B.R. Arora, J.
1. This appeal is directed against the judgment dated 26.2.96 passed by the learned Single Judge, by which the learned Single Judge dismissed the writ petition filed by the petitioner and held that the relaxation in the age is only for the Government Servant and not for the persons serving in the other departments which are not run by the State Government.
2. Appellant-petitioner Niyaz Mohammed Khan was working as a Teacher Grade III in Government Primary School in Panchayat Samiti, Bhilwara. The appellant, in pursuance to the Advertisement No. 6-Pariksha/Kha./Up. Ni. Po/94-95 dated 3.10.94, inviting applications for appointment on the post of twenty-six Sub-Insptectors of Police, applied for the same. His candidature was rejected for the post of Sub-Inspector Police being over-age. While considering his eligibility, the age-relaxation for three years applicable to the Government Servant was not taken into account in his case as he was in the service of Panchayat Samiti.
3. The controversy which requires adjudication is : whether the Panchayat Service constituted under Section 89 of the Rajasthan Panchayati Raj Act, 1994 or under Section 86 of the Rajasthan Panchayat Samiti and Zila Parishads Act, 1959 is a Service of the State and the members of the service, who are governed by the Rajasthan Panchayat Samities and Zila Parishads Rules, 1959 or other rules framed in this behalf, are the 'Government Servant' and entitled for the relaxation of three years' age in the case of employment on the post of Sub-Inspector Police as is applicable to the Rajasthan Government Employees ?
4. Government Servant is a person who holds a civil post under the State. A post under the State means a post under the administrative control of the State, in which the State has a right to create or abolish the post and could regulate the Conditions of Service of the person appointed on the post. A member of service holds the office for a 'civil post' if the duties in connection with the affairs of the State Government are attached to it. Before a person can be said to be under the employment of the State, the relationship of master and servant must be established between the State and the person concerned. The existence of this relationship, can be established from various circumstances, e.g., (i) the authority of the State to create or abolish the post; (ii) right to select and appoint ; (iii) the administrative control and the right to control the manner and method of working; (iv) the right to prescribe and regulate the Conditions of Service; (v) right to take disciplinary action, including the right to suspend and dismiss; and (vi) payment of wages and remuneration and the other like conditions.
5. The Supreme Court in some cases laid down the relevant criteria and factors which can form the basis for deciding the question : whether a person in the service can be regarded as a Government Servant holding the Civil Post under the State We shall, now, advert to certain decisions of the Supreme Court and the High Courts, on which reliance has been placed by the learned Counsel for the parties for deciding the question : whether a person working in the Service of the Panchayat Samiti or Zila Parishad can be regarded as a Government Servant holding a Civil Post under the State ?
6. In : the State of Assam and Ors. v. Kanak Chand Dutta : (1968)ILLJ288SC , the Supreme Court laid down that the true test for determining the question whether a person is holding the civil post or a member of civil service, is the existence of the relationship of master and servant between the State and the person holding the post under it and the existence of such relationship is dependant upon the right of the State to select and appoint the holder of the post, its right to suspend or dismiss him, its right to control the manner and method of the working and the payment by it of his wages and remuneration.
7. In : Mathwa Das Mohan Lal Kedia and Ors. v. S.D. Munshaw and Ors. : [1981]1SCR144 , the question for consideration before the Supreme Court was : whether the Panchayat Service constituted under Section 203 of the Gujarat Panchayat Act, is a civil service of the State of Gujarat The Supreme Court held that 'the Panchayats constituted under the Panchyat Act derive their authority from 'the statute and are under the control of the State Government. They form part of Local Self-Organisation, which the State Government is under an obligation to footer under Article 40 of the Constitution of India. The Panchayat Service constituted under Section 203 of the Gujarat Panchayat Act has all the characteristics of civil service of the State. Thus, the Panchayat Service constituted under the Panchayats Act is a civil service of the State of Gujarat.'
8. In: State of Gujarat and Another v. Raman Lal Keshav Lal Soni and Ors. : (1983)ILLJ284SC , again the same controversy : whether the members of Gujarat Panchayat Service are government servant, came-up for consideration before the Supreme Court and the Constitutional Bench of the Supreme Court indicated the following criteria to determine the relationship of master and servant :
It is neither politic nor possible to lay down any definite test to determine when a person may be said to hold the civil post under the government. Several facts may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor should be considered absolutely essential. The presence of all or some of the factors, such as the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of duties performed by the employee, the right to control the employees' manner and method of working, the right to issue directions and the right to determine the source from which the wages or salary are paid and a host of such circumstances may have to be considered to determine the existence of relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not.
Judging from the criteria laid down, the Supreme Court held that 'the Panchayat Service constituted under Section 203 of the Gujarat Panchayat Act is a civil service of the State and the members of the service are government servant.
9. In : Sri R.N.A. Britto v. The Chief Executive Officer : [1995]3SCR932 the question for consideration before the Supreme Court was : whether the Secretary of a Panchayat established under the Karnataka Village and Local Board Act, 1959, is a State Government Servant entitled to invoke the jurisdiction of the Tribunal for redressal of his grievances? The Apex Court relied upon its earlier two judgments in the case of the State of Assam and Ors. v. K.C. Dutta (supra) and State of Gujarat and Ors. v. Ram Lal Lalit Kumar Soni (supra) and after considering the various provisions of the Act, held that the Panchayat Secretaries under the Act are the State Government Servant and they are the persons who are appointed in the civil service of the State or on the civil post under the State within the meaning of Clause (b) of Sub-section ,(1) of Section 15 of the Tribunals Act.'
10. In : Mehtab Ali Khan v. B.D.O., Panchayat Samiti, Chaksu and Ors. 1981 WLN 523 a question : whether the Member of the Rajasthan Panchayat Service is a Member of Civil Service of the State, came-up for consideration before the learned Single Judge of this Court and the learned Single: Judge of this Court held that 'the ultimate master of an employee in the 'service' is the State Government. The Rules are provided by the State Government and the powers of transfer are vested in it. The B.D.O. of the Panchayat Samiti or the Secretary of the Zila Perishad is a Member of the State Service, the pension of the members of the service is payable out of the Consolidated Fund of the State. These' factors, to my mind, leave no manner of doubt that an employee in the service as defined under Section 2(k) of the Rules, 1959, is a member of civil service of the State, namely, the Rajasthan Panchayat Service.
11. In : Ramesh Kumar v. State of Rajasthan and Ors. 1995 WLR Raj. 268 the question came-up for consideration before the learned Single Judge of this Court was : whether the wards of the teacher working in the Panchayat Samiti or Zila Parishad, are entitled for five bonus marks which are allowable to the wards of the teachers working in the Education Department of the State The learned Single Judge of this Court held that 'there is no reasonable basis for classification between the teachers employed under the State Government and the teachers working under the Panchayati Samiti. Both of them are the employees of the State. The denial of bonus marks only to the wards of the teachers of Panchayat would, therefore, be unconstitutional.'
12. In : Fateh Chand Sharma v. State of Rajasthan and Anr. S.B. Civil Writ Petition No. 5965/1995 and the other connected writ petitions decided on 15; 7.96,the same controversy came-Up for consideration before the learned Single Judge and the learned Single Judge of this Court, after considering the law on the point, held that 'the appointment under the Rajasthan Panchayat Samiti and Zila Parishads Services Rules, by itself, cannot be considered to be the State Service though it is a civil service.'
13. The relevant provisions of the Act, under which the service is constituted, and the Rules made thereunder will supply the relevant criteria/factors which are needed for the determination of the question. Whether the teacher working in the Government School which is under the control of the Panchayat Samiti, can be held as a Government Servant and is entitled for the relaxation of three years age in the employment, it will be necessary to advert to the various provisions of the Act and the Rules made thereunder.
14. The Rajasthan State Legislature, pursuant to the mandate enshrined in Article 40 : that the State shall take steps to organise the Village Panchayat and endow them with such powers and authority as may be necessary to function the unit of Self-Government and, also, in pursuance to Chapter IX of the Constitution of India, enacted the Rajasthan Panchayati Raj Act, 1994.
15. Section 89 of the Act, 1994 deals with the constitution of the Rajasthan Panchayat Samities and Zila Parishads Service Rules, which reads as under:
Section 89.--Constitution of the Rajasthan Panchayat Samiti and Zila Parishad Service--(1) There shall be constituted for the State a service designated as the Rajasthan Panchayat Samiti and Zila Parishad Service and hereafter in this section referred as the service and recruitment thereto shall be made district-wise.
(2) The Service may be divided into different categories, each category being divided into different grades, and shall consist of:
(i) village level workers;
(ii) Gram Sevaks;
(iii) Primary School Teachers; and
(iv) ministerial establishment (except Accountants and Junior Accountants),
(3) The State Government may encadre in the service any other category or grade of officers and employees of Panchayat Samitis and Zila Parishads and not included in Class IV services.
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(9) Persons holding posts encadred in the service shall also be eligible for appointment or promotion to the posts in a State Service or under the State Government in accordance with the rules made in that behalf by the State Government and subject to terms and conditions laid down in such rules, and the persons so appointed or promoted shall count the period of their holding posts in the service constituted under this Section for the purpose of seniority and pension.
(10) Persons holding appointment in a State Service shall also be eligible for appointment by transfer to a post encadred In the service constituted under this Section in accordance with rules made in this behalf by the State Government and on terms and conditions laid down in those rules.
(11) Every person holding a post encadred in the service constituted under this Section shall be entitled to the payment of a pension by the State Government out of the Consolidated Fund of the State in accordance with rules made by it in that behalf.
16. Section 91 of the Act deals with the disciplinary proceedings against and punishment imposed on the staff of the Panchayat Samiti and Zila Parishads and provides that the conduct of disciplinary proceedings shall be governed and regulated by the Rules made by the State Government in this behalf. Section 92 of the Act provides that the State Government shall be the Chief Superintending and Controlling Authority in respect of all the matters relating to the administration of Panchayati Raj Institutions. Section 93 of the Act provides that on a complaint made or otherwise if the State Government is satisfied that the Panchayati Raj Institution has been guilty of making default in performing any duty imposed upon it by or under this Act, it may, after due enquiry, by an order in writing, fix a period for the performance of the duty and such order shall forthwith be communicated to the Panchayati Raj Institution concerned. Section 94 gives powers to the State Government to dissolve a Panchayati Raj Institution if the State Government is satisfied that the Panchayati Raj Institution is not competent to perform or persistently making defaults in the performance of the duties imposed on it by or under the Act or otherwise by law; or it has exceeded or abused the power. Section 98 of the Act authorises the State Government to delegate all or any of its powers to any officer or authority subordinate to it by publishing a Notification in the Official Gazette. Section 99 of the Act authorises the State Government to appoint an Officer-in-Charge of the Panchayats and such other subordinate officers and staff as the State Government may deem necessary for the discharge of functions in regard to the administration of the Panchayats.
17. Rule 2 (k) of the Rajasthan Panchayat Samities and Zila Parishads Rules, 1959 defines the word 'Service', which means the Rajasthan Panchayat Samiti and Zila Parishads Service. Rule 5 of the Rules deals with the initial constitution of the Service. Rule 6 deals with the source of recruitment. Rule 6-C provides that the vacancies, after the commencement of these Rules, shall be filled:
(a) by direct recruitment; or
(b) by promotion; or
(c) by transfer of persons holding corresponding post under a Panchayat Samiti, Pahshad or Government.
18. Rule 18-A authorises the State Government to allot candidates in order of merit from the list of the district where there are no vacancies to another district where there may be vacancies for appointment. Rule 22-A makes a provision for the transfer of a government servant to a post in the Service where there is no member of the service available for appointment. Rule 22-B makes a provision for recruitment by transfer to the service of the government servant or reduction or abolition of the post. According to this rule, a person declared surplus, with his consent, can be appointed by transfer to the service. Rule 30 deals with re-transfer of a member of service posted under the Government and provides that the persons appointed under Rule 5 may be re-transferred by the Panchayat Samiti or the Zila Parishad, as the case may be, to a post under the Government in consultation with the Head of the Department concerned; provided the employee has been declared surplus by the Commission. Rule 34 deals with the regularisation of pay, leave, allowances, pension etc. and states that the members of the service shall be regulated mutatis mutandis by the Rajasthan Service Rules and the Rajasthan Travelling Allowances Rules as amended from time to time. Rule 36 provides that matters relating to increment, fixation of pay, seniority etc. of the employee appointed to the service under Rule 5 shall be such as may be determined by the Government from time to time. Rule 38 makes a provision that a member of service shall be eligible for appointment or promotion to the next higher post in the State Service in accordance with the Rules applicable to those services. The persons so appointed or promoted shall count the period of their holding the post substantively in the service for the purpose of seniority. They will, also, count this period for the purpose of pension in accordance with the provisions of the Rajasthan Service Rules.
19. The Rajasthan State Government, in exercise of the powers conferred by the proviso to Article 309 of the Constitution, made the Rajasthan Educational Subordinate Service Rules, 1971. Rule 6 of the Rules, 1971 deals with the Method of Recruitment. Rule 6-D provides that in case of teachers Grade III, as referred in Sub- section (f) of the Schedule, vacancies to the extent of 75% in a year shall be filled in by transfer of teachers working in the Panehayat Samiti. This rule, thus, clearly shows that the services of the teachers working in the Panchayat Samiti and Zila Parishads as well as the services of the teachers working under the Education Department of the State Government, are taken at par and are transferable.
20. The Panchayat Samities, Zila Parishad and the Panchayats derive their authority from the statute and are under the Administrative Control of the State Government. These institutions exercise many Governmental Functions which the State Government can perform. These are the authorities which can be treated as the 'State' for the purpose of Article 12 of the Constitution of India. The provisions of the Act and the Rules, to which we have adverted, clearly state that the State Government has powers (i) to encadre in the Service any other category or grade of officers not included in the service; (ii) to prescribe duties and powers of employees encadred in the service; (iii) can frame rules relating to disciplinary proceedings and punishment; (iv) is the Chief Superintending and Controlling Authority in respect of all the matters relating to the administration; (v) has power to direct each or any of the Panchayati Raj Institution for the purpose of duties which it failed to perform; (vi) has power to dissolve any Panchayati Raj Institution on being satisfied that either the institution is not competent to perform or persistently making defaults in the performance of the duties or it has , exceeded or abused the power; (vii) the power to appoint an Officer-in-Charge of the Panchayat and other subordinate Officers and staff for the discharge of the functions in regard to the administration of the Panchayat; and (viii) to determine and adjudicate the matters relating to increment, fixation of pay, seniority etc. of the members of the service.
21. These are the powers which are vested in the State Government under the Act and the Rules. The State Government is, also, authorised under the Panchayati Raj Act to delegate many of its functions to the Rajasthan Panchayati Raj Institutions and, also, to transfer its officers and servant to function under their supervision and control as the Members of the Panchayat Service. The persons working under the Panchayat Service are, also, (i) the persons holding the post encadred in the Panchayat Service and are also entitled (ii) being eligible for the post in the State Service or under the State Government in accordance with the Rules made in this behalf; (iii) the period spent by the person in the Panchyat Service, after transfer, can be counted for the purpose of seniority and pension; (iv) salary and allowance of the servant and officers of the Panchayat Service are to be paid from the funds contributed by the State Government or raised by the Panchayati Raj Institution in the discharge of the Governmental Functions ; (v) pension is to be paid by the State Government out of the Consolidated Fund of the State; (vi) recruitment by transfer to the Government Service on reduction or abolition of the post; (vii) transfer or re-transfer from the service to the Government Service on being declared surplus; (viii) applicability of the Rajasthan Service Rules, 1951 and the Rajasthan Travelling Allowances Rules to the service relating to the regularisation of the pay, leave, allowances, pension etc; (ix) eligibility of the members of the service for appointment on the next higher post in the State Service; (x) counting of the past period in the service for determining the seniority and pension; (xi) filling-up of 75% of the vacancies in the Rajasthan Educational Subordinate Service Rules by way of transfer of teachers working in the Panchayat Samities; and (xii) the transfer of a person holding a post in the State Service for a post encadred in the Panchayat Service, are the conditions which clearly show that the persons working as the members of the Panchayat Service are engaged in the Governmental functions and, therefore, they have to be treated as the Members of the State Civil Service.
22. We are, therefore, of the view that the Panchayat Service constituted under Section 89 of the Act, 1994 or under Section 86 of the Rajasthan Panchayat Samities and Zila Parishad Act, 1959 is the civil service of the State as it has all the characteristics of that service. The members of the Panchayat Service, therefore, hold the office for a civil post. The teachers working in the Government Schools which are under the control of the Panchayat Samities and Zila Parishads, are, therefore, the civil servant under the State Government and are entitled for relaxation of three years age as has been made applicable to the State Government employees. We may, however, make it clear that the view taken by us in the present case applies only to the service constituted under Section 89 of the Act, 194 or under Section 86 of the Act, 1959; but will not apply to other employees of the Panchayati Raj Institutions who are not the members of the Panchayat Service. The other employees of the Panchayati Raj Institutions, who are not the members of the Panchayat Service, though working with the Panchyat, cannot be treated as the members of the State Civil Services.
23. In the result, the appeal filed by the appellant-petitioner is allowed. The judgment dated 26.2.96 passed by the learned Single Judge is quashed and set-aside and it is held that the Panchayat Service constituted under Section 89 of the Panchayati Raj Act, 1994 or under Section 86 of the Rajasthan Panchayat Samiti and Zila Parishads Act, 1959, is a civil service of the State Government and the members of the Panchayat Service, therefore, hold the Office of a civil post. The teachers working in the government schools in the rural areas with the Panchayat Samiti and Zila Parishads, being the civil servant, are, therefore, entitled for relaxation of three years in age in the appointment as is applicable to the State Government employees. In the facts and circumstances of the case, we leave the parties to bear their own costs.