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PETITIONER: RAM SARUP

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.

DATE OF JUDGMENT03/05/1984

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) MADON, D.P. MISRA RANGNATH

CITATION:  1984 AIR 1094            1984 SCR  (3) 734  1984 SCALE  (1)688

ACT:      Panchayat Samitis,  and Zilla  Parishads Act,  1961  as amended by  Harayna Amendment  Act of  1973 deleting Section 33,  affect   of-whether  any  appointment  made  after  the deletion of Section 33 valid effective.

HEADNOTE:      Section 33  of the  Punjab Panchayat  Samitis and Zilla Parishads Act,  1961 provided  that subject to rules made by the Government,  a Panchayat Samiti may employ such servants as it  may consider  necessary for the efficient performance of the  duties imposed upon it by the Act, rules or bye-laws made thereunder  or by  any other  law for the time being in force. The  Punjab Panchayat  Samitis  and  Zilla  Parishads (Haryana Amendment  Act, 1973  which came  into  force  from June, 13,  1973, introduced extensive amendments. Section 33 of the  Act was  deleted by  Section 13 of the Amending Act, Sub section  (4) of  Section 14  the Amending  Act, provided that persons  employed by a Panchayat Samiti before April 4, 1973 and  who were  in service  at the  commencement of  the Amending Act, "shall continue to serve on the same terms and conditions on  which they  were employed  by  the  Panchayat Samiti" until they are absorbed in the Government Service or retire in such manner as may be prescribed. Section 35(1) of the Act  empowers the  State  Government  to  place  at  the disposal of  a Panchayat  Samiti such of its servants as are required for  the  implementation  of  the  schemes  annexed therewith, and for such other duties and functions as may be assigned to them by the Panchayat Samitis from time to time.      The appellant  was appointed as a clerk on June 1, 1963 by the  Panchayat Samiti,  Loharu. He  was confirmed in that post ill  course of  time.  On  January  21,  1974,  he  was promoted as  a Head  Clerk on  an ad hoc basis. On March, 14 1975 a  resolution was passed by the Samiti regularising the post of  Head Clerk.  On April  1, 1975,  the appellant  was appointed as  a Head  Clerk.  Acting  in  pursuance  of  the provision of  Section 14(1)  of the.  the Amending  Act, The Government  of   Haryana  notified  the  absorption  of  the appellant as  a clerk, though he was working as a Head Clerk since January  21, 1974. Being aggrieved the appellant filed a Writ  Petition and prayed for a direction to absorb him as

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a Head Clerk. The Writ Petition having been dismissed by the High Court,  the appellant  has filed this appeal by special leave.      Dismissing the appeal, the Court, ^      HELD: 1.1. The Panchayat Samiti had no right to appoint the appellant to the post of Head Clerk on the date on which it purported  to do  so. As  a result  of  the  deletion  of Section 33 of the Act by the Amending Act of 1973, the 735 Panchayat Samiti  lost its  power to make appointment to the Panchayat.  It   could  not  therefore  have  appointed  the appellant as  a Head  Clerk, as  it purported  to do  so, in January, 1974  on an  adhoc basis  or in  April  1965  on  a regular basis. [737D]      1.2. Though the right to be considered for promotion is a term  and condition  of service,  in the instant case, the appointment of  the appellant  to the  post of  a Head Clerk being without  the authority  of law, the Government was not bound to  absorb him  in the  post of  a Head  Clerk. He was appointed lawfully  to the  post of  a clerk and that is the post in which the Government has absorbed him. [737C; E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1433 of 1977      Appeal by  Special leave  from the  Judgment and  Order dated the  16th February,  1.977 of  the Punjab  and Haryana High Court in Civil Writ Petition No. 752 of 1977.      J.D. Jain & Mrs. Kawaljit Kocher for the Appellant.      Harbans  Lal,   I.S.  Goel   &  R.N.   Poddar  for  the Respondent.      The Judgment of the Court was delivered by      CHANDRACHUD, CJ.  Section 33  of the  Punjab  Panchayat Samitis and  Zilla Parishads  Act; 1961 ("The Act") provided in so  far as  relevant, that  subject to  rules made by the Government, a  Panchayat Samiti  may employ such servants as it may  consider necessary  for the efficient performance of the duties  imposed upon  it by  the Act,  rules or bye-laws made thereunder  or by.  any other law for the time being in force.  In  pursuance  of  this  power,  the  appellant  was appointed as  a clerk  on June  1,  1963  by  the  Panchayat Samiti, Loharu, which is respondent 3 in this appeal. He was confirmed in  that post  in course  of time.  On January 21, 1974 he  was promoted as a Head Clerk on an ad hoc basis. On March 14,  1975 a  resolution was  passed  by  respondent  3 regularising the  post of  Head Clerk. On April 1, 1975, the appellant was appointed as a Head Clerk.      The Punjab  Panchayat Samitis, Zilla Parishads (Haryana Amendment) Act,  1973 introduced extensive amendments in the Act of  1961. Section 13 of the Amending Act deleted section 33 of the Act. A plain consequence of this deletion was that the Panchayat  Samitis were  divested of their power to make appointments to  the Panchayats.  The Amending  Act received the assent of the Governor 736 on April  25, 1973  and was published in the Haryana Gazette on June 13, 1973.      Sections 35(1) of the Act empowers the State Government to place  at the  disposal of a Panchayat Samiti such of its servants as  are required  for  the  implementation  of  the schemes connected  therewith and  for such  other duties and functions as may be assigned to them by the Panchayat Samiti

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from time  to time.  Section  35(3)  which  dealt  with  the conditions of service of the Government servants allotted to the Panchayat  Samitis, was  amended by  section 14  of  the Amending Act  of 1973.  Sub-section (4) of section 14 of the Amending Act  provides that  persons employed by a Panchayat Samiti before  April 1,  1973 and who were in service at the commencement of  the Amending  Act shall continue to service on the same terms and conditions on which they were employed by the  Panchayat Samiti",  until they  are absorbed  in the Government service  or retire  in  such  manner  as  may  be prescribed.      Acting in  pursuance of  the provision of section 14(4) of the  Amending Act, the Government of Haryana notified the absorption of  the appellant  as a  clerk though,  as stated earlier   he was  working as  a head  Clerk  in  the  Loharu Panchayat Samiti.  Being aggrieved  by his  absorption on  a lower post,  he filed  a writ  petition in the High Court of Punjab and  Haryana, asking  that he should be absorbed as a Head Clerk.  The writ  petition having been dismissed by the High Court,  the appellant  has filed this appeal by special leave.      The appellant  was appointed  as a  clerk by the Loharu Panchayat Samiti  in-1963, long before the Amending Act came into force  on June 13, 1973. He was, therefore, entitled to be absorbed  in Government  service as a clerk in any event. But, as a result of the deletion of section 33 of the Act by the Amending  Act of  1973, the  Panchayat Samiti  lost  its power to  make appointments  to the Panchayat. The fact that the appellant  was promoted  as a  Head Clerk  on an  ad hoc basis in  January 1974,  or the  further fact  that  he  was appointed as  a Head  Clerk on April 1, 1975, cannot improve his position  for the  simple reason that these appointments were made  after June  13, 1973, being the date on which the Panchayat Samiti lost its power to make appointments to. the Panchayat. 737      It is  urged by  Shri Jain who appears on behalf of the appellant that  by reason  of section  14(4) of the Amending Act, the  appellant was  entitled to continue in the service of the  Panchayat on  the same terms and conditions on which he was  employed  by  the  Panchayat  Samiti  until  he  was absorbed  in   Government  service.   Since  the  appellant, according to  the terms  and conditions  of his service with the Panchayat,  was entitled  to be considered for promotion to the post of a Head Clerk, his appointment as a Head Clerk prior to  his absorption  in Government  service had  to  be recognised  and   protected,  despite  the  fact  that  such appointment was  made after  June 13, 1973 when the Amending Act  came   into  force.  There  is  no  substance  in  this contention. Even  assuming for the purposes of argument that the right  to be  considered for  promotion is  a  term  and condition of  service, what  is relevant  for our purpose is not whether  the appellant was entitled to be considered for promotion but, whether the Panchayat Samiti had the right to appoint him  to the  post of Head Clerk on the date on which it purported  to do so. Clearly, it had fortified that right on June  13, 1973.  It could  not, therefore, have appointed the appellant  as a  Head Clerk,  as it  purported to do, in January 1974  on an  ad hoc  basis or  in April  1975  on  a regular basis.  The appointment of the appellant to the post of a  Head Clerk  being without  the authority  of law,  the Government was not bound to absorb him in the post of a Head Clerk. He  was appointed lawfully to the post of a Clerk and that is the post in which the Government has absorbed him.      For these  reasons, the  appeal fails and is dismissed.

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There will be no order as to costs. S.R.      Appeal dismissed. 738