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TMI Blog2006 (12) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... art-time Tube-well Operators are inextricably connected with the cadre of Gram Panchayat Vikas Adhikari; the direction that the Part-time Tube-well Operators shall be treated as permanent employees are all hereby, set aside. - Appeal (civil) 1895 of 2006 - - - Dated:- 11-12-2006 - H. K. Sema And P. K. Balasubramanyan,JJ. JUDGMENT H. K. Sema,J The Constitution (Seventy-third Amendment) Act, 1992 came into force on 24.4.1993. The said amendment was brought into force to give effect to one of the Directive Principles of State Policy - Article 40 of the Constitution of India, which directs the State to organise village panchayats as units of self-government. Article 40 reads as under: Organisation of village panchayats. The State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. PART IV of the Constitution deals with Directive Principles of State Policy . Article 37 provides that the provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Gram Panchayats. The employees, so transferred, were to serve the Gram Panchayats (GPs) as multi-purpose workers or Gram Panchayat Evam Vikas Adhikaris (GPVAs). The aforesaid orders were challenged by filing Writ Petitions on the grounds of (i) arbitrariness and (ii) (executive) interference with the statutory rights of Government employees under Service Rules made under Article 309 of the Constitution. The basic grievance raised was that whereas in the Parent Department, they were governed by respective Service Rules framed under Article 309 of the Constitution, they were being transferred to Gram Panchayats where there were no Service Rules governing the service conditions and their services became insecure. On the aforesaid premise, the Govt. by an order dated 27.6.1999 brought up an Ordinance followed by Amendment Act (U.P. Act No. 27 of 1999). Sections 25 and 25-A of the U.P. Panchayat Raj Act 1947 were substituted by new Sections 25 and 25-A. Thereafter, by G.O. dated 30.6.1999, the G.Os. Dated 12.4.1999 and 29.4.1999 were revoked. On 1.7.1999, a G.O. was issued transferring the services of 55,548 employees from eight Departments, including Tube-well Operators (TOs), f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently transferred to GPVAs or on deputation has been set at rest and it has become final. Thereafter, a G.O. dated 20.7.2004 was again issued for repatriation of the employees of three Departments, viz. Agriculture (5322 employees), Cane Development (2593 employees) and Rural Development (6906 employees) [totaling 14821 employees] to their Parent Departments. A Writ Petition was filed by Gauri Shanker challenging the G.O. dated 20.7.2004, which was dismissed by the learned Single Judge on 6.8.2004. Special Appeal against the order of the learned Single Judge Bench was dismissed by the Division Bench on 25.8.2004 holding that the transferred employees remained Government Servants and retained their lien on the posts in their original Departments and they could always be repatriated. Several similar Writ Petitions were also filed by Subhash Chandra Pande, Braj Kishore, Lal Sahab Singh, Gram Vikas Adhikari Sangh etc. challenging the G.O. dated 20.7.2004, which were dismissed on 20.8.2004, 15.9.2004, 18.9.2004 and 5.11.2004 respectively. The present controversy arises from the G.O. dated 19.7.2005 issued to re-transfer all Tube-well Operators and repatriate the Tube-well Operator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made from the grants of irrigation department as before. It is requested to ensure compliance of aforesaid decision on priority basis. Yours, Sd/- (Neera Yadav) Chief Secretary The aforesaid G.O. was challenged before the learned Single Judge by filing Civil Misc. Writ Petition No. 53127 of 2005. In the Writ Petition, inter-alia, the contentions raised in paragraphs 13 and 15 are as under: 13. That vide Government Order/Notification dated 20.07.2004 a new cadre was created, which comprised of employees of three Departments i.e. Gram Panchayat Adhikari, Gram Vikas Adhikari (Social Welfare) and regular Tube-well Operators. After creation of new cadre, the petitioners ceased to be employees of Irrigation Department and their earlier post of Tube-well Operator stood abolished. The petitioner became Gram Panchayat Vikas Adhikari and they were posted in different Gram Panchayats to work as Gram Panchayat Vikas Adhikari. 15. That, from perusal of impugned circular dated 19.07.2005 it is obvious that while issuing circular dated 19.07.2005 the Chief Secretary to the Government of U.P. did not look at the earlier Government Order/Notification dated 20.07.2004 which was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses. Keeping the aforesaid background in mind, we will now examine the merits of the Writ Petition filed by the petitioners/respondents herein questioning the legality of the G.O. dated 19.7.1999 and the impugned judgment of the Division Bench of the High Court. As already noticed, out of the employees of eight Departments sent to Gram Panchayats as multi-purpose workers, the employees of Five Departments had been repatriated by G.Os. 6.6.2001, 21.9.2001 and 20.7.2004, which were assailed by filing Writ Petitions. The writ petitions were dismissed by learned Single Judge, and the orders were affirmed by the Division Bench of the High Court which had attained finality as far as a co-ordinate Bench of the same High Court was concerned. Having noticed the aforesaid decision, the learned counsel for the petitioners (respondents herein) fairly conceded before the learned Single Judge and noted by the learned Single Judge as under: ..conceded and stated that the petitioners have a lien with the parent department and that the petition has not been filed on those grounds on which this Court had dismissed the earlier petitions. In fact the earlier judgments of the Co-ordinate Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher court or a coordinate Bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting. We have been taken through the entire impugned judgment of the High Court. The judgment is full of inconsistencies. The Division Bench of the High Court held that under Section 25 of the Act, there is no provision for creation of posts. In the same breadth the High Court also held that paragraph 4 of the G.O. dated 20.7.2004 created a new cadre and revived a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative capacity. In that view of the matter, the High Court ought not to have examined any of the questions raised before it in the proceedings initiated before it. The writ petition filed by the respondents concerned ought to have been dismissed which are more or less in the nature of a public interest litigation. It is not a case where those candidates who could not take part in the examination had not challenged the same nor was any public interest, as such, really involved in this matter. It is only in the process of selection and standardization of pass marks that some relaxation had been given which was under attack. Therefore, the High Court ought not to have examined the matter at the instance of the petitioners, particularly in the absence of the parties before the Court whose substantial rights to hold office came to be vitally affected. The same decision was reiterated in Bhagwanti v. Subordinate Services Selection Board 1995 Supp (2) SCC 663. Another reason why the decision of the High Court is unsustainable is that the High Court held that the Tube-well Operators can legitimately expect to remain as multi-purpose Gram Panchayat employees unless the whole conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be said that the 73rd Amendment of the Constitution is the basic feature of the Constitution. Article 40 cannot be said to qualify as the basic feature of the Constitution. The 73rd Amendment came to the Constitution by way of amendment under Article 368 and, therefore, it cannot be said to be a basic feature of the Constitution. It is an enabling provision and the State is empowered either to eliminate, modify or cancel by exercising power under the enabling provision. Article 243G is an enabling provision. Article 243G enables the Panchayats to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, subject to such conditions as may be specified therein, with respect to the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. The enabling provisions are further subject to the conditions as may be specified. Therefore, it is for the State Legislature to consider legal conditions and make the law accordingly. The devolution of exercise would also be open to the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the constitutional goal. In this connection, he has referred to the decisions of this Court in the cases of Commissioner of Police vs. Gordhandas Bhanji, 1952 SCR 135, Comptroller and Auditor General of India vs. K.S. Jagannathan (1986) 2 SCC 679 and Terioat Estates (P) Ltd. vs. U.T. Chandigarh (2004) 2 SCC 130. In the view that we have taken the aforesaid decisions have also no application in the facts of the present controversy. PROPERTY VESTED IN THE GRAM PANCHAYAT It is contended that under Section 34 of the Act, the property, namely, the Tube-wells were vested in the Gram Panchayat and by the impugned order the Tube-well Operators were sought to be transferred back to the Irrigation Department along with the Tube-wells, which is not permissible. Section 34 is in the following terms: 34. Property vested in [Gram Panchayat]. (1) Subject to any special reservation made by the State Government, all public property situated within the jurisdiction of a [Gram Panchayat] shall vest in and belong to the [Gram Panchayat] and shall, with all other property which may become vested in the [Gram Panchayat], be under its direction, management and control. (emphasis supplied) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same terms and conditions and with the same rights and privileges as to retirement benefits and other matters including promotion as would have been applicable to him immediately before such transfer and shall perform such duties as may be specified from time to time by the State Government. (2) Subject to the provisions of sub-section (1) a Gram Panchayat may, after prior approval of the prescribed authority, appoint from time to time such employees as may be considered necessary for efficient discharge of its functions under this Act in accordance with such procedure as may be prescribed: Provided that the Gram Panchayat shall not create any post except with the previous approval of the prescribed authority. (3) The Gram Panchayat shall have power to impose punishment of any description upon the employees appointed under sub-section (2) subject to such conditions and restrictions and in accordance with such procedure as may be prescribed. (4) The Gram Panchayat may delegate to the Pradhan or to any of its Committees, subject to such conditions and restrictions as may be prescribed, the power to impose any minor punishment upon the employees appointed under sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... month would be disbursed on the basis of attendance verification and monthly report of the Gram Panchayat Committee concerned. Deductions would be made from the salary of employees who are unauthorizedly absent. There is no dispute that while working under Gram Panchayats, the Tube-well Operators were continued to be paid salaries by the Irrigation Department. They were under the disciplinary control of the Irrigation Department and also got promotions in the Irrigation Department. There is also no dispute that their service conditions were governed by the Service Rules framed under Article 309 of the Constitution. The expression Supervision and Control of the Gram Panchayat only means to the extent of transfer of supervision to the Gram Panchayat. The expression shall serve under the supervision and control of the Gram Panchayat would only mean supervisory powers and control of the Gram Panchayat. The overall control of the employee was still with the Government when Section 25(1)(b) unequivocally provides that they shall perform such duties as may be specified form time to time by the State Government. This would clearly show that they were working under the superviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re sent to Gram Panchayats. This is the reason why the employees of five Departments were sent back to their Departments and they joined their own Department without any protest. This is also the reason why even a section of Tube-well operators would like to go back to the Parent Department, the Irrigation Department. They are equally aggrieved by the impugned order of the High Court and have preferred Civil Appeal No. 10091 of 2006. That they were sent to Gram Panchayats purely temporarily and on deputation till the Gram Panchayats themselves make appointments is also clear from the language employed in Section 25(2) of the Act. We, accordingly, hold that the expression Transfer is used in Section 25 loosely. They were actually sent on deputation keeping their lien with their Parent Departments. Once we hold that the respondents were on deputation to Gram Panchayats, the position of deputation in service is well settled by a catena of decisions of this Court. Avoiding multiplicity, we refer to Kunal Nanda v. Union of India and another (2005) 5 SCC 362 as under: The basic principle underlying deputation itself is that the person concerned can always and at any time be r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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