, RAM SARUP

-STATE OF BARY ANA & ORS.

May3, 1984 .. [Y.V. CHANDRACHUD c;.J, D.P. MADON, AND RANGA NATH f

MISRA, JJ.J

Panchayat Samitls, and Zilla Paris'1ads Act, 1961 a.r amended by Harayna Ame1Jdment .Act of 1973 de!etiilg Section 33, Effect of-Whether af)y tzppointlizenf made after the deletion of Section 33 valid effective. rf

Section 33 of the Punjab Panchayat Samitis and Zilla Parishads Act, 1961 provided that subject to rules made by the Govetnment, a Panchayat Sariliti may employ such servants as it n1ay consider necessary for the efficienrPerfor- mancc of the dufies imposed upon it by the Act,. i; ules or bye-laws.made there- unde( o~ by any other law for the time beilig in force. The Punjab Panchayat Samitis and Zilla Parishads (Haryana Amendment Act, j973 which came into force from June, 13, 1973', introduced extenSive ar!lendments. Section 33 of the Act was deleted by Section 13 of the Amending Act, Sub section (4) of Section

14 theAmending Act, provided that persos.empJoyed by a Panchayat Samiti before April 4, 1973 and who .were in service .at the commecement of the Amending Act, "shall colninue to serve on the. same terms and conditions on which they "'ere employed by the J>anchayat Samiti" until th.ey are absorbed in the G.overnment Service or retire in sch mannei as m.cy be prescribed. Section . 35(1) of the Act empowers the State-Government to place at the disposa 1 of a

. Panchayat Samiti such of its servants as lrc required for the implementation of the schemes annexed therewith and for such other duties and .fUnCtions as may be assigned to then1 by the Panchayat Samitis from time to timee.

The appellant was appointed as a clerk on Julle I, 1963 by the Panchayat Sarniti, Loharu; He .was confirmed. in that post in course of rime. On January 21,.1974, he was promoted as a Head Clerk lQn an adhoc basis. On March, 14 -1975 a resolution was passed by the Samitl regularising the post of Head Clerk.

On April 1, 1975, the appellant'was appoioted ~:s a Head Cl.erk. Acting in pursuance of the provision of Section 14(4) of the the Amending Act, the Government of Haryana notified the absorption o_f the appellant-as 3. clerk. though hC was worki'ng as a:Head Clerk' since January 21, 1974." B:ing aggriev~ ed the appellant filed a Writ Petition and prayed for il direction to absofb him as a"Head Clerk .. The Writ Petition having been. dismised by the High Court, the appellanths filed this appeal by special leave;

Dismissing. the appeal, the _Court,

HELD: LJ. The Panchayat Samiti had no right to appoint the appellant to the post of Had Clerk on the date on Which it purported tQ dO so. As a result of the <leletion of Section 33 of the Act by the Amending Act of 1973, the

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RAM Si\RUP v. HARYANA (Chandrachud, C.J.) 735

Panchayat Samiti lost its. power to make appointment to the Parichayat. It could not ther.efore have appointed the appellant as a Head Clefk, as it purported to d(}-so, in January,· 1974 on an adhoc basis or in April 1965 On a , regular basis. [737D]

, J .2. Thoughthe right to be considered. for promotion is a term and condi-

- tion of service, in the instant case, the_ appointment .of the appellant to the post

ofa Head CJerk being without the authority of law, the Government was nOt bound to absorb him in. the post of a Head Clerk; He was appointed 1awfu1Jy to the post of a clerk and that fs the pst in which the Government' has absorbed him; [737C ; El

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1433 of . c 1977

Appeal by Special leave from the Judgment and Order. datd the !6th.February, 1977. of the Punj1b and Haryana High Court in

Civil Writ Petition No. 752 of 1977.

J.D. Jain & Mrs. Kawa/jit Kocher for the Appellant.

Harban.; Lai, l.S. Goel & R.N. Poddar for the Respondent.

• The Judgment of the Court was delivered by

CHANDRACl!UD, CJ. Section 33 of the Punjab Panchayat Samitis and Zilla Parishads Act, 1961 ("The Act")" provided in so far as relevant, that subject to rules made by the Government, a Pai:J.chayat Samiti may employ such servants as it may consider ne.cessary for the efficient performance of the duties imposed upon it by the Act, rules or bye-laws made thereunder or by any other law for the time being in force.

In p, ursuance of this power, the appellant was appointed as a clerk on June 1, 1963 by the Panchayat Samiti, Loharu, which is respondent 3 in this appeal.

He was confirmed in that po.st in course of time. On J'anuary 21, 1974 he was promo.ted as a Head Clerk on an ad lzc basis. On March 14, 1975 a resolution was passed by .respondent 3 regularising the post of Head Clerk . . On April 1; 1975, the appellant was appointed as a Head Clerk.

The Punjab Panchayat SamitisJ Zilla Parishads (Haryana Amendment) Act, 1973 introduced extensive.amendments in the Act of 1961. Section 13 of the Amending Act deleted section 33 of the Act. , A plain consequence of this deletion was that the Panchayat Samitis were divested of their power to make allPointments to the Panchayats. The Amending Act re1ieived the assent of the Governor

736 '.'lll'RJMB COURT REPORTS l\9S4J 3 S.C.ll

on April 25, 1973 and was published in the Haryana Gazette on June 13, 1973:

Sections 35(1) of the Act empowers tbe State Govrnment to place at the disposal of a Panchayat Samiti such of its servants as are required for the implementation of the schemes connected therewith and for such other duties and fuµctions as may be assigned to them by the Panchayat Samiti from time to time. Section 35(3) which dealt with the conditions . of. service of the Government servants allotted to the Panchayai Sam.tis, was amended by section · 14 of the Amending AC! of 1973. Sub-section (4) of section 14 of the Amending Act provides that persons employed by a Panchayat

Samiti before April 1, 1973 and who were in s.ervice at the commencement of the Amending Act, "shall continue to service on the same terms and conditions on which they were employed by the Panchayat Saroiti", until they are absorbedin the Government service or retire in such manner as may be pres?ribed.

• 'Acting in pursuance of the provision of section 14(4) of the Amending Act, the Government of Haryana notified the absorption of the apellant as a clerk though, as stated earlier. he . wa.s working as a Head Clerk in the Loharu Panchayat Samiti. Being aggrieved by his absorption on a lower post, he filed a writ petition in the High Cput of Punjab and Haryana, asking that he .should be absorbed as a Head Clerk. The writ ptition having been dismissed by th~ High Court, the appellant has filed. this appeal' by special leave. ...

The appellant was appointed as a clerk by the Loharu Panchayat Samiti in 1963, long before the .. Amending Act came into for<; e on June 13, 1973.

He was, therefore, entitled to be absorbed in Government service as a clerk in any event. But, as a result of the deletion of section 33 of the Act by the Amending Act of 1973, the Panchayat Samiti lost its power to make appointments to the Panchayat. The fact that th, e appellant was promoted as a Head Clerk of\ an ad hoc basis in January 1974, or the further fact.that he was appointed as a Head Clerk on April l; 1975, cannot improve his position for the simple reason that these appointments we.e made after June 13, 1973, being the date on which the Panchayat

Samiti lost its power to make appointments to the Panchayat.

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RAM SARUP v. HARYANA (Chandrachud, CJ.) 131

It is urged by Shri Jain who appears on behalf of the appellant that by reason of section 14(4) of the Amending Act, the appellant was entitled to continue in the service of the Panchayat on the same terms and conditions on which he was employed by the Panchayat Samiti until he was absorbed in Government service. Since the appellant, according to the terms and conditions of his service with the Panchayat, was entitled to be considered for promotion to the post of a Head Clerk, his appointment s a Head Clerk prior to his

absorption in Government service had to be recognised and protec- ted, despite the fact that such appointment was made after June 13, 1973 when the Amending Act came into force. There is no substance in this contenion. Even assuming for the purposes of argument that the right to be considered for promotion is a term and condition of service, what is relevant for . our purpose is not whether the appellant was entitled to be considered for promotion but, whef(el' the Panchayat. Samiti had the right to appoint him t6 the post of Head Clerk on the date on which it purported to do so. Clearly, it had forfeited that right on June 13, 1973.

It could not, therefore, have appointed the appellant as a Head Clerk, as it pnrported te> do, in January 1974 on an ad hoc basis or in April 1675 on a regular basis. .The. appointment of the appellant to the post of a Head Clerk being without the authority of law, the Government was not bound to absorb. him in the post of a Head Clerk. He was appointed lawfully to the post of a Clerk and that is the post in which the Government has absorbed him.

For these reasons, the appeal fails and is dismissed. There will be "no order as to costs.

S.R Appeal dismisseJ.