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S. Dayal and anr. Vs. Ambalal Kuberdas Patel - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal No. 118 of 1972
Judge
Reported inAIR1975Guj194
ActsGujarat Panchayats Act, 1962 - Sections 155, 155(2), 203, 203(3), 206, 206(2) and 207; Gujarath Panchayat Service (Discipline and Appeal) Rules, 1964 - Rules 4 and 63; Bombay Primary Education Act, 1947 - Sections 24
AppellantS. Dayal and anr.
RespondentAmbalal Kuberdas Patel
Appellant Advocate D.V. Shah and; S.T. Zumkhavala, Advs.
Respondent Advocate N.H. Bhatt, Adv.
Cases ReferredIn Pretty v. Solly
Excerpt:
service - removal - sections 155, 155 (2), 203, 203 (2), 206, 206 (2) and 207 of gujarat panchayats act, 1962, rules 4 and 63 of gujarat panchayat service (discipline and appeal) rules, 1964 and section 24 of bombay primary education act, 1947 - whether district development officer (ddo) had jurisdiction to take disciplinary action under rules 1964 - section 203 (3) provides for making rules in case of disciplinary action against panchayat servant by state government - such rules be subject to provisions of act - sections 155 (2) and 206 (2) given statutory guarantee of conditions of service - such statutory protection not be nullified by any rule or regulation - rule making power subject to provisions of sections 155 (2) and 206 (2) - held, ddo had no jurisdiction to pass order removing.....j.b. mehta, j.1. the district development officer and the ahmedabad district panchayat, hereinafter referred to as 'the panchayat', have filed this appeal as the learned single judge quashed the order of the district development officer removing the petitioner on august 21, 1971, and gave a declaration that he continued in service and was entitled to all emoluments and other benefits arising from his said appointment. the respondent originally joined service as a clerk in july 15, 1941, and thereafter he was made assistant accountant in the ahmedahad district school board from december 2, 1961. the gujarat panchayats act, 1961, hereinafter referred to as 'the panchayat act' came into farce from april 1, 1963 under which the ahmedabad district school board was dissolved. therefore, the.....
Judgment:

J.B. Mehta, J.

1. The District Development Officer and the Ahmedabad District Panchayat, hereinafter referred to as 'the Panchayat', have filed this appeal as the learned Single Judge quashed the order of the District Development Officer removing the petitioner on August 21, 1971, and gave a declaration that he continued in service and was entitled to all emoluments and other benefits arising from his said appointment. The respondent originally joined service as a clerk in July 15, 1941, and thereafter he was made Assistant Accountant in the Ahmedahad District School Board from December 2, 1961. The Gujarat Panchayats Act, 1961, hereinafter referred to as 'the Panchayat Act' came into farce from April 1, 1963 under which the Ahmedabad District School Board was dissolved. Therefore, the petitioner was allocated to the District Panchayat from August 1, 1963, by the order, dated July 8, 1966, The D.D.O. transferred the petitioner to Agricultural branch under the District Panchayat and that too as senior clerk in the lower grade of Rs. 145-8-185 although his pay scale as Assistant Accountant in the school board was Rs. 145-8185-10-195. The petitioner therefore filed Special C. A. No. 1524 of 1969 in this Court challenging the transfer order. In that petition an assurance was given that the petitioner's seniority would not be affected. His emoluments were also maintained. Thereafter he was sought to be further transferred after the withdrawal of this petition on January 17, 1970 as senior clerk in the Panchayat service. The petitioner did not join service to this new post on the ground that that was not equivalent post and, therefore, disciplinary action was taken against the petitioner and he was finally removed for his misconduct by the impugned order of the D.D.O. on August 21, 1971. This order having now been quashed by the learned Single Judge, the DD.O. and the Panchayat have filed this appeal.

2. Mr. Shah has raised four points in this appeal:-

(1) that the petitioner being finally allocated to Panchayat service, under Section 203 it was only D.D.O. that had jurisdiction to take disciplinary action under the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1964, hereinafter referred to as 'the Rule';

(2) That the scheme of Sections 131, 142, 143, 155, 203, 206 and 207 make it clear that the present scheme overrides Section 24 of the Bombay Primary Education Act, 1947, hereinafter referred to as the 'Primary Education Act', and in any event, there is clear legislative intent that there is implied repeal of S. 24 (1);

(3) That Rule 4 was not applicable in the present case so as to save the alleged rights of the petitioner under Section 24;

(4) That in any event, as the Panchayat had decided to abolish this post, the petitioner could not be deemed to be one who was maintained as a staff member under Section 20 of the Primary Education Act who can be dealt with by the Administrative Officer.

3. At the outset we would consider the relevant scheme of the two Acts. The Primary Education Act has been enacted, as stated in its preamble, to secure the development and expansion of primary education, it being a declared policy of the Government to reach universal, free and compulsory primary education by a definite programme of progressive expansion. Therefore, this Act was enacted to make better provision for the management, expansion and control of primary education in the State. Under Section 2 (1) Administrative Officer was defined as an officer appointed under Sections 21 and 22. Under Section 2 (10) District School Board was defined as a school board constituted for a district under Section 3. Under Section 2 (19), the school board was defined as a district school board or a municipal school board, as the case may be.

Under Section 3 (1) it is provided that there shall be a school board for each district. Under Section 11, the school board is made a corporate entity. Under Section 13 powers, duties and functions of the school board are provided, wherein Section 13 (2) (d) provides for the duty to maintain adequate staff of Assistant Administrative Officers, supervisors, attendance officers, clerks, teachers, inferior servants and other staff as may in the opinion of the State Government be necessary. This is made subject to the provisions of the Act and the Rules made there under and so far as it (sic) of the Primary Education fund would permit. The administrative machinery is laid down in Chapter V. Section 20 (1) provides that every school board with the approval of the State Government and every authorised municipality shall maintain an adequate staff of Assistant Administrative Officers, supervisors, officers, attendance clerks, primary school teachers and inferior servants and other staff as may in the opinion of the State Government be necessary for the administration, management and control of approved schools within its area Under Section 20 (2) the staff maintained under sub-section (1) shall be servants of the district school board or of the authorised municipality, as the case may be, and shall receive their pay, allowances, gratuities and pensions from its primary education fund. Under Section 20 (3) the rates of allowances and terms of employment in respect of the members of the staff so maintained shall be fixed from time to time by the State Government. Under Section 20 (4) the State Government may from time to time prescribe the duties to be performed by the staff maintained under sub-section (1). Section 21, which is material provides.

(1) For every school board there shall be an Administrative Officer. He shall be the chief executive officer of the board, and his powers and duties shall be as prescribed.

(2) The Administrative officer shall be appointed and shall be a servant of the State Government. He shall draw his pay and allowances from the State revenues.

Section 22 (1) enacts that notwithstanding the provisions of Section 21, the State Government may by notification in the official gazette delegate the power to appoint an Administrative Officer to an authorised municipality, Section 2.3 deals with the staff selection committee which shall consist of the educational inspector of the district or any other officer designated by the Director and whose secretary shall be the administrative officer. section 24, which is material for our purpose, lays down the powers of the Administrative Officer over school board staff, as under:-

'(1) The Administrative Officer shall have Tower, subject to such general instructions as may be issued from time to time by the Director, to promote, transfer and take all disciplinary action (including removal or dismissal) against the staff maintained under Section 20.

(2) Any person aggrieved by an order of dismissal, removal, reduction or any other order involving disciplinary action made under sub-section (1), may submit an appeal to a tribunal, consisting of the chairman of the school board and the Educational Inspector of the district. The Tribunal shall follow the prescribed procedure for the disposal of its business. In the event of a difference of opinion, between the members of the Tribunal the appeal shall be referred to the, Director, whose decision shall be final'.

Section 24 (4) provides for revisional jurisdiction, in cases of disciplinary action -against the staff to be exercised by the State Government. Section 63 provides. for the power to make rules and Rule 63 provides for the powers and duties with regard to the staff of a district school board or authorised municipality. Under Rule 63 (2) the Administrative Officer has the power to supervise, control and coordinate the work of the staff maintained by the district school board under section 20 of the Act, to confirm, promote, transfer, censure, fine, withhold increments of, reduce, suspend, remove or dismiss any member of such staff, subject to such general instructions by the Director in this behalf, provided that no order or reduction, removal or dismissal shall be passed unless an enquiry has been made into the conduct of such members by the Administrative officer or by a person authorised by him in this behalf in accordance with the -procedure laid down in the Bombay Civil Service Conduct, Discipline and Appeal Rules.

4. When the Panchayat Act came into force on April 1, 1963, the functions of the school board stood transferred to the Panchayats in terms of the express provision made in the Panchayat Act in Section 155. That material provision of the Panchayat Act dealing with the cessation of the district school board and the consequences which would ensue, is as under:-

'155 (1) Notwithstanding anything contained in the Bombay Primary Education Act, 1947, and the Saurashtra Primary Education Act, 1956, or any other corresponding law for the time being in force, on and with effect from such date as the State Government may by notification in the official gazette appoint (hereinafter referred to in this chapter as 'the said date') every district scho6l board constituted under the Bombay Primary Education Act, 1947, or as the case may be, the Saurashtra Primary Education Act, 1956, (hereinafter referred to in this Chapter as 'the relevant Act') functioning immediately before the said date (hereinafter referred to in this chapter as 'the existing school board') shall stand dissolved and on such dissolution, the following consequences shall ensue, that is to say.

(a) the chairman, vice-chairman and other members of the existing school board shall be deemed to have vacated their office;

(b) the Powers exercised and the functions and duties performed by the existing school board in the local area for which it was functioning immediately before the said date shall be exercised and performed by the taluka panchayats and the district panchayat functioning in that local area in accordance with the order made by the State Government under sub-section (2) (hereinafter referred to in this section as 'the said order'),

(c) all primary schools with their lands, records and equipment and ,other properties, movable and immovable vesting in, held by or under the control of the existing school board immediately before the said date shall vest in, be held by or be under the control of the taluka panchayats and the district panchayat in accordance with the distribution made in that behalf under the said order.

(d) the assets, rights and liabilities of the existing school board shall stand transferred to the taluka panhayats and the district panchayats in accordance with the distribution thereof made under the said order.

(e) the employees of the existing school board shall stand transferred to the panchayats and the district panchayats in accordance with the distribution made in that behalf and on such terms and conditions as may be provided in the said order.

Provided that the terms and conditions of service of any such employee shall not be less favorable than those applicable to him while in service of the existing school board :

Provided further that nothing in this clause shall entitle any employee to claim the same cadre or designation on such transfer. (2) For giving effect to the proviso of sub-section (1), the State Government having regard to the Panchayat Functions List, shall by an order published in the official gazette provide for-

(a) the distribution of -powers, functions and duties of the existing school board under the relevant Act and of the assets, rights, liabilities of the existing school board, and of the properties vested in, held by or under the control of the employees of the existing school board, among the taluka panchayats and the district panchayat.

(b) the saving of anything done or any action taken by the existing school board before the date

(c) and continuance and disposal of pending proceedings;

(d) all incidental, consequential and supplementary matters as may be necessary to give effect to the provisions of sub-section (1) and for the proper and just distribution of assets, rights and liabilities between taluka panchayats and the district panchayat; and

(e) the adaptation and modifications of the relevant Act, or of any other law whether by way of repeal or amendment as may be necessary to give effect to the provisions of subsection (1).'

Therefore, Section 155 (1) has not only dissolved the district school board as -a corporate entity under the Primary Education Act but it has made provision in Section 155 (1) (b) that the powers exercised and the functions and duties performed by the existing school board shall be exercised and -performed by the district panchayat functioning in that local area of the district school board in accordance with the State Government order published under Section 155 (2). Section 155 (1) (c) deals with the vesting of properties of the schools and sub clause (d) deals with the transfer of as sets, rights and liabilities. Sub-clause (e) provides that the employees of the existing school board shall stand transferred to the district panchayat in accordance with the distribution made in that behalf and in accordance with the terms and conditions laid down in the order published under Section 155 (2). The first proviso is that the terms and conditions of service shall not be less favourable than those which were applicable to such employees while in service of the existing school board, and second proviso enacts that nothing in the clause would entitle any employee to claim the same cadre or designation on such transfer. The order contemplated by Section 155 (2) which is passed by the State Government having regard to the Panchayat Functions List is for giving effect to the statutory provision made in Section 155 (1). Under clause (a) such an order has to lay down the mode of distribution of powers, functions and duties and to provide for transfer of the assets, rights and liabilities of the existing school board and for the transfer of the employees of the existing school board to the concerned Panchayat. Clause (d) which is material for our purpose, provides that such an order may also Provide for the adaptation and the modification of the relevant Act or of any other law whether by way of repeal or amendment as may be necessary to give effect to the provisions of sub-section (1). Therefore, the legislature by its own mandate in Section 155 (1) has delegated powers to the State Government to issue an order for implementing this statutory provision of dissolution of the district school board and transfer of its functions and its employees to the district panchayat under Section 155 (1) and such an order is given force of law by in terms enacting in Section 155 (2) (d) that for giving effect to the provisions of See. 155 (1) necessary adaptations and modifications can be made by the State Government in the Primary Education Act or of any other law by way of repeal or amendment. In Jayantilal Amratlal v. F. N. Rana, AIR 1964 SC 648 at p. 658, their Lordships in terms considered the effect of such entrustment by the legislature of the authority to make such consequential amendments in law. in that case such executive Power was exercised by the Central Government under Article 258(1) under which a blanket Provision was made enabling the President by a notification to exercise power which the legislature could exercise by legislation to entrust functions to the officer to be specified in that behalf by the President and subject to the conditions prescribed thereby. Therefore, their Lordships held that once a presidential notification was issued substituting for the expression to appropriate Government', the words, 'appropriate Government or Commissioner of the Division having territorial jurisdiction over the area in which the land is situated', the Land Acquisition Act was deemed to be Portent to amended and such an amendment in the Land Acquisition Act was by force of law. This type of order was not a purely administrative order. Such an order issued under the legislative mandate even if issued by an Executive Authority was in effect exercise of legislative power and, therefore, in substance it modified or added to this statute which had the force of law. That is why the present order which has been issued on April 1. 1963, under Section 155 (2) has added the new relevant Section 70 in the Primary Education Act as under:-

'70. (1) Subject to the provisions of sub-section (3) in this Act, except in Sections 2 (10), 3 (1), 4, 5, 6, 6-A, 7, 7-A, 8, 9, 9-A, 10, 10-A, 11, 14, 41 (1), 42, 43, 44 (2) (d) and 57 all references to a District School Board shall be, with effect on and from the lst April, 1963, constructed as references to a taluka panchayat or district panchayat constituted under the Gujarat Panchayats Act, 1961 according as the powers, functions and duties of a District School Board vest in the taluka panchayat, or as the case may be, district panchayat in accordance with an order made under sub-section (2) of Section 155 of the Gujarat Panchayats Act, 1961, hereinafter referred to as the said order'.

(2) In Section 12, sub-section (2), for the words 'every district school board' substitute the words, 'such taluka panchayats in a district or as the case may be. such district panchayat as the State Government may determine having regard to the distribution of powers, functions and duties between taluka panchayats and district panchayat under the 'said order'.

(3) Notwithstanding anything contained in Section 155 of the Gujarat Panchayats Act, 1961, the provisions contained in Sections 2 (10), 3 (1). 4, 5, 6, 6-A, 7, 7-A, 8, 9, 9-A, 10, 10-A. 11, 14, 41 (1), 42, 43, 44 (2). (d) and 57 shall not apply to a taluka Panchayat or as the case may be a district panchayat, exercising the Divers and performing the functions and duties of a district school board under this Act.'

The order also provides in clause (1) that the powers exercised and the functions and duties performed under the Bombay Primary Education Act, 1947, by each district school board so dissolved (hereinafter referred to as 'the dissolved school board', in the local area for which it was functioning immediately before the said date shall be exercised and performed by the taluka panchayats; and district panchayat functioning in that local area in accordance with the distribution of powers, functions and duties between such taluka panchayats and district panchayats specified in Schedule I appended thereto. Clauses (2) and (3) make provision for the vesting of the Property in the district panchayat and transfer of assets and liabilities to the District Panchayat. Clause (4) which is material Provides as under:-

'(4) The employees of the dissolved school board shall be transferred to the taluka panchayats and the District Panchayat functioning in that local area in the manner specified in Schedule IV appended hereto on the same terms and conditions of service as were immediately before the said date applicable to them while in service of the dissolved school board.'

Section 70, which is the amendment introduced by this order of the State Government issued under Section 155 (2), in terms provides in clause (1) that except for the sections enumerated therein, all references to a District School Board with effect on and from the 1st April, 1963, shall be construed as references to ......... a district panchayat. That is why in Section 70 (3) it is in terms enacted that notwithstanding anything contained in Section 155 of the Act, the provisions contained in the sections enumerated therein, shall not apply to a taluka Panchayat district panchayat exercising like Powers and performing the functions and duties of a district school board under the Act . Those sections which are made inapplicable are Section 2 (10) defining 'district school board' as one constituted under Section 3, Sections 3 (1), 4, 5, 6, 6-A, 7, 7-A. 8, 9, 9-A, 10, 10-A, dealing with the constitution of the district school board, Section 11 which had made the school board a corporate entity. Section 14 which deals with the relinquishment of the powers and duties of the district school board, Section 41 (1) and Section 42 which deal with payments to be made by the district school board and the contribution by the State Government, Section 43 which deals with the school board budget, Section 44 (2) (d) which Provides for certain Portion of the district school board income as fixed by the State Government to be paid into primary education fund and Section 57 which deals with the dissolution of the district school board and its reconstitution on alteration of the limits of the district. They are the provisions which by their very nature would become inapplicable, once the district school board as a corporate entity is dissolved. That is why all the other -provisions, except those enumerated provisions which by their very nature become inapplicable in the changed set up, when the Panchayat Act transferred the functions of the district school board to the said Panchayat are continued, including the relevant provisions of the administrative machinery in Chapter. The powers, duties and functions of the District School Board which as per the provisions in Section 13 included the duty to maintain staff under Section 13 (2) (d) read with Section 20, and the pro visions regarding the pay, allowances and emoluments and other terms of employment of that staff maintained under Section 20 (1) who were the servants of the district school board and the provision in Section 44 (1) regarding the maintenance of Primary education fund and particularly continuance of Section 21 (1) would show that the same administrative machinery is continued, even when the functions of the District school board are transferred to the District Panchayat be cause in Section 21 (1) we have to read the reference to the District School Board as reference to the District Panchayat, and for which also, therefore, for the purpose of the Primary Education Act there is a writ of the Chief Executive Officer provided viz., the Administrative Officer with the prescribed powers as laid down in Rule 63. It is true that Mr. Shah had argued that the reference in Section 20. (1) is not to the District School Board but to the School Board. In this contention Mr. Shah ignores statutory definition which is provided in Section 2 (19) that the school board means a District School Board or a Municipal School Board. as the case may be. Therefore, the reference in Section 21 (1) to the District School Board has to be interpreted by reason of Section 70 (1) as reference to the District Panchayat, and there is no escape from the conclusion that the District Panchayat has for the purpose of these -powers, functions and duties under Section 155 (1) of the existing District School Board to maintain the Chief Executive Officer with the Prescribed Powers and duties as the Administrative Officer. Another essential feature of Section 21 (2) is that the Administrative Officer has to be appointed by the State Government and he is to be, a servant of the State Government drawing his Pay and allowances from the State Government. This provision is the key provision for the control of the State Government in the matter of Primary education and that is why it is enacted that the Chief Executive Officer in the District Panchayat while he is exercising these functions, i.e., the Administrative Officer shall continue to remain the State Government servant so that the State control remains completely effective and the administration remains in the hands of this statutory officer who is given various powers in respect of the staff required to be maintained under Section 20 (1). In that context Section 24 (1) would have material bearing as it is the Administrative Officer who has power to transfer and to take disciplinary action against the staff maintained under Section 20 and against the order of the statutory officer including one of disciplinary action, the provision is made of an appeal to the independent Tribunal consisting of the chairman of the school board and the educational inspector in Section 24 (2). There is also a revisional jurisdiction conferred on the State Government itself under Section 24 (4). It is this scheme which must be borne in mind to find out what the legislature has achieved by the delegation when it contemplated the dissolution of the District School Board and transfer of its functions from the District School Board to the District Panchayat. Not only the employees obtained statutory guarantee under this clause (4) of the order that on transfer to the District Panchayat they would have the same terms and conditions of service as they were existing immediately before April 1, 1963. While they were in the service of the dissolved school board, but that the salutary provisions for security of that service were also kept intact by in terms continuing the existing provisions, by enacting the statutory guarantee in Section 70 to the effect that all these remaining provisions shall continue to apply even when the functions of the District School Board had been on its dissolution transferred to the relevant panchayat. In view of this statutory guarantee of continuance of the same terms and conditions of service and of the continuance of the relevant provisions especially in Sections 21 and 24, it is obvious that Rule 63 in the Panchayat Education Act would be clearly applicable and ii would be the Administrative Officer who alone would have the jurisdiction to Pass orders as regards disciplinary action, including the removal, against the petitioner, who was admittedly a person on the staff maintained under Section 20 (1) The petitioner stood transferred to this District Panchayat in the manner specified in Schedule IV, where clearly ministerial staff has been in terms specified The Note in Schedule IV mentioned that the posting and allocation orders of the above personnel would be made and issued by the Government under Sections 206, 207 and 321 of the Panchayats Act, Therefore, if this statutory transfer has carried the guarantee of this relevant condition and has kept these conditions intact, on a plain reading of Section 155 it could never be urged that disciplinary action against this transferred employee in violation of the plain terms of the statutory guarantee could be by any person other than the Administrative Officer, in accordance with the relevant Rule 63. Such an action by any other officer would deprive an employee of his statutory right under Section 24 (2) of appeal to another independent Tribunal created under Section 24 (2). That is the view which has been rightly accepted by the learned Single Judge and which is now sought to be assailed on the aforesaid four grounds by Mr. Shah. As regards the first contention of Mr. Shah, it would be relevant to refer to the relevant provisions of the Panchayats Act in this connection. Section 131 deals with the constitution of the various Panchayat committees and its powers, functions and duties. It provides for education committee in Section 131 (10) which in the discharge of its functions shall exercise all the powers and discharge the duties of the Panchayat. Chapter XI deals with the provisions relating to services. Section 203 (1) provides that for bringing about uniform scales of pay and uniform conditions of service for persons employed in the discharge of functions and duties of panchayats, there shall be constituted a panchayat service in connection with the affairs of panchayats which shall be distinct from the State service. Sub-clause (2) provides that the Panchayat service shall consist of such classes, cadre and posts and the initial strength of officers and servants in each such class and cadre shall be such as the State Government may by order from time to time deter mine; provided that nothing in this sub section shall prevent a District Panchayat from altering, with the previous approval of the State Government, any class or cadre or number of posts so determined by the State Government. Under Section 203 (3) it is provided that subject to the provisions of the Act, the State Government may make rules regulating the mode of recruitment either by holding examinations or otherwise and conditions of servants appointed to the panchayat service and the powers in respect of appointments, transfer and promotions of officers and servants in the Panchayat Service and the disciplinary action against any such officers or servants. S. 205 pro vides that subject to the rules made under Section 203 appointments to the posts in the Panchayat service shall be made.

(i) by direct recruitment,

(ii) by promotion, or

(iii) by transfer of a member of the State service to the Panchayat service,

Section 206 (1) (ii) Provides that the State Government shall by a general or special order allocate to Panchayat service all officers and servants in the service of the District Local Boards and District School Boards immediately before the dissolution under the Act and transferred to the Panchayats under Section 155 . ...... Section 2,06 (2) then Provides that the officers and servants allocated to the Panchayat service under Sub-section (1) shall be taken over by such panchayats . In such cadre and on such tenure, remuneration and other conditions of service as the State Government may by general or special order determine:

Provided that the conditions of service of any such officer or servant shall not be less favourable than those applicable to him immediately before such allocation, and

Provided further that nothing in the aforesaid proviso shall entitle an officer or servant to claim the same cadre and designation which he had before allocation.

Section 206-A (1) provides as under:-

'Notwithstanding anything contained in Section 206, the allocation to the Panchayat Service made under Section 206 of officers or servants allotted or transferred to a Panchayat under Section 157 or 158 shall initially be Provisional and it shall be lawful for the State Government to review their allocation within a period of four years from 1st April,'1963. ............

Under Section 206-A (2) an officer or servant who is not reallocated under sub-section (1) and continues in the Panchayat service immediately before the expiry of the aforesaid Period of four years shall be deemed to be finally allocated to the Panchayat service. Section 207 (1) provides for the posting under panchayats of officers and servants in State service. It is under this provision that the Administrative officer who under Section 21 (2) was-the person appointed by the State Government is Posted on deputation to the Panchayat service and he is mentioned in Schedule IV of the State Government order under Section 155 (2). Section 211 (3) (a) provides that in addition to the District Panchayat Service Selection Committee the State Government may appoint in each district a District Primary Education Staff Selection Committee for the recruitment of primary teachers and such other staff in connection with the primary education as may be prescribed.

6. These -provisions would show that while constituting Panchayat service as distinct service from the State service, under Section 203 (1) it is -provided that the State Government shall determine the cadre posts and initial strength in the Panchayat services which can be altered by the District Panchayat only with the approval of the State Government. It is true that under Section 203 (3) the State Government has power to make rules regarding conditions of service of Persons appointed to Panchayat service, including in the matters of disciplinary action against such servants, but that power is specifically made subject to the other provisions of the Act. So far as the petitioner is concerned, his mode of appointment was not under Section 205 either b-v direct recruitment, promotion or transfer from State service to the Panchayat service. He was an allocated servant under Section 206 (1) (ii) which specifically Provides for allocation of such servants in the service of the District School Board immediately before the dissolution on transfer to the District Panchayat under Section 155. Such allocated servants are guaranteed under Section 206 (2) also that their conditions of service shall not be less favourable and they would be taken over on such conditions as the State Government may determine by general or special order; subject to the proviso that he would not be entitled to claim the same cadre and designation which he had before the allocation. That Proviso is not relevant for the question which arises in this matter. The question which we have to answer is as to who is the disciplinary authority, so far as the allocated servant, who is now deemed to be finally allocated on expiry of four years from April 1, 1963, under Section 206-A (2). This being specific provision in Sections 155 and 206 (1) (ii), the whole Power of making rules under Section 203 (3) shall be subject to the statutory guarantee Provided both in Sections 155 and 206, when these servants were statutorily allocated on dissolution of their school boards. As earlier pointed out on a bare Perusal of Section 155 (2) such servants like the petitioners are guaranteed the same terms and conditions of service which were immediately before April 1, 1963, applicable to them while they were in the service of the dissolved school board under the specific clause (4) in the Government order under Section 155 (2), and their further guarantee is by reason of the continuance of the provisions of the Primary Education Act so far as these servants are concerned, even after they are statutorily transferred on the dissolution of the board with the transfer of the school board's functions to the District Panchayat under Section 155. In Delhi Transport Undertaking v. Hajelay, AIR 1972 SC 2452, at pages 2454-55, after following the settled legal position as laid down in Rangachari's case , their Lordships in terms held that a protection which is given to an employee by statute could not be nullified by rules and regulations authorised by the statute itself. In that case when the Delhi Transport Undertaking was statutorily transferred to the Delhi Municipal Corporation, there was a guarantee given by the relevant enactment for Protection of their service as they were made unremovable by an authority subordinate to that by which they were appointed. Therefore, even though the Corporation may by a regulation prescribe the authorities to punish municipal employees, the statutory guarantee in Section 95 (1) was held to place an embargo on any subordinate of the appointing authority from removing or dismissing the transport employee from service. Therefore, no regulation could be enacted which would nullify the statutory guarantee. In the present case, even Section 203 (3) also provides an adequate safeguard that the rules can be made in the matter of disciplinary action against a Panchayat servant by the State Government, but that would always be subject to the provisions of the Act. Therefore, if the Provisions of the Act like Sections 155 (2) and 206 (2) have given a statutory guarantee of the conditions of service, that statutory protection could not be nullified by any rule or regulation. In fact, under Section 155 (2) and clause (4) of the Government order statutory guarantee was of the same terms and conditions of service which prevailed before the school board was dissolved on April 1, 1963. There was an additional guarantee in Section 70 and Rule 69 that those employees would be dealt with by an independent statutory authority who is a Government servant i.e., the Administrative Officer with a right to appeal to an independent Tribunal under Section 24. Therefore, this statutory protection could not be whittled down by any interpretation put on the rules made under Section 203 (3) when the rule making power itself is made subject to these statutory provisions in Section 155 (2) and Section 206 (2) as it ignores and gives no effect to the opening words that the rule making power itself is made subject to these specific provisions in Sections 155 (2) and 206 (2) so far as these servants are concerned of the dissolved school board.

7. The second contention of express repeal has obviously no force when a plain reading of the order under Section 155 (2) makes it abundantly clear in clauses (4) and (7) that these transferred employees were guaranteed the same terms and conditions of service as they were prevailing before April 1, 1963, when they were in the service of the dissolved school board, and those provisions for their protection in the Primary Education Act are in terms continued and have not been repealed. The statutory intention in fact is expressed to the contrary by their continuance of these relevant provisions. The doctrine of implied repeal could hardly be canvassed in a case like the Present one in view of the settled Position as Pointed out in Delhi Municipality v. Shiv Shanker, : 1971CriLJ680 . Their Lordships restated broadly the general rule laid down in Paine v. Slater, (1883) 11 QBD 120:-

'that when two Acts are inconsistent or repugnant the later will be read as having impliedly repealed the earlier. As the legislature must be presumed in deference to the rule of law to intend to enact consistent and harmonious body of laws, a subsequent legislation may not be too readily presumed to effectuate a repeal of existing statutory law in the absence of express or at least clear and unambiguous indication to that effect. This is essential in the interest of certainty and consistency in the laws which the citizens are enjoined and expected to obey. The legislature, which may generally be presumed to know the existing law, is not expected to intend to create confusion by its omission to express its intent to repeal in clear terms. The Courts, therefore, as a rule, lean against implying a repeal unless the two provisions are so -plainly repugnant to each other that they cannot stand together and it is not possible on any reasonable hypothesis to give effect to both at the same time, The repeal must if not express, flow from necessary implication as the only intendment. The, Provisions must be wholly incompatible with each, other so that the two provisions operating together would lead to absurd consequences, which intention could not reasonably be impugned to the legislature. It is only when a consistent body of law cannot be maintained without abrogation of the 'Previous law that the plea of implied repeal should be sustained. To determine if a later statutory Provision repeals by implication an earlier one it is accordingly necessary to closely scrutinize and consider the true meaning and effect both of the earlier and later statute. Until this is done it cannot be satisfactorily ascertained if any fatal inconsistency exists between them The meaning scope and effect of the two statutes, as discovered on scrutiny, determines the legislative intent as to whether the earlier law shall cease or shall only be supplemented. If the objects of the two statutory provisions are different and the language of each statute is restricted to its own object or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on the surface. Statutes in primavera although in apparent conflict, should also so far as reasonably possible, be construed to be in harmony vita each other, and it is only when there is an irreconcilable conflict between new provisions and the prior statute relating to the same subject-matter, that the former being the later expression of the legislature, raja be held to -prevail, the prior law yielding to the extent of the conflict. The same law of irreconcilable repugnancy controls implied repeal of a general by a special statute. The subsequent provisions treating a Phase of the same general subject-matter in a more minute way may be intended to imply repeal Pro tan to of the repugnant general provision with which it cannot reasonably co-exist, When there is no inconsistency between the general and the special statute the latter may well be construed as supplementary .

This contention of implied repeal could only be raised if such necessary implication would be the only intendment on the ground that these two provisions were wholly incompatible and irreconcilably repugnant. In fact, Mr. Shah ignores the basic fact that when Section 155 (2) made such a blanket provision enabling the State Government to amend or repeal the relevant Provision of the Primary Education Act, they have not resorted to the process of express repeal, but on the other hand they have in terms continued the relevant provisions of the Primary Education Act. That was the only way in which section 155 could be implemented because the purpose of Section 155 was only to transfer the functions of the District School Board to the Panchayat and, therefore, what was necessary to be done was to transfer those powers, functions and duties of the school board to the District Panchayat and to ,best those properties in the District Panchayat by transferring the assets, rights and liabilities and taking over the existing employees on the same terms and conditions. But so far -as the rest of the administrative machinery was concerned, 'it was retained intact. Mr. Shah further ignores the whole object of the Primary Education Act which is to retain the control of the State Government in the matter of primary education and therefore even when the State Government had opportunity to amend the Primary Education Act while implementing Section 155 by issuing order under Section 155 (2) it did not destroy the Post of Administrative Officer nor made any change in the language of Section 21 (2) by changing his status of a Government servant to the status of a Panchayat employee. Therefore, the whole argument of Mr. Shah that in the new set up of a Panchayati Raj, with its whole scheme of decentralisation, such continuance of the Administrative Officer who is the servant of the State Government, could not have been intended misses the whole salutary purpose of the Bombay Primary Education Act. Even when these employees are transferred to the Panchayat, the administrative machinery has been specifically retained so that the Administrative Officer retained all the powers under Section 24 (1) and that is why that guarantee of the employees being dealt with in the matter of disciplinary action by this independent statutory officer who is State Government employee, with the right of appeal to an independent Tribunal. are clearly preserved. These are the specific provisions so far as these particular employees are concerned who are not employees appointed to the Panchayat service under Section 205, but who had special guarantee because of the statutory allocation on dissolution of the school board under Section 206 (2) read with Section 155 (2). Therefore, even the normal Principle of the special Provision talking precedence over the general provision would be clearly applicable especially when that alone would harmonise the entire scheme and when it is the only interpretation that flows from the express language under Section 203 (3) which Takes the entire rule making power subject to the other specific provisions in the Act. In J. K. Cotton Spg. and Wag. Mills Co. Ltd. v. State of U. P., : (1961)ILLJ540SC , their Lordships in terms pointed out that in the interpretation of statutes Courts always presumed that the legislature should have inserted every part thereof for a purpose and the legislative intention is that every Part of the statute should have effect. This presumption will always have to be made in the case of the rule-making authority also. Their Lordships in terms pointed out that the rule that the general provision should yield to specific Pro visions is not arbitrary principle made by the lawyers and Judges but springs from the common understanding of men and women that when the same person gives two directions - one covering a large number of matters in general and the other to only some of them, his intention is that this latter direction should prevail as regards themselves while as regards the rest, the earlier direction should have effect. In Pretty v. Solly 1032, quoted by Craies on Statute Law, at page 206, 6th Edition, Romilly M. R. mentioned this rule. The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter taken in its most comprehensive sense would overrule the former, the particular enactment must be operative and the general enactment must be taken to affect only the other Parts of the statute to which it may properly apply. The rule has been applied as between different provisions of the same statute, in numerous cases. Therefore, applying this settled rule of construction, in case of a conflict between the specific provision and the general Provision, the specific provision prevails over the general provision and the general provision would not cover the subject dealt with by special provision. Their Lordships harmonised the general provision in that case by excluding from the scope of the general provision the special provision for resolution of the industrial disputes. In the present case, this principle is even incorporated by the legislature by enacting Section 203 (3) itself by making the rule making power subject to the specific Provisions in the Act, viz., Section 155 (2) and Section 206 (2), which would specifically cover only these allocated school board employees, who are distinct from the other Panchayat servants. Therefore, there is no substance even in the second contention of any express ox implied repeal merely by comparison of general provisions, when we have to answer the question by reference to the special provisions of the Act and the guarantee given to the servants who stood transferred under Sections 155 (2) and 206 (2). We need not dilate on various Provisions which Mr. Shah had mentioned to point out that there would be some apparent conflict. To illustrate, he even mentioned that selection committees would have to be constituted under Section 211 (3) in the manner Prescribed, while Section 23 provided the statutory composition of the staff selection committee. It is not necessary to go into the question as to how far there is conflict between these other provisions as the narrow question which we have to answer is whether in so far as the present statutory guarantee is concerned to these employees, the provisions of Section 24 are repealed. If Section 24 applies along with Rule 63, it is obvious that it is only the Administrative Officer who can take disciplinary action against the petitioner. So long as that statutory guarantee continued in force by reason of the order issued under Section 155 (2), which has a force of law and which portent amends the Primary Education Act, this administrative machinery with all provisions for security of tenure of the staff maintained under Section 20 (1) would clearly continue. Instead of any repugnancy, the legislative intention is specific to the contrary and terms so expressed by continuing the relevant provisions of the Primary Education Act, including Section 24, without abolishing the Post of the Administrative Officer, or without amending Section 21 (2) of the said Act. It is hardly necessary to refer to other Provisions as they would have no bearing on this question which arises in this appeal. Mr. Shah had also argued that there is a non obstinate clause in Section 155 (1), but the non obstinate clause would only mean that nothing contained in the Bombay Primary Education Act, 1947, shall come in the way, so that the object was sought to be achieved of dissolving the school Lord and transferring its functions to the Panchayat after taking of the employees with a guarantee of statutory protection- of the service conditions. Therefore, that non obstinate clause could not be interpreted to operate as an independent enactment abolishing the post of Administrative Officer or making him a Panchayat employee. Similarly, provision in Section 207 (1) could hardly help Mr. Shah merely because this Government officer statutorily appointed under Section 21 (2) of the Bombay Primary Education Act is deputed in the Panchayat service under Section 207 (1). If the employees have guarantee of disciplinary action by this independent officer who is an employee of the State Government although deputed to the Panchayat, and if the employees have a further right of appeal to the Tribunal, these statutory provisions could never be whittled down by any process of interpretation.

8. There is clearly no substance in the third contention of Mr. Shah that Rule 4 never saved rights of these employees. The Gujarat Panchayat Service (Discipline and Appeal) Rules, 1964, which have been enacted in the exercise of rule-making power under Section 323 (1), in terms provide in Rule (1) (c) that these rules shall apply to all persons appointed and allocated to the Panchayat service and persons holding posts in the Panchayat service, except as provided by or under these rules. Therefore, the very application of these rules in the context of such allocated employees is subject to the exception provided in the rules, and one of the exceptions laid down by Rule 4 is the protection of rights and privileges conferred by any law. That rule enacts that nothing in that rule shall deprive any member of the Panchayat service of any right of privilege - (a) by or under any law applicable to him. Therefore, if Section 24 of the other law i.e., the Primary Education Act has conferred a right or privilege of disciplinary action only by specified statutory officer with a rig lit of appeal to an independent Tribunal, that statutory right or privilege is clearly saved by this exception in Rule 4, so far as such allocated employees like the petitioners are concerned. Mr. Shah argued that Section 24 merely Prescribed Procedure for disciplinary action. Mr. Shah forgets that the disciplinary -proceeding is a quasi-judicial proceeding and when Section 24 Prescribed a -protection for these servants that they would be dealt with by a Particular officer who is a State Government servant with a right of appeal to an independent Tribunal, it is clearly a substantive Rule and such a statutory privilege was clearly saved by reason of Rule 4. Therefore, on that aspect the learned Single Judge was right in holding that even if these rules were deemed to be applicable to persons like the petitioners, they were clearly exempted under Rule 4.

9. Mr. Shah made a faint attempt to raise a point which was never raised and which could not be permitted in the Letters Patent Appeal. That point was that the Petitioner's post having been retrenched, he cannot be deemed to be a person on the staff maintained under Section 20 (1). This contention could not be urged for the first time in the Letters Patent Appeal. Even -otherwise the point is thoroughly misconceived. The petitioner was not sought to be retrenched but he was sought to be removed on the round of misconduct that he did not Join the service to the Post to which he was transferred on the round that it was not an equivalent post. The order dated 8-7-1968 transferring him from service mentioned that for administrative smoothness and in the interest of the Public the transfer and appointment was made of the petitioner to the Agriculture Branch. It was however in terms mentioned that the post of the senior clerk, Education Branch, was for the time being kept vacant for the purpose of economy. There is nothing to show that the post was permanently retrenched. On the contrary there is a statement that it was kept vacant for the purpose of economy. Therefore, the petitioner was a person on the staff maintained under Section 20 (1) and he can be dealt with only under Section 24 (1) by the Administrative Officer and he would have a right to appeal even against that order to the independent Tribunal under Section 24 (2). Therefore, even in the last contention there is no substance. Therefore, the learned Single Judge was right in holding that the District Development Officer had no jurisdiction to -pass this order removing the petitioner from his service. Therefore, this appeal fails and is dismissed with costs.

10. Mr. Shah asks for a certificate for appeal to the Supreme Court under Article 133(1)(c). We do not find any question of law involved in the present case of such general importance as would require in our opinion, to be decided by the Supreme Court. Therefore, we refuse the certificate.

11. Appeal dismissed.


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