Gujarat High Court
Vaisaji Amraji Solanki & 12 vs State Of Gujarat & 4 on 4 August, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8890/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8890 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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 ?
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VAISAJI AMRAJI SOLANKI & 12....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1
MR TUSHAR MEHTA, ADVOCATE for the Petitioner(s) No. 1
MR. PARIKH, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1 ,
5
MR GM JOSHI, ADVOCATE for the Respondent(s) No. 4
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
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Date : 04/08/2016
ORAL JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the writ applicants, serving with the Gram Panchayat, have prayed for the following reliefs;
"(A) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction may kindly be granted directing the respondents to treat the petitioners as regular employees in the set up of the respondent No.4 panchayat.
(AA) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction may kindly be issued quashing and setting aside the termination orders at ANN. G (Collectively) and termination orders with respect to each of the petitioners declaring the same to be illegal, arbitrary and violative of Art.14,19 & 21 of the Constitution of India.
(B) A writ of prohibition or a writ in the nature of prohibition or any other appropriate writ, order or direction may kindly be granted restraining the respondents from terminating the services of the petitioners or changing their service conditions in any manner whatsoever.
(C ) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction may kindly be granted quashing and setting aside the impugned directions at Annexures G & H and restraining the respondents, their officers, agents and servants from terminating the services of the petitioners.
(D) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction may kindly be granted declaring that the petitioners' services are regularised in view of the Government Resolution at Annexure-A. (DD) Pending the admission, hearing and final disposal of Page 2 of 74 HC-NIC Page 2 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT this petition, an interim injunction may kindly be granted staying the operation, implementation and execution of the termination orders issued by the respondent No.4 with respect to each of the petitioners and restraining the respondents, their officers, agents and servants from causing any interference, obstacle, hinderence or hurdle in the petitioner working on their respective posts.
(E) Pending admission, hearing and final disposal of this petition, an interim injunction may kindly be granted staying further operation, execution and implementation of the impugned directions at Annexures G and H and restraining the respondents, their officers and agents from terminating the services of the petitioners.
(F) Pass such other and further orders as may deem fit in the interest of justice."
2. The case of the writ applicants may be summarized as under;
2.1 The respondent No.4, i.e., the Saij Gram Panchayat, is a Panchayat, duly constituted under the provisions of the Gujarat Panchayats Act. At the relevant point of time, the Panchayat resolved to impose and collect the octroi. The necessary legal procedure in that regard was undertaken by the Panchayat.
2.2 The District Development Officer, vide order dated 11th April, 1983 sanctioned the levy of the octroi. The Saij Gram Panchayat is adjacent to the Kalol Taluka and Santej Industrial Estate. The Panchayat decided to augment its revenue as the main income by imposition of the octroi tax.
2.3 The Panchayat, therefore, for the said purpose, published an advertisement dated 15th April, 1983 inviting applications from the candidates interested for being appointed as the Octroi Clerks as well as the Peons. It is the case of the writ Page 3 of 74 HC-NIC Page 3 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT applicants that as they all were eligible, they applied with the Panchayat. They all were interviewed and by an order dated 18th April, 1989, they came to be appointed by the Panchayat.
2.4 Having worked continuously from 1983 to 2002, they put forward their claim of being regularized in the service. At that point of time, with the change in the elected body of the Panchayat, they also apprehended termination, as according to the writ applicants, it was a political move.
2.5 In such circumstances, they had to come before this Court by way of this writ application.
2.6 On 4th September, 2002, the following order was passed;
"Leave to amend. Leave to join the Development Commissioner, Gujarat State, Gandhinagar as respondent No.5. Notice returnable on 1st October, 2002. In the meantime, if respondent No.5-Development Commissioner has not decided the request made in the communication dated 24.1.1997 (Annexure "J" - pg. 46), pendency of this petition does not preclude the Development Commissioner from deciding the same. In view of the statement contained in the petition that the petitioners are in employment since 1983, there shall be ad-interim relief in terms of para 6(DD). Affidavit in reply shall be filed by 24.9.2002. Direct Service is permitted and shall be effected by 7.9.2002. "
2.7 On 15th December, 2004, the following order was passed;
"Rule, returnable in the first week of March 2005. Ad- interim relief granted earlier to continue. However, it is clarified that the expenditure for payment of salary of the petitioners will be borne by the respondent No.4 Panchayat as State Government is not to give any grants towards the salary of the petitioners."Page 4 of 74
HC-NIC Page 4 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT 2.8 Thus, it appears from the two orders referred to above that their services were protected.
2.9 The interim order continues as on date, and some of the writ applicants are still in service as on date.
2.10 Out of the 13 writ applicants, the writ applicant No.5 resigned in the year 2014, the writ applicant No.10 passed away in 2004 and the writ applicant No.13 also resigned in or about the year 2010. The writ applicants Nos.1 to 8 were appointed on 19th April, 1983, whereas the writ applicants Nos.9 to 13 were appointed on 28th December, 1983, 10th February, 1984, 31st August, 1985, 30th November, 1989 and 12th November, 1997 respectively.
2.11 In the year 1996-97, the respondent No.4- Panchayat passed a resolution to pay salary to its employees in accordance with the 4th Pay Commission (which was effective from 1st January, 1986) with effect from 1st April, 1997. The writ applicants, as on date, are being paid the salary according to the 4th Pay Commission. (Desai Pay Commission) 2.12 As there was a dispute with regard to the benefits of the pay commission, the writ applicants filed a reference under section 10 of the I.D. Act, in which an interim order was passed by the Labour Court, Kalol dated 27th August, 1999. However, the Panchayat did not comply with the same and passed a resolution dated 12th November, 1997 in that regard, which was made a subject matter of challenge by filing the Special Civil Application No.8663 of 1997.
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2.13 The Special Civil Application No.8663 of 1997 was allowed in the following terms;
"Rule. Mr. Vakharia, learned advocate, for the respondent waives service of rule.
2. Ashwinkumar Hariprasad Dave and others, petitioners have filed this petition in which the petitioners prayed that the petitioners have not been given any opportunity of hearing before withdrawing the said allowance granted from 1.4.1997. He has also referred to the government resolution passed by the Panchayat on 6.7.1996, wherein the petitioners have been paid salaries from 1.4.1997 till 31.10.1997. He has also alleged that the government employees have been paid as per the Fourth Pay Commission recommendations from 1.4.1997. When the matter was placed for hearing this Court (Coram: H.L. Gokhale, J) has passed a short, but speaking order on 2.12.1997, in which the learned judge has observed that:
"On perusing the Resolution one does not know what is the objection raised and considered by the gram panchayat. It also appears that the employees have not at all been taken into confidence or have been given any opportunity of making any representation against this proposed reduction in salary. In the circumstances, issue notice to the respondents returnable on 16th December, 1997. In the meanwhile and until further orders, the respondents will not act on the Resolution No. 33 dated 12.11.1997 as also the letter dated 26th November, 1997 and shall continue to pay their salaries including that of the month of November, 1997 as per the Fourth Pay Commission recommendations which the first respondent
- gram panchayat had earlier accepted. Direct service is permitted."
3. Mr. A.K. Clerk, learned advocate for the petitioner now produced judgement and award of the Labour Court, Kalol, North Gujarat, dated 27.5.1999 in Reference (LCKD) No. 7/1984 below Exh. 10 where the Labour Court has directed that interim relief as per Exh. 10 be given to 16 employees from 1.9.1994 as per Fourth Pay Commission recommendation and also dearness allowance be paid. The Labour Court ordered to pay the Page 6 of 74 HC-NIC Page 6 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT said amounts within two months from that day. The learned advocate for the petitioner states that the award of the Labour Court has been implemented and the same has not been challenged by the respondents in any further proceedings. In view of the same, nothing survives in this petition. Mr. Vakharia, learned advocate for the respondents also confirms this aspect in this behalf.
4. The learned counsel for the petitioner states that originally the panchayat has passed a Resolution dated 20.8.1996 in which the panchayat had decided to grant Fourth Pay Commission recommendations. He further states that subsequently the panchayat has by another Resolution dated 12.11.1997 wherein the panchayat decided to recover arrears which have been given to the employees. In view of the aforesaid judgement of the Labour Court, Resolution dated 12.11.1997 cannot be implemented and enforced as the same is contrary to and inconsistent with the aforesaid judgement and award of the Labour Court. The said Resolution is therefore required to be quashed.
5. In view of the fact that when the panchayat has accepted the award of the Labour Court, there is no need to file any counter affidavit or affidavit-in-reply on behalf of the panchayat.
6. In the result, the petition is allowed. The Resolution dated 12.11.1997 Annexure-F passed by the Panchayat is quashed and set aside. The respondents are directed to continue to pay salary to the petitioners as per the Resolution dated 20.8.1996 regularly in view of the judgement of the Labour Court, Kalol. Rule is made absolute accordingly."
2.14 In the year 2002, when there was an imminent threat of their services being terminated, the administrator of the Panchayat made himself very clear that the services of the writ applicants were required, otherwise, it would be very difficult to provide the services like water supply, streetlight, sanitation etc. Despite the same, the termination orders were passed without assigning any reasons except stating that the Page 7 of 74 HC-NIC Page 7 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT appointments of the writ applicants were irregular. Hence, this writ application.
3. Mr. Pujara, the learned counsel appearing for the writ applicants vehemently submitted that his clients are in service from 1983 onwards. They are being paid the salary in accordance with the 4th Pay Commission. The orders of termination are per se illegal and politically motivated. According to Mr. Pujara, not only the impugned orders of termination deserve to be quashed, but this Court may also issue a mandamus for regularization of the services of the writ applicants.
4. Mr. Pujara invited my attention to a communication dated 9th September, 1996 of the State Government for the purpose of approving the appointments made by the Gram Panchayats between 10th July, 1978 and 5th June, 1984. According to him, such communication was issued in view of the judgment of the Supreme Court in the case of State of Gujarat vs. Ramanlal K. Soni, 1983(1) GLR 708 (SC). According to Mr. Pujara, his clients are entitled to seek regularization and all the consequential benefits of pay scales and retiral benefits.
5. Mr. Pujara has placed reliance on a very recent pronouncement of the Supreme Court in the case of Harijan Paniben Dudabhai vs. State of Gujarat & Ors., Civil Appeal No.5441 of 2016, decided on 1st July, 2016.
6. According to Mr. Pujara, his clients are also entitled to seek regularization in view of the observations made in Para- 53 of the Supreme Court's judgment in the case of Umadevi Page 8 of 74 HC-NIC Page 8 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT (3), reported in 2006(4) SCC 1 as well as the State of Jharkhand vs. Kamal Prasad, 2014(7) SCC 223. According to Mr. Pujara, his clients have rendered more than 10 years of service without any protection or orders of the Court. Their appointments were made on the vacant sanctioned posts and they all were qualified for the said posts.
7. Mr. Pujara lastly pointed out that during the pendency of the writ application, the respondent No.4-Panchayat has passed a resolution dated 31st August, 2012 for continuing the writ applicants in service and for paying salary out of their own funds. In such circumstances referred to above, Mr. Pujara prays that there being merit in this writ application, the same may be allowed and the reliefs prayed for be granted.
8. Mr. G.M. Joshi, the learned counsel appearing for the Pancyahat, by and large, supported Mr. Pujara. According to Mr. Joshi, the writ applicants, at the relevant point of time, were appointed after following the due process of law. They all were appointed on the vacant sanctioned posts. They all were duly qualified to hold the posts.
9. Mr. Joshi further submitted that his client has passed the resolution referred to above to continue the writ applicants in service, as their services are very much required. In this regard, Mr. Joshi has tendered an additional affidavit on behalf of his client, which reads as under;
"1. The present petition is preferred by 13 petitioners who are engaged by the respondent Panchayat between 1983 and 1985. Their services were sought to be terminated as per the impugned orders passed by the Page 9 of 74 HC-NIC Page 9 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT Administrator under directions of Superior Authorities. They are protected by interim orders passed by his Hon'ble Court and are continued in service as on date.
2. In the meantime, the Panchayat has passed a resolution on 31.08.2012, copy of which is produced by the petitioner at page no.64 of the paper-book, whereby, it is unanimously decided by the Panchayat to continue the petitioner on duty and to pay their salaries from the funds of the Panchayat. From whatever record of the Panchayat that was available for my perusal. I can state that no advertisement is ever issued by the Panchayat in past, whereby any applications were invited for filing in any posts in the Panchayat. All the appointments are made by the Panchayat from amongst the applications received by the Panchayat from the unemployed youth of the Panchayat area. I have further found out that none of the petitioners are related to any elected member or Sarpanch. At this stage, I further submit that out of 13 petitioners, one petitioner being petitioner no.10 has expired, petitioner no.5 and 13 have resigned from service and have gone away voluntarily and only 10 petitioners are working with the Panchayat. I have also ascertained that some of the petitioners have attained the age of superannuation, but are continued in the services.
3. I state that as the petitioners who are continued in service have assured the Panchayat that they would not demand any benefit of recommendation of an pay commission in the form of increase in the salary and allowances from the Panchayat, the Panchayat has taken a conscious decision to continue their service on the same terms. I respectfully submit that in view of the above and in view of the facts that no additional financial burden is likely to be there on the Panchayat, the answering respondent Panchayat does not have any objection if the petitioners are continued in service on the same terms on which they are working."
10. On behalf of the State Government, the learned AGP has opposed this writ application. According to the learned AGP, this Court should not issue any writ for regularization of the services of the writ applicants. According to the learned AGP, Page 10 of 74 HC-NIC Page 10 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT at the relevant point of time, the Panchayat had appointed the writ applicants without any prior sanction or approval of the competent authority. An affidavit-in-reply has been filed on behalf of the respondent No.1, duly affirmed by the Undersecretary, Panchayats Rural Housing and Rural Development Department, inter alia, stating as under;
"4. I say that the appointment of the petitioners were not made in accordance with the rules of the department and the appointment is not on the regular vacant post. I say that Gram Panchayat has appointed the petitioners without obtaining the prior permission of the competent authority in this behalf and, therefore, the appointments are illegal. I say that in view of the guidelines issued by the Panchayat Department of the State Government's letter dt. 9.9.96 addressed to District Development Officer and in view of the Gujarat Panchayat Regulation in 3rd Amendment, 1978, the appointments made from 10th July, 1978, to 5.6.1984 can be considered if such appoints are made on set up approved by competent authority as per followed due procedure.
I say that petitioners involved in the petition were appointed after 5.6.84 and the set up is not sanctioned by the respondent. In view of the advertisement No.2/83- 84, which was displayed on the notice board of the Gram Panchayat, wherein, on adhoc basis, the appointments were made in the Octroi Department. I say that the said requirement was not, however, published in the local newspaper and procuedre in the form of interview was also not held. Therefore, the appointments are not under the provisions of section 23 of the Gujarat Panchayat Act, 1961. I say that such irregular appointments cannot regularized. Such backdoor entry dehores the rules is not permitted.
5. I say that in view of the various provisions of the Panchayat Act and also guidelines issued in this behalf and in view of the resolution dated 14th September, 1993, the Panchayat has to incure the expenses towards the establishment within its limit i.e. not exceeding 45% of its annual income. I say that if the expenses are on a Page 11 of 74 HC-NIC Page 11 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT higher side in breach of guidelines, for that, the respondents are not responsible.
6. I say that Octroi is abolished with effect from 1 st May, 2001. I say that in view of the judtement of this court in Special Civil Application No.9264 of 1993, if, the appointments are not made regular, the question of granting benefits does not arise and the Nagar Panchayat/Gram Panchayat under section 204 of the Act has to incure the expense of its own and the Government is not responsible for the said illegal act committed by the Nagar Panchayat/Gram Panchayat, which is in violation of the settled policy laid down by the present respondent in this behalf. I say that the Hon'ble Supreme Court in the following two judgments (1) AIR 1996 page 1565 and (2) 1997 (4) Supreme Court Cases page 88 has categorically held that the appointment of Rojamdars are not regular appointment and, therefore, the question of regularization does arise at all. The Hon'ble Court Supreme Court has also held that no direction can be issued for reinstatement in the matter of Rojamdar because such directions can be issued only against the regular vacant post.
11. In such circumstances referred to above, the learned AGP prays that there being no merit in this writ application, the same maybe rejected.
12. 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 reliefs prayed for in this writ application.
13. The following facts are not in dispute;
(i) In the year 1983, the Panchayat resolved to levy the octroi. For that purpose, it needed manpower. It thought fit to issue an advertisement for the appointment on the post of the Page 12 of 74 HC-NIC Page 12 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT Octoi Clerks and Peons.
(ii) The authority concerned permitted the Panchayat to levy the octroi.
(iii) Many applications were received by the Panchayat in response to the advertisement, and all the candidates were interviewed.
(iv) The writ applicants were all found eligible for being appointed on the posts.
(v) The writ applicants were appointed in 1983. There was no problem upto the year 2002. For the first time, in 2002, on account of some political move, a decision was taken to terminate the services of all the writ applicants.
(vi) The administrator of the Panchayat opposed the termination on the ground that their services were very much required, otherwise, the people would have to suffer.
(vii) In 2002, this Court passed an interim order, protecting the services of the writ applicants.
(viii) The interim order has continued till this date.
(ix) In the wake of the additional affidavit-in-reply filed today by the Panchayat, a decision has been taken to continue the writ applicants in service and their salary would also be paid from the funds of the Panchayat. Of course, the Panchayat, in the reply, has disputed the issue of advertisement at the Page 13 of 74 HC-NIC Page 13 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT relevant point of time. However, I may not go into this issue at this stage.
(x) The fact that the Panchayat needs the services of the writ applicants and has agreed to continue them in service and pay them the salary from their own funds, the orders of termination should go.
14. Therefore, I am of the view that so far as the impugned orders are concerned, they deserve to be quashed.
15. I shall now consider the prayer of the writ applicants as regards the regularization in service.
16. Let me first look into the case law, which has been relied upon by Mr. Pujara. In R.K. Soni (supra), the issue before the Supreme Court was with regard to the status of the employees serving with the different Panchayats. This Court, in Ramanlal Keshavlal Soni & Ors. vs. State of Gujarat, AIR 1977 (Guj.) 76 held that the Panchayat service was a State service. The High Court, in that case, allowed the writ petition holding that the members of the Panchayat service belonging to the local cadre were Government servants and directed the State Government for revision of pay scales, payment of amount payable to them as a consequence of the rationalization or revision of pay scale etc. The State Government, being dissatisfied with the judgment of this Court, preferred an appeal before the Supreme Court. During the pendency of the appeal before the Supreme Court, the Gujarat Panchayats (3rd Amendment) Act, 1978 was passed with a view to undo the basis of the decision of the High Court. The writ petitions Page 14 of 74 HC-NIC Page 14 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT were, therefore, filed against the State Government, challenging the constitutional validity of the amending act. While dismissing the appeal filed by the State Government and allowing the writ petitions against the reverting of the directions issued by this Court, the Supreme Court observed as under;
" Sec. 203, as it stood before it was amended in 1978, provided for the constitution of a Panchayat Service for the purpose of bringing about uniform scales of may and uniform conditions of service for persons employed in the discharge of functions and duties of Panchayats. Such service, it was declared, shall be distinct from the State Service. The panchayat service was to consist of such classes, cadres and posts and the initial strength of officers and strength of such classes cadres and posts was to be such as the State Government might determine from time to time. District Panchayats were empowered to alter, with the previous approval of the State Government, any class, cadre or number of posts determined by the Government. The cadres were to consist of district cadres, taluqa cadres and local cadres. A servant belonging to a district cadre was liable to be posted, whether by promotion or transfer, to any post in any taluqa or of the district. A servant belonging to the taluqa cadre was liable to be posted whether by promotion or transfer to any post in any gram or nagar in the same taluqa. A servant belonging to a local cadre was liable to be posted whether by promotion or transfer to any post in the same gram or nagar. In addition to the posts in the district taluqa and local cadres, a panchayat might have such other posts of such classes as the State Government may, by general or special order, determine such posts being called 'deputation posts'. They were to be filled in accordance with the provisions of Sec. 207. The State Government was empowered to make rules regulating the mode of recruitment either by holding examinations or otherwise and conditions 301 of service of persons appointed to the panchayat service and powers of appointment, transfer and promotion of officers and servants in the panchayat service and disciplinary action against such officers and servants.
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The rules were required to make provision entitling servants of such cadres in the Panchayat Service to promotion to such cadres in the State service as may be prescribed. The rules were also required to provide for inter-district transfer of servants belonging to the panchayat service.
Subject to the rules made under Sec 203, appointment to posts in the panchayat service, Sec. 205 provides, shall be made by direct recruitment by promotion or by transfer of a member of the State service to the panchayat service. Sec. 206 obliges the State Government by general or special order to allocate to the panchayat service: "(i) such number of officers ar d servants out of the staff allotted or transferred to a panchayat under sections (157, 158 and 325) as it may deem fit, (ia) all officers and servants of the municipalities dissolved under Sec. 307, (ii) all officers and servants in the service of district local boards and district school boards immediately before their dissolution under this Act and transferred to the panchayats under secs. 155 and 326". It is further provided that officers and servants so allocated shall be taken over by such panchayats in such cadre and on such tenure, remuneration and other conditions of service, as the State Government may determine. Sec. 204 provides that, subject to the rules which the State Government may make, the expenditure towards the pay, allowances and other benefits allowed to an officer or servant of the panchayat service serving for the time being under any panchayat shall be met by that panchayat from its own fund. Sec. 207 enables the State Government to direct the posting of officers of the Indian administrative service and of Class II services of the State under panchayat institutions. Sec. 208 enables a panchayat to obtain the services of any officer of Government on loan. Sec. 210 provides for the constitution of a Panchayat Services Selection Board and Sec. 211 provides for the constitution of District Panchayat Service Selection Committees and District Primary Education Staff Selection Committees.
The broad and general picture that we have on a perusal of the relevant provisions of the Act, as it stood before it was amended in 1978, is that the Gujarat Legislature aimed at the democratic decentralization of important Page 16 of 74 HC-NIC Page 16 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT governmental functions by vesting 302 such functions in gram, nagar, taluqa and district panchayats (see Sec. 88 read with Sch. I, Sec. 117 read with Sch. II and Sec. 137 read with Sch. III) and, besides, by enabling the State Government to transfer other powers, functions and duties to the Panchayat institutions (see Secs. 89, 149, 150, 155, 156, 157 and 158). A perusal of the lists of subjects entrusted to the Panchayat Institutions shows that they are not merely the ordinary run of subjects entrusted to municipal bodies, such as, public health, sanitation, etc, but they include a great variety of subjects intimately connected with all aspects of community life and vital to it, except functions, such as, law and order, administration of justice and the like. Even part of the revenue administration is entrusted to panchayat institutions, as evident from the fact that collection of land revenue is one of the duties of the gram panchayats under the Act. Since decentralisation was not to mean mere chaotic fission and confusion, a three-tier organisation was set up, subject to the overall control of the Government and it was as if a parallel but subsidiary or subordinate Government was set up by the Government itself to discharge some of its functions. Not merely were the panchayat institutions required to discharge governmental functions, the organisation and its three-tier units were to have very close links with the Government at every twist and turn, as it were. The property of the panchayats was that which previously belonged to the Government but came to be vested in them or transferred to them and the funds of the panchayats were those to be provided substantially by way of. contribution or loan by the Government. The Government was not only empowered to make the rules to carry out the objects of the Act. but also to issue directions from time to time to all or any of the panchayats. The Government was also, empowered to cause inspection to be made and, further, to call for the proceedings of the panchayat, to satisfy itself as to the legality or propriety of any order made by the Panchayat. For the purpose of efficiently discharging the functions and duties of the various panchayat institutions and havining regard to the three-tier system which had been established, it was apparently thought necessary to constitute a panchayat service, the members of which would have uniform scales of pay and uniform conditions of service. So a single centralised Panchayat Service was Page 17 of 74 HC-NIC Page 17 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT constituted which was to be 'distinct from the State Service'. The distinction lay in that it was a service parallel to the State Service and not in that the members of the service were not Government servants. The question 303 whether the members of the panchayat service are Government servants or not is the principal question to be answered in the appeal and we will come bark to it again later.
After the coming into force of the 1961 Act, several sets of rules were promulgated and orders were made which concerned the Gujarat Panchayat Service. One such order was that made on January 2, 1967 under Sec. 203 (2) directing that the Panchayat service shall consist of district cadre, taluqa cadre and local cadre and further specifying the posts which belonged to each of the cadres. Amongst the rules made were the Gujarat Panchayat Service (Absorption, Seniority, Pay. and Allowances) Rules, 1965, which provided for the equation of posts, fixation of seniority, scales of pay and allowances of "allocated employees". "Allocated employees' were defined in the rules to mean persons allocated to the panchayat service under the provisions of Sec. 206 (i). The rules provide that every allocated employee holding a corresponding post, immediately before the appointed day, shall be appointed to the equivalent post. Equivalent post is defined to mean a post in the panchayat service, which the State Government may, by order, determine to be generally corresponding to a post held by an allocated employee immediately before the appointed day (called corresponding post) having regard to the pay scales, the minimum educational and other qualifications prescribed for the equivalent post and the corresponding post and the nature and magnitude of responsibilities attached to such posts. Therefore, unless equivalence of posts is first determined, by order, by the Government the Gujarat Panchayat Service Absorption Seniority Pay and Allowances Rules, 1965 cannot be effectively applied.
Even so, the State Government did not make any order regarding equation of posts of the staff in the local cadre and the fixation of their scale of pay, although such orders were made in respect of posts of other cadres. The State Government did not also extend to the staff borne on the local cadre of the panchayat service the Page 18 of 74 HC-NIC Page 18 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT benefit of revision of scales of pay, etc. which were made on the basis of the recommendations of the two Pay Commissions, though such benefit was extended to the District and Taluqa cadres; nor did the Government make any order providing for promotional avenues to employees of the local cadre. Aggrieved by the deaf ear turned to their representations, certain ex-municipal employees now included in the local cadre of the Panchayat Service, for themselves and on behalf 304 of other ex-municipal employees now in the local cadre of the Panchayat Service, filed a Writ Petition in the High Court of Gujarat seeking various reliefs. The Writ Petition was resisted by the State of Gujarat and the Development Commissioner on the principal ground that the members of the Panchayat Service were not Government servants and therefore, they were not entitled to claim the reliefs asked by them. The High Court of Gujarat allowed the Writ Petition holding that the members of the panchayat service belonging to the local cadre were Government servants and directed the State Government .
"(1) To make suitable orders under the Gujarat Panchayat Service (Absorption, Seniority, Pay and Allowances) Rules, 1965 as regards the equivalence of posts, fixation of pay scales for such posts, fixation of the petitioners and the person to whom they represented an appropriate stage in such pay scales and other incidental matters covered by the said rules and to give effect to such orders from the date of allocation of the petitioners and the persons whom they represent to the Panchayat Service, that is to say, from February 11, 1969.
(2) To initially fix the pay scales and allowances and other conditions of service, including the grant of house rent allowance, compensatory local allowance, leave benefits, medical benefits, retirement benefits, etc. Of the petitioners and the persons whom they represent in the equivalent posts in the Panchayat Service in accordance p with the provisions of the Gujarat Panchayats Service (Absorption, Seniority, Pay and Allowances) Rules, 1965 and simultaneously give to them the benefit of such of the accepted recommendations of the First Pay Commission (Sarala Commission) in the said matters as were extended to the other officers and servants of the Panchayat Service; alternatively, having Page 19 of 74 HC-NIC Page 19 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT initially fixed the pay scales, allowances and other conditions of service in the equivalent post in accordance with the said rules, to revise subsequently such pay scales and other conditions of service as per the accepted recommendations of the First Pay Commission (Sarala Commission) in the said matters with effect from February 11, 1969.
(3) To further revise the pay scales and allowances and other conditions of service, including the grant of house rent allowance, compensatory local allowance, leave benefits, medical benefits, retirement benefits, etc. of the Second Pay Commission (Desai Commission) in the said matters and to give effect to such revision on and with effect from January 1, 1975.
(4) To extend to the petitioners and the persons whom they represent the benefit of interim relief in the same manner in which such benefit was extended to the other officers and servants of the Panchayat Service.
(5) To pay to the petitioners and the persons whom they represent the amount payable to them as a consequence of the rationalisation or revision of pay scale and allowances and other conditions of service in pursuance of the directions contained in clauses (I) to (4) hereinabove.
(6) To consider the question of making suitable provisions in the Gujarat Panchayats Service (Promotion to Cadres in State Service) Rules, 1974 or by framing appropriate Rules for promotion of the ex-municipal staff of the Panchayat Service to consider the question of providing to such staff, by framing appropriate rules, pro motional avenues to the other two cadres in the Panchayat Service, namely, the taluka cadre and the district cadre".
The State Government and the Development Commissioner have filed the appeal which is now before us. But during the pendency of the appeal, in an effort to undo the basis of the decision of the High Court, the Governor of Gujarat promulgated the Gujarat Panchayats Amendment ordinance, 1978, later replaced by the Gujarat Panchayats (Third Amendment) Act, 1978. The constitutional validity of the Amending Act is questioned Page 20 of 74 HC-NIC Page 20 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT in the Writ Petitions by the exmunicipal employees now included in the local cadre.
The appeal was argued first as if the Amending Act had not been passed and the main question argued in the appeal was whether the members of the Panchayat service were Government servants. The Writ Petitions were argued next and the question argued in the Writ Petitions was about the constitutional validity of the Amending Act.
We have to first consider the question whether the members of the Gnjarat Panchayat Service are Government Servants. Earlier we have already said enough to indicate our view that they are Government Servants. We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not. Amongst the cases cited before us were Guru Govinda Babu v. Sankar Prasad Ghosal(1), State of Uttar Pradesh v. Audh Narasin Singh(2), State of Assam v. Shri Kanakchandra Dutt(3), Gurushantappa v. Abdul Khuddus(4) S.L. Aggarwal v. Hindustan Steel Ltd.(5) and Jalgaon Zila Parishad v. Duman Gobind and others(6). We have considered all of them and do not consider it necessary to refer to each of them.
We may now revert to the question whether the members of the Gujarat Panchayat Service are Page 21 of 74 HC-NIC Page 21 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT Government servants. First, we see that the duties which they are required to perform are in connection with those affairs of the State which are entrusted to the Panchayat Institutions, by the statute itself or by transfer by the Government under the statute. Next, the expenditure towards the pay and allowance of officers and servants of the panchayat service, serving for the time being under any panchayat has, no doubt, to be met by the panchayat from its own fund, but, as we have seen, the fund consists substantially of sums contributed or lent by the State Government and of the proceeds of any tax or fee imposed by or assigned to the panchayat under the Act. The imposition of a tax or a fee in the nature of a tax, as we know, is essentially a function of the State. So the salary and allowances of the servants and officers of the panchayat service are paid out of funds contributed or lent by the Government or raised by the discharge of an essential governmental function. Secretaries of Gram and Nagar Panchayats are to be appointed in accordance with the rules made by the Government, while the Taluqa Development officer is to be the Secretary of the Taluqa Panchayat and the District Development officer is to be the Secretary of the District Panchayat. Taluqa and District Development officers are, of course, officers of the State service. Gram and Nagar panchayats may have other servants, as may be determined under Sec. 203, but they have to be appointed by such authority as may be prescribed by the Government and their conditions of service shall be such as may be prescribed by the Government. Sec. 203, as already noticed by us, contemplates the constitution of a single centralised Panchayat Service, the classes, cadres and posts of which have to be determined by the Government from time to time. The mode of recruitment, whether by examination or otherwise, the conditions of service the powers in respect of appointments, transfers and promotions of officers and servants and disciplinary action which may be taken against them, are to be regulated by the rules made by the Government. The rules so made are particularly required to contain "a provision entitling servants of such cadres in the panchayat service to promotion to such cadres in the State service, as may be prescribed: vide Sec. 207 (4)
(a). this is an important provision. There cannot be any question of a rule providing for promotion from the panchayat service to the 17 State service unless the Page 22 of 74 HC-NIC Page 22 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT Panchayat Service is also a service under the State. Again Sec. 203 (5) requires that rules may provide for inter-district transfers of servants belonging to the panchayat service and the circumstances in which and the conditions subject to which such transfers may be made This provision along with the provisions of Sec. 203 which provide for the promotion and transfer of servants belonging to the district, taluqa and local cadres within the district taluqa and gram or nagar clearly show that the servants are not the servants of the individual panchayats but belong to a centralised service. Sec. 205 provides that appointments to posts in the Panchayat service shall be made (i) by direct recruitment, (ii) by promotion or (iii) by transfer of a member of the State service to the Panchayat service. This provision which enables an appointment to be made to a post in the Panchayat Service by transfer of a member of the State service necessarily implies that the panchayat service is also a service under the State. Secs. 157 and 158 provide for the transfer of certain functions performed by the Government to Panchayat Institutions together with funds and staff. Sec. 325, as we have already seen, provides that secretaries, all officers and servants in the employ of old village panchayats shall be secretaries, officers and servants of the new gram panchayats. It is not disputed that Talaties and Kotwals, who were Government Servants, were the Secretaries and officers of old village panchayats. Now, Sec. 206 (1) (I) provides for the allocation to the Panchayat service of such number of officers and servants out of the staff transferred to the panchayat under Sec. 157, 158 and 325, as the Government may deem fit. Sec. 206 (1) (iii) further provides for the allocation to the Panchayat service of such other officers and servants employed in the state service as may be necessary to enable the panchayats to discharge efficiently their functions and duties under the Act. Obviously this transfer and allocation of members of State services to the Panchayat service under Sections 157, 158, 325, 206 (1) (i) and 206
(l) (iii) will be impermissible unless the Panchayat service is also a service under the State. Otherwise, there would be a patent violation of the provisions of Art. 311 of the Constitution. Sec. 206A authorises a review of allocation within a period of four years and reallocation to the State service of these transfers under Sections 157 and 158. The very idea that there can be an allocation to the Page 23 of 74 HC-NIC Page 23 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT Panchayat Service from a State service and a reallocation from the Panchayat Service to the State Service is only consistent with the Panchayat Service also being a service under the State.
Considerable stress was laid by the Counsel for the State of Gujarat on the statement in Sec. 203 that such service (Panchayat Service) shall be distinct from the State service. We do not think this is to be interpreted as a disclaimer by the Legislature that the Panchayat service is a service under the State. All that it can possibly mean is that the Panchayat service is not a service which can be identified with other State Services for the reason that while the Panchayat service too discharges the duties connected with the affairs of the State, it does so not directly under the State but under the various Panchayat Institutions to whom are delegated or transferred certain functions of the State Government. Panchayat Service is distinct from a State Service because the Panchayat institutions whom it serves together constitute an almost parallel but subsidiary Government. It is only in that sense Panchayat Service is distinct from a State Service and not in the same that members of the service are not servants of the State.
It is also argued that the several Panchayat Institutions are declared to be bodies corporate by the Act and, therefore, their servants cannot be Government servants. We are unable to see any force in the submission. Government servants do not cease to be Government servants merely because, for the time being, they are allotted to different Panchayat Institutions and are paid out of the funds of those institutions. We have already explained why the servants belonging to the various cadres of the Panchayat service cannot be considered to be servant of individual panchayats. It is unnecessary to pursue the matter further.
We are, therefore, of the view that the Panchayat Service constituted under Sec. 203 of the Gujarat Panchayats Act is a civil service of the State and that the members of the service are Government servants. This very question had been decided by the High D Court of Gujarat more than 15 years back in G.L. Shukla and Anr. v. The State of Gujarat(1) and there appears no good reason to depart from the view then taken by the High Court. Bhagwati J., Page 24 of 74 HC-NIC Page 24 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT who spoke for the Court had said, "The Panchayat Service contemplated under the Act is as much a civil service of the State as the State Service. The legislature by enacting the Act provided for the establishment of the Panchayat organisation of the State and for the efficient administration of the Panchayat organisation, particularly in view of the fact that a large part of the service personnel would be drawn from different sources and would, therefore, be heterogeneous in composition with widely differing scales of pay and conditions of service, the Legislature felt that it would be desirable to have a separate civil service of persons employed in the discharge of functions and duties of panchayats with uniform scales of pay and uniform conditions of service and, therefore, with that end in view the Legislature provided for constitution of the panchayat service. All the provisions of the Act relating to the panchayat service point unmistakably and inevitably to one and only one conclusion, namely, that the panchayat service is one single service with the State as the master. The panchayat service is to be constituted by the State Government and its strength is also to be determined by the State Government. Sec. 203 subsec. (2) says that the panchayat service shall consist of such classes, cadres and posts and the initial strength of officers and servants in each such class and cadre shall be such as the State Government may be order from time to time determine ....
"The provisions of different cadres in the panchayat service and the transferability of persons employed in the panchayat service from a post in the district cadre to a post in any taluka in the district and from a post in the taluka cadre to a post in any taluka in the district and from a post in the taluka cadre to a post in any gram or nagar in the same taluka emphasize that the panchayat service is one single service with one master, namely, the State and each panchayat is not the master of the servant employed in the discharge of its functions and duties. It is difficult to imagine that the Legislature should have provided for transfer of servants from one master to another ............
"The mode of recruitment, the conditions of service and matters relating to appointments, transfers and Page 25 of 74 HC-NIC Page 25 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT promotions of persons employed in the panchayat service as also disciplinary action against them are all determined by the State Government and that is consistent only with the State being the master in the entire panchayat service. The mandatory provision for promotion from panchayat service to State service which is required to be made in the rules also shows that both the services are services of the State. There could be no question of promotion from one service to another if the masters in the two services were different. Then it would be a case of termination of one service and appointment to another .....
Then comes Sec. 206 which provides for making of an order of allocation to the panchayat service ....
"This provision relating to allocation of officers and servants under clauses (i) and (iii) does not contemplate any termination of service of such officers and servants or any fresh appointment to a new service. There is no concept of termination of the existing service and reappointment to a new service involved in the process of allocation: the concept is only of transfer from one service of the State to another without any break in the continuity cf service and that clearly postulates that both services are under the same master, namely, the State. Sec. 206A also reinforces this conclusion. It makes the initial allocation provisional and Permits the State to review the allocation within a period of four years from 1st April, 1963 .....
"It is not possible to believe that the officer or servant could have been intended by the Legislature to be treated like a chattel which can be tossed about from one master to another. The only reasonable way of looking at the matter seems to be and that conclusion is inevitable on the language of these provisions, that the panchayat service is a civil service of State like' the State service and since both the services are civil services of the State with the State as the master an officer or servant can be allocated from the State service to the panchayat service and reallocated from the panchayat service to the State service ....
"The conclusion which emerges from this discussion is that the panchayat service is a distinct and separate Page 26 of 74 HC-NIC Page 26 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT service set up for serving the Panchayat organisation of the State and it is as much a civil service of the State as the State service. The State can have many services such as State Service, police service, engineering service etc. and panchayat service as one of them. In the panchayat service, as in the State service, the State is the master and every officer or servant employed in the panchayat service is the servant of the State and not of the panchayat under which he may be serving for the time being. The panchayat service is one single service with the State as the master."
We entirely agree with the above observations of the learned Judge.
It was argued that the High Court was wrong in issuing directions for equation of posts, revision of pay scales and payment of salaries. We do not think that the High Court committed any error in issuing the directions which were consequential to its findings. The High Court had directed the State Government to discharge its statutory duty to make orders for the equation of posts and to extend the benefits arising out of the reports of the two Pay Commissions, which benefits bad been denied to the local cadre only. The obligation to make provision for the payment of salaries, allowances and other benefits to Government servants did not cease by their being allocated to Panchayat Institutions, notwithstanding that Sec. 204 places an obligation on the Panchayat under whom an officer or servant of the Panchayat service may service for the time being to meet the expenditure towards the pay, allowances and benefits available to such officer or servant. We do not have any doubt that the case was correctly decided by the High Court and that the appeal deserves to be dismissed with costs which we quantify at Rs. 15,000.
We then come to the Writ Petitions. As mentioned by us earlier the Gujarat Panchayats Act was amended during the pendency of the appeal in an effort to nullify the effect of the judgment of the Gujarat High Court. First, the Government promulgated an ordinance and next the legislature enacted the Amending Act.
Sec. I of the Amending Act stipulates the dates from which the various amending provisions must be deemed Page 27 of 74 HC-NIC Page 27 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT to have come into force. We shall refer to the dates from which some of the provisions are deemed to have come into force when we refer to those provisions.
By Sec. 2 of the Amending Act, original Sec. 11 (1) which declared that the Gram panchayats, Taluqa panchayats, District panchayats, Gram sabbas, Nagar Panchayats and Conciliation Panchas shall constitute the Panchayat organisation of the State of Gujarat was omitted and original Sec. 11 (2) which provided for the control of the State Government over panchayats directly or through their officers was made Sec. 11. It is extremely difficult to understand the omission of old Sec. 11 (1). The whole object of the Gujarat Panchayats Act is "democratic decentralisation of power and the consequent reorganisation of the administration of Local Government". The object is to decentralise and reorganise. So it was thought that Gram Panchayats, Nagar Panchayats, Taluqa Panchayats, District Panchayats, etc. should constitute the panchayat organisation of the State of Gujarat. The object of the Act is still the same, yet s. 11(1) has been omitted. Does it mean that there is a disbandment of organisation ? According to the Statement of objects and Reasons, the amendments were necessitated to get over the judgment of the Gujarat High Court that the Panchayat Service is a State Service. But surely that can't be a reason to go against the object of the Principal Act and to abandon the constitution of a State Panchayat organisation. No wonder it was described as an act of cutting the nose to spite the face. We may mention here that s. 2 is deemed to have come into force on February 24, 1962, the date on which the origina s. 11 came into force.
Sec. 3 of the Amending Act introduced substantial changes in s. 102. While the provision that there shall be a Secretary for every Gram panchayat and Nagar panchayat, who shall be appointed in accordance with the rules, was retained, a proviso was added in the following terms:
"Provided that where on account of conversion of municipality into a Gram panchayat or a Nagar panchayat under. s. 307, an officer of a municipality becomes a Secretary of such panchayat or where any person not being a Talati-cum-Panchayat Secretary is Page 28 of 74 HC-NIC Page 28 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT appointed as a Secretary to such panchayat, such Secretary shall not be governed by the rules so made and the rules for regulating recruitment and conditions of service of such Secretary shall be such as the Panchayat may, subject to general or special order of the State Government, by its resolution determine".
The provision in the original s. 102 (1) (b) which enabled the Gram panchayat or Nagar panchayat to have such other servants as may be determined under s. 203 and which provided that such servant shall be appointed by such authority and their conditions of service shall be such as may be prescribed was omitted and in its place a new s. 102 (1) (b) was substituted enabling the Gram panchayat itself to appoint such servants as may be necessary for the proper exercise of its powers, discharge of duties and performance of functions and further providing that the rules for regulating recruitment and conditions of service of such servants shall be made by the Punchayat itself. An explanation was added to say that the expression 'servants' included a Secretary referred to in the proviso to cl. (a). A further cl. (c) was introduced after cls. (a) and
(b) of s. 102 (1) and it is as follows:
"Notwithstanding any thing contained in any judgment, decree or order of any court,-
(i) the officers and servants of a Gram Panchyat, as the case may be, bf a Nagar Panchayat shall be and shall be deemed to have always been the officers and servants of such Gram Panchayat or Nagar Panchayat;
(ii) the expenditure towards the pay and allowances of, and other benefits available to, a servant of the Gram Panchayat or, as the case may be, Nagar Panchayat, shall be met by that Panchayat from its own fund".
The mischief of the new proviso to s. 102 (1) (a) is manifest. Amongst persons to be appointed as Secretaries of Gram and Nagar Panchayats, persons who were previously Talati-cum-Panchayat Secretaries were to be appointed as Secretaries in accordance with the rules, but the rules were not to apply to officers of municipalities, who became Secretaries of Panchayats consequent on conversion of municipalities into Gram Page 29 of 74 HC-NIC Page 29 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT and Nagar Panchayats under s. 307. The conditions of service of the latter category were to be regulated by the panchayat itself, by resolution. And not by any rules made by the Government as in the case of the others. Other servants of Gram and Nagar Panchayats were also to be appointed by the Panchayats and their conditions of service were also to be regulated by the Gram and Nagar Panchayats Notwithstanding any judgment of the court, the officers and servants of Gram and Nagar Panchayats were to be deemed to have always been officers and servants of such Nagar and Gram Panchayats The amended s. 102 (1) was to be given retrospective effect from February 24, 1962. In other words, the non-Talati Secretaries and other officers and servants of the Gram and Nagar Panchayats were to be deemed to be servants of the Gram and Nagar Panchayats, notwithstanding the judgments of the courts which had declared them to be Government servants.
By Sec 4 of the Amending Act a proviso was added to s. 157 (3) of the Principal Act barring the District Panchayat from transferring its staff to a Gram or Nagar Panchayat consequent on the delegation of functions, powers and duties to a Gram or a Nagar PanchaYat.
By sec. 6 of the Amending Act, s. 203 of the Principal Act was substantially amended. While s. 203 (1) of the Principal Act, as it stood originally, provided for the constitution of a Panchayat Service 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 and declared that such service shall be distinct from the State Service, the new sub-sec. (1) introduced by cl. (l) of s. 6 of the Amending Act, is as follows:
'(1) In order to enable taluka panchayats and district panchayats to exercise their powers, discharge their duties and perform their functions effectively and efficiently, there shall be constituted a Panchayat Service consisting of persons employed in connection with the affairs of taluka panchayats and district panchayats and of specified servants, and notwithstanding anything contained in any judgment, decree or order of any court such persons and Servants shall be and shall be deemed to have always been the officers and servants of the Page 30 of 74 HC-NIC Page 30 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT taluka panchayats or, as the case may be, the district panchayats.
Explanation-In this sub-sec., the expression "specified servants" means-
(a) talatis-cum-Panchayat secretaries discharging the functions of gram Panchayat or of nagar panchayats, and
(b) kotwals."
See. 203 (2A) was amended by omitting reference to local cadres Old Sec. 203 (4) (a) which obliged the making of a rule containing a provision entitling servants of such cadres in the panchayat service to promotion to such cadres in the State service as may be prescribed was omitted and in its place a new cl. (a) was substituted by cl. (4) of s. 6 of the Amending Act and it is as follows :-
"(a) A provision entitling persons holding such class of posts Din the district cadre to be recruited to such cadre in the State service as may be prescribed."
The opening clause of the new s. 203 is extremely curious It gives the reason for constituting the new Panchayat Service of the Amending Act. The reason, it appears, is to enable taluka panchayats and district panchayats to exercise their powers, discharge their duties and preform their functions effectively and efficiently. But then what about the Gram and Nagar Panchayats which are at the very foundations of the whole idea of democratic decentralisation of powers in favour of panchayat institutions ? The entire Panchayats superstructure has to stand on the base of F Gram and Nagar Panchayats and obviously there can be no vigorous and strong Local Self- Government institutions without efficient and effective Gram and Nagar Panchayats. It is, therefore, difficult to discover the logic behind excluding Gram and Nagar Panchayats from the benefits of a centralised, effective and efficient service.
The vice of the new provision is again obvious. Local cadre is made to appear to be excluded from the Panchayat Service, but not truly so. In the guise of 'specified servants' are brought in, as if by the back door, Page 31 of 74 HC-NIC Page 31 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT talatiscum- Panchayat Secretaries functioning in Gram or Nagar panchayats and Kotwals. What is done in truth is that employees of gram or nagar panchayats, other than Talatis-cum-Panchayat Secretaries and Kotwals alone, and this primarily means, the ex-Municipal employees are excluded from the Panchayat Service and the judgment of the court that they form part of a centralised State Service, is sought to be nullified, by giving effect to cls (1) and (4) of s. 6 of the Amending Act from February 24, 1962.
By s. 8 of the Amending Act, s. 206 (1) (i) was amended by substituting the figures and word '157 and 158' for the figures and word '157, 158 and 325'. In Sec. 206 (1) (la), the clause 'All officers and servants of municipalities dissolved under s. 307' was substituted by the clause "all persons who have under cl. (x) of S. 325 become the secretaries of new gram panchayats and kotwals". In the rest of S. 206 wherever the words 'the panchayats' were used, the words 'the district and taluqa panchayats' were substituted. The real effect of S. 8 of the Amending Act is to take out "all officers and servants of the municipalities dissolved under S. 307" from the applicability of S. 206 though S. 206 is made otherwise applicable to all other categories of officers and servants allotted to a panchayat.
By S. 10 of the Amending Act, two new sections S. 206 (AB) and S. 206 (AC) are introduced, the object of which is really to give options to those officers and servants who are allotted or transferred to panchayats, under the various provisions of the Act. These provisions are obviously introduced to defeat an argument that allotment and transfer of Government servants to a non- Government service is violative of Art. 311.
By Sec. 14 of the Amending Act, a new Sec. 21 I(A) is introduced the effect of which is that the allocation of officers and servants of erstwhile municipalities and officers and servants of old village panchayats was to cease and those officers and servants were to be deemed to have always been officers and servants of the gram and nagar panchayats. It was as if these officers and servants never had to be allocated by any order of the Government, but they had automatically became officers and servants of the new gram panchayats. There Page 32 of 74 HC-NIC Page 32 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT was no question of any option. They could take it or leave it. They were not to be treated as having been Government servants at any time.
Other provisions of the Amending Act were merely consequential to the confining of the Panchayat Services to district or taluqa cadres.
From the summary of the provisions of the Amending Act that has been set out above it requires no perception to recognise the principal target of the amending legislation as the category of ex-municipal employees', who are, so to say, pushed out of the Panchayat Service and are to be denied the status of Government servants and the consequential benefits. The ex-municipal employees are virtually the "poor relations", the castle, the Panchayat Service, is not for them nor the attendant advantages, privileges and perquisites, which are all for the "pedigree descendants" only. For them, only the out- houses. As a result of the amendments they cease to be Government servants with retrospective effect. Their earlier allocation to the Panchayat Service is cancelled with retrospective effect. They become servants of Gram and Nagar Panchayats with retrospective effect. They are treated differently from those working in taluqa and district panchayats as well as from the talatis and Kotwals working in Gram and Nagar Panchayats. Their conditions of service are to be prescribed by panchayats, by resolution, whereas the conditions of service of others are to be prescribed by the Government. Their promotional prospects are completely wiped out and all advantages which they would derive as a result of the judgments of the courts are taken away.
Several grounds were urged before us to attack the constitutional validity of the Amending Act. It was said that the provisions of the Act were violative of Art. 311. It was said that the Act was discriminatory. It was urged that the retrospectivity given to the provisions of the Amending Act could not cure the discrimination introduced by the Act and sought to be perpetuated by it. In any case it was said that the benefits acquired could not be taken away with retrospective effect. On the other band, it was argued that there was good reason for the classification and that in the circumstances of the case, the classification was legitimately made with Page 33 of 74 HC-NIC Page 33 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT retrospective effect.
It is here necessary to recapitulate a few facts. When the Panchayat Service was initially constituted soon after the passing of the Gujarat Panchayats Act, there were three cadres, the district cadre, the taluqa cadre and the local cadre. Secretaries, officers and servants of the old village panchayats under the Bombay Village Panchayats Act, 1958 became Secretaries, officers and servants of the new Gram Panchayats under s. 325 (2)(x) of the Gujarat Panchayats Act, 1961. Talatis and Kotwals, who were Government servants were Secretaries and officers of the old village panchayats under the Bombay Village Panchayats Act and so they became secretaries and officers of the new gram panchayats under the Gujarat Panchayats Act, 1961. Some municipalities constituted for municipal districts and municipal boroughs under the Bombay District Municipal Act and the Bombay Municipal Boroughs Act as applied to areas in the State of Gujarat, were converted into gram and nagar panchayats under s. 307 of the Gujarat Panchayats Act and all officers and servants in the employ of such municipalities became officers and servants of interim panchayats and allocated to the Panchayat Service. Thus, Secretaries and officers of dissolved municipalities also became Secretaries and officers of gram and nagar panchayats. District Local Boards constituted under the Bombay Local Boards Act stood dissolved on the passing of the Gujarat Panchayats Act and all officers and servants in the employment of the Board were deemed to be transferred to the service of the successor district panchayat under s. 326 of the Gujarat Panchayats Act. Also allocated to the Panchayat Service were those Government servants who were transferred to the Panchayats under s. 157 and such others officers and servants employed in the State Service as were necessary (s. 206 (iii)). All these Secretaries, officers and servants became members of a service under the State as soon as they were allocated the Panchayat Service. Now, by the Amending Act, secretaries, p officers and servants of Gram and Nagar Panchayats who were allocated to the Panchayat service from the ranks of the ex-municipal employees are sought to be meted out differential treatment from the other members or the Panchayat Service, more particularly the Secretaries, officers and servants of Gram and Nagar Panchayats who were drawn from the ranks of Page 34 of 74 HC-NIC Page 34 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT secretaries, officers and servants of old village panchayats, that is the Talatis and Kotwals Their status as members of a service under the State is to go with no option to them. Retrospectivity is sought to be given to the amending act so that they could not claim that they were ever Government servants and so could not be made to cease to be Government servants and so that they could not claim that they were singled out for differential treatment, for, if they were never in the Panchayat service, they could not complain of being taken out of the Panchayat Service.
Now, in 1978 before the Amending Act was passed, thanks to the provisions of the Principal Act of 1961, the exmunicipal employees who had been allocated to the Panchayat Service as Secretaries, officers and servants of Gram and Nagar Panchayats, had achieved the status of government servants. Their status as Government servants could not be extinguished, so long as the posts were not abolished and their services were not terminated in accordance with the provisions of Art. 311 of the Constitution. Nor was it permissible to single them out for differential treatment. That would offend Art. 14 of the Constitution. An attempt was made to justify the purported differentiation on the basis of history and ancestry, as it were. It was said that Talatis and Kotwals who became Secretaries, officers and servants, of Gram and Nagar Panchayats were Government servants, even to start with, while municipal employees who became such secretaries, officers and servants of Gram and Nagar Panchayats were not. Each carried the mark or the 'brand' of his origin and a classification on the basis of the source from which they came into the service, it was claimed, was permissible. We are clear that it is not. Once they had joined the common stream of service to perform the same duties, it is clearly not permissible to make any classification on the basis of their origin. Such a clarification would be unreasonable and entirely irrelevant to the object sought to be achieved. It is to navigate around these two obstacles of Art. 311 and Art. 14 that the Amending Act is sought to be made restrospective, to bring about an artificial situation as if the erstwhile municipal employees never became members of a service under the State. Can a law be made to be destroy today's accured constitutional P rights by artificially reverting to a situation which existed Page 35 of 74 HC-NIC Page 35 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT seventeen years ago? No. The legislation is pure and simple, self-deceptive, if we may use such an expression with reference to a legislature-made law. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's and don'ts of the Constitution neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking onto account the accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today's rights and not yesterday's. A legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history. It was pointed out by a Constitution Bench of this Court in BS. Yadav and others etc. v. State of Haryana and others etc.(1) Chandrachud CJ., speaking for the Court, "Since the Governor exercises the legislative power under the proviso to Art. 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate, must be shown to bear either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case".
Today's equals cannot be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tempered with that way law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation 3 cannot become Page 36 of 74 HC-NIC Page 36 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT valid by being made restrospective. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujarat Panchayats third Amendment) Act, 1978 is unconstitutional, as it offends Arts. 311 and 14 and is arbitrary and unreasonable. We have considered the question whether any provision of the Gujarat Panchayats (Third Amendment) Act, 1978 might be salvaged. We are afraid that the provisions are so interwined with one another that it is well-nigh impossible to consider any life saving surgery. The whole of the Third Amendment Act must go. In the result the Writ Petition Nos 4266-70 are allowed with costs quantified at Rs. 15,000. The directions given by the High Court, which we have cor firmed, should be complied with before June 30, 1983. In the meanwhile, the employees of the Panchayats covered by the appeal and the Writ Petitions will receive a sum of Rs. 200 per month over and above the emoluments they were receiving before February 1, 1978. This order will be effective from February 1, 1983 The interim order made on February 20, 1978 will be effective upto January 31, 1983. The amounts paid are to be adjusted later."
17. In Harijan Paniben Dudabhai (supra), the Supreme Court considered R.K. Soni & Ors. (supra). One Vela Keshavbhai, the deceased husband of the appellant was appointed by the Okha Gram Panchayat as a Safai Kamdar on 4th February, 1964. After having put in 33 years of service, he died in harness on 6th February, 1997. The appellant represented that the family of Vela Keshav was entitled to the family pension and gratuity. The claim of the appellant, having not been accepted, the appellant moved this Court by filing the Special Civil Application No.354 of 2004. The learned Single Judge of this Court rejected the writ application on the ground that the deceased was not appointed by the District Panchayat Service Selection Committee constituted under section 2(11) of the Act and was not a member of the Panchayat Service as envisaged Page 37 of 74 HC-NIC Page 37 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT by section 203 of the Act. The appellant, being aggrieved, carried the matter further by filing the Letter Patent Appeal No.1522 of 2004. The appeal was also ordered to be dismissed by a Division Bench of this Court. While allowing the special leave petition, the Supreme Court observed as under;
"10. The Division Bench of the High Court by its judgment and order under appeal dismissed Letters Patent Appeal No.1522 of 2004 and other connected matters. It was observed that only those employees who had been appointed following the procedure laid down in Section 203 of the Act and the rules framed thereunder, would alone be members of Panchayat Service, apart from the allocated employees from the municipality to the Panchayats at the time of formation of the Panchayats or such other employees who had been recognized as members of Panchayat Service by the State Government, or by the District Panchayat Selection Committee. It was further observed that merely because Panchayat had paid salary and other benefits to the deceased, it did not mean that he was member of Panchayat Service so as to get the benefits available to members of Panchayat Service like family pension and gratuity.
11. In the present case the deceased was appointed as Safai Kamdar on 4.2.1964 by Gram Panchayat by passing an appropriate resolution. It is true that Section 203(3) of the Act empowers the State Government to make rules regulating mode of recruitment. Our attention in that behalf was invited to Gujarat Service (Appointing Authorities) Rules, 1967. Rule 2 of the said Rules stipulates, inter alia, that the Appointing Authority in respect of posts under the Gram Panchayat, which are included in the "local cadre" is Gram Panchayat itself. The term "local cadre" finds elaboration in Part III of Gujarat Panchayat Service (Conditions of Service) Rules, 1977 (hereinafter referred to as "the 1977 Rules). Part III captioned "Local Cadre" is to the following effect:
"I. Secretary of a Nagar Panchayat II The following posts under the Nagar or as the Case may be, Gram Panchayat, namely -
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1. Chief Officer (Nagar Panchayat)
2. Head Clerk
3. Senior Clerk
4. Junior Clerk
5. Vasulati Clerk
6. Typist
7. Octroi clerk
8. Accountant
9. Cashier
10.Tax Inspector
11.Shop Inspector
12.Octroi Inspector
13.Overseer
14.Power House Manager
15.Driver
16.Cleaner
17.Posts required for schools run by the Panchayat
18.Posts required for dispensaries run by the Panchayat
19.Posts required for libraries run by the Panchayat
20. Posts required for dispensaries run by the Panchayat III All posts belonging to the inferior panchayat Service under Gram Panchayat or Nagar Panchayat.
IV All other technical and non-technical posts under the Gram Panchayat or Nagar Panchayat."
13. The statutory provisions as mentioned above and the clear assertion by Respondent No.5 in his affidavit in reply, shows that in the year 1964 when deceased Vela Keshav came to be appointed, there were no rules governing the appointment in question. The rules regulating 'Superior Panchayat Service' and 'Infereior Panchayat Service' in the form of Gram Panchayat Service (Classification and Recruitment) Rules, 1967 came on the statute book in the year 1967. Going by the Gujarat Panchayat Service (Appointing Authorities) Rules, 1967, Gram Panchayat is the appropriate authority in respect of posts included in the Local Cadre. Thus, we do not find any infraction in the appointment of Vela Keshav, who was appointed pursuant to a resolution passed by Panchayat. Nothing has been pointed out how Gram Panchayat was not competent to make such appointment or that at the relevant time in question the power to Page 39 of 74 HC-NIC Page 39 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT make appointments was vested in an authority other than Gram Panchayat or that there was any separate modality or procedure prescribed for effecting such an appointment.
14. As detailed in the affidavit in reply on behalf of Respondent No.5, the deceased Vela Keshav was holding the post within the sanctioned set up of Safai Kamdars and that he was a full time employee getting regular salary. The deceased Vela Keshav had put in 33 years of service and died in harness. At no stage, while he was in service any objection or even a doubt was raised that he was not validly appointed. In our view, Vela Keshav must be held to be one who was regularly appointed and we do not find any infirmity or illegality in his appointment so as to disentitle the family of the benefits of family pension and gratuity.
15. At this stage, Circular dated 26.02.2008 issued by Government of Gujarat, Panchayat Rural Housing and Rural Development on 26.02.2008, which was placed on record by way of Additional Documents, may be adverted to. This Circular after considering cases of those who were appointed between 1.04.1963 and 5.05.1984, stated as under:
"It is, therefore, informed to all the District Development Officers to initiate proceedings in accordance with the instructions given vide letters cited at preamble for regularizing services of the employees appointed/recruited under the converted gram/nagar panchayats during the period from 1.4.1963 to 10.7.1978 and 10.07.1978 to 5.06.1984 and to decide their other service related matters accordingly. Further, it is also hereby informed to submit proposal of posts of remaining employees as per item no.1 of letter at preamble 1 who have been recruited/appointed promoted during the period from 10.07.1978 to 5.06.1984 and on other aspects of the aforesaid letters also, if guidance/approval is required, DDO shall have to submit proposal through Development Officer's office within six months after examining service record of each employee with their clear opinion."
16. In the totality of circumstances, we find that the appellant cannot be denied the benefits in question. We, Page 40 of 74 HC-NIC Page 40 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT therefore allow this appeal and set aside the judgments and orders rendered by the Single Judge and the Division Bench and allow Special Civil Application No.354 of 2004. We direct the respondents to pay to the appellant all the arrears of pensionary benefits and gratuity with simple interest at the rate of 9% per annum within two months from the date of this Judgment.
17. In appeal arising out of SLP(C) No.8896 of 2010, the appellant was appointed as a Peon on 4.4.1964 and in due course of time was promoted to the post of Sanitary Mukadam and later to the post of Octroi Clerk. He retired in the year 2001 after having put in 37 years of service and all through he was paid all the benefits including those under 4th Pay Commission as a regular employee would receive. His case was dealt with on the strength of the Judgment in the lead matter by the High Court and since we have set aside the view taken by the High Court in the lead matter, this appeal also deserves to be allowed. While condoning the delay and allowing the appeal, the respondents are directed to pay the arrears of pensionary benefits and the amount of gratuity to the appellant along and gratuity with simple interest at the rate of 9% per annum within two months from the date of this Judgment.
18. In appeal arising out of SLP(C) No.9756 of 2011, the deceased husband of the present appellant was appointed as Sanitary Inspector by Okha Gram Panchayat on 14.12.1964 and the said appointment was later confirmed by Development Commissioner vide order dated 5.4.1973. In accordance with the view taken by us in the lead matter, this appeal also deserves to be allowed. Allowing the appeal, we direct the respondents to pay to the appellant all the arrears of family pension and the amount of gratuity with simple interest at the rate of 9% per annum within two months from the date of this Judgment.
19. In appeal arising out of SLP(C) No.1305 of 2011 the appellant, 55 per cent physically handicapped, was appointed as Typist-cum-Clerk on 13.10.1969 and retired from service in the year 2001. It is true that his appointment was after the Gujarat Panchayat Service (Appointing Authorities) Rules, 1967 and other set of Rules came into force. But nothing has been placed on Page 41 of 74 HC-NIC Page 41 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT record indicating any prevalent procedure which was allegedly infracted or any reason why his appointment could be termed as illegal or invalid. All through his service till he retired, he was paid all the emoluments and salary like any regular employee. We see no reason why the appellant could be denied the pensionary benefits and gratuity. We allow this appeal and direct the respondent to pay to the appellant family pension and the amount of gratuity with simple interest at the rate of 9% per annum within two months from the date of this Judgment.
20. All the appeals are allowed in the aforesaid terms without any order as to costs."
18. The observations made by the Supreme Court in para-19 are quite relevant so far as the issue in hand is concerned. The reason for me to say so is that the Supreme Court noticed that the appellant of SLP(C) No.1305 of 2011 was appointed as a typist cum clerk on 13th October, 1969, i.e., after the Gujarat Panchayat Service (Appointing Authorities) Rules, 1967 and the other set of rules came into force. However, the Supreme Court observed that nothing had been placed on record indicating any particular procedure which was allegedly infracted or any reason why the appointment could be termed as illegal or invalid. The Supreme Court ruled that the appellant was entitled to the pensionary benefits and gratuity.
19. I also take notice of para-15 of the judgment referred to above. In para-15, the Supreme Court has made reference of a circular dated 26th February, 2008 issued by the Government of Gujarat. The circular directed all the District Development Officers to consider regularization of those employees appointed between 1st April, 1963 and 5th May, 1984.
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20. In my view, the case of the writ applicants herein would be squarely covered by the circular of the State Government dated 26th February, 2008 referred to above.
21. In Kamal Prasad (supra), the Supreme Court, once again, considered the entitlement of regularization. The following points arose for the consideration of the Supreme Court in the facts of that case.
(I) Whether the impugned judgment was correct in holding that the respondent-employees were entitled for the benefit of Umadevi (3) case as they had rendered more than 10 years of service in the State Government of Jharkhand without the intervention of the Court.
(ii) Whether the impugned judgment passed by the Division Bench of the Jharkhand High Court was vitiated on account of the erroneous finding or suffered from error in law.
22. I may quote the observations made from para-39 onwards.
"Further, in the case of Uma Devi (supra) it has been held by the Constitution Bench of this Court that:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanapp a (supra), R.N.Nanjundappa (supra),and B.N.Nagarajan (supra),and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the Page 43 of 74 HC-NIC Page 43 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
(Emphasis in original) The learned senior counsel for the appellants placing reliance upon the aforesaid paragraph of the decision submits that the respondents do not fulfil the requirement of 10 years of uninterrupted service which is sine qua non for regularization of the services of the employees in their posts. Hence, the legal principle laid down by this Court in the aforesaid case cannot apply in the present case, therefore, the respondents are not entitled for regularization.
We have heard the factual and legal contentions urged by the learned senior counsel for both the parties and carefully examined the findings and reasons recorded in the impugned judgment with reference to the evidence produced on behalf of the respondent employees.
The evidence on record produced by the respondent- employees would clearly go to show that they have been rendering services in the posts as ad-hoc Engineers since 1987 and have been discharging their services as permanent employees with the appellants. Additional 200 posts were created thereafter by the State Government of Bihar. However, the respondents continued in their services as ad hoc employees without Page 44 of 74 HC-NIC Page 44 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT any disciplinary proceedings against them which prove that they have been discharging services to their employers to their satisfaction.
The learned senior counsel on behalf of the appellants have failed to show as to how the interim orders upon which he placed strong reliance are extended to the respondents which is not forthcoming except placing reliance upon the decision of this Court in the case of Amrit Lal Berry (supra), without producing any record on behalf of both the State Governments of Bihar and Jharkhand to substantiate the contention that the interim orders obtained by the similarly placed employees in the writ petitions referred to supra were extended to the respondent employees to maintain parity though they have not obtained such interim orders from the High Court. Therefore, the learned senior counsel has failed to prove that the respondents have failed to render continuous services to the appellants at least for ten years without intervention of orders of the court, the findings of fact recorded by the Division Bench of the High Court is based on record, hence the same cannot be termed as erroneous in law. In view of the categorical finding of fact on the relevant contentious issue that the respondent-employees have continued in their service for more than 10 years continuously therefore, the legal principle laid down by this Court in Uma Devi's case (supra) at paragraph 53 squarely applies to the present cases. The Division Bench of the High Court has rightly held that the respondent-employees are entitled for the relief, the same cannot be interfered with by this Court.
In fact, the Division Bench of the High Court by regularizing the respondent-employees vide its impugned order has upheld the constitutional principle laid down by this Court in the case of Olga Tellis (supra), the relevant para of which reads as under :-
"32. As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood If they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will Page 45 of 74 HC-NIC Page 45 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far- reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live:
only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Bakse y that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Mun n v. Illinoi s means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This Page 46 of 74 HC-NIC Page 46 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT observation was quoted with approval by this Court in Kharak Sing h v. State of U.P. "
(Emphasis supplied) In view of the foregoing reasons which we have assigned in this judgment and in upholding the findings and reasons recorded by the Division Bench of the High Court in the impugned judgment, it cannot be said that the findings and reasons recorded by the High Court in arriving at the conclusions on the contentious issues that arose for its consideration can be termed either as erroneous or error in law.
In view of the foregoing reasons, we are inclined to conclude that the High Court was legally correct in extending the benefits of Uma Devi's case to the respondent-employees. Therefore, we answer point nos.1 and 2 in favour of the respondent-employees. Answer to Point No. 3
23. Though, point Nos. 1 and 2 have been answered in favour of the respondents, the question raised regarding the requirement of interference by this Court under Article 136 of the Constitution of India requires separate and independent consideration by us. In the case of Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai & Anr.8, this Court observed as under:
"The discretionary power of the Supreme Court is plenary in the sense that there are no words in Article 136 itself qualifying that power. The very conferment of the discretionary power defies any attempt at exhaustive definition of such power. The power is permitted to be invoked not in a routine fashion but in very exceptional circumstances as when a question of law of general public importance arises or a decision sought to be impugned before the Supreme Court shocks the conscience. This overriding and exceptional power has been vested in the Supreme Court to be exercised sparingly and only in furtherance of the cause of justice in the Supreme Court in exceptional cases only when special circumstances are shown to exist."
(Emphasis supplied) This position was reaffirmed and further elucidated in the case of Mathai @ Joby v. George & Anr.9, wherein the Page 47 of 74 HC-NIC Page 47 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT two judge Bench of this Court held as follows:
"23. Mr. Venugopal has suggested the following categories of cases which alone should be entertained under Article 136 of the Constitution.
(i) All matters involving substantial questions of law relating to the interpretation of the Constitution of India;
(ii) All matters of National or public importance;
(iii) Validity of laws, Central and State;
(iv) After Kesavananda Bharati, the judicial review of Constitutional Amendments; and
(v) To settle differences of opinion of important issues of law between High Courts.
22. We are of the opinion that two additional categories of cases can be added to the above list, namely (i) where the Court is satisfied that there has been a grave miscarriage of justice and (ii) where a fundamental right of a person has prima facie been violated. However, it is for the Constitution Bench to which we are referring this matter to decide what are the kinds of cases in which discretion under Article 136 should be exercised.
25. In our opinion, the time has now come when an authoritative decision by a Constitution Bench should lay down some broad guidelines as to when the discretion under Article 136 of the Constitution should be exercised, i.e., in what kind of cases a petition under Article 136 should be entertained. If special leave petitions are entertained against all and sundry kinds of orders passed by any court or tribunal, then this Court after some time will collapse under its own burden.
26. It may be mentioned that in Pritam Singh v. The State AIR 1950 S.C. 169 a Constitution Bench of this Court observed (vide para 9) that "a more or less uniform standard should be adopted in granting Special Leave". Unfortunately, despite this observation no such uniform standard has been laid down by this Court, with the result that grant of Special Leave has become, as Mr. Setalvad pointed out in his book ` My Life', a gamble. This is not a desirable state of affairs as there should be some uniformity in the approach of the different benches Page 48 of 74 HC-NIC Page 48 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT of this Court. Though Article 136 no doubt confers a discretion on the Court, judicial discretion, as Lord Mansfield stated in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 "means sound discretion guided by law. It must be governed by rule, not humour:
it must not be arbitrary, vague and fanciful"
In view of the legal principles laid down in the aforesaid decisions, we are of the opinion that the decision of the High Court does not fall in either of the categories mentioned above which calls for our interference. The Division Bench of the High Court having regard to the glaring facts that the respondent employees have continuously worked in their posts for more than 29 years discharging permanent nature of duties and they have been paid their salaries and other service benefits out of the budget allocation, no objection was raised by the CAG in this regard and therefore, it is not open for the appellants to contend that the law laid down in Uma Devi's case (supra) has no application to the fact situation. The action of the appellants in terminating the services of the respondent-employees who have rendered continuous service in their posts during pendency of the Letters Patent Appeals was quashed by the High Court after it has felt that the action is not only arbitrary but shocks its conscious and therefore it has rightly exercised its discretionary power and granted the reliefs to the respondent-employees which do not call for our interference. Therefore, we are of the opinion that this Court will not interfere with the opinion of the High Court and on the contrary, we will uphold the decision of the High Court both on factual and legal aspects as the same is legally correct and it has done justice to the respondent-employees.Answer to Point No. 4
17. As already mentioned above, we are of the opinion that the High Court was correct in reinstating the respondent-employees into their services under the appellants by relying on the legal principles laid down by this Court in the Constitution Bench decision in Uma Devi's case (supra). We accordingly direct the appellants to implement the orders of the Division Bench of the High Court thereby continuing the respondents in their services and extend all benefits as have been granted by Page 49 of 74 HC-NIC Page 49 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT it in the impugned judgment. 25. The Civil Appeals are dismissed accordingly."
23. In a very recent pronouncement in the case of Amarkant Rai vs. State of Bihar & Ors., 2015(8) SCC 265, the Supreme Court considered the claim of the appellant for regularization having served on the post for 29 years on daily wages. I may quote the relevant observations made from para-8 onwards;
"8. As noticed earlier, the case of the appellant was referred to Three Members Committee and Three Members Committee rejected the claim of the appellant declaring that his appointment is not in consonance with the ratio of the decision laid down by this Court in Umadevi's case (supra). In Umadevi's case, even though this Court has held that the appointments made against temporary or ad-hoc are not to be regularized, in para 53 of the judgment, it provided that irregular appointment of duly qualified persons in duly sanctioned posts who have worked for 10 years or more can be considered on merits and steps to be taken one time measure to regularize them. In para 53, the Court observed as under:-
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of Page 50 of 74 HC-NIC Page 50 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
The objective behind the exception carved out in this case was to permit regularization of such appointments, which are irregular but not illegal, and to ensure security of employment of those persons who served the State Government and their instrumentalities for more than ten years.
Elaborating upon the principles laid down in Umadevi's case (supra) and explaining the difference between irregular and illegal appointments in State of Karnataka & Ors. v. M.L. Kesari & Ors., (2010) 9 SCC 247, this Court held as under:
"7. It is evident from the above that there is an exception to the general principles against "regularisation"
enunciated in Umadevi (3) , if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal.
In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working Page 51 of 74 HC-NIC Page 51 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular."
9.. Applying the ratio of Umadevi's case, this Court in Nihal Singh & Ors. v. State of Punjab & Ors., (2013) 14 SCC 65 directed the absorption of the Special Police Officers in the services of the State of Punjab holding as under:
"35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State.
36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is-- the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks."
10.. In our view, the exception carved out in para 53 of Page 52 of 74 HC-NIC Page 52 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT Umadevi is applicable to the facts of the present case. There is no material placed on record by the respondents that the appellant has been lacking any qualification or bear any blemish record during his employment for over two decades. It is pertinent to note that services of similarly situated persons on daily wages for regularization viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of Clerk was regularized w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 03.1.2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits be paid from 01.01.2010.
Considering the facts and circumstances of the case that the appellant has served the University for more than 29 years on the post of Night Guard and that he has served the College on daily wages, in the interest of justice, the authorities are directed to regularize the services of the appellant retrospectively w.e.f. 03.01.2002 (the date on which he rejoined the post as per direction of Registrar).
11. The impugned order of the High Court in LPA No.1312 of 2012 dated 20.02.2013 is set aside and this appeal is allowed. The authorities are directed to notionally regularize the services of the appellant retrospectively w.e.f. 03.01.2002, or the date on which the post became vacant whichever is later and without monetary benefit for the above period. However, the appellant shall be entitled to monetary benefits from 01.01.2010. The period from 03.01.2002 shall be taken for continuity of service and pensionary benefits.
12. The appeal is allowed in terms of the above. No order as to costs."
24. Mr. Pujara brought to my notice the instructions issued by the State Government in its Panchayat Department to all the District Development Officers dated 9th September, 1996, which is at page-17, Annexure-A to this petition. Such instructions were issued pursuant to the judgment of the Page 53 of 74 HC-NIC Page 53 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT Supreme Court in R.K. Soni (supra). At the relevant point of time, the District Development Officer, Gandhinagar should have considered the claim of the writ applicants herein, but it appears that nothing was done in that regard. Mr. Pujara, thereafter, brought to my notice the proposal of the Panchayat dated 24th January, 1997 addressed to the Development Commissioner, State of Gujarat, Gandhinagar for regularizing the services of the writ applicants. All the necessary information was furnished, but it seems that till this date, the proposal is pending and no decision has been taken in that regard. Thus, having regard to the facts on record and the settled position of law, I have no hesitation in coming to the conclusion that the writ applicants are entitled to seek regularization in service.
25. There is nothing to indicate that at the relevant point of time, the appointments of the writ applicants were not in accordance with law or the rules or regulations. Assuming for the moment that they could be termed as irregular appointments, still in view of the observations made by the Supreme Court in para-53 of Umadevi (supra), they are entitled for regularization in service.
26. It now stands firmly ingrained in constitutional guarantee under Article 14 for equal protection of law that its protecting umbrella reaches all areas of state action which is unreasonable and arbitrary. Arbitrariness is antithesis of equality. I remind myself of what the Supreme Court said while laying bare the far reaching third but hither to undiscovered dimension of the fundamental rights enshrined in Articles 14 and 16, one of the specie of Article 14, said in E.P. Royappa Page 54 of 74 HC-NIC Page 54 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT v. State of Tamil Nadu [1974 AIR 555].
"Article 14 is the genus while Article 16 is a species....The basic principle which therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. ....Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
27. While cautioning that appointments made in public employment on ad hoc/casual/temporary basis breeds the abuse of Article 16 and is not to be countenanced, at the same time the court has recognised as a part of fair deal at the hands of state to its employees need to frame scheme for regularising services of such persons who had been working for long in such state of affairs, without a permanent status and rights equal to those who have been appointed permanently for discharging the same or similar work. The obligation of the state in this regard is explained and enunciated in State of Haryana v. Piara Singh (supra). The Apex Court said :
"The normal rule is regular recruitment through prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. Secondly an ad hoc or temporary, employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. If Page 55 of 74 HC-NIC Page 55 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT for any reason an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State."
28 These observations were made in regard to the appointments made on the regular establishment of the employee. However, the court clearly drew distinction between the ad hoc employee appointed to any post in the regular establishment and the work charged employees which are employed as a casual labour on need basis. The Court observed :
"So far as the members of the work charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell say 2 or 3 years a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job."
29. The very term 'unfair labour practice' indicates arbitrariness inherent in it. If the remedy against such arbitrariness in the action of employer in general has been accepted by legislature it cannot be less arbitrary if adopted by State or any of its instrumentality. Such an arbitrariness in the State action results in violation of Articles 14 and 16 cannot be over emphasised. In case an unfair labour practice is adopted Page 56 of 74 HC-NIC Page 56 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT by the State or its instrumentality, it brings in violation of Articles 14 and 16 of the Constitution. With this, comes in existence his right to seek its enforcement, even through constitutional remedies by invoking extra-ordinary jurisdiction of the High Court. Any arbitrary action of the State, correspondingly vest in the citizen so attested an enforceable right in not to be treated unfairly, arbitrarily and unjustly by the State in any sphere of its activities.
30. The issue received detailed consideration in the case of Daily Rated Casual Labour vs. Union of India [AIR 1987 SC 2342]. This case arose out of a claim made by the casual employees in the Post & Telegraph Department of Union of India at various places. While deprecating the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs on the department and further classifying such casual employees into three classes for the purpose of making different levels of payment of wages as violative of Article 14 & 16 of the Constitution, the Court said:-
" India is a socialist republic. It implies the existence of certain important obligations which the State has to discharge. The right to work, the right to free choice of employment, the right to just and favourable conditions of works to jut and favourable remuneration ensuring a decent living for himself and him family, .......... and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures...... It is again for this reason that managements and the governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonable long period of time. Where is any jurisdiction to keep Page 57 of 74 HC-NIC Page 57 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT persons as casual labourers for years as is being done in the Post and Telegraphs Department? Is it for paying them lower wages? It cannot be so because there is so much of development to be carried out in the communications department that you need more workers ...... Let us remember the slogan ; "Produce or Perish". It is not an empty slogan. We fail to produce more at out own peril. It is against this background that we say that non-regularisation of temporary employees or casual labour for a long period is not a wise policy. We, therefore, direct the respondents to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers who have been continuously working for more than one year in the Posts and telegraphs Department."
31 This positive mandate was issued by the Supreme Court to regularize the services of the casual workers on rational basis to give effect to the Constitutional mandate.
32 In Jacob M. Puthuparamibil v. Kerala Water Authority [1990 AIR 2228], the question arose in connection with the employees serving under the Kerala Water Authority. They were employed through the employment exchanges between 1st April, 1984 and 4th August, 1986. The petitions were filed apprehending termination of their services as their appointments were on temporary basis. The High Court dismissed the petitions which led to appeals before the Apex Court. Some petitions were also filed before the Supreme Court directly under Art, 32. The Court referred to Rule 9 which permitted to fill immediate vacancy in emergency temporarily otherwise then in accordance with law. Notwithstanding the rule required that such temporary employment should not continue for period exceeding three months i.e. 180 days and the person so temporarily appointed should be replaced as Page 58 of 74 HC-NIC Page 58 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT soon as possible by a member of the service or an approved candidate qualified to hold the post under the said rules but their urgent temporary appointments continued for longer period. The Court referred to Part III of Constitution and said:
"The Constitution guarantees 'equality', abhors discrimination, prohibits and penalises forced labour in any form whatsoever and extends protection against exploitation of labour including child labour. After extending these guarantees, amongst others, the Constitution makers proceeded to chart out the course for the governance of the country in Part IV of the Constitution entitled 'Directive Principles of State Policy'. These principles reflect the hopes and aspirations of the people. Although the provisions of this part are not enforceable by any court, the principles laid down therein are nevertheless fundamental in the governance of the country and the State is under an obligation to apply them in making laws. The principles laid down therein, therefore, define the objectives and goals which the State must endeavour to achieve over a period of time. Therefore whenever the State is required to make laws it must do so consistently with these principles with a view to securing social and economic freedom so essential for the establishment of an egalitarian society. This part, therefore, mandates that the state shall strive to promote the welfare of the people by minimising the inequalities ...... and by making effective provision for securing the right to work as also to public assistance in cases of unemployment, albeit within the limits of its economic capacities. ...... Thus the Preamble promises socio-economic justice, the fundamental rights confer certain justiciable socio-economic rights and the Directive Principles fix the socio-economic goals which the State must strive to attain. These three together constitute the core and conscience of the Constitution."
33 The Court then referred to earlier decisions of the Supreme Court in P.K. Narayani v. State of Kerala [1995 SCC (1) 142], and the Dally rated Casual Labour employed under P & T Deptt. through Bhartiya Dak Tar Mazdoor Manch v. Union Page 59 of 74 HC-NIC Page 59 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT of India [(1988) 1 SCC 122], and directed the regularisation of the four categories of employees.
34. In State of Haryana v. Piara Singh (supra), the problem arising from irregular appointment and long continued ad hoc temporary employment received more wholesome attention.
35. While emphasising that the normal rule is that regular recruitment should be through prescribed agency but countenanced that the exigencies may call some times for an ad hoc/temporary employees by a regularly selected employee as early as possible and that ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee but he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
36. However, the Court also noticed equities arising from continued temporary employment for a fairly long spell and said:
"If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service recorded is satisfactory and his appointment does not run counter to the reservation policy of the State.
The proper course would be that each State prepares a scheme, if one is not a already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf.
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37. While holding in principle that the employee whose entry in service is illegal being in total disregard of recruitment rules or being not on existing vacancy, has no case for regularisation, distinction was pointed out by the Supreme Court between the cases requiring regularisation and the cases in which regularisation of services cannot be considered in Ashwani Kumar v. State of Bihar [AIR 1997 SC 1628], the Court said:
"In this connection it is pertinent to note that question of regularisation in any service including any Government service may arise in two contingencies Vacancies which are of a long duration appointments are made on ad hoc basis or daily wage basis by a competent authority and are continued from time to time and incumbents have continued to be employed any artificial breaks, and their services are otherwise required by the institution which employees them, a time may come in the service career of such employees who such an employees must be made against an available sanctioned vacancy by following the rules and regularisation may arise would be when the initial entry of the employees against an available vacancy is found to have suffered from some flow in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial the irregular initial appointment may be made available to the concerned initial entry must not be found to be of all the established rules and in any case back door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employees whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. tainted from the very beginning and no entrant would ever survive for recruiting this latter class Page 61 of 74 HC-NIC Page 61 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT of cases."
38. In the case of Gujarat Agriculture University v. Labhu Bechar [AIR 2001 SC 201], the Supreme Court again had the occasion to consider the issue about the concept of prolonged temporary casual appointment and the obligation of the State or instrumentality of the State towards such employees for regularisation. The appellant before the Supreme Court was the Gujarat Agricultural University, which is fully aided by the State of Gujarat and is engaged in educational activities in agriculture and allied sciences and humanity and is also prosecuting research in agriculture and other allied sciences. It engaged daily rated workers for its various activities. Those workers were paid as per the minimum wages fixed by the State Govt. from time to time. Such persons were engaged due to the exigencies of work without considering the relevant factors about their educational qualification, age limit and other relevant requirements for the purpose of regular appointment under the recruitment rules. Those daily rated workers employed at the different agricultural research centres at different places with different projects were unskilled, semi-skilled, skilled and field labourers of the different categories. Since the University is grant-in-aid institution fully funded by the State Government, it requires prior sanction by the State Government for appointment of its employees. In fact, all the posts sanctioned by the State Government were filled by the University as per the recruitment rules. But in the case of daily wage workers who were plumbers, carpenters, sweepers, pump operators, helpers and masons etc., no posts were sanctioned for them Page 62 of 74 HC-NIC Page 62 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT and hence they were working on daily rate basis, thus, their appointment were on irregular basis and not in accordance with the recruitment rules. In the aforesaid scenario, the appellant Gujarat agricultural University had contested the claims of its workmen for regularisation and permanent status. A Single Judge of this Court relying on the decision of the Supreme Court in Daily rated casual labour employed under P & T Deptt. through Bhartiya Dak Tar Mazdoor Manch v. Union of India [(1988) 1 SCC 122], in the case of Gujarat Agricultural University v. Rathod Labour Bechar (supra), had directed the Gujarat Agricultural University to submit scheme for conferring regularisation and also directed that such a scheme of giving permanent status could not be confined to the workmen before the Court as large number of such workers were involved, disputes about which were pending in various labour Courts, and with the suggestion that it would be fair and just instead of making multiple schemes for such purpose separately in each case to frame a comprehensive scheme for the purpose of considering all pending litigations. Appeal against that order was dismissed by a Division Bench and further appeal before the Supreme Court during the course of which the appellant Gujarat Agricultural University challenged the direction of framing a scheme of regularisation for its workmen in a phased manner. It is in the aforesaid circumstances that the right to claim regularisation was questioned by the University. The Court observed:
"It is also well settled, if work is taken by the employer continuously from daily wage workers for a long number of years without considering their regularisation for its financial gain as against employees legitimate claim, has been held by this Court repeatedly as an unfair labour Page 63 of 74 HC-NIC Page 63 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT practice.
39. Therefore, the Court denouncing the new culture of taking work from the daily wage worker or ad hoc appointee for a long time either for financial gain or for controlling workers more effectively with the sword of democles hanging over their heads, said:
"If the work is of such nature, which has to be taken continuously and in any case when this pattern become apparent, when they continue to work for year after year, only option to the employer is to regularise them ...... In such situation a legal obligation is cast on an employer if there be vacant post to fill it up with such workers in accordance with rules if any and where necessary by relaxing the qualifications, where long experience could be equitable with such qualifications. If no post exists then duty is cast to assess the quantum of such work and create such equivalent post for their absorption."
40. From the aforesaid discussion, it is apparent that the Supreme Court has viewed the continuance of employment on temporary, casual and ad hoc basis to be an act of arbitrariness violative of Articles 14, 16 & 21 of the Constitution read in light of the Directive Principles of State Policy enshrined in Articles 39, 41 & 42 of the Constitution. The test of reasonableness in State action pervades the constitutional scheme particularly with reference to Articles 14 & 21 which confines its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the Directive Principles and that Article 14 strikes at arbitrariness in State action.
41. In Central Inland Water Transport Corporation Ltd.
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v. Brojo Nath (2B) [1986 AIR 1571], the Court said:
"...... State actions, including actions of the instrumentalities and agencies of the stale, must not only be in conformity with the Fundamental Rights guaranteed by Part 111 but must also be in accordance with the Directive Principles of State Policy prescribed by Part IV. Clause (a) of Article 39 provides that the Stale shall, in particular, provides that the State shall, in particular, direct its policy towards "securing that the citizens, men and women, equally have the right to adequate means of livelihood." Article 41 requires the State, within the limits of its economic capacity and development to "make effective provisions for securing the right to work". An adequate means of livelihood cannot be secured to the citizens by taking away without any reason the means of livelihood. The mode of making "effective provision for securing the right to work" cannot be by giving employment to a person and then without any reason throwing him out of employment. The action of an instrumentality or agency of the State, if it frames a service rule such as Clause (a) of Rule 9 of a rule analogous thereto would, therefore, not only be violative of Article 19 but would also be contrary to the Directive Principles of State Policy contained in Clause (a) of Article 39 and in Article 41."
42. In this connection, following observations from the Supreme Court in Bandhua Mukti Morcha v. Union of India [1984 SCR (2) 67], also invite my attention.
"It is the fundamental right of every one in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin's case (AIR 1980 SC 849) to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42."
The Court went on to say after observing that the Directive Principles of State Policy contained in Clauses (e) and (f) of Article 39, Article 41 are not enforceable in a Page 65 of 74 HC-NIC Page 65 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT Court of law, it may not be possible to compel the State through judicial process to make law "But where legislation is already enacted by the State providing those requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 256 which provides that, the executive power of every state shall be so exercised as to ensure shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State. The Slate is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when the belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. The Central government is therefore bound to ensure observance of various social welfare and labour laws enacted by parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the Directive Principles of State Policy."
43 With these premise the Court held that State of Haryana cannot be permitted to deny benefits of various social welfare and labour laws enacted with a view to enabling them to live a life of human dignity. The State must therefore ensure that the employers observe various social welfare and labour laws enacted for the benefit of the workmen. This is a constitutional obligation which can be enforced against the Central Government and the State by a writ petition under Article 32 of the Constitution."
44. Thus the implementation of law to give effect to Directive Principles of State Policy are also enshrined in Articles 39, 41 & 42 as has been placed on such high pedestal to be enforceable Page 66 of 74 HC-NIC Page 66 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT as the fundamental Rights by invoking Article 39 of the Constitution.
45. Likewise, in Union of India v. Hindustan Development Corporation [1993 SCR (3) 128], on the interplay of Articles 14, 19 and 21 of Part III of the Constitution and Directive Principles of the State Policy, the Court said:
"now coming to the test of reasonableness which pervades the constitutional scheme, the Court in several cases particularly with reference to Articles 14, 19 and 21 has considered this concept of reasonableness and had held that the same finds its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the Directive Principles and that Article 14 strikes at arbitrariness in State action."
46. Reference was made by the Court in this connection to the cases of E.P. Royappa v. State of Tamil Nadu [1974 SCR (2) 348], Meneka Gandhi v. Union of India [1978 SCR (2) 621] and Kasturi Lal Lakshmi Reddy v. State of & Kashmir [1980 SCR (3)1338].
47. It may be noticed that prior to the decision in Royappa's case, the test of reasonableness in Article 14 was confined to examine case of discrimination on the touchstone of reasonableness of classification having a rationale nexus to the object sought to be achieved by such classification. But in Royappa's case, the Apex Court opined the most potent and positivist dimension of the spirit and soul of Article 14 cutting at the roots of arbitrariness, unreasonableness and unfairness in every sphere of State action.
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48. After posing the question: "Now what is the content and reach of this great equalising principle", the Court observed:
"It is a founding faith, to use the words of Bose, J., "a way to life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenanced any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affect any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality."
Coming to the temporary and hoc appointments, the Court said:-
"It is also necessary to point out that ambit and reach of Articles 14 & 16 are not limit to cases where public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Articles 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine, it is, therefore, no answer to the charge of infringement of Articles Hand 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post."
49. The view was reiterated by the Court in Maneka Gandhi's case and Ajay Hasiya's case. In Maneka Gandhi's case the Page 68 of 74 HC-NIC Page 68 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT Court said:
"No attempt should be made to truncate its also embracing scope and meaning, for to do so would be to violate its magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic which the other to the whim and caprice of an absolute monarch. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omni-presence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14 to must be right and just and fair and not arbitrary, fanciful or oppressive."
50. The principle was reiterated in Ajay Hasiya's case [1981 AIR 487 : 1981 SCR (2) 79].
51. On the aforesaid premise, the requirements of the State to consider regularisation as a positivist, in its manifestation of fundamental right under Articles 14, 16 & 21 of the Constitution as animated in Directive Principles of State Policy and law enacted by Parliament on the subjects enumerated in the Concurrent list entries No. 21, 21 & 24 in the form of Industrial Disputes act, and the provisions made thereunder and the right to remedy against indefinite continuance in the service without the permanent status and regular employment resulting in unfair labour practice is a part of the Fundamental right.
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52. To sum up the principle deduced from the long chain of decided cases it can be said to be well settled:
(i) In the matter of Government service normal rule is regular recruitment through prescribed agency, the recruitment of ad hoc or temporary hands is an exceptional leeway permitted due to exigencies of administration. In such a fact situation the endeavour will also be to replace such temporary employee by regular selected employees.
(ii) that law does not favour ad hoc or temporary employment continuing for long spells, as it breeds unhealthy and unreasonable service environment endangering industrial peace perilously affecting dignity and quality of life of those whose security of work is under constant threat.
(iii) Article 14 of the Constitution is embodiment of rule against arbitrariness and unreasonableness in the State action in all spheres of its activities. Article 21 of the Constitution which guarantees protection against deprivation of life and personal liberty includes within it the right to dignified livelihood. Article 39(d) spells out the directive principles of the State policy towards securing equal pay for equal work for both woman and man and Article 42 stipulates the Directive Principles of the State policy in securing just and humane conditions of work.
(iv) equal pay for equal work and security of employment by regularising casual employees of long duration within a reasonable period have been unanimously accepted as Constitutional goal to our policy. To this end, thrust has been that the management particularly Govt. agencies should not allow workers to remain as casual labourers or temporary employees for unreasonably long period of time.
(v) mere continuation for some period on ad hoc by itself does not give a right to permanency but where for any reason ad hoc or temporary or work charged employees are continued for fairly long spell they have a right to Page 70 of 74 HC-NIC Page 70 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT claim regularisation and the authorities are under obligation to consider their case for regularisation in a fair manner.
(vi) regularisation cannot be resorted to by the governmental agencies as mode of fresh recruitment to permit back door entries to frustrate the mandate of Article 16 by making a straight jacket measure of service for regularising the appointment made de hors the rules, unmindful of the circumstances under which the appointment had been made.
(vii) the first condition for laying claim for regularisation is availability of work on reasonably permanent basis. Mere continuance for some time of a casual or ad hoc employee does not give right to presume about need for continued employment or work charged but continuation of casual or ad hoc employee or work charged for a long duration of several years raises a presumption for need for regular permanent employment may be justified.
(viii) Apart from the right to reasonable treatment by the State agencies and security of job emanating from the Constitutional provisions, Industrial Disputes Act is a legislative measure giving effect to the directive principles of State Policy in the field of ensuring equal pay for equal work and ensuring security of job with just and humane conditions by providing prohibition against practising of unfair labour practice both by employers and employees and defining the term unfair labour practice to include practice of engaging workman for long spells characterising them badli, casual, temporary, ad hoc work charged with the object of denying them the status of permanency and benefits and privileges attached thereto.
(ix) A claim by workers, continuing for long spell as casual or temporary or work charged under an employer governed by the Industrial Disputes Act, to permanency is a demand which can be achieved through collective bargaining or a claim giving rise to a industrial dispute which can be enforced through adjudication under the provisions of the I.D. Act.Page 71 of 74
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(x) Adjudication of claim for permanent status as an industrial dispute which has been made subject matter of reference to the Industrial tribunal is governed by the principles emanating from the provisions of Industrial Disputes Act which by necessary implication involves determination of question whether continued casual or temporary employment is a bonafide administrative exigency simplicitor or amounts to unfair labour practice on the part of the employer, inasmuch as claim to permanency under Industrial Disputes Act directly emanates from prohibition against unfair labour practice adopted by the employer.
(xi) In situation emerging from long spell of ad hoc or temporary or casual employment of daily rated workmen, courts have consistently resorted to issue of directions for framing a scheme for regularisation of such workmen on a just and fair basis to the employer or have also issue of directions for regularising the petitioners before it as the circumstances of the case may warrant but ordinarily in the first instance an opportunity is being given to the employer himself to frame a scheme in a fair and just manner of absorbing such casual workmen on permanent basis whether in one go or in a phased manner and has considered objections thereto, if any, before according its approval to such scheme.
(xii) In considering the question of granting relief as to conferring status of permanency and emoluments and privileges attached thereto, primary consideration is existence of permanent nature of work for such casual employees to be utilised against it and the extent of absorption on regular and permanent basis depends upon the extent of regular work available against which temporary employee can be regularly employed. Regularisation or permanency is not to be resorted in case where the establishment by itself is of temporary nature; where the employment is not with the object of offering employment but for ameliorating financial condition of weaker sections of the society like employment under Jawahar Yojana or where employment has been secured or offered by committing illegalities, irregularities or fraud as in the case of Ashwani Kumar (supra) where the Page 72 of 74 HC-NIC Page 72 of 74 Created On Tue Aug 09 01:50:28 IST 2016 C/SCA/8890/2002 JUDGMENT appointments were found to have been given to six thousand persons out of all proportion to the then existing requirement of the project for about 800 persons only, by the Director of the project Mr. Malik by committing illegalities, irregularities and fraud as per the investigation report. In which case the appointments against rules were held to be nullity and void ad initio.
53. In view of the above, this writ application succeeds and is hereby allowed. The impugned termination orders at Annexure-G collectively and the termination orders with respect to each of the writ applicants are hereby ordered to be quashed. They shall continue in service till they attain the age of superannuation. The Development Commissioner, State of Gujarat is directed to immediately take into consideration the proposal forwarded by the Gram Panchayat dated 24th January, 1997, Annexure-J to this petition, page-46 and pass appropriate orders in that regard, keeping in mind the observations made by this Court and also the law which has been referred to and relied upon. Let this exercise be undertaken and completed within a period of two months from the date of the receipt of the writ of the order. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.)
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Vahid
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