Panchayat; Harijan Paniben Dudabhai Vs. State of Gujarat [Supreme Court of India, 01-07-2016]

Gujarat Panchayats Act, 1961 – Section 203 – Gujarat Panchayat Service (Conditions of Service) Rules, 1977 – Part III – Gram Panchayat Service (Classification and Recruitment) Rules, 1967 –  Appointment – Superior Panchayat Service’ and ‘Infereior Panchayat Service’ – Gram Panchayat is the appropriate authority in respect of posts included in the Local Cadre – 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 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.

 


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

(V. Gopala Gowda) and (Uday Umesh Lalit) JJ.

July 1 , 2016

CIVIL APPEAL NO. 5441 OF 2016 (Arising out of S.L.P. (C) No.2324 of 2010)

Harijan Paniben Dudabhai …… Appellant Versus State of Gujarat and others …… Respondents

With

CIVIL APPEAL NO. 5442 OF 2016 (Arising out of S.L.P. (C) No.8896 of 2010) CIVIL APPEAL NO. 5443 OF 2016 (Arising out of S.L.P. (C) No.1305 of 2011) and CIVIL APPEAL NO. 5444 OF 2016 (Arising out of S.L.P. (C) No. 9756 of 2011)

JUDGMENT

Uday Umesh Lalit, J.

1. Leave granted.

2. These appeals challenge common judgment of the High Court of Gujarat dated 02.07.2009. As Letters Patent Appeal No.1522 of 2004 was considered as lead matter by the High Court, the appeal arising therefrom is also considered as lead matter by us. The facts giving rise to Letters Patent Appeal No.1522 of 2004 are dealt with in detail hereafter.

3. In terms of Gujarat Government Gazette dated 01.07.1961, the then Okha District Municipality got converted into Okha Gram and Nagar Panchayat on and w.e.f. 02.02.1962. Upon such conversion, the existing staff of municipality was allocated to Gram Panchayat and treated as part of Panchayat Service.

Gujarat Panchayats Act, 1961

(hereinafter referred to as the “Act”) deals with Panchayat Service and various sets of Rules framed pursuant to the power conferred under the Act, deal with matters including classification of Panchayat Service and conditions of service as regards Panchayat Service.

4. Section 203 of the Act is to the following effect:

203. Panchayat Service to be regulated by rules

(1) For this purpose of bringing about uniform scales of pay uniform conditions of service for persons employed in the discharge of functions and duties of panchayats, there shall be constituted a Panchayat Service in connection with the affairs of panchayats. Such service shall be distinct from the State service.

(2) The Panchayat Service shall consist of such classes, cadres and posts and the initials strength of officers and servants in each such class and cadre shall be such, as the State Government may by order from time to time determine:

Provided that nothing in this sub-section shall prevent a district panchayat from altering, with the previous approval of the State Government, any class, cadre or number of posts so determined by the State Government.

(2A) (a) The cadres referred to in sub-section (2) may consist of district cadres, taluka cadres and local cadres.

(b) A servant belonging to a district cadre shall be liable to be posted, whether by promotion or transfer to any post in any gram or nagar in the same taluka.

(c) A servant belonging to a taluka cadre shall be liable to be posted, whether by promotion or transfer to any post in any gram or nagar in the same taluka.

(d) A servant belonging to a local cadre shall be liable to be posted whether by promotion or transfer to any post in the same gram or, as the case may be, nagar.

(2B) In addition to the posts in the cadres referred to in sub-section (2A), a panchayat may have such other posts of such classes as the State Government may, by general or special order determine. Such posts shall be called “deputation posts” and shall be filled in accordance with the provisions of Section 207.

(3) Subject to the provisions of this Act, the State Government may make rules regulating the mode of recruitment either by holding examinations or otherwise and conditions of service of persons appointed to the panchayat service and the powers in respect of appointments, transfers and promotions of officers and servants in the panchayats service and disciplinary action against any such officers or servants.

(4) Rules made under sub-section(3) shall in particular contain –

(a) a provision entitling servants of such cadres in the Panchayat Service to promotion to such cadres in the State Service as may be prescribed.

(b)A provision specifying the clauses of posts recruitment to which shall be made through the District Panchayat Service Selection Committee and the class of posts, recruitment to which shall be made by the Gujarat Panchayat Service Selection Board, and

(c) A provision regarding the percentage of vacancies to be reserved for the members of Scheduled Castes, Scheduled Tribes and other backward classes in the Panchayat Service.

(5) Such rules may provide for inter district transfers of servants belonging to the Panchayat Service and the circumstances in which and the conditions subject to which such transfers may be made.

(6) The promotion of a servant in a cadre in the Panchayat Service to a cadre in the State service in accordance with the rules made under clause (a) of the sub-section (4) shall not affect-

(a) any obligation or liability incurred or default committed by such servant during the period of his service in a cadre in the Panchayat Service while acting or purporting to act in the discharge of his duties as such servant, or

(b) any investigation, disciplinary action or remedy in respect of such obligation, liability or default and any such investigation, disciplinary action or remedy may be instituted, continued or enforced in accordance with the law applicable thereto during the said period of service by such authority as the State Government may, by general or special order specify in this behalf.”

5. In

State of Gujarat and another v. Ramanlal Keshavlal Soni and others, (1983) 2 SCC 33

a Constitution Bench of this Court held that Panchayat Service constituted under aforesaid Section 203 of the Act is a Civil Service of the State and the members of the Service are government servants.

6. Coming to the facts of the lead matter, one Vela Keshav, deceased husband of the appellant was appointed by Okha Gram Panchayat as Safai Kamdar on 04.02.1964. After having put in 33 years of service, he died in harness on 06.02.1997. The record indicates that monetary benefits such as Rs.14525.50 towards leave encashment, Rs.26,042/- towards Group Insurance and Rs.54,221/- towards General Provident Fund were paid to the appellant as legal representative of the deceased. The appellant represented that the family of Vela Keshav was also entitled to family pension and gratuity which claim having not been accepted, the appellant moved the High Court by filing Special Civil Application No. 354 of 2004.

7. Affidavits in opposition were filed by Deputy District Development Officer, District Panchayat, Jamnagar as respondent no.3 and by Sarpanch of Okha Gram Panchayat as respondent No.5. It was submitted by them that since the deceased was not recruited by the Gram Panchayat in accordance with the Statutory Rules, the appellant was not entitled to claim family pension. The matter came up before a Single Judge of the High Court who by her order dated 15.07.2004 dismissed the Special Civil Application. The submission advanced on behalf of the respondents that since the deceased was not appointed by the District Panchayat Service Selection Committee constituted under Section 2(11) of the Act, was not a member of the Panchayat Service as envisaged by Section 203 of the Act and as such the appellant was not entitled to claim any family pension or gratuity, was accepted by the Single Judge.

8. The appellant being aggrieved carried the matter further by filing Letters Patent Appeal No.1522 of 2004. At the appellate stage affidavit in reply filed by District Development Officer, District Panchayat, Jamnagar reiterated the earlier stand. An affidavit in reply on behalf of the State Government was filed by Deputy Secretary, Panchayats, Rural Housing and Rule Development Department, Gandhi Nagar which dealt with the matter in issue in following terms.

“In the present case, since appellant has not undergone any selection procedure and he has obtained the employment only on the strength of passing resolution in panchayat, Okha Gram Panchayat has not made any proposal to regularize such unauthorized recruitment and appointment of petitioner’s husband. Therefore, he cannot be treated as an employee of local cadre of panchayat service and since he cannot be considered as a member of panchayat service, he is not entitled for any pensionary benefits from government treasury. It is the responsibility of Okha Gram Panchayat to pay pensionary benefit from its own fund as per the terms and conditions at the time of petitioner’s husband appointment by Okha Gram Panchayat…….”

However what was the procedure which was prevalent in 1964 and how the appointment was bad or illegal, was not specified

9. The reply filed on behalf of respondent no.5 by the Administrator of Okha Municipal Borough was as under:

“The appointment of deceased Vela Keshav was made by the Gram Panchayat by passing a Resolution and he was holding the post within the sanctioned set up of Safai Kamdars (Sweepers). The said Resolutions of the Gram Panchayat making the appointment of the deceased are not available at present. However, the necessary entry made in the Service Book of the deceased employee showing the other details in the Service Record is available.

……..

The deceased employee was appointed as a Full time employee on the sanctioned set up of the Gram Panchayat getting regular salary.

…….

The Okha Gram Panchayat appointed him as Safai Kamdar on the terms and conditions as its own employee where there were no rules. However, the fact remains that the deceased was holding the post on the set up sanctioned by the Development Commissioner and had continued till his retirement2 as a regular full time employee. Further, it cannot be said that his appointment was not made in accordance with the provisions under Section 203 of the Panchayat Act because no such rules of recruitment were as such framed on the date on which the deceased was appointed on 4.2.1964.”