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CASE NO.: Appeal (civil)  1895 of 2006

PETITIONER: U.P. Gram Panchayat Adhikari Sangh & Ors.   

RESPONDENT: Daya Ram Saroj & Ors.

DATE OF JUDGMENT: 11/12/2006

BENCH: H.K. SEMA & P.K.BALASUBRAMANYAN

JUDGMENT: J U D G M E N T With C.A. Nos. 1896, 1897, 1898, 1899, 1900, 1901, 1902,  3455, 3523 of 2006, 8302-8313, 8314-8315, 8316, 8317-8319  of 2004, 680, 1083, 1084, 2920 of 2005, 6090 of 2001,  Contempt Petition ( C ) Nos. 114, 141 of 2006.

H.K.SEMA,J

       The Constitution (Seventy-third Amendment) Act, 1992  came into force on 24.4.1993.  The said amendment was  brought into force to give effect to one of the Directive  Principles of State Policy - Article 40 of the Constitution of  India, which directs the State to organise village panchayats  as units of self-government.   Article 40 reads as under:  "Organisation of village panchayats. \026 The State  shall take steps to organize village panchayats and  endow them with such powers and authority as may  be necessary to enable them to function as units of  self-government."

       PART IV of the Constitution deals with ’Directive  Principles of State Policy’.  Article 37 provides that the  provisions contained in this Part shall not be enforceable by  any court, but the principles therein laid down are  nevertheless fundamental in the governance of the country  and it shall be the duty of the State to apply these principles  in making laws.           By 73rd Constitutional Amendment Article 243G was  introduced in the Constitution of India.  Article 243G reads as  under:- "243G.  Powers, authority and responsibility of  Panchayat. \026 Subject 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 \026  

(a)     the preparation of plans for economic  development and social justice; (b)     the implementation of schemes for economic  development and social justice as may be  entrusted to them including those in relation  to the matters listed in the Eleventh Schedule."

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Article 243G, thus, endows the Panchyats with such  power and authority as may be necessary to enable them to  function as institutions of self government.  Such law may  contain provisions for the devolution of powers and  responsibilities upon Panchayats, subject to conditions as may  be specified, with respect to the implementation of schemes for  economic development and social justice as may be entrusted  to them including those in relation to the matters listed in the  Eleventh Schedule of the Constitution. To implement the 73rd Constitution Amendment, the  Uttar Pradesh Panchayat Raj Act 1947 (U.P. Act No. 26 of  1947) (hereinafter ’the Act’) was amended and various  Government Orders were passed.  We shall advert to the  amendment and orders passed thereunder at an appropriate  time.  We have heard S/Sh. Sunil Gupta, P.N. Mishra, Ashok H.  Desai, Rakesh Dwivedi, N.C. Jain, Jawahar Lal Gupta, L.  Nageshwar Rao, M.N. Rao, P.P. Rao, A.K. Ganguli, Arun  Jaitley, Mathai M. Paikdey Dr. Rajiv Dhawan, Raju  Ramachandran, S.K. Kalia,  Ravindra Srivastava, learned  Senior advocates appearing for various  appellants/respondents.  We have also heard other  learned  counsel appearing for different parties.  FACTS         The facts in these appeals have a chequered history,  which we may recite briefly.  By Government Orders (GOs)  dated 12.4.1999, 29.4.1999, 5.5.1999 and 27.5.1999 the  services of the employees of eight Departments were  transferred to the Gram Panchayats.  The employees, so  transferred, were to serve the Gram Panchayats (GPs) as  multi-purpose workers or Gram Panchayat Evam Vikas  Adhikaris (GPVAs).  The aforesaid orders were challenged by  filing Writ Petitions on the grounds of  (i) arbitrariness and (ii)  (executive) interference with the statutory rights of  Government employees under Service Rules made under  Article 309 of the Constitution.  The basic grievance raised  was that whereas in the Parent Department, they were  governed by respective Service Rules framed under Article 309  of the Constitution, they were being transferred to Gram  Panchayats where there were no Service Rules governing the  service conditions and their services became insecure.           On the aforesaid premise, the Govt. by an order dated  27.6.1999 brought up an Ordinance followed by  Amendment  Act (U.P. Act No. 27 of 1999).  Sections 25 and 25-A of the U.P.  Panchayat Raj Act 1947 were substituted by new Sections 25  and 25-A.  Thereafter, by G.O. dated 30.6.1999, the G.Os.  Dated 12.4.1999 and 29.4.1999 were revoked.  On 1.7.1999, a  G.O. was issued transferring the services of 55,548 employees  from eight Departments, including Tube-well Operators (TOs),  from Irrigation Department to the Gram Panchayats for  providing Multi-purpose workers to the Gram Panchayats and  by G.O. dated 26.7.1999 they were re-designated as Gram  Panchayat Vikas Adhikaris (GPVAs).  They were put under the  control of the Gram Panchayats while discharging the  functions of their respective Departments.           Aggrieved thereby, several Writ Petitions, including Writ  Petition No. 33929 of 1999 were filed challenging the  constitutional validity of new Section 25 and Section 25A and  the G.O. dated 1.7.1999.  The High Court, after hearing the  parties, upheld the validity of the Section and G.O. dated  1.7.1999 and held that such employees, transferred as GPVAs,  continue to remain Government Servants and to be governed  by the original and respective Service Rules.  It was held they  are on deputation to Gram Panchyayats.          By G.O. dated 6.6.2001, 10,102 employees of two

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Departments, viz. Irrigation (Seenchpal Canal Div. \026 4782  employees) and Health (Male Health Workers \026 5320  employees) were repatriated to their Parent Departments.   Similarly, on 21.9.2001, 479 employees of Land Development  and Water Resources Department were also repatriated/called  back.           The aforesaid Govt. Orders were challenged by one  Krishna Kant Tewari by filing a Writ Petition in the High  Court.  The learned Single Judge by his order dated 8.1.2002  dismissed the Writ Petition and upheld the G.Os. dated  6.6.2001 and 21.9.2001.  It was held inter-alia that their  original cadres were not dead; they continued in their original  cadres; they had been sent only on deputation to the GPs; they  were merely re-designated as GPVAs; they had never been  absorbed into any new cadre of GPVAs and they could always  be repatriated to their original cadres.           Aggrieved by the order of the learned Single Judge, an  appeal was preferred before the Division Bench being Special  Appeal No. 94 of 2002, which was dismissed by the Division  Bench on 28.1.2002.           Against the order of the Division Bench, a Special Leave  Petition (C) No. 7842 of 2002 was preferred before this Court,  which was dismissed by a three Judge Bench of this Court on  26.4.2002, in which one of us (Sema, J.) was a party.           Legally speaking, the whole controversy about the status  of transferred employees as to whether their service conditions  were well protected under the Rules governing them in the  Parent Department and whether they were permanently  transferred to GPVAs or on deputation has been set at rest  and it has become final.           Thereafter, a G.O. dated 20.7.2004 was again issued for  repatriation of the employees of three Departments, viz.  Agriculture (5322 employees), Cane Development (2593  employees) and Rural Development (6906 employees) [totaling  14821 employees] to their Parent Departments.  A Writ  Petition was filed by Gauri Shanker challenging the G.O. dated  20.7.2004, which was dismissed by the learned Single Judge  on 6.8.2004.  Special Appeal against the order of the learned  Single Judge Bench was dismissed by the Division Bench on  25.8.2004 holding that the transferred employees remained  Government Servants and retained their lien on the posts in  their original Departments and they could always be  repatriated.  Several similar Writ Petitions were also filed by  Subhash Chandra Pande, Braj Kishore, Lal Sahab Singh,  Gram Vikas Adhikari Sangh etc. challenging the G.O. dated  20.7.2004, which were dismissed on 20.8.2004, 15.9.2004,  18.9.2004 and 5.11.2004 respectively.           The present controversy arises from the G.O. dated  19.7.2005 issued to re-transfer all Tube-well Operators and  repatriate the Tube-well Operators as well as part-time Tube- well operators of Irrigation Department to their Parent  Departments under the control of the Parent Departments.   The Order reads:                                  "No.3334/05-27-1-5-31-TW/2005         From,         Smt. Neera Yadav,         Chief Secretary,         Uttar Pradesh Shasan,

       To, 1.      All Divisional Commissioner, U.P. 2.      All District Magistrate, U.P.

Irrigation Section-5    Lucknow Dated 19th July,2005

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Sub: Regarding transfer of all Tube Well Operators/  Part time Tube Well Operators back to Irrigation  Department for proper operation and maintenance  of state Tube Well who had been transferred to  Gram Panchayat.  

Dear Sir,   In reference to the above subject the Government  has taken following decisions with immediate effect  for proper operation and maintenance of state Tube  Wells transferred to Gram Panchayats:-

(1)     All State Tube Wells alongwith their assets may  again be transferred to Irrigation Department  from Gram Panchayats.  

(2)     Tube Well Operators/ Part time Tubewell  Operators of Irrigation Department, who were  transferred as multipurpose employees along  with tubewells on the post of Gram Panchayats  Development Officer under the control of Gram  Panchayats, may be again transferred alongwith  tube-wells back to their substantive posts of  tubewell operators/ part time tube-well  operators and under the control of Irrigation  Departments.  To maintain the control of Gram  Panchayats also on these employees their  monthly attendance be sent to the concerning  officer of the tubewell section by the Chairman  of Water Management Committee.  

(3)     Right of water distribution and management of  tubewell be given to Water Management  Committee constituted for tubewell but in case  of any dispute the decision of Executive  Engineer, tubewell section shall be final.  

(4)     Entry of daily irrigation/delivery of water, daily  filing of jamabandi register and distribution of  irrigation fees along with equipments of  tubewells, water management system, previous  record list, pump efficiency chart, tube-well  repair register and inspection register etc. shall  be maintained and entries therein shall be made  by the Tubewell operator-Part time tubewell  operator, Tubewell mechanic/ Junior Engineer  (Tubewell) as done before.  

(5)     Maintenance expenditure of tubewell and  income expenditure provision for establishment  of tubewell operators/part time tubewell  operator and electrical energy may be made from  the grants of irrigation department as before.  

It is requested to ensure compliance of aforesaid  decision on priority basis.  

Yours, Sd/- (Neera Yadav) Chief Secretary"

The aforesaid G.O. was challenged before the learned  Single Judge by filing Civil Misc. Writ Petition No. 53127 of

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2005.  In the Writ Petition, inter-alia, the contentions raised in  paragraphs 13 and 15 are as under:  "13. That vide Government Order/Notification dated  20.07.2004 a new cadre was created, which  comprised of employees of three Departments i.e.  Gram Panchayat Adhikari, Gram Vikas Adhikari  (Social Welfare) and regular Tube-well Operators.   After creation of new cadre, the petitioners ceased to  be employees of Irrigation Department and their  earlier post of Tube-well Operator stood abolished.   The petitioner became Gram Panchayat Vikas  Adhikari and they were posted in different Gram  Panchayats to work as Gram Panchayat Vikas  Adhikari.

15. That, from perusal of impugned circular dated  19.07.2005 it is obvious that while issuing circular  dated 19.07.2005 the Chief Secretary to the  Government of U.P. did not look at the earlier  Government Order/Notification dated 20.07.2004  which was a decision taken by His Excellency, the  Governor of U.P. by which a new cadre of Gram  Panchayat Vikas Adhikari was created.  The Chief  Secretary totally ignoring the Government Order  dated 20.07.2004 and provisions made therein  which have statutory force, issued impugned  circular without even referring or taking note of the  Government Order dated 20.07.2004.  Thus, the  impugned circular is apparently without application  of mind and arbitrary."

The prayers made in the Writ Petition are as under:  

(A)     "Issue a writ, order or direction in the nature of  certiorari, quashing the impugned circular dated  19.7.2005, issued by the Chief Secretary,  Government of U.P. (Annexure 3 to this writ  petition). (B)     Issue a writ, order or direction in the nature of     mandamus commanding the opposite parties  not to interfere in the working of the petitioners  as Gram Panchayat Vikas Adhikari and to give  the petitioners all consequential service benefits  for which they are found entitled under law. (C)     Issue any other and further suitable writ, order  or direction which this Hon’ble Court may deem  fit and proper in the facts and circumstances of  the case.  (D)     Award the cost of this petition to the  petitioners."

       A perusal of the Writ Petition, particularly paragraphs 13,  15, 16, 17, 18 and 21 discloses that the contention, raised by  the petitioners that by G.O. dated 20.7.2004, a cadre had been  created and after creating a new cadre, the writ petitioners  cease to be employees of the Irrigation Department and the  earlier posts of Tube-well Operators stood abolished and their  order of repatriation, is bad.  A contention has also been  raised that  the petitioners could not be treated as on  deputation in the Gram Panchayats and they be treated as  simple transferees from Irrigation Department to Gram  Panchayat Department.           As already noticed, the G.O. dated 20.7.2004 was  questioned in Gauri Shanker (supra) by employees of three  Departments, viz. Agriculture, Cane Development and Rural

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Development, which was dismissed by the learned Single  Judge and affirmed by the Division Bench.  In the aforesaid  decision, the High Court was of the view that the transferred  employees were actually on deputation to the Gram Panchayat  retaining lien in their Parent Department and, therefore, the  Government is competent to bring them back in their Parent  Department, as and when the necessity arises.           Keeping the aforesaid background in mind, we will now  examine the merits of the Writ Petition filed by the  petitioners/respondents herein questioning the legality of the  G.O. dated 19.7.1999 and the impugned judgment of the  Division Bench of the High Court.           As already noticed, out of the employees of eight  Departments sent to Gram Panchayats as multi-purpose  workers, the employees of Five Departments had been  repatriated by G.Os. 6.6.2001, 21.9.2001 and 20.7.2004,  which were assailed by filing Writ Petitions.  The writ petitions  were dismissed by learned Single Judge, and the orders were  affirmed by the Division Bench of the High Court which had  attained finality as far as a co-ordinate Bench of the same  High Court was concerned.  Having noticed the aforesaid  decision, the learned counsel for the petitioners (respondents  herein) fairly conceded before the learned Single Judge and  noted by the learned Single Judge as under:  "\005..conceded and stated that the petitioners have a  lien with the parent department and that the  petition has not been filed on those grounds on  which this Court had dismissed the earlier  petitions."

       In fact the earlier judgments of the Co-ordinate Bench  were taken note of by the Division Bench in its Judgment as  under:  "It is to be noted that the repatriated workers of the  five departments did not take their repatriation  lying down, those were challenged in the Courts of  law; Writ Petitions were filed and in each and every  case those workers have been unsuccessful.  We  make references to the cases of Krishna Kant  Tripathi, 2002 (1) U.P.L.B.E.C. 256.  Certain other  references would also be found in one of the  judgments under appeal delivered on the 11th of  August, 2005 in Civil Misc. Writ Petition No. 53174  of 2005 and others.  Reference should also be made  to the main case of Gauri Shanker and others Vs.  State of U.P. and others which is a decision given in  Special Appeal No. 1005 of 2004.  The judgment  was delivered on the 25th of August, 2004.  

In each of these cases, the Court laid down that the  repatriated workers have never lost their lien on  their original posts in the different Government  Departments and, as such their repatriation could  not be challenged on any ground.  It was held that  they were doing the work as Gram Panchayat Vikas  Adhikaris no more than as the deputationists.   These decisions are binding decisions on us and we  cannot in any manner decide differently on a point  of law from the decisions given in these cases, we  being also a Division Bench of two Judges.   

       Having noticed as above, the learned Division Bench took  a turn and set at naught the order passed by the Co-ordinate  Bench on the ground that the facts are different.           We do not see any new facts that had arisen to enable

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the learned Division Bench to do so.   JUDICIAL DISCIPLINE         Judicial discipline is self discipline.  It is an inbuilt  mechanism in the system itself.  Judicial discipline demands  that when the decision of a co-ordinate Bench of the same  High Court is brought to the notice of the Bench, it is   respected and is binding, subject of course, to the right to take  a different view or to doubt the correctness of the decision and  the permissible course then often is to refer the question or  the case to a larger Bench.  This is the minimum discipline  and decorum to be maintained by judicial fraternity.             The doctrine of judicial discipline has been succinctly  enunciated by the three Judge Bench of this Court in Kalyan  Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr.  (2005) 2 SCC 42 in paragraph 19 SCC as under:  "The principles of res judicata and such analogous  principles although are not applicable in a criminal  proceeding, still the courts are bound by the  doctrine of judicial discipline having regard to the  hierarchical system prevailing in our country.  The  findings of a higher court or a coordinate Bench  must receive serious consideration at the hands of  the court entertaining a bail application at a later  stage when the same had been rejected earlier.  In  such an event, the courts must give due weight to  the grounds which weighed with the former or  higher court in rejecting the bail application.   Ordinarily, the issues which had been canvassed  earlier would not be permitted to be reagitated on  the same grounds, as the same would lead to a  speculation and uncertainty in the administration of  justice and may lead to forum hunting."

       We have been taken through the entire impugned  judgment of the High Court.  The judgment is full of  inconsistencies.  The Division Bench of the High Court held  that under Section 25 of the Act, there is no provision for  creation of posts.  In the same breadth the High Court also  held that paragraph 4 of the G.O. dated 20.7.2004 created a  new cadre and revived a cadre in the Panchayat.  By the same  breadth, the High Court blew hot and cold.           There is yet another reason as to why the impugned  decision of the Division Bench of the High Court is  unsustainable.  Civil Appeal No. 1900 of 2006 was filed by the  employees of Social Welfare Department against the judgment.   They wanted to go back to their Parent Department.  Civil  Appeal No. 1901 of 2006 was filed by Tube-well Operators  against the same judgment.  They also wanted to go back to  their Parent Department, namely, Irrigation Department.  By  the impugned order, the High Court set aside the order of   repatriation  adversely affecting them without their being  brought on record as party respondents.   They were neither a  party before the Single Bench nor before the Division Bench.  Mr. Ashok H. Desai, learned Senior counsel appearing for  the appellants in C.A. Nos. 1900 and 1901 of 2006 contended  that in these cases the High Court has flouted the settled  principles of natural justice by passing an order adversely  affecting the appellants without hearing them.   In Ishwar Singh Ajai Kumar & Ors. v. Kuldeep Singh  and Ors. 1995 Supp (1) SCC 179, this Court held as under: "It is not disputed by the learned counsel for the  parties that except Ishwar Singh, no other selected  candidate was impleaded before the High Court.   The selection and the appointments have been  quashed entirely at their back.  It is further stated

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that even Ishwar Singh, one of the selected  candidates, who was a party, had not been served  and as such was not heard by the High Court.  We  are of the view that the High Court was not justified  in hearing the Writ Petition in the absence of the  selected candidates especially when they had  already been appointed.  We, therefore, set aside the  judgment of the High Court dated December 8,  1992 and send the case back for fresh decision after  notice to the parties.  The appeals are allowed in the  above terms.  No costs."

       In B. Ramanjini & Ors. v. State of U.P. & Ors. (2002)  5 SCC 533, this Court held in paragraph 19 SCC as under:  "19. Selection process had commenced long back as  early as in 1998 and it had been completed.  The  persons selected were appointed pursuant to the  selections made and had been performing their  duties.  However, the selected candidates  had not  been impleaded as parties to the proceedings either  in their individual capacity or in any representative  capacity.  In that view of the matter, the High Court  ought not to have examined any of the questions  raised before it in the proceedings initiated before it.   The writ petition filed by the respondents concerned  ought to have been dismissed which are more or  less in the nature of a public interest litigation.  It is  not a case where those candidates who could not  take part in the examination had not challenged the  same nor was any public interest, as such, really  involved in this matter.  It is only in the process of  selection and standardization of pass marks that  some relaxation had been given which was under  attack.  Therefore, the High Court ought not to have  examined the matter at the instance of the  petitioners, particularly in the absence of the parties  before the Court whose substantial rights to hold  office came to be vitally affected."

       The same decision was reiterated in Bhagwanti v.  Subordinate Services Selection Board 1995 Supp (2) SCC  663.           Another reason why the decision of the High Court  is  unsustainable is that the High Court held that the Tube-well  Operators can legitimately expect to remain as multi-purpose  Gram Panchayat employees unless the whole concept is totally  done away with.  There is no pleading in the original petition,  not even a whisper, about the legitimate expectation.  It  appears that the High Court, at the appellate stage made  observations which induced  some of the appellants at the last  minute to urge the ground of legitimate expectation which was  permitted and on the basis of it such finding has been  recorded.  Such an approach is not permissible.  See National  Building Construction Corporation v. S. Raghunathan &  Ors. (1998) 7 SCC 66.         The High Court has also directed that the part-time  Tube-well Operators shall be treated as permanent employees  under the same service conditions as the Tube-well Operators  as far as practicable.  This direction runs in the teeth and the  guidelines of the Constitution Bench Judgment in Secretary,  State of Karnataka & Ors. v. UmaDevi (3) & Ors. (2006) 4  SCC 1.   In fact, on this score alone the decision of the  Division Bench of the High Court deserves to be set aside.           We, now proceed to consider the contentions raised by  the respective parties:

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       The principle contention which appears to be common is  that the Tube-well Operators were transferred as a  consequence of transfer of Governmental functions inter-alia  relating to minor irrigation, water management and water- shed development etc. as part of the Constitutional Scheme of  devolution of powers on Gram Panchyats by law as a  permanent measure in order to enable them to function as  units of self-government.  It is argued that this is one of the  basic features of the Constitution of India.  The transfer of  Government employees engaged in discharging the functions  along with the tube-wells was the necessary consequence of  the State Legislature transferring certain functions of the  Government permanently to the Gram Panchayats to achieve  the Constitutional goal.  A sustained bureaucracy was sought  to be created.  Such devolution of powers by law is irreversible.   In any event, it cannot be undone either directly or indirectly  by the Executive which has to function in accordance with the  law, namely the U.P. Panchayat Raj Act, 1947 as amended in  1994 and again in 1999.           This contention, in our view, is not tenable in law.  We  have already said that the 73rd Amendment  was brought into  force on 24.4.93 to give effect to one of the Directive Principles   of State Policy, namely, Article 40 of the Constitution.   Therefore, it cannot be said that the 73rd Amendment of the  Constitution is the basic feature of the Constitution.  Article  40 cannot be said to qualify as the basic feature of the  Constitution.  The 73rd Amendment came to the Constitution  by way of amendment under Article 368 and, therefore, it  cannot be said to be a basic feature of the Constitution.  It is  an enabling provision and the State is empowered either to  eliminate, modify or cancel by exercising power under the  enabling provision.  Article 243G is an enabling provision.   Article 243G enables the Panchayats to function as  institutions of self-government and such law may contain  provisions for the devolution of powers and responsibilities  upon Panchayats, subject to such conditions as may be  specified therein, with respect to the implementation of  schemes for economic development and social justice as may  be entrusted to them including those in relation to the matters  listed in the Eleventh Schedule.  The enabling provisions are  further subject to the conditions as may be specified.   Therefore, it is for the State Legislature to consider legal  conditions and make the law accordingly.  The devolution of  exercise would also be open to the State to eliminate or  modify.  See Constitution Bench Judgment in  M. Nagaraj &  Ors. v. Union of India & Ors. (2006) 8 SCC 212.  Also see  Akhil Bharat Goseva Sangh (3) v. State of A.P. & Ors.  (2006) 4 SCC 162 and Kuldip Nayar and Ors. v. Union of  India & Ors. (2006) 7 SCC 1. where a Constitution Bench of  this Court considered the basic structure  theory in paragraph  107 of the Judgment and held as under: "107. The basic structure theory imposes limitation  on the power of Parliament to amend the  Constitution.  An amendment to the Constitution  under Article 368 could be challenged on the  ground of violation of basic structure of the  Constitution.  An ordinary legislation cannot be so  challenged.  The challenge to a law made, within its  legislative competence, by Parliament on the ground  of violation of the basic structure of the Constitution  is thus not available to the petitioners."

TRANSFER \026 LOCK, STOCK AND BARREL         The contention of the learned Senior counsel for the  respondent that the transfer of the Tube-well Operators from

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Irrigation Department to the Gram Panchayat was lock, stock  and barrel and, therefore, it is a complete and permanent  transfer.  This contention is factually incorrect and misplaced.   In fact, out of 26,117 operators in the Irrigation Department,  only 22329 were transferred and out of that 13,000/- joined  back the Irrigation Department pursuant to the G.O. dated  19.7.2005.  This would also clearly show that they had a lien  with the Parent Department and they had gone back to the  Parent Department.           Mr. P.P. Rao learned senior counsel referred to the case  of State of Mysore   Vs.  R.S. Kasi, (1985) 2 SCC 110 where  this Court held that the constitutional scheme is irreversible.   He has also referred to the case of  S.K. Saha    vs.  Prem  Prakash Agarwal, (1994) 1 SCC 431 where this Court held  that the transfer of entire department along with the posts to a  university is a complete transfer.  He has also referred to the  cases of Bhim Singh   vs.  State of Haryana, (1981) 2 SCC  673 and Jawaharlal Nehru University   Vs.  Dr. K. S.  Jawatkar, 1989 Supp. (1) SCC 679.  In our view, the  aforesaid decisions of this Court cited by learned Senior  counsel have no application in the facts and circumstances of  the case at hand.          Dr.Dhawan learned Senior counsel contended that the  power of the legislature is coupled with duty.  They have a  duty to perform consistent with the constitutional goal.  In this  connection, he has referred to the decisions of this Court in  the cases of Commissioner of Police    vs.  Gordhandas  Bhanji, 1952 SCR 135, Comptroller and Auditor General of  India   vs.  K.S. Jagannathan   (1986) 2 SCC 679 and  Terioat Estates (P) Ltd.   vs.  U.T. Chandigarh (2004) 2 SCC  130.  In the view that we have taken the aforesaid decisions  have also no application in the facts of the present  controversy.  PROPERTY VESTED IN THE GRAM PANCHAYAT       

       It is contended that under Section 34 of the Act, the  property, namely, the Tube-wells were vested in the Gram  Panchayat and by the impugned order the Tube-well  Operators were sought to be transferred back to the Irrigation  Department along with the Tube-wells, which is not  permissible.  Section 34 is in the following terms:  "34. Property vested in [Gram Panchayat]. \026 (1)  Subject to any special reservation made by the State  Government, all public property situated within the  jurisdiction of a [Gram Panchayat] shall vest in and  belong to the [Gram Panchayat] and shall, with all  other property which may become vested in the  [Gram Panchayat], be under its direction,  management and control.                                          (emphasis supplied) (2) All markets and fairs or such portion thereof as  are held upon public land shall be managed and  regulated by the [Gram Panchayat] and the [Gram  Panchayat] shall receive to the credit of the Gaon  Fund all dues levied or imposed in respect thereof."                  Firstly, vesting of the property in the Gram Panchayat  employed in Section 34 would mean the property vested for  the purpose of management and control.  Not that the  property so vested is fastened to the Panchayat and remains  as its property.  Secondly, public property has been defined  under Section 2(mm) of the Act as under:  "Public Property" and "Public Land" mean any  public building, park or garden or other place to  which for the time being the public have or are

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permitted to have access whether on payment or  otherwise."

       Public property, as defined under Section 2(mm) shows it  is referable to public building, park or garden or other place to  which for the time being public have or are permitted to have  free access.           It is common knowledge that a tube-well is handled by a  technician \026 an expert hand.  General public does not have  free access to the tube-well.  They can only have free access to  the water drawn from the tube-well.  In our opinion, therefore,  tube-well does not fall within the scope of public property  referred to in  Section 34 of the Act.   THE BASIC QUESTION FOR CONSIDERATION         The basic question that calls for consideration is the  import and intent of Section 25 of the Act which substituted  the original Section 25 by the U.P. Act No. 27 of 1999 w.e.f.  27.6.1999.         Section 25, as amended in 1999, was in the following  terms:  "25. Staff \026 (1) Notwithstanding anything contained  in any other provisions of this Act, any Uttar  Pradesh Act, rules, regulations, or bye-laws or in  any judgment, decree or order of any Court,-          (a)     the State Government may, by general or special  order, transfer any employee or class of  employees serving in connection with the affairs  of the State to serve under Gram Panchayats  with such designation as may be specified in the  order and thereupon posting of such employee or  employees in Gram Panchayats of a district shall  be made by such authority in such manner as  may be notified by the State Government;

(b)     the employee or employees on being so  transferred and posted in a Gram Panchayat,  shall serve under the supervision and control of  the Gram Panchayat on the same terms and  conditions and with the same rights and  privileges as to retirement benefits and other  matters including promotion as would have been  applicable to him immediately before such  transfer and shall perform such duties as may  be specified from time to time by the State  Government.   

(2) Subject to the provisions of sub-section (1) a  Gram Panchayat may, after prior approval of the  prescribed authority, appoint from time to time  such employees as may be considered necessary for  efficient discharge of its functions under this Act in  accordance with such procedure as may be  prescribed: Provided that the Gram Panchayat shall not create  any post except with the previous approval of the  prescribed authority.  

(3) The Gram Panchayat shall have power to impose  punishment of any description upon the employees  appointed under sub-section (2) subject to such  conditions and restrictions and in accordance with  such procedure as may be prescribed.

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(4) The Gram Panchayat may delegate to the  Pradhan or to any of its Committees, subject to  such conditions and restrictions as may be  prescribed, the power to impose any minor  punishment upon the employees appointed under  sub-section (2).  

(5) An appeal from an order imposing any  punishment on an employee under sub-section (3)  shall lie to such officer or committee as may be  specified by the State Government by notification.

(6)The prescribed authority may, subject to such  conditions as may be prescribed, transfer any  employee referred to in clause (b) of sub-section (1)  from one Gram Panchayat to any other Gram  Panchayat within the same district and the State  Government or such other officer as may be  empowered in this behalf by the State Government  may similarly transfer any such employee from one  district to another.

(7) A Nyaya Panchayat may, with the previous  approval of the prescribed authority, appoint any  person on its staff in the manner prescribed.  The  person so appointed shall be under the  administrative control of the prescribed authority  who shall have power to transfer, punish, suspend,  discharge or dismiss him.

(8) Appeal shall lie from an order of the prescribed  authority punishing suspending, discharging or  dismissing a person under sub-section (7) to an  authority appointed in this behalf by the State  Government."    

       Section 25, thus, clearly discloses that the transfer shall  be made with such designation as may be specified in the  Government Order; transfer and posting in Gram Panchayat  shall be made by such authority in such manner, as may be  notified by the State Government; the transferred employee to  the Gram Panchayat shall be under the supervision and  control of the Gram Panchayat; the service conditions of the  employee shall be on the same terms and conditions and with  the same rights and privileges as to retirement benefits and  other matters, including promotion, as would have been  applicable to him immediately before such transfer; while in  service in Gram Panchayat, they shall perform such duties as  may be specified from time to time by the State Government.   WHETHER IT IS DEPUTATION SIMPLICITER OR  TRANSFER         Apart from the provisions contained in Section 25,  paragraph 9 of the Government Order dated 1.7.1999 further  clarifies the position.  Paragraph 9 as translated (which is  stated to be a correct translation) reads:- "9. Disbursement of salary of all the employees  referred to in Para 4 & 6 and working under the  control of Gram Panchayat would be done by the  departments in the same manner as is being done  at present, but the salary of the next month would  be disbursed on the basis of attendance verification  and monthly report of the Gram Panchayat  Committee concerned.  Deductions would be made

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from the salary of employees who are  unauthorizedly absent."

       There is no dispute that while working under Gram  Panchayats, the Tube-well Operators were continued to be  paid salaries by the Irrigation Department.  They were under  the disciplinary control of the Irrigation Department and also  got promotions in the Irrigation Department.  There is also no  dispute that their service conditions were governed by the  Service Rules  framed under Article 309 of the Constitution.   The expression "Supervision and Control of the Gram  Panchayat" only means to the extent of transfer of supervision  to the Gram Panchayat.  The expression "shall serve under the  supervision and control of the Gram Panchayat" would only  mean supervisory powers and control of the Gram Panchayat.   The overall control of the employee was still with the  Government when Section 25(1)(b) unequivocally provides that  they shall perform such duties as may be specified form time  to time by the State Government.  This would clearly show  that they were working under the supervisory control of Gram  Panchayat keeping lien with the Parent Department, which is  the Irrigation Department.  It is clear that they were sent on  deputation.          Section 25(1)(b) was clearly intended to safeguard the  service conditions of the employees working under Gram  Panchayats.  

WHETHER IT IS TRANSFER?

       The next question to be considered is whether they were  under transfer as visualized under Section 1(a) of Section 25 of  the Act.          It is contended by Senior counsel for the respondents  that it cannot be termed as deputation, because, to be on  deputation, tri-partite consent is necessary, namely, that of  the lending Department, the borrowing Department and the  employees.           We are unable to accept this contention for more reasons  than one.  Firstly, the respondents (writ petitioners) did not  protest on their being sent to the Gram Panchayats.  They   accepted the transfer  with conditions without demur knowing  fully well their rights and obligations.  They  also accepted the  terms and conditions of Section 25 of the Act, as quoted  above.  No protest, whatsoever, was raised either by the  employees or by Gram Panchayats.  It is not the case of the  respondents nor of the Gram Panchayats that the transfers  were made against their consent despite protests.  It is, in  these circumstances, that the consent is implied.  The  expression "Transfer" employed in Section 25, in our view, is a  misnomer.          It is true that the language used in Section 25 is  "Transfer", but one has to read the Section as a whole, to get  the real meaning.  The pay and allowances are paid by the  parent department.  Their service conditions are governed by  the Service Rules in their respective Parent Departments  framed under Article 309 of the Constitution.  The over all  control was vested in the respective Departments.  It is also  true that in the Govt. Order various expressions have been  used like transfer, repatriation, dead cadre etc., which have  been subsequently clarified in the counter of the Government.   Hundred errors do not make one right.  By reading Section 25  as a whole and understanding the language employed therein,  it is clear that the employees of various Departments were sent  to gram-panchayats on deputation pure and simple.  They  kept their lien in their respective Departments.  This is the

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correct reading of the Section and nothing more.  This is also  true to their own knowledge when they were sent to Gram  Panchayats.  This is the reason why the employees of five  Departments were sent back to their Departments and they  joined their own Department without any protest. This is also  the reason why even a section of Tube-well operators would  like to go back to the Parent Department, the Irrigation  Department.  They are equally aggrieved by the impugned  order of the High Court and have preferred Civil Appeal No.  10091 of 2006.   That they were sent to Gram Panchayats purely  temporarily and on deputation till the Gram Panchayats  themselves make appointments is also clear from the language  employed in Section 25(2) of the Act.

We, accordingly, hold that the expression ’Transfer’ is  used in Section 25 loosely.  They were actually sent on  deputation keeping their lien with their Parent Departments.

Once we hold that the respondents were on deputation to  Gram Panchayats, the position of deputation in service is well  settled by a catena of decisions of this Court.  Avoiding  multiplicity, we refer to  Kunal Nanda v. Union of India and  another (2005) 5 SCC 362 as under:  "The basic principle underlying deputation itself is  that the person concerned can always and at any  time be repatriated to his parent department to  serve in his substantive position therein at the  instance of either of the departments and there is  no vested right in such a person to continue for long  on deputation or get absorbed in the department to  which he had gone on deputation."

       We may also dispose off one contention of Dr. Rajiv  Dhawan, learned Senior counsel despite our holding that the  respondents were sent on deputation and not on transfer.   According to Dr. Dhawan,  reading Section 25(a)  and Sections  25(6) conjunctively, the State Government is empowered to  transfer any such employee only from one District to another  or from one Panchayat to another.  According to him,  therefore, the State is incompetent to pass an order to transfer  them back to the Irrigation Department.  We are unable to  accept this submission.  Sub-section 6 does not take away the  general power of transfer as it is understood in the language  used.  What is intended by sub-section (b) is that apart from   the general power of transfer as visualized in Section 25(a), the  State Govt. will also be empowered to transfer the employee  from one District to another District so long as he remains  under the control of Panchayat.  Sub-section(6), therefore,  does not take away the general power of the Government of  transfer/repatriation of the respondents from Gram  Panchayats to the Parent Departments.         In the view that we have taken, the judgment and  order  of the Division Bench dated 8.2.2006 is not sustainable in law.   The judgment and order of the Division Bench quashing G.O.  dated 19.7.2005, 25.1.2006 and 8.9.2005; the direction that  the Tube-well Operators and part-time Tube-well Operators  are  inextricably connected with the cadre of Gram Panchayat  Vikas Adhikari;  the direction that the Part-time Tube-well  Operators shall be treated as permanent employees are all  hereby, set aside.  The order of the learned Single Judge dated  11.8.2005 is restored.  The C.W.P. No. 53127 of 2005 stands  dismissed.  The Government Order dated 19.7.2005 with all  consequential orders passed thereunder is restored. We also noticed that the Division Bench of the High

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Court has quashed the Orders dated 8.9.2005 and 25.1.2006,  which are not the subject matter of the writ petition.  The High  Court order to that effect is also set aside.  The Government  Orders dated 8.9.2005 and 25.1.2006 are restored.  The employees are directed to go back to their Parent  Department and resume duties within two weeks from today.          The net result is Civil Appeal Nos. 1895/06, 1896/06,  1897/06, 1898/06, 1899/06, 1900/06, 1901/06, 1902/06,  3455/06, 3523/06 are allowed.   Civil Appeal Nos. 8302- 8313/04, 8314-8315/04, 8316/04, 8317-8319/04, 1083/05,  1084/05, 2920/05, 680/05 and 6090/01  are dismissed.  Contempt Petition Nos. 114 & 141 of 2006  are  discharged.  No order as to costs.