Full Judgment Text
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PETITIONER:
STATE OF GUJARAT & ORS ETC.
Vs.
RESPONDENT:
RAMAN LAL KESHAV LAL & ORS. ETC.
DATE OF JUDGMENT27/01/1983
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
VARADARAJAN, A. (J)
CHANDRACHUD, Y.V. ((CJ)
FAZALALI, SYED MURTAZA
TULZAPURKAR, V.D.
CITATION:
1984 AIR 161 1983 SCR (2) 287
1983 SCC (2) 33 1983 SCALE (1)66
CITATOR INFO :
F 1984 SC 385 (11,20)
MR 1985 SC 421 (79)
E&R 1987 SC 415 (16,17)
R 1987 SC1858 (22)
RF 1991 SC1047 (8)
ACT:
Gujarat Panchayats Act, 1961 (VI of 1962), Ss. 102,
122, 142, 143, 157, 158, 203, 206 and 325 & Constitution of
India, 1950. Arts. 12, 309, 310; Schedule VII, List I Entry
70 and List II Entries S. 41-Panchayat Service Constituted
under S. 203 whether ‘civil service of the State’-A person
holding a ‘civil post’ or a member of a ‘Civil Service’-
Tests for determination-Administration of a service under a
State-What are functions of.
Words & Phrases-‘Civil Services’-‘Civil Post’-Meaning
of.
HEADNOTE:
The Gujarat Panchayat Act, 1961 (Gujarat Act No. VI of
1962) came into force on June 15, 1962 in the State of
Gujarat except in Kutch area and the district of Dangs. By
an order made by the State Government on March 4, 1963, the
areas which were within the jurisdiction of the several
municipalities constituted under the Bombay Municipal Act,
1901 were declared to be gram or nagar, as the case may be.
On April 1, 1963, sections 203 to 205 of the Panchayats Act
were brought into operation. On March 26, 1963, the State
Government entrusted some of its functions relating to
recovery of land revenue etc. to the nagar and gram
panchayats with effect from April 15, 1963. On August 1,
1963 by a notification issued under section 149 of the
Panchayats Act, the State Government delegated some of its
powers under the Land Revenue Code and rules made thereunder
to the gram and nagar panchayats. Service rules like the
Gujarat Panchayat Service (Conduct) Rules, 1964, the Gujarat
Service (Discipline & Appeal) Rules, 1964, Gujarat Panchayat
Service (Absorption Seniority, Pay & Allowances) Rules, the
Gujarat Panchayat Service (Transfer of Servants) Rules,
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1968, Gujarat Panchayat Service (Promotion to Cadres in
State Service) Rules, 1974, Gujarat Panchayat Service
(Pension) Rules, 1976 were promulgated and issued by the
State Government. On January 2, 1967, the State Government
passed an order under sub-section (2) of section 203 of the
Panchayats Act directing that the Panchayat Service shall
consist of district cadre, taluka cadre and local cadre and
specified the posts which were to belong to each of such
cadres in the Schedule appended to the said order. In Part
III of the Schedule to that Order, the posts belonging to
the local cadre were specified.
Although the above steps were taken by the State for
the constitution of the Panchayat Service, the State
Government did not make any order regarding the equation of
posts of the staff in the local cadre and fixation of their
pay scale till 1975 notwithstanding repeated representations
made by the ex-municipal employees and others who were
included in the local cadre. The State Government also did
not make any rules prescribing the promotional
145
avenues for the staff borne on the local cadre of the
Panchayat Service, nor extended the benefit of revisions of
pay scales and other allowances which were made on the basis
of the recommendations of the First Pay Commission (Sarela
Commission) and of the Second Pay Commission (Desai
Commission).
The Respondent Nos. 1 to 5 in the appeal filed a writ
application in a representative capacity for and on behalf
of themselves and other officers and servants who were
originally in the employment of several municipalities which
had been constituted under the Bombay District Municipal
Act, 1901 and who were working as employees under gram
panchayats or nagar panchayats which were established in the
place of municipalities under the provisions of the Gujarat
Panchayats Act, 1961 for a Writ, order or direction to the
Appellant (State of Gujarat) and others who had been
impleaded as respondents directing them: (i) to pass orders
regarding appointment in equivalent posts in the Panchayat
Service of the State Government, fixation of seniority, pay
scales and allowances in the equivalent posts with
retrospective effect and payment of the difference in salary
and allowances, (ii) to frame rules providing for
promotional avenues in the Panchayat Service as also in the
State Service, and (iii) to extend the benefits flowing from
pay revisions ordered by the State Government on the basis
of the recommendations of the First Pay Commission (Sarela
Commission) and the Second Pay Commission (Desai Commission)
retrospectively. It was contended that the Panchayat Service
was as much a service under the State as any other Civil
Service, that the State Government had failed to discharge
its statutory duties in relation to the members of the staff
included in the local cadre of the Panchayat Service and
that the denial of benefits similar to those extended to
other members of the State Civil Service on the basis of the
reports of the two Pay Commissions amounted to hostile
discrimination. The State Government contested the
application alleging that the members of the Panchayat
Service were not government servants.
Following its earlier decision in G. L. Shukla &
another v. The State of Gujarat & Ors. 8 GLR 833 the High
Court held that the respondents who belonged to the local
cadre were government servants and allowed the application.
During the pendency of the appeal to this Court, the
Gujarat Panchayats (Amendment) Ordinance 1978 was
promulgated by the Governor amending some of the provisions
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of the Panchayats Act and the said Ordinance was repealed
and replaced by the Gujarat Panchayats (Third Amendment)
Act, 1978. As the Ordinance and the Amending Act adversely
affected the interests of the employees, writ petitions were
filed questioning the validity of the Amending Act.
In the appeal and writ petitions to this Court on the
questions:
(1) Whether the Panchayat Service was a Civil Service
of the State, and
(2) Whether under the unamended Act, there was a
common Centralized Panchayat Service.
^
HELD: 1. (i) The Panchayat Service constituted under
section 203 of the Panchayats Act has all the
characteristics of a Civil Service of the State. This also
appears to have been the view of the State Government when
it constituted the Second Pay Commission (Desai Commission)
to examine the
146
general conditions of service applicable to Government
employees other than officers of the all-India services but
including employees in the Panchayat Service. [165H-166B]
(ii) It is a question of fact to be decided in the
circumstances of each case whether every employee of a
Panchayat should be treated as a member of the State Civil
Service. [166H-167A]
2. The provisions contained in section 206 of the
Panchayats Act and the provisions in sub-sections (2), (2A),
(3) and (4) of section 203 clearly establish that the
Panchayat service constituted under section 203 can only be
a centralized service and recruitment of candidates to be
made under section 210 of the Panchayats Act by the Gujarat
Panchayat Service Selection Board can only be to that
centralised service. The division of the Panchayat Service
into district cadre, taluka cadre and local cadre does not
affect the integrity of the Panchayat Service. It continues
to be a single service notwithstanding such division. When
the Panchayat Service is a Statewise service, it has
necessarily to be a common centralised service. [167B-C]
3. Municipal Corporations, city municipalities, town
municipalities, municipal boroughs, district boards, zilla
parishads, taluka development boards, town panchayats,
village panchayats, sanitary boards and town area committees
were some of the different kinds of local bodies which were
constituted under the local laws and the management of their
affairs were entrusted subject to the control of the State
Government to elected bodies. Each one of them was treated
as a body corporate. In the staffing pattern of these bodies
there were at least three classes of persons. Officers
holding high administrative posts such as commissioners of
corporations, deputy commissioners of corporations,
municipal health officers, municipal educational officers,
district development officers and chief executive officers
of district boards were usually drawn from the ranks of the
provincial or the State Services and they were deputed to
the various bodies to discharge functions which were either
statutory or non-statutory. Even though they drew their
salary and allowances from the local bodies to which they
were deputed, they still retained their identity as officers
of the State Civil Service and their services were liable to
be withdrawn by the State Government at any time it pleased.
[159D-E]
4. The expressions ’civil service’ or ’civil post’ are
not formally defined. Entry 70 of List I of the Seventh
Schedule to the Constitution refers to Union Public Services
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and All-India Services, and Entry 41 of List II of that
Schedule refers to State Public Services. Part XIV of the
Constitution deals with services under the Union and the
States. In Article 309 of the Constitution, there is
reference to persons appointed to public services and posts
in connection with the affairs of the Union or of any State.
Article 310 of the Constitution distinguishes the defence
service from the civil service when it refers to members of
a ’defence service or of a civil service’. But all persons
who are members of a defence service or of a civil service
of the Union or of an all-India service or persons who hold
any post connected with defence or any civil post under the
Union are treated as persons serving the Union and every
person who is a member of the civil service of a State or
holds any civil post under a State is treated as a person
serving a State. [160D-F]
5. The true test for determination of the question
whether a person is holding a civil post or is a member of a
civil service is the existence of a relationship of master
and servant between the State and the person holding
147
a post under it and that the existence of such relationship
is dependent upon the right of the State to select and
appoint the holder of the post, its right to suspend and
dismiss him, its right to control the manner and method of
his doing the work and the payment by it of his wages and
remuneration. The relationship of master and servant may be
established by the presence of all or some of the above
factors in conjunction with other circumstances. [161E-F]
State of Assam & Ors. v. Shri Nanak Chandra Dutta,
[1967] 1 S.C.R. 679: Superintendent of Post Offices etc. v.
P. K. Rajamma etc. [1977] 3 S.C.R. 678, referred to.
6. Entry 5 of List II of the Seventh Schedule to the
Constitution specifically refers to local authorities
established for the purpose of local self-Government or
village administration as part of local government. The
local authorities are included in the definition of the
expression ’State’ in Article 12 of the Constitution. [165D]
7. The Panchayats exercise many governmental functions
which the State Government can perform. They are entrusted
with the power to levy taxes and to exercise large number of
powers which are loosely called as "police powers"
regulating several aspects of human life. Articles 276 and
277 of the Constitution also take note of the powers of
local authorities to levy certain taxes. [165E]
8. The Panchayats Act was enacted for the purpose of
consolidating and amending the law relating to village
Panchayats and district local boards in the State of Gujarat
with a view to reorganising the administration pertaining to
the local Government in furtherance of the object of
democratic decentralisation of powers in favour of different
classes of panchayats. It provided for the establishment of
Panchayats of different tiers viz. a gram panchayat for each
gram, a nagar panchayat for each nagar, a taluka panchayat
for each taluka and a district panchayat for a district.
[151C-D]
9. Section 203 of the Panchayats Act provided for the
constitution of a Panchayat Service which shall be distinct
from the State Service. The State Government was authorised
to determine by orders issued from time to time the several
classes, cadres and posts in the Panchayat Service and the
initial strength of the officers and servants in each such
class and cadres. The Panchayat Service consisted of
district cadres, taluka cadres and local cadres. A servant
belonging to a district cadre was liable to be posted either
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by promotion or transfer to any post in any taluka in the
district, a servant belonging to a taluka cadre was liable
to be posted similarly to any post in any gram or nagar in
the same taluka, and a servant belonging to a local cadre
similarly to be posted in the same gram or, as the case may
be, nagar. The Panchayat Service was also to consist of
certain posts designed as deputation posts, which may be
filled in accordance with section 207. The State Government
was empowered to make rules regulating the mode of
recruitment and conditions of service of persons appointed
to the Panchayat Service and the powers in respect of
appointments, transfers and promotions of officers and
servants in the panchayat Service and disciplinary action
against any such officers or servants. [154B-E]
10. Under section 206 of the Panchayats Act, it is open
to the State Government to allocate to the Panchayat Service
such number of officers and servants out of the staff
allotted or transferred to a panchayat under sections 157,
158 and 325 as it may deem fit. [154G]
148
11. Sections 102, 122 and 142 of the Panchayats Act
provide that the gram panchayat or the nagar panchayat or
the taluka panchayat or the district panchayat as the case
may be, shall have such other officers and servants as may
be determined under section 203 of the Panchayats Act and
such officers and servants shall be appointed by such
authority and their conditions of service shall be such as
may be prescribed. Clause (c) of sub-section (2) of section
143 of the Panchayats Act empowers the District Development
Officer to appoint such class of officers and servants as
may be prescribed. [163C, B]
12. The Panchayat Service contemplated under section
203 is a single service for the whole State and it is not a
collection of distinct and separate services of each
individual panchayat. That Panchayat Service is a service
under the State is again emphasized by section 206 which
authorises the State Government to pool together the four
classes of persons mentioned therein who originally belonged
to four different sources and to allocate them to the
Panchayat Service and one class of such persons are those
who belong to the State Service. Unless the Panchayat
Service is held to be a State Service, inclusion of officers
and servants in the State Service will be unconstitutional.
[163E-F]
State of Mysore v. H. Papanna Gowda & Anr. etc., [1971]
2 S.C.R. 831, referred to.
In the instant case there is no compelling reason to
hold that the Panchayat Service is not a civil service under
the State. Further recruitment of candidates to the
Panchayat Service had to be made by the Gujarat Panchayat
Service Selection Board constituted by the State Government.
[163H]
Jalgaon Zilla Parishad v. Duman Govind & Ors. Civil
Appeals Nos. 24 and 25 of 1968 decided on December 20, 1968
distinguished.
13. Entry 41 of List II of the Seventh Schedule to the
Constitution, refers to State Public Services suggesting
that there can be more than one State Public Service under
the State. A number of such services under a State e.g.
Police Service, educational service, revenue service etc.
State Public Services may be constituted or established
either by a law made by the State Legislature or by rules
made under the proviso to Article 309 of the Constitution or
even by an executive order made by the State Government in
exercise of its powers under Article 162 of the
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Constitution. The recruitment and conditions of service of
the officers and servants of the State Government may also
be regulated by statute, rules or executive orders. [164A-B]
14. The administration of a service under a State
involves broadly the following functions: (1) the
organisation of the Civil Service and the determination of
the remuneration, conditions of service, expenses and
allowances of persons serving in it; (ii) the manner of
admitting persons to civil service; (iii) exercise of
disciplinary control over members of the service and power
to transfer, suspend, remove or dismiss them in the public
interest as and when occasion to do so arises. [164C-D]
In the instant case, the Panchayat Service is
constituted by the Panchayats Act and the State Government
is empowered to make orders and rules regarding its
organisation and management. Having regard to the broad
features of the Panchayat Service, the declaration in
Section 203 that the Panchayat Service, shall be distinct
from the State Service, appears to have been made only to
distinguish the Panchayat Service from other services of the
State attached to the several departments which are under
the direct control of the State Government. [164E]
149
15. If the members of the Panchayat Service are not to
be members of a Service under the State Government but are
to be the officers and servants of the panchayat unit to
which they are allotted then sub-sections (2), (2A) and 4(a)
of section 203 of the Panchayats Act would to some extent
become unworkable, as every time there is a transfer of an
officer borne on the Panchayat Service there would be a
change of master. The Legislature could not have contended
such a bizarre result. [164F]
16. The reason for treating Panchayat Service as a
service distinct from State Service appears to be that the
law intended that persons belonging to the Panchayat Service
should be transferable from one post in a panchayat to
another post in a panchayat and unless there was an order of
promotion, such persons could not be transferred to posts
outside the Panchayats. [165B]
17. Merely because the Panchayats are declared to be
body corporates, it cannot be said that any of the persons
working under them cannot be considered as members of a
civil service under a State. The panchayats constituted
under the Panchayats Act derive their authority from the
statute and are under the control of the State Government.
They form part of the local self-Government organisation
which the State Government is under an obligation to foster
under Article 40 of the Constitution. [165C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 359 of
1978.
Appeal by special leave from the Judgment and Order
dated 28-1-1977 of the Gujarat High Court in Special Civil
Application No. 309/1975.
WITH
WRIT PETITION NOS. 4266-4270 of 1978
(Under Article 32 of the Constitution)
V. M. Tarkunde, Niranjan Mehta, P. H. Parekh, C. B.
Singh and M. Mudgal for the Petitioners in Writ Petitions
and Respondents 1-3 and 5 in CA 359/78.
D. V. Patel, R. H. Dhebar, M. N. Shroff and G. A. Shah
for the Appellants in CA 359/78 and Respondents 1-2 in Writ
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Petitions.
Nirajan Mehta, Vimal Dave and Miss Kailash Mehta for
the Applicant intervener in Writ Petition.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The State of Gujarat and the
Development Commissioner of the State of Gujarat have filed
Civil Appeal No. 359 of 1978 under Article 136 of the
Constitution against the judgment, dated January 28th, 1977
passed in Special Civil Application No. 309 of 1975 on the
file of the High Court of Gujarat. Respondents Nos. 1 to 5
in the above appeal were the petitioners in the aforesaid
Special Civil Application. They had filed the
150
said application with the leave of the High Court in a
representative capacity for and on behalf of themselves and
other officers and servants who were originally in the
employment of several municipalities which had been
constituted under the Bombay District Municipal Act, 1901
(hereinafter referred to as ’the Municipal Act’) and who
were working as the employees under gram panchayats or nagar
panchayats which were established in the place of the
municipalities referred to above under the provisions of the
Gujarat Panchayats Act, 1961 (Gujarat Act No. VI of 1962)
(hereinafter referred to as ’the Panchayats Act’) under
Article 226 of the Constitution requesting the High Court to
issue an appropriate writ, order or direction to the State
of Gujarat and others who had been impleaded as respondents
therein directing them (i) to pass orders regarding the
appointment of the persons for and on whose behalf the said
application had been filed in equivalent posts in the
Panchayat Service of the State Government, fixation of their
seniority and pay scales and allowances in the equivalent
posts with retrospective effect and payment to them of the
difference in salary and allowances to which they would
become entitled on such fixation of salary and allowances
payable to them, (ii) to frame rules providing for
promotional avenues to them in the Panchayat Service as also
in the State Service and (iii) to extend to them the
benefits flowing from the pay revisions ordered by the State
Government on the basis of the recommendations of the first
Pay Commission (Sarela Commission) and the second Pay
Commission (Desai Commission) retrospectively. They also
prayed for certain incidental reliefs.
Writ Petitions Nos. 4266 to 4270 of 1978 were filed by
them before this Court under Article 32 of Constitution in a
representative capacity with the leave of this Court
requesting the Court to declare the Gujarat Panchayats
(Amendment) Ordinance, 1978 (hereinafter referred to as ’the
Ordinance’) as unconstitutional, void and of no effect and
to grant them such reliefs as may be permissible consequent
upon such declaration. After the above writ petitions were
filed, the Ordinance was repealed and replaced by the
Gujarat Panchayats (Third Amendment) Act, 1978 (Gujarat Act
No. 28 of 1978) (hereinafter referred to as ’the Amending
Act’). Thereafter the petitioners prayed for an amendment of
the writ petitions requesting the Court to permit them to
question the validity of the Amending Act in so far as it
adversely affected them. Their prayer was accordingly
granted. The writ petitions are contested by the State
Government.
151
For purposes of convenience, respondents Nos. 1 to 5 in
Civil Appeal No. 359 of 1978 who are also petitioners in the
writ petitions Nos. 4266 to 4270 of 1978 are hereafter
referred to as the petitioners.
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Before the Panchayats Act was enacted there existed in
the State of Gujarat a number of municipalities constituted
under the Municipal Act and the petitioners and those whom
they represent in these proceedings by virtue of the leave
granted to them to prosecute these proceedings in a
representative capacity were employees of such
municipalities.
The Panchayats Act was enacted for the purpose of
consolidating and amending the law relating to village
panchayats and district local boards in the State of Gujarat
with a view to reorganise the administration pertaining to
the local Government in furtherance of the object of
democratic decentralisation of powers in favour of different
classes of panchayats. It provided for the establishment of
panchayats of different tiers viz. a gram panchayat for each
gram, a nagar panchayat for each nagar, a taluka panchayat
for each taluka and a district panchayat for a district.
Section 9 of the Panchayats Act empowered the State
Government to declare any local area comprising a revenue
village or a group of revenue villages or hamlets forming
part of a revenue village or such other administrative unit
or part thereof to be a nagar, if the population of such
local area exceeded 10,000 but did not exceed 20,000 and to
be a gram, if the population of such local area did not
exceed 10,000 by issuing a notification in the Official
Gazette to that effect. Section 307 of the Panchayats Act
provided that where any local area was declared to be a gram
or nagar under section 9 and, immediately before such
declaration, the local area was co-extensive with the limits
of a municipal district or a municipal borough or included
an area comprising a municipal district or municipal borough
as well as any other area, then with effect from the date on
which such local area was so declared to be a gram or nagar,
the consequences mentioned therein would ensue
notwithstanding anything in the relevant municipal law. Two
of the consequences which flowed from such a declaration
were that the municipality functioning in such a local area
or part thereof would cease to exist and all officers and
servants in the employ of the municipality immediately
before the said date would become officers and servants of
the interim panchayat under the Panchayats Act and shall
until other provision was made in accordance with the
provisions thereof would receive salaries and allowances and
be subject to the conditions of service to which they were
entitled or subject on such date. Section 308 of the
Panchayats Act required the
152
District Development Officer to take steps to hold election
for a new gram panchayat or nagar panchayat, as the case may
be, within a period not exceeding one year from the date on
which the interim panchayat came into existence. Chapter XI
in which sections 203 to 211 of the Panchayats Act are
included sets out provisions relating to services. Section
203 of the Panchayats Act prior to the promulgation of the
Ordinance read as follows:-
"203. (1) For the purpose of bringing about
uniform scales of pay and uniform conditions of service
for persons employed in the discharge of functions and
duties of panchayats, there shall be constituted a
Panchayat Service in connection with the affairs of
panchayats. Such service shall be distinct from the
State Service.
(2) The Panchayat Service shall consist of such
classes, cadres and posts and the initial strength of
officers and servants in each such class and cadre
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shall be such, as the State Government may by order
from time to time determine:
Provided that nothing in this sub-section shall
prevent a district panchayat from altering, with the
previous approval of the State Government, any class,
cadre or number of posts so determined by the State
Government.
(2A) (a) The cadres referred to in sub-section (2)
may consist of district cadres, taluka cadres and
local cadres.
(b) A servant belonging to a district cadre
shall be liable to be posted whether by promotion
or transfer to any post in any taluka in the
district.
(c) A servant belonging to a taluka cadre
shall be liable to be posted, whether by promotion
or transfer to any post in any gram or nagar in
the same taluka.
(d) A servant belonging to a local cadre
shall be liable to be posted whether by promotion
or transfer to any post in the same gram or, as
the case may be, nagar.
(2B) In addition to the posts in the cadre
referred to in sub-section (2A), a panchayat may have
such other posts of such classes as the State
Government may by general or special order determine.
Such posts shall be called "deputation posts" and shall
be filled in accordance with the provisions of section
207.
153
(3) Subject to the provisions of this Act, the
State Government may make rules regulating the mode of
recruitment either by holding examinations or otherwise
and conditions of service of persons appointed to the
panchayat service and the powers in respect of
appointments, transfers and promotions of officers and
servants in the Panchayat Service and disciplinary
action against any such officers or servants.
(4) Rules made under sub-section (3) shall in
particular contain-
(a) a provision entitling servants of such
cadres in the Panchayat Service to promotion to
such cadres in the State Service as may be
prescribed.
(b) a provision specifying the classes of
posts recruitment to which shall be made through
the District Panchayat Service Selection Committee
and the classes of posts, recruitment to which
shall be made by the Gujarat Panchayat Service
Selection Board, and
(c) a provision regarding the percentage of
vacancies to be reserved for the members of
Scheduled Castes, Scheduled Tribes and other
backward classes in the Panchayat Service.
(5) Such rules may provide for inter-district
transfer of servants belonging to the panchayat service
and the circumstances in which and the conditions
subject to which such transfers may be made.
Section 205 of the Panchayats Act states that subject
to any rules made under section 203, appointments to the
Panchayat Service shall be made (i) by direct recruitment,
(ii) by promotion and (iii) by transfer of members of the
State Service to the Panchayat Service. Section 206 of the
Panchayats Act before the Amending Act was passed empowered
the State Government by a general or special order to
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allocate to the Panchayat Service (i) such number of
officers and servants out of the staff allotted or
transferred to a panchayat under sections 157, 158 and 325
as it may deem fit, (ii) all officers and servants of the
municipalities dissolved under section 307, (iii) all
officers and servants in the service of district local
boards and district school boards immediately before their
dissolution under the Panchayats Act and transferred to the
panchayats under sections 155 and 326 and (iv) and other
officers and servants employed in the State service as may
be necessary to enable the panchayats to discharge
efficiently their functions and duties
154
under the Panchayats Act. Section 210 of the Panchayats Act
provides for the establishment of a Gujarat Panchayat
Service Selection Board for the purpose of recruitment of
candidates to the several posts in the Panchayat Service.
The provisions contained in Chapter XI of the
Panchayats Act may be summarised thus: Section 203 of the
Panchayats Act provides for the constitution of a Panchayat
Service which shall be distinct from the State Service. The
State Government is authorised to determine by orders issued
from time to time several classes, cadres and posts in the
Panchayat Service and the initial strength of the officers
and servants in each such class and cadre. The Panchayat
Service may consist of district cadres, taluka cadres and
local cadres. A servant belonging to a district cadre is
liable to be posted either by promotion or transfer to any
post in any taluka in the district, a servant belonging to a
taluka cadre is liable to be posted similarly to any post in
any gram or nagar in the same taluka and a servant belonging
to a local cadre may similarly be posted in the same gram
or, as the case may be, nagar. The Panchayat Service may
also consist of certain posts designated as deputation
posts, which may be filled in accordance with the provisions
of section 207. The State Government is empowered to make
rules regulating the mode of recruitment and conditions of
service of appointments, transfers and promotions of
officers and servants of appointments, transfers and
promotions of officers and servants in the Panchayat Service
and disciplinary action against any such officers or
servants. Sub-section (4) of section 203 of the Panchayats
Act provides that rules may be made under sub-section (3)
thereof containing provisions entitling servants of such
cadres in the Panchayats Service to promotion to such cadres
in the State Service as may be prescribed. We have noticed
earlier that under section 206 of the Panchayats Act, it is
open to the State Government to allocate to the Panchayat
Service such number of officers and servants out of the
staff allotted or transferred to a panchayat under sections
157, 158 and 325 as it may deem fit. Section 157 of the
Panchayats Act provides that notwithstanding anything
contained in any law for the time being in force, the. State
Government may subject to such conditions as it may think
fit to impose, transfer by an order published in the
Official Gazette to a district panchayat any such powers,
functions and duties relating to any matter as are exercised
or performed by the State Government or any officer of
Government under any enactment which the State Legislature
is competent to enact, or otherwise in the executive power
of the State, and appear
155
to relate to matters arising within a district and to be of
an administrative character and shall on such transfer,
allot to the district panchayat such fund and personnel as
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may be necessary to enable the district panchayat to
exercise the power and discharge the functions and duties so
transferred. Sub-section (2) of section 157 sets out some of
the departments whose powers, functions and duties that may
be transferred under section 157 (1). Section 158 of the
Panchayats Act provides that any functions and duties
relating to any of the matters specified in the Panchayat
Functions List performed before the commencement of that
section by the State Government through its officers within
a gram, nagar, taluka or district shall, subject to such
exceptions as the State Government may by order in writing
specify, be transferred to the district panchayat together
with the funds provided, and the staff employed therefor. By
section 325 of the Panchayats Act, the Bombay Village
Panchayats Act, 1958 was repealed and all officers and
servants in the employ of the old village panchayats
immediately before the said date became the officers and
servants of the new gram panchayats established under the
Panchayts Act.
We shall now briefly refer to some of the steps taken
under the Panchayats Act after it came into force on June
15, 1962 in the State of Gujarat except in Kutch area and
the district of Dangs. On March 4, 1963 by an order made by
the State Government, the areas which were within the
jurisdiction of the several municipalities constituted under
the Municipal Act were declared to be gram or nagar, as the
case may be. On April 1, 1963, sections 203 to 205 of the
Panchayats Act were brought into operation. On March 26,
1963, the State Government entrusted some of its functions
relating to recovery of land revenue etc. to the nagar and
gram panchayats with effect from April 15, 1963. On August
1, 1963 by a notification issued under section 149 of the
Panchayats Act, the State Government delegated some of its
powers under the Land Revenue Code and rules made thereunder
to the gram and nagar panchayats. On July 13, 1964, the
Gujarat Panchayat Service (Conduct) Rules, 1964 promulgated
under section 203 of the Panchayats Act came into force. On
July 16, 1964, the Gujarat Service (Discipline & Appeal)
Rules, 1964 came into force. On November 11, 1965, the
Gujarat Panchayat Service (Absorption, Seniority, Pay &
Allowances) Rules were promulgated. On October 16, 1968, the
Gujarat Panchayat Service (Transfer of Servants) Rules, 1968
were promulgated. The Gujarat Panchayat Service (Promotion
to cadres in State Service) Rules, 1974 were issued on
September 16, 1974.
156
The Gujarat Panchayat Service (Pension) Rules, 1976 were
issued on January 9, 1976. The State Government passed an
order under sub-section (2) of section 203 of the Panchayats
Act of January 2, 1967 directing that the Panchayat Service
shall consist of district cadre, taluka cadre and local
cadre and specified the posts which were to belong to each
of such cadres in the Schedule appended to the said order.
In Part III of the Schedule to that Order, the posts
belonging to the local cadre with which we are concerned in
these cases were specified. It is stated that by certain
administrative orders the State Government had also
undertaken the liability of reimbursing the panchayats,
either wholly or in part in respect of the remuneration paid
by them to the specified staff even though under section 204
of the Panchayats Act, the expenditure towards pay,
allowances etc. of officers and servants in Panchayat
Service should be met out of panchayat funds.
Although the above mentioned and some other steps were
taken by the State Government under the Panchayats Act
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providing for the constitution of the Panchayat Service, the
State Government did not make any order regarding the
equation of posts of the staff in the local cadre and
fixation of their pay scale till 1975 notwithstanding the
fact that repeated representations were made by the ex-
municipal employees and others who were included in the
local cadre. The State Government also failed to extend to
the staff borne on the local cadre of the Panchayat Service
the benefit of revisions of pay scales and other allowances
which were made on the basis of the recommendations of the
first Pay Commission (Sarela Commission) and of the second
Pay Commission (Desai Commission). The State Government also
did not make any rules prescribing the promotional avenues
for the staff borne on the local cadre of the Panchayat
Service. The petitioners, therefore, filed the Special Civil
Application No. 309 of 1975 on the file of the High Court of
Gujarat out of which the above appeal arises under Article
226 of the Constitution for several reliefs, referred to
above. The said application was resisted by the State of
Gujarat and the Development Commissioner who had been
impleaded as the respondents. The contentions urged by the
petitioners before the High Court among others were that the
Panchayat Service was as much a service under the State as
any other State Civil Service; that the State Government had
failed to discharge its statutory duties in relation to the
members of the staff included in the local cadre of the
Panchayat Service and that the denial of benefits similar to
those extended to other members of the State Civil Service
on the basis
157
of the reports of the two Pay Commissions to them amounted
to hostile discrimination. The principal contention urged on
behalf of the State Government was that the members of the
Panchayat Service were not Government servants and,
therefore, could not claim the reliefs prayed for by them.
In support of the above contention, reliance was placed by
the State Government on section 203 (1) of the Panchayats
Act which stated that the Panchayat Service was distinct
from the State Service. It should be mentioned here that the
question whether the Panchayat Service constituted under the
Panchayats Act was a Civil Service under the State
Government or not arose for consideration before the High
Court of Gujarat in G. L. Shukla & Anr. v. The State of
Gujarat & Ors.(1). That was a case in which some of the
employees of the State Government working in the Public
Works Department questioned the constitutional validity of a
notification issued by the State Government transferring
certain, functions of the Public Works Department to the
panchayats and transferring some of the officers and
servants working in that department to the Panchayat
Service. The petitioners therein who had been allotted to
the Panchayat Service under that order contended that the
notification was violative of Articles 14, 310 and 311 of
the Constitution on the ground that by virtue of the
impugned notification, they had been removed from the
service of the State Government against their will and in
violation of their rights under the Constitution. The High
Court dismissed the petition holding that they had not
ceased to be Government servants by reason of the allocation
of their services to the Panchayat Service. Bhagwati, J. (as
he then was) observed in the course of the said decision at
page 845 thus:
"When an order of allocation is made under sec.
206, the Government servant who is allocated does not
cease to be a State servant and become a servant of the
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panchayat. There is no termination of his service as a
State servant and the only effect of the order of
allocation is that whereas, prior to the order of
allocation, he was a member of one civil service of the
State, namely, the State Service, he is now, after the
order of allocation, a member of another civil service
of the State, namely, the panchayat service. He is
merely transferred from one civil service of the State
to another. The Panchayat Service contemplated under
the Act is as much a civil service of the State as the
State service. The Legislature by enacting
158
the Act provided for the establishment of the Panchayat
Organization of the State and for the efficient
administration of the Panchayat Organization,
particularly in view of the fact that a large part of
the service personnel would be drawn from different
sources and would, therefore, be heterogeneous in
composition with widely differing scales of pay and
conditions of service, the Legislature felt that it
would be desirable to have a separate civil service of
persons employed in the discharge of functions and
duties of panchayats with uniform scales of pay and
uniform conditions of service and, therefore with that
end in view the Legislature provided for constitution
of the panchayat service. All the provisions of the Act
relating to the panchayat service point unmistakably
and inevitably to one and only one conclusion, namely,
that the panchayat service is one single service with
the State as the master."
Following the decision in Shukla’s case (supra) the
High Court held in the case out of which this appeal arises
that the petitioners herein who belonged to the local cadre
were Government servants and directed the State Government
(i) to issue suitable orders, in so far as the members
included in the local cadre were concerned regarding the
equivalence of posts, fixation of pay scales for such posts,
fixation of the petitioners and the persons whom they
represent at an appropriate stage in such pay scales and
other incidental matters and to give effect to such orders
from the date of allocation of the petitioners and others
whom they represent to the Panchayat Service, that is to
say, from February 11, 1969, (ii) to fix their initial pay
scales and allowances and to revise them in accordance with
the orders passed by the State Government in the case of
other Government employees on the basis of the first Pay
Commission (Sarela Commission) and of the second Pay
Commission (Desai Commission) with effect from the dates on
which similar benefits were extended to other State Civil
Services, and (iii) to consider the question of making
suitable provisions in the appropriate rules providing for
promotion of members of the local cadre who were formerly
the employees of the municipalities. Aggrieved by the
directions issued by the High Court, the State Government
and the Development Commissioner have filed this appeal.
During the pendency of the above appeal, as stated
above, the Ordinance was issued by the Governor of Gujarat
amending some of the provisions of the Panchayats Act and
the said Ordinance was replaced by the Amending Act. As the
petitioners felt that their interests were adversely
affected by the Ordinance and the Amending Act, they filed
the writ petitions referred to above.
159
Although several questions arise for consideration in
the above appeal, at this stage we propose to deal with
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only the following two contentions as per orders passed by
the Court on July 24, 1980:-
"(1) Whether the Panchayat Service was a Civil
Service of the State and
(2) whether under the unamended Act, there was a
common centralized Panchayat Service?"
It is well-known that in India experiment in
administration of local self Government had been going on
for well over a century in almost all British Indian
provinces and many princely States that were in existence
before the commencement of the Constitution. There were laws
having local operation under which different kinds of local
self-Government bodies were constituted to enable persons
living in different local areas to participate in the
administration of such local areas in so far as functions
that were delegated to them by law. All those laws continued
to be in force even after the commencement of the
Constitution. Some of them have since been repealed and
replaced by new laws. Municipal corporations, city
municipalities, town municipalities, municipal boroughs,
district boards, zilla parishads, taluka development boards,
town panchayats, village panchayats, sanitary boards and
town area committees were some of the different kinds of
local bodies which were constituted under the said laws and
the management of their affairs were entrusted subject to
the control of the State Government to elected bodies. Each
one of them was treated as a body corporate. In so far as
the staffing pattern of these bodies was concerned, there
were at least three classes of persons working under them.
Officers holding high administrative posts such as
commissioners of corporations, deputy commissioners of
corporations, municipal health officers, municipal
educational officers, district development officers and
chief executive officers of district boards were usually
drawn from the ranks of the provincial or the State Services
and they were deputed to the various bodies to discharge
functions which were either statutory or non-statutory. Even
though they drew their salary and allowances from the local
bodies to which they were deputed, they still retained their
identity as officers of the State Civil Service and their
services were liable to be withdrawn by the State Government
at any time it pleased. There was a second class of officers
like chief executive officers of town municipalities who
were officers belonging to the provincial or State local
self-Government Service and who were liable to be
transferred from one local body to another. There was a
third class of officers and servants of the local bodies who
were appointed by them and who were for all intents and
purposes
160
the employees of the local bodies by which they were
appointed. They could not be transferred from one local body
to another. The foregoing shows that in the case of persons
borne on the State Civil Service or the Provincial local
self-Government Service, the fact that they were for the
time being working under a local body and were in receipt of
salary and allowances from them did not militate against
their status as members of the Service from which they were
drawn. That was so because even when they were functioning
under local bodies, they were engaged in discharging duties
and functions which legitimately belonged to the State
Government but which had been transferred to the local
bodies with the intention of the decentralizing
administrative functions and of fostering democratic ideals
amongst the people.
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The first question is whether the Panchayat Service
constituted under the Panchayats Act is a civil service of
the State. The expressions ’civil service’ or ’civil post’
are not formally defined. Entry 70 of List I of the Seventh
Schedule to the Constitution refers to Union Public Services
and All-India Services, and Entry 41 of List II of that
Schedule refers to State public services. Part XIV of the
Constitution deals with services under the Union and the
States. In Article 309 of the Constitution, we find
reference to persons appointed to public services and posts
in connection with the affairs of the Union or of any State.
Article 310 of the Constitution distinguishes the defence
service from the civil service when it refers to members of
a ’defence service or of a civil service’. But all persons
who are members of a defence service or of a civil service
of the Union or of an all-India service or persons who hold
any post connected with defence or any civil post under the
Union are treated as persons serving the Union and every
person who is a member of the civil service of a State or
holds any civil post under a State is treated as a person
serving a State. The factors which govern the determination
of the question whether a person holds a civil post or is a
member of civil service were considered by a Constitution
Bench of this Court in State of Assam & Ors. v. Shri Nanak
Chandra Dutta(1) and Bachawat, J. speaking for the Bench
observed thus:
"There is no formal definition of "post" and
"civil post". The sense in which they are used in the
Services Chapter of Part XIV of the Constitution is
indicated by their context and setting. A civil post is
distinguished in Article 310 from a post connected with
defence; it is a post on the civil as distinguished
from the defence side of the administration, an
employment in a civil capacity under the Union or a
State. See marginal note to Article 311
161
In Article 311, a member of a civil service of the
Union or an all-India service or a civil service of a
State is mentioned separately, and a civil post means a
post not connected with defence outside the regular
civil services. A post is a service or employment. A
person holding a post under a State is a person serving
or employed under the State. See the marginal notes to
Articles 309, 310 and 311. The heading and the sub-
heading of Part XIV and Chapter I emphasise the element
of service. There is a relationship of master and
servant between the State and a person holding a post
under it. The existence of this relationship is
indicated by the State’s right to select and appoint
the holder of the post, its right to suspend and
dismiss him, its right to control and manner and method
of his doing the work and the payment by it of his
wages or remuneration. A relationship of master and
servant may be established by the presence of all or
some of these indicia in conjunction with other
circumstances and it is a question of fact in each case
whether there is such a relation between the State and
the alleged holder of a post."
According to the above decision, the true test for
determination of the question whether a person is holding a
civil post or is a member of the civil service is the
existence of a relationship of master and servant between
the State and the person holding a post under it and that
the existence of such relationship is dependent upon the
right of the State to select and appoint the holder of the
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post. its right to suspend and dismiss him, its right to
control the manner and method of his doing the work and the
payment by it of his wages and remuneration. It is further
held that the relationship of master and servant may be
established by the presence of all or some of the factors
referred to above in conjunction with other circumstances.
Applying these tests, this Court held that a Mauzadar in the
Assam Valley who was engaged in the work of collection of
land revenue and other Government dues and in the
performance or certain other special duties was a person
holding a civil post under the State. Following the above
decision in Superintendent of Post Offices etc. etc. v. P.
K. Rajamma etc. etc. this Court held that persons who were
working as extra departmental agents of the Posts and
Telegraphs Department were persons holding civil posts.
162
Section 102 of the Panchayats Act before it was amended
by the Amending Act read as follows:-
"102. (1) Subject to the provisions of this Act
and the rules made thereunder-
(a) there shall be a Secretary for every gram
panchayat and nagar panchayat who shall be
appointed in accordance with the rules;
(b) a gram panchayat or as the case may be,
nagar panchayat shall have such other servants as
may be determined under section 203. Such servants
shall be appointed by such Authority and their
conditions of service shall be such as may be
prescribed :.. "
Section 122 of the Panchayats Act reads:
"122. Subject to the provisions of this Act and
the rules made thereunder-
(1) there shall be a Secretary for every
taluka panchayat,
(2) the Taluka Development officer who shall
be an officer belonging to the State Service and
posted under the panchayat, shall be the ex-
officio Secretary of the panchayat.
(3) a taluka panchayat shall have such other
officers and Servants as may be determined under
section 203. Such officers and servants shall be
appointed by such authority and their conditions
of service shall be such as may be prescribed. ’
The officers and servants so appointed shall in
the discharge of their functions and duties
exercise such powers as may be conferred on them
by the panchayat, subject to rules, if any, Made
in this behalf."
Clause (c) of sub-section (2) of section 123 of the
Panchayats Act authorises the Taluka Development officer to
appoint such class of officers and servants as may be
prescribed.
Section 142 of the Panchayats Act reads:
"142. Subject to the provisions of this Act and
the rules made thereunder-
(1) there shall be a secretary for every
district panchayat;
(2) (a) a District Development officer posted
under the panchayat, shall be ex-officio secretary
of the panchayat;
(3) a district panchayat shall have such
other officers and servants as may be determined
under section 203. Such officers and servants
shall be appointed by such authority and
163
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their conditions of service shall be such as may
be prescribed. The officers and servants so
appointed shall in the discharge of their
functions and duties exercise such powers as may
be conferred on them by the panchayat, subject to
rules, if any, made in this behalf."
Clause (c) of sub-section (2) of section 143 of the
Panchayats Act empowers the District Development officer to
appoint such class of officers and servants as may be
prescribed.
It is significant that sections 102, 122 and 142 of the
Panchayats Act provide that the gram panchayat or the nagar
panchayat or the taluka panchayat or the district panchayat,
as the case may be, shall have such other officers and
servants as may be determined under section 203 of the
Panchayats Act and such officers and servants shall be
appointed by such authority and their conditions of service
shall be such as may be prescribed. As mentioned earlier,
Section 203 (1) of the Panchayats Act provides that there
shall be constituted a Panchayat Service in connection with
the affairs of panchayats i.e. gram and nagar panchayat,
taluka panchayat and district panchayat for the purpose of
bringing about uniform scales of pay and uniform conditions
of service of the person employed in the discharge of
functions and duties of panchayats. It may be noted that the
Panchayat Service contemplated under section 203 of the
Panchayats Act is a single service for the whole State and
it is not a collection of distinct and separate services of
each individual panchayat. That Panchayat Service is a
service under the State is again emphasized by section 206
which authorises the State Government to pool together four
classes of persons mentioned therein who originally belonged
to four different sources and to allocate them to the
Panchayat Service and one class of such persons are those
who belong to the State Service. Unless the Panchayat
Service is held to be a State service, inclusion of officers
and servants in the State service will be unconstitutional.
Sections 157 and 158 would also be exposed to a similar
attack. (Vide State of Mysore v. H. Pappana Gowda & Anr.
etc.) It is a well-settled rule of construction that a court
ought not to interpret statutory provisions unless compelled
by their language in such a manner as would involve their
unconstitutionality because the legislature is presumed to
enact a law which does not contravene the Constitution. In
the instant case, we feel that there is no compelling reason
to hold that the Panchayat Service is not a civil service
under the State. It is seen that further recruitment of
candidates to the Panchayat Service has to be made by the
Gujarat Panchayat Service Selection Board constituted by the
State Government. Entry 41 of List II of the Seventh
Schedule to the Constitution,
164
as mentioned earlier, also refers to State Public Services
suggesting that there can be more than one State Public
Service under the State. We have indeed a number of such
services under a State e.g, Police Service, educational
service, revenue service etc. State Public Services may be
constituted or established either by a law made by the State
Legislature or by rules made under the provision to Article
309 of the Constitution or even by an executive order made
by the State Government in exercise of its powers under
Article 162 of the Constitution. The recruitment and
conditions of service of the officers and servants of the
State Government may also be regulated by statute, rules or
executive orders. The administration of a service under a
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State involves broadly the following functions: (i) the
organisation of the Civil Service and the determination of
the remuneration, conditions of service, expenses and
allowances of persons serving in it; (ii) the manner of
admitting persons to civil service; (iii) exercise of
disciplinary control over members of the service and power
to transfer, suspend, remove or dismiss them in the public
interest as and when occasion to do so arises. In the
instant case, the Panchayat Service is constituted by the
Panchayats Act and the State Government is empowered to make
orders and rules regarding its organisation and management.
It is true that section 203 of the Panchayats Act, it is
stated that the Panchayat Service shall be distinct from the
State Service. Having regard to the broad features of the
Panchayat Service, we are of the view that the said
declaration appears to have been made only to distinguish
the Panchayat Service from other services of the State
attached to the several departments which are under the
direct control of the State Government. If the members of
the Panchayat Service are not to be the members of a Service
under the State Government but are to be the officers and
servants of the panchayat unit to which they are allotted
then sub-sections (2), (2A) and 4(a) of section 203 of the
Panchayats Act would to some extent become unworkable as
every time there is a transfer of an officer borne on the
Panchayat Service there would be a change of master. We do
not think that the Legislature intended such a bizarre
result. Sub-section (2) of section 203 authorises the
division of the Panchayat Service into different classes,
cadres and posts. Sub-section (2A) of section 203 provides
that the Panchayat Service may consist of district cadres,
taluka cadres and local cadres and that a servant belonging
to a district cadre may be transferred from a post in any
one taluka to a post in another taluka in the district, a
servant belonging to a taluka cadre may be transferred from
a post in any gram or nagar to a post in any other gram or
nagar in the same taluka. Sub-section (4) of section 203
authorises promulgation of rules providing for promotion of
servants in the Pan-
165
chayat Service to cadres in the State Service. Such
promotion is possible only because the State Government is
the master of the Panchayat Service. The reason for treating
Panchayat Service as a service distinct from State Service
appears to be that the law intended that person belonging to
the Panchayat Service should be transferable from one post
in a panchayat to another post in a panchayat and unless
there was an order of promotion, such persons could not be
transferred to posts outside the panchayats.
Merely because the panchayats are declared to be body
corporates, it cannot be said that any of the persons
working under them cannot considered as members of a civil
service under a State. The panchayats constituted under the
Panchayats Act derive their authority from the statute and
are under the control of the State Government. They form
part of the local self-Government organisation which the
State Government is under an obligation to foster under
Article 40 of the Constitution. Entry 5 of List II of the
Seventh Schedule to the Constitution specifically refers to
local authorities established for the purpose of local self-
Government or village administration as part of local
Government. The local authorities are included in the
definition of the expression ’State’ in Article 12 of the
Constitution. The panchayats exercise many governmental
functions which the State Government can perform. They are
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entrusted with the power to levy taxes and to exercise large
number of powers which are loosely called as "police powers"
regulating several aspects of human life. Articles 276 and
277 of the Constitution also take note of the powers of
local authorities to levy certain taxes. In addition to the
express powers granted to the panchayats, the State
Government is also authorised under the Panchayats Act to
delegate many of its functions to them and to transfer many
of its officers and servants to function under their
supervision and control as members of the Panchayat Service.
It is manifest from the foregoing that it cannot be said
that person working as members of the Panchayat Service are
not persons engaged in governmental functions and,
therefore, it is not possible to treat them as members of
the State Civil Service. We, however, make it clear that it
is quite possible that under the statute it may be open to
the panchayats to employ servants for the purpose of,
administration of the panchayats who may not be members of
the Panchayat Service. We are concerned in these cases only
with the members of the Panchayat Service constituted under
section 203(1) with regard to whose appointment and
conditions of service the Government alone has been
entrusted with the power to make rules under section 203(3).
We are of the view H. that the Panchayat Service constituted
under section 203 of the PanchaYats Act has all the
characteristics of a Civil Service of the State. This
166
also appears to have been the view of the State Government
when it constituted the second Pay Commission (Desai
Commission) as can be seen from the Government Resolution
constituting the said Commission requiring it to examine the
general conditions of service applicable to Government
employees other than officers of the all India services but
including employees in the Panchayat Service (Vide
Resolution No. PDS 1672/1526/P dated November 20, 1972
passed by the Government of Gujarat) and there is no
justification for taking a view different from the one taken
by the High Court of Gujarat in Shukla’s case (supra) as
early as 1967. Several orders and rules issued by the
Government of Gujarat under the Panchayats Act since its
commencement also support the aforesaid view.
At this stage, it is necessary to refer to a decision
of this Court in Jalgaon Zilla Parishad v. Duman Govind &
Ors on which reliance was placed by the learned counsel for
the State Government in support of the contention that the
Panchayat Service cannot be considered as a State Civil
Service. In that case, the question which arose for
consideration was whether kotwals who were holding posts
under the Slate Government ceased to be the employees of the
Government on the transfer of their services to Zilla
Parishads. This Court held that they ceased to be the
Government servants as they had been transferred to the
services of the Zilla Parishads. That decision turned on the
true construction of section 239 of the Maharashtra Zilla
Parishads and Panchayat Samitis Act, 1961 which provided for
the constitution by the State Government as from the
appointed day a District Technical Service (Class III), a
District Service (Class III) and a District Service (Class
IV) for each Zilla Parishad. We do not have a corresponding
provision in the Panchayats Act providing for the
constitution of a service for each panchayat but on the
other hand, the statutory requirement is that a Panchayat
Service should be constituted in respect of all the
panchayats i.e. district panchayats, taluka panchayats and
gram and nagar panchayats. Such a common service constituted
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for the benefit of all panchayats leads to the inevitable
conclusion that the State alone can be the master of the
members of that Service and not the individual Panchayats.
The decision relied on has, therefore, no bearing on the
question before us. We, therefore, reject the contention of
the State Government that the Panchayat Service is not a
civil service under the State. We, however, make it clear
that the view taken by us in the present case does not
necessarily lead to the conclusion that every employee of a
local body who is not a member of the Panchayat Service
should be treated as a member of the State
167
Civil Service. It is a question of fact to be decided in
each case depending on the circumstances of that case.
The second question is a simple one and does not
require much elaboration. The provisions contained in
section 206 of the Panchayats Act and the provisions in sub-
sections (2), (2A), (3) and (4) of section 203 clearly
establish that the Panchayat Service constituted under
section 203 can only be a centralized service and
recruitment of candidates to be made under section 210 of
the Panchayats Act by the Gujarat Panchayat Service
Selection Board can only be to that centralized service. The
division of the Panchayat Service into district cadre,
taluka cadre and local cadre does not affect the integrity
of the Panchayat Service. It continues to be a single
service notwithstanding such division. When the Panchayat
Service is a State-wide service, it has necessarily to be
held that it is a common centralised service
In the result, we answer the two points which are set
down for decision at this stage as follows:-
"1. The Panchayat Service constituted under the
Panchayats Act is a civil service of the State of
Gujarat; and
2. that under the unamended Act, there was a
common centralized Panchayat Service."
The cases shall now be posted before a Bench of three
Hon’ble Judges for further hearing on other points as
directed by the Court on July 24. 1980.
N.V.K.
168