Calcutta High Court
Kanailal Majhi And Ors. vs State Of West Bengal And Ors. on 18 May, 1994
Equivalent citations: (1995)1CALLT297(HC), 99CWN218
JUDGMENT Samaresh Banerjea, J.
1. In the instant writ application the question which has come up for our consideration is whether Secretaries of different Gram Panchayats constituted under West Bengal Panchayat Act, 1973 can be declared to be holders of Civil Posts under the Government of West Bengal and whether they are government servant and are entitled to benefit, privileges emoluments, pay etc. as government servants.
2. The writ petitioners all whom are Secretaries of different Gram Panchayats have jointly moved the writ application praying for declaration as mentioned above. They were granted leave to sue in representative capacity and thereafter a number of persons holding post of secretaries of different Gram Panchayats were added.
3. The writ petition was originally moved on March 23, 1983 before a learned single Judge of this Court when the said writ petition was dismissed by the learned single Judge in limini. Against the aforesaid order of dismissal by the learned Single Judge, the writ petitioners preferred a Special Leave Petition being S.L.P. (Civil) No. 8193(W) of 1983 on May 27, 1983. On March 11, 1985, the aforesaid Special Leave Petition was dismissed by the Supreme Court, with the observation that it would be open to the writ petitioners to prefer an appeal under Clause 15 of Letters Patent before a Division Bench of this Court against the aforesaid order of learned Single Judge. Thereafter such an appeal being F.M.A.T. No. 834 of 1985 was preferred by the writ petitioners before a Division Bench of this Court and the Division Bench after condonning the delay in preferring the appeal ultimately set aside the order of the learned Single Judge and issued a Rule on the writ application and made the same returnable before the Division Bench. It is the aforesaid Rule which has now come up for final hearing before us.
4. The case as made out in the writ petition in brief is as follows :
In accordance with the fundamental principles underlying the Constitution of India and for the purpose of organising and/or re-organising the entire administration pertaining to Local Self Government and in furtherance of the objects of democratic decentralisation of powers in favour of class and/or classes of Local Bodies, the Legislature in its wisdom enacted the West Bengal Panchayat Act, 1957 (hereinafter referred to as the Former Act) whereby and whereunder several provisions were made for the purpose of establishment of Panchayats in rural areas of the West Bengal and also for the purpose of providing laws relating to matters connected wherewith. Apart from the establishment of Panchayats on a three tier system and apart from functions and duties to be carried out by such Panchayats, being provided for in the said Former Act, the said Former Act also provided for appointment and/or recruitment of personnel at various levels for the purpose of carrying out the objectives and functions as well as the principles underlying the said Former Act. In particular, Section 48(1) of the said Former Act, provided for appointment of a Secretary in respect of every Anchal Panchayat (as it was then known) who was in-charge of the office of the said Panchayat and was responsible for preparation of its budget Income and Expenditure, the Statement of Accounts etc. It was also provided for in the said section that the Secretaries of the Panchayats were to be the Executive Officer and were to be appointed by the State Government or any Officer of Authority empowered by the State Government in that behalf. And the said section also authorised and/or empowered the State Government to make rules prescribing the method of recruitment, conditions of service, pay and allowances and the age of superannuation or such Secretaries.
5. In the year 1973, the said Former Act was repealed and replaced by the West Bengal Panchayat Act, 1973 (hereinafter referred to as the 1973 Act) for the purpose of re-organising the Panchayat in the rural areas of West Bengal and for providing matters connected therewith.
6. Section 35 and 36 of the 1973 Act provides for the appointment of Secretary by the State Government or any Authority empowered by the State Government in that behalf and also provides for certain substantial and material charges from the said Former Act so far as the conditions of service, payment of salaries and functions and duties to be discharged are concerned.
7. Pursuant to the rule making power as provided for in the Former Act, Rules 43, 44 and 45 of the West Bengal Panchayat Rules, 1958 (hereinafter referred to as the 1958 Rules) were made whereby and whereunder the manner of recruitment of Secretaries, the qualifications of such recruitment and the conditions of service thereof were laid down. That pursuant to the rule making power provided for under Section 224 of the 1973 Act, government framed and published the West Bengal Panchayat (Gram Panchayat Administration) Rules, 1981 (hereinafter referred to as the 1981 Rules) on 20.3.81. Rules 30 to 38 of the 1981 Rules provided for methods of recruitment, conditions of service and duties of the Secretaries of the Gram Panchayats.
8. From the aforesaid provisions of the Former Act as also 1973 Act and also the aforesaid rules framed thereunder it would appear that the appointing authority in respect of Secretaries of the Gram Panchayats are the State Government and also the Director of Panchayats. Apart from the power of the State Government to appoint and recruit, the method and manner of recruitment of such Secretaries are controlled by the State Government and/or Officers authorised by the State Government for the purpose of recruitment of the Secretaries. The Sub-Divisional Officers within whose jurisdiction such Panchayats are situated holds interviews and/or the tests and after the same proceeds to recommend the name of the concerned persons for appointment to the Director of Panchayats and/or the State Government. The State Government thus not only is vested with the power but also exercised the powers relating to method of recruitment of such Secretaries. It is the further case of the petitioners that the manner of recruitment of such Secretaries as followed by the State Government are exactly the same as are applied and/or followed in the case of the Government Employees. That apart the State Government and/or the District Panchayat Officers and/or the Director of Panchayats are the authorities so far as the transfer of the Secretaries from one Gram Panchayat to the other is concerned. Besides transfer, whenever there is a vacancy in respect of a particular Gram Panchayats on account of the absence of the Secretaries for leave or otherwise, the Block Development Officer directs the Secretary of any other adjoining Gram Panchayat to act, in addition to this own normal duties, as Secretary of the Gram Panchayat where this is a vacancy. The Government of West Bengal through various Circulars and/or Memos and/ or Orders issued from time to time control not only the working hours but also the various works to be discharged by such Secretaries from time to time depending upon the circumstances requiring services of such Secretaries in the implementation of the various works and/or the programmes undertaken by the State Government as well as by the Government of India. Under Rule 33 of the said Rules Pay and allowances of a Secretary of a Gram Panchayat and the manner of crossing by him the efficiency bar in the time scale of pay of his post shall be such as may be determined by the Government. That apart the State Government has been putting several other benefits by way of payment of advance or otherwise to the Secretaries, of the Gram Panchayats whenever similar such benefits were given to a Government servant.
9. Apart from the right of appointment including the manner and method thereof, right to control the manner and method of their work of the Secretaries, payment of salaries and/or allowances out of Public Exchequer from the respective Gram Panchayats, the State Government holds the absolute right and/or the power to control the grant of leave in accordance with the West Bengal Service Rules, Part-I and also the power to initiate disciplinary proceedings against such Secretaries, and to take disciplinary action under Rule 32(8) to Rule 32(10) of the 1981 Rules.
10. From the aforesaid provisions of the 1973 Act and the Rules framed thereunder and various Circulars, Orders, Directions and/or Notifications, it will be clear that the relationship between the Government of West Bengal and the Secretaries is that of Master and Servant and thus the said Secretaries hold civil posts under the Government of West Bengal, or in other words, are Government servants. It is further contended by the petitioners that under the Administrative and heirarchical set up obtainable under the Director of Panchayats, the Extension Officers of Panchayats are the officers appointed by the Government for the purpose of implementing the various policies of the Government so far as the Department of Panchayats and local bodies are concerned. Such Extension Officers of Panchayats are posted at the Development Block Level in a direct and one of the methods of recruitment of such Extension Officers of Panchayats provide that such Officers shall be appointed by way of promotion from the Secretaries of the Gram Panchayats. The State Government is required to discharge various welfare functions and perform various duties attached thereto which after the establisment of Panchayats are being performed by the State Government through Gram Panchayat and a large variety of functions of the Government are being implemented and/or executed by the Secretaries of the said Panchayats under Section 20(1) of the said 1973 Act. The Gram Panchayat is required to perform such other functions as the State Government may assign to it and under Section 21 of the said Act Gram Panchayat may and shall, if the State Government so directs, make provisions for certain matters.
11. That apart various schemes undertaken by the Governmental Agents like Calcutta Metropolitan Development Authority, Sundarban Development Project, Jhargram Development Programme, Jhaldapara Wild Animal Authority were also being implemented with aid and assistance of the Secretaries of the Gram Panchayats.
12. Apart from the same, Secretaries are also required to take various other duties and functions at the root level which are governmental duties relating to Small Scale Cottage Industries and Department of Forests and functions relating to Khadi and Village Industries etc. The power to collect revenues and various taxes have also been assigned to the Panchayat and the same are collected by the Secretaries of the Gram Panchayats, The facts as aforesaid will indicate that a relationship of Master and servant exists between the Secretaries of the Gram Panchayat and the State Government and the Secretaries hold civil posts.
13. It has been contended by the petitioners that although several representations were made to the State Authorities for treating the Secretaries as Government employees and for extension for all benefits as Government servants, the same was of no avail. Being aggrieved by and dissatisfied with the State Government's refusal to consider and to recognise the incumbents to the posts of Secretaries of Gram Panchayats as Government servant and for providing benefits consequential and/or incidental thereto as aforesaid, one Shri Manik Gopal Mondal moved an application under Article 226 of the Constitution of India before this Court sometimes in 1971 whereupon Civil Rule No. 2422 (W) of 1971 was issued and which was finally decided by a judgment and order dated March 21, 1977 by a learned Single Judge of this Court and by the said judgement the rule was made absolute. The State Government preferred an appeal against the aforesaid judgement being F.M.A.T. No. 963 of 1977 and a Division Bench of this Court by a judgement and order dated May 29, 1978 was pleased to allow the appeal and set aside the order passed in the aforesaid Civil Rule. The said writ petition was filed by Shri Manik Gopal Mondal in his individual capacity without obtaining any leave to sue in representative capacity and the same was contested by the said Manik Gopal Mondal in his individual capacity. The writ petitioners were informed of a decision of the Supreme Court Deported in wherein the Supreme Court while considering similar grievances of the incumbents of the similar posts under the Gujrat Panchayat Act held that the said incumbents hold civil post. On the basis of the said judgment the writ petitioners through their learned Advocate demanded justice from the State Government for a declaration that they hold civil post but without any avail.
14. The respondents are contesting the aforesaid writ petition by filing an affidavit-in-opposition, wherein a preliminary point was taken by the respondents that in the case of said Shri Manik Gopal Mondal the earlier Division Bench already having held that such Secretaries are not Government servants, such decision is binding on all including present writ petitioners. It has also been contended in the said affidavit-in-opposition that the Secretaries of Panchayats are neither civil servants nor Government servants and no relationship of master and servant does exist between the State Government and the Secretaries of the Panchayats. In the said affi-davit-in-opposition the respondents have also analysed the various provisions of the Former Act as also 1973 Act and the Rules made thereunder upon which reliance has been placed by the writ petitioners (for the purpose of contending that the said provisions would indicate that the relationship of master and servant does exist between the Secretaries and the State Government) and has contended that the same do not indicate the State Government exercises such control upon the Secretaries of the Gram Panchayat for which it can be said that the relationship of master and servant does-exist between them.
15. It has been further contended in the said affidavit-in-opposition that the decision relied upon by the writ petitioners have been set aside by a later judgement of the Supreme Court and in any event the facts of the said case before the Supreme Court, which related to a constituted Panchayat service under the Gujrat Panchayat Act were entirely different for which the principles laid down there would not be applicable in the instant case.
16. At the time of hearing of the writ application it has been contended on behalf of the writ petitioners that the instant writ petition has been moved by them for a declaration that the Secretaries of the Gram Panchayats hold civil posts and the relationship of master and servant does exist between the Secretaries and the State Government in spite of the aforesaid judgement of the earlier Division Bench in the aforesaid case of Manik Gopal Mondal, on two fold grounds. Firstly, it has been contended on behalf of the writ petitioners, 1973 Panchayat Act, has brought about substantial and. material changes relating to various service conditions, duties and responsibilities of the Secretaries of the Gram Panchayats which were not present under the Former 1957 Act and if such new provisions under the 1973 Act are taken into consideration, which were not there before the earlier Division Bench in the case of Manik Gopal Mondal, as at the relevant point of time 1957 Act and rules made thereunder were in operation, there will be no manner of doubt that there exists a relationship of master and servant between the State Government and the writ petitioners as the State Government now exercises complete administrative financial and disciplinary control over the Secretaries and therefore the Secretaries hold civil posts and really are Government servants. Secondly, it has been contended on behalf of the writ petitioners that the decision of the Division Bench in the case of Manik Gopal Mondal is no more a good law in view of the latest decision of the Supreme Court in the case of State of Gujarat v. Ramanlal Keshablal Soni , where the Supreme Court had to consider similar circumstances under the Gujrat Panchayat Act and held the Secretaries to be Government servants. It has been contended that the decision of the Supreme Court although has been overruled by the Supreme Court in the aforesaid case reported in 1983(2) SCC page 34 the Supreme Court has come to the same conclusion namely relationship of master and servant does exist between the State of Gujrat and the Secretaries of Panchayats.
17. Since the self same question which is sought to be raised by the present writ petitioners before us, was also raised in the aforesaid earlier case of Manik Gopal Mondal and the Division Bench presided over by the Hon'blo Mr. Justice Anil Kumar Sen (as His Lordship then was) answered such question in the negative, and the Special Leave Petition preferred against the aforesaid Division Bench judgment was dismissed by the Supreme Court, the aforesaid question cannot be held to be open any longer, unless of course the present 1973 Panchayat Act has brought about such material changes in the service condition and duties of the Secretaries of the Gram Panchayat and in their relation with the State Government, as claimed by the present writ petitioner, which the aforesaid Division Bench had no occasion to consider for the purpose of determining whether the master and servant relation exist between the State Govt. and the Secretaries of the Panchayats.
18. It will therefore be necessary for us to examine whether the West Bengal Panchayat Act, 1973 has really brought about such material changes, as claimed by the writ petitioners, which the earlier Division Bench had no occasion to consider.
19. But before such examination it is necessary to find ont what is the ratio of the decision in the aforesaid Division Bench decision of this Court in the case of State of West Bengal v. Manik Gopal Mondal and what was the issue before the said Division Bench.
20. The writ petitioner in the aforesaid case, Manik Gapal Mondal who was the Secretary of Ahamadpur Anchal Panchayat moved a writ application when the Former 1957 Act was in operation, claiming that post of Secretary of Anchail Panchayat, was under the control of the State Government and the nature of extent of such control was sufficient to establish an employer and employee relationship between the State Government and the Secretary of Anchal Panchayat, inasmuch as the Government had exclusive power of appointing, transferring and dismissing such a Secretary and/or directing or controlling their work apart from paying their wages and other emoluments. The learned Single Judge who heard the said writ petition after consideration of the facts that the writ petitioner in the said case was appointed by the State Government, his terms and conditions of service were in fact regulated by the State Government and payment was also made by the State Government and a number of decisions of this Court and of Supreme Court was of the view that the writ petitioner held civil posts and also a Government servant. The aforesaid writ application however was heard ex parte as none appeared for the respondent. Against the aforesaid judgment an appeal was preferred by the State Authorities being F.M.A.T. No. 963 of 1977 (District Panchayat Officers and Ors. v. Manik Gopal Mondal and Anr.). The Division Bench in the said appeal while adjudicating the aforesaid question, considered the true nature of the post of Secretary of an Anchal Panchayat and the various provisions of the Panchayat Act, 1957 and the rules made thereunder, which according to the said writ petitioner indicate that a master and servant relationship exists between the State and a Secretary of Anchal Panchayat. The said Division Bench considered Section 48 of the 1957 Act which deals with the appointment of a Secretary of an Anchal Panchayat, his functions and duties etc. The Division Bench after referring to the said section noted that a Secretary to an Anchal Panchayat is an Officer of the Anchal Panchayat itself and happens to be executive officer of such panchayat, but the power of appointment to the post of such Secretary is left with the State Government or any officer or authority empowered by the State Government ; that the State Government is further authorised to prescribe by rules and method of recruitment, conditions of service, pay and allowances and the age of superannuation of a Secretary so appointed. The Division Bench also considered Section 55(a) of the said 1957 Act which provides that salaries and allowances are to be paid out of Anchal Panchayat Fund. It also took note of the fact that Section 48 of the said 1957 Act provides that the Secretary shall be the Principal Executive Officer of the Panchayat and apart from discharging the functions specified in sub-section (1) in relation to the Panchayat itself, shall discharge such duties or exercise such powers of the Anchal Panchayat as the Anchal Panchayat may delegate and under sub-section (4) in discharging such functions (other than those delegated to him by the Panchayat) the Secretary shall act under the direction of the Pradhan and he shall be responsible for his acts to the Anchal Panchayat. Various other provisions of the Ate and the rules as also the amendments made in respect thereto were also considered by the Division Bench for the purpose of such adjudication, namely Rule 43 of the 1958 Rules which prescribed the method of recruitment under which application for such post are invited by the Sub-Divisional Judicial Magistrate, Rule 44 which provides for qualification of a Secretary ; Rule 45 which deals with disciplinary matters and provides that on a report from the Pradhan, disciplinary action can be taken against the Secretary by the District Panchayat Officer and an appeal therefrom shall lie to the District Panchayat Offices ; Rule 56 which provides a Service Book and a Character roll shall be maintained in respect of every permanent employee of an Anchal Panchayat ; Rule 56 A which was brought about by way of amendment authorising the District Panchayat Officer to transfer any officer serving under an Anchal Panchayat to some other Panchayat in the same subdivision. The Division Bench also considered various changes brought about in the Rules 43, 44 and 45 of 1958 by way of amendment by which the power to appoint a Secretary was vested in the Director of Panchayat and power to take disciplinary action other than removal and dismissal in respect of a Secretary was vested in the District Panchayat Officer while the power of removal and dismissal was vested in the Director of Panchayat, who was made the appellate authority in case of disciplinary action taken by the District Panchayat Officer, while the State Government was made the appellate authority in respect of an order passed by the Director of Panchayat. The Division Bench also considered the fact that under such rules power of transfer from the panchayat to other Panchayat of a Secretary within the District was vested in the District Panchayat Officer and the power of such transfer outside the District was vested in the Director of Panchayat. Various other provisions of the 1957 Act and the Rules 1958 Rules were also taken into consideration by the Division Bench for the purpose of making such adjudication namely whether the petitioner in the said case was holding civil posts and therefore was a Government servant.
21. As it will appear from the said judgment of the Division Bench, the Division Bench did such exercise being fully conscious of the position of law as laid down by the Supreme Court in case of State of Uttar Pradesh and Ors. v. Oudh Narayan Singh reported in AIR 1965 SC page 350 and in the case of State of Assam and Ors. v. Kanak Chandra Dutta , that in order to be a civil servant under the State there must exist a relationship of master and servant between the State and the person who claims to be such a civil servant and whether in a given case such relationship exists or not, is a question of fact which has to be determined on consideration of all material and relevant circumstances having a bearing on such issue, and the existence of such relationship of master and servant is indicated by the State's right to select and appoint holder of the post, its right to suspend and dismiss him, its right to control the manner and method of doing his work and the payment by it of his wages or remuneration and such relationship of master and servant may also be established by the presence of those indications in conjunction with other circumstances and it is a question of fact in each case whether there is such a relationship between the State and the alleged holder of a post.
22. The Division Bench after such consideration in details ultimately answered the question in the negative as it was of the view, that although the power of appointment to such a post vested in the State or its delegate and so also the power of discipline, such power did not emanate from the position, of the State being the master in respect to the person so appointed as the Secretary but because of the fact that such powers are specifically vested in the State by a Statute, The Division Bench was also of the view the existence of such powers in the hands of the State does not also constitute an indication that State in the master because of other existing circumstances and vesting of such power of appointment and discipline in the State does not necessarily render the holder of such post a servant under the State. The Division Bench was further of the view that in spite of the fact that such powers of appointment and discipline are vested in the State, there were other attending circumstances to show that the post of a Secretary was never intended nor created to be a civil post under the State.
23. The relevant extract of the said judgement is quoted hereunder :-
"In spite of the fact that such powers of appointment and discipline are vested in the State, the other attending circumstances go to show that the post of a Secretary was never intended nor created to be a civil post under the State Holder of such post is an Officer and as such a servant of the body corporate, viz. the Panchayat. Had he been made a civil servant, there would have been no necessity to specifically authorise the state to prescribe the conditions of service and other allied matter. Moreover it is quite evident that a Secretary of an Anchal Panchayat discharges such functions as functions of the Panchayat itself and not of the State. This Court in the case of Ena Ghosh v. State of West Bengal, pointed out that the most satisfactory test is a consideration of the functions discharged by person and the question to be asked is as to whether these are Government functions which would only mean the day to day executive administration of the State. In applying the said test it cannot but be said that the Secretary does not perform such Governmental functions by virtue of his appointment as a Secretary and all his functions relates to the functions of the body corporate, namely the Anchal Panchayat. That apart as we have indicated hereinbefore in discharging the ordinary functions the Secretary acts under the direction of the Pradhan through whom he remains responsible to the Anchal Panchayat. Thus, the right to control the master of his doing the work vests not in the State Government but in the Anchal Panchayat. Lastly it is of great importance that the salary and allowances of the Secretary are to be paid out of the Anchal Panchayat fund and not out of the State Exchequer. On the scheme of Section 48 and the Rules framed thereunder, it is quite clear that the Secretary to an Anchal Panchayat is one of the officers and servants of the Anchal Panchayat who discharge functions of the Panchayat and does so under the control of the Panchayat though the Statute itself vested in the State the right to select and appoint the holder of such a post and so also the right to take disciplinary action against him, in spite of control of the State Government of the body corporate. There arises no relationship of master and servant between the State and the holder of such a post and as such he does not become a civil servant under the State. Such a Secretary in our view, holds a comparable post as that of an executive officer under Section 67A of the Bengal Municipal Act or of Commissioner of Calcutta Corporation under the Calcutta Municipal Act. Secretary of a Panchayat is intended to be the Principal Executive Officer of the Panchayat which is to be run by a body of elected members who may represent varying and conflicting interests and as such to provide some security legislature may have thought it prudent to leave control in those two respects in the State Government though primarily and substantially the post that was created was that of an Officer, and as such a servant of the body corporate. The learned Judge in the trial Court seems to have taken the view that when for all practical purposes a Secretary is appointed by the State Government and payment to him is also made through the State Government or at the instance of the State Government and his terms of services and conditions of employment arc prescribed by the State Government, it should be held that the poist of a Secretary is that of a Government: servant. The learned Judge further observed that when the payment of salaries and allowances in respect of the Secretaries of Anchal Pan-chayats is made on the basis of bills drawn on account of Pay & Allowances and submitted to the State Govt. and the State Govt. places necessary amount to the Block Development Officer for the purpose of acquittance, it should be held that the salary and allowance of a. Secretary are paid out of the State fund. In the opinion of the learned Judge the report of pay commission which was disclosed by the respondent in his writ petition also goes to support the claim that the Secretaries of Anchal Panchayat are Government servants. We are, however unable to share the view thus taken by the learned Judge in the trial Court. Indeed there can be no dispute that the power of appointment, the power of taking disciplinary action and the power to specify the other conditions of service in respect of a Secretary of an Anchal Panchayat had been vested in the State. Such powers are, however exercised not because the State as the master exercise such powers. Such powers, on the other hand, are exercised because the Statute makes a special provision namely, though the Secretary would be one of the officers and servants of the body corporate, namely, the Anchal Panchayat, still the power of appointment, the power to take disciplinary action and the power to lay down conditions of service arc vested in the State and such powers are not left with the master who normally possesses them. We have held for reasons given hereinbefore that vesting of these powers in the State does not render the State to be the master in respect of a Secretary to an Anchal Panchayat. The learned Judge in the Trial Court, however, failed to take note of the fact that the right to control the manner and method of doing the work by such Secretary vests in the Panchayat and that such a Secretary discharge functions the Panchayat itself and not Governmental functions. In our view the learned Judge in the Trial Court is not correct in thinking that payment of salaries and allowances to such Secretaries is made by the State. The Statute makes it very clear that such Secretaries are paid out of the Panchayat fund and in our opinion so long it is so paid it is wholly immaterial how the bills are passed and acquittance is obtained".
24. The Division Bench in coming to such finding that the Secretary of an Anchal Panchayat does not hold civil post and is not a Government servant also considered the fact that the Secretary can be transferred from one Panchayat to another and held thus "one of the conditions of service prescribed which brings in certain amount of incongruity is the provision for transfer of a Secretary from one Panchayat to another. Normally a servant is to serve his own master and transfer of his services to another master without his consent is more consistent with servitude that with the ordinary relationship of master and servant. We have our doubts as to how far such a condition could lawfully be prescribed in exercise of powers under Section 48 or how far it can at all be said to be a condition of service where the service to be rendered is to the particular Panchayat of which such a person is appointed the Secretary. It is, however, not necessary for us to go into such an issue because imposition of such a condition does not derogate from the position that so long appointed with a particular Panchayat, he remains it officer and servant. Moreover such a condition is not peculiar for the post of a Secretary alone since under Rule 56A all other servants of an Anchal Panchayat arc liable to such transfer and it can never be claimed that all of them are Government servants. Such a condition is super imposed by the Statutory Rules and binds the holder of the statutory post".
25. The present writ petitioner in support of their contention that the Secretaries of the Gram Panchayats are holders of civil posts and therefore are Government servants and master and servant relation exists between the State Govt. and the Secretaries, have taken us through the various provisions of the West Bengal Panchayat Act 1973 and the rules made thereunder and by comparing the provisions of the 1973 Act and Rules under the 1973 Act with the Former 1957 Act and the Rules made thereunder have tried to contend that the present Act and Rules have brought about material changes from the Former Act and Rules which were not before the earlier Division Bench and such changes if considered would leave no manner of doubt that a relationship of master and servant does exist between the State Govt. and the Secretary of a Panchayat.
26. The writ petitioner in support of their contention that the relationship of master and servant does exist between the State Govt. and the Secretary of Panchayat under the 1973 Act very much emphasised on the following facts, which according to them if considered would clearly indicate that such a relation does exist :-
(a) The appointing authority of the Secretaries is the State Government or any authority empowered by the State Government.
(b) The District Panchayat Officers and the Director of Panchayat who are all Government Employees are the disciplinary authority and the appellate authority of the Secretaries.
(c) The salary and the emoluments of the Secretaries are paid although out of Panchayat fund, it is the State Government who make such fund available to the Panchayat.
(d) The State Govt. makes rules relating to the method of recruitment and the terms of conditions of service including Pay & Allowances, Superannuation, Provident Fund and Gratuity of the Secretaries.
(e) The application for recruitment of the Secretaries are invited by Sub-Divisional Magistrate and the Director of Panchayat make such appointment on the recommendation of the Sub-Divisional Magistrate.
(f) The Secretaries have to perform a large number of duties in respect of the work of the State Govt. viz. different works relating to health department through different schemes, programmes or projects like family planning scheme; the Government works relating to relief in case of natural calamities; different development schemes ; different works relating to agricultural programmes works relating to schemes under the department of Forests relating to afforestation; works relating to different schemes under Khadi & Village Industries Commissioner etc.
(g) The Secretaries can be transferred from one Panchayat to another within same district or even outside the district.
(h) The post of Extension Officer of Panchayat which is a Governmental post is filled up both by direct recruitment and from the posts of Secretaries of Gram Panchayat.
27. In support of their aforesaid contention the writ petitioners have mainly referred to Sections 35, 35A, 37, 20, 21 45 and 46 of the 1973 Act and Rule 30, 31, 32 33 34, and 35 of the Rules of West Bengal Panchayat (Gram Panchayat Administration) Rules 1981 (hereinafter referred to as the 1981 Rules). The writ petitioners have taken us through the aforesaid provisions of the 1973 Act and the Rules made thereunder as also through the corresponding sections and rules under the 1957 Act and the Rules made thereunder making a comparative study thereof and have contended that the aforesaid provisions under the 1973 Act and the Rules made thereunder have brought about major changes in the service conditions, method of recruitment and manner of appointment of the Secretaries which were not before the earlier Division Bench.
28. We have carefully gone through the aforesaid provisions of 1973 Act and 1981 Rules as also the corresponding sections and rules under the 1957 Act and the 1958 Rules. But we have not been able to pursuade ourselves to accept the contention of the writ petitioners that the provisions of the new 1973 Act and the new 1981 Rules have brought about such major changes. On the contrary, such comparison of relevant provisions of the Act and the Rules under the 1973 Act with the corresponding provisions of the 1957 Act and the Rules under the 1957 Act will indicate that no material changes have been brought out by the new Act and the Rules and none of the changes brought about by the new Act and the Rules if considered would lead to a finding different from the earlier Division Bench.
29. By the Former 1957 Act the Panchayats were established in West Bengal and by the 1973 Act, the Panchayat system has been re-organised.
30. Section 31 of the 1957 Act deals with the powers and duties of Gram Panchayat and provides inter alia the Gram Panchayat within the limits of the fund at its disposal, will provide within the area under its jurisdiction for sanitation, conservancy and drainage and the prevention of nuisance, curative and preventive measures in respect of malaria/or and epidemic, vaccination and inoculation, supply of drinking water and the cleansing and disinfecting the sources of supply and storage of water, the maintenance, repair and construction of public streets and protection thereof, the removal of encroachments on public streets or public places ; the protection and repair of buildings or other property vested in it and various other provision as enumerated therein. The corresponding section of 1973 Act is Section 19 dealing with the power of Gram Panchayat wherefrom it will appear that under the new Act also the same powers which were under the old Act are also there in the new Act.
31. Section 32 of the 1957 Act provides that the Gram Panchayat shall perform such other functions as the State Government may assign in respect of matters enumerated therein and the same power is also there for the Gram Panchayat in the corresponding Section 20 of the 1973 Act, viz. performing of such functions of the State Government which may be assigned in respect of the various matters enumerated therein.
32. Section 35(1) of the 1973 Act provides that Secretaries shall be appointed by the State Government or any authorities empowered in this behalf. The corresponding Section 48(2) of the 1957 Act, made the same provisions.
33. Section 35(3) of the 1973 Act provides that the State Government shall make rules relating to the method of recruitment and the terms and conditions of service including the pay and allowances, superannuation, provident fund and gratuity, of the Secretary. The corresponding Section 48(5) of the 1957 Act made absolutely the same provisions.
34. Under Section 35(4) of the 1973 Act, subject to the rules framed by the State Government regarding discipline, and control, the Secretary shall act in all matters under the control of the Pradhan through whom he shall be responsible to the Gram Panchayat. The only change which has been made in the said section from the corresponding Section 48(4) of the 1957 Act is that under the former 1957 Act while it was provided that such power shall be exercised by the Secretary subject to provisions of delegation of power, under Section 35(4) of the present 1973 Act it is provided such a power will be exercised subject to the rules framed by the State Government.
35. Under Section 35(2) of the 1973 Act the Secretary shall be in charge of the office of the Gram Panchayat and shall discharge such duties as has been prescribed under Rule 35 of the 1981 Rules which specifies duties to be discharged by the Secretary. The corresponding Section 48(1) of the 1957 Act provided exactly the same and the Sub-section (2) of Section 48 itself specified the duties to be discharged by the Secretary.
36. Section 45(2) of the 1973 Act provides that every Gram Panchayat shall set apart and apply annually such sum as may be required to meet the cost of its own administration including salary etc. of the Secretary. The corresponding Section 48(6) of the 1957 Act provided that salary and allowances of the Secretary shall be paid out of the Anchal Panchayat fund.
37. Under Rule 30 of the 1981 Rules, a Committee of Government Officers, and elected functionaries chaired by the Sub-Divisional Officer, invites and processes the applications for appointment by the Director of Panchayat. The corresponding Rule 43 of the Old Rules provided that Sub-Divisional Magistrate shall invite and process the applications for appointment to the post of Secretary for appointment by the Directors of Panchayat.
38. Under Rule 30 of the 1981 Rules, a Secretary, barring certain exceptions, should possess Madhyamik or equivalent qualification. The corresponding Rule 44 of 1958 Rules provided that a Secretary barring certain exceptions, should posses School Final or equivalent qualification.
39. Under Rule 32(1) of 1981 Rules, earned leave, half pay leave, commuted leave shall be same as admissible to a Government servant on an identical or comparative scale of pay. The corresponding Old Rule of 1958, provided leave of a Secretary shall be same as those prescribed for ministerial officers of lowest grade.
40. Under Rule 32(7) of 1981 Rules, District Panchayat Officer, after giving Secretary a reasonable opportunity of being heard and after considering the views of the Gram Panchayat, may impose on him penalty and an appeal shall lie to the Director of Panchayat. The corresponding Rule 45 of the Old 1958 Rules provided that District Panchayat Officer may take, on a report from the Pradhan, disciplinary action against a Secretary and appeal from such order shall lie to the District Magistrate.
41. Under Rule 32(2) of the 1981 Rules, District Panchayat Officer may transfer a Gram Panchayat Secretary within the district and Director of Panchayat outside the district. Under the corresponding Rule 56A of the 1958 Rules, District Panchayat Officer was empowered to transfer the Gram Panchayat Secretary within a district and Director of Panchayats was empowered to make such transfer outside the district within the State.
42. Under Rule 32(4) of the 1981 Rules in absence of Secretary on account of leave, training, suspension or otherwise, the Block Development Officer shall direct the Secretary of an adjoining Gram Panchayat, in addition to his own duties, to function in place of the Secretary who is so absent.
43. Under the Rule 56A of Old 1958 Rules District Panchayat Officer may transfer any officer serving under any Gram or Anchal Panchayat to some other -such Panchayat in the same sub-division and under Rule 44 of the 1958 Rules in case of temporary absence of the Secretary to an Anchal Panchayat, the State Govt. or any officer or authority empowered by the State Government may appoint any person temporarily as the Secretary to an Anchal Panchayat.
44. Rule 32(5) of 1981 Rules empowers the District Panchayat Officer to place the Secretary under suspension during the pendency or contemplating of disciplinary proceeding and to impose punishment indicated in Sub-rule 6 and it further provides that during such period of suspension subsisting allowance has to be paid. Corresponding Rule 45(2) of 1958 Rules empowered the District Panchayat Officer on the report of the Pradhan that the Secretary is remiss or negligent or has committed a breach of discipline or other misconduct, to take such action against the Secretary as he thinks fit.
45. Under Rule 32(9) of 1981 Rules an appeal shall lie to the Director of Panchayats against an order of penalty imposed on the Secretary under Sub-rule 7 and an appeal shall lie to the State Govt. against an order or penalty imposed on the Secretary under Sub-rule (8) whereas in the corresponding Rule 45(3) of 1958 Rules an appeal shall lie to the District Panchayat Officer under Sub-rule(3).
46. Rule 34 of the 1981 Rules prescribes the age of superannuation of a Secretary and also makes provisions of reemployment. Corresponding Rule 49 of the 1958 Rules prescribed the age of retirement of the Secretary and also made a provision for extension of service with the approval of the District Panchayat Officer for not more than a period of one year at a time but in no case beyond the age of 65 years.
47. It will thus appear from the abovementioned comparison that the present 1973 Act and the Rules made thereunder has not at all made any material and substantial changes in the various service conditions of the Secretaries of the Gram Panchayat or in their powers, duties and functions or in their relation vis-a-vis the State Govt. from the provisions of the old 1957 Act and the Rules made thereunder.
48. We find that the provisions in the present 1973 Act and the 1981 Rules relating to the extent control of the State Government, if any, over the appointment and recruitment of the Secretaries of the Panchayat, relating to disciplinary action against them, in relation to their tarnsfer, relating to the duties to be performed by them, were all thereunder the Former 1957 Act and the 1958 Rules thereunder and after detailed consideration thereof the earlier Division Bench was of the view that no relationship of master and servant exists between the State Government and the Secretaries of Panchayat. Wo, therefore, reject the contention of the petitioners that the decision of the earlier Division Bench is no longer a good law since the present 1973 Act and the 1981 Rules has brought about material and substantial changes from the old Act and Rules which the earlier Division Bench had no occasion to consider and if the same would have been considered it would have been established that relationship of master and servant does exist between the State Govt. and the Secretaries of Panchayat.
49. We now take up the other contention of the writ petitioners viz. earlier Division Bench decision is no longer a good law in view of the decision of the Supreme Court in the case of State of Gujarat and Anr. v. Ramanlal & Keshablal Soni and Ors. and respectively.
50. After carefully considering the aforesaid decisions of the Supreme Court we are also unable to accept the contention of the writ petitioners that because of the aforesaid decisions of the Supreme Court, the decision of the earlier Division Bench of our Court is longer a good law and under the ratio of the said decision of the Supreme Court the writ petitioners are entitled to be declared as holders of civil posts and Government servants. The said decisions of the Supreme Court in our view, are not at all an authority in support of the contention of the writ petitioners that Secretaries of Gram Panehayats are Government servants and holders of civil posts.
51. In the aforesaid decisions the Supreme Court was considering the Guj-rat Panchayat Act under Section 203 of which, unlike the West Bengal Panchayat Act, 1957 or the present Act of 1973, it has been provided that there shall be constituted a Panchayat Service in connection with the aforesaid Panchayat. Under the Gujrat Act therefore, there was Panchayat Service whereas in the West Bengal Act there is no such provisions. Under the said Gujrat Act, unlike the West Bengal Act, a single centrailsed Panchayat Service was constituted which consisted of District cadre and Taluqa cadre and local cadre and unlike the West Bengali Act, the Taluqa and District Development Officer of the Panchayat admittedly were already officers of the State Govt. The Gujarat Panchayat Service (absorption, seniority, Pay and allowances) Rules 1965 and the benefits under the same although were extended to the District and Taluqa cadres, which consisted of lakhs of employees who were government employees, the State Govt. declined to extend the same benefit to the local cadre, which consisted of about 6 thousand employees who were originally municipal employees and later on absorbed as Panchayat employees, on the ground that they were not government servant although the others are. The question which came up for consideration before the Supreme Court in the aforesaid cases was whether such members of the local cadres who were ex-municipal employees can be said to be government employees and were being unjustly denied the benefit of pay commission.
52. The answer of the Supreme Court was in the affirmative in favour of ex-municipal employees. The main reason for taking such view was that the Supreme Court held Panchayat Service constituted under Section 203 of the said Gujrat Act to be a civil service of the State and consequently the members of the said service to be government servant.
53. As to the question what will be the test for determining whether a person may be said to hold a civil post under the Government, in the judgment the Supreme Court held thus :
"We have to first consider the question whether the members of the Gujarat Panchayat Service are government servants. Earlier we have already said enough to indicate our view that they are government servants. We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand no single factor may be considered absolutely essential. The presence of all or some of the factors, such as, the right to select for appointment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not. Amongst the cases cited before us were Gurugobirida Basu v. Sankari Prasad Ghosal; State of Uttar Pra-desh v. Audh Narain Singh ; State of Assam, v. Kanak Chandra Dutta; JJ. R. Gurushantappa v. Abdul Khuddus Anwar ; S.L. Agarwal v. G.M. Hindustan Steel Ltd. and Jalgaon Zilla Parishad v. Duman Gobind. We have considered all of them and do not consider it necessary to refer to each of the cases".
54. The factors which very much weighed with the Supreme Court to hold Gujarat Panchayat Service to be State Service inter alia were, Sections 157, 158, 326, 206 and 206A provided for allocation to the Panchayat Service from a State Service and a reallocation from the Panchayat Service to the State Service ; Section 203 of the said Act indicated that the servants of the Panchayats are not servants of the individual Panchayats but belong to a centralised service ; Section 205 of the said Act provided for appointments to posts in the Panchayat service inter alia not only by direct recruitment and by promotion but also by transfer to the Panchayat service from State Service ; Section 203(4)(a) of the Gujarat Act which provides for promotion from the panchayat service to state service, Section 157 and 158 of the Gujarat Act provides for transfer of certain functions performed by the Government to Panchayat Institutions together, with funds and staff, Section 325 of the Act provided for that Secretaries, all officers and servants in the employ of old village Panchayats, who were admittedly the government servants would be officers and servants of the new gram panchayat ; Section 206A of the Act authorised a review of allocation within a period of four years and reallocation to the State Service from the Panchayat service under Sections 157 and 158.
55. Apart from the fact there is no constituted Panchayat service under the West Bengal Act, the aforesaid provisions of allocation and reallocations of staffs of state service to Panchayat Service and vice versa, and for transfer from panchayat service to the state service, etc, are absent in the West Bengal Act.
56. Much emphasis has been laid by the learned Counsel appearing for the writ petitioners on the observation of the Supreme Court in paragraph 30 of the aforesaid judgment that 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 fund of those institutions. Such observation was made by the Supreme Court while rejecting such contentions of the State of Gujarat before the Supreme Court that local cadre employees being servants of different body corporates and being paid out of the Panchayat fund cannot be said to be government servant. As the Supreme Court in consideration of other factors already held they are government servants being members of the Panchayat service, in the background of such finding the Supreme Court held that the fact they are paid out of the Panchayat fund is not relevant. Before the Supreme Court it was also the contention of the State of Gujarat that the Talatis and Kotwals, who became Secretaries, Officers, and servants of Gram and Nagar Panchayat wehe government servants, even to start with, while municipal employees who became such Secretaries, officers and servants of Gram and Nagar Panchayats were not. The Supreme Court after accepting such fact that the municipal employees were not government servants to start with held that 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 and such a classification would be unreasonable and entirely irrelevant to the object sought to be achieved.
57. It will appear from the aforesaid decision of the Supreme Court that in the said case of Supreme Court was never called upon to decide the question, which has been raised by the present writ petitioners, as to whether the Secretaries of the Gram Panchayat can be declared to be holders of civil posts and government servants even when there is no constituted Panchayat Service and when there is no centralised or single Panchayat Service and when they are not members of such a centralised state civil service.
58. It is significant to note in this connection the other decision of the Supreme Court relied upon by the writ petitioners in the case of Mathura Das Mohorilal Kedia v. S. D. Munshaw and Ors. also had to consider the self same question under the Gujarat Panchayat Act and was of the same opinion as in the subsequent case of State of Gujarat v. Ramanlal Keshablal Soni . The opinion of the earlier case of Mathura Das Mohonlal Kedia v. S. D. Munshaw and Ors. after its pronouncement was set aside on the application of the appellants of the later case and the writ petition was heard once again by another Constitutional Bench the decision of which was . But what is important to note that the Supreme Court in the said earlier case of Mathura Das after holding inter alia that the Panchayat Service contemplated under Section 203 of the Panchayat is a single service of the whole state and is a centralised service and therefore Panchayat Service constituted under the Panchayat Act is a civil service of the State Government, at the same time made it clear that it is quite possible that under the Statute it may be open to the Panchayat to employ servants for the purpose of administration of the Panchayats who may not be members of the Panchayat service and that in the aforesaid case the Supreme Court was concerned only with the members of the Panchayats Service constituted under Section 203(1) of the Gujarat Panchayat Act with regard to whose appointment and conditions of service the Government alone has been entrusted with the power to make rules under Section 203(3) and that the view term in the said case does not necessarily lead to the conclusion that every employee of a local body who is not a member of the Panchayat Service should be treated as a member of the State Civil Service, which is a question of the fact to be decided in each case depending on the circumstances of that case.
59. In our view, there is nothing in the aforesaid judgment of the Supreme Court from which it can be said the decision of the Supreme Court in those cases that the employees who are absorbed under the Gujarat Panchayat Service were govcrnmnt employees, would be applicable to the employees under Panchayat of other State or for the matter of that would be applicable in the case of Secretaries of the Panchayats under the West Bengal Panchayat Act, 1973. On the contrary, it will appear from the aforesaid judgment of the Supreme Court that the Supreme Court itself was of the view that whether employer and employee relationship exists between the State Government and employees of the Panchayat is a question of fact to be decided under the facts and circumstances of the case.
60. As it has held by the Supreme Court in its recent decision in the case of Commissioner of Income Tax v. M/s. Sun Engineering Works (P) Ltd. .
"It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the question involved in the case in which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment divorced from the context of the questions under consideration by this Court, to support their reasonings. In Madhav Rao Jiwaji Rao Scindia Bahadur v. Union of India this Court cautioned :
"It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment'".
61. If the judgment of the Supreme Court in the aforesaid case of State of Gujarat v. Ramanlal Keshablal Soni is read as a whole, it clearly appears that the findings of the Supreme Court arrived at in the said case were in the context of the said case and in the light of the question which was before the Supreme Court in the said case, namely, under the Gujarat Panchayat Act, there being a centralised constituted Panchayat Service whose members are already government servants, whether the members of the Taluqa cadre who were ex-municipal employees, but later on were absorbed in the said State service, can be treated as government servants.
62. Under the circumstances, we do not find any reason to differ from the judgment of the earlier Division Bench of this Court. We also agree with the view of the earlier Division Bench that although the power of appointment to the post of Secretary is vested in the State or its. delegate and so also the power of discipline, such power does not emanate from the position of the State being the master in respect of the person so appointed as the Secretary but because of the fact that such powers are specifically vested in the State by the provision of the Statute itself. Existence of such powers in the hands of the State does not also constitute an indication that State is the master because of other existing circumstances. As held in in the case of Barada Kanti Adhikari v. State that existence of such control of the State is not always decisive and that a certain amount of flexible interpretation guided by the facts of each case is a necessity in the present context of governmental administration and although powers of appointment and discipline were vested in the State of its delegate it would appear from other attending circumstances, that it was never intended nor created to be a civil post. The Secretary of the Panchayat discharges functions which are all functions of the Panchayat itself under the Act and not of the State. The fact that under the Act State Government is specifically authorised to frame rules and to prescribe condition of service and other matters relating to Secretary of the Panchayat, who admittedly is an employee of the body corporate, itself shows that he is not a civil servant inasmuch as had he been made a civil servant, it would not have necessary at all to make such provision. It also cannot be said that the Secretary does not perform any such governmental function by virtue of his appointment as a Secretary, but as government servant. He discharges the ordinary functions of the Secretary under the acts under the direction of the Pradhan to whom he remains responsible to the Anchal Panchayat.
63. We are of the view that in spite of re-organisation of the Panchayat under the present 1973 Act which has brought about some changes, there is nothing in the present Act to' show that the Secretaries of the Gram Panchayat was ever intended to be holder of a civil post; on the contrary it appears that the Secretaries of the Gram Panchayats were intended to be an employee of the body corporate. Had it been the intentions of the legislatures that the Secretary of the Panchayat would be government servant and holder of civil posts, there would have been no necessity by making special, statutory provisions specifically authorising the State to prescribe the conditions of service and other allied matters. The fact that a large number of welfare and social activities of the State Govt. are now being performed by the Panchayats and the Secretary of the Panchayats purportedly is responsible for executing such work and under the Statute the government can allot its works to the Panchayat does not make the Secretary of the Panchayat a government servant. As admitted by the writ petitioners themselves in the writ petition that this welfare and social activities of the State Govt. are being performed by the State through different agencies and also through Panchayat, which is a local sell Govt. and when duties relating thereto are performed by the Secretaries, the Secretaries perform the duties of the Panchayat and not the duties of the State Government. In discharging the ordinary functions the Secretary of the Gram Panchayat acts under the direction of the Pradhan through whom he is responsible to the Panchayat. Thus the right to control the performance of works by the Secretaries as his master vests with the Panchayat and not with the State Government.
64. We agree with the earlier Division Bench that the Secretary of Gram Panchayat holds a comparable post to that of an Executive Officer under Section 67A of the Bengal Municipal Act or of Commissioner of Calcutta Corporation under the Calcutta Municipal Corporation Act and as the Secretary of a Panchayat is intended to be the Principal Executive Officer of the Panchayat which is to be run by a body or elected members representing varying and conflicting interests, to provide some security and independence to the holder of such a post the legislature may have thought it prudent to leave control in those two respects in the State Government though primarily and substantially the post that was created that of an Officer of the body corporate.
65. The power of appointment of taking disciplinary action and to specify conditions of service in respect of a Secretary of a Gram Panchayat are exercised by the State Government not because of the State Govt. is master of the Secretary but because of West Bengal Panchayat 1973 Act and the Rules made thereunder makes a special provision in respect thereof vesting such power in the State Govt. We are further of the view that since the Panchayat Act, 1973 itself makes it clear that the Secretaries are paid out of Panchayat Fund, it is wholly immaterial how the bills are passed and acquittance is obtained. The provision that certain percentage of vacancies in the post of Panchayat Extension Officer which is a Government post can be filled up by selection from the Secretaries does not indicate that the Secretaries are holding governments posts. Certain percentage of such vacancies are filled up in the post of Extension Officer, as it appears from the relevant Circular referred to by the writ petitioners, not by promotion as alleged, but by direct recruitment through selection. The provision made in the Rules for transfer of a Secretary from one Panchayat to another were also there under the 1957 Act and the earlier Division Bench also had to consider such situation, but did not consider the same to be a factor for holding that the Secretaries of the Anchal Panchayat are government servants.
66. We are of the view that although it may be possible to argue from the aforesaid provisions made in the Rules for transfer of a Secretary from one Panchayat to another that the same suggests a centralised or integrated Panchayat Service, but fact remains that no such integrated or centralised Panchayat Service, like the Gujarat Panchayat Service, has been provided for in the Act. From the entire scheme of the present 1973 Act also it does not appear that such a centralised or integrated Panchayat Service under the State has been contemplated. In absence of the same, therefore, the aforesaid provisions of transfer from one Panchayat to another, appears to us, to be inconsistent with the Act. Such a provision in the Rules, therefore, in our view, does not make a Secretary of a Gram Panchayat a holder of a civil post under the State Govt. or a member of any integrated civil service. That apart such provisions of transfer in the Rules has not been particularised in case of Secretaries of the Gram Panchayat alone but is also there for other employees of the Panchayat and in that view of the matter also it cannot be said that because of such provisions the Secretaries are holder of civil posts or members of a civil Panchayat Service.
67. One of the most vital factors in the instant case, in our view, which goes to indicate that it was never intended by the legislature that the Secretaries of Gram Panchayat would be employees of the State Government, but would be the employees of the concerned Panchayat is that under Section 35(4) of the present 1973 Act, the Secretary shall act in all matters under the control of the Pradhan through whom he shall be responsible to the Gram Panchayat. Therefore, even if the power of appointment and discipline has been vested in the State by making such provision in the Statute, at the same time it has been made clear that the Secretary for his duties would be responsible to the Gram Panchayat through Pradhan and he has to performs his duties under the control of the Pradhan and not under the State Government. One of the basic criteria, therefore, in the matter of determination as to the existence of the relationship of master and servant, namely the master shall have control over the duties of his servant and for the performance of his duties the servant would be responsible to the master and he will render service to the master are totally absent in the instant case.
68. It is worthnoting in this connection the view of the Supreme Court expressed in the case of Raja Bahadur K. C. Deo Bhanj v. Raghunath Mishra and Ors. , that there is a distinction between "serving under the Government" and "in the service of Government" because while one may serve under a Government, one may not necessarily be in the service of the Government and under the latter expression one not only serves under the Government but is in the service of the Government and it imports the relationship of master and servant. In the said case Supreme Court was considering the question as to whether a Sarpanch of a Gram Panchayat constituted under the Orissa Gram Panchayat Act, 1948 can be said to be a person in service of the State of Orissa. In the said case, the Supreme Court while interpreting the Orissa Panchayat Act, after taking note of the fact that the Sarpanch who is the executive head of a Gram Panchayat could be removed by the State Govt. in consideration of other factors held that he was not a government servant and there is a distinction between the service under the Govt. and service in the Govt. as aforesaid.
69. The Supreme Court further observed in the said case thus :
"There are, according to Batt (on the law of Master and Servant), two essentials to this relationship ; (1) the servant must be under the duty of rendering personal services to the master or to others in his behalf and (2) The master must have the right to control the servant's work either personally or by another servant or agent and, according to him.
'It is this right to control or interference, of being entitled to tell the servants when to work (either the hours of service) or when not to work, and what work to do and how to do it (within the terms of such service) which is the dominant characteristic in this relation and marks off the servants from an independent contractor or from one employed merely to give his empower to fruits or results of his labour. In the later case, the contractor or performer is not under his employer's control in doing the work or effecting the service ; he has to shape and manage his work so as to give the result he has contracted to effect. Consequently a jobbing gardener is no more the servant of the person employing him than the doctor employed by a local authority to act as visiting physician to its fever hospital".
70. A Division Bench of this Court in the case of Gowardhan Das v. Calcutta Municipality presided over by Hon'ble Mr. Justice P. N. Mooker-jee while considering the question whether Commissioner of Calcutta Corporation can be said to be a Government's servant held, following the aforesaid decision of the Supreme Court in the case of K. C. Deo Bhanj v. Raghu-nath Mishrd that Commissioner Qua-Commissioner cannot be held to be a servant of the Government, although the Commissioner of the Calcutta Corporation under the then Calcutta Municipal Act, 1951 was appointed by the State Government on the recommendation of the State Public Service Commission and upon such terms and conditions as the State Government determined and although the power of removal also of the Commissioner vested with the State Government. The fact that inspite of such control exercised by the State Government, there was no control of the State Government in the matter of discharging of his duties as Commissioner, was one of the factor which was taken into consideration by the Division Bench to decide that the Commissioner was not in service of the Government and there was no relationship of master and servant.
71. The relevant extract of the said judgment of the Division Bench is quoted hereunder :
"The above statutory provisions indicate some kind of State's control over the Commissioner but this is limited to his appointment, to the terms and condition of the same, to his removal and to his functions outside the office of the Commissioner. They do not in any manner control or affect the discharge of his duties under his appointment as Commissioner and leaves him free in the matter and free from interference or control of the State Government. In this state of things, it is difficult to maintain that the Commissioner of the Corporation is in the service of the State.
Indeed, this aspects would be clear, if we bear in mind, the distinction between 'serving under the Government' and 'in the service of the Government' as explained by the Supreme Court in the case reported in Raja Bahadur K.C. Deo Bhanj v. Raghunath Misra where for being in the service of the Government, two essentials of the relationship of the master and servant were held to be necessary. The servant must be under the duty of rendering personal service to the master or to others in his behalf and the master must have a right to control the servant's work, either personally or by another servant or agent. Neither of these two elements would be present in the instant case-in any event, the element of control envisaged therein, would not be present-the Commissioner Qua-Commissioner cannot be held to' be in the service of the Government. The Commissioner also cannot be said to be in the pay of the Government, because as provided in Section 20 of the Calcutta Municipal Act, his salary is to be paid out of the Municipal Fund, which under Section 115 of the said Act is made up, of monies realised or realisable under the said Act (other than the fines levied by Magistrates) and all monies other wise received by the Corporation. This fund is certainly not any part of the Governmeint or State Exchequer and cannot be said to be belonging to the State."
72. It is pertinent to note that the Supreme Court in one of its recent decisions in the case of Federation of Directly Appointed Officers of Indian Railways and Ors. v. Union of India (following the Constitution Bench decision of the Supreme Court in the case of Direct Recruit Class II Engineering Officers Association v. State of Maharashtra disapprove the practice of scrutinising an eariler decision of the Court, given after careful consideration for finding out any possible error. In the said case the Supreme Court declined to do so in the view that the same is judicial indiscipline. In the aforesaid case before the Supreme Court, the writ petitioners raised an issue, which was already settled by the Supreme Court in the case of Katyani Dayal v. Union of India . It was contended on behalf of the petitioner inter alia that the issue requires fresh examination as, since the aforesaid decision of the Supreme Court in the case of Katyani Dayal the development of law specially in the concept of article 14 of the Constitution has gone a long way. It was further contended that Katyani Dayal's case upholding the creation of temporary posts outside the service was on the basis which has since been eroded and "equal pay for equal work" with equality in all other conditions of service including avenues of confirmation, absorption, promotion pension and security have become inflexible postulates of service jurisprudence. Rejecting the aforesaid contention the Supreme Court held thus :
"We are unable to make any headway or act in judicial indiscipline towards widening the scope of these matters in the face of the Constitution Bench decision of Direct Recruits case (supra). Amongst the conclusions summed up by the Constitution Bench conclusion (J) and (K) seal the fate of these matters. These are (at p. 1628).
"(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of service to unsettle a settled position.
"(K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructing res judicata if the same has been earlier decided by a competent Court by a judgment which became final".
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A dispute now sought to be raised under Article 32 of the Constitution between the Officers in a representative capacity and Engineers across also in a representative capacity must be held to be barred by principles of res judicata as also in the rule of constructive res judicata. The cases aforementioned relied upon by learned Counsel for a petitioners/appellants do not remove thus hurdle, however, broadly may Articles 14 and 16 be viewed and expanded. It is thus unnecessary to elaborate those cases and discover their ratio. The argument of learned Counsel for the appellant that the State is prohibited to create separate channels of service and create discrimination by making one as an isolated one, and not providing for promotional avenues reasonably, falls to the ground in view of the bar of re-agitation erected by Direct Recruit's case (supra).
73. Applying the said principle laid down by the Supreme Court in the instant case we are of the view that the decision of the earlier Division Bench of this Court in the aforesaid case of Director of Panchayats v. Manick Gopal Mondal already having held, after careful consideration of all aspects of the matters, that the Secretary of a Panchayat is not a Government servant and does not hold a civil post and no relationship of master and servant exists between the State Govt. and such a Secretary and the Special Leave Petition against such decision having been dismissed, such judgment should be respected rather than scrutinised for finding out a possible error, which will also be in the interest of judicial discipline. The writ petitioners, in our view, have also failed to satisfy us that the aforesaid decision of the earlier Division Bench requires reconsideration.
In the result, the writ petition fails and the same is hereby dismissed. There will be no order as to costs.
Mr. Hirak Kumar Mitra, the learned Advocate for the petitioner has asked for certificate of appeal to Supreme Court. There is no substantial question of law of general inportance involved in this appeal. We therefore, refuse to grant Certificate for appeal to the Supreme Court.
Prabir Kumar Majumdar, J.
74. I agree.