G L SHUKLA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These petitions raise an interesting question as to the constitutional validity of certain provisions of the Gujarat Panchayats Act 1961 (hereinafter referred to as the Act). Sec. 1 of the Act came into force on 24th February 1962 and sub-sec. (3) of sec. 1 provided that the remaining provisions of the Act shall come into force on such date or dates as may be appointed by the State Government. 21st March 1963 was the date appointed by the State Government in exercise of the power conferred under sec. 1 sub-sec. (3) and the remaining provisions of the Act therefore came into force on that date. By an order made under sec. 157 of the Act the State Government transferred to the respective District Panchayats the powers functions and duties exercised and performed by the Public Works Department of the State Government in various Divisions and Sub-divisions with effect from 1st April 1963. The Public Works Department consists of five wings namely Roads and Buildings Irrigation Public Health) Electrical and Mechanical and the divisions and sub-divisions of which the powers functions and duties were transferred belonged to the Roads and Buildings and Irrigation Wings. Each of these divisions comprised Class I Class III and Class IV servants belonging to the State service and each of the sub-divisions comprised Class 1 Class III and Class IV servants of the State service. We are concerned in these petitions with Class III and Class IV servants and we will therefore confine our attention only to them. Class III servants consisted of overseers clerks tracers draftsmen assistant draftsmen typists computers and store-keepers while Class IV servants consisted of Chowkidars and Peons. The Order by which the functions powers and duties of these divisions and sub-divisions were transferred also allotted to the respective District Panchayats Class III and Class IV servants serving in these divisions and sub-divisions under sec. 157 of the Act. Class III and Class IV servants apprehended that the State Government will immediately proceed to allocate them to the Panchayat Service under sec. 206(1)(i) of the Act and the State Government took a step in the direction by issuing a Notification dated 22nd March 1963 under sec. 321(1) authorizing the Superintending Engineers of various Circles to exercise the power of the State Government under sec. 206(1)(i) in respect of Class III and Class IV servants. The petitioners who are Clerks belonging to Class III services thereupon preferred Petition No. 351 of 1963 on behalf of themselves and other Clerks of the Roads and Buildings and Irrigation Wings of the Public Works Department and the petitioners who are Class III and IV servants preferred Petition No. 382 of 1963 on behalf of themselves and other Class III and Class IV servants except Clerks belonging to the said two Wings of the Public Works Department. These petitions challenged the vires of secs. 205 205 and 209 of the Act and sought to restrain the State Government and the Superintending Engineers of various Circles from making any orders of allocation under sec. 206 of the Act in respect of Class III and Class IV servants serving in the divisions and sub-divisions transferred under the order. Immediately on filing the petitions the petitioners applied for interim relief and on the application for interim relief a consent order was passed as a result of which the respondents agreed to stay their hands and not to issue any allocation orders pending the disposal of the petitions. During the pendency of the petitions the Act was amended by the Legislature and a new sec. 206A was introduced. The petitioners therefore after obtaining leave of the Court amended the petitions by introducing a paragraph challenging the vires of sec. 206A. The petition as amended thus impugned the validity of four sections namely secs. 205 206 206 and 209.

(2.) There were three grounds on which the validity of these sections was challenged in the petitions. One was that the sections were in conflict with Articles 310 and 311; the other was that the sections were violative of Articles 14 and 19(1)(g) and the third was that the sections were repugnant to the Industrial Disputes Act 1947 Of these three grounds the last was given up by Mr. Nanavati on behalf of the petitioners and even out of the two legs of the second ground that based on Article 19 was not pressed and the challenge under the second ground was confined to violation of Article 14. The only points which therefore require to be considered are first whether the impugned sections are violative of Articles 310 and 311 and secondly whether they transgress the constitutional inhibition contained in Article 14.

(3.) In order to appreciate the arguments bearing on these points it is necessary to refer to a few relevant provisions of the Act. The Act as its preamble shows was passed with the object of reorganizing the administration pertaining to local government in furtherance of the object of democratic decentralisation of powers in favour of different classes of panchayats. The Act divides the State into districts districts into talukas and talukas into grams and nagars and sec. 3 enacts that there shall be in each district a gram panchayat for each gram a nagar panchayat for each nagar a taluka panchayat for each taluka and a district panchayat for the district. Sec. 7 says that each of the panchayats shall be a body corporate with perpetual succession and a common seal. Sec. 8 give the hierarchy of panchayats namely that the gram panchayat or nagar panchayat shall be subordinate to the taluka panchayat and the district panchayat and the taluka panchayat shall be subordinate to the district panchayat and declares that all the panchayat shill be subject to the overall control of the State Government. The gram panchayats nagar panchayats taluka panchayats and district panchayats according to sec. 11 sub-sec. (1) constitute the Panchayat Organisation of the State and sec. 11 sub-sec. (2) reiterates the control of the State Government over the panchayats. Certain functions are statutorily entrusted to the gram or nagar panchayat taluka panchayat and district panchayat and they are to be found respectively in Schedules I II and III The List of functions enumerated in Schedules I II and III is known as Panchayat Functions List (Vide sec 2(22)). In addiction to the functions set out in the Panchayat Functions List the panchayats are also expected to perform certain other functions which are transferred to them by or under the provisions of the Act. Secs. 149 155 157 158 325 326 and 327 provide for the transfer of various functions powers and duties to the panchayats. Now in order to exercise these powers and perform these functions and duties the panchayats would require service personnel. Sec. 155 sub-sec. (1) clause (e) transfers to the taluka panchayats and the district panchayat the employees of the District school boards which are dissolved under the main part of sub-sec. (1) of sec. 155. Sec. 325 sub-sec. (2) clause (x) makes the employees of the old village panchayats employees of the new gram panchayats until other provision is made in accordance with the provisions of the Act. The employees of the district local boards which are dissolved under sec. 326 are transferred to the service of the successor panchayat under clause (k) of that section subJect to provisions of the Act. When any powers functions and duties are transferred by the State Government to the district panchayat under sec. 157 the State Government is required by that section to allot to the district panchayat such personnel as may be necessary to enable the district panchayat to exercise the powers and discharge the functions and duties so transferred. The district panchayat in its turn may delegate any of these powers functions and duties to any panchayat subordinate to it and if it does so it may allot to such panchayat such staff as may be necessary to enable the panchayat to exercise the powers and discharge the functions and duties so delegated. Sec. 158 provides for statutory transfer to the district panchayat of the staff employed for the performance of the functions and duties transferred under that section. The service personnel drawn from different sources is thus allotted or transferred to the different panchayats and by its very nature it would be heterogeneous in composition with widely differing scales of pay and conditions of service. This it was realised would not be conducive to healthy and efficient administration of the panchayat organization. It was also felt that since the panchayat organization was being set up for the exercise of decentralized powers of local Government it would be desirable that there should be a distinct independent service of persons employed in the discharge of functions and duties of panchayats with uniform scales of pay and uniform conditions of service. The Legislature therefore with a view to constituting such service and integrating the service personnel allotted or transferred under various sections of the Act into such service enacted Chapter XI containing provisions relating to services. This Chapter contains a fasciculus of sections commencing from sec. 203 and ending with sec. 211. Sec. 203 provides for constitution of a Panchayat Service in connection with the affairs of panchayats and this service is to be distinct from the State service. The Panchayat Service is to be constituted as follows as set out in sec. 203 :