different connotation in service law and the dictionary meaning of the word "deputation" is of no help. In simple words "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department Page 27 of 31 HC-NIC Page 27 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be."
32. My reading of section 230 of the Act, 1993 is that the State Government has the power to allocate the officers and servants employed in the State to the Panchayat Service in three contingencies stated in the section itself. The case in hand is one of the power of the State Government to allocate the employees of the Panchayat to another Panchayat. I do not find anything on plain reading of section 230, which would empower the State Government to allocate the employees of the Panchayat from one district to the other.
33. One of the modes of the appointments, as provided in section 229 to the posts in the Panchayat Service is by transfer of a member of the State Service to the Panchayat Service.
34. Mr. Joshi, in my opinion, is right in submitting that the decision of the learned Single Judge in the case of Snehlata R. Patel (supra) does not lay down the correct proposition of law. The State Government is empowered, at best, under sub- section (3) to section 203 of the Act to make the rules, regulating the mode of the recruitment, transfers and promotions of the officers and servants in the Panchayat Page 28 of 31 HC-NIC Page 28 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER Service. In exercise of powers conferred by the said provision, the Government of Gujarat framed the Gujarat Panchayat Service (Transfer of Servants), Rules, 1968. Rule 3 deals with the inter-district transfers. It provides that a member of the Panchayat Service belonging to a district cadre in a district, may, by an order in writing, be transferred by the Development Commissioner to the corresponding cadre in the other district if-(a)in the opinion of the Development Commissioner such transfer is required to be made-(i) in the interest of public, or (ii) in order to absorb the member on account of his services becoming surplus for requirements of the district from which he is transferred, or (b) an application is made to the District Development Officer in that behalf by the member and the District Development Officer of the other district agrees to such transfer under sub-rule (2).
35. I find it extremely difficult to read the power of the State Government under section 230 to allocate the writ applicants from the Ahmedabad District Panchayat to the Botad District Panchayat. It may be true that on account of the administrative exigencies, such decision had to be taken, but the same has to be in accordance with law and if there is no power which empowers the Government to do so, then it could not have issued such directions to the District Development Officer, Ahmedabad District Panchayat.
36. Since there is a decision of the learned Single Judge, taking the contrary view, which is, as such, binding to me as a Co-ordinate Bench, I deem fit to refer the matter to the Division Bench for the adjudication of the controversy.
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37. In the aforesaid context, I may refer to and rely upon the decision of the Supreme Court in the case of State of U.P. & Ors. vs. Ajay Kumar Sharma & Anr., 2015 AIR SCW 6578. The observations of the Supreme Court, as contained in para- 10, are as under;
"10. Time and again this Court has emphatically restated the essentials and principles of "Precedent' and of Stare Decisis which are a cardinal feature of the hierarchical character of all Common Law judicial systems. The doctrine of Precedent mandates that an exposition of law must be followed and applied even by coordinate or co-equal Benches and certainly, by all smaller Benches and subordinate courts. That is to say that a smaller and a later Bench has no freedom other than to apply the law laid down by the earlier and larger Bench; that is the law which is said to hold the field. Apart from Article 141, it is a policy of the courts to stand by precedent and not to disturb a settled point. The purpose of precedents is to bestow predictability on judicial decisions and it is beyond cavil that certainly in law is an essential ingredient of rule of law. A departure may only be made when a coordinate or co-equal Bench finds the previous decision to be of doubtful logic or efficacy and consequentially, its judicial conscience is so perturbed and aroused that it finds it impossible to follow the existing ratio. The Bench must then comply with the discipline of requesting the Hon'ble Chief Justice to constitute a larger Bench."
38. The Registry shall place this judgment before the Hon'ble the Chief Justice and obtain the appropriate orders in this regard.
(J.B.PARDIWALA, J.) After the judgment is pronounced, Mr. Joshi, the learned counsel for the writ applicants brought to my notice that Page 30 of 31 HC-NIC Page 30 of 31 Created On Sat Oct 22 01:39:30 IST 2016 C/SCA/14180/2015 CAV ORDER practically, all the employees, who were transferred from the District of Ahmedabad to the District of Botad, have been brought back to the District of Ahmedabad, except the writ applicants herein. According to Mr. Joshi, the writ applicants have not been transferred or sent back to the Ahmedabad District because of the pendency of this litigation. Since the judgment and order has been pronounced today, it is upto the authority concerned to take an appropriate decision whether the writ applicants also can be transferred, once again, to the District of Ahmedabad.
(J.B.PARDIWALA, J.) Vahid Page 31 of 31 HC-NIC Page 31 of 31 Created On Sat Oct 22 01:39:30 IST 2016