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CASE NO.:

Appeal (civil) 1895 of 2006

PETITIONER:

U.P. Gram Panchayat Adhikari Sangh & Ors.

RESPONDENT:

Daya Ram Saroj & Ors.

DATE OF JUDGMENT: 11/12/2006

BENCH:

H.K. SEMA & P.K.BALASUBRAMANYAN

JUDGMENT:

J U D G M E N T

With C.A. Nos. 1896, 1897, 1898, 1899, 1900, 1901, 1902,

3455, 3523 of 2006, 8302-8313, 8314-8315, 8316, 8317-8319

of 2004, 680, 1083, 1084, 2920 of 2005, 6090 of 2001,

Contempt Petition ( C ) Nos. 114, 141 of 2006.

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. \026 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 country

and it shall be the duty of the State to apply these principles

in making laws.

By 73rd Constitutional Amendment Article 243G was

introduced in the Constitution of India. Article 243G reads as

under:-

"243G. Powers, authority and responsibility of

Panchayat. \026 Subject 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 \026

(a) the preparation of plans for economic

development and social justice;

(b) 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."

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Article 243G, thus, endows the Panchyats with such

power and authority as may be necessary to enable them to

function as institutions of self government. Such law may

contain provisions for the devolution of powers and

responsibilities upon Panchayats, subject to conditions as may

be specified, 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 of the Constitution.

To implement the 73rd Constitution Amendment, the

Uttar Pradesh Panchayat Raj Act 1947 (U.P. Act No. 26 of

1947) (hereinafter 'the Act') was amended and various

Government Orders were passed. We shall advert to the

amendment and orders passed thereunder at an appropriate

time.

We have heard S/Sh. Sunil Gupta, P.N. Mishra, Ashok H.

Desai, Rakesh Dwivedi, N.C. Jain, Jawahar Lal Gupta, L.

Nageshwar Rao, M.N. Rao, P.P. Rao, A.K. Ganguli, Arun

Jaitley, Mathai M. Paikdey Dr. Rajiv Dhawan, Raju

Ramachandran, S.K. Kalia, Ravindra Srivastava, learned

Senior advocates appearing for various

appellants/respondents. We have also heard other learned

counsel appearing for different parties.

FACTS

The facts in these appeals have a chequered history,

which we may recite briefly. By Government Orders (GOs)

dated 12.4.1999, 29.4.1999, 5.5.1999 and 27.5.1999 the

services of the employees of eight Departments were

transferred 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),

from Irrigation Department to the Gram Panchayats for

providing Multi-purpose workers to the Gram Panchayats and

by G.O. dated 26.7.1999 they were re-designated as Gram

Panchayat Vikas Adhikaris (GPVAs). They were put under the

control of the Gram Panchayats while discharging the

functions of their respective Departments.

Aggrieved thereby, several Writ Petitions, including Writ

Petition No. 33929 of 1999 were filed challenging the

constitutional validity of new Section 25 and Section 25A and

the G.O. dated 1.7.1999. The High Court, after hearing the

parties, upheld the validity of the Section and G.O. dated

1.7.1999 and held that such employees, transferred as GPVAs,

continue to remain Government Servants and to be governed

by the original and respective Service Rules. It was held they

are on deputation to Gram Panchyayats.

By G.O. dated 6.6.2001, 10,102 employees of two

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Departments, viz. Irrigation (Seenchpal Canal Div. \026 4782

employees) and Health (Male Health Workers \026 5320

employees) were repatriated to their Parent Departments.

Similarly, on 21.9.2001, 479 employees of Land Development

and Water Resources Department were also repatriated/called

back.

The aforesaid Govt. Orders were challenged by one

Krishna Kant Tewari by filing a Writ Petition in the High

Court. The learned Single Judge by his order dated 8.1.2002

dismissed the Writ Petition and upheld the G.Os. dated

6.6.2001 and 21.9.2001. It was held inter-alia that their

original cadres were not dead; they continued in their original

cadres; they had been sent only on deputation to the GPs; they

were merely re-designated as GPVAs; they had never been

absorbed into any new cadre of GPVAs and they could always

be repatriated to their original cadres.

Aggrieved by the order of the learned Single Judge, an

appeal was preferred before the Division Bench being Special

Appeal No. 94 of 2002, which was dismissed by the Division

Bench on 28.1.2002.

Against the order of the Division Bench, a Special Leave

Petition (C) No. 7842 of 2002 was preferred before this Court,

which was dismissed by a three Judge Bench of this Court on

26.4.2002, in which one of us (Sema, J.) was a party.

Legally speaking, the whole controversy about the status

of transferred employees as to whether their service conditions

were well protected under the Rules governing them in the

Parent Department and whether they were permanently

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 Operators as well as part-time Tube-

well operators of Irrigation Department to their Parent

Departments under the control of the Parent Departments.

The Order reads:

"No.3334/05-27-1-5-31-TW/2005

From,

Smt. Neera Yadav,

Chief Secretary,

Uttar Pradesh Shasan,

To,

1. All Divisional Commissioner, U.P.

2. All District Magistrate, U.P.

Irrigation Section-5 Lucknow Dated 19th July,2005

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Sub: Regarding transfer of all Tube Well Operators/

Part time Tube Well Operators back to Irrigation

Department for proper operation and maintenance

of state Tube Well who had been transferred to

Gram Panchayat.

Dear Sir,

In reference to the above subject the Government

has taken following decisions with immediate effect

for proper operation and maintenance of state Tube

Wells transferred to Gram Panchayats:-

(1) All State Tube Wells alongwith their assets may

again be transferred to Irrigation Department

from Gram Panchayats.

(2) Tube Well Operators/ Part time Tubewell

Operators of Irrigation Department, who were

transferred as multipurpose employees along

with tubewells on the post of Gram Panchayats

Development Officer under the control of Gram

Panchayats, may be again transferred alongwith

tube-wells back to their substantive posts of

tubewell operators/ part time tube-well

operators and under the control of Irrigation

Departments. To maintain the control of Gram

Panchayats also on these employees their

monthly attendance be sent to the concerning

officer of the tubewell section by the Chairman

of Water Management Committee.

(3) Right of water distribution and management of

tubewell be given to Water Management

Committee constituted for tubewell but in case

of any dispute the decision of Executive

Engineer, tubewell section shall be final.

(4) Entry of daily irrigation/delivery of water, daily

filing of jamabandi register and distribution of

irrigation fees along with equipments of

tubewells, water management system, previous

record list, pump efficiency chart, tube-well

repair register and inspection register etc. shall

be maintained and entries therein shall be made

by the Tubewell operator-Part time tubewell

operator, Tubewell mechanic/ Junior Engineer

(Tubewell) as done before.

(5) Maintenance expenditure of tubewell and

income expenditure provision for establishment

of tubewell operators/part time tubewell

operator and electrical energy may be 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

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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 decision taken by His Excellency, the

Governor of U.P. by which a new cadre of Gram

Panchayat Vikas Adhikari was created. The Chief

Secretary totally ignoring the Government Order

dated 20.07.2004 and provisions made therein

which have statutory force, issued impugned

circular without even referring or taking note of the

Government Order dated 20.07.2004. Thus, the

impugned circular is apparently without application

of mind and arbitrary."

The prayers made in the Writ Petition are as under:

(A) "Issue a writ, order or direction in the nature of

certiorari, quashing the impugned circular dated

19.7.2005, issued by the Chief Secretary,

Government of U.P. (Annexure 3 to this writ

petition).

(B) Issue a writ, order or direction in the nature of

mandamus commanding the opposite parties

not to interfere in the working of the petitioners

as Gram Panchayat Vikas Adhikari and to give

the petitioners all consequential service benefits

for which they are found entitled under law.

(C) Issue any other and further suitable writ, order

or direction which this Hon'ble Court may deem

fit and proper in the facts and circumstances of

the case.

(D) Award the cost of this petition to the

petitioners."

A perusal of the Writ Petition, particularly paragraphs 13,

15, 16, 17, 18 and 21 discloses that the contention, raised by

the petitioners that by G.O. dated 20.7.2004, a cadre had been

created and after creating a new cadre, the writ petitioners

cease to be employees of the Irrigation Department and the

earlier posts of Tube-well Operators stood abolished and their

order of repatriation, is bad. A contention has also been

raised that the petitioners could not be treated as on

deputation in the Gram Panchayats and they be treated as

simple transferees from Irrigation Department to Gram

Panchayat Department.

As already noticed, the G.O. dated 20.7.2004 was

questioned in Gauri Shanker (supra) by employees of three

Departments, viz. Agriculture, Cane Development and Rural

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Development, which was dismissed by the learned Single

Judge and affirmed by the Division Bench. In the aforesaid

decision, the High Court was of the view that the transferred

employees were actually on deputation to the Gram Panchayat

retaining lien in their Parent Department and, therefore, the

Government is competent to bring them back in their Parent

Department, as and when the necessity arises.

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:

"\005..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 Bench

were taken note of by the Division Bench in its Judgment as

under:

"It is to be noted that the repatriated workers of the

five departments did not take their repatriation

lying down, those were challenged in the Courts of

law; Writ Petitions were filed and in each and every

case those workers have been unsuccessful. We

make references to the cases of Krishna Kant

Tripathi, 2002 (1) U.P.L.B.E.C. 256. Certain other

references would also be found in one of the

judgments under appeal delivered on the 11th of

August, 2005 in Civil Misc. Writ Petition No. 53174

of 2005 and others. Reference should also be made

to the main case of Gauri Shanker and others Vs.

State of U.P. and others which is a decision given in

Special Appeal No. 1005 of 2004. The judgment

was delivered on the 25th of August, 2004.

In each of these cases, the Court laid down that the

repatriated workers have never lost their lien on

their original posts in the different Government

Departments and, as such their repatriation could

not be challenged on any ground. It was held that

they were doing the work as Gram Panchayat Vikas

Adhikaris no more than as the deputationists.

These decisions are binding decisions on us and we

cannot in any manner decide differently on a point

of law from the decisions given in these cases, we

being also a Division Bench of two Judges.

Having noticed as above, the learned Division Bench took

a turn and set at naught the order passed by the Co-ordinate

Bench on the ground that the facts are different.

We do not see any new facts that had arisen to enable

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the learned Division Bench to do so.

JUDICIAL DISCIPLINE

Judicial discipline is self discipline. It is an inbuilt

mechanism in the system itself. Judicial discipline demands

that when the decision of a co-ordinate Bench of the same

High Court is brought to the notice of the Bench, it is

respected and is binding, subject of course, to the right to take

a different view or to doubt the correctness of the decision and

the permissible course then often is to refer the question or

the case to a larger Bench. This is the minimum discipline

and decorum to be maintained by judicial fraternity.

The doctrine of judicial discipline has been succinctly

enunciated by the three Judge Bench of this Court in Kalyan

Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr.

(2005) 2 SCC 42 in paragraph 19 SCC as under:

"The 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 cadre in the Panchayat. By the same

breadth, the High Court blew hot and cold.

There is yet another reason as to why the impugned

decision of the Division Bench of the High Court is

unsustainable. Civil Appeal No. 1900 of 2006 was filed by the

employees of Social Welfare Department against the judgment.

They wanted to go back to their Parent Department. Civil

Appeal No. 1901 of 2006 was filed by Tube-well Operators

against the same judgment. They also wanted to go back to

their Parent Department, namely, Irrigation Department. By

the impugned order, the High Court set aside the order of

repatriation adversely affecting them without their being

brought on record as party respondents. They were neither a

party before the Single Bench nor before the Division Bench.

Mr. Ashok H. Desai, learned Senior counsel appearing for

the appellants in C.A. Nos. 1900 and 1901 of 2006 contended

that in these cases the High Court has flouted the settled

principles of natural justice by passing an order adversely

affecting the appellants without hearing them.

In Ishwar Singh Ajai Kumar & Ors. v. Kuldeep Singh

and Ors. 1995 Supp (1) SCC 179, this Court held as under:

"It is not disputed by the learned counsel for the

parties that except Ishwar Singh, no other selected

candidate was impleaded before the High Court.

The selection and the appointments have been

quashed entirely at their back. It is further stated

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that even Ishwar Singh, one of the selected

candidates, who was a party, had not been served

and as such was not heard by the High Court. We

are of the view that the High Court was not justified

in hearing the Writ Petition in the absence of the

selected candidates especially when they had

already been appointed. We, therefore, set aside the

judgment of the High Court dated December 8,

1992 and send the case back for fresh decision after

notice to the parties. The appeals are allowed in the

above terms. No costs."

In B. Ramanjini & Ors. v. State of U.P. & Ors. (2002)

5 SCC 533, this Court held in paragraph 19 SCC as under:

"19. Selection process had commenced long back as

early as in 1998 and it had been completed. The

persons selected were appointed pursuant to the

selections made and had been performing their

duties. However, the selected candidates had not

been impleaded as parties to the proceedings either

in their individual capacity or in any representative

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 concept is totally

done away with. There is no pleading in the original petition,

not even a whisper, about the legitimate expectation. It

appears that the High Court, at the appellate stage made

observations which induced some of the appellants at the last

minute to urge the ground of legitimate expectation which was

permitted and on the basis of it such finding has been

recorded. Such an approach is not permissible. See National

Building Construction Corporation v. S. Raghunathan &

Ors. (1998) 7 SCC 66.

The High Court has also directed that the part-time

Tube-well Operators shall be treated as permanent employees

under the same service conditions as the Tube-well Operators

as far as practicable. This direction runs in the teeth and the

guidelines of the Constitution Bench Judgment in Secretary,

State of Karnataka & Ors. v. UmaDevi (3) & Ors. (2006) 4

SCC 1. In fact, on this score alone the decision of the

Division Bench of the High Court deserves to be set aside.

We, now proceed to consider the contentions raised by

the respective parties:

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The principle contention which appears to be common is

that the Tube-well Operators were transferred as a

consequence of transfer of Governmental functions inter-alia

relating to minor irrigation, water management and water-

shed development etc. as part of the Constitutional Scheme of

devolution of powers on Gram Panchyats by law as a

permanent measure in order to enable them to function as

units of self-government. It is argued that this is one of the

basic features of the Constitution of India. The transfer of

Government employees engaged in discharging the functions

along with the tube-wells was the necessary consequence of

the State Legislature transferring certain functions of the

Government permanently to the Gram Panchayats to achieve

the Constitutional goal. A sustained bureaucracy was sought

to be created. Such devolution of powers by law is irreversible.

In any event, it cannot be undone either directly or indirectly

by the Executive which has to function in accordance with the

law, namely the U.P. Panchayat Raj Act, 1947 as amended in

1994 and again in 1999.

This contention, in our view, is not tenable in law. We

have already said that the 73rd Amendment was brought into

force on 24.4.93 to give effect to one of the Directive Principles

of State Policy, namely, Article 40 of the Constitution.

Therefore, it 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 State to eliminate or

modify. See Constitution Bench Judgment in M. Nagaraj &

Ors. v. Union of India & Ors. (2006) 8 SCC 212. Also see

Akhil Bharat Goseva Sangh (3) v. State of A.P. & Ors.

(2006) 4 SCC 162 and Kuldip Nayar and Ors. v. Union of

India & Ors. (2006) 7 SCC 1. where a Constitution Bench of

this Court considered the basic structure theory in paragraph

107 of the Judgment and held as under:

"107. The basic structure theory imposes limitation

on the power of Parliament to amend the

Constitution. An amendment to the Constitution

under Article 368 could be challenged on the

ground of violation of basic structure of the

Constitution. An ordinary legislation cannot be so

challenged. The challenge to a law made, within its

legislative competence, by Parliament on the ground

of violation of the basic structure of the Constitution

is thus not available to the petitioners."

TRANSFER \026 LOCK, STOCK AND BARREL

The contention of the learned Senior counsel for the

respondent that the transfer of the Tube-well Operators from

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Irrigation Department to the Gram Panchayat was lock, stock

and barrel and, therefore, it is a complete and permanent

transfer. This contention is factually incorrect and misplaced.

In fact, out of 26,117 operators in the Irrigation Department,

only 22329 were transferred and out of that 13,000/- joined

back the Irrigation Department pursuant to the G.O. dated

19.7.2005. This would also clearly show that they had a lien

with the Parent Department and they had gone back to the

Parent Department.

Mr. P.P. Rao learned senior counsel referred to the case

of State of Mysore Vs. R.S. Kasi, (1985) 2 SCC 110 where

this Court held that the constitutional scheme is irreversible.

He has also referred to the case of S.K. Saha vs. Prem

Prakash Agarwal, (1994) 1 SCC 431 where this Court held

that the transfer of entire department along with the posts to a

university is a complete transfer. He has also referred to the

cases of Bhim Singh vs. State of Haryana, (1981) 2 SCC

673 and Jawaharlal Nehru University Vs. Dr. K. S.

Jawatkar, 1989 Supp. (1) SCC 679. In our view, the

aforesaid decisions of this Court cited by learned Senior

counsel have no application in the facts and circumstances of

the case at hand.

Dr.Dhawan learned Senior counsel contended that the

power of the legislature is coupled with duty. They have a

duty to perform consistent with 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]. \026 (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)

(2) All markets and fairs or such portion thereof as

are held upon public land shall be managed and

regulated by the [Gram Panchayat] and the [Gram

Panchayat] shall receive to the credit of the Gaon

Fund all dues levied or imposed in respect thereof."

Firstly, vesting of the property in the Gram Panchayat

employed in Section 34 would mean the property vested for

the purpose of management and control. Not that the

property so vested is fastened to the Panchayat and remains

as its property. Secondly, public property has been defined

under Section 2(mm) of the Act as under:

"Public Property" and "Public Land" mean any

public building, park or garden or other place to

which for the time being the public have or are

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permitted to have access whether on payment or

otherwise."

Public property, as defined under Section 2(mm) shows it

is referable to public building, park or garden or other place to

which for the time being public have or are permitted to have

free access.

It is common knowledge that a tube-well is handled by a

technician \026 an expert hand. General public does not have

free access to the tube-well. They can only have free access to

the water drawn from the tube-well. In our opinion, therefore,

tube-well does not fall within the scope of public property

referred to in Section 34 of the Act.

THE BASIC QUESTION FOR CONSIDERATION

The basic question that calls for consideration is the

import and intent of Section 25 of the Act which substituted

the original Section 25 by the U.P. Act No. 27 of 1999 w.e.f.

27.6.1999.

Section 25, as amended in 1999, was in the following

terms:

"25. Staff \026 (1) Notwithstanding anything contained

in any other provisions of this Act, any Uttar

Pradesh Act, rules, regulations, or bye-laws or in

any judgment, decree or order of any Court,-

(a) the State Government may, by general or special

order, transfer any employee or class of

employees serving in connection with the affairs

of the State to serve under Gram Panchayats

with such designation as may be specified in the

order and thereupon posting of such employee or

employees in Gram Panchayats of a district shall

be made by such authority in such manner as

may be notified by the State Government;

(b) the employee or employees on being so

transferred and posted in a Gram Panchayat,

shall serve under the supervision and control of

the Gram Panchayat on the 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.

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(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 (2).

(5) An appeal from an order imposing any

punishment on an employee under sub-section (3)

shall lie to such officer or committee as may be

specified by the State Government by notification.

(6)The prescribed authority may, subject to such

conditions as may be prescribed, transfer any

employee referred to in clause (b) of sub-section (1)

from one Gram Panchayat to any other Gram

Panchayat within the same district and the State

Government or such other officer as may be

empowered in this behalf by the State Government

may similarly transfer any such employee from one

district to another.

(7) A Nyaya Panchayat may, with the previous

approval of the prescribed authority, appoint any

person on its staff in the manner prescribed. The

person so appointed shall be under the

administrative control of the prescribed authority

who shall have power to transfer, punish, suspend,

discharge or dismiss him.

(8) Appeal shall lie from an order of the prescribed

authority punishing suspending, discharging or

dismissing a person under sub-section (7) to an

authority appointed in this behalf by the State

Government."

Section 25, thus, clearly discloses that the transfer shall

be made with such designation as may be specified in the

Government Order; transfer and posting in Gram Panchayat

shall be made by such authority in such manner, as may be

notified by the State Government; the transferred employee to

the Gram Panchayat shall be under the supervision and

control of the Gram Panchayat; the service conditions of the

employee shall be on the 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; while in

service in Gram Panchayat, they shall perform such duties as

may be specified from time to time by the State Government.

WHETHER IT IS DEPUTATION SIMPLICITER OR

TRANSFER

Apart from the provisions contained in Section 25,

paragraph 9 of the Government Order dated 1.7.1999 further

clarifies the position. Paragraph 9 as translated (which is

stated to be a correct translation) reads:-

"9. Disbursement of salary of all the employees

referred to in Para 4 & 6 and working under the

control of Gram Panchayat would be done by the

departments in the same manner as is being done

at present, but the salary of the next month would

be disbursed on the basis of attendance verification

and monthly report of the Gram Panchayat

Committee concerned. Deductions would be made

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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 supervisory control of Gram

Panchayat keeping lien with the Parent Department, which is

the Irrigation Department. It is clear that they were sent on

deputation.

Section 25(1)(b) was clearly intended to safeguard the

service conditions of the employees working under Gram

Panchayats.

WHETHER IT IS TRANSFER?

The next question to be considered is whether they were

under transfer as visualized under Section 1(a) of Section 25 of

the Act.

It is contended by Senior counsel for the respondents

that it cannot be termed as deputation, because, to be on

deputation, tri-partite consent is necessary, namely, that of

the lending Department, the borrowing Department and the

employees.

We are unable to accept this contention for more reasons

than one. Firstly, the respondents (writ petitioners) did not

protest on their being sent to the Gram Panchayats. They

accepted the transfer with conditions without demur knowing

fully well their rights and obligations. They also accepted the

terms and conditions of Section 25 of the Act, as quoted

above. No protest, whatsoever, was raised either by the

employees or by Gram Panchayats. It is not the case of the

respondents nor of the Gram Panchayats that the transfers

were made against their consent despite protests. It is, in

these circumstances, that the consent is implied. The

expression "Transfer" employed in Section 25, in our view, is a

misnomer.

It is true that the language used in Section 25 is

"Transfer", but one has to read the Section as a whole, to get

the real meaning. The pay and allowances are paid by the

parent department. Their service conditions are governed by

the Service Rules in their respective Parent Departments

framed under Article 309 of the Constitution. The over all

control was vested in the respective Departments. It is also

true that in the Govt. Order various expressions have been

used like transfer, repatriation, dead cadre etc., which have

been subsequently clarified in the counter of the Government.

Hundred errors do not make one right. By reading Section 25

as a whole and understanding the language employed therein,

it is clear that the employees of various Departments were sent

to gram-panchayats on deputation pure and simple. They

kept their lien in their respective Departments. This is the

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correct reading of the Section and nothing more. This is also

true to their own knowledge when they were 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 repatriated to his parent department to

serve in his substantive position therein at the

instance of either of the departments and there is

no vested right in such a person to continue for long

on deputation or get absorbed in the department to

which he had gone on deputation."

We may also dispose off one contention of Dr. Rajiv

Dhawan, learned Senior counsel despite our holding that the

respondents were sent on deputation and not on transfer.

According to Dr. Dhawan, reading Section 25(a) and Sections

25(6) conjunctively, the State Government is empowered to

transfer any such employee only from one District to another

or from one Panchayat to another. According to him,

therefore, the State is incompetent to pass an order to transfer

them back to the Irrigation Department. We are unable to

accept this submission. Sub-section 6 does not take away the

general power of transfer as it is understood in the language

used. What is intended by sub-section (b) is that apart from

the general power of transfer as visualized in Section 25(a), the

State Govt. will also be empowered to transfer the employee

from one District to another District so long as he remains

under the control of Panchayat. Sub-section(6), therefore,

does not take away the general power of the Government of

transfer/repatriation of the respondents from Gram

Panchayats to the Parent Departments.

In the view that we have taken, the judgment and order

of the Division Bench dated 8.2.2006 is not sustainable in law.

The judgment and order of the Division Bench quashing G.O.

dated 19.7.2005, 25.1.2006 and 8.9.2005; the direction that

the Tube-well Operators and part-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. The order of the learned Single Judge dated

11.8.2005 is restored. The C.W.P. No. 53127 of 2005 stands

dismissed. The Government Order dated 19.7.2005 with all

consequential orders passed thereunder is restored.

We also noticed that the Division Bench of the High

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Court has quashed the Orders dated 8.9.2005 and 25.1.2006,

which are not the subject matter of the writ petition. The High

Court order to that effect is also set aside. The Government

Orders dated 8.9.2005 and 25.1.2006 are restored.

The employees are directed to go back to their Parent

Department and resume duties within two weeks from today.

The net result is Civil Appeal Nos. 1895/06, 1896/06,

1897/06, 1898/06, 1899/06, 1900/06, 1901/06, 1902/06,

3455/06, 3523/06 are allowed. Civil Appeal Nos. 8302-

8313/04, 8314-8315/04, 8316/04, 8317-8319/04, 1083/05,

1084/05, 2920/05, 680/05 and 6090/01 are dismissed.

Contempt Petition Nos. 114 & 141 of 2006 are

discharged.

No order as to costs.