CWP No.8228 of 1988 : 1 : In the High Court of Punjab and Haryana at Chandigarh Date of decision: 16.12.2008. 1.CWP No.8228 of 1988 Mehar Chand … Petitioner Versus Secretary to Government of Punjab and others … Respondents 2.CWP No.8726 of 1988 Pritam Singh Versus Secretary to Government of Punjab and others … Respondents Present: Mr.JS Sathi and Mr.Harpal Singh, Advocates, For the petitioners. Mr.SS Sahu, Assistant Advocate General, Punjab, For No.1. Mr.T.S.Thukral, Advocate, for respondent Nos.2 and 3. PERMOD KOHLI, J. (Oral): I have heard the learned counsel for the parties at length and perused the record of the case. This judgment of mine shall dispose of above said two writ petitions as in both the cases, questions of law and facts are similar. Petitioners, Mehar Singh and Pritam Singh, were appointed as Veterinary Pharmacists by respondent No.2 vide order dated CWP No.8228 of 1988 : 2 : 10.08.1987 in the Civil Veterinary Hospital, Kot Bhai and Badhni Kalan, District Faridkot, respectively, on the recommendations of the District Selection Committee, Faridkot. In the appointment letters, it is mentioned that they will be on probation for a period of one year. The petitioners continued to work on their appointments. It is alleged that the petitioners successfully completed the period of probation and were waiting for their confirmation when they were removed from the service vide orders dated 07.09.1988, Annexure P-4 and Annexure P-2, respectively, by the Secretary, Zila Parishad, Faridkot, on the ground that the Secretary, Rural Development and Panchayats Department, Punjab, has declined approval vide his communication dated 30.08.1988. The petitioners were relieved from their duties on the same day. The petitioners have, thus, challenged their orders of removal from service in the present writ petitions. On being put to notice, respondents have filed their separate replies. Besides raising preliminary objections that the petitioners have not exhausted the remedies contained in Section 116 of the Punjab Panchayat Samitis and Zila Parishads Act, 1961 (hereinafter referred to as “the Act”). It is also stated that the petitioners are guilty of concealment of facts. It is also stated that the Government has nothing to do with the appointment of the petitioners and it is the Zila Parishad which has to make the appointments. It is further mentioned that in the meeting held on 21.01.1987 under the Chairmanship of the then Director, Rural Development and Panchayats, Punjab, a decision CWP No.8228 of 1988 : 3 : was taken that keeping in view the weak financial position of these Local Authorities, no vacant post should be filled up without the prior approval of the Government. It is, accordingly, stated that under Section 33 (1) of the Act, local authorities are bound to obtain prior approval of the Government if the expenditure on the establishment exceeds. Section 33 (1) of the Act permits Panchayat Samitis to employ such servants as it may consider necessary for the efficient performance of the duties imposed upon it by this Act or the rules or bye-laws made thereunder or any other law for the time being in force. It also authorises and empowers the Panchayat Samitis to fix such pay and allowances etc. subject to the prescribed limit. Proviso to Clause (a) of Section 33 of the Act, however, require prior approval of the government where the expenditure in excess of the Panchayat Samiti is required. Rule 4 of the Punjab Panchayat Samitis and Zila Parishads Service Rules, 1965 (hereinafter referred to as “the rules”), framed under the aforesaid Act, deals with the appointing authority which reads as under:- “4. Appointing Authority: - (1) All appointment to the Service shall be made:- (i) in the case of employees of a Zila Parishad by the Zila Parishad concerned; CWP No.8228 of 1988 : 4 : and (ii) in the case of employees of a Panchayat Samiti, and also in the case of Secretary of a Gram Panchayat, by the Panchayat Samiti concerned. (2) All appointments to the Service shall be made by the appointing authority on the recommendation of the :- (i) Commissioner where the post carries initial pay of Rs.300/- or more; (ii) District Committee concerned where the initial pay is less than Rs.300/-; Provided that a vacancy which could not be anticipated may be filled in by the Zila Parishad or the Panchayat Samiti, as the case may be, for a period of six months or till a candidate is recommended by the Commissioner or District Committee, as the case may be, whichever is earlier. (3) The District Committee referred to CWP No.8228 of 1988 : 5 : in sub-rule (2) shall consists of:- (i) The Chairman of the Zila Parishad- Chairman. (ii) The Deputy Commissioner of the district-Member. (iii) The District Development and Panchayat Officer-Member. (iv) The Chairman of the Samiti concerned where the vacancy to be filled up relates to the Cadre of the Samiti-Member.” Under the aforesaid rule, the appointments are to be made by the Zila Parishads or Panchayat Samitis concerned. Sub rule 2 of rule 4 of the rules aforesaid, however, provides for the appointments on the recommendations of the Commissioner where the post carries initial pay of Rs.300/- or more and in all other cases on the recommendations of the District Committee concerned. Proviso to sub- rule (ii) of rule 2 of the rules further empowers the Zila Parishads or the Panchayat Samiti to fill up a vacancy temporarily for a period of six months or till a candidate is recommended by the Commissioner or the District Committee, as the case may be. In the present case, it is not in dispute that the vacancies CWP No.8228 of 1988 : 6 : against which the petitioners were selected and appointed were existing at the relevant time, which means there was already financial provision for the Panchayat Samiti and Zila Parishads. The contention on behalf of the respondents is that the State Government i.e. Secretary, Rural Development and Panchayat declined the approval as the financial condition of the Panchayat Samiti was lean and this power was exercised under proviso to Section 33 (i) (a) of the Act. From the reading of the aforesaid proviso, it appears that the prior approval of the Government is only needed where any excess expenditure is required over the establishment of the Panchayat Samiti. The vacancies occupied by the petitioners were already on the existing strength of the employees of the Panchayat Samiti and were not in addition to the posts created or anticipated. Thus, these vacancies could not involve any additional expenditure over the establishment of the Panchayat Samiti for which no approval was required. This position is further apparent from sub section (i) of Section 33 (a) of the Act which empowers the Panchayat Samiti to employ or engage such servants as it may consider necessary for the efficient performance of the duties imposed upon it by this Act or rules or bye-laws made thereunder or any other law for the time being in force, than the prescribed limits, and fix pay and allowances. Rule 4 of the rules empowers the Panchayat Samiti to make appointments on the recommendations of the District Committee or the Commissioner, depending upon the facts and CWP No.8228 of 1988 : 7 : circumstances. In the present case, appointments have been made on the recommendation of the District Committee concerned. Further contention of the learned counsel for the respondents is that the service of the petitioners has been dispensed with during the period of probation and the government was competent to remove them from service during probation period. From the orders impugned as also the reply, it appear that the petitioners services were not dispensed with on account of non satisfactory service/performance during the probation period. The plea raised is that the petitioners services were dispensed with on account of weak financial position of the Panchayat Samiti. Such a situation is not contemplated for removal of a public servant during probation. The object and purpose of probation is only to watch his performance as also his act and conduct to find out whether he will prove to be a good public servant or not. It has nothing to do with the financial status of the employer. Therefore, the plea raised by the respondents is totally uncalled for and the petitioners could not have been removed from service during probation on this count. The next contention of the learned counsel for the respondents is that in the Board Meeting a ban was imposed for filling up the vacant posts. No law has been shown as to whether the Director could impose any ban on the filling up of the existing vacancies or the persons already working on the sanctioned strength of the employees CWP No.8228 of 1988 : 8 : can be removed from service on this ground. Otherwise also, it was for the Panchayat Samiti/employer to see whether the vacancies are to be filled up or not. No such decision taken in the Board meeting could deprive the appointing authority for making such appointment. There is no merit in this contention as well. Further more, at the time of filing of the present petitions, the removal of the petitioners from service was stayed by this Court and the petitioners have continued in service since then uninterruptedly. These petitions are pending for the last almost 20 years. In view of the totality of the facts and circumstances, legal and factual background mentioned here-in-above, these petitions are allowed and the impugned orders dated 07.09.1988 (Annexures P-4 and P-2, respectively) are hereby quashed. The petitioners are held entitled to all consequential benefits. No costs. 16.12.2008. (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES