TaxTMI 
TaxTMI 
2006 (12) TMI 446
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....y of the State to apply these principles in making laws. By 73rd Constitutional Amendment Article 243G was introduced in the Constitution of India. Article 243G reads as under:- "243G. Powers, authority and responsibility of Panchayat. Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to (a) the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule." Article 243G, thus, endows the Panchyats with such power and authority as may be necessary to enable them to function as institutions of self government. Such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, subject to conditions as may....
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.... for providing Multi-purpose workers to the Gram Panchayats and by G.O. dated 26.7.1999 they were re-designated as Gram Panchayat Vikas Adhikaris (GPVAs). They were put under the control of the Gram Panchayats while discharging the functions of their respective Departments. Aggrieved thereby, several Writ Petitions, including Writ Petition No. 33929 of 1999 were filed challenging the constitutional validity of new Section 25 and Section 25A and the G.O. dated 1.7.1999. The High Court, after hearing the parties, upheld the validity of the Section and G.O. dated 1.7.1999 and held that such employees, transferred as GPVAs, continue to remain Government Servants and to be governed by the original and respective Service Rules. It was held they are on deputation to Gram Panchyayats. By G.O. dated 6.6.2001, 10,102 employees of two Departments, viz. Irrigation (Seenchpal Canal Div. 4782 employees) and Health (Male Health Workers 5320 employees) were repatriated to their Parent Departments. Similarly, on 21.9.2001, 479 employees of Land Development and Water Resources Department were also repatriated/called back. The aforesaid Govt. Orders were challenged by one Krishna Kant Tewari by fi....
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....rtment to their Parent Departments under the control of the Parent Departments. The Order reads: "No.3334/05-27-1-5-31-TW/2005 From, Smt. Neera Yadav, Chief Secretary, Uttar Pradesh Shasan, To, 1. All Divisional Commissioner, U.P. 2. All District Magistrate, U.P. Irrigation Section-5 Lucknow Dated 19th July,2005 Sub: Regarding transfer of all Tube Well Operators/ Part time Tube Well Operators back to Irrigation Department for proper operation and maintenance of state Tube Well who had been transferred to Gram Panchayat. Dear Sir, In reference to the above subject the Government has taken following decisions with immediate effect for proper operation and maintenance of state Tube Wells transferred to Gram Panchayats:- (1) All State Tube Wells alongwith their assets may again be transferred to Irrigation Department from Gram Panchayats. (2) Tube Well Operators/ Part time Tubewell Operators of Irrigation Department, who were transferred as multipurpose employees along with tubewells on the post of Gram Panchayats Development Officer under the control of Gram Panchayats, may be again transferred alongwith tube-wells back to their substantive posts of tubewell operators/ part ....
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....as Adhikari was created. The Chief Secretary totally ignoring the Government Order dated 20.07.2004 and provisions made therein which have statutory force, issued impugned circular without even referring or taking note of the Government Order dated 20.07.2004. Thus, the impugned circular is apparently without application of mind and arbitrary." The prayers made in the Writ Petition are as under: (A) "Issue a writ, order or direction in the nature of certiorari, quashing the impugned circular dated 19.7.2005, issued by the Chief Secretary, Government of U.P. (Annexure 3 to this writ petition). (B) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to interfere in the working of the petitioners as Gram Panchayat Vikas Adhikari and to give the petitioners all consequential service benefits for which they are found entitled under law. (C) Issue any other and further suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (D) Award the cost of this petition to the petitioners." A perusal of the Writ Petition, particularly paragraphs 13, 15, 16, 17, 18 and 21 discloses....
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.... of the five departments did not take their repatriation lying down, those were challenged in the Courts of law; Writ Petitions were filed and in each and every case those workers have been unsuccessful. We make references to the cases of Krishna Kant Tripathi, 2002 (1) U.P.L.B.E.C. 256. Certain other references would also be found in one of the judgments under appeal delivered on the 11th of August, 2005 in Civil Misc. Writ Petition No. 53174 of 2005 and others. Reference should also be made to the main case of Gauri Shanker and others Vs. State of U.P. and others which is a decision given in Special Appeal No. 1005 of 2004. The judgment was delivered on the 25th of August, 2004. In each of these cases, the Court laid down that the repatriated workers have never lost their lien on their original posts in the different Government Departments and, as such their repatriation could not be challenged on any ground. It was held that they were doing the work as Gram Panchayat Vikas Adhikaris no more than as the deputationists. These decisions are binding decisions on us and we cannot in any manner decide differently on a point of law from the decisions given in these cases, we being also....
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....ecision of the Division Bench of the High Court is unsustainable. Civil Appeal No. 1900 of 2006 was filed by the employees of Social Welfare Department against the judgment. They wanted to go back to their Parent Department. Civil Appeal No. 1901 of 2006 was filed by Tube-well Operators against the same judgment. They also wanted to go back to their Parent Department, namely, Irrigation Department. By the impugned order, the High Court set aside the order of repatriation adversely affecting them without their being brought on record as party respondents. They were neither a party before the Single Bench nor before the Division Bench. Mr. Ashok H. Desai, learned Senior counsel appearing for the appellants in C.A. Nos. 1900 and 1901 of 2006 contended that in these cases the High Court has flouted the settled principles of natural justice by passing an order adversely affecting the appellants without hearing them. In Ishwar Singh Ajai Kumar & Ors. v. Kuldeep Singh and Ors. 1995 Supp (1) SCC 179, this Court held as under: "It is not disputed by the learned counsel for the parties that except Ishwar Singh, no other selected candidate was impleaded before the High Court. The selection ....
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....he High Court, at the appellate stage made observations which induced some of the appellants at the last minute to urge the ground of legitimate expectation which was permitted and on the basis of it such finding has been recorded. Such an approach is not permissible. See National Building Construction Corporation v. S. Raghunathan & Ors. (1998) 7 SCC 66. The High Court has also directed that the part-time Tube-well Operators shall be treated as permanent employees under the same service conditions as the Tube-well Operators as far as practicable. This direction runs in the teeth and the guidelines of the Constitution Bench Judgment in Secretary, State of Karnataka & Ors. v. UmaDevi (3) & Ors. (2006) 4 SCC 1. In fact, on this score alone the decision of the Division Bench of the High Court deserves to be set aside. We, now proceed to consider the contentions raised by the respective parties: The principle contention which appears to be common is that the Tube-well Operators were transferred as a consequence of transfer of Governmental functions inter-alia relating to minor irrigation, water management and watershed development etc. as part of the Constitutional Scheme of devoluti....
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....gh (3) v. State of A.P. & Ors. (2006) 4 SCC 162 and Kuldip Nayar and Ors. v. Union of India & Ors. (2006) 7 SCC 1. where a Constitution Bench of this Court considered the basic structure theory in paragraph 107 of the Judgment and held as under: "107. The basic structure theory imposes limitation on the power of Parliament to amend the Constitution. An amendment to the Constitution under Article 368 could be challenged on the ground of violation of basic structure of the Constitution. An ordinary legislation cannot be so challenged. The challenge to a law made, within its legislative competence, by Parliament on the ground of violation of the basic structure of the Constitution is thus not available to the petitioners." TRANSFER LOCK, STOCK AND BARREL The contention of the learned Senior counsel for the respondent that the transfer of the Tube-well Operators from Irrigation Department to the Gram Panchayat was lock, stock and barrel and, therefore, it is a complete and permanent transfer. This contention is factually incorrect and misplaced. In fact, out of 26,117 operators in the Irrigation Department, only 22329 were transferred and out of that 13,000/- joined back the Irrigat....
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....o the credit of the Gaon Fund all dues levied or imposed in respect thereof." Firstly, vesting of the property in the Gram Panchayat employed in Section 34 would mean the property vested for the purpose of management and control. Not that the property so vested is fastened to the Panchayat and remains as its property. Secondly, public property has been defined under Section 2(mm) of the Act as under: "Public Property" and "Public Land" mean any public building, park or garden or other place to which for the time being the public have or are permitted to have access whether on payment or otherwise." Public property, as defined under Section 2(mm) shows it is referable to public building, park or garden or other place to which for the time being public have or are permitted to have free access. It is common knowledge that a tube-well is handled by a technician an expert hand. General public does not have free access to the tube-well. They can only have free access to the water drawn from the tube-well. In our opinion, therefore, tube-well does not fall within the scope of public property referred to in Section 34 of the Act. THE BASIC QUESTION FOR CONSIDERATION The basic questio....
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....e prescribed authority may, subject to such conditions as may be prescribed, transfer any employee referred to in clause (b) of sub-section (1) from one Gram Panchayat to any other Gram Panchayat within the same district and the State Government or such other officer as may be empowered in this behalf by the State Government may similarly transfer any such employee from one district to another. (7) A Nyaya Panchayat may, with the previous approval of the prescribed authority, appoint any person on its staff in the manner prescribed. The person so appointed shall be under the administrative control of the prescribed authority who shall have power to transfer, punish, suspend, discharge or dismiss him. (8) Appeal shall lie from an order of the prescribed authority punishing suspending, discharging or dismissing a person under sub-section (7) to an authority appointed in this behalf by the State Government." Section 25, thus, clearly discloses that the transfer shall be made with such designation as may be specified in the Government Order; transfer and posting in Gram Panchayat shall be made by such authority in such manner, as may be notified by the State Government; the transfer....
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....ditions of the employees working under Gram Panchayats. WHETHER IT IS TRANSFER? The next question to be considered is whether they were under transfer as visualized under Section 1(a) of Section 25 of the Act. It is contended by Senior counsel for the respondents that it cannot be termed as deputation, because, to be on deputation, tri-partite consent is necessary, namely, that of the lending Department, the borrowing Department and the employees. We are unable to accept this contention for more reasons than one. Firstly, the respondents (writ petitioners) did not protest on their being sent to the Gram Panchayats. They accepted the transfer with conditions without demur knowing fully well their rights and obligations. They also accepted the terms and conditions of Section 25 of the Act, as quoted above. No protest, whatsoever, was raised either by the employees or by Gram Panchayats. It is not the case of the respondents nor of the Gram Panchayats that the transfers were made against their consent despite protests. It is, in these circumstances, that the consent is implied. The expression "Transfer" employed in Section 25, in our view, is a misnomer. It is true that the langu....
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....nt to which he had gone on deputation." We may also dispose off one contention of Dr. Rajiv Dhawan, learned Senior counsel despite our holding that the respondents were sent on deputation and not on transfer. According to Dr. Dhawan, reading Section 25(a) and Sections 25(6) conjunctively, the State Government is empowered to transfer any such employee only from one District to another or from one Panchayat to another. According to him, therefore, the State is incompetent to pass an order to transfer them back to the Irrigation Department. We are unable to accept this submission. Sub-section 6 does not take away the general power of transfer as it is understood in the language used. What is intended by sub-section (b) is that apart from the general power of transfer as visualized in Section 25(a), the State Govt. will also be empowered to transfer the employee from one District to another District so long as he remains under the control of Panchayat. Sub-section(6), therefore, does not take away the general power of the Government of transfer/repatriation of the respondents from Gram Panchayats to the Parent Departments. In the view that we have taken, the judgment and order of th....