ADWAIT CHANDRA JENA Vs. KHANDAHATA GRAMA PANCHAYAT

JUDGEMENT

(1.) FINDING somewhat divergent views expressed in Dinabandhu Swain v. State of Orissa and Ors. : 1997 (II) OLR 229; and in Kashinath Pani v. Social Extension Officer, Gumma Block and Ors. : 1996 (II) OLR 661, the present reference has been made to the Full Bench to decide the question whether Secretary of a Grama Panchayat appointed under Orissa Grama Panchayat Act, 1964 (in short, the 'Act'), and the Orissa Grama Panchayat Rules, 1968 (in short, the 'Rules') holds a civil post under, the State Government, and therefore, any dispute relating to his service conditions has to be adjudicated by the Orissa State Administrative Tribunal (in short, the 'Tribunal'). In Kashinath Pani's case (supra) it was observed that the Secretary of a Grama Panchayat does not hold civil post. In Dinabandhu Swain's case (supra) though no final opinion was expressed, it was observed that no opinion was necessary to be expressed, and the point was left open for adjudication in appropriate cashes, because petitioner in that case had been pursuing his remedy for pretty long time before this Court, and it would not be appropriate to drive him after the length of time to again pursue the remedy before the Tribunal.

(2.) THE foundation for contending that the Secretary of a Grama Panchayat holds civil post is stated to be the decision of the Apex court in R.N.A. Britto v. Chief Executive Officer and Ors. : AIR 1995 SC 1936. Referring to certain provisions of Karnataka Village Local Boards Act, 1959, the Apex Court held that Panchayat Secretaries are Government servants and hold civil post.

(3.) 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). In Article 311, a member of a civil service of the Union or in 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 emphasises 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 the 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 indica, 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.