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KRISHAN KANT TIWARI & ANOTHER versus STATE OF U.P. THROUGH CHIEF SECRETARY PANCHAYATI RAJ & ORS.

High Court of Judicature at Allahabad

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Krishan Kant Tiwari & Another v. State Of U.P. Through Chief Secretary Panchayati Raj & Ors. - WRIT - A No. 22874 of 2001 [2002] RD-AH 1 (8 January 2002)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Yatindra Singh,J.

1. These writ petitions challenge the validity of the Government Orders (GOs) dated 6.6.2001, 21.9.2001 and 19.11.2001 so far as they ,

repatriate the employees of three departments (who were earlier transferred to Gram Panchayats) to their parent departments;

re-designate and confine the duties of employees of two departments (still under control and supervision of Gram Panchayats) according to their educational qualifications.

The consequential orders in pursuance of these GOs are also challenged. They are of different dates but their validity depends upon the validity of the aforesaid GOs; they float or sink with the GOs.  

HISTORICAL BACKGROUND OF THE GOs

2. India that is Bharat is union of States. Its territories consist of territories of the states and the Union territories. Geographically they are divided into districts.   A district consists of urban and rural areas. Urban areas are governed by Municipalities and rural areas by Panchayats. Our majority lives in rural areas, yet there was no reference to Panchayats in the draft constitution, prepared (October, 1947) by Sri B.N. Rau, the constitutional adviser. This led Mahatama Gandhi to say,

''I must confess that I have not been able to follow the proceedings of the Constituent Assembly…[The correspondent] says that there is no mention or direction about village Panchayats and decentralisation in the foreshadowed Constitution. It is certainly an omission calling for immediate attention if our independence is to reflect the people's voice. The greater the power of the Panchayats, the better for the people' (Harijan, 21 December 1947)

3. The draft constitution was settled by a drafting committee before its introduction in the constituent assembly on November 4, 1948 by its chairman, Dr. BR Ambedkar. This settled draft was criticised, as it also did not have any reference to Panchayats.

''[While introducing the Draft Constitution and referring to criticisms thereof, Ambedkar had expressed himself strongly against the system of village panchayats. Characterizing the village as "a sink of localism" and "a den of narrow-mindedness", he had observed: "I am glad that the Draft Constitution has discarded the village and adopted the individual as its unit" The expression of such a view by Ambedkar had evoked strong resentment and protests from a number of members. C.A. Deb. Vol VII, pp 39-9.'  (The Framing of India's Constitution: A study; published by the Indian Institute of Public Administration, New Delhi, page 330, footnote 3)

Subsequently, an amendment (Article 31-A) was adopted on November 22, 1948 without any comments from Dr. Ambedkar. This became Article�40�of�the � Constitution, one�of�the Directive�Principles�of State Policy. It lays down that the State�shall take�steps�to organise panchayats and endow them�with�such powers and authority as may be necessary to enable them to function as units�of self-government.�

4. Sri Jai Prakash Narain in a foreword to the book ''Panchayat Raj and Indian Politics: Dharampal: Collected Writings' says,

''During the freedom struggle, because of Gandhiji's formative influence upon the political thinking of those who fought for freedom, it was more or less taken for granted that gram raj would be the foundation of swaraj. In other words, the concept political and economic decentralisation was axiomatic with the fighters for freedom. But when the constitution came actually to be constructed, that concept somehow was forgotten, or, to be more precise, remembered only as an after-thought.'

5. Our experience with Panchayats in independent India had not been happy.  These institutions were not able�to�acquire�the�status and dignity of�viable�and � responsive people's�bodies�due�to�a number of reasons including absence�of regular elections, prolonged suppressions,�insufficient representation�of�weaker sections like scheduled castes scheduled Tribes�and�women,�inadequate�devolution�of�powers, and�lack�of financial resources. It�was considered necessary that some basic and essential features of Panchayati�Raj Institutions be enshrined in�the Constitution�to impart certainty, continuity and strength to them. Accordingly a�new�Part�IX relating�to Panchayats was added in the Constitution by 73rd Constitutional Amendment Act. So far as relevant for this case, it, inter-alia provides for,

devolution by the State � Legislature�of powers�and�responsibilities upon the Panchayats with respect to�the preparation�of plans for economic developments and social justice and for�the implementation of development schemes (Article 243G);�

sound finance of�the Panchayats�by�securing�authorisation from�State�Legislatures � for grants-in-aid�to�the�Panchayats from the Consolidated Fund�of � the State,�as also assignment to, or appropriation by, the Panchayats�of the�revenues of designated taxes, duties, tolls and fees (article 243H);�

bringing existing laws in conformity with provisions contained in part IX of the Constitution within  one year. (Article 243N). (The relevant articles of the Constitution are in Appendix-1 to this judgment.

6. Article 243B in part IX envisages three tier system of Panchayats; one at village level, one at district level, and one at intermediate level.  In our State, rural area of a district is divided into Blocks that in turn consist of villages and three levels of Panchayats were already in existence. A gram Panchayat is a local body governing a village; it could comprise more than one village also.  It is governed by the UP Panchayat Raj Act, 1947 (the Panchayat Raj Act). Under UP Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961, Kshettra Panchayat govern a block (intermediate level) and Zila Panchayat a district.  After 73rd Constitutional amendment many amending Acts were enacted to bring the existing law in conformity with the 73rd Constitutional amendment. UP Act no. 9 of 1994 is the first of many such amending Acts.  Reference to earlier law and amended law in this judgment refers to law as it stood before UP Act no. 9 of 1994 and the law as it stands today.  

7. Chapter IV of the Panchayat Raj Act is headed as ''Powers, Duties and Functions Administration of Gram Panchayat'.  The earlier section 15 under this chapter was titled as 'Duties and Functions'. It allowed the Gram Panchayats to take reasonable provision for the things mentioned in that section.  This was drastically amended; it is now titled, as 'Functions of Gram Panchayat' and now Gram Panchayats are required to perform functions regarding the things mentioned in this section. A comparison of old and new section shows vast difference between the two and it includes matters enumerated in schedule XI of the Constitution, as required under article 243G of the Constitution. (Earlier and amended section 15 is in Appendix-2 to this judgment).

8. Sections 25 and 25 A of Panchayat Raj Act provide for staff and disciplinary proceedings. (Earlier and amended sections 25 and 25-A are Appendix 3 to this judgment).  Under earlier section 25 A the State Government was to appoint Panchayat Sewak for a Panchayat who was to be its Secretary. UP Panchayat Sewak Service Rules, 1978 were framed for recruiting them. This cadre of UP Panchayat Sewak Service was re-named as UP Gram Panchayat Adhikari Service with effect from 27.3.1989 by amending the rules though there was no corresponding amendment in section 25A.  The State promulgated an Ordinance that was later replaced by UP Act no. 27 of 1999.  This amending Act was enforced on 27th June 1999.  It substituted sections 25 and 25A in the UP Panchayat Raj Act. New section 25 (1) (a) empowered the State Government to transfer employees under supervision and control of Gram Panchayats.

9. The State Government initially issued a GO dated 12th April 1999. It was partly modified on 29th April 1999. Under this GO at least one multipurpose worker was to be appointed in every Gram Panchayat from the employees of eight departments of the government who were transferred and kept under control and supervision of Gram Panchayats. At that time, there was no statutory provision in the Panchayat Raj Act empowering the State Government to transfer the employees. This GO was cancelled on 30.6.1999 and a fresh GO was issued on 1.7.1999 after enforcement of UP Act no. 27 of 1999 empowering such transfers. This GO was partly modified on 12.7.2001 (Relevant part of these GOs are in Appendix-4).

10. The GO dated 1.7.1999 (as modified) is similar to the GO dated 12.4.1999 in many respects. It has similar provisions.  Similarly at least one multi purpose worker, known as Gram Panchayat Evam Vikas Adhikari, was to be appointed in every Gram Panchayat. He is to be from the employees of stated posts of the eight departments of the government who were transferred to the gram panchayts (paragraph 4 of this GO).  He is to be the Secretary of the Gram Panchayat. The multi purpose workers are to perform all functions of the eight departments except some, which are to be performed by the Lekhpals of the Revenue Department (Paragraph 5 of this GO). The transferred employees are to work under control and supervision of the Gram Panchayats. Apart from this, employees of four other departments were also placed under control and supervision of Gram Panchayats, but they are not multi purpose workers but are required to do the work of their departments only (Paragraph 6 of this GO).

11. This arrangement continued for some time. Thereafter Sinchai Sangh Uttar Pradesh made two representations dated 12.4.2000 and 21.3.2001 and Uttar Pradesh Basic Health Workers Association made a representation dated 19.5.2000 bringing out difficulties to the knowledge of the State Government and for changing the arrangement. The State Government also appointed a committee to look into difficulties in January 2001 then on the basis of its recommendation, the GO dated 6.6.2001 was issued.  This was modified by the GO dated 6.7.2001 and 21.9.2001.  By these GOs, Sinchpal  (Canal Division) and Male Health workers are sent back to their parent departments. The tube-well operators and Cane supervisors having qualification up to High School were re-designated as Gram Panchayat Evam Vikas Adhikari (Karyakram) and they were to look after the work of their department only.  The Tube-well operators and Cane Supervisors having higher qualification were continue to work as multi purpose worker; they were to perform work of other departments also (The relevant part of GO dated 6.6.2001 as modified by the GO dated 6.7.2001 and 21.9.2001 is Appendix-5 to this judgment). By GO dated 19.11.2001, Sinchpal cadre belonging to the department of Bhumi Vikas and Jal Sansadhan Department were also sent back to their parent departments. (The relevant part of this GO is Appendix-6 to this judgment). Thus, by the impugned three GOs, the employees of the three departments were repatriated and employees of two departments were re-designated and confined in their duties on the basis of educational qualification.

POINTS FOR DETERMINATION

12. I have heard Sri UN Sharma, Sri BN Singh and Sri HN Singh counsels for the petitioners. Sri Kripa Shanker Singh and Sri Ajay Bhanot have been heard for the respondents. The following points arise for decision.

(i)Whether GO dated 6.6.2001 is violative of Article 166 of the    Constitution of India? Is it a decision of the State Government?

(ii)Is the cadre of the transferred employees a dead cadre? What is the status of the transferred employees? Have they been absorbed in a new cadre? Are they merely transferred or are on deputation to Gram Panchayats?

(iii) Can Sinchpal (canal division), Male Health Workers, and Sinchpal (Bhumi Vikas and Jal Sansadhan Department) be sent back to their parent departments? Could the power to transfer them be exercised only once? Is this action of sending them back to their parent departments arbitrary or discriminatory?

(iv)Is there any prejudice to the employees re-designated as Gram Panchayat Evam Vikas Adhikari (Karyakram)? Can they be divided into two classes on the basis of educational qualifications?  

POINT NO. 1: GO DATED 6.6.2001 IS BY THE STATE GOVERNMENT

13. The Chief Secretary has issued the GO dated 6th June 2001. Initially there was neither any assertion in this GO that it is issued with the approval of the Governor, nor it was mentioned at the end that the Chief Secretary has issued it on behalf of the Governor.  It was modified by the GO dated 6.7.2001. A line has been substituted in the body of the GO mentioning that the Governor has given his approval for issuing this order.  Though even after this correction, it does not say that it is issued on behalf of the Governor or the Chief Secretary has authenticated it on behalf of the Governor.  Does this make the GO personal decision of the Chief secretary and not that of the State Government?

14. All executive actions of a government of state are to be taken in the name of the Governor as mentioned in Article 166(1) of the Constitution but,

'It is, …  settled law that provisions of Article 166 of the Constitution are only directory and not mandatory in character and, if they are not complied with, it can be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor.'  (Chitralekha vs. State of Mysore: AIR 1964 SC 1823).

15. After modification, the GO dt. 6.6.2001 expressly states that it is issued with the approval of Governor. The Chief Secretary, the highest officer of the State, has issued it. The Joint Secretary in the Panchayat Raj department, who is also entitled to authenticate any government order under UP Authentication Orders and other Instrument Rules, 1975, has filed an affidavit along with amending GO dated 6.7.2001.  He also states that this is the decision of the State Government.  In view of this the GO dated 6.6.2001 is the decision of the State Government.  

POINT NO. 2: NOT A DEAD CADREON DEPUTATION

16. Sections 25 and 25-A of the Panchayat Raj Act, deal with appointment of the staff and the Secretary.  A reading of earlier section 25-A shows that Panchayat Sewak (later Panchayat Raj Adhikari) was secretary of the Gram Panchayat. The State Government appointed him. Section 25 of the Panchayat Raj Act, provides for appointment of other staff by Gram Panchayat and drawing up of disciplinary proceedings against them.

17. The State Government can transfer any of its employees to work in the Gram Panchayats under same terms and conditions as were there before their transfer. {Section 25(1)(a) and (b)}. Gram Panchayats can employ anyone after obtaining prior approval of the Prescribed Authority {section 25 (2)}.   Gram Panchayats also have power to punish the employees appointed by it {section 25(3)}.  

18. The State Government or such officer (empowered in this regard) is to appoint a secretary of Gram Panchayat (amended section 25A). He has to be among the persons who are transferred by to the Gram Panchayats under section 25(1)(b) or a person appointed by Gram Panchayat under section 25(2).  The State Government has also framed rules known as UP Gram Panchayat Niyamawali, 1999 (the Niyamawali) providing for appointment of Gram Panchayat Evam Vikas Adhikari. Under the Niyamawalli they are to be appointed by Gram Panchayats. It is true that transferred employees were appointed by the State Government, but once they retire then under the G.O. dated 1.7.1999 the State Government can not appoint any one on their vacancy and the new appointments will be made by the Gram Panchayats. Then the secretary would be the one, among the persons, appointed by the Gram Panchayats.

19. Petitioners submit that:

Their cadre is a dead cadre.

Their old cadre does not exist and they should be presumed to have been absorbed in the new cadre.

They cannot now be transferred back to their parent departments.

20. The heading of the paragraph 11 of the GO dated 12.4.1999 (as modified by the GO dated 29.4.1999 (quoted in Appendix 7 to this judgment) is 'PANCHAYAT KARMI KI SEWA SHART - MRIT SANVARG'.  This paragraph also declares the cadres of transferred employees to be dead cadres.  It further says that in future the State Government will not appoint any person over these posts in case of vacancy arising due to retirement, death, resignation or by any other means. These GOs were cancelled on 30.6.1999 and a fresh GO dated 1.7.1990 was issued.  In the GO dated 1.7.1999 the heading of similar clause, namely 11, is not the same; the words ''MRIT SANVARG'    in the heading is missing.  The first line of paragraph 11 under the GO dated 12.4.1999 (as modified by the GO dated 29.4.1991) that had expressly declared the cadres to be ''MRIT SANVARG' is also not there. Though paragraph 11 still says that the State Government will not make any appointment over these posts in case of vacancy arising due to retirement, death, resignation, or by any other means.  This condition applies to the future. But to say that because of this clause their cadre is dead is not correct; especially when now there is no such declaration.  The earlier GO containing such declaration has been cancelled.

21. It is true that some persons were transferred in pursuance of the GO dated 12.4.1999 but this GO was cancelled by the GO dated 30.6.1999.  Thereafter in the GO dated 1.7.1999 it was clarified that the transfers already made were validated under GO dated 1.7.1999 and newly substituted section 25 of the Panchayat Raj Act.  In these circumstances no inference regarding cadre being dead can be drawn,

22. Amended section 25(1)(a) of the Panchayat Raj Act gives power to State Government to transfer any employee or class of any employee to serve under Gram Panchayat.  Section 25(1)(b) of the Act clearly states that these transferred employees have the same right and privileges as to retirement benefit and other matters including the promotion as were applicable immediately before such transfer.  This is further clarified in paragraphs 10 and 11 of the GO dated 1.7.1999.  Earlier service conditions including the ones for promotion are applicable and the petitioners continue to be the state employees

23. The employees of a post in a department have been transferred under control and supervisions of the Gram Panchayats by GO dated 1.7.1999. The employees to the post to which these transferred employees could be promoted before transfer have not been transferred. Under the Gram Panchayats there is only one post namely the post of Gram Panchayat Evam Vikas Adhikari. There is no other post on which these persons can be promoted in the Gram Panchayats. This shows that the intention of the legislature was that petitioners are to continue in their parent department.

24. There is no provision in the Panchayat Raj Act or in the Niyamawalli to absorb transferred employees.  Under the Niyamwalli, the future appointments are to be made by the Gram Panchayats and not by the State Government. No options were asked from the transferred employees, whether they wish to be transferred or absorbed in the new service. The petitioners, or other employees transferred under GO dated 1st July 1999, have not been absorbed in the new cadre but have been merely designated as Gram Panchayat Evam Vikas Adhikari to work under control and supervision of Gram Panchayats.  

25. The Supreme Court in Umapati Chaudhari vs State of Bihar (Umapati's case) {(1999) 4 SCC 659} explained:

'Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a correspondent acceptance of such services by the borrowing employer.  It also involves the consent of the employee to go on deputation or not.'

26. Here the employees from different departments have been sent to Gram Panchayats to perform the functions that they were earlier performing, as Gram Panchayats neither had experience, nor employees to do the work. This was done in public interest.  In view of Umapati's case, the transferred employees are on deputation to Gram Panchayats.

POINT No. 3: ACTION IS NOT ARBITRARY OR DISCRIMINATORY.

27. Petitioners submit that they are working with the Gram Panchayats and even if they are not absorbed or merged with the cadre of Gram Panchayat Evam Vikas Adhikari, they cannot be re-transferred to their parent department, as power to transfer cannot be exercised again.  They have also cited some decisions (quoted in the footnote)1 to support this proposition. But these decisions do not relate to service jurisprudence and are of other branches lf law. They are not applicable here.  While deciding point no. 2, I have already held that the petitioners are not absorbed in any new service, but are on deputation to Gram Panchayats. The Supreme Court in Kunal Nanda vs. Union of India {(2000) 5 SCC 362} held,

'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.

In view of this, the Petitioners can always be transferred back to their parent department.

28. The action to repatriate employees of the three departments was not taken in haste.  

Sinchai Sangh Uttar Pradesh and UP Basic Health Workers Association made representations (Paragraph 12 of the judgement) bringing out the difficulties that had arisen. They are on record of this case. A committee was also constituted in the month of January 2001.  It submitted its report in May 2001, which was accepted and thereafter GO dated 6th June 2001 was issued.  

So far as Sinchpal (Bhumi Vikas and Jal Sansadhan Department) are concerned, the GO dated 19.11.2001 states that development work was adversely affected and in order to provide better water facilities, these employees were being repatriated.  

There is nothing to show these assertions are incorrect.  In view of this it cannot be said that decision to repatriate the employees of the three departments is arbitrary.

29. It is correct that by GO dated 1st July 1999 employees of 8 departments were transferred and were to perform the work of all departments.   The fact that employees of 8 departments were transferred and were designated as Gram Panchayat Evam Vikas Adhikari does not mean that all of them merged into one cadre.  All of them maintained seniority of their department and were to be promoted in their own department.  All workers of three departments were being sent back as difficulties were being faced. There is no discrimination.

POINT No. 4: CLASSIFICATION IS ILLEGAL

30. Tube-well operators and cane supervisors have been divided into two classes by paragraphs 3 and 4 of the GO dated 6.6.2001.  One class has been designated as Gram Panchayat Evam Vikas Adhikari (Karyakram). Initially this class consisted of persons whose education qualification was less than High School but later on this qualification clause has been amended by GO dated 21.9.2001 and now this class consists of person having qualification up to High School.   These persons have to perform the same functions as they were performing before their transfer though the persons who are more qualified than High School will continue to be known as Gram Panchayat Evam Vikas Adhikari and would perform multi purpose functions i.e. to say they could perform the functions of all departments.  This is objected to by the petitioners {designated as Gram Panchayat Evam Vikas Adhikari (Karyakram)} on the ground that:

All tube well operators and cane supervisors are in one class.

They cannot be divided on the basis of educational qualification.

They cannot become Secretary of the Gram Panchayat though their juniors can if they have qualification more than High School.  

31. Tube well operators and cane supervisors having qualification up to High School are designated as Gram Panchayat Evam Vikas Adhikari (Karyakram).  They are not multi purpose workers. Under GO dated 1.7.1999 only a multi purpose workers called Gram Vikas Adhikari can become the Secretary. Sri Kripa Shanker Singh standing counsel also made a statement before the court that Gram Panchayat Evam Vikas Adhikari (Karyakram) cannot be made secretary of Gram Panchayat but according to him the petitioners cannot object as,

there is no prejudice to them and they continue to perform the same function as they were performing before their transfer;

there are valid reasons for classification.

32. The submissions of the respondents, so far as points no. 1 to 3 (already decided), is that:

The transferred employees are neither absorbed nor merged in the new service.

They continue in their old service and are on deputation to Gram Panchayats.

It is only for convenience that they have been re-designated as Gram Panchayat Evam Vikas Adhikari but their lien is in their parent department.

The same service condition, as were applicable to them before transfer, are applicable to them.

They can be promoted in their parent department only.

I have also accepted these submissions. Thus all tube well operators form one class so do all cane supervisors. But have they been prejudiced?

33. Gram Panchayat Evam Vikas Adhikari (Karyakram) can neither perform multi purpose functions (functions of the other departments) nor can they become secretary of a Gram Panchayat though his juniors can if they have qualification more than High School.  Rule 169 of Panchayat Raj Rules (quoted in Appendix-8 to this judgment) explains duties of a secretary.  It is clear from this that secretary is an important person in a Gram Panchayat. He is the one who sees that the Act, rules, and byelaws are followed and all orders by the State Government and prescribed authority are complied with.  He also carries out orders of Gram Panchayat, Pradhan, Up-Pradhan and performs any other duties assigned to him.  He also exercises supervision and control over servants of Gram Panchayats. The secretary does not exercise control over Gram Panchayat Evam Vikas Adhikari (Karyakram) ,as they are not servants of the Gram panchayat, nonetheless as Gram Panchayat has supervision and exercises control over them, he can exercise indirect control. A junior could be in better position than his seniors.   In view of this, prejudice is caused to the employees re-designated as Gram Panchayat Evam Vikas Adhikari (Karyakram), especially when section 25(1) (b) specifically says that all transferred employees will have same terms and conditions that they had before their transfer.  

34. Sri Kripa Shanker Singh gave two reasons for making this classification.

(i)Secretary has to write down minutes of the meeting and should be more qualified.

(ii)Job of tube well operators and cane supervisors is a technical job and a person of other department cannot do this. It is for this reason that some of the tube well operators and cane supervisors have been asked to perform the job of their department only.  

Let's consider these reasons.

35. The courts have been upholding classification on basis of educational qualification for giving higher pay scales2, barring promotions, and fixing quotas in promotions. The Supreme Court in TR Kothandaraman vs TN Water Supply and Drainage Board {1994 (6) JT 157=1994(6) SCC 282}, after considering almost all cases decided till then, laid down following principles:

''(i) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances of each case.

(ii) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion.

(iii) Restriction placed cannot however go to the extent of seriously jeopardising the chances of promotion. To decide this, the extent of restriction shall have also to be looked into ascertain whether it is reasonable.  

Even if in a case the classification would not be acceptable to the court on principle, it would, before pronouncing its judgment, bear in mind the historical background. While judging the validity of the classification, the court shall have to be conscious about the need for maintaining efficiency in service and also whether the required qualification is necessary for the discharge duties in the higher post.

Apart from the aforesaid propositions there are two other determinants viz the call of social justice and importance of education. Court has to see, while examining the provisions on the anvil of Arts 14 and 16 of the Constitution, whether Art. 21 is offended in any way.''

The subsequent cases have approved it. They on the facts of the cases, have upheld  the classification in all cases (quoted below)3 except in two cases (quoted below)4  where classification on the basis of educational qualification was quashed, as there was nothing before the court to show that it had nexus with higher efficiency for the post.  So is the case here.

36. All employees holding particular posts in 8 departments were transferred by GO dated 1.7.2001.  It is not disputed that they did not have minimum educational qualification at the time of appointment over the posts. The Classification (on the basis of educational qualification) is made only in two departments. In other 6 departments, persons that are qualified up to High School can perform multi purpose functions and become the secretary. If the persons of other 6 departments--qualified up to High Schoolcan become Secretary then there is no justification for denying the persons equally qualified in these two departments. In the facts of these cases transferred employees have sufficient educational qualification to act as a secretary and higher educational qualification can not be a valid reason for classification.

37. The second reason is also not valid.  By GO dated 1.7.1999, apart from employees of 8 departments, employees of four departments were also transferred.   They have not been asked to perform multi purpose duty but are performing duties of their department only (paragraph 6 of the GO dated 1.7.1999).  In case the   job of the tube well operators and cane supervisors is so technical that persons of other department can not perform it, then all of them may be required to do work of their department only as the employees of other four departments  are doing. There could be other means: option could be asked or difference could be made on basis of seniority, but there is no justification asking all the employees who are qualified up to High School to do job of their department and others to perform multi purposes functions and become secretary.  

38. The action of the respondents will result into juniors doing more important work and exercising indirect control over their senior in case they become Secretary. All tube well operators fall in one class and so do the cane supervisors. There is no justification to give them different treatment. Paragraphs 3, 4 and 5 of GO dated 6.6.2001 as modified by GO dated 21.9.2001 are discriminatory and are quashed.

A Clarification

39. The State Government has mentioned in paragraphs 3 and 4 of the GO dated 6.6.2001 that some difficulties are being faced and in order to improve the functioning that the aforesaid classification was made.  I have quashed this classification but this does not mean, that I disagree with the conclusion of the State Government about the difficulties faced by it. It is open to the State Government to frame fresh schemeconsistent with constitutional provisions and section 25 of the Panchayat Raj Actfor sorting out its difficulties.

CONCLUSIONS

40. My conclusions are as follows:

(i)GO dated 6.6.2001 is a decision of the State Government.

(ii)The employees who were transferred by GO dated 1.7.2001 are not absorbed in any new service but are on deputation to Gram Panchayats. They can always be transferred back to their parent department.  

(iii)There is no illegality in transferring Sinchapl (canal department), Male Health Workers (Medical Department) and Sinchpal (Bhumi Vikas Evam Jal Sansthan). The provisions of the GOs dated 6.6.2001 and 19.11.2001 transferring them back to their parent departments are valid.

(iv)Paragraphs 3, 4 and 5 of GO dated 6.6.2001 as amended by the GO dated 21.9.2001 by which tube well operators and cane supervisors have been divided into two classes and the persons having qualification up to High School have been re-designated as Gram Panchayat Evam Vikas Adhikari (Karyakram) are discriminatory and are quashed.

Dated: 8.1.2002

BBL


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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