S.A. Shah, J.
1. The question involved in these two petitions is whether the State Government has power to appoint, by transfer, officers of the State Service to the Panchayat Service to which the petitioners belong. The contention was on the basis that Panchayat Service was not a State Service and, therefore, the State Government has no power to appoint its own officers by transfer. The first petition is in respect of promotional post of Extension Officers whereas the second petition is in respect of promotion to the post of Agriculture Officers from the lower Cadre.
2. Both the petitions involve a common question of law as to interpretation of some of the rules of Gujarat Panchayat Services (Classification & Recruitment) Rules. 1967, hereinafter referred to as the Rules, similar orders of Government and, therefore, they are heard together. The facts of Special Civil Application No. 1611 of 1978 are as under:
3. Petitioner No. I is Gujarat State Gram Sevak Maha Mandal and petitioner Nos. 2 to 11 are Gram Sevaks in respective villages whose particulars are given at Annexure-A to the petition. All the ten petitioners belong to ten districts which are selected for the purpose of implementation of Dr. Benor's scheme. The contention of the petitioners is that they joined services as village level workers in the erstwhile State of Bombay. At that time there were no rules relating to promotion and or seniority of Gram Sevaks to any other cadre. All the petitioners-Gram Sevaks have acquired S.S.C. and have also completed in-service integrated course of two years. By resolution dated 18th December, 1964, the State Government had determined the principles relating to seniority and promotion in the cadre of Gram Sevaks working in different district panchayats. A copy of the said resolution is produced at Annexure-B to the petition. Under the said rules, the recruitment to the post of Agricultural Extension Officers were to be made by direct recruitment, promotion of agricultural assistants and promotion of Gram Sevaks, in the ratio of 80 : 5 : 15 respectively. In other words the Gram Sevaks were entitled to the promotion having a quota of 15 per cent in the vacancies that might be created in the cadre of Agricultural Extension Officers. That the State Government framed statutory rules named as 'Gujarat Panchayat Services (Classification & Recruitment) Rules, 1967 in exercise of its powers conferred under Section 323 of the Gujarat Panchayats Act. These rules provide that the post of Agricultural Extension Officer can be filled in by transfer of Agricultural Officers, Assistant District Agricultural Officer-Gr. II, by direct recruitment and by promotion of Senior Agricultural Assistants, etc. There was no provision for the promotions of Gram Sevaks and, therefore, the Gram Sevaks were not eligible for the post of Agricultural Extension Officer-Gr. II.
4. However, on December 10, 1973, the above rules were amended by a notification and it was provided that 15 per cent of the posts of Agricultural Extension Officer-Gr. II should be filled in by promotion of Gram Sevaks. In this way the Gram Sevaks were made eligible for promotion to the post of Agricultural Extension Officer from 10th December, 1973. According to the petitioners M/s. Benor and Harrison, experts from the World Bank were invited to carry out study of the extension activities in agriculture in Gujarat State and they had recommended training-cum-visit system of extension. Under this system one Gram Sevak was to be appointed for a family of 800 fanners. The Gram Sevak was supposed to visit the area allotted to him and to train the farmers in his area. The experts also recommended that to keep morale of the Gram Sevaks at a high level, proper and adequate salaries should be granted to them. They also recommended that Gram Sevaks can become a good Extension Officer (Agriculture) and also on account of their association with the activities of the farmers and agriculturists. The State Government had accepted the recommendations of the experts and introduced the system of training and visit. The aforesaid recommendation now known as Dr. Benor's System.
5. According to the petitioners prior to 1978 there were various agricultural schemes run by the State Government in the field of agriculture under the Department of Agriculture. The staff running this scheme were employed by the State Government comprising of Agricultural Supervisors, Agricultural Assistants and other categories of employees. By acceptance of Dr. Benor's Scheme, one village level worker has to be appointed for a family of 800 farmers and 8 village level workers were to be supervised by one Extension Officer and over 8 Extension Officers there was to be one Sub-Divisional Agriculture Officer and the Extension activities at the District level were to be supervised by the District Agricultural Officer. The State Government further decided that the staff employed under the various schemes in the districts fields in ten districts should be absorbed against the requirements of the staff under the Benor's Scheme, introduced by the aforesaid Government Resolution. It was also decided that the posts of Agricultural Officers, Agricultural Supervisors and Agricultural Assistants sanctioned under the various schemes so far run by the State Government would be adjusted against the requirements of the posts under the present scheme introduced by the Government Resolution dated 27th April, 1978 and in consequence thereof various schemes were abolished and new scheme as per recommendation of Dr. Benor came into existence. Copy of the said resolution has been produced at Annexure-E.
6. The grievance of the petitioners as mentioned in para 12 of the petition is that in pursuance of the aforesaid resolution the Director of Agriculture wrote a letter dated 24th May, 1978 to the District Development Officers of the various districts stating that the Agricultural Supervisors in the State cadre should be absorbed against the posts of Agricultural Extension Officers and that the Agricultural Assistants should be absorbed in the cadre of Gram Sevaks. The said letter has been produced at Annexure-F to the petition. The petitioners have further stated that in pursuance to the said resolution at Annexure 'E' and letter at Annexure-'F' of the Director of Agriculture the District Development Officer, Mehsana District, appointed Agricultural Supervisors as Agricultural Extension Officers in different talukas of Mehsana District by transfer. In this way 105 Agricultural Officers were absorbed as agricultural Extension Officers with the result that the promotional opportunities of the petitioners were totally wiped out. Furthermore, the Agricultural Assistants would be absorbed as Gram Sevaks (village level workers) which will also affect the rights of ihe petitioners. The petitioners have relied upon the Ordinance issued by the Government of Gujarat dated 10th July, 1978, namely, Gujarat Panchayat (Amendment) Ordinance, 1978. By virtue of this Ordinance the Panchayat service has with retrospective effect become the service of the individual Panchayat and not of the State Government. The petitioners have alleged that this Ordinance has been made with the purpose of nullifying the ratio of the judgment of the Gujarat High Court in the case of Shamji Karshan v. The State of Gujarat 16 G.L.R. 313 by which this High Court has held that the Panchayat service is Civil service of the State and employees thereof are not the employees of the individual Panchayat but the employees of the State Government. Relying upon this Ordinance the petitioners contended that if the Panchayat service is made distinct and separate from the State service, the provisions providing for the transfer of staff to Panchayat will also become inoperative. The petitioners, therefore, stated that by the enactment of the impugned Ordinance the provisions of Section 205 read with Sections 209 and 320 along with the recruitment rules which so far provided for transfer of State Government staff to the Panchayat service would be treated as implidely repealed. The petitioners, therefore, have challenged the resolution at Annexure-E, letter of the Director of Agriculture at Annexure-F and the order of transfer at Annexure-G to the petition.
7. In Special Civil Application No. 449 of 1979 the petitioners are Extension Officers in Sabarkantha District Panchayat who are eligible to be appointed as Agricultural Officers Gr. I. All the petitioners are qualified for such promotions. The grievance of the petitioners is that on account of introduction of the system of training and visit as suggested by Dr. Benor, which is popularly known as Benor's System, several posts in the cadre of Agricultural Officer Gr. I have been created which are posts under the Panchayat. Under the relevant recruitment rules these posts are to be filled in by promotion of officer of the lower cadre working in the Panchayat service. Instead of filling these posts by the officers of the lower cadre of Panchayat Service the Directorate of Agriculture has passed some order posting certain Government Officers as Agriculture Officers Gr. I in Sabarkantha District Panchayat, which will result into prejudice to the promotional rights of the petitioners. Again, according to the petitioners these posts cannot be filled in by transfer of Government officers to the Panchayat service. Petitioners, therefore, have prayed for direction against the respondents restraining them from appointing Government officers on any post of Agricultural Officers Gr. I under the Sabarkantha District Panchayat.
8. The Advocates appearing on behalf of the petitioners of both the petitions have raised the following contentions:
(i) That the Panchayat Service being different and distinct service on account of the Ordinance the State Government has no power to appoint officers of the State Government Service by transfer.
(ii) Assuming that Panchayat service is a State service even then under the recruitment rules as contained in Schedule IV of the Rules, there is no provision of appointment by transfer of the Government Officers to the Panchayat service and such appointments are ultra vires and illegal.
(iii) That by such transfer chances of promotion of the petitioners have been greatly reduced and, therefore, the orders are arbitrary, illegal and bad.
So far as the first contention of the petitioners is concerned it has lost its importance on account of the recent decision of the Supreme Court in the case of State of Gujarat and Anr. v. Ramanlal Keshavlal Soni and Ors. reported in 24(1) G.L.R. 708 : 1983 Gujarat Law Herald, page 668. The question directly arose before the Supreme Court was whether the members of the Gujarat Panchayat Service are Government servants, In para 31 of the said judgment the Supreme Court has in terms observed as under:
We are, therefore, of the view that the Panchayat service constituted under Section 203 of the Gujarat Panchyat Act is a Civil service of the State and that the members of the service are Government servants. This very question had been decided by the High Court of Gujarat more than 15 years back in G.L. Shukla v. State of Gujarat 8 G.L.R. 833 : I.L.R. 1967 Guj. 560 and there appears no good reason to depart from the view then taken by the High Court.
9. The Supreme Court has further declared that the Gujarat Panchayat (3rd Amendment) Act, 1978 is unconstitutional and it offends Articles 311 and 14 of the Constitution and is arbitrary and unreasonable. In view of this decision of the Supreme Court the longstanding dispute has been finally settled. The Ordinance on which petitioners have relied was repealed by the amendment Act and the 3rd Amendment Act of 1978 having been struck down by the Supreme Court, the petitioners cannot contend that the Panchayat service is not a State Service and, therefore, the vacancies cannot be filled in by the transfer of the members of the State service. The petitioners, having realised correct legal position, have not pressed the issue further.
10. To examine the validity of the second and third contentions of the petitioners, we shall have to consider first, the scheme of the recruitment Rule of 1967 and the Act. Chapter 11 of the Gujarat Panchayats Act, 1961 (hereinafter referred to as Panchayat Act) makes the provisions relating to service. Section 203 as originally framed makes provision for uniform condition of service in connection with the affairs of the Panchayat. Sub-section (3) gives powers to the State Government to make rules regulating the mode of recruitment and condition of service of the persons appointed to the Panchayat service and the powers in respect of appointment, transfers and promotions of officers and servants in Panchayat service, etc. Provisions of Section 205 being material are reproduced below:
205. Subject to any rules made under sec 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.
11. Therefore, it is clear that the State Government has statutory powers to make appointment in the Panchayat Service by transfer of the member of the State Service subject to the rules made thereunder:
12. The Government has enacted statutory rules, namely, Gujarat Panchayat Service (Classification & Recruitment) Rules, 1967. These Rules consist of 14 rules and five schedules. Schedule IV contains rules made under Rule 7 of the main Rules and, therefore, for the sake of convenience they may be described as subsidiary rules. These rules make provisions in respect of different cadres of services, and posts which were in existence. Now for our purpose main Rules 7 and 9 being relevant are reproduced:
7. Qualifications regarding age, education, experience, etc: (1) The qualifications with regard to age, education and experience in respect of a post mentioned in Schedule IV shall be those specified against the respective post in that Schedule. (Sub-rules (2) to (8) concerning age, experience etc., are not reproduced.)
9. Procedure to be followed in regard to appointment to posts in Panchayat Service:
(1)Except in the case of services and posts which are not within the purview of the Board or the Selection Committee, recruitment and appointment to all posts shall be made by the appointing authority after consultation with the Board or the Selection Committee, as the case may be, either by direct selection, or by promotion from a lower post or service, or by transfer from the State Service to the Panchayat Service, or by re-employment or by deputation.
(2) Even for the purpose of recruitment candidates by direct selection for appointment to posts mentioned in Schedule IV or with a view to selecting candidates for pre-service training prior to their appointment to such posts, the Board or, as the case may be, the Selection Committee shall arrange to hold qualifying written examinations, if prescribed.
(Sub-rules (3) to (6) are not reproduced being not relevant.
It will be seen from the scheme of the Rules that Rule 9 prescribes the procedure to be followed in regard to appointment to the posts in the Panchayat Service, and appointment by transfer from State Service is one of the modes of appointments. Therefore, it is evident that the State Government has power to make appointment by transfer both under the provisions of Section 205 of the Act and under Rule 9 of the Rules.
13. Now some confusion appears to be prevailing regarding the subsidiary rules in Schedule IV. If we look to Schedule IV it is clear that the same are made under Rule 7. Therefore, the subsidiary rules are to be read with main Rule 7, and on reading Rule 7 it is clear that the subsidiary rules are with regard to age, education and experience in respect of the posts mentioned in Schedule IV. Subsidiary rules under Schedule IV cannot restrict the powers of the State Government to appointment by transfer because in making appointment by transfer the age, educational qualification and experience etc. arc not relevant considerations, because the officer is transferred either on account of scarcity of such experienced officers in Panchayat or on account of some administrative convenience, or on account of abolition of posts and transfer of business to Panchayat as it has happened in the present case.
14.The petitioners have raised the contention that recruitment to posts of Agricultural Officers and also to the post of Extension Officers in Schedule IV provides only two modes of recruitment, namely, direct recruitment or by promotion from the lower carde. The rules do not, provide appointment by transfer of officers from other cadre and, therefore, the purported action of the respondents to appoint the officers from Agriculture Department to the cadre of Agriculture Officers or Extension Officers is contrary to the rules and the same being illegal and ultra vires the rules, should be struck down. This contention of the petitioners has no merits because the Rules in Schedule IV are controlled by the provisions of the Act and Rule 9 of the main Rules. Under the provisions of Rule 7 the State Government has powers to prescribe age, qualifications, experience etc., for various posts, but the said subsidiary rules cannot over-step the limits and must conform the mandate of Rule 7. Since both the provisions are part and parcel of the same scheme of rules, we have to reconcile them so that both can operate together without any inconsistency. Under the rules regarding the cadre as contained in Schedule IV, when the vacancies occur the State Government shall have to decide whether the State Government wants to fill up the vacancy by transfer, if the State Government comes to the conclusion that it is not necessary to transfer any officer of the State Service then rules in Schedule IV comes into full operation and the vacancies so remained are required to be filled up by direct recruitment or by promotion in accordance with the ratio, if prescribed. The provisions of Sections 203 and 205 of the Act give power to the State Government to make the appointments by transfer subject to the rules and as stated above, the rules have not made any provisions which better the rights of the Government. On the contrary Rule 9 expressly provides 'transfer' as one of the modes of appointment. Reading the scheme of the Act and the Rules together, in our opinion, it leaves no doubt that the State Government has power to make appointments in any cadre by transfer of officers of the State Service, and if such transfers are not made then the vacancies shall have to be filled in according to the rules contained in Schedule IV.
15. In view of the aforesaid finding, the second contention of the petitioners has no merits.
16. The petitioners have raised the third contention that by transfer of officers from the State Service to the Panchayat Service the chances of promotion of the petitioners in both the cadres have been greatly reduced and have affected their legal right of promotion, which has also no merits. First it has been now settled that the chances of promotion is not a condition of service. This was laid down in clear terms by the Supreme Court in the case of Purohit and thereafter the position has been re-affirmed in the case of Ramchandra Shankar Deodhar and Ors. v. The Slate of Maharashtra and Ors. : (1974)ILLJ221SC . Under the provisions of Article 309 and under the statutes as well as under the Act the State Government has power to make rule for recruitment and conditions of service. Right of promotion is no doubt a condition of service, but chances of promotion is not. The petitioners are not denied any promotion. The only prejudice that can be caused will be that some other persons along with the petitioners will be considered for promotion and thereby reducing the chances of the petitioners to some extent, but that cannot be helped. On account of administrative convenience, to provide employment to officers who have become surplus on account of abolition of posts and transfer of business to the Panchayat, the surplus officers have to be accommodated, and in doing so it is possible that chances of promotion of some of the petitioners may be affected but at the same time it should not be forgotten that the persons who were in service since long and without any fault on their part if the said business of the Government is transferred to the Panchayat, as a necessary consequence the Panchayat is supposed to take the burden of the officers who were manning those business. That is also in the benefit of both. The Panchayat will get experienced officers and the officers will get continuity of their service.
17. Factually also the petitioners are not right because if we first look to Annexure-E at page 44, where the statement showing the existing strength of different categories and exact requirements thereof under the new scheme is given, the requirements of Extension Officers is shown as 306 and the existing extension Officers are shown as 244. Therefore, 62 Officers (Supervisors) from the State Service will be absorbed as Extension Officers and the rest of the surplus Supervisors will be transferred elsewhere, with the result that no Extension Officer who was in service has been disturbed. This has been made clear at page 40 in paragraph 4-C which runs as under:
(c) Out of 125 posts of Agricultural Supervisors working under various schemes mentioned in Annexure-A, 63 posts shall be abolished with effect from 1-5-1978 and 62 posts in the ten districts adjusted against the requirement of 306 Extension Officers shown in Annexure-B to the G.R.
18. Now, so far as village level workers are concerned, the requirement has been shown as 2,433 officers, whereas 2,005 officers are already in service. Therefore, the additional posts, of 428 officers shall have to be created, resulting into no unemployment to any of the village level worker now designated as Gram Sevaks.
18.1. One Mr. G.R. Purohit, Administrative Officer in the office of the Director of Agriculture has filed the affidavit-in-reply. In para 16 thereof it is stated that the Government has raised the percentage of promotion of Gram Sevak to Extension Officer from 15% to 35% and hence the petitioners cannot have any grievance. He has further stated in para 17 of the affidavit-in-reply that the persons were working on the post of Agricultural Supervisors and Agricultural Assistants in the State Scheme and, therefore, equal number of persons are required to be absorbed in T & V scheme and they cannot be sent home. He has further stated that they had a right for absorption and accordingly the Government has provided the same by G.R. dated 27-4-78. It is, therefore, clear that the persons who are transferred were actually working in the respective schemes and by transfering these schemes to Dr. Benor's scheme, they are entitled to say that they should be absorbed under the new Scheme. It would be beneficial to both the Panchayat as well as the concerned officers. It is nobody's case that any of the present petitioners is to be relieved and in their place officers from State Service are to be appointed. We, therefore, see no merit in the case of the petitioners where services of none of them is to be terminated and when the concerned Supervisors and Agricultural Assistants whose posts have been abolished on account of Dr. Benor's Scheme are provided appropriate posting under the new scheme which is a just and equitable decision of the State Government.
19. In the aforesaid view of the matter there is no substance in any of I 'the contentions of the petitioners. The petitions are, therefore, dismissed. Rule discharged with no order as to costs.