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CASE NO.:

Appeal (civil) 3340 of 2007

PETITIONER:

M/S GUJARAT PRADESH PANCHAYAT PARISHAD & ORS

RESPONDENT:

STATE OF GUJARAT & ORS

DATE OF JUDGMENT: 30/07/2007

BENCH:

C.K. Thakker & P.K. Balasubramanyan

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NO. 3340 2007

ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 12907 OF 2005

C.K. THAKKER, J.

1. Leave granted.

2. A question of considerable public importance

has been raised by the appellant in the present appeal

which has been instituted against judgment and order

passed by a Single Judge of the High Court of Gujarat in

Gujarat Pradesh Panchayat Parishad & Ors. v. State of

Gujarat & Ors. in Special Civil Application No. 1192 of

2002 and companion matters decided on 25th October,

2002 and reported in (2003) 1 Guj LR 633 and confirmed

by a Division Bench of the High Court in Letters Patent

Appeal No. 1126 of 2002 decided on June 14, 2005.

3. To appreciate the controversy raised in the

appeal, few relevant facts may be stated:

4. The Gujarat Pradesh Panchayat Parishad,

appellant No.1 herein, is a Society registered under the

Societies Registration Act, 1860. All District Panchayats,

Taluka Panchayats and Gram Panchayats are members

of the Parishad. Appellant No.1 purports to protect the

interest of the Panchayats in the State of Gujarat by

ensuring that their members function as institutions of

'Local Self Government'. Appellant No.2 is the

Sabarkantha District Panchayat consisting of elected

representatives. Appellant No.3 is the President of the

said District Panchayat. Respondent No.1 is the State of

Gujarat, Respondent No.2 is the Development

Commissioner, while respondent No.3 is the District

Development Officer of Sabarkantha District Panchayat.

5. The question raised by the appellants before

the High Court as well as before us centres round the

powers of the District Development Officer vis-`-vis the

powers of the President of District Panchayat in the

administration of District Panchayat under the Gujarat

Panchayats Act, 1993 (hereinafter referred to as 'the

Act').

6. According to the appellants, Part IX of the

Constitution read with the relevant provisions of the Act

leaves no room for doubt that the District Development

Officer is expected to exercise all executive powers of the

District Panchayat, subject to the orders, if any, of the

President of the District Panchayat.

7. It is alleged by appellant No.2 that the District

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Development Officer, Sabarkantha (Respondent No.3)

started ignoring the President of the District Panchayat

in matters concerning administration, particularly

relating to appointment, transfer, promotion, posting,

etc., of Panchayat employees. The appellant No.2,

District Panchayat, Sabarkantha, therefore, passed

Resolution No.6 on November 21, 2001, inter alia,

resolving that the District Development Officer shall

consult the President of the District Panchayat in

matters of recruitment, appointment, transfer,

promotion, posting, deputation etc. of all Panchayat

employees of the District Panchayat. By an Office Order

dated December 13, 2001 the President of the District

Panchayat in the purported exercise of the power under

Section 83 read with Section 162 of the Act, directed the

District Development Officer to place all the files relating

to recruitment, appointment, promotion, transfer and

deputation of employees in the District Panchayat for his

consultation. The District Development Officer, however,

was adamant in his attitude and asserted that in

administrative matters of recruitment, appointment,

promotion, transfer, deputation, etc., of employees of the

District Panchayat, the power could be exercised only by

the District Development Officer and the President of the

District Panchayat had no voice in executive or

administrative functions of the District Development

Officer. Because of the difference and non-observance of

the resolution passed by the District Panchayat, the

appellant approached the High Court by invoking Article

226 of the Constitution for an appropriate writ, direction

or order compelling the District Development Officer to

act in accordance with Section 162 of the Act, abiding by

Resolution No.6 passed by the District Panchayat and by

taking all decisions in conformity with the said

resolution.

8. The learned Single Judge heard the petition,

and considered rival submissions of the parties. He

referred to the relevant parts of the Constitution and

material provisions of the Act and held that it was

obvious that the Legislature did not contemplate

superimposing role of the President of the District

Panchayat over the functions performed and powers

exercised by the District Development Officer as the

executive head of the District Panchayat. The learned

Judge ruled that the executive powers of the District

Panchayat are not vested in the President of the District

Panchayat but they are to be exercised by the District

Development Officer. Considering the case-law on the

point, the learned Judge held that the status and

position of the President of the District Panchayat was

neither similar to the Chief Minister of a State, nor of a

Sarpanch of village Panchayat. The contention of the

appellants that the District Development Officer was

merely a Secretary of the Panchayat and could not

exercise any power without order to that effect by the

President of the District Panchayat was negatived. In the

opinion of the learned Single Judge, the President could

issue directions to the District Development Officer in

individual cases and the District Development Officer

must pay heed to such 'tap on his shoulder'. He should

also inform the President about the action taken or order

passed by him. The Court posited that the District

Panchayat had no power, authority or jurisdiction to

pass a resolution directing the District Development

Officer to place all matters relating to recruitment,

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promotion, transfer posting, deputation, etc. of

employees of the Panchayat for consultation of the

President of the District Panchayat nor to obtain prior or

even subsequent permission, approval or order from

him.

9. The learned Single Judge, in the light of the

decision, recorded the following conclusions;

(i) (a) The Constitution has not conferred

upon District Panchayats or any

other institution of Local Self

Government any status or role

conferred upon States as Provinces

in a Federation. While constitutional

status is conferred on Panchayats

as institutions of self-Government,

the Constitution has left it to the

State Legislature to determine the

extent of devolution of powers to

such institutions at the appropriate

level, subject to such conditions as

may be specified in the State

enactment.

(b) The State Legislature has in the

Gujarat Panchayats Act, 1993

provided for fusion of the principle

of local self-Government with the

principle of centralised planning. If

not properly operated, the two

principles may have the potential of

conflicting with each other, but the

Legislature has, by carefully selected

expressions, carved out distinct

roles for elected heads of

Panchayats and for civil servants

and also provided for State

Government control for specific

purposes.

(ii) The executive powers of the District

Panchayat are not vested in the President

of the District Panchayat, unlike the

vesting of the executive powers of the

Village Panchayat in the elected

Sarpanch.

(iii) The executive powers of the District

Panchayat are vested in the District

Development Officer and the exercise of

these powers is subject to the orders, if

any, of the President of the District

Panchayat or the District Panchayat, as

the case may be. But this does not mean

that the District Development Officer is

required to obtain prior orders of the

President or the District Panchayat.

(iv) While the powers and functions of the

President of the District Panchayat do

include watching over the financial and

executive administration of the

Panchayat and exercising administrative

supervision on the District Development

Officer for securing implementation of

resolutions or decision of the Panchayat

or any committee thereof, such watching

over and exercising administrative

supervision does not mean taking

decisions in matters of day-to-day

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administration or in matters of

appointment, transfer or other conditions

of service of the Panchayat employees or

of officers posted by the State

Government under the Panchayats. The

Act and the Rules, therefore, do not

contemplate that the District

Development Officer is required to obtain

prior approval of the President of the

District Panchayat or of the District

Panchayat before taking decisions in

executive matters, much less in matters

which are entrusted to the District

Development Officer by the statutory

rules under Section 227 of the Act.

(v) However, the power of the District

Development Officer to exercise such

executive powers including the powers

conferred by the Rules under Section

227(5) of the Act is subject to the orders

of the President of the District Panchayat

or the District Panchayat in individual

cases i.e. it is open to the District

Panchayat and to the President of the

District Panchayat to issue instructions

to the District Development Officer to

take appropriate remedial measures in

matters causing concern to the elected

representatives of the people, when the

local people suffer any hardships or if the

benefits intended to reach the people at

large or the specified categories of

beneficiaries do not reach them.

(vi) The D.D.O. is not merely a Secretary of

the District Panchayat. The Act has

contemplated a much larger and more

important role for the D.D.O. In all

executive matters while the D.D.O. need

not wait for a nod of approval from the

President, he must pay heed to a tap on

the shoulder from the President, if at all

the President finds it necessary to do so

in a given case. In short, the executive

initiative remains with the D.D.O..

(vii) In matters of preparing development

projects and the projects for the benefit of

the people within the sphere of

Panchayats, the elected office-bearers will

have a greater say while setting out the

goals, but in deciding as to how those

goals are to be achieved, and for deciding

as to through which officers and

employees the particular tasks at hand

are to be carried out, it is the District

Development Officer and the other

administrative officers who will have

greater say, subject to the power of the

President to exercise administrative

supervision over the District Development

Officer for securing implementation of the

resolutions or decisions of the

Panchayat/Committee thereof.

(viii) The illustration given in Para 11.9

hereinabove exemplifies the scheme of

the Gujarat Panchayats Act and the roles

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envisaged for the President of the District

Panchayat and the administrative

officers. In any Panchayat set-up, it is for

the D.D.O. and other administrative

officers and the President of the District

Panchayat and other elected

representatives of the people to build up

a smooth working relationship. No

administration can effectively or properly

function if the political executive and the

civil servants are always at loggerheads

or if they do not focus their attention on

their basic duties i.e. formulation of

policies and programmes by the political

executive and implementation of such

policies and programmes by the civil

servants.

It is with the aforesaid perspective that

the President of the District Panchayat

and the D.D.O. have to play their

respective roles and with due sensitivity

to the role of the other. They have to co-

operate with and complement each other

and function as the two wheels of a

chariot. The difficulty arises when the

wrong question is asked as to who is in

the driver's seat - the President or the

D.D.O.? The simple answer to this

question which ought not to arise in the

first place is - the Public Welfare has to

be in the driver's seat. Once, this truth is

realised, the Panchayat administration

will run very smoothly and as intended

by the Constitution as well as the

Legislature.

(ix) The question whether the D.D.O. is to

exercise his executive powers subject to

the orders of the President and the

District Panchayat or subject to the

general control of the District Panchayat

will depend on the nature of the matters

in which such powers are to be exercised.

(x) The State Government may exercise its

control over the District Panchayat

through the D.D.O. within the

parameters and as per the modalities as

indicated in para 14 hereinabove.

(xi) Resolution No. 6 passed by the

Sabarkantha District Panchayat on 21-

11-2001 and the office order dated 13-

12-2001 issued by the President of the

Sabarkantha District Panchayat are

illegal, as they are inconsistent with the

principles laid down in this judgment.

(xii) So also in case of Junagadh and

Jamnagar District Panchayats, orders of

the Presidents of these respective District

Panchayats suffer from the same

infirmity.

10. Being aggrieved by the judgment and order

passed by the Single Judge, the appellants herein

approached the Division Bench by filing intra court

appeal (Letters Patent Appeal) under Clause 15 of the

Letters Patent. The Division Bench of the High Court

again considered the relevant provisions of the Act as

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also of the Constitution and observed that it was in

agreement with the view taken by the learned Single

Judge and the conclusions reached by him. The

conclusions arrived at could not be said to be

inconsistent with the provisions of law.

11. The Division Bench, therefore, stated:

"We, therefore, agree with the learned

Single Judge that the District Development

Officer is not required to seek previous

approval or permission of the District

Panchayat or its President. However, the

District Panchayat or the President of the

Panchayat shall have powers to issue direction

to the District Development Officer to bring his

actions within the constitutional or statutory

frame and in accordance with the economic

plan".

12. On April 10, 2006, the Special Leave Petition

was placed for admission-hearing and notice was issued.

On January 19, 2007, the Court directed the Registry to

post the matter for final hearing. The matter is thus

placed before us.

13. We have heard learned counsel for the parties.

14. Learned counsel for the appellants strenuously

contended that the judgment and order passed by the

learned Single Judge and confirmed by the Division

Bench of the High Court is contrary to law and

inconsistent with the letter and spirit of the Constitution

(Seventy-third Amendment) Act, 1992 as also against the

Gujarat Panchayats Act, 1993. According to the counsel,

Part IX came to be inserted in the Constitution by

ensuring democracy at the grass root level and by

conferring powers on such local bodies in their day-to-

day administration. The High Court committed an error

of law in holding that while exercising administrative

powers under the Act, the District Development Officer

was not required to comply with the orders passed by the

District Panchayat and the President of the Panchayat. It

was submitted that such a view would destroy the

constitutional set up in Part IX. It would also make

Sections 83 and 162 of the Act totally unworkable, otiose

and redundant. It was also argued that the High Court

was not right in placing reliance on Rules framed under

the Act (child legislation) and in upholding the power of

the District Development Officer ignoring clear provisions

of the Act (parent legislation) and the language used in

Section 162 which is clear, unambiguous and

unequivocal.

15. It was, therefore, submitted on behalf of the

appellants that the judgment of the High Court deserves

to be set aside by upholding the validity of Resolution

No.6 passed by the District Panchayat and by issuing

necessary directions to the District Development Officer

to obey the said resolution and to act in accordance with

the directions issued thereunder.

16. The learned counsel for the District

Development Officer, on the other hand, supported the

judgment and order passed by the learned Single Judge

and confirmed by the Division Bench of the High Court.

She submitted that the High Court considered in detail

the relevant provisions of the Constitution as also of the

Act and held that there is difference between President of

the District Panchayat and other representatives of

people (elected members) and the District Development

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Officer and officials of District Panchayat (administration

wing). So far as policy matters are concerned, the

President of the District Panchayat and elected members

are competent to take appropriate decisions which are to

be implemented by the administrative wing through

District Development Officer and officers of the District

Panchayat. But as far as day-to-day civic administration

and recruitment, appointment, promotion, posting,

transfer, disciplinary proceedings, etc. of officers and

employees of the District Panchayat is concerned, the

Legislature has invested executive and administrative

powers in the District Development Officer. And it is the

District Development Officer who exercises administrative

powers subject to the orders, if any, of the President of

the District Panchayat. The High Court, according to the

counsel, interpreted the relevant provisions keeping in

view the intention of the Legislature and issued

necessary directions which cannot be said to be unlawful

or inconsistent with the provisions of the Constitution or

of the Act. The appeal, therefore, deserves to be

dismissed.

17. A counter affidavit on behalf of the State

Government is filed by the Development Commissioner

supporting the stand taken by the District Development

Officer. It is contended that the relief claimed by the

appellants that the President and/or the District

Panchayat is required to be consulted for appointment,

transfer, promotion, disciplinary action, etc. of its

employees is 'not warranted'. According to the deponent,

the District Development Officer is a 'statutory office'

conferred with the executive powers of a District

Panchayat.

18. We have gone through the decision of the

learned Single Judge, confirmed by the Division Bench of

the High Court. Our attention has also been invited by

the learned counsel for the parties to Part IX of the

Constitution, relevant provisions of the Act and Rules

framed under the Act.

19. So far as Part IX of the Constitution is

concerned, the same has been inserted by the

Constitution (Seventy-third Amendment) Act, 1992.

Article 243 defines various terms used in that Part.

Article 243-B provides for establishment of Panchayats in

every State at the village, intermediate and district levels.

Article 243-C provides for composition of Panchayats.

243-G deals with powers, authority and responsibilities

of Panchayats. It reads as under:

243G. Powers, authority and

responsibilities of Panchayats.\027Subject

to the provisions of this Constitution, the

Legislature of a State may, by law, endow

the Panchayats with such powers and

authority as may be necessary to enable

them to function as institutions of self-

government and such law may contain

provisions for the devolution of powers

and responsibilities upon Panchayats at

the appropriate level, subject to such

conditions as may be specified therein,

with respect to\027

(a) the preparation of plans for economic

development and social justice;

(b) the implementation of schemes for

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economic development and social justice as

may be entrusted to them including those in

relation to the matters listed in the Eleventh

Schedule.

20. It is not in dispute that before Part IX was

introduced in the Constitution, the Gujarat Panchayats

Act, 1961 was in force in the State. After the Constitution

(Seventy-third Amendment) Act, however, the State

Legislature enacted the present Act (Gujarat Panchayats

Act, 1993) to bring the law relating to Panchayats in the

State in conformity with Part IX of the Constitution.

Clause (14) of Section 2 of the Act defines 'Panchayat' to

mean a village Panchayat, taluka Panchayat or district

Panchayat. Clause (6) of the said section defines 'District

Development Officer' as such officer as the State

Government may appoint to be a District Development

Officer for the purposes of the Act. 'District Panchayat' is

defined in Clause (7) as the District Panchayat

constituted under the Act. Part III of Chapter IV relates to

District Panchayats. Section 81 fixes the term of office of

members of District Panchayat and of President and

Vice-President. Section 83 enumerates powers and

functions of President and Vice-President of the District

Panchayat. Sub-section (1) (a) of Section 83 reads thus:

(1)(a) The President shall\027

(i) convene, preside at and conduct meetings

of the district Panchayat;

(ii) have access to the records of the

Panchayat;

(iii) discharge all duties imposed, and

exercise all the powers conferred on him

by or under this Act;

(iv) watch over the financial and executive,

administration of the Panchayat and

submit to the Panchayat all questions

connected therewith which shall appear

to him to require its order; and

(v) exercise administrative supervision over

the District Development Officer for

securing implementation of resolutions or

decisions of the Panchayat or of any

Committee thereof.

21. Chapter V, inter alia, provides for

administrative powers and duties of officers and servants

of District Panchayats. Section 161 mandates that there

shall be a Secretary for every District Panchayat. It also

states that a District Development Officer posted under

the Panchayat shall be ex-officio Secretary of the

Panchayat. Section 162 is another material provision

prescribing powers and functions of District Development

Officer. The relevant part is sub-section (1) which reads

thus:

162. Powers and functions of District

Development Officer.\027(1) Save as otherwise

expressly provided by or under this Act, the

executive powers of a district panchayat for the

purpose of carrying out the provisions of this

Act, shall vest in the District Development

Officer who shall subject to the orders, if any,

of the President or of the district Panchayat, as

the case may be\027

(a) perform all the functions and exercise all

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the powers specifically imposed or

conferred upon him by or under this Act,

or under any law for the time being in

force; and

(b) lay down the duties of all officers and

servants of the district panchayat.

22. Chapter XIII (Sections 227-236) makes detailed

provisions relating to services. Section 227 requires

constitution of Panchayat services in connection with the

affairs of Panchayats and clarifies that Panchayat Service

shall be distinct from State Service. It states that the

State Government may by order from time to time

determine the classes, cadres and posts and the initial

strength of officers and servants in the Panchayat

service. Sub-section (5) is important and reads thus:

(5) Subject to the provisions of this Act,

the State Government may make rules

regulating the mode or recruitment either by

holding examinations or otherwise and

conditions of service or persons appointed to

the Panchayat service and the powers in

respect of appointments, transfers and

promotions of officers and servants in the

Panchayats service and disciplinary action

against any such officers or servants.

23. Section 230 provides for allocation of officers

and servants to Panchayat service.

24. The Act enables the Government to make rules

(Sections 227, 228, 235, 236, 274).

25. In exercise of powers conferred by the Act, the

State Government has framed several rules relating to

services under the Panchayat. The learned Single Judge

referred to those rules and observed that so far as

Panchayat service is concerned, District Development

Officer, Deputy District Development Officer and other

officials are having vide powers in recruitment,

appointment, promotion, transfer, deputation,

disciplinary matters, etc., of employees.

26. The argument that the view taken by the High

Court has destroyed or considerably eroded

constitutional set up in Part IX of the Constitution has

not impressed us. In our opinion, it cannot be said that

interpretation of various provisions of the Constitution or

the Act has disturbed, truncated or adversely affected the

status of Panchayats guaranteed by the Constitution.

Part IX of the Constitution confers certain powers on

Local Self Government. It promises duration of five years,

free and fair election, representation of Schedule Castes

and Schedule Tribes in the administration of institutions

of Local Self Government, 'no-interference' by other

organs of the State, including judiciary, etc. In our

opinion, however, the High Court was right in observing

that "a District Panchayat cannot arrogate to itself the

status of a body as independent or autonomous as a

Province in a Federation". Part IX of the Constitution or

Article 243-G makes no change in the essential feature of

the Panchayat organization. What was sought to be done

by the Seventy-third Amendment was that constitutional

status to the Local Self Government was conferred to

District Panchayats, Taluka Panchayats and Village

Panchayats. A State Legislature, in the light of

constitutional provisions in Part IX, cannot do away with

these democratic bodies at the local level nor their

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normal tenure be curtailed otherwise than in accordance

with law nor State Government can delay elections of

these bodies.

27. A question similar to one in hand of

interpretation of provisions of the Constitution in Part

IX-A concerning Municipalities came up for

consideration before a Constitution Bench of this Court

in Kishansing Tomar v. Municipal Corporation of the City

of Ahmedabad and Ors., (2006) 8 SCC 352 : JT 2006 (9)

SC 320. Examining the underlying object of inserting

Part IX-A by the Constitution (Seventy-fourth)

Amendment Act, 1992 and highlighting effective and

meaningful role to be played by local bodies in political

governance of the country, K.G. Balakrishnan, J. (as His

Lordship then was) stated;

"The object of introducing these provisions was

that in many States the local bodies were not

working properly and the timely elections were

not being held and the nominated bodies were

continuing for long periods. Elections had been

irregular and many times unnecessarily

delayed or postponed and the elected bodies

had been superseded or suspended without

adequate justification at the whims and

fancies of the State authorities. These views

were expressed by the then Minister of State

for Urban Development while introducing the

Constitution Amendment Bill before the

Parliament and thus the new provisions were

added in the Constitution with a view to

restore the rightful place in political

governance for local bodies. It was considered

necessary to provide a Constitutional status to

such bodies and to ensure regular and fair

conduct of elections. In the statement of

objects and reasons in the Constitution

Amendment Bill relating to urban local bodies,

it was stated:

In many States, local bodies have become

weak and ineffective on account of variety of

reasons, including the failure to hold regular

elections, prolonged supersessions and

inadequate devolution of powers and

functions. As a result, urban local bodies are

not able to perform effectively as vibrant

democratic units of self-Government.

Having regard to these inadequacies, it is

considered necessary that provisions relating

to urban local bodies are incorporated in the

Constitution, particularly for -

(i) putting on a firmer footing the

relationship between the State

Government and the Urban Local Bodies

with respect to:

(a) the functions and taxation powers,

and

(b) arrangements for revenue sharing.

(ii) ensuring regular conduct of elections.

(iii) ensuring timely elections in the case of

supersession; and

(iv) providing adequate representation for the

weaker sections like Scheduled Castes,

Scheduled Tribes and women.

Accordingly, it has been proposed to add a new

Part relating to the Urban Local Bodies in the

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Constitution to provide for\027

*** *** ***

(f) fixed tenure of 5 years for the

Municipality and re-election within a

period of six months of its

dissolution.

The effect of Article 243-U of the

Constitution is to be appreciated in the above

background. Under this Article, the duration of

the Municipality is fixed for a term of five years

and it is stated that every Municipality shall

continue for five years from the date appointed

for its first meeting and no longer. Clause (3) of

Article 243-U states that election to constitute

a Municipality shall be completed - (a) before

the expiry of its duration specified in Clause

(1), or (b) before the expiration of a period of

six months from the date or its dissolution.

Therefore, the constitutional mandate is that

election to a Municipality shall be completed

before the expiry of the five years' period

stipulated in Clause (1) of Article 243-U and in

case of dissolution, the new body shall be

constituted before the expiration of a period of

six months and elections have to be conducted

in such a manner. A Proviso is added to Sub-

clause (3) Article 243-U that in case of

dissolution, the remainder of the period for

which the dissolved Municipality would have

continued is less than six months, it shall not

be necessary to hold any election under this

clause for constituting the Municipality for

such period. It is also specified in Clause (4) of

Article 243-U that a Municipality constituted

upon the dissolution of a Municipality before

the expiration of its duration shall continue

only for the remainder of the period for which

the dissolved Municipality would have

continued under Clause (1) had it not been so

dissolved".

28. In our judgment, the controversy raised and

interpretation sought to be suggested by the parties as

regards powers of President of District Panchayat on the

one hand and of the District Development Officer on the

other has nowhere affected directly or even indirectly Part

IX of the Constitution. With respect, the question

agitated has no bearing on constitutional set up or status

of Local Self Government. We are, therefore, unable to

agree with the learned counsel for the appellant that the

decision of the High Court impugned in the present

appeal is inconsistent with the provisions of Part IX of

the Constitution.

29. The learned counsel for the appellant relied

upon Section 83 of the Act, which we have already

referred to. It deals with powers and functions of the

President and Vice-President of the District Panchayat

and, inter alia, states that the President of the District

Panchayat may exercise administrative supervision over

the District Development Officer for securing

implementation of resolutions or decisions of the

Panchayat or of any committee thereof. Inviting our

attention to dictionary meaning of 'administration' and

'supervision', the counsel contended that both the

expressions are of wide amplitude and take within their

sweep all administrative matters which are subject to

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supervisory control of the President. In our view, the High

Court is right that Section 83 empowers the President to

secure implementation of policy decisions taken by the

elected wing of the District Panchayat by issuing

necessary instructions and directions to District

Development Officer.

30. The learned Single Judge has explained this

principle by giving an illustration. It was stated that

suppose a primary health centre or a primary school

is to be set up by the Panchayat. In taking such

decision, elected wing of the District Panchayat

would play primary role as that wing is alive to the

needs of the people in the area. If the President

finds undue delay in implementation or improper

implementation of such decision, he may instruct

the District Development Officer to take necessary

steps for securing proper implementation of the

resolution of the Panchayat or the decision of its

Committee. But, once the centre is set up or the

school is established, it is for the District

Development Officer, District Health Officer or

District Primary Education Officer to decide as to

who should be appointed as Doctor in the health

centre or teacher in the school. Such matters must

be left to the administrative wing of the District

Panchayat.

31. Strong reliance was placed on sub-section (1)

of Section 162 of the Act which enumerates powers of

District Development Officer. It was submitted that

though the said provision relates to powers and functions

of District Development Officer, it states explicitly that

the executive powers of the District Panchayat will be

vested in the District Development Officer who would

exercise such powers "subject to orders, if any, of the

President of the District Panchayat". It was, therefore,

urged that the powers conferred on District Development

Officer are not 'absolute' or 'unqualified' but they are

subject to orders of the President of the District

Panchayat. Reading the provision as a whole and the use

of the words "if any", however, clearly suggests that the

power exercisable by the District Development Officer

under the Act is statutory power to be exercised by him.

The executive initiation remains with the District

Development Officer and he need not wait for a 'nod from

the President' before performing any administrative

function or taking any executive decision within the four

corners of law.

32. In this connection, we may refer to a decision

of this Court in Syed Bashiruddin Ashraf v. Bihar

Subai Sunni Majlis-e-awqaf & Ors., (1965) 2 SCR

205 : AIR 1965 SC 1206. In Syed Bashiruddin

Ashraf, a Constitution Bench of this Court was

called upon to interpret a similar expression

("subject to any order by the competent Court")

under Bihar Wakfs Act, 1947. Section 32 of the Act

conferred jurisdiction on the Majlis to make

temporary appointment in the office of the

Mutawalli subject to any order by a competent

Court. It was contended that the Majlis was not

competent to appoint Moulvi on a temporary basis

even if there was a vacancy without obtaining prior

permission of the Court. This Court, however,

negatived the argument and held that the Act

clearly conferred jurisdiction on the Majlis to make

temporary appointments when there was a vacancy

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in the office of the Mutawalli and the words "subject

to any order by the competent Court" could not be

construed to mean that there ought to be either

prior permission or subsequent assent before the

appointment. The said words denote that the

appointment was to endure according to its tenor

"till an order to the contrary was passed by a

competent Court".

33. In our considered opinion, the ratio in

Syed Bashiruddin Ashraf applies in interpreting the

provisions of sub-section (1) of Section 162 of the

Act in question. The District Development Officer

who is vested with the executive powers of the

District Panchayat is not required to obtain prior or

even subsequent orders of the President of the

District Panchayat. In individual cases, the

President may direct the District Development

Officer to take appropriate steps for securing

effective implementation of resolutions or orders

passed by the Panchayat or of any committee

thereof.

34. The High Court also considered an

important aspect that in matters relating to

services under the Panchayats, no express power

has been conferred nor duties imposed on the

President of the District Panchayat or members

(elected wing). The Legislature thus intended

services under the Panchayats to be dealt with

separately by the District Development Officer and

other officials of the Panchayat. It may be recalled

that District Development Officer is Class-I Officer

of the Indian Administrative Service appointed by

the State. He is also ex-officio Secretary of the

District Panchayat.

35. In A. Sanjeevi Naidu, etc. v. State of

Madras & Anr., 1970 (1) SCC 443 : AIR 1970 SC

1102, this Court had an occasion to consider the

role to be played by Council of Ministers (elected

wing) and Civil Servants (administrative wing).

Keeping in view the democratic governance, the

Court made the following observations:

"The cabinet is responsible to the

legislature for every action taken in any of

the ministries. That is the essence of joint

responsibility. That does not mean that

each and every decision must be taken by

the cabinet. The political responsibility of

the Council of Ministers does not and

cannot predicate the personal

responsibility of the Ministers to

discharge all or any of the governmental

functions. Similarly an individual Minister

is responsible to the legislature for every

action taken or omitted to be taken in his

ministry. This again is a political

responsibility and not personal

responsibility. Even the most hard

working minister cannot attend to every

business in his department. If he attempts

to do it, he is bound to make a mess of his

department. In every well planned

administration, most of the decisions are

taken by the civil servants who are likely

to be experts and not subject to political

pressure. The Minister is not expected to

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burden himself with the day to day

administration. His primary function is to

lay down the policies and programmes of

his ministry while the Council of Ministers

settle the major policies and programmes

of the government. When a civil servant

takes a decision, he does not do it as a

delegate of his Minister. He does it on

behalf of the government. It is always open

to a Minister to call for any file in his

ministry and pass orders. He may also

issue directions to the officers in his

ministry regarding the disposal of

government business generally or as

regards any specific case. Subject to that

over all power, the officers designated by

the 'Rules' or the standing orders, can

take decisions on behalf of the

government. These officers are the limbs

of the government and not its delegates.

(emphasis supplied)

36. A similar view was expressed recently by this

Court in Tarlochan Dev Sharma v. State of Punjab, (2001)

6 SCC 260 : AIR 2001 SC 2524 : JT 2001 (5) SC 645.

37. The parties also referred to the "Government

and Bureaucracy in India of 1947-76" by Mr. B.B. Mishra.

The learned author, in that work, stated;

"It must, however, be recognized that even the

most dynamic and competent of Minister has

understandable limitations which restrict the

sphere of direct participation in all the

intricate and detailed aspects of

administration. These include the complexities

of a modern Government, the possibility of

frequent changes in the ministerial field, the

frequency of visits to constituencies,

parliamentary preoccupations, and above all,

the technical nature of the various decisions

that have to be made without a thorough

knowledge of connected papers contained in

original files. The Minister's dependence on his

Secretary necessarily increases in a democratic

set-up. And although his leadership in the

entire sphere of administration is in theory

recognized as all pervasive, the scope of his

actual operation does not go much beyond a

clear understanding and direction of policy

matters, and not a knowledge of details. Thus,

the Maxwell Committee in 1937 laid down a

principle calculated to ensure administrative

efficiency within the frame-work of ministerial

responsibility. The Committee emphasized that

as collective ministerial responsibility

maintained the political unity of Government, so

should the unity of administrative control of

each Department be ensured by concentrating

the responsibility to advise the Minister in one

official, namely the Secretary".

(emphasis supplied)

38. It is evident from the above that there is clear

distinction between elected representatives and civil

servants. Elected representatives of the people at District

Panchayat level will formulate policy and civil servants

will execute it by implementing programmes and policy

decisions. In matters of formulation of policies and

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programmes also, civil servants may make significant

contribution by bringing the relevant data to the notice of

the political executive. Likewise, elected representatives

may inform civil servants about problems and difficulties

of people which can be taken care of by the

administration. But, both the functions are to be

performed by two wings which are different though

interdependent.

39. We are, therefore, unable to uphold the bald

assertion of the learned counsel for the appellant that the

District Development Officer must exercise statutory

powers conferred on him by the Act only after consulting

the President of the District Panchayat or the President of

the District Panchayat can issue omnibus directions to

the District Development Officer to place all files relating

to recruitment, appointment, promotion, transfer,

deputation, disciplinary action, etc. before him prior to

taking any action in such matters.

40. It was also urged by the learned counsel for

the appellant that the High Court had committed an

error of law in interpreting and relying on various Rules

framed under the Act and in upholding the power of the

District Development Officer in relation to service matters

under the District Panchayat. It was submitted that it is

settled law that the delegated legislation must be subject

to the parent Act and not vice versa. When the Act itself

provides that the District Development Officer will

exercise powers subject to the order passed by the

President of the District Panchayat, Rules cannot travel

beyond the said provision nor they can be interpreted to

mean that President of the District Panchayat has 'no

place' in services under the Panchayat. In other words,

the authority of the District Development Officer cannot

be upheld in Panchayat service on the basis of the Rules

framed under the Act.

41. Now it is true that the Rules (delegated

Legislation) must be consistent with the provisions of the

Act (parent Legislation). But it cannot be said that the

High Court was wrong in referring to those rules while

interpreting the provisions of the Act. Reading the

relevant provisions of the Act and the Rules framed

thereunder harmoniously, it appears to us to be crystal

clear that in the matters of services under the

Panchayats, the Legislature wanted the District

Development Officer and other officials of the District

Panchayats to exercise statutory powers and the High

Court was right in referring to the Rules.

42. For the foregoing reasons, in our opinion, the

view taken by the High Court cannot be said to be

contrary to law, inconsistent with the provisions of the

Act or infringing Part IX of the Constitution. We see no

infirmity in the judgment and order passed by the

learned Single Judge and confirmed by the Division

Bench of the High Court. The appeal, therefore, deserves

to be dismissed and is accordingly dismissed, however,

with no order as to costs.