http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 15  

CASE NO.: Appeal (civil)  3340 of 2007

PETITIONER: M/S GUJARAT PRADESH PANCHAYAT PARISHAD & ORS

RESPONDENT: STATE OF GUJARAT & ORS

DATE OF JUDGMENT: 30/07/2007

BENCH: C.K. Thakker & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 3340 2007 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 12907 OF 2005

C.K. THAKKER, J.

1.              Leave granted. 2.              A question of considerable public importance  has been raised by the appellant in the present appeal  which has been instituted against judgment and order  passed by a Single Judge of the High Court of Gujarat in  Gujarat Pradesh Panchayat Parishad & Ors. v. State of  Gujarat & Ors. in Special Civil Application No. 1192 of  2002 and companion matters decided on 25th October,  2002 and reported in (2003) 1 Guj LR 633 and confirmed  by a Division Bench of the High Court in Letters Patent  Appeal No. 1126 of 2002 decided on June 14, 2005. 3.              To appreciate the controversy raised in the  appeal, few relevant facts may be stated: 4.              The Gujarat Pradesh Panchayat Parishad,  appellant No.1 herein, is a Society registered under the  Societies Registration Act, 1860. All District Panchayats,  Taluka Panchayats and Gram Panchayats are members  of the Parishad. Appellant No.1 purports to protect the  interest of the Panchayats in the State of Gujarat by  ensuring that their members function as institutions of  ’Local Self Government’. Appellant No.2 is the  Sabarkantha District Panchayat consisting of elected  representatives. Appellant No.3 is the President of the  said District Panchayat. Respondent No.1 is the State of  Gujarat, Respondent No.2 is the Development  Commissioner, while respondent No.3 is the District  Development Officer of Sabarkantha District Panchayat. 5.              The question raised by the appellants before  the High Court as well as before us centres round the  powers of the District Development Officer vis-‘-vis the  powers of the President of District Panchayat in the  administration of District Panchayat under the Gujarat  Panchayats Act, 1993 (hereinafter referred to as ’the  Act’). 6.              According to the appellants, Part IX of the  Constitution read with the relevant provisions of the Act  leaves no room for doubt that the District Development  Officer is expected to exercise all executive powers of the  District Panchayat, subject to the orders, if any, of the  President of the District Panchayat. 7.              It is alleged by appellant No.2 that the District

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 15  

Development Officer, Sabarkantha (Respondent No.3)  started ignoring the President of the District Panchayat  in matters concerning administration, particularly  relating to appointment, transfer, promotion, posting,  etc., of Panchayat employees. The appellant No.2,  District Panchayat, Sabarkantha, therefore, passed  Resolution No.6 on November 21, 2001, inter alia,  resolving that the District Development Officer shall  consult the President of the District Panchayat in   matters of recruitment, appointment, transfer,  promotion, posting, deputation etc. of all Panchayat  employees of the District Panchayat. By an Office Order  dated December 13, 2001 the President of the District  Panchayat in the purported exercise of the power under  Section 83 read with Section 162 of the Act, directed the  District Development Officer to place all the files relating  to recruitment, appointment, promotion, transfer and  deputation of employees in the District Panchayat for his  consultation. The District Development Officer, however,  was adamant in his attitude and asserted that in  administrative matters of recruitment, appointment,  promotion, transfer, deputation, etc., of employees of the  District Panchayat, the power could be exercised only by  the District Development Officer and the President of the  District Panchayat had no voice in executive or  administrative functions of the District Development  Officer. Because of the difference and non-observance of  the resolution passed by the District Panchayat, the  appellant approached the High Court by invoking Article  226 of the Constitution for an appropriate writ, direction  or order compelling the District Development Officer to  act in accordance with Section 162 of the Act, abiding by  Resolution No.6 passed by the District Panchayat and by  taking all decisions in conformity with the said  resolution. 8.              The learned Single Judge heard the petition,  and considered rival submissions of the parties. He  referred to the relevant parts of the Constitution and  material provisions of the Act and held that it was  obvious that the Legislature did not contemplate  superimposing role of the President of the District  Panchayat over the functions performed and powers  exercised by the District Development Officer as the  executive head of the District Panchayat. The learned  Judge ruled that the executive powers of the District  Panchayat are not vested in the President of the District  Panchayat but they are to be exercised by the District  Development Officer. Considering the case-law on the  point, the learned Judge held that the status and  position of the President of the District Panchayat was  neither similar to the Chief Minister of a State, nor of a  Sarpanch of village Panchayat. The contention of the  appellants that the District Development Officer was  merely a Secretary of the Panchayat and could not  exercise any power without order to that effect by the  President of the District Panchayat was negatived. In the  opinion of the learned Single Judge, the President could  issue directions to the District Development Officer in  individual cases and the District Development Officer  must pay heed to such ’tap on his shoulder’. He should  also inform the President about the action taken or order  passed by him. The Court posited that the District  Panchayat had no power, authority or jurisdiction to  pass a resolution directing the District Development  Officer to place all matters relating to recruitment,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 15  

promotion, transfer posting, deputation, etc. of  employees of the Panchayat for consultation of the  President of the District Panchayat nor to obtain prior or  even subsequent permission, approval or order from  him. 9.              The learned Single Judge, in the light of the  decision, recorded the following conclusions; (i)  (a)  The Constitution has not conferred  upon District Panchayats or any  other institution of Local Self  Government any status or role  conferred upon States as Provinces  in a Federation. While constitutional  status is conferred on Panchayats  as institutions of self-Government,  the Constitution has left it to the  State Legislature to determine the  extent of devolution of powers to  such institutions at the appropriate  level, subject to such conditions as  may be specified in the State  enactment. (b)     The State Legislature has in the  Gujarat Panchayats Act, 1993  provided for fusion of the principle  of local self-Government with the  principle of centralised planning. If  not properly operated, the two  principles may have the potential of  conflicting with each other, but the  Legislature has, by carefully selected  expressions, carved out distinct  roles for elected heads of  Panchayats and for civil servants  and also provided for State  Government control for specific  purposes.  (ii)    The executive powers of the District  Panchayat are not vested in the President  of the District Panchayat, unlike the  vesting of the executive powers of the  Village Panchayat in the elected  Sarpanch.  (iii)   The executive powers of the District  Panchayat are vested in the District  Development Officer and the exercise of  these powers is subject to the orders, if  any, of the President of the District  Panchayat or the District Panchayat, as  the case may be. But this does not mean  that the District Development Officer is  required to obtain prior orders of the  President or the District Panchayat. (iv)  While the powers and functions of the  President of the District Panchayat do  include watching over the financial and  executive administration of the  Panchayat and exercising administrative  supervision on the District Development  Officer for securing implementation of  resolutions or decision of the Panchayat  or any committee thereof, such watching  over and exercising administrative  supervision does not mean taking  decisions in matters of day-to-day

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 15  

administration or in matters of  appointment, transfer or other conditions  of service of the Panchayat employees or  of officers posted by the State  Government under the Panchayats. The  Act and the Rules, therefore, do not  contemplate that the District  Development Officer is required to obtain  prior approval of the President of the  District Panchayat or of the District  Panchayat before taking decisions in  executive matters, much less in matters  which are entrusted to the District  Development Officer by the statutory  rules under Section 227 of the Act.  (v)     However, the power of the District  Development Officer to exercise such  executive powers including the powers  conferred by the Rules under Section  227(5) of the Act is subject to the orders  of the President of the District Panchayat  or the District Panchayat in individual  cases i.e. it is open to the District  Panchayat and to the President of the  District Panchayat to issue instructions  to the District Development Officer to  take appropriate remedial measures in  matters causing concern to the elected  representatives of the people, when the  local people suffer any hardships or if the  benefits intended to reach the people at  large or the specified categories of  beneficiaries do not reach them. (vi)    The D.D.O. is not merely a Secretary of  the District Panchayat. The Act has  contemplated a much larger and more  important role for the D.D.O. In all  executive matters while the D.D.O. need  not wait for a nod of approval from the  President, he must pay heed to a tap on  the shoulder from the President, if at all  the President finds it necessary to do so  in a given case. In short, the executive  initiative remains with the D.D.O.. (vii) In matters of preparing development  projects and the projects for the benefit of  the people within the sphere of  Panchayats, the elected office-bearers will  have a greater say while setting out the  goals, but in deciding as to how those  goals are to be achieved, and for deciding  as to through which officers and  employees the particular tasks at hand  are to be carried out, it is the District  Development Officer and the other  administrative officers who will have  greater say, subject to the power of the  President to exercise administrative  supervision over the District Development  Officer for securing implementation of the  resolutions or decisions of the  Panchayat/Committee thereof.  (viii) The illustration given in Para 11.9  hereinabove exemplifies the scheme of  the Gujarat Panchayats Act and the roles

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 15  

envisaged for the President of the District  Panchayat and the administrative  officers. In any Panchayat set-up, it is for  the D.D.O. and other administrative  officers and the President of the District  Panchayat and other elected  representatives of the people to build up  a smooth working relationship. No  administration can effectively or properly  function if the political executive and the  civil servants are always at loggerheads  or if they do not focus their attention on  their basic duties i.e. formulation of  policies and programmes by the political  executive and implementation of such  policies and programmes by the civil  servants. It is with the aforesaid perspective that  the President of the District Panchayat  and the D.D.O. have to play their  respective roles and with due sensitivity  to the role of the other. They have to co- operate with and complement each other  and function as the two wheels of a  chariot. The difficulty arises when the  wrong question is asked as to who is in  the driver’s seat - the President or the  D.D.O.? The simple answer to this  question which ought not to arise in the  first place is - the Public Welfare has to  be in the driver’s seat. Once, this truth is  realised, the Panchayat administration  will run very smoothly and as intended  by the Constitution as well as the  Legislature. (ix) The question whether the D.D.O. is to  exercise his executive powers subject to  the orders of the President and the  District Panchayat or subject to the  general control of the District Panchayat  will depend on the nature of the matters  in which such powers are to be exercised.  (x)  The State Government may exercise its  control over the District Panchayat  through the D.D.O. within the  parameters and as per the modalities as  indicated in para 14 hereinabove. (xi) Resolution No. 6 passed by the  Sabarkantha District Panchayat on 21- 11-2001 and the office order dated 13- 12-2001 issued by the President of the  Sabarkantha District Panchayat are  illegal, as they are inconsistent with the  principles laid down in this judgment. (xii) So also in case of Junagadh and  Jamnagar District Panchayats, orders of  the Presidents of these respective District  Panchayats suffer from the same  infirmity. 10.             Being aggrieved by the judgment and order  passed by the Single Judge, the appellants herein  approached the Division Bench by filing intra court  appeal (Letters Patent Appeal) under Clause 15 of the  Letters Patent. The Division Bench of the High Court  again considered the relevant provisions of the Act as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 15  

also of the Constitution and  observed that it was in  agreement with the view taken by the learned Single  Judge and the conclusions reached by him. The  conclusions arrived at could not be said to be  inconsistent with the provisions of law. 11.             The Division Bench, therefore, stated:  "We, therefore, agree with the learned  Single Judge that the District Development  Officer is not required to seek previous  approval or permission of the District  Panchayat or its President. However, the  District Panchayat or the President of the  Panchayat shall have powers to issue direction  to the District Development Officer to bring his  actions within the constitutional or statutory  frame and in accordance with the economic  plan".

12.             On April 10, 2006, the Special Leave Petition  was placed for admission-hearing and notice was issued.  On January 19, 2007, the Court directed the Registry to  post the matter for final hearing. The matter is thus  placed before us. 13.             We have heard learned counsel for the parties. 14.             Learned counsel for the appellants strenuously  contended that the judgment and order passed by the  learned Single Judge and confirmed by the Division  Bench of the High Court is contrary to law and  inconsistent with the letter and spirit of the Constitution  (Seventy-third Amendment) Act, 1992 as also against the  Gujarat Panchayats Act, 1993. According to the counsel,  Part IX came to be inserted in the Constitution by  ensuring democracy at the grass root level and by  conferring powers on such local bodies in their day-to- day administration. The High Court committed an error  of law in holding that while exercising administrative  powers under the Act, the District Development Officer  was not required to comply with the orders passed by the  District Panchayat and the President of the Panchayat. It  was submitted that such a view would destroy the  constitutional set up in Part IX. It would also make  Sections 83 and 162 of the Act totally unworkable, otiose  and redundant. It was also argued that the High Court  was not right in placing reliance on Rules framed under  the Act (child legislation) and in upholding the power of  the District Development Officer ignoring clear provisions  of the Act (parent legislation) and the language used in  Section 162 which is  clear, unambiguous and  unequivocal.  15.             It was, therefore, submitted on behalf of the  appellants that the judgment of the High Court deserves  to be set aside by upholding the validity of Resolution  No.6 passed by the District Panchayat and by issuing  necessary directions to the District Development Officer  to obey the said resolution and to act in accordance with  the directions issued thereunder. 16.             The learned counsel for the District  Development Officer, on the other hand, supported the  judgment and order passed by the learned Single Judge  and confirmed by the Division Bench of the High Court.  She submitted that the High Court considered in detail  the relevant provisions of the Constitution as also of the  Act and held that there is difference between President of  the District Panchayat and other representatives of  people (elected members) and the District Development

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 15  

Officer and officials of District Panchayat (administration  wing). So far as policy matters are concerned, the  President of the District Panchayat and elected members  are competent to take appropriate decisions which are to  be implemented by the administrative wing through  District Development Officer and officers of the District  Panchayat. But as far as day-to-day civic administration  and recruitment, appointment, promotion, posting,  transfer, disciplinary proceedings, etc. of officers and  employees of the District Panchayat is concerned, the  Legislature has invested executive and administrative  powers in the District Development Officer. And it is the  District Development Officer who exercises administrative  powers subject to the orders, if any, of the President of  the District Panchayat. The High Court, according to the  counsel, interpreted the relevant provisions keeping in  view the intention of the Legislature and issued  necessary directions which cannot be said to be unlawful  or inconsistent with the provisions of the Constitution or  of the Act. The appeal, therefore, deserves to be  dismissed. 17.             A counter affidavit on behalf of the State  Government is filed by the Development Commissioner  supporting the stand taken by the District Development  Officer. It is contended that the relief claimed by the  appellants that the President and/or the District  Panchayat is required to be consulted for appointment,  transfer, promotion, disciplinary action, etc. of its  employees is ’not warranted’. According to the deponent,  the District Development Officer is a ’statutory office’  conferred with the executive powers of a District  Panchayat. 18.             We have gone through the decision of the  learned Single Judge, confirmed by the Division Bench of  the High Court. Our attention has also been invited by  the learned counsel for the parties to Part IX of the  Constitution, relevant provisions of the Act and Rules  framed under the Act. 19.             So far as Part IX of the Constitution is  concerned, the same has been inserted by the  Constitution (Seventy-third Amendment) Act, 1992.  Article 243 defines various terms used in that Part.  Article 243-B provides for establishment of Panchayats in  every State at the village, intermediate and district levels.  Article 243-C provides for composition of Panchayats.  243-G deals with powers, authority and responsibilities  of Panchayats. It reads as under: 243G. Powers, authority and  responsibilities of Panchayats.\027Subject  to the provisions of this Constitution, the  Legislature of a State may, by law, endow  the Panchayats with such powers and  authority as may be necessary to enable  them to function as institutions of self- government and such law may contain  provisions for the devolution of powers  and responsibilities upon Panchayats at  the appropriate level, subject to such  conditions as may be specified therein,  with respect to\027

(a) the preparation of plans for economic  development and social justice;

(b) the implementation of schemes for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 15  

economic development and social justice as  may be entrusted to them including those in  relation to the matters listed in the Eleventh  Schedule.

20.             It is not in dispute that before Part IX was  introduced in the Constitution, the Gujarat Panchayats  Act, 1961 was in force in the State. After the Constitution  (Seventy-third Amendment) Act, however, the State  Legislature enacted the present Act (Gujarat Panchayats  Act, 1993) to bring the law relating to Panchayats in the  State in conformity with Part IX of the Constitution.  Clause (14) of Section 2 of the Act defines ’Panchayat’  to  mean a village Panchayat, taluka Panchayat or district  Panchayat. Clause (6) of the said section defines ’District  Development Officer’ as such officer as the State  Government may appoint to be a District Development  Officer for the purposes of the Act. ’District Panchayat’ is  defined in Clause (7) as the District Panchayat  constituted under the Act. Part III of Chapter IV relates to  District Panchayats. Section 81 fixes the term of office of  members of District Panchayat and of President and  Vice-President. Section 83 enumerates powers and  functions of President and Vice-President of the District  Panchayat. Sub-section (1) (a) of Section 83 reads thus: (1)(a) The President shall\027 (i)     convene, preside at and conduct meetings  of the district Panchayat; (ii)    have access to the records of the  Panchayat; (iii)   discharge all duties imposed, and  exercise all the powers conferred on him  by or under this Act; (iv)    watch over the financial and executive,  administration of the Panchayat and  submit to the Panchayat all questions  connected therewith which shall appear  to him to require its order; and (v)     exercise administrative supervision over  the District Development Officer for  securing implementation of resolutions or  decisions of the Panchayat or of any  Committee thereof.

21.             Chapter V, inter alia, provides for  administrative powers and duties of officers and servants  of District Panchayats. Section 161 mandates that there  shall be a Secretary for every District Panchayat. It also  states that a District Development Officer posted under  the Panchayat shall be ex-officio Secretary of the  Panchayat. Section 162 is another material provision  prescribing powers and functions of District Development  Officer. The relevant part is sub-section (1) which reads  thus: 162. Powers and functions of District  Development Officer.\027(1) Save as otherwise  expressly provided by or under this Act, the  executive powers of a district panchayat for the  purpose of carrying out the provisions of this  Act, shall vest 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\027

(a) perform all the functions and exercise all

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 15  

the powers specifically imposed or  conferred upon him by or under this Act,  or under any law for the time being in  force; and (b)     lay down the duties of all officers and  servants of the district panchayat.

22.             Chapter XIII (Sections 227-236) makes detailed  provisions relating to services. Section 227 requires  constitution of Panchayat services in connection with the  affairs of Panchayats and clarifies that Panchayat Service  shall be distinct from State Service. It states that the  State Government may by order from time to time  determine the classes, cadres and posts and the initial  strength of officers and servants in the Panchayat  service. Sub-section (5) is important and reads thus:         (5)     Subject to the provisions of this Act,  the State Government may make rules  regulating the mode or recruitment either by  holding examinations or otherwise and  conditions of service or persons appointed to  the Panchayat service and the powers in  respect of appointments, transfers and  promotions of officers and servants in the  Panchayats service and disciplinary action  against any such officers or servants.

23.             Section 230 provides for allocation of officers  and servants to Panchayat service. 24.             The Act enables the Government to make rules  (Sections 227, 228, 235, 236, 274). 25.             In exercise of powers conferred by the Act, the  State Government has framed several rules relating to  services under the Panchayat. The learned Single Judge  referred to those rules and observed that so far as  Panchayat service is concerned, District Development  Officer, Deputy District Development Officer and other  officials are having vide powers in recruitment,  appointment, promotion, transfer, deputation,  disciplinary matters, etc., of employees. 26.             The argument that the view taken by the High  Court has destroyed or considerably eroded  constitutional set up in Part IX of the Constitution has  not impressed us. In our opinion, it cannot be said that  interpretation of various provisions of the Constitution or  the Act has disturbed, truncated or adversely affected the  status of Panchayats guaranteed by the Constitution.  Part IX of the Constitution confers certain powers on  Local Self Government. It promises duration of five years,  free and fair election, representation of Schedule Castes  and Schedule Tribes in the administration of institutions  of Local Self Government, ’no-interference’ by other  organs of the State, including judiciary, etc. In our  opinion, however, the High Court was right in observing  that "a District Panchayat cannot arrogate to itself the  status of a body as independent or autonomous as a  Province in a Federation". Part IX of the Constitution or  Article 243-G makes no change in the essential feature of  the Panchayat organization. What was sought to be done  by the Seventy-third Amendment was that constitutional  status to the Local Self Government was conferred to  District Panchayats, Taluka Panchayats and Village  Panchayats. A State Legislature, in the light of  constitutional provisions in Part IX, cannot do away with  these democratic bodies at the local level nor their

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 15  

normal tenure be curtailed otherwise than in accordance  with law nor State Government can delay elections of  these bodies. 27.             A question similar to one in hand of  interpretation of provisions of the Constitution in Part  IX-A concerning Municipalities came up for  consideration before a Constitution Bench of this Court  in Kishansing Tomar v.  Municipal Corporation of the City  of Ahmedabad and Ors., (2006) 8 SCC 352 : JT 2006 (9)  SC 320. Examining the underlying object of inserting  Part IX-A by the Constitution (Seventy-fourth)  Amendment Act, 1992 and highlighting effective and  meaningful role to be played by local bodies in political  governance of the country, K.G. Balakrishnan, J. (as His  Lordship then was) stated; "The object of introducing these provisions was  that in many States the local bodies were not  working properly and the timely elections were  not being held and the nominated bodies were  continuing for long periods. Elections had been  irregular and many times unnecessarily  delayed or postponed and the elected bodies  had been superseded or suspended without  adequate justification at the whims and  fancies of the State authorities. These views  were expressed by the then Minister of State  for Urban Development while introducing the  Constitution Amendment Bill before the  Parliament and thus the new provisions were  added in the Constitution with a view to  restore the rightful place in political  governance for local bodies. It was considered  necessary to provide a Constitutional status to  such bodies and to ensure regular and fair  conduct of elections. In the statement of  objects and reasons in the Constitution  Amendment Bill relating to urban local bodies,  it was stated: In many States, local bodies have become  weak and ineffective on account of variety of  reasons, including the failure to hold regular  elections, prolonged supersessions and  inadequate devolution of powers and  functions. As a result, urban local bodies are  not able to perform effectively as vibrant  democratic units of self-Government. Having regard to these inadequacies, it is  considered necessary that provisions relating  to urban local bodies are incorporated in the  Constitution, particularly for - (i)     putting on a firmer footing the  relationship between the State  Government and the Urban Local Bodies  with respect to: (a) the functions and taxation powers,  and  (b) arrangements for revenue sharing. (ii)    ensuring regular conduct of elections. (iii)   ensuring timely elections in the case of  supersession; and (iv)    providing adequate representation for the  weaker sections like Scheduled Castes,  Scheduled Tribes and women. Accordingly, it has been proposed to add a new  Part relating to the Urban Local Bodies in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 15  

Constitution to provide for\027 ***                     ***                     *** (f) fixed tenure of 5 years for the  Municipality and re-election within a  period of six months of its  dissolution. The effect of Article 243-U of the  Constitution is to be appreciated in the above  background. Under this Article, the duration of  the Municipality is fixed for a term of five years  and it is stated that every Municipality shall  continue for five years from the date appointed  for its first meeting and no longer. Clause (3) of  Article 243-U states that election to constitute  a Municipality shall be completed - (a) before  the expiry of its duration specified in Clause  (1), or (b) before the expiration of a period of  six months from the date or its dissolution.  Therefore, the constitutional mandate is that  election to a Municipality shall be completed  before the expiry of the five years’ period  stipulated in Clause (1) of Article 243-U and in  case of dissolution, the new body shall be  constituted before the expiration of a period of  six months and elections have to be conducted  in such a manner. A Proviso is added to Sub- clause (3) Article 243-U that in case of  dissolution, the remainder of the period for  which the dissolved Municipality would have  continued is less than six months, it shall not  be necessary to hold any election under this  clause for constituting the Municipality for  such period. It is also specified in Clause (4) of  Article 243-U that a Municipality constituted  upon the dissolution of a Municipality before  the expiration of its duration shall continue  only for the remainder of the period for which  the dissolved Municipality would have  continued under Clause (1) had it not been so  dissolved".  28.             In our judgment, the controversy raised and  interpretation sought to be suggested by the parties as  regards powers of President of District Panchayat on the  one hand and of the District Development Officer on the  other has nowhere affected directly or even indirectly Part  IX of the Constitution. With respect, the question  agitated has no bearing on constitutional set up or status  of Local Self Government. We are, therefore, unable to  agree with the learned counsel for the appellant that the  decision of the High Court impugned in the present  appeal is inconsistent with the provisions of Part IX of  the Constitution.  29.             The learned counsel for the appellant relied  upon Section 83 of the Act, which we have already  referred to. It deals with powers and functions of the  President and Vice-President of the District Panchayat  and, inter alia, states that the President of the District  Panchayat may exercise administrative supervision over  the District Development Officer for securing  implementation of resolutions or decisions of the  Panchayat or of any committee thereof. Inviting our  attention to dictionary meaning of ’administration’ and  ’supervision’, the counsel contended that both the  expressions are of wide amplitude and take within their  sweep all administrative matters which are subject to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 15  

supervisory control of the President. In our view, the High  Court is right  that Section 83 empowers the President to  secure implementation of policy decisions taken by the  elected wing of the District Panchayat by issuing  necessary instructions and directions to District  Development Officer. 30.             The learned Single Judge has explained this  principle by giving an illustration. It was stated that  suppose a primary health centre or a primary school  is to be set up by the Panchayat. In taking such  decision, elected wing of the District Panchayat  would play primary role as that wing is alive to the  needs of the people in the area. If the President  finds undue delay in implementation or improper  implementation of such decision, he may instruct  the District Development Officer to take necessary  steps for securing proper implementation of the  resolution of the Panchayat or the decision of its  Committee. But, once the centre is set up or the  school is established, it is for the District  Development Officer, District Health Officer or  District Primary Education Officer to decide as to  who should be appointed as Doctor in the health  centre or teacher in the school. Such matters must  be left to the administrative wing of the District  Panchayat. 31.             Strong reliance was placed on sub-section (1)  of Section 162 of the Act which enumerates powers of  District Development Officer. It was submitted that  though the said provision relates to powers and functions  of District Development Officer, it states explicitly that  the executive powers of the District Panchayat will be  vested in the District Development Officer who would  exercise such powers "subject to orders, if any, of the  President of the District Panchayat". It was, therefore,  urged that the powers conferred on District Development  Officer are not ’absolute’ or ’unqualified’ but they are  subject to orders of the President of the District  Panchayat. Reading the provision as a whole and the use  of the words "if any", however, clearly suggests that the  power exercisable by the District Development Officer  under the Act is statutory power to be exercised by him.  The executive initiation remains with the District  Development Officer and he need not wait for a ’nod from  the President’ before performing any administrative  function or taking any executive decision within the four  corners of law. 32.             In this connection, we may refer to a decision  of this Court in Syed Bashiruddin Ashraf v. Bihar  Subai Sunni Majlis-e-awqaf & Ors., (1965) 2 SCR  205 : AIR 1965 SC 1206. In Syed Bashiruddin  Ashraf, a Constitution Bench of this Court was  called upon to interpret a similar expression  ("subject to any order by the competent Court")  under Bihar Wakfs Act, 1947. Section 32 of the Act  conferred jurisdiction on the Majlis to make  temporary appointment in the office of the  Mutawalli subject to any order by a competent  Court. It was contended that the Majlis was not  competent to appoint Moulvi on a temporary basis  even if there was a vacancy without obtaining prior  permission of the Court. This Court, however,  negatived the argument and held that the Act  clearly conferred jurisdiction on the Majlis to make  temporary appointments when there was a vacancy

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 15  

in the office of the Mutawalli and the words "subject  to any order by the competent Court" could not be  construed to mean that there ought to be either  prior permission or subsequent assent before the  appointment. The said words denote that the  appointment was to endure according to its tenor  "till an order to the contrary was passed by a  competent Court". 33.             In our considered opinion, the ratio in  Syed Bashiruddin Ashraf applies in interpreting the  provisions of sub-section (1) of Section 162 of the  Act in question. The District Development Officer  who is vested with the executive powers of the  District Panchayat is not required to obtain prior or  even subsequent orders of the President of the  District Panchayat. In individual cases, the  President may direct the District Development  Officer to take appropriate steps for securing  effective implementation of resolutions or orders  passed by the Panchayat or of any committee  thereof. 34.             The High Court also considered an  important aspect that in matters relating to  services under the Panchayats, no express power  has been conferred nor duties imposed on the  President of the District Panchayat or members  (elected wing). The Legislature thus intended  services under the Panchayats to be dealt with  separately by the District Development Officer and  other officials of the Panchayat. It may be recalled  that District Development Officer is Class-I Officer  of the Indian Administrative Service appointed by  the State. He is also ex-officio Secretary of the  District Panchayat. 35.             In A. Sanjeevi Naidu, etc. v. State of  Madras & Anr., 1970 (1) SCC 443 : AIR 1970 SC  1102, this Court had an occasion to consider the  role to be played by Council of Ministers (elected  wing) and Civil Servants (administrative wing).  Keeping in view the democratic governance, the  Court made the following observations:  "The cabinet is responsible to the  legislature for every action taken in any of  the ministries. That is the essence of joint  responsibility. That does not mean that  each and every decision must be taken by  the cabinet. The political responsibility of  the Council of Ministers does not and  cannot predicate the personal  responsibility of the Ministers to  discharge all or any of the governmental  functions. Similarly an individual Minister  is responsible to the legislature for every  action taken or omitted to be taken in his  ministry. This again is a political  responsibility and not personal  responsibility. Even the most hard  working minister cannot attend to every  business in his department. If he attempts  to do it, he is bound to make a mess of his  department. In every well planned  administration, most of the decisions are  taken by the civil servants who are likely  to be experts and not subject to political  pressure. The Minister is not expected to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 15  

burden himself with the day to day  administration. His primary function is to  lay down the policies and programmes of  his ministry while the Council of Ministers  settle the major policies and programmes  of the government. When a civil servant  takes a decision, he does not do it as a  delegate of his Minister. He does it on  behalf of the government. It is always open  to a Minister to call for any file in his  ministry and pass orders. He may also  issue directions to the officers in his  ministry regarding the disposal of  government business generally or as  regards any specific case. Subject to that  over all power, the officers designated by  the ’Rules’ or the standing orders, can  take decisions on behalf of the  government. These officers are the limbs  of the government and not its delegates.                                          (emphasis supplied) 36.             A similar view was expressed recently by this  Court in Tarlochan Dev Sharma v. State of Punjab, (2001)  6 SCC 260 : AIR 2001 SC 2524 : JT 2001 (5) SC 645. 37.             The parties also referred to the "Government  and Bureaucracy in India of 1947-76" by Mr. B.B. Mishra.  The learned author, in that work, stated; "It must, however, be recognized that even the  most dynamic and competent of Minister has  understandable limitations which restrict the  sphere of direct participation in all the  intricate and detailed aspects of  administration. These include the complexities  of a modern Government, the possibility of  frequent changes in the ministerial field, the  frequency of visits to constituencies,  parliamentary preoccupations, and above all,  the technical nature of the various decisions  that have to be made without a thorough  knowledge of connected papers contained in  original files. The Minister’s dependence on his  Secretary necessarily increases in a democratic  set-up. And although his leadership in the  entire sphere of administration is in theory  recognized as all pervasive, the scope of his  actual operation does not go much beyond a  clear understanding and direction of policy  matters, and not a knowledge of details. Thus,  the Maxwell Committee in 1937 laid down a  principle calculated to ensure administrative  efficiency within the frame-work of ministerial  responsibility. The Committee emphasized that  as collective ministerial responsibility  maintained the political unity of Government, so  should the unity of administrative control of  each Department be ensured by concentrating  the responsibility to advise the Minister in one  official, namely the Secretary".                                           (emphasis supplied) 38.             It is evident from the above that there is clear  distinction between elected representatives and civil  servants. Elected representatives of the people at District  Panchayat level will formulate policy and civil servants  will execute it by implementing programmes and policy  decisions. In matters of formulation of policies and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 15  

programmes also, civil servants may make significant  contribution by bringing the relevant data to the notice of  the political executive. Likewise, elected representatives  may inform civil servants about problems and difficulties  of people which can be taken care of by the  administration. But, both the functions are to be  performed by two wings which are different though  interdependent. 39.             We are, therefore, unable to uphold the bald  assertion of the learned counsel for the appellant that the  District Development Officer must exercise statutory  powers conferred on him by the Act only after consulting  the President of the District Panchayat or the President of  the District Panchayat can issue omnibus directions to  the District Development Officer to place all files relating  to recruitment, appointment, promotion, transfer,  deputation, disciplinary action, etc. before him prior to  taking any action in such matters. 40.             It was also urged by the learned counsel for  the appellant that the High Court had committed an  error of law in interpreting and relying on various Rules  framed under the Act and in upholding the power of the  District Development Officer in relation to service matters  under the District Panchayat. It was submitted that it is  settled law that the delegated legislation must be subject  to the parent Act and not vice versa. When the Act itself  provides that the District Development Officer will  exercise powers subject to the order passed by the  President of the District Panchayat, Rules cannot travel  beyond the said provision nor they can be interpreted to  mean that President of the District Panchayat has ’no  place’ in services under the Panchayat. In other words,  the authority of the District Development Officer cannot  be upheld in Panchayat service on the basis of the Rules  framed under the Act. 41.             Now it is true that the Rules (delegated  Legislation) must be consistent with the provisions of the  Act (parent Legislation). But it cannot be said that the  High Court was wrong in referring to those rules while  interpreting the provisions of the Act. Reading the  relevant provisions of the Act and the Rules framed  thereunder harmoniously, it appears to us to be crystal  clear that in the matters of services under the  Panchayats, the Legislature wanted the District  Development Officer and other officials of the District  Panchayats to exercise statutory powers and the High  Court was right in referring to the Rules. 42.             For the foregoing reasons, in our opinion, the  view taken by the High Court cannot be said to be  contrary to law, inconsistent with the provisions of the  Act or infringing Part IX of the Constitution. We see no  infirmity in the judgment and order passed by the  learned Single Judge and confirmed by the Division  Bench of the High Court. The appeal, therefore, deserves  to be dismissed and is accordingly dismissed, however,  with no order as to costs.