IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1192 of 2002 with SPECIAL CIVIL APPLICATION Nos 4995 and 4997 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : -------------------------------------------------------------- GUJARAT PRADESH PANCHAYAT PARISHAD Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 1192 of 2002 MR TUSHAR MEHTA for Petitioner No. 1-3 MR SN SHELAT, ADVOCATE GENERAL with MS MANISHA LAVKUMAR, AGP for Respondent No. 1-2 NOTICE SERVED BY DS for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH Date of decision: 25/10/2002 C.A.V. JUDGEMENT All these petitions filed by the Gujarat Pradesh Panchayat Parishad and the District Panchayat of three Districts viz. Sabarkantha, Jamnagar and Junagadh and their respective Presidents raise important questions about interpretation of Section 162 and other provisions of the Gujarat Panchayats Act, 1993 (hereinafter referred to as "the Act"). The controversy essentially revolves round the scope of powers of the President and the District Development Officer in the administration of a District Panchayat. The thrust of the petitioners' case is that the District Development Officer is none more than an ex-officio Secretary of the District Panchayat and that under Section 162 of the Panchayats Act, he is required to perform all the functions and exercise all the powers only in accordance with the orders of the President and/or of the District Panchayat and that on his own the District Development Officer can do nothing without the prior orders of the President of the District Panchayat. 2. Although it is not customary for a Court to give any synopsis of its judgment, looking to the length of this judgment, this Court would like to undertake this venture:- SYNOPSIS OF THE JUDGMENT: PARA 1. Introduction 2. Synopsis 3. Facts 4. Major Constitutional and Statutory Provisions 5. Petitioners' Submissions 6. Respondents' Submissions DISCUSSION 7. Article 243-G and Scheme of Gujarat Panchayats Act, 1993 8. Is President of District Panchayat like Chief Minister of State - What are princples underlying Panchayats Act. 9. Executive Powers vested in DDO - Their exercise subject to the orders, if any, of President 10. Elected Officer bearers and Civil Servants 11. Sections 161, 162 and 227 of the Act 12. Panchayats Act and BPMC Act 13. Three Areas of DDO's Functions Demarcated 14. Parameters and modalities for State Government Control 15. Summary of Conclusions 16. Legality of Resolutions of District Panchayat 17. ORDERS 3.0 FACTS 3.1 In view of the nature of the controversy between the parties, only broad facts are required to be narrated without referring to minor bickerings between the President and the District Development Officer of the concerned District Panchayat. 3.2 The Gujarat Pradesh Panchayat Parishad, petitioner No. 1 in the lead petition (Special Civil Application No. 1192 of 2002), was registered as a society under the Societies Registration Act, 1860 on 27.9.1965. All the District Panchayats, Taluka Panchayats and Gram Panchayats who opt for being admitted to its membership are members of the Parishad. It purports to protect the interests of the panchayats in the State of Gujarat so as to enable them to function as institutions of local self government. Petitioner No. 2 in the lead petition is the Sabarkantha District Panchayat consisting of elected representatives. The present term of the District Panchayat commenced from 6.10.2000. Petitioner No. 3 in the lead petition is the President of the Sabarkantha District Panchayat. 3.3 In the year 1977, the State Government had issued a circular dated 30.6.1977 (Annexure "B") purporting to clarify the scope of Section 143(1) of the Gujarat Panchayats Act, 1961 about the powers of the President and the District Development Officer. In the matters regarding appointment, transfer, promotion, seniority, disciplinary action etc. regarding the panchayat employees which are regulated by the Rules, the District Development Officer can follow such Rules and pass appropriate orders and if such Rules do not confer any powers on the District Panchayat or its President, the District Panchayat or the President cannot pass any orders restricting the powers of the District Development Officer. Even in the matters other than staff matters, if there are statutory Rules governing the subject, the same position will prevail. Even in the matters which are not covered by the statutory Rules, the District Development Officer may exercise his powers subject to the orders of the District Panchayat or the President in accordance with the provisions of the Gujarat Panchayats Act, 1961 but the District Panchayat or its president cannot restrict the exercise of powers of the District Development Officer under Section 143(1) of the Gujarat Panchayats Act, 1961. It was further clarified in the circular that the District Development Officer is to exercise his quasi-judicial powers according to his own discretion and the President of the District Panchayat cannot control the exercise of the powers of the District Development Officer under the Rules. The State Government accordingly requested all the District Panchayats and their Presidents to re-examine the orders or resolutions passed by the President of the District Panchayat restricting the powers of the District Panchayat under Section 143(1) of the 1961 Act. 3.4 Shortly thereafter the State Government issued another circular dated 19.7.1977 (Annexure "C") instructing the District Development Officers that, pending further orders of the State Government which may be issued upon the recommendations which may be made by a Committee for suggesting amendments to the Gujarat Panchayats Act, 1961, for administrative convenience in the matters of transfer of panchayat employees, the District Development Officer should take the decision after prior consultation with the President of the District Panchayat, subject to the instructions and directions of the State Government regarding transfer matters. The above circular was clarified by the circular dated 14.4.1978 (Annexure "D") to the effect that for administrative convenience the District Development Officer is to have prior consultation with the President of the District Panchayat in matters of transfer of employees, but after such consultation the District Development Officer has to take his own decision in accordance with the Rules and standing instructions of the State Government regarding transfers. 3.5 Pursuant to the representations made by the Gujarat State Panchayat Council at its meeting held on 7.7.1988, the State Government issued circular dated 13.1.1989 (Annexure "F") withdrawing the aforesaid circulars dated 13.6.1977, 19.7.1977 and 14.4.1978 with a clarification that the District Development Officers and the Taluka Development Officers and the Presidents of the District Panchayats and Taluka Panchayats shall exercise their respective powers in accordance with the statutory provisions. Under the Act, special powers have been vested in the officers, but the control of the State Government over administrative matters of the panchayat shall remain unfettered. In case of difference of opinion or dispute between the Presidents of the District Panchayats and Taluka Panchayats on the one hand and the District Development Officers and Taluka Development Officers on the other hand, the guidance of the State Government shall be obtained. 3.6 Again on 17.8.1989 the State Government in the Panchayat Department issued two circulars (Annexure "G" colly.) making an attempt to clarify the scope of powers of the President of the District Panchayat/Taluka Panchayat and the District Development Officer/Taluka Development Officer under Sections 143 and 123 of the Act, but again these circulars also came to be reviewed by the State Government and cancelled by circular dated 24.4.1990 (Annexure "H"). It is, therefore, not necessary to make any further reference to the said circulars dated 17.8.1989. 3.7 The Sabarkantha District Panchayat approached this Court by filing Special Civil Application No. 4927 of 1990 praying for a direction that the District Development Officer should exercise his executive powers and more particularly powers regarding transfer of employees of the District Panchayat subject to the orders of the President of the District Panchayat. That petition came to be admitted and ad-interim orders dated 10.7.1990 were passed by this Court staying the operation of the circulars issued by the State Government. 3.8 It is the petitioners' case that after the constitution of the Sabarkantha District Panchayat for the term commencing from 6.10.2000, the District Panchayat and its President felt that the District Development Officer, Sabarkantha, respondent No. 3 herein, was functioning on his own and ignoring the President of the District Panchayat in the administrative matters and more particularly in the matters of transfer, promotion, postings and other service conditions of the employees and officers of the Panchayat and, therefore, the General Body of the Sabarkantha District Panchayat passed resolution No. 6 dated 21.11.2001 (Annexure "L"). The District Panchayat resolved that the District Development Officer shall consult the President of the District Panchayat in all matters including submitting proposals to the State Government regarding all works of the District Panchayat and also in all matters of all the projects of the District Panchayat including proposals for land, expenditure or development projects and also in all matters relating to recruitment, appointment, transfer, promotion, and training of all panchayat employees in Class-III and Class-IV (including primary teachers) and in all matters relating to appointment and transfers of Class-II officers being sent on deputation by the State Government to the panchayats. The District Panchayat also resolved that the District Development Officer be called upon to consult the President in all matter and to abide by the interim orders passed by the High Court on 11.7.1990 in Special Civil Application 4927 of 1990. Thereafter by Office Order dated 13.12.2001 (Annexure "M") the President of the District Panchayat directed respondent No.3, District Development Officer, Sabarkantha to place all the files relating to the recruitment, appointment, promotion, transfer and deputation of all Class-III and Class-IV employees in the District Panchayat (including primary teachers and Education Inspectors) and relating to appointment, transfer and deputation of all Class-II officers to the District Panchayat for consultation with the President. The petitioners have also made grievance about directions being given by the ministers in charge of departments other than the Panchayats Department in the matters pertaining to administration of panchayats. 3.9 In Special Civil Application No.1192 of 2002, which is the lead petition with all the pleadings filed by the parties, the petitioners have prayed for a direction to the District Development Officers of all the District Panchayats in the State to discharge their functions in accordance with Section 162 of the Act and to take decisions including the recruitment and/or appointment, transfer and postings of the Officers and employees of the District Panchayat only in accordance with the orders of the President and/or the District Panchayat and also prayed for a declaration that the District Development Officer of a District Panchayat has no power, jurisdiction or authority to take any administrative decisions without obtaining orders from the President of the District Panchayat or from the District Panchayat. It is further prayed that the District Development Officer be directed to comply with the orders passed by the President of the District Panchayat on 13th December, 2001. 3.10 Similarly Jamnagar and Junagadh District Panchayats have filed the other two petitions with similar prayers. In these two petitions also, the petitioners have prayed for the writ to the District Development Officer to comply with the directions dated 13.12.2001 issued by the Presidents of the respective District Panchayats, though no such directions dated 13-12-2001 are produced alongwith the memo of the petition except the order dated 3.9.2001 passed by the President of the Junagadh District Panchayat directing the District Development Officer to assign duties to the officers in panchayat services or State services or All India services only after obtaining written consent of the President and in accordance with the instructions/suggestions of the President and similar order passed by the President of the Jamnagar District Panchayat. 4. MAJOR CONSTITUTIONAL & STATUTORY PROVISIONS Before enumerating the rival contentions, a brief reference may be made to the relevant principal constitutional and statutory provisions which are required to be interpreted for the purpose of deciding the controversy involved in these petitions. Article 243-B of the Constitution provides for establishment of Panchayats at village, intermediate and district levels. Article 243-G of the Constitution reads as under:- 243-G: POWERS, AUTHORITY AND RESPONSIBILITIES OF PANCHAYATS: Subject to the provisions of the Constitution, the Legislature of State may, by law, endow the panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-Government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein with respect to - (a) the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. After establishment of the State of Gujarat, the constitution and functioning of the panchayats at various levels was governed by the provisions of the Gujarat Panchayats Act, 1961. After 72nd constitutional amendments, the State Legislature enacted the Gujarat Panchayats Act, 1993 to bring the law relating to the Panchayats in the State in conformity with Part IX of the Constitution. Section 83 enumerates the powers and functions of the President and Vice- President of the District Panchayat in the following terms:- 83 - POWERS AND FUNCTIONS OF PRESIDENT AND VICE-PRESIDENT: (1)(a) The President shall - (i) convene, preside at and conduct meetings of the district Panchayat. (ii) have access to the records of the Panchayat; (iii) discharge all duties imposed and exercise all the powers conferred on him by or under this Act; (iv) watch over the financial and executive administration of the Panchayat and submit to the Panchayat all questions connected therewith which shall appear to him to require its orders; and (v) exercise administrative supervision over the District Development Officer for securing implementation of resolutions or decisions of the Panchayat or of any committee thereof. (b) The President may in cases of emergency, direct the execution or suspension or stoppage of any work or the doing of any act which requires the sanction of the Panchayat or any authority thereof and immediate execution or doing of which is, in his opinion, necessary for the service or safety of the public and may direct that the expenses of executing such act shall be paid from the District fund. ... ... ... ... .... ... 161. Secretary and Officers and Servants of District panchayat.- (1) Subject to the provisions of this Act and the rules made thereunder- (a) there shall be a secretary for every district panchayat; (b) a District Development Officer posted under the panchayat, shall be Ex-Officio Secretary of the Panchayat; (c) a district panchayat shall have such other officers and servants as may be determined under section 227. (2) The officers and servants referred to in clause (c) of sub-section (1) shall be appointed by such authority and their conditions of service shall be such as may be prescribed. (3) The officers and servants appointed under sub-section (2) shall in the discharge of their functions and duties, exercise such powers as may be conferred on them by the panchayat subject to rules, if any, made in this behalf. 162. Powers and functions of District Development Officer.- (1) Save as otherwise expressly provided by or under this Act, the executive powers of a district panchayat for the purpose of carrying out the provisions of this Act, shall vest in the District Development Officer who shall subject to the orders, if any, of the President or of the district panchayat, as the case may be - (a) perform all the functions and exercise all the powers specifically imposed or conferred upon him by or under this Act, or under any law for the time being in force; and (b) lay down the duties of all officers and servants of the district panchayat, (2) Subject to the Provisions of this Act and the rules made thereunder the District Development Officer shall - (a) be entitled to - (i) attend the meetings of the district panchayat, or any of its committee; (ii) call for any information, return, statement, account or report from any officer or servant of or holding office under, the district panchayat; (iii) grant leave of absence to such class of officers as may be prescribed by rules; (iv) call for an explanation for any officer or servant of or holding office under the district panchayat; (b) subject to the control of the district panchayat, discharge duties and perform functions, in respect of matters which by or under this Act are not expressly imposed or conferred on any committee, presiding officer or any officer of the district panchayat; (c) appoint such class of officers and servants as may be prescribed; (d) supervise and control the execution of all activities of the district panchayat; (e) take necessary measures for the speedy execution of all works and development schemes of the district panchayat; (f) have custody of all papers and documents connected with the proceedings of meetings of the district panchayat and of its committee; (g) assess and give his opinion confidentially every year on the work of the officers holding office under the district panchayat; forward them to such authorities as may be prescribed by the State Government and lay down the procedure for writing such reports about the work of officers and servants under the district panchayat; (h) draw and disburse money out of the fund; (i) exercise supervision and control over the acts of officers and servants holding offices under the district panchayat in matters of executive administration and those relating to accounts and records of the district panchayat; and (j) exercise such other powers and perform such other functions as may be prescribed by the State Government. (3)(a) Save as provided in clause (b), the District Development Officer may subject to such conditions as he may think fit to impose, delegate any of his powers and functions to any officer or servant holding office under the district panchayat, provided such officer or servant is not below such rank as may be prescribed. (b) .... ..... ..... ....... ....... (4) Subject to the other provisions of this Act, the District Development Officer shall be under the general control of the district panchayat. Section 227 provides for constitution of Panchayat service in connection with the affairs of panchayats which shall be distinct from the State service. The State Government may, by order from time to time, determine the classes, cadres, posts and initial strength of officers and servants in the panchayat service. For altering class, cadre or numbers of posts so determined by the State Government, the district panchayat will require previous approval of the State Government. Sub-section (5) of Section 227 of the Act reads as under:- (5) Subject to the provisions of this Act, the State Government may make rules regulating the mode of recruitment either by holding examinations or otherwise and conditions of service of persons appointed to the panchayat service and the powers in respect of appointments, transfers and promotions of officers and servants in the panchayat service and disciplinary action against any such officers or servants. PETITIONERS' SUBMISSIONS 5. Mr Tushar Mehta, learned counsel for the petitioners has made the following submissions :- 5.1 Section 83 (1)(a)(iv) and (v) of the Act confers powers upon the President of the district panchayat to watch over the financial and executive administration of the Panchayat and the power to exercise administrative supervision over the District Development Officer. Reliance is placed on the definitions of the words "administration" and "supervision" with reference to Black's Law Dictionary (6th Edition), Law Lexicon (1997 Edition) and the decisions of the Apex Court in State of Bihar vs. J.A.C. Saldanna, AIR 1980 SC 326 and in Rai Sahib Ram Jawaya Kapur vs. State of Punjab, AIR 1955 SC 549. 5.2 Sub-section (1) of Section 162 clearly provides for the following aspects:- (i) The executive powers of a District Panchayat are vested in the District Development Officer 'for the purpose of carrying out the provisions of the Act' . (ii) The exercise of such executive powers is subject to other express provisions made by or under the Act (unlike exclusive powers conferred upon the Municipal Commissioner under the BPMC Act), and (iii) The District Development Officer is statutorily required to perform 'all the functions and exercise all the powers' which are conferred upon him 'by or under this Act' (i.e. under the Rules) subject to the orders, if any, of the President or of the District Panchayat. Sub-section (2) of Section 162 enumerates other powers of the District Development Officer which are specifically made subject to the provisions of the Act including the provisions of Section 162 (1) of the Act. In other words, the powers conferred under Section 162(2) of the Act shall also be required to be exercised and performed subject to the orders of the President or of the District Panchayat. 5.3 Though the District Development Officer is appointed by the State Government under Section 161 of the Act, the District Development Officer is required to function as a Secretary of the Panchayat which is a Constitutional Institution of self-Government having autonomous functioning conferred by the Constitution itself. Section 161 of the Act makes it very clear that the DDO is the ex-officio Secretary of the Panchayat, and having said that the Legislature provides that the DDO will exercise executive powers of the Panchayat subject to the orders, IF ANY, of the President or the District Panchayat, as the case may be. The term "executive functions" is not defined in the Act. The said term is judicially defined in the judgment of the Hon'ble Supreme Court of India reported in AIR 1955 SC 549. The term "IF ANY" necessarily and inevitably presupposes existence of an order prior to the DDO exercising his executive functions. Any other meaning given to the term "IF ANY" would destroy the very purpose of the Legislation and the Constitution conferring the supremacy to the elected representative of the people. The very object behind the Constitutional mandate is to bring power to the people and to ensure that functioning of the District Panchayats in rural areas is entrusted to the peoples' representatives. 5.4 The term "same is otherwise expressly provided by or under this Act" takes care of those powers which are exclusively, specifically and unequivocally conferred upon the DDO as a named designated officer and the said saving clause saves the powers of the DDO which are uninterrupted powers and are not subject to the orders of either the President or the District Panchayat. Except those powers specifically conferred upon the DDO as a designated officer, the executive powers are intended to be exercised subject to the orders of the President or the District Panchayat. It may not be possible for the DDO to obtain orders specifically on each and every issue concerning day-to-day administration of the panchayat. The District Panchayat has, therefore, as pointed out hereinabove, passed a Resolution which is an order as contemplated under Section 162(1) of the Act directing the DDO to exercise the powers mentioned in the said Resolution after consulting the President of the Panchayat. There is no provision of "consultation". However, the District Panchayat, in exercise of its powers under Section 162(1) has directed the DDO to exercise his executive powers with regard to the subjects mentioned in the Resolution in consultation with the President of the Panchayat which ensures the fulfillment of the object of the Act and further smoothens the administration of the Panchayat. 5.5 Clause 162(1)(a) of the Act makes it further