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Laljibhai Laxmidas Manek Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1985)1GLR6
AppellantLaljibhai Laxmidas Manek
RespondentState of Gujarat and ors.
Cases ReferredRamchandra Shanker Deodhar and Ors. v. State of Maharashtra and Ors.
Excerpt:
.....like the petitioners were concerned, they were fitted in different districtwise cadres of live stock inspectors in different districts under the panchayat organization. firstly, it is submitted that though the petitioners are allocated employees in the panchayat service, the panchayat service is part and parcel of the state service and hence those live stock inspectors who did not opt out for panchayat service and those like the petitioners who opted out for panchayat service must be treated to be on par for the purpose of maintenance of common seniority list of live stock inspectors and if such common seniority list is maintained, then 20 per cent selection grade would be available to senior most live stock inspectors on the basis of their continuous officiation in the state..........as other respondents nos. 22 to 53 were originally of bombay state service and were all working as livestock inspectors who are also known as stock-men. however, after the formation of the gujarat state and later on the constitution of the panchayat service as per the provisions of the said act, a question arose whether the existing state servants should be allocated to the panchayat service and for that purpose, a statutory provision was made in section 203 as seen above. the petitioners opted out for the panchayat service though this aspect of the matter is challenged by mr. tripathi for the petitioners and it is submitted by contention no. 2, which will be considered little later, it may be noted at this stage that it appears clear on the record of this case that the petitioners did.....
Judgment:

S.B. Majmudar, J.

1. In this petition under Article 226 of the Constitution which was permitted to be filed in a representative capacity under Order 1, Rule 8 of the Code of Civil Procedure, 199 petitioners have voiced their grievance regarding maintenance of district wise seniority list of live stock inspectors also know as stockmen (veterinary) in the various district panchayat establishments in the panchayat service of the State functioning under the provisions of the Gujarat Panchayats Act, 1961, hereinafter referred to as 'the said Act' and the rules made thereunder.

2. In order to appreciate, the grievances of the petitioners, a peep into the petitioners' past service history will be apposite. All these petitioners had joined service of the then State of Bombay. They joined as live stock inspectors who were then working in the Agriculture Department of the then State of Bombay In the bigger bilingual State of Bombay, they were known as Stock men. Later on these posts came to be redesignated as live stock inspectors. On the introduction of the Panchayat Rajya under the provisions of the Gujarat Panchayats Act 1961. various district panchayats were constituted. Respondents Nos. 3A to 20A are the concerned district panchayats. Respondents Nos. 3B to 20B are the district development officers in the respective districts appointed under the said Act Respondents Nos. 22 to 53 are the persons who did not opt for panchayat service on the formation of the panchayat service as per the said Act.

3. As stated above, the panchayat service was constituted under the said Act. The relevant provisions of the said Act came into force from 1-4-1963. On the coming into force of the said Act. The existing State servants came to be allocated to the panchayat service as per the provisions of Section 203 of the said Act. The concerned employees were given option to opt out for the panchayat service. The petitioners opted out for panchayat service while respondents Nos. 22 to 53 did not. They preferred to continue to remain in the State service as live stock inspectors. They formed a separate cadre. So far as allocated employees like the petitioners were concerned, they were fitted in different districtwise cadres of live stock inspectors in different districts under the Panchayat organization. As the concerned petitioners were working in different districtwise cadres of live stock inspectors under the panchayat set up, separate districtwise seniority lists were maintained by the different district panchayats under which they were working As the live stock inspectors had no promotional avenues, respondent No. 1 introduced selection grades and made them available to the senior employees who were working as live stock inspectors in different districts. Senior most live stock inspectors were to be given selection grade and for that purpose, 20 per cent of the posts of live stock inspectors were taken as the basis for giant of selection grades. In other words, 15th senior most employees who were working as live stock inspectors were to be given selection grades on the principle of seniority-cum-merit. The petitioners felt aggrieved by allocation of selection grades to the concerned live stock inspectors on the basis of the districtwise seniority of live stock inspectors and that is how, they have come to this Court by way of the present proceedings. Their grievance in the petition is two fold. Firstly, it is submitted that though the petitioners are allocated employees in the Panchayat service, the panchayat service is part and parcel of the State service and hence those live stock inspectors who did not opt out for panchayat service and those like the petitioners who opted out for panchayat service must be treated to be on par for the purpose of maintenance of common seniority list of live stock inspectors and if such common seniority list is maintained, then 20 per cent selection grade would be available to senior most live stock inspectors on the basis of their continuous officiation in the State service which can be traced out to distant past in which the petitioners and others joined the then Bombay State service as live stock inspectors. The alternative contention of the petitioners' that in any case, even if separate seniority lists are to be maintained for live stock inspectors who are working in the State service strictly so called, as they did not opt out for panchayat service as compared to the persons like the petitioners who actually opted out for panchayat service and became allocated employees in the panchayat service, at least so far as allocated panchayat employees are concerned their seniority should be maintained not districtwise but Statewise for the entire panchayat service and even on that basis, grant of selection grades districtwise on the basis of districtwise seniority is contrary to law and is required to be quashed.

4. The petition has been resisted by all the respondents. Affidavits-in-reply are filed by Mr. T.N. Vaishnav, Director of Animal Husbandry, Gujarat State, Mr. Lalit Mohan Sud, District Development Officer. Surendranagar district as well as Mr. K.R. Mehta, Under Secretary to the Government of Gujarat, Panchayats and Health Department. The petitioners have filed their affidavitin-rejoinder. One Mr. K.N. Raval, General Secretary of the Gujarat Veterinary Live Stock Inspectors' Association has also filed his affidavit-in-reply opposing the present petition. This petition remained dormant on the file of this Court for these many years for the simple reason that the question whether the Panchayat service is distinct service or a limb of the State service was awaiting examination of the Supreme Court in pending appeals from the decision of this Court which had earlier taken the view that the panchayat service is a part and parcel of the State Service. Ultimately, the Supreme Court by its decision in the case of Mathuradas v. S.D. Munshaw : [1981]1SCR144 upheld the view of this Court expressed in 8, G.L.R. 833, and finally held that panchayat service was part and parcel of the State service. It is thereafter that this petition was posted for final hearing and it has reached accordingly before me.

5. Mr. Ravi Tripathi for the petitioners raised the following contentions in support of the petition:

1. The petitioners as well as other employees who are at present working as live stock inspectors in the Agriculture Department of the State Government had originally joined services of the then Bombay State as live stock inspectors. Merely because the petitioners were allocated to panchayat service, their seniority cannot be separately maintained as compared to the seniority of rest of the live stock inspectors who did not opt out for panchayat service. Maintenance of separate seniority lists of these two types of employees is per se arbitrary and discriminatory and mets out unequal hostile treatment to the petitioners who are allocated panchayat servants. Mr. Tripathi, in support of this contention, heavily relied upon the decision of the Supreme Court in Mathuradus case (supra).

2. The petitioners were not given opportunity to exercise their options of being finally allocated to panchayat service and hence, the respondents cannot treat the petitioners as allocated panchayat servants.

3. Alternatively, it was submitted that even assuming that separate seniority lists can be maintained of allocated live stock inspectors and non-allocated live stock inspectors, who had remained in the State service strictly so called even then, maintenance of districtwise seniority lists of live stock inspectors is clearly arbitrary and violates the guarantee of Articles 14 and 16 of the Constitution so far as the petitioners are concerned.

6. The aforesaid contentions of Mr. Tripathi have been combated by Mr. S.T. Mehta, learned Assistant Government Pleader for the State authorities as well as Mr. Lahiri for respondent No. 84. Gujarat Veterinary Live Stock Insepctors' Association which came forward to be joined in response to the notice issued under Order 1, Rule 8, C.P.C. and which has accordingly been joined as party respondent. I shall deal with the aforesaid contentions canvassed by Mr. Tripathi for the petitioners in the same sequence in which they were raised before me.

7. So far as the first contention of Mr. Tripathi is concerned, it is true that the petitioners as well as other respondents Nos. 22 to 53 were originally of Bombay State service and were all working as livestock inspectors who are also known as stock-men. However, after the formation of the Gujarat State and later on the Constitution of the panchayat service as per the provisions of the said Act, a question arose whether the existing State servants should be allocated to the panchayat service and for that purpose, a statutory provision was made in Section 203 as seen above. The petitioners opted out for the panchayat service Though this aspect of the matter is challenged by Mr. Tripathi for the petitioners and it is submitted by contention No. 2, which will be considered little later, it may be noted at this stage that it appears clear on the record of this case that the petitioners did opt out for panchayat service and that is how they were allocated to panchayat service. Thereafter, all throughout, till today, they have worked in the panchayat set up in different districts. It is true, as now finally decided by the Supreme Court in Mathuradas case (supra) that panchayat servants are also holding civil posts and that panchayat service constituted under Section 203 has all the characteristics of the civil service of the State and that the panchayat service is a Statewise service. The moot question that remains for consideration in the present proceedings is as to whether it is open to the State authorities to constitute separate cadres in the common service and to fit any employees in those different cadres looking to the nature of work they are working, places where they are performing their duties and other relevant factors. So far as live stock inspectors working under the State authorities under the Director of Agriculture are concerned, they have never been allocated to the panchayat service; while the petitioners were allocated to panchayat service and in that manner, they crossed over from the actual State service and went to the other wing of the State service viz., panchayat wing. In these circumstances, if the State authorities are maintaining separate cadre of live stock inspectors working under the State department and according maintaining separate seniority list of those employees who are working in the State department as live stock inspectors and who were never allocated to panchayat service, it cannot be said that the action of the State authorities, is in any way arbitrary or ultra vires. The petitioners' grievance against maintenance of separate seniority list of nonallocated live stock inspectors who are actually working in the State departments can be sustained if at all it can be shown that cadre of live stock inspectors working under the State departments is the very same cadre in which the petitioners can be said to be working even though they are actually working in different district panchayats on the panchayat set up after their allocation to panchayat service. It is obvious that allocated servants who have been drafted to the panchayat service of the State Government would form a separate cadre as compared to those who were non-allocated Government servants and who have never been allocated to the panchayat service. Their cadre is entirely different and it is so maintained all throughout. Maintenance of separate seniority list is merely a consequence of the existence of separate cadre of live stock inspectors working in the State service which is strictly State service under the Director of Agriculture and Animal Husbandry. If maintenance of separate cadre of such employees is legally permissible, consequence of preparation of separate seniority list cannot be found fault with. Now, if is well settled that State authorities are entitled to have any number of separate cadres in the State service as exigency of situation may require. In the case of C.P.D. Nayar v. Slate of Kerala : [1974]2SCR867 Goswami, J. speaking for the Supreme Court has made the following pertinent observations in para 8 of the report:

With regard to the second submission of the appellant regarding the reservation of a separate cadre for the district Magistrates and Sub-Divisional Magistrates of executive origin, we do not see any force in his contention. It is open to the State Government to constitute as many cadres as they choose according to administrative convenience and expediency.

A Division Bench of this Court consisting of S. Obul Reddi, C.J. and N.H. Bhatt, J. in the case of S.D. Sharma and Anr. v. State of Gujarat and Ors. 1977(2) S.L.R. 505, speaking through S. Obul Reddi, J. has made the following observations in para 4 of the report:

We may at the outset point out that it is the prerogative of the Government to constitute as many services as may be necessary for the conventent and efficient administration of the State. The Government of Gujarat had taken a policy decision to constitute the Gujarat Administrative Service and the Government also had the prior approval of the Central Government.

In view of the aforesaid settled legal position, therefore, if cannot be urged by Mr. Tripathi for the petitioner that the State Government could not have kept separate cadre of live stock inspectors working under the Director of Agriculture and Animal Husbandry and that maintenance of separate seniority list for these incumbents was in any way illegal. Once such separate cadre is formed and maintained and which is legally maintainable, maintenance of separate seniority list would follow as logical corollary and cannot be found fault with on any score. It is not the contention of the petitioners that maintenance of separate cadre of non-allocated live stock inspectors is in any way mala fide or arbitrary, save and except to the extent, it is submitted by the petitioners, that as the panchayat servants are also State servants it was not permissible to maintain such separate cadre. The grievance made by the petitioners, therefore, is found to have no legal basis. Even though the panchayat servant may be civil service, the State authorities in exercise of their executive powers have ample jurisdiction to maintain separate cadre of employees for administrative convenience and for other relevant reasons. In the present case, there is relevant historical reason streamlining maitenance of separate cadre of non-allocated live stock inspectors who have continued to be in the State Service strictly so called as they had not chosen to walk out and to join the panchayat set up as allocated panchayat servants. The petitioners however opted out for panchayat service. Having done so, they cannot turn bad; and say that, those of their erstwhile colleagues whom they had left and whose company was parted with by them should be treated on par with the petitioners for maintenance of a common seniority list especially when their cadre remained a separate cadres as compared to the petitioners who stood outside that cadre as they themselves voluntarily walked out of that cadre. As the cadre of live stock inspectors in the State service strictly so called and the cadres of live stock inspectors as allocated to panchayat service are different, reliance placed is by Mr. Tripathi learned Advocate for the petitioners on the decision of the Supreme Court in the case of Ramchandra Shanker Deodhar and Ors. v. State of Maharashtra and Ors. : (1974)ILLJ221SC is misplaced. In the Supreme Court case, there was a common cadre of Deputy Collectors while seniority lists of Mamlatdars from which promotions could be effected to the common cadre of Deputy Collectors were maintained divisionwise. In view of that matter, the Supreme Court held that when the promotion is to the common cadre, there should be common seniority list of the Mamlatdars who constituted one and common source for promotion to one and the same cadre viz., the cadre of the Deputy collectors. In such an eventuality, if seniority lists are maintained for the Mamlatdars divisionwise, it would amount to denial of equal opportunity for promotion to different Mamlatdars whose names are mentioned in different divisionwise seniority lists. On the facts of the present case, such is not the situation. Cadre of live stock inspectors in the State service and the cadre of live stock inspectors as allocated to panchayat service are different. Separate seniority lists, have, of necessity and as a logical corollary, got to be maintained and if they are so maintained, no question of denial of equal opportunity to employee similarly situated would arise for consideration. Consequently, the first contention of Mr. Tripathi is found to be deviod of any substance and is rejected.

8. That takes me to the second contention of Mr. Tripathi. He submitted that the petitioners had not been given an opportunity to opt out for panchayat service. This contention of Mr. Tripathi appears to be factually incorrect as found from para 8 of the affidavit-in-reply filed by Mr. K.N. Raval, General Secretary of the Gujarat Veterinary Live Stock Inspectors' Association. It has been pointed out in the said affidavit-in-reply that Mr. T.W. Dariyani Live stock inspector who was working in the Kutch district as a Government servant on 31-3-1963 was provisionally posted on or after 15-4-1963 to Kutch district panchayat on the same terms and conditions as at annexure 'B' to the petition. Similarly, the petitioners who were employed as Government servants at different places came to be provisionally posted to different panchayats on the transfer of functions to such panchayats. While the petitioners preferred to opt on their own volition and free will for panchayat service, the aforesaid. Shri Dariyani opted for State service and being a senior member of the staff, got selection grade there. Had the petitioners opted for the State service they would also have been, subject to availability of posts, given the selection grade. The aforesaid averments made on oath have not been controverted by the petitioners. Even otherwise, it appears clear that there was no reason for the authorities exercising powers under the Act not to offer option to the petitioners when the procedural scheme of the statute enjoined upon them to do so. Even otherwise, it is not the case of the petitioners that at any time they sought reallocation to the State service from the panchayat service. It must, therefore, be held that the petitioners have voluntarily opted for panchayat service on the constitution thereof as per the provisions of the Panchayat Act and they were duly allocated to the panchayat service and they have continued in that service all throughout till today. That disposes of the second contention of Mr. Tripathi.

9. That leaves out the third and the last contention of Mr. Tripathi. He submitted that even assuming that separate seniority list of non-allocated live stock inspectors who never opted for panchayat service is maintained and is cannot be merged with the seniority list of live stock inspectors like the petitioners who were allocated to Panchayat service, even then, so far as the allocated live stock inspectors like the petitioners are concerned, who have all joined the panchayat service, common seniority list of all the employees like the petitioners must be maintained on Statewise basis; while in fact, separate seniority lists of live stock inspectors districtwise are maintained. That action on the part of the panchayat authorities is thoroughly arbitrary and violative of the guarantee of Articles 14 and 16 of the Constitution. In order to appreciate the thurst of the aforesaid submission of Mr. Tripathi, it is necessary to look at the relevant provisions of the Act and the rules. Sub-section (2) of Section 203 of the Act provides that 'The panchayat service shall consist of such classes, cadres 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 determine'. Sub-section (2A) of Section 203 lays down that - 'The cadres referred to in Sub-section (2) shall consist of district cadres and taluka cadres'. The aforesaid provisions clearly indicate that the State Government has ample authority to constitute cadres of posts for governing service of the staff working in the panchayat service. It is the case of the respondents that such separate cadres of live stock inspectors districtwise have been constituted by the State authorities in exercise of the statutory powers under Section 203(2) read with Section 203(2A) of the Act, In the affidavit of Mr. K.R. Mehta, it has been stated in para 4 as under:

With reference to paragraph 16 of the petition, I say that in panchayat service there are three cadres viz. District cadre. Taluka cadre and local cadre say that the post of livestock inspector is a district cadre post and falls within the purview of the District panchayat. I, therefore, say that it is only the district panchayat which is legally competent to issue orders governing the employees finally allocated to it under the Act and obviously enough, - the selection grade is also to be given according to the districtwise selection list.

10. It is true that the petitioners in rejoinder have denied this contention. But these denials have merely remained as bare denials. When the deponent of the affidavit who is the Under Secretary in the concerned department states on oath that separate cadres have been constituted in the panchayat service and post of live stock inspector is treated as district cadre post, it is obvious that live stock inspectors working in different districts have become incumbents of different districtwise cadres of live stock inspectors. If live stock inspectors working in different districts belong to different districtwise cadres, it is obvious that their seniority lists have to be separate and districtwise. It goes without saying that employees working in a given cadre are entitled to and can have distinct seniority list for governing their inter se service conditions. As already stated earlier, maintenance of separate seniority list cadrewise flows from the existence of separate cadres of employees forming part of the cadres. If formation and maintenance of separate cadres is justified, consequence cannot be found fault with. It may be stated that the petitioners have nowhere contended in the petition that the State authorities have no power to form separate cadres of live stock inspectors districtwise or to treat live stock inspectors as district cadre posts, it is also not the contention of the petitioners that the statutory power which flows from Section 203(2A) is abused or is arbitrarily exercised by the State authorities while treating live stock inspectors as district cadre posts. Once it is so, maintenance of separate seniority lists of live stock inspectors cadrewise meaning thereby, districtwise, cannot be objected to on any legally permissible ground. On the contrary, if separate & distinct seniority lists are not maintained districtwise, for live stock inspectors working in different district panchayats on separate cadres and if a common seniority list is maintained, the same would be vulnerable on the touch stone of Article 14 as unequals would be treated as equals. That would be a challenge of converse nature which would be difficult to meet with. It must therefore, follow that if there are separate cadres of live stock inspectors districtwise, maintenance of separate seniority lists would follow as a logical corollary. Mr. Tripathi could not draw any sustenance for his submission from the observations of the Supreme Court in the case of Mathuradas (supra) that 'provisions contained in Section 206 and the provisions in Sub-section (2), (2A), (3) and (4), of Section 203 clearly establish that the panchayat service constituted under Section 203 can only be a centralised service and recruitment of candidates to be made under Section 210 by the Gujarat Panchayat Service Selection Board can only be to that centralised service. The division of the panchayat service into district cadre, taluka cadre and local cadre does not affect the integrity of the panchayat service. It continues to be a single service notwithstanding such division. When the panchayat service is a Statewise service, it has necessarily to be held that it is a common centralised service.' The aforesaid observations only establish the fact that the panchayat service is a part and parcel of the State service and it is common centralised service. However, formation of different cadres of employees working at different levels of centralised service cannot be treated to be illegal or ultra vires from any view point, especially when it is well established by series of judgments of this Court and the Supreme Court two of which are noticed earlier, that it is open to the State authorities to maintain separate cadres of employees working in and belonging to the same service. In this connection, it is also pertinent to note that the State of Gujarat in exercise of its powers under Section 323 of the said Act and other relevant sections thereof, has framed various rules. Rules which are relevant for the present purpose may be noted. Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967 deal with the question Of classification of panchayat service and provisions for recruitment to panchayat service. Rule 3 thereof provides that-

(1) The panchayat service shall consist of two Classes namely-

(i) superior panchayat service;

(ii) inferior panchayat service.

Sub-rule (2)(a) of Rule 3 reads as under:

The superior panchayat service shall consist of posts which are not included in the inferior panchayat service.

11. While Sub-rule (2)(b) provides that the inferior panchayat service shall consist of posts specified in Schedule I. Schedule I annexed to the rules contains number of posts totalling to 57. These listed posts refer to different class IV employees like peons etc. and do not include live stock inspectors or stockmen. Therefore, it must logically follow that live stock inspectors or stockmen working in the panchayat service would belong to superior panchayat service. However that will not resolve the controversy posed in the present case. Even though the petitioners belong to superior panchayat service, their districtwise categorisation if not frowned upon but on the contrary by provisions of the Panchayats Act validly permitted to hold the field as discussed above, consequential maintanance of districtwise seniority of the petitioners and other employees similarly situated cannot he treated to be illegal or void from any view point.

12. Next set of rules which deserve a mention at this stage are the Gujarat Panchayat Service (Transfer of Servants) Rules, 1968. These rules provide for inter-district transfer of panchayat employees belonging to different cadres in case of exigency of service after following the procedure laid down, by the said rules. These rules have also provided that in case of stockmen (veterinary), the transferring authority in ordinary course would be the district Animal Husbandry Officer. Of course, the said officer will be entitled to transfer stockmen (veterinary) within the district panchayat set up. But if such employees are to be transferred beyond the district, the procedure laid down under Rule 3 has to be followed. As enjoined by Rule 3, a member of panchayat service belonging to district cadre in a district may, by an order in writing, be transferred by the Development commissioner to the corresponding cadre in the other district it in the opinion of the Development commissioner, such transfer is required to be made in the interest of public. As per Rule 4 of the transfer rules, a transfer of a member under Rule 3 shall not affect pay, leave pension, provident fund, gratuity and other rights and privileges in relation to service, to which such member was entitled immediately before his transfer. The scheme of these rules clearly indicates that any panchayat employee serving in the district cadre can usually not be transferred beyond the district in which he is working, save and except, in exceptional circumstances, after following the procedure of Rule 3 only. Despite such inter-district transfer, as per the provision of Rule 4, the service conditions then existing prior to his transfer, meaning thereby, service conditions as obtainable in the cadre in which he is fitted will not be adversely affected. In view of the aforesaid statutory scheme, it cannot be said that maintenance of separate cadres of live stock inspectors districtwise is in any way ultra vires or contrary to the provisions of the Act. Once that conclusion is reached, the logical consequence thereof must follow viz., that of maintaining separate seniority list of employees belonging to separate cadres. The third contention of Mr. Tripathi, therefore, also fails and stands repelled. These were the only contentions canvassed in support of the petition and as they fail, the petition also fails and accordingly, rule is discharged. In the facts and circumstances of the case, there will be no order as to costs.


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