B.J. Divan, C.J.
1. The Division Bench consisting of D. A. Desai and A. N. Surti, JJ., has referred the following question to & larger Bench which has now been placed before us:
Who would be the appointing authority in respect of a servant belonging to the State Service prior to his allocation to the Panchayat Service on his allocation to Panchayat Service becoming final and on his becoming a member of the Panchayat Service and who, accordingly, would be competent to remove him from service ?
2. In order to appreciate the contentions which have been taken up before us in this appeal, a few facts need be stated. In Special Case No. 1 of 1972 in the Court of the learned Special Judge, Amreli, two accused were put up for trial in respect of offences punishable under Sections 409 and 477A of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act, 1947. Out of the two accused, accused No. 1 was convicted and sentenced to various terms of imprisonment and also to fine. As regards accused No. 2, the proceedings were dropped at the conclusion of the trial because, it was found by the learned Special Judge that the sanction to prosecute accused No. 2 which had been granted under Section 6 of the Prevention of Corruption Act. 1947, was not a valid sanction and hence the Court could not have taken cognizance of the different offences against him. The learned Special Judge left it open to the prosecution to take any other appropriate proceedings against original accused No. 2 as the prosecution deemed proper. Criminal Appeal No. 361 of 1972 was thereafter filed by original accused No. 1 and the appeal was against the conviction and sentence by the learned Special Judge, Amreli.
3. When the appeal reached hearing before the Division Bench consisting of D. A. Desai and A. N. Surti. JJ., the learned advocate for the appellant raised two preliminary contentions and we are concerned in the present judgment with the first of those contentions. It was contended that in the instant case sanction to prosecute the present appellant, being Exhibit 178 on the record of the case, was given by the District Development Officer, Amreli. This sanction to prosecute the appellant was invalid in that the District Development Officer, was not the appointing authority of the appellant and, therefore, could not have removed the appellant from service and hence it was not open to the District Development Officer to accord sanction under Section 6 of the Prevention of Corruption Act, 1947, in this particular case against the appellant It wag further contended in this connection that as the sanction was invalid, the Court of the Special Judge, Amreli, had no jurisdiction to take cognizance of the offences against the present appellant
4. In order to appreciate this contention regarding the validity of the sanction, it may be pointed out that under Section 6 of the Prevention of Corruption Act. 1947, no Court can take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code, or under Sub-section (2) or Sub-section (3-A) of Section 5 of the Act. alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from service. It is common ground before us that Clauses (a) and (b) of Section 6(1) do not apply to this case because, it is nobody's contention that Clause (a) which contemplates the case of a person employed in connection with the affairs of the Union would apply to the present appellant nor is it his case that the present appellant is a person employed in connection with the affairs of the State of Gujarat and is not removable from his office save by or with the sanction of the Government. If the case does not fall under either Clause (a) or Clause (b). then Clause (c) contemplates 'in the case of any other person, of the authority competent to remove him from his office'. Under Article 311, Clause (1) of the Constitution, no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed,
5. The service book of the present appellant has been exhibited on the record at Exhibit 49 and it shows that the appellant was appointed on September 12, 1951 in an officiating capacity as a Talati and the order appointing him was passed by the District Deputy Collector, Palitana. Thereafter the appellant was confirmed in Government service as Talati by an order passed by the District Deputy Collector, Palitana, in Bhavnagar District on June 25, 1954. The appellant continued to work as a Talati, that is, Village Accountant, in one or the other village in Bhavnagar District but on October 13, 1958 an order was passed by the Collector, Bhavnagar. placing the services of the appellant at the disposal of the Panchayat Department. It may be pointed out that upto November 1, 1956 Bhavnagar District was part of the State of Saurashtra and after the formation of the bigger bilingual State of Bombay on November 1, 1956, the entire area of Saurashtra became part of the State of Bombay. The State of Saurashtra, passed an Ordinance called the Saurashtra Gram Panchayat Ordinance, Ordinance 57 of 1949, for the formation of Gram Panchayats in different villages and under Section 26 of this Ordinance as it originally stood, the appointment of Secretary (Mantri) of each Panchayat or of one Secretary between one or more Gram Panchayats was to be done by the Panchayat or Panchayata concerned but the appointment was to be made from amongst trained Government servants. By Saurashtra Gram Panchayat (Second Amendment) Act, 1955, being Act 24 of 1955, new Section 26 was substituted for the original Section 26 and after this amendment of 1955 which came into force on May 9, 1955, the appointment of the Secretary of a Gram Panchayat was to be made by the Government from amongst trained Government servants. This training was to be specially in connection with panchayat affairs. Both before the amendment of 1'955 and after the amendment of 1955, the Secretary or the Mantri was to be paid by the Panchayat concerned. The Bombay Legislature enacted the Bombay Village Panchayats Act. 1958, (Bombay Act III of 1959) which came into force with effect from January 23, 1959. By Section 185 of the Bombay Village Panchayats Act 1958, (hereinafter referred to as 'the 1958 Act') inter alia the Saurashtra Gram Panchayat Ordinance, 1949 was repealed and under this Act of 1958, by Section 60, Sub-section (2) it was provided that the Secretary of every Village Panchayat or a group of Pandhavats as the State Government might having regard to the extent and population of the village and income of the Panchayat. by a general or special order, determine was to be appointed by the State Government or an officer or authority authorized by it in this behalf. The Secretary was to be a whole-time Government servant and his salary and allowances were not to be a charge on the village fund set up for the purposes of the Village Panchayat under the provisions of the Act of 1958. Even after the coming into force of the Act of 1958, the appellant continued to work as the Secretary of the Bhundani Gram Panchayat in Rajula Mahal of Bhavnagar District.
6. After the formation of the State of Gujarat, the Gujarat Legislature enacted the Gujarat Panchayats Act, 1961 (Gujarat Act VI of 1962) (hereinafter referred to as 'the Act of 1961'). The Act came into force with effect from April 1, 1963 and after the Act of 1961 the designation was changed from Mantri, that is the Secretary of the Village Panchayat, to Talati-cum-Mantri and the appellant continued to serve as Talati-cum-Mantri at various places, At the relevant time when the offences with which he was charged are alleged to have been committed, the appellant was working as Talati-cum-Mantri in Vadia Group of Panchayats in Amreli District. This group of Panchayats is located in Kunkavav Taluka of Amreli District. He was appointed in that place on June 26, 1970. It may be pointed out that original accused No. 2 was the Sarpanch of Vadia Gram Panchayat and the alleged offences are said to have been committed by the two accused during the period July 26. 1970 to May 6, 1971. The allegations against them were that the two accused had misappropriated a large amount from the Panchayat funds.
7. It is obvious that the sanction to prosecute the present appellant. Exhibit 178 on the record, can only be considered to be valid if it has been given by the authority competent to remove the appellant from service as Talati-cum-Mantri of Vadia Group Panchayat. In fact, as pointed out above, this sanction to prosecute the appellant was given by the District Development Officer. Amreli. It is further clear that the original appointment of the appellant as Talati was by District Deputy Collector. Palitana. Under the Bombay Land Revenue Code, by virtue of Section 10. a Deputy Collector exercises all the Dowers in relation to the Talukas placed in his charge as a Collector does in respect of the entire District It is common around before us that under the Bombay Land Revenue Code, the appointing authority for a Talati, that is, Village Accountant, is the Collector of the District. By an order of the Revenue Department of the State of Saurashtra dated November 17, 1952, the power to make appointments to Class IV servants against sanctioned posts was delegated to Assistant and Deputy Collectors of Sub-Divisions and it was by virtue of this power that the Deputy Collector, Palitana, appears to have appointed the appellant initially in an officiating capacity as the Talati and it was the District Deputy Collector who had confirmed the appointment of the appellant as Talati. It is also clear that the substantive appointment held by the appellant before he was appointed as the Mantri at Bhundani, was that of a Talati. On December 12, 1958 he was still the Talati and the services of this Talati were placed by the Collector of Bhavnagar at the disposal of the Panchayat Department and thereafter the District Gram Panchayat Officer, Bhavnagar, had appointed the appellant as the Secretary at Bhundani Group of Gram Panchayats. Thus in December 1958, the appellant was transferred from Talati to the post of Secretary without any change and he still continued to be a Government servant because, under the scheme of the Saurashtra Ordinance, though the appointment was to be made by the Panchayat concerned, the appointment of the Secretary of each Panchayat was to be made by the Government.
8. When the 1958 Act came into force with effect from June 1, 1959 the appellant was not in the employ of any Gram Panchayat governed by the Saurashtra Gram Panchayat Ordinance 57 of 1949. Under Section 126, Sub-section (10) of the Act of 1958. the Secretaries, Kar-bharis, all officers and servants in the employ of the old Panchayats immediately before the date when the Act came into force were to be the Secretaries, Kar-bharis, officers and servants of the new Panchayats. Under Section 60, Sub-section (2) of the 1958 Act, the Secretary of the Gram Panchayat was to be appointed by the State Government or an officer or authority authorized by it in this behalf and the Secretary was to be a whole-time Government servant and his salary and allowances were not to be a charge on the village fund. Under Sub-section (4) of Section 60, it was provided as follows:
(4). Every Secretary in the employ of a Panchayat or two or more Panchayata whether part-time or otherwise on the date of the commencement of this Act shall be deemed to have been appointed under this Section and shall, until other provision is made in accordance with the provisions of this Act, receive the salaries and allowances and be subject to the conditions of service to which he was entitled subject on such date.
(Emphasis supplied)
It is clear from the legislative history which we have set out that prior to the amendment of the Saurashtra Gram Panchayat Ordinance by the Saurashtra Act 24 of 1955, the appointments of Secretaries were being made by each Panchayat concerned but after this amendment Act of 1955, the Secretaries were to be appointed by the Government from amonest trained Government servants. The question then arises whether the appellant was in the employ of the Village Panchayat concerned on the date when the Act of 1958 came into force on June 1. 1959.
9. In R. R. Chari v. State of Uttar Pradesh : [1963]1SCR121 . the question before the Supreme Court was in connection with the meaning of the word 'employed' occurring in Section 6 of the Prevention of Corruption Act. 1947. In the context of Section 6 of the Prevention of Corruption Act, the Supreme Court held that Clauses (a) and (b) of Section 6 of the Prevention of Corruption Act. (as it stood in 1949) dealt with persons permanently employed in connection with the affairs of the Federation or in connection with the affairs of the Province respectively, and in regard to them, the appropriate authorities who could grant the sanction to prosecute were the Central Government and the Provincial Government. The case of a public servant whose services were loaned by one Government to the other, did not fall either under Clause (a) or under Clause (b), but it fell under Clause (c). The word 'employed' in the context of that Section must mean permanently employed. If the services of a public servant permanently employed by a Provincial Government are loaned to the Central Government, the authority to remove such public servant from office would not be the borrowing Government but the loaning Government which is the Provincial Government, and so, the employment referred to in Clauses (a) and (b) must mean the employment of a permanent character and would not include the ad (hoc or temporary employment of an officer whose services have been loaned by one Government to the other.
10. In that particular case the accused before the Supreme Court was a permanent gazetted servant under the Assam Government but his services were lent to the Government of India. The accused was alleged to have committed offences under Sections 161, 165 and 467 of the Indian Penal Code in 1946 while he was in service under the Government of India and sanction for his prosecution was granted by the Governor-General under Section 6, Prevention of Corruption Act, 1947. It was held that the case of the accused fell under Clause (c) of Section 6 and that it was only the Provincial Government of Assam which could have given a valid sanction under Section 6 of the Prevention of Corruption Act. The sanction given by the Governor-General was, therefore, invalid and the consequent trial in respect of offences under Sections 161 and 165 of the Indian Penal Code was without jurisdiction and invalid.
11. The same reasoning, in our opinion, would also govern the meaning of the words 'in the employ of the Panchayat' occurring in Section 186, Sub-section (10) and Section 60, Sub-section (4) of the Act of 1958. The words 'in the employ of the old Panchayat' which we have underlined above while setting out the provisions of Section 186, Sub-section (10) and Section 60, Sub-section (4) clearly indicate that those Secretaries who were Panchayat employees were being appointed as Secretaries under the Act and they were deemed to have been appointed under Sub-section (1) of Section 60. Section 60, Sub-section (2) of the Act of 1958 provided that the Secretary of the Gram Panchayat was to be appointed by the State Government and he was to be a whole-time Government servant and his salary and allowances were not to be a charge on the village fund.
12. At this stage we may point out that under the Bombay Village Panchayats Act, 1933, which was in operation in the old Bombay State area of the bigger bilingual State of Bombay, Section 33 provided for appointment of Secretaries to the Village Panchayats. Under Sub-section (1-AB) the appointment of a Secretary, part-time Secretary or common Secretary under Section 33 was to be made by the Panchayat or Panchayats concerned but the qualifications, powers, duties, remuneration and conditions of service (including disciplinary matters) of such Secretary were to be such as might be prescribed. It is, therefore, clear that under the Bombay Act of 1933, as under the Saurashtra Ordinance of 1949 as it stood prior to the amendment of 1955, the position was that the Secretaries in the respective areas governed by these two pieces of legislation were in the employ of the Panchayats and, therefore, a special provision had to be made under Section 60, Sub-section (4) by a deeming fiction when the Act of 1958 came to be passed that every Secretary in the employ of a Panchayat on the date of the commencement of the Act of 1958 was to be deemed to have been appointed under Section 60. Therefore, a Secretary who was otherwise in the employ of a Panchayat became a Government servant by virtue of the deeming fiction under Section 60, Sub-section (4) and by the provisions of Section 60, Sub-section (2) and he was deemed to have been appointed under Section 60. But for the deeming fiction an employee of the Panchayat could not have become a Government servant But the deeming fiction, namely, 'shall be deemed to have been appointed under this Section' does not mean that in effect the actual appointment of the Secretary concerned was made by the State Government or an Officer authorized by it in this behalf under Section 60, Sub-section (2).
13. Mr. Patel on behalf of the appellant has relied on the decision of a Division Bench of this High Court consisting of J. B. Mehta and M.U. Shah, JJ. in Pranubhai Dullabhbhai v. State of Gujarat Criminal Appeal No. 813 of 1964 decided on 22-2-1966 (Guj). In that case also the question was regarding the sanction to prosecute a Talati-cum-Secretary functioning under the Gujarat Panchayats Act, 1961. Prior to the coming into force of the Gujarat Panchayats Act the accused in that particular case was working as Secretary and was in the service of Pardi Village Panchayat and was paid by the Panchayat and thereafter was under the control of the Taluka Development Officer. J. B. Mehta, J., delivering the judgment of the Division Bench observed-
It is not disputed that the accused was in the Panchayat service as a Secretary since 1950. Under Section 60(2) of the Bombay Village Panchayats Act, 1958, the Secretary was to be appointed by the State Government or an officer or authority authorized by it in this behalf. Under Section 60(4) of that Act every Secretary in the employment of a Panchavat was deemed to have been appointed under that section. The accused, therefore, was deemed to have been appointed under Section 60(2) by the State Government or an Officer or authority authorized by it in that behalf. Even the subsequent order at Ex. 23 on 8-12-1962 by which the accused was made a Talati-cum-Secretary was passed by the Prant Officer, Bulsar. The accused was clearly a person in the service of the State Government and was deemed to, have been appointed by the State Government or an officer or authority authorised by it in this behalf under Section 60(2) of the Bombay Village Panchayats Act, 1958. Under Section 157(1) of the Panchayats Act, the State Government has been authorized by an order published in the Gazette to transfer the powers, functions and duties relating to any matter as are exercised or performed by the State Government or any officer of the Government under any enactment and on such transfer to allot to the District Panchayat such fund and personnel as might be necessary to enable the District Panchayat to exercise the powers and discharge the functions and duties so transferred.
It was held that under Article 311 of the Constitution as the accused was deemed to have been appointed under Section 60(2) of the Bombay Village Panchayats Act, 1958 by the State Government or an officer or authority authorized by it in that behalf, he could be removed from office only by that authority and not by any person or authority lower in rank. In the case before the Division Bench there was no evidence whatsoever led by the prosecution to show that any other authority or officer had been authorized by the State Government in that behalf under the provisions of Section 60, Sub-section (2) of the Act of 1958. The accused was, therefore, deemed to have been appointed by the State Government. Mr. Patel has relied upon this reasoning of the Division Bench and contended that in the case of the present appellant also, he must be deemed to have been appointed by the State Government as the Village Secretary under the provisions of Section 60, Sub-section (2) of the Act of 1958. We are unable to accept this contention of Mr. Patel for two reasons-
(1) The facts of the case before the Division Bench were that prior to the coming into force of the Act of 1958, the accused in Criminal Appeal No. 813 of 1964 was in the employment of a Panchayat and, therefore, directly fell under Section 60, Sub-section (4) and Section 186, Sub-section (10) of the Act of 1958. In the case before us, the appellant was a State Government servant as distinguished from a Panchayat servant before the coming into force of the Act of 1958 and, therefore, he could not be said to be in the employment of a Panchayat to whom the fiction under Section 60, Sub-section (4) would apply.
(2) The second reasoning why we are rejecting this contention is that we are unable to agree with J. B. Mehta and M.U. Shah, JJ., that the deeming fiction under Section 60, Sub-section (4) of the Act of 1958 goes to the extent of substituting a fresh appointing authority in the place of the original authority which appointed any Secretary in the first instance. All that Section 60, Sub-section (4) provides is that a Secretary in the employ of a Panchayat which existed on the date of the commencement of the Act is deemed to have been appointed under the Act but this deeming fiction only meant that he was to be a whole-time Government servant as distinguished from a Panchayat servant and his salary and allowances were not to be a charge on the village fund but he was not to be deemed to have been appointed by the State Government or an Officer authorized by it in this behalf. The deeming fiction has been enacted in Section 60, Sub-section (4) purely for the purpose of saving the State Government or the Officer or authority concerned from issuing individual appointment orders of each and every Secretary of the existing Panchayats. It is not necessary for the purposes of that fiction to say that a Secretary deemed to have been appointed as a whole-time Government servant by virtue of the deeming fiction was also deemed to have been appointed by the State Government or an officer or authority authorized by it in this behalf. The appointment as a whole-time Government servant was by virtue of the statute and no fresh order of appointment of the Secretary of an existing Panchayat was required and, therefore, with respect to the learned Judges who decided Criminal Appeal No. 813 of 1964 (Guj), we are unable to hold that in the case of every Secretary to whom the deeming fiction under Section 60, Sub-section (4) of the Act of 1958 applied there was also the further fiction that his order of appointment must be deemed to have been issued by the State Government or Officer authorized in that behalf.
For both these reasons we reject this contention of Mr. Patel and we hold that when the Act of 1958 came into force with effect from June 1, 1959, there was no new appointment of the appellant as Secretary or. at any rate, the State Government did not make his appointment or cannot be said to have made his appointment or cannot be deemed to have made his appointment with effect from June 1, 1959. Prior to the coming into force of the Act of 1958, the appellant was a Government servant and he merely continued to be a Government servant and thus there was no deeming appointment in his case. As pointed out earlier, unlike the facts of the case in Criminal Appeal No. 813 of 1964, in the instant case, the appellant was not in Panchayat service. Prior to the enactment of the 1958 Act, he was in the service of the Government. All that was done was that by virtue of an order passed by the Collector, Bhavnagar, the services of the appellant were placed at the disposal of the Panchayat Department sometime in 1958 and he continued to work as Secretary even after coming into force of the Act of 1958.
14. We will now examine the scheme of the Act of 1961 because, it is in the light of the scheme of the relevant Sections of that Act that we will have to answer the question that has been referred to us. Under Section 2, Sub-section (7) the 'District Development Officer' means such Officer as the State Government may appoint to be a District Development Officer for the purposes of this Act. Under Section 142, subject to the provisions of the Act and the rules made thereunder, there shall be a Secretary for every district Panchayat and a District Development Officer posted under the Panchayat shall be ex officio Secretary of the Panchayat. Under Section 143, save as otherwise expressly provided by or under the Act, the executive power of a District Panchayat for the purpose of carrying out the provisions of the Act vests in the District Development Officer who shall subject to the orders, if any, of the President or of the District Panchayat, as the case may be, perform all the functions and exercise all the powers specifically imposed upon him by or under the Act, or under any law for the time being in force and lay down the duties of all officers and servants of the District Panchayat. It is thus clear that the District Development Officer is the Chief Executive Officer of the District Panchayat concerned and he performs all the functions and exercises all the powers of the District Panchayat and he supervises the work of all officers and servants of the District Panchayat. Under Chapter VI of the Act of 1961, provision has been made for transfer of functions of several distinct authorities to the Panchayats functioning under the Act of 1961. Apart from the District Panchayat, the Act provides also for Taluka Panchayats Nagar Panchayats and Village Panchayats and it is a comprehensive piece of legislation covering all these different categories of Panchayats. Under Section 149, which is the first Section in Chapter VI, it is open to the State Government, by notification in the Official Gazette, to entrust to every Gram Panchayat and every Nagar Panchayat any or all of the functions and duties of a Village Accountant or Patel or other similar functions of any other person, by whatever name called, in relation to the collection of land revenue (including cesses) and dues recoverable as arrears of land revenue which is levied and assessed by or under the Land Revenue Code, or law relating to the collection of any cess for the time being, in force in the State, and all other functions and duties of the Village Accountant under the Code, Thus Section 149 speaks of entrustment of the work of recovery of land revenue to Gram Panchayat or Nagar Panchayat, as the case might be. Section 155 provides for the transfer of the functions of the District School Boards to different Panchayats. Under Section 155, Sub-section (1), the District School Boards which were in existence under one or the other enactment referred to in the body of the Section functioning immediately before the commencement date were to stand dissolved and on such dissolution, the Chairman, Vice-Chairman and other members of the existing School Boards were to be deemed to have vacated their offices. All primary schools with their lands, buildings, records and equipment and other properties, movable and immovable, vesting in, held by or under the control of the existing School Boards immediately before the said date were to vest in, be held by or be under the control of the Taluka Panchayats and the District Panchayats in accordance with the distribution made in that behalf by the appropriate order of the State Government. Under Clause (e) of Sub-section (1) of Section 155, the employees of the existing School Boards were to stand transferred to the Taluka Panchayats and the District Panchayats in accordance with the distribution made in that behalf and on such terms and conditions as may be provided in the order, provided that the terms and conditions of service of any such employee were not to be less favourable than those applicable to him while in service of the existing School Board and provided further that nothing in this clause shall entitle any employee to claim the same cadre or designation on such transfer. Under Section 156 of the Act of 1961, provision has been made for the delegation of the functions of the Registrar or any other authority functioning under the Bombay Co-operative Societies Act to the District Panchayat or the Taluka Panchayat subordinate to it and Sub-section (2) sets out the different types of powers which might be delegated under Section 156. Thus under Section 149 we get entrustment of certain functions of the State Government to the Gram or Nagar Panchayat. Under Section 155 we get the transfer of the functions of the existing School Boards to the District or Taluka Panchayats, as the case might be. Under Section 156, there is delegation of powers of Registrar of Co-operative Societies to the District or Taluka Panchayats and under Section 157 over and above these specific functions and powers, provision has been made for transfer of some of the functions of the State Government to the panchayats. Sub-section (1) of Section 157 is in these terms:
(1) 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 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 may be necessary to enable the district panchayat to exercise the powers and discharge the functions and duties so transferred.
Here in Section 157, Sub-section (1), the personnel of the State Government service can be allotted to the District Panchayat concerned when the State Government (has by an appropriate order published in the Official Gazette transferred some of its own functions to the District Panchayats. When the functions are transferred, the personnel can be allotted to the District Panchayat and here the concept is not of transfer as was the case of the employees of the existing School Boards under Section 155, Sub-section (1)(e) but of allotment of the requisite personnel to the District Panchayat. In Schedules I, II and III are set out Lists of matters which fall within the 'Panchayat Functions List' as defined by Section 2, Sub-section (22) of the Act of 1961. Schedule I sets out matters in respect of which it is the duty of Gram Panchayats and Nagar Panchayats to make provisions. Schedule II sets out the List of matters in respect of which it is the duty of a Taluka Panchayat to make provisions. And Schedule III sets out matters in respect of which it is the duty of District Panchayat to make provisions. So, Panchayat Functions Lists enumerate what can be called obligatory functions of the Village or Nagar Panchayat, a Taluka Panchayat or a District Panchayat. Over and above these matters in the Panchayat Functions List, it is open to the State Government under Section 157 to transfer certain more functions of State Government to Panchayats but under Sections 157 and 158 personnel of the State Government service are to be allotted or transferred to the relevant Panchayat concerned. Under Section 158 any functions and duties relating to any of the matters specified in the Panchayat Functions List performed before the commencement of the 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. Hence, the Government staff is to stand transferred to the District Panchayat under the provisions of Section 158. Section 325 of the Act of 1961 provides for the repeal of the Bombay Village Panchayats Act, 1958 (1958 Act). Under Sub-section (2) of Section 325, notwithstanding the repeal of the Act, the Secretaries, all officers and servants in the employ of the Old Village Panchayats immediately before the said date shall be Secretaries, Officers and servants of the new Gram Panchayats and shall until other provision is made in accordance with the provisions of 1961 Act, receive the salaries and allowances and be subject to the conditions of service to which they were entitled or subject on such date. Thus, by virtue of Section 325, Sub-section (2)(x), the Secretaries of the old Village Panchayats are to became the Secretaries of the new Gram Panchayats and are to receive the salaries and allowances and be subject to the conditions of service to which they were entitled or subject on such date.
14-A. Chapter XT of the Act containing Sections 203 to 211 sets out prolusions relating to services. Out of this group of Sections of the Act of 1961, Sections 210 and 211 provide for setting up of Gujarat Panchayat Service Selection Board at the State level and District Pan-chayat Service Selection Committee in each district at the level of the District Panchayat and for the purposes of this Judgment it is not necessary to refer to those two sections of Chapter XI of the Act. Under Section 203, Sub-section (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. The Section then states: 'Such service shall be distinct from the State service'. The Panchayat Service is to consist of such classes, cadres and posts and the initial strength of officers and servants in each such class and cadre shall be such, as the State Government may by order from time to time determine, provided that nothing in Sub-section (2) of Section 203 is to 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- Sub-section (2-A) of Section 203 was inserted by Gujarat Act 7 of 1966 and under that sub-section, the cadres in the Panchayat Service may consist of district cadres, taluka cadres and local cadres. 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. 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, and 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. Under Sub-section (2-B) which was also inserted by Gujarat Act 7 of 1966, in addition to the posts in the cadres referred to in Sub-section (2-A), 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. Sub-sections (3), (4) and (5) of Section 203 are material for the purposes of this judgment and we set them out verbatim:
(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 transfers of servants belonging to the panchayat service and the circumstances in which and the conditions subject to which such transfers may be made.
Sub-section (5) was amended by Gujarat Act 1 of 1964 and since that amendment it stands in the form as we have set out hereinabove. Under Section 204, subject to the rules, which the State Government may make in this behalf, the expenditure towards the pay and allowances of and other benefits available to an officer or servant of the Panchayat service serving for the time being under any Panchayat is to be met by the Panchayat from its own fund. Section 205 provides for mode of appointments to the posts in the Panchayats Service and those three modes are (i) by direct recruitment; (ii) by promotion; or (iii) by transfer of a member of the State Service to the Panchayat Service. The appointments are to be made subject to any rules made under Sec, 203. Section 206 provides for allocation of officers and servants to Panchayat Service. Under Sub-section (1) the State Government shall by a general or special order, 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;
(ia) all officers and servants of the Municipalities dissolved under Section 307;
(ii) all officers and servants in the service of district local Boards and district school boards immediately before their dissolution, under this Act and transferred to the panchayats under Sections 155 and 325.
(iii) such other officers and servants employed in the State service as may be necessary to enable the panchayats to discharge efficiently their functions and duties under this Act.
Thus under Clause (i) out of the staff allotted or transferred to the panchayat concerned under Sections 157, 158 and 325, the State Government has to allocate by a general or special order to the Panchayat Service such number of officers and servants as it may deem fit. Under Sub-section (2) of Section 206, the officers and servants allocated to the Panchayat Service under Sub-section (1) have to be taken over by such Panchayats in such cadre and on such tenure, remuneration and other conditions of service as the State Government may by general or special order determine, provided that the conditions of service of any such officer or servant shall not be less favourable than those applicable to him immediately before such allocation, and provided further that nothing in the earlier proviso is to entitle an officer or servant to claim the same cadre and designation which he had before allocation. Section 206-A which was inserted by Gujarat Act 53 of 1963 provides that the allocation to the Panchayat Service made under Section 206 is in some cases to be provisional for a certain period; it makes provision for allocation of officers and servants allotted or transferred to a Panchayat under Section 157 or 158 being initially provisional end provides that it shall be lawful for the State Government to review their allocation within a period of four years-from 1st April 1963, and if necessary to-reallocate by an order made in that behalf any of such officers or servants to the State Service for any of the following reasons, namely:
(i) if out of the officers and servants so allocated any officers or servants are found to be surplus in any category of the Panchayat Service;
(ii) if in the interest of public service, it is considered necessary to recall any such officer or servant;
(iia) if in pursuance of any information called for in this behalf by or on behalf of the State Government at any time after the 1st April 1963, any such officer or servant has preferred to revert to the State Service and after taking into consideration the exigencies of service in the panchayat organization and also of service under the State Government, the State Government thinks fit to recall such officer or servant;
(iii) any other reason prescribed by rules.
If the case falls under any of these clauses, the officer or servant concerned can be reallocated to the State Service back from the Panchayat Service. Sub-section (2) of Section 206-A is material:
Any officer or servant, who is not re-allocated under Sub-section (1) and continues in the Panchayat Service immediately before the expiry of the aforesaid period of four years shall on such expiry be deemed to be finally allocated to the Panchayat Service.
Sub-section (3) of Section 206-A provides that the conditions of service of an officer or servant reallocated to the State Service shall not be less favourable than those applicable to him immediately before such re-allocation. Under Sub-section (4)-
The re-allocation of an officer or servant to the State Service under Sub-section (1) whether made before or after the commencement of the Gujarat Panchayat and the Gujarat New Capital (Periphery) Control (Amendment) Ordinance, 1964, shall not affect--
(a) any obligation or liability incurred or default committed by such officer or servant during the period of his allocation-to the Panchayat Service while acting or purporting to act in the discharge of his duties as such officer or servant, and
(b) any investigation, disciplinary action or remedy in respect of such obligation, liability or default,
and any such investigation, disciplinary action or remedy may be instituted, continued or enforced in accordance with the law applicable thereto during the said period of allocation by such authority as the State Government may by general or special order specify in this behalf.
It is clear that in terms Section 206-A applies only to those officers and servants of the Government who are allotted or transferred to a Panchayat under Section 157 or 158 and not to any other class of allocated Government servant referred to in Section 206, Sub-section (1). It is important to bear in mind so far as the present appellant before us is concerned that his transfer has not taken place by virtue of any of the provisions of Section 157 or 158. He stood transferred to the State Government service by virtue of Section 325 of the Act of 1961. It may be emphasized once again that Section 157 deals with the allotment of personnel when certain functions of the State Government are transferred to the Panchayats and the transfer under Section 157 takes place from the State Service to the District Panchayat and not to any other Panchayat. Similarly, under Section 158 the transfer is to the District Panchayat along with the transfer of certain functions set out in the relevant Panchayat Functions List. Under no circumstances, therefore, can the case of the present appellant who was transferred as a Secretary to a village panchayat be governed by the provisions of Section 206-A which provides for final allocation and re-allocation. All State Government servants other than those whose services are transferred or allotted under Sections 157 and 158, i. e. other Government servants and officers referred to in Section 206, Sub-section (1) are allotted or transferred once and for all and in the case of those officers and servants, the allocation is final and not provisional. Of course, even in the case of those other officers, the State Government has by a general or special order to allocate to the Panchayat Service all these officers as well but in their case the allocation is final and not provisional,
15. Under Section 206-B provision is made for absorption in State Service of certain officers of former Local Boards which were abolished on the coming into force of the Gujarat Panchayats Act, 1961. Under Section 207 provision is made for posting some officers of the Indian Administrative Service in the Panchayat service and officers of Class I and Class II services of the State to be posted under the Panchayats though they are not allocated to Panchayat Service under Section 206, for, such period and subject to such conditions as may be specified in the order and accordingly the officers specified in the order shall be posted under such Panchayat. Under Sub-section (5) of Section 207 the procedure in respect of disciplinary action against any officer or servant posted under a Panchayat other-wise than as a member of the Panchayat Service, the authorities competent to take such action and the powers of such authorities shall be such as may be prescribed. Under Section 208 any Panchayat, may subject to the rules made in this behalf, obtain the services of any officer of Government on loan. Thus the distinction of services of an officer being taken on loan as distinguished from certain officers who are posted for a certain period to work with the Panchayats as distinguished from transferred or allotted to Panchayat under Section 206 is maintained. Under Section 209 it has been specifically provided that notwithstanding anything contained in the Industrial Disputes Act, 1947 or any other law for the time being in force, the allocation of any officer or servant to the Panchayat Service under Section 206 shall not entitle such officer or servant to any compensation under that Act or law; and no claim for any such compensation shall be entertained by any Court, Tribunal or authority.
The provisions of these different Sections of the 1961 Act were considered by a Division Bench of this Court consisting of P. N. Bhagwati, J., as he then was and A. R. Bakshi, J., in G. L. Shukla v. State (1967) 8 Guj LR 833. After examining the entire scheme of the different Sections, the Division Bench held that the order of allocation made by the State Government under Section 206 of the Gujarat Panchayats Act, does not have the effect of bringing about termination of service of the Government servant in respect of whom the order of allocation is made and, therefore, Section 206 does not violate Article 310 of the Constitution. Even if the effect of the order of allocation were to terminate the State service of the Government servant and to appoint him a new to the Panohayat Service, Article 310 of the Constitution cannot be invoked. The power of the Legislature to prescribe the tenure of persons appointed to public services is subject to the 'tenure at pleasure' under Article 310(1) and no law can be made by the Legislature so as to affect the overriding power of the President or the Governor, as the case may be, to put an end to their tenure at his pleasure. This overriding pleasure of the President or the Governor cannot be placed on the pedestal of a right in the Government servant to continue to hold office until removed by the President or the Governor in the exercise of such pleasure. There is no constitutional right given to a Government servant under Article 310(1) that no one except the President or the Governor, as the case may be, shall be entitled to terminate his service. Article 310(1) does not operate as a limitation on conferment of statutory power on any other authority to terminate the service of a Government servant and if a law validly made under Article 309 or under any other provision of the Constitution confers power on any other authority to terminate the service of a Government servant, such law would not be bad and the only effect of Article 310(1) would be that such law would be subject to the overriding power of the President or the Governor under Article 310(1) and the overriding power of the President or the Governor under Article 310(1) would remain intact and unaffected. It was held that Section 157 of the 1961 Act provides that when the State Government transfers any powers, functions and duties to the District Panchayat, the State Government shall allot to the District Panchayat such personnel as may be necessary to the enable the District Panchayat to exercise the powers and discharge the functions and duties so transferred. The Government servants who are allotted continue to be members of the State service holding substantively their respective posts in the State service and the said posts are not abolished as a result of the order of allotment. There is no abolition of posts either on allotment under Section 157 or on allocation under Section 206. Section 206 is not violative of Article 311(2) as there is a basic fallacy affecting the contention and the fallacy lies in the assumption that the order of allocation brings about termination of service of the Government servant who is allocated as a result of the order of allocation. The most important conclusion of the Division Bench in that case was that the Panchayat service is a distinct and separate service set up for serving the Panchayat Organisation of the State and it is as much a civil service of the State as the State service. The State can have many services such as State service, police service, engineering service etc., and Panchayat service is one of them. In the Panchayat Service, as in the State Service, the State is the master and every officer or servant employed in the Panchayat Service is the servant of the State and not of the Panchayat under which the may be serving for the time being. The Panchayat Service is one single service with the State as the master. There is, therefore, no termination of service when an officer or servant of the State service is allocated to the Panchayat service. On allocation he is merely transferred from one civil service of the State to another, his master remaining the same, namely, the State. His service under the State continues unbroken and uninterrupted, the only difference being 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, after the order of allocation, a member of another civil service of the State, namely, the Panchayat Service. The order of allocation does not, therefore, bring about termination of service of the officer or servant of the State who is allocated to the Panchayat Service and Section 206 cannot be assailed as authorising or permitting violation of the constitutional guarantee contained in Article 311(2). It was also held that Section 206(1)(i) of the Gujarat Panchayat Act was not violative of Article 14 of the Constitution because it did not confer a naked arbitrary power on the State Government to discriminate between one Government servant and another. Undoubtedly a discretion was conferred on the State Government to select officers and servants out of the staff allotted under Section 157 for allocation to the Panchayat Service but that discretion was guided and controlled by a principle or policy laid down by the Legislature and was not vagrant or uncanalised. Section 206(1)(i) cannot, therefore, be held to be violative of Article 14 of the Constitution.
16. In the scheme of the different Sections of the Act of 1961 which we have summarized above, it is important to note that under Section 203, Sub-section (5) inter-district transfers of servants belonging to the Panchayat service is contemplated because the rules framed by the State Government under Section 203 may provide for inter-district transfers of servants belonging to the Panchayat service and the circumstances in which and the conditions subject to which such transfers may be made. Under Section 203(4)(a) the Rules to be framed by the State Government under Sub-section (3) of Section 203 shall in particular contain a Provision entitling such servants of such cadres in the Panchayat Service to promotion to such cadres in the State Service as may be prescribed. It is true that at each level of the Panchayat organization, namely, at the level of the Gram, or Nagar Panchayat, at the level of the Taluka Panchayat and at the level of the District Panchayat there is a Corporation sole. Each Panchayat is a Corporation sole with perpetual succession and a common seal. Under Section 7, Sub-section (1) of the Act of 1961, the different Panchayats, namely, the Gram Panchayat, the Nagar Panchayat, the Taluka Panchayat and the District Panchayat are each of them a body corporate and each of these Panchayats shall have a perpetual succession and a common seal by virtue of Section 7, Sub-section (5). Therefore, if the Panchayat Service meant that the Government servant concerned was a member of the Panchayat Service concerned or to be a servant of the particular Gram, Nagar, Taluka or District Panchayat, then it is impossible to imagine any inter-district transfer as contemplated by Section 203, Sub-section (5) and again for any promotion from cadres in the panchayat service to cadres in the State Government service. These are the special features of this Service which was being constituted under the scheme of the Panchayat Act and though under Section 203 the Panchayat Service was to be distinct from the State Service, this distinct service had these peculiar features, namely, that the members of the Panchayat Service did not become employees of any particular Panchayat as such but continued to be members of this Panchayat Service who were assigned for work to one or the other Panchayat as the exigencies of the service might require and further the members of this distinct Panchayat service were entitled to be promoted in certain circumstances from such cadres in the Panchayat service to such cadres in the State service as the rules might prescribe and also it was contemplated that the rules might provide for inter-district transfers of servants belonging to the Panchayat service. Thus members of the Panchayat Service did not become employees of any particular Panchayat which was a body corporate with perpetual succession and a common seal. This Service standing by itself is a distinct service and depending upon the exigencies of the requirements of different Panchayats, members of the panchayat service were to be posted to work with one or the other Panchayat as the case might be. These special features of the panchayat Service led the Division Bench in G. L. Shukla's case ((1967) 8 Guj LR 833) to hold that Panchayat service was as much a Civil Service of the State as the State Service itself. It may also be pointed out that Section 206-A which provided for re-allocation of some of the members of the Panchayat service to State service under certain circumstances, as pointed out above, also reinforces the conclusion that the Panchayat service was a civil service of the State.
17. Mr. Patel for the appellant has challenged the conclusions of the Division Bench in G. L. Shukla's case ((1967) 8 Guj LR 833) (supra) and he has contended, firstly, that this decision of Division Bench in G. L. Shukla's case is no longer good law in view of the decision of the Supreme Court in State of Mysore v. H. Papanna Gowda : (1970)IILLJ683SC . He has further contended that even apart from the decision of the Supreme Court in H. Papanna Gowda's case applying the test of the functions to be discharged by the members of the Panchayat service, the test of the funds from which the salaries of the members of the Panchayat service are being paid and also the test of the control which is to be exercised over the members of the Panchayat service, the decision in G. L. Shukla's case does not lay down correct law. He contended that since this is a larger bench, the conclusions of the Division Bench do not bind this Full Bench and the whole matter should be examined on merits apart from the conclusions of the Division Bench in G. L. Shukla's case.
18. In 1969 Lab IC 730 (Mys), the decision of the Mysore High Court in H. Papanna Gowda v. State of Mysore : (1970)IILLJ683SC has been reported. It is necessary to set out the facts of H Papanna Gowda's case. Papanna Gowda was appointed on January 7, 1959 as an Agricultural Demonstrator as a local candidate. A local candidate as defined by the Mysore Civil Service Rules, is one who is appointed not in accordance with the rules of recruitment. But, when he was selected on August 27, 1959 by the Public Service Commission for appointment to that post, his services were thereafter regularised. By an order of transfer made by the Director of Agriculture on April 4, 1964, he was transferred and posted as Chemical Assistant of the Sugarcane Research Station, Mandya, in the Department of Agriculture. While Papanna Gowda was working at that Research Station, the Mysore State Legislature enacted a law called the University of Agricultural Science Act, 1963 and this Act came into force on April 24, 1964. Under that Act, a University for the Development of Agriculture, animal husbandry and allied sciences, was established, and under Section 7 of that Act, there was a transfer of certain colleges to that University, and, consequent disaffiliation of those colleges from the Karnatak University or the University of Mysore. Section 7, Sub-section (4) provided for the transfer of the Control and management of certain other research and educational institutions in the department of Agriculture and two other Departments of the State Government under a notification which the State Government was empowered to issue in that regard. Section 7, Sub-section (5) statutorily transferred to the University, persons employed in the Colleges for whose disaffiliation provision was made in Sub-section (1) of Section 7 and in the research and educational institutions whose control and management could be transferred to the University under Sub-section (4) of Section 7. Under Sub-section (5) of Section 7 every person employed in any of the colleges specified in Sub-section (1) or in any of the institutions referred to in Sub-section (4) immediately before the appointed day or the date specified in the order under Sub-section (4), as the case may be shall, as from the appointed day or the specified date, to become an employee of the University on such terms and conditions as may be determined by the State Government in consultation with the Board. It was held by the Mysore High Court that that part of Section 7, Sub-section (5) of the Act by which there was a compulsory transfer to the University, of these Government servants whose services under the State could not have been discontinued when the research and educational institutions to which Sub-section (4) of Section 7 referred, became part of the University organization, was an unconstitutional piece of legislation and the Legislature had no competence to substitute for the Government servants working in the institutions referred to in Sub-section (4) of Section 7, a new master or to terminate their services in civil posts. It was also held that though the State Legislature had the power to make a law altering unilaterally the conditions of service of a Government servant, such law should not be repugnant to Article 311 or Article 14 or Article 16 of the Constitution, and, if such alteration of conditions of service resulted in termination, such alteration cannot be directed only against specific individuals unless they fall within an intelligible classification. It was further held that when there is a deprivation of the right to hold a civil post consequent upon abolition, the selection of persons whose services should be terminated, should be made on a rational principle which does not amount to discrimination which Articles 14 and 16(1) forbid, and, that selection should be made on the basis that the persons whose services should be terminated are those who are juniormost, allowing the posts which had not been abolished to be occupied by an equivalent number of persons who are senior to them. It was found that service of this particular public servant were being transferred compulsorily to the University under Section 7, Sub-section (5) merely for the reason that he was an employee in the institution transferred to the University though other employees junior to him and belonging to his cadre were retained by the Government and on this ground it was held that such transfer amounted to illegal termination of his services and was in clear contravention of the provisions of Articles 14, 16 and 311. The above summary of the decision of the Mysore High Court clearly shows that the decision of the Mysore High Court was principally based on two considerations: (1) that by Section 7, Sub-section (5) Government employees were being compulsorily transferred to the University; and (2) this compulsory transfer was being effected on the basis of purely fortuitous circumstances in which the Government servant was attached to the institution which was specified. in Sub-section (4) of Section 7. There was, as the Mysore High Court found, a clear violation of Articles 14 and 16 inasmuch as persons junior to the petitioner were retained even though the normal rule was last to come first to go.
19. Against the decision of the Mysore High Court, an appeal was preferred by the State of Mysore to the Supreme Court and the decision of the Supreme Court is reported in State of Mysore v. H. Papanna Gowda : (1970)IILLJ683SC (supra). The judgment of the Supreme Court was delivered by Mitter, J., and in paragraph 7. Mitter. J., pointed out-
There can be no dispute-as indeed the learned Solicitor-General was constrained to admit-that the respondent and others who had filed writ petitions in the High Court challenging the notification ceased to hold the civil posts which 'they held under the State of Mysore at the time when the notification was issued if it was to have full force and effect, Whether the prospects of the respondent were or were not to be prejudicially affected if he was to become an employee of. the University is not in point.
In paragraph 8 it was further observed-
We are not here concerned with the question as to whether for all practical purposes the respondent was not to be a loser as a result of the transfer. Evidently the respondent held the view that as a civil servant of the State of Mysore 'the prospects of promotion to higher posts with better scales of pay were greater in the service of the State with its manifold activities in various departments. For better or for worse, the notification resulted in extinction of his status as a civil servant.
The decision of the Punjab High Court in Amulya Kumar Talukdar v. Union of India AIR 1960 Punj 284 was relied upon by the State of Mysore in the course of the arguments before the Supreme Court. It was contended relying upon this decision of the Punjab High Court that the transfer of the kind effected in Papanna Gowda's case had been held to be valid by the Puniab High Court. The Supreme Court observed that the Punjab decision could not apply to the case as presented before the Supreme Court in Papanna Gowda's case.
20. Thus the decisions of Mysore High Court and Supreme Court make it clear that the final decision in Papanna Gowda's case : (1970)IILLJ683SC was based on the scheme of Mysore University (Agricultural Sciences) Act and particularly the provisions of Section 7, Sub-section (5) which authorized the issuance of the notifications whereby Government servants were to cease to hold the civil posts which they held under the State of Mysore at the time when the notification was to be issued and it was held that Section 7, Sub-section (5) was unconstitutional because it amounted to removal from a civil post under the State in contravention of the provisions of Article 311.
21. We may point out that in Special Civil Appln. No. 1437 of 1970 (Guj) decided by J. B. Mehta and S. H. Sheth, JJ., on 5-5-1972, the decision of the Supreme Court in State of Mysore v. H. Papanna Gowda : (1970)IILLJ683SC (supra) was considered and J. B. Mehta, J., speaking for the Division Bench observed in connection with Papanna Gowda's case-
Their Lordships pointed out that as a result of the statutory transfer a civil servant of the State of Mysore had his status as a civil servant extinguished as a result of the aforesaid notification by which the control and management of the Research institute had been transferred to the University. Therefore, the guarantee under Article 311 was clearly violated even in case of such a statutory transfer.
It was pointed out by this Division Bench that the decision in G. L. Shukla's case ((1967) 8 Guj LR 833) (supra) in terms interpreted the relevant scheme of the Gujarat Panchayat Service and held that this service was a distinct and separate service set up for serving the Panchayat Organization of the State and it was as much a civil service of the State as the State Service. Applying this principle laid down in G. L. Shukla's case in connection with Panchayat service, the Division Bench held that there was no termination of service when an officer or servant of the State service was allocated to the Panchayat service. On allocation he was merely transferred from one civil service of the State to another, his master remaining the same, gamely, the State. His service under the State continued unbroken and uninterrupted, the only difference being that whereas prior to the order of allocation he was a member of one civil service of the State, namely, the State Service, he was, after the order of allocation, a member of another civil service of the State, namely, the Panchayat service. Thus the decision in H. Papanna Gowda's case was distinguished so far as the Gujarat Panchayat Service was concerned on the ground that the scheme under the Gujarat Panchayats Act, 1961, regarding the setting up of a Panchayat Service was altogether different from the scheme of the Sections with which the Supreme Court was concerned in H. Papanna Gowda's case and we are unable to accept the contention of Mr. Patel that the decision in G. L. Shukla's case is any way modified or overruled because of the principles laid down by the Supreme Court in H. Papanna Gowda's case. The schemes of the two Acts, the one before us and the one which was before the Supreme Court, are so entirely different that it is not possible for us to hold that under the scheme of the Gujarat Panchayats Act, the allotment, transfer or allocation of a Government servant from the State service to Panchayat service amounts to removal of the Government servant concerned from a civil post under the State and is, therefore, violative of Article 311 (2). When a Government servant is transferred from one civil post under the service of the State to another civil post under the same State, there cannot be said to be a removal and, therefore, there cannot be, in such circumstances, a violation of Article 311.
22. Mr. Patel also contended in the alternative that in view of tests laid down by the different High Courts on the basis of control, functions and funds, the Pan-chayat Service cannot be considered to be a part of the civil service of the State. He contended that the salaries of the officers and employees in the Panchayat Service are to come out from the funds of the Panchayats concerned. He further pointed out that each member of the Panchayat service had to work under the District Development Officer who was the Chief Executive Officer of the District Panchayat and he further contended that the functions which the members of the Panchayat Service were to perform were functions which were taken out from the sphere of the State functions and transferred either by statute or by the relevant Government notification under Section 157 or Section 158, as the case might be, to the Panchayat concerned. In support of this contention, Mr. Patel relied on the following decisions:- Mohd. Ahmad v. Improvement Trust : (1958)IILLJ281All ; Yugandra Rao v. Government of Andhra : AIR1959AP506 ; R. Srinivasan v. President, District Board AIR 1958 Mad 211; and State of Punjab v. Prem Prakash . Mr. Patel also relied upon the decision of the Supreme Court in State of Assam v. Kanak Chandra : (1968)ILLJ288SC . The Supreme Court pointed out in that case-
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 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 said to be 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 indicia, in conjunction with other circumstances and it is a question of fact is each case whether there is such a relation between the State and the alleged holder of a post.
In the context of Articles 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State helds 'office' during the pleasure of the Governor of the State, except as expressly provided by the Constitution. See Article 310. A post under the State is an office or, a position to which duties in conrrectiint-with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates, that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but: every employment is not a post. A casual labourer is not the holder of a port. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post.
This decision of the Supreme Court, in our opinion, clearly mentions that different factors, namely, the factor of the control, the relationship of master and servant, the right to suspend and dismiss the servant and the test of functions of these different posts have to be applied and in each case depending upon all or some of these indicia, the question that has to be decided is whether there is a relationship between the State and the alleged holder of a post which would make him the holder of a civil post under the State.
23. In our opinion it is clear from the scheme of the provisions of the Gujarat Panchayats Act, 1961, that the State Government at each stage retains the final control over the Panchayat administration. It is true that the Panchayat concerned has considerable say in the day-today administration of the Panchavat affairs in the discharge of Panchayat functions but so far as Panchayat service is concerned, the overall control remains with the Government. The peculiar features of this Act which we have emphasized earlier in this judgment, namely, possibility of promotion from one cadre of the Panchavat service to a cadre in the State Government Service, possibility of inter-district transfers of servants belonging to the Panchayat service, possibility under Section 206-A of servants allocated by the Government under Section 206 being reallocated to Government service within a period of four years commencing from April 1, 1963, one of the circumstances being a request from the allocated Government servant for re-transfer back to Government service- these features in particular clearly indicate that Panchayat Service unlike the facts before the Supreme Court in H. Papanna Gowda's case : (1970)IILLJ683SC is a civil service under the State. In our opinion, neither on the ground of the decision in Papanna Gowda's case nor on the ground of application of the tests of functions, control and funds from which their salaries are being paid, is it possible to hold as Mr. Patel wants us to hold that Panchayat Service is not a civil service in the State. What matters in each case, as the Supreme Court has pointed out is, that some or other of these factors may be present but it is the final picture emerging on an examination of the entire scheme of Panchayat service under the Gujarat Panchayats Act, 1961 that we hold that Panchayat service is a civil service under the State or is not totally outside the civil service of the State. In our opinion, there is no reason to differ from the conclusions reached by the Division Bench of this Court in G. L. Shukla's case ((1967) 8 Guj LR 833) (supra). The reasoning of that decision is, in our opinion, correct and we see no reason to differ from that reasoning and. in our opinion, neither in the light of the decision in H. Papanna Gowda's case nor in the light of the applicability of the three tests of functions, control and funds is it possible to hold that the conclusion reached by the Division Bench in G. L. Shukla's case (supra) was erroneous. If the matter had. not been covered by any earlier decision, we would have come to the same decision as the Division Bench did and there is no reason, therefore, to come to any conclusion other than that reached by the Division Bench in G. L. Shukla's case. Under these circumstances we are unable to accept the contention of Mr. Patel that this Full Bench should overrule the decision in G. L. Shukla's case. In our opinion persons allotted or transferred or allocated to Panchayat service under the provisions of the Panchayat Act still continue to be Government servants because Panchayat service itself is a distinct and separate service set up for serving the Panchayat organization of the State and is a civil. service of the State just like any other State service. Hence a Government servant who is allotted or transferred or allocated to Panchayat service does not cease to be a Government servant. He is merely transferred from one service of the State to another service of the State and it cannot be said that there is violation of Article 311(2) of the Constitution by reason of such allotment, transfer or allocation.
24. Mr. Patel also relied on the decision of the Supreme Court in Jalgaon Zilla Parishad v. Duman Govind Civil Appeals Nos. 24 and 25 of 1968 which were decided along with three other allied matters by the Supreme Court. The judgment of the Supreme Court was delivered by Shelat, J., on December 20, 1968. The question before the Supreme-Court in that group of appeals was regarding certain Kotwals allocated under the Maharashtra Zilla Parishads and Panchayat Samitis Act, V of 1962 to the Zilla, Parishads of Jalgaon and Ahmednagar respectively. The Authorities under the Minimum Wages Act passed orders under the Minimum Wages Act for payment of wages of the Kotwals who were thus allocated to Zilla Parishads concerned. Prior to 1958 there were certain inferior village posts in the then State of Bombay amongst which were the posts of Kotwals and these Kotwals were granted certain lands in lieu of pay as Watan. Under the Bombay Inferior Village Watans Abolition Act, 1958, the Watans were abolished and on May 7, 1959 the Government of Bombay passed a resolution replacing the then inferior village servants by stipendiary Kotwals and framed rules which were issued along with the said resolution. By the Rules the power of appointment of Kotwals vested in the Mamlatdar of the Taluka in which the village concerned was situated, The duties of the Kotwals were laid down in Appendix 'A' to the Rules and under the Government resolution dated February 25, 1959 the consolidated pay payable to the Kotwals was fixed at Rs. 18/- and Rs. 27/- per month depending upon whether the Kotwal was appointed in a village with a population of 500 persons or more. By another resolution dated February 8, 1962 the Government increased the pay from Rs. 18/- to Rs. 20/- and from Rs. 27/- to Rs-. 30/- per month, With the enactment of the Maharashtra Zilla Parishads and Panchayat Samitis Act, V of 1962 certain revenue and other powers and functions of the State Government were transferred to the Parishads- and Samitis set up thereunder. As a result of the transfer of these functions, the Kotwals appointed in pursuance of the resolutions and rules dated May 7, 1959, became surplus and under the powers reserved to it under the Act, the Government took a decision to transfer the services of the Kotwals to the Zilla Parishads. By a resolution of December 22, 1962 the Government transferred the services of Kotwals in Panchayat areas to the respective village panchayats and in non-panchayat areas to the respective Zilla Parishads with effect from January 1, 1963. The resolution stated that orders regarding recruitment, service conditions, emoluments etc. of the Kotwals under the new set up would be issued in due course, but till then they would continue to receive remuneration on the same terms at which they were receiving it and would continue to perform all the duties which they were till then required to perform in addition to such other duties as may be assigned to them by the Zilla Parishads. The Authorities under the Minimum Wages Act held in some cases that the Kotwals continued to be the Government servants and in some other cases they held that they were employees of the Zilla Parishads. Thereupon writ petitions were filed in the High Court of Bombay challenging these decisions of the Authorities. The High Court held that the Kotwals had become the employees of the Parishads during the relevant period and they were employees in the scheduled employment under the Minimum Wages Act and that the notification under Section 5 of the Act applied to them and directions were issued by the High Court to the Zilla Parishads to pay to the said Kotwals their remuneration and allowances as fixed by the notification. Against this decision of the High Court the matter was taken by the Zilla Parishads concerned to the Supreme Court. On these facts, after considering the matter, the Supreme Court held that on transfer and allocation of the Kotwals to the service of Parishads, there was by operation of law termination of their services with Government and they became thereupon the employees in Class III service of the two Zilla Parishads. The Supreme Court observed-
The High Court, therefore, was right in its conclusion that on allocation of these Kotwals their employment with the Government ceased and they became the employees of the respective Zilla Parishads to whose service they were allocated.
Basing his contention on this conclusion of the Supreme Court in the context of the Act before it and in the context of the Government Resolutions and Notifications concerned, Mr. Patel urged that in the instant case also, on transfer of the Government servants, there was purported termination of the Government service and, therefore, there was violation of Article 311(2) of the Constitution since there was removal from Government service otherwise than under the provisions of Article 311. The special features of the Gujarat Panchayats Act, 1961, which we have noted above do not appear to have been present in the enactment before the Supreme Court. The Supreme Court has not in terms held that the allocation was invalid because of alleged violation of Article 311 and the Supreme Court held that on allocation the Kotwals had become employees of the respective Zilla Parishads to whose service they were allocated. The scheme of the Panchayat Act. namely, constitution of the separate Panchayat service, which is the peculiar feature of the Act before us, does not appear to have been present in the case before the Supreme Court and this decision of the Supreme Court given in the light of the special provisions of that Act have no bearing on the Act before us. Under these circumstances this contention of Mr. Patel based on the decision of the Supreme Court cannot assist him and must be rejected.
25. Basing his argument on the decision of the Supreme Court in Moti Ram Deka v. North East Frontier Rly. : (1964)IILLJ467SC , Mr. Patel contended that since the appellant was the holder of a civil post under the State and on his transfer to Panchayat service he was being removed from that post otherwise 'than under Article 311. the provisions of the Gujarat Panchayat Act should be held to violate Article 311 of the Constitution. In Moti Ram Deka's case it was held that a person who substantively holds a permanent post has a right to continue in service, subject, of course, to the rule of superannuation and the rule as to compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such, it is in the nature of a penalty and amounts to removal. In other words, termination of the service of a permanent servant otherwise than on the ground of superannuation or compulsory retirement must, per se, amount to his removal, and so, if such a termination is brought about by a statutory rule, the rule would clearly contravene Article 311(2) and must be held to be invalid. (Vide paragraph 26 on page 610.)
The effect of the decision in Moti Ram Deka's case has been explained in the subsequent decision of the Supreme Court in N. Ramanatha v. State of Kerala : (1973)IILLJ409SC as follows:
The termination of the service of a permanent servant on the terms of a contract or under a service rule will attract Article 311 if such termination is in the nature of penalty and amounts to removal. This statement of law in Moti Ram Deka case is on the construction of Rules 148(3) and 149(3) of the Indian Railway Establishment Code... In Moti Ram Deka case (supra) it was held that neither of the two rules contemplated an enquiry and in none of the actual cases there the procedure prescribed by Article 311(2) was followed. In Moti Ram Deka case (supra) Rule 159(3) which permitted termination of service with notice in cases of misconduct to which the second part of the Rule applied was found to be unconstitutional.
Ray, C. J., delivering the judgment of the Supreme Court has observed in para. 33 at page 2648-
Where it was said in Moti Ram Deka case, that the order of termination could be effective after complying with Article 311 it was presumed that the provisions of Article 311, viz., issue of the charge-sheet, enquiry would be applicable to such cases of termination. With regard to abolition of post and consequential termination no charges could normally be framed and no enquiry could be held. Therefore, apart from the consideration that abolition of post is not infliction of a penalty like dismissal or removal or reduction in rank, the framing of charge, the enquiry and opportunity of showing cause against the imposition of penalty cannot normally apply to the case of abolition of post. The discharge of the civil servant on account of abolition of the post held by him is not an action which is proposed to be taken as a personal penalty but it is an action concerning the policy of the State whether a permanent post should continue or not.
In paragraph 23 it was observed that a post may be abolished in good faith. The order abolishing the post may lose its effective character if it is established to have been made arbitrarily, mala fide or as a mask of some penal action within the meaning of Article 311(2).
26. Thus the net effect of the decision in N. Ramanatha's case : (1973)IILLJ409SC (supra) is that though the abolition of the post may have the consequences of termination of service, such termination is not dismissal or removal within the meaning of Article 311 because both in case of dismissal and removal there is a stigma. The abolition of post is not a personal penalty against the Government servant. Therefore, the opportunity of showing cause against the proposed penalty of dismissal or removal does not arise in the case of abolition of post. Nor does it confer on the person any right to hold the post after it is abolished or to any other employment. We have already pointed out that according to the decision of the Supreme Court in Moti Ram Deka's case : (1964)IILLJ467SC (supra) retirement on superannuation or compulsory retirement under the rules of service would not amount to dismissal or removal from service and would not contravene Article 311. N. Ramanatha's case adds one more exception, namely, the abolition of the post which is being held by the Government servant. It is not necessary for the purpose of this judgment to consider whether as a result of N. Ramanatha's case the operation of Article 311(2) is confined only to those cases where the dismissal or removal from service is by way of a penalty only. It is not necessary for us to express any opinion on the point in the conclusion which we have already reached regarding the nature of Panchayat service and, therefore, though the learned Government Pleader advanced an argument in that behalf before us, we do not express any opinion regarding that aspect of Article 311. As we have already observed above, Panchayat service is a civil service under the State Government under the scheme of the Act of 1961 and that being so, there is no question of removal or dismissal from service so as to give rise to the contention that Article 311 was being violated by these statutory provisions. The contentions of Mr. Patel based on Moti Ram Deka's case as explained in N. Ramanatha's case, must be rejected because when a Government servant is allocated, allotted or transferred to Panchayat service, he does not cease to be the holder of the civil post under the State and he does not lose his status as a Government servant by reason of being allotted, transferred or allocated to Panchayat service.
27. That leads us to the second limb of Mr. Patel's argument, namely, that in any event the authority competent to remove the appellant from service was not the District Development Officer but the Collector or some authority not subordinate to the Collector.
28. As to what is meant by 'subordinate' in the context of Article 311, Clause (1) has been explained by the Supreme Court in Mahesh Prasad v. State of Uttar Pradesh : 1955CriLJ249 . Jagannadhadas, J., delivering the judgment of the Supreme Court has observed in paragraph 5 at page 73-
What the Constitution requires is that a person should not be removed by an authority subordinate to the one by whom he was appointed and what the rule in the Railway Code prescribes is substantially the same, viz., 'the authority competent to remove should not be lower than the one who made the appointment'. These provisions cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct superior. It appears to us to be enough that the removing authority is of the same rank or grade.
29. In Madan Lal v. Principal, H.B.T. Institute : AIR1962All166 , it was observed by V.D. Bhargava, J., who decided the case-
In cases where either an employee has been transferred from one department to the other, or one department itself has been transferred to the other or a new head of the department is created, the principle that appointing authority can only take disciplinary action will not apply. If a department was at one time under one officer but at some time later it was transferred to another head then at that stage it is the head of the department to which the employee has been transferred alone who would be entitled to take action and the department from which he has gone away will have nothing to do with him any longer in future. It is not the very same officer who made the appointment who should take proceedings for dismissal. He can be an officer either equal or higher in rank and he need not be his immediate superior officer. It is only if the appointing authority is still in the same department he alone can take disciplinary action. The only reasonable and proper interpretation of Article 311 is that after a sub-department is made as the head department them the head of that department would be the appointing authority.
Again in State of U.P. v. Ram Naresh : AIR1970SC1263 , Sikri, J., as he then was, delivering the judgment of the Supreme Court has observed in paragraph 12 at page 1265-
There is nothing in the Constitution which debars the Government from conferring powers of an officer other than the appointing authority to dismiss a Government servant provided he is not subordinate in rank to the appointing officer or authority.
30. In Hariprasad Raghuram v. State of Gujarat : AIR1965Guj283 , a Division Bench of this High Court consisting of Miabhoy, J., as he then was, and N. K. Vakil, J., considered the effect of Article 311 and held-
Article 311(1) is a general provision intended to give protection to all those who are employed in Government service either in the Centre or a State and who are civil servants or hold civil posts all over the country and in any of the departments. It is also intended to govern the cases of Government servants originally employed in one department and who may be transferred to another department or from the State service to the Centre or from one State to another. It is proper, therefore, to infer that the words 'authority subordinate to' would not mean only one directly subordinate or that the removing authority must be a direct superior to the appointing authority.... The word 'subordinate' has, therefore, necessarily to be given a wider connotation. The Legislature appears to have intentionally left the word uncircumscribed by any other words such as 'in power', 'in position', 'in rank' or some such other qualifying phrase, to enable the Court to take into consideration the facts of individual cases to judge as to whether the removing or dismissing authority is in fact subordinate to the authority that appointed a particular individual... it is not possible to lay down any single or universal test. In determining the question as to who can be called the subordinate authority the question has to be answered by the Court keeping in mind the facts of the elements of the general concept of subordination ... the concept of subordination has to be mostly judged from the point of view of rank or grade but sometimes it has to be judged even from the point of view as to whether the removing authority is the head of a department just as the appointing authority was a head of his department particularly when both the authorities belong to the same department or set-up.
31. In Shafiq v. Senior Supdt, Post Offices : AIR1956All476 , a Division Bench of the Allahabad High Court consisting of Mootham, C. J. and Agarwala, J., has held-
When a Government servant has been finally assigned to a particular post without retaining a lien on a previous post to which he was originally appointed, the appointing authority in this case is the person who has the authority to make appointments to the new post.
Unless a fresh appointment has been made after the Government servant concerned entered Government service, there cannot be a question of a fresh appointing authority and what one has to consider is whether the appointing authority in the new department is subordinate in rank or grade or otherwise subordinate to the original appointing authority who in the first instance appointed the Government servant concerned.
32. In Bachubha Ramsinhji v. Shivlal : AIR1970Guj180 , a Division Bench of this High Court to which I was a party has held that though it was competent to the District Superintendent of Police to promote the petitioner in that case from the rank of constable to the cadre of Head Constable, under Article 311(1), in order to judge as to whether the petitioner was dismissed from service by an authority not subordinate in rank to the Authority that appointed him, the factum of appointment as Head Constable has to be looked to and not to the competent authority who could have appointed the petitioner as Head Constable. In that particular case though a District Superintendent of Police could have appointed a person in the cadre of Head Constables, in fact it was found that that particular petitioner had been appointed as Head Constable by Deputy Inspector General of Police, an officer higher in rank than the District Superintendent of Police and it was held that the order of dismissal was required to be passed by an officer not subordinate in rank to the Deputy Inspector General of Police and since the order of dismissal was passed by the District Superintendent of Police, it was quashed and set aside.
33. In Dr. G. V. Pantulu v. Govt. of Andhra Pradesh AIR 1958 Andh Pra 240, a Division Bench consisting of Subba Rao, C. J. and Jagan Mohan Reddy, J., as they then were, has held-
Article 311 says that a member of a civil service of a State cannot be dismissed by an authority subordinate to that by which he was appointed, i. e., if the officer is appointed by the State Government he cannot be dismissed by a person subordinate to that Government. It does not prevent the authority duly and legally substituted in the place of the original authority who appointed the member of a civil service, from dismissing him for in that case the substituted authority is not an authority subordinate to that appointing him.
In that particular case the appointing authority was the Madras Government and after the setting up of the State of Andhra Pradesh, he was dismissed by Andhra Pradesh Government and it was held that the Andhra Pradesh Government being the substituted authority had the power to continue the proceedings initiated by the Madras Government and impose punishment on this particular Government servant concerned.
34. To the same effect is the decision of the Rajasthan High Court in Sobhagmal v. State . There a Division Bench of the Rajasthan High Court consisting of Wanchoo, C. J. and Ranawat, J., has held-
What Article 311(1) provides is that the authority dismissing should not be subordinate in rank to that by which the appointment was made. The intention seems to be that the authority dismissing should be co-ordinate in rank to the authority appointing, and not that in the absence of direct subordination any authority could dismiss even though the authority appointing might be a higher authority in rank. The dismissing authority should be at least co-ordinate in rank with the appointing authority, and should not be subordinate in rank. Thus if a person is appointed by a Head of one department, and he is transferred to another department, he can only be dismissed or removed by the Head of the other department.
In the case of transferred Government servant, question would be who would have appointed him in the new set up if he had been appointed under the new set up.
35. In the light of the above decisions which we have discussed, therefore, the following principles clearly emerge: Where a Government servant has been appointed by a particular appointing authority and has subsequently been transferred to another department, if he has been appointed by the head of his department in the first instance, then he can be removed or dismissed from service by the head of the department to which he has been transferred. Secondly, the authority removing the Government servant should not be subordinate in rank to the authority that originally appointed the Government servant concerned. It is useful to consider as to who would have appointed the Government servant concerned in the new set up or in the new department if a fresh appointment were to be made to the particular post held by the Government servant and then to consider whether that authority or that officer is subordinate in rank to the authority or officer who initially or originally appointed that parti-cular Government servant. Either the test of the head of the department may be applied or the test of co-ordinate rank may be applied but depending upon the circumstances of each case, the question of subordination of the appointing authority of the officer who actually dismissed the Government servant concerned or removed him from Government service is concerned, has to be determined in the light of one or the other factors mentioned in the different decisions mentioned above. The test of rank, in our opinion, is a good working rule for the purpose of seeing that Article 311(1) is satisfied as regards the subordination of the dismissing authority to the appointing authority and if it is not possible to compare the two ranks, then the test of the head of the department may also be usefully employed.
36. In the instant case we have already pointed out that the appellant before us was appointed by the District Deputy Collector, Palitana, in Bhavnagar District at the time when Bhavnagar district was part of the State of Saurashtra, Assuming that the real appointing authority was the Collector of Bhavnagar, since the Collector was the head of the department, the question that we have to ask ourselves is, whether the District Development Officer was competent to remove the appellant and other members similar to him from Panchayat service. Acting under the powers conferred upon it by the rule-making power under Section 323 of the Gujarat Panchayat Act, 1961, the Government of Gujarat has made Rules called the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1964. Clause (c) of Rule 1 provides that except as otherwise provided by or under the rules, they shall apply to all persons allocated and appointed to the Panchayat Service and persons holding posts under a Panchavat. Under Rule 2, Clause (b), 'Appointing authority' in relation to a person appointed in the Panchayat Service is the authority empowered to make appointment to the post for the time being held by him, or the authority who is, or under the powers delegated, empowered to make appointment to the services of the class or grade of which he is for the time being a member; or the authority which appointed him to the post which he for the time being holds, whether in a permanent or officiating capacity. Under Clause (i) of Rule 2, 'disciplinary authority' in relation to the imposition of penalty on a member of the Panchayat service means the authority declared to be the disciplinary authority under the Appendix appended to the Rules. Under Rule 6, subject to the provisions of the Rules the disciplinary authority or any authority to whom such authority is subordinate, may impose any of the penalties specified in Rule 5 on any member of the Panchayat Service to the extent shown against it in the Appendix appended to the Rules. Under Rule 5 penalties (8) and (9) ere respectively removal from service not disqualifying for future employment and dismissal from service which shall ordinarily be a disqualification for future employment. Under the Appendix to these Rules the Secretary of a Gram Panchayat can be removed by the District Development Officer because Column 5 mentions that 'any penalty' mentioned in Rule 5 can be imposed by a Deputy District Development Officer on the Secretary of the Gram Panchavat and appeal against the decision of Deputy District Development Officer as mentioned in column 6 under this Appendix to the Rules is to the District Development Officer. It is, therefore, clear that the District Development Officer is an authority to whom the :Deputy District Development Officer is subordinate and, therefore, under R. 6 he could have imposed any of the penalties mentioned in Rule 5 including the penalty of removal from service or dismissal from service on the Secretary of a Gram Panchayat. The District Development Officer under the set up mentioned in the Gujarat Pandhayat Act, 1961 is the head or the chief executive officer of the District Panchayat and he is at the apex of the entire Panchayat administration in the District. Therefore, he is the head of the department so far as all members of the Panchayat service working in that particular district are concerned. Moreover, it may be pointed out that by the Gujarat Panchayat Service (Appointing Authorities) Rules, 1967, published in the Gujarat Government Gazette, Extraordinary, at page 47, the Deputy District Development Officer is the appointing authority for Gram Panchayat Secretaries and, therefore, ordinarily the District Development Officer who is senior and higher in rank then Deputy District Development Officer would be higher in rank and not subordinate in rank to the appointing authority. It is true, as Mr. Patel contends, that the post of Deputy District Development Officer is not referred to in the Act of 1961 but looking to the statutory rules, it is obvious that the rules at least contemplate the appointment of Deputy District Development Officer and he has been empowered to appoint Gram Panchayat Secretaries and also to impose any penalty under Rule 5 of the Discipline and Appeal Rules on Gram Panchayat Secretaries. The District Development Officer is superior in rank to the Deputy District Development Officer.
37. Since the original appointing authority of the appellant when he was appointed in the first instance as a Talati was the Collector of Bhavnagar, as we are prepared to hold, the question is whether the District Development Officer is subordinate in rank to the Collector of a particular district. In this connection we may point out that in 1951 the Parliament has passed the All India Services Act, 3951, to regulate the recruitment, and conditions of service of persons appointed, to the All India Services common to the Union and the States and the Indian Administrative Service is, by the definition Section 2, an All India Service for the purposes of the Act, Under Section 3, Sub-section (1) of the Act, the Central Government may, after consultation with the Government of the States concerned, make rules for the regulation of recruitment, and the conditions of service of persons appointed, to an All India Service. Acting under this rule-making power, the Government of India have made Rules called the Indian Administrative Service (Cadre) Rules, 1954. Under Definition Rule 2 (a) 'cadre officer' means a member of the Indian Administrative Service. Under Rule 3 there shall be constituted for each State or group of States an Indian Administrative Service Cadre. Under Rule 8 of these Rules, save as otherwise provided in these rules, every cadre post shall be filled by a cadre officer. Under Rule 4, Sub-rule (1), the strength and composition of each of the cadres constituted under Rule 3 shall be as determined by regulations made by the Central Government in consultation with the State Government in this behalf and until such regulations are made, shall be as in force immediately before the commencement of these Rules. In pursuance of Sub-rule (1) of Rule 4 of these Cadre Rules of 1954, the Central Government made regulations and Regulation 2 provides that the posts. borne on and the strength and composition of the cadres of the Indian Administrative Service of the various States shall be as specified in the Schedule to these Regulations. In the Schedule to the Regulations it has been pointed out that there are 79 senior posts under the State Government: so far as the State of Gujarat is concerned. There are 17 posts of Collectors in this list of senior posts and 17 posts of District Development Officers. It is, therefore, clear that the posts of Collectors of Districts and the posts of District Development Officers under the Panchayat are both cadre posts which are senior posts under the State Government under these Regulations and therefore, it is obvious when one looks at these Regulations that in the State of Gujarat the District Development Officer is an Indian Administrative Service Officer who holds the senior post. The Collector is also an Indian Administrative Service Officer and also the holder of a senior post under the State Government. Thus both being cadre posts of the same cadre, namely, senior posts in the Indian Administrative Service on the Gujarat Cadre, it is obvious that the District Development Officer enjoys the same rank and is not subordinate in rank to the Collector of a district.
38. It is clear from what we have discussed above that the District Development Officer is the head of the Panchayat Service in his district. He is also senior in rank to the appointing authority designated under the Rules so far as the Gram Panchayat Secretaries are concerned. He is also senior in rank to the Deputy District Development Officer who is the appropriate disciplinary authority having authority to impose the punishment of removal or dismissal on a Gram Panchayat Secretary, Under these circumstances so far as the Gram Panchayat Secretaries like the appellant are concerned, it is obvious that the District Development Officer who is the head of the office who is superior to the appointing authority so far as the present appellant is concerned in the new department and who is not subordinate in rank to the Collector who originally appointed the appellant, is competent to remove the appellant from Government service and therefore, under Section 6, Clause (c) of the Prevention of Corruption Act, the sanction to prosecute having been given by the District Development Officer, authority competent to remove the appellant from service, is a valid sanction,
39. We now proceed to summarize our conclusions in the light of the above discussion. The Panchayat service is as much a service of the State and employees of the Panchayat service are holders of civil posts under the State. Once a person is finally allocated or appointed or transferred to Panchavat Service, either by operation of Section 206 of the Panchayat Act or by Section 206-A, Sub-section (2), the appointing authority in his case would be the District Development Officer because he is the head of that department. Under tine Gujarat Panchayat Service (Appointing Authorities) Rules, 1967, to which we have referred, the authorities having power to make appointment to the different posts in Panchayat Service have been designated and it is in the light of the provisions of those Rules that the appointing authority of the appropriate Government servant has to be decided. For example, in the case of Primary School Teachers who are members of the Panchayat Service, the appointing authority is the Administrative Officer; in the case of Agricultural Assistants and Peons, it is the District Agricultural Officer; in the case of Stockmen (Veterinary), Veterinary Compounder, Dresser and Peons, District Animal Husbandry Officer is the appointing Officer and so on. In case of all other posts not specifically set out in these Rules, it is the District Development Officer so far as the other posts included in the District cadre are concerned. As we have pointed out above, the Act contemplates that there shall be a District Cadre, a Taluka Cadre and a Local Cadre in the Panohayat Service and depending upon the cadre to which the particular member of the Panchayat Service belongs, his appointing authority will be determined. We, therefore, answer the question referred to us by the Division Bench as follows:
In respect of a servant belonging to the State Service prior to his allocation to the Panchayat Service, once his allocation to Panchayat Service has become final, the appointing authority will have to be determined in the light of the provisions of the Gujarat Panchayat Service (Appointing Authorities) Rules, 1967 and so long as the Appointing Authority is not subordinate to the authority who originally appointed him in service, prior to his transfer to Panchayat Service, that appointing authority would be competent to remove such a member of the Panchavat Service after his final allocation from service.
40. In the course of this decision we have not referred to the decision in Ranchhodlal v. State (1970) 11 Guj LR 499, because that decision dealt with a case where the allotment to Panchayat Service had not become final. In Ranchhodlal's case, a Division Bench to which I was a party, has pointed out in paragraph 9 of the judgment-
The Legislature has inserted Section 206-A to indicate that the allocation to Panchayat should be provisional for a certain period and that Section provided for re-allocation of officers and servants to State Service after the allocation had been originally made. Section 206-A provides that the allocation to the Panchayat service made under Section 206 of officers or servants allotted or transferred to a Panchayat under Section 157 or Section 158 was initially to be provisional and it would be lawful for the State Government to review their allocation within a period of four years from the 1st April, 1963, and if necessary to reallocate by an order made in that behalf any of such officers or servants to the State service for any of the reasons mentioned in Clauses (i) to (iii) to Sub-section (1) of Section 206-A.
Several decisions given by the earlier Division Benches were referred to in the course of that judgment in Ranchhodlal's case but the entire decision proceeded on the footing that the allocation to Panchayat Service was provisional and not final. Once the allocation has become final either because of operation of Section 206 Or because of the operation of Sec, 206-A, Sub-section (2), it is obvious that the question will have to be decided in the light of the Rules under the Panchayat Act of 1961 as to who is the appointing authority and in the light of the answer to that question who would be competent to remove the servant concerned from service. In the case referred to us, it is obvious that District Development Officer was certainly competent to remove the appellant from service and the sanction given in this case would be a valid sanction.