YATINDRA SINGH, J. ( 1 ) THESE writ petitions challenge the validity of the Government orders (G. Os.) dated 6. 6. 2001, 21. 9. 2001 and 19. 11. 2001 so far as they, * repatriate the employees of three departments (who were earlier transferred to Gram panchayats) to their parent departments ; * re-designate and confine the duties of employees of two departments (still under control and supervision of Gram Panchayats) according to their educational qualifications. The consequential orders in pursuance of these G. Os. are also challenged. They are of different dates but their validity depends upon the validity of the aforesaid G. Os. ; they float or sink with the G. Os. HISTORICAL BACKGROUND OF THE G. Os. ( 2 ) INDIA, that is, Bharat is Union of States. Its territories consist of territories of the States and the union Territories. Geographically, they are divided into districts. A district consists of urban and rural areas. Urban areas are governed by Municipalities and rural areas by panchayats. Our majority lives in rural areas, yet there was no reference to panchayats in the Draft Constitution prepared (October, 1947) by Sri B. N. Rao, the constitutional adviser. This led Mahatama Gandhi to say : "i must confess that I have not been able to follow the proceedings of the Constituent Assembly. . . (The correspondent) says that there is no mention or direction about village panchayats and decentralisation in the foreshadowed Constitution. It is certainly an omission calling for immediate attention if our independence is to reflect the peoples voice. The greater the power of the panchayats, the better for the people (Harijan, 21 December 1947 ). " ( 3 ) THE draft Constitution was settled by a drafting committee before its introduction in the constituent Assembly on November 4, 1948, by its Chairman, Dr. B. R. Ambedkar. This settled draft was criticised, as it also did not have any reference to panchayats. (While introducing the Draft Constitution and referring to criticism thereof, Ambedkar had expressed himself strongly against the system of village panchayats. Characterizing the village as "a sink of localism" and "a den of narrow-mindedness", he had observed : "i am glad that the draft Constitution has discarded the village and adopted the individual as its unit. (While introducing the Draft Constitution and referring to criticism thereof, Ambedkar had expressed himself strongly against the system of village panchayats. Characterizing the village as "a sink of localism" and "a den of narrow-mindedness", he had observed : "i am glad that the draft Constitution has discarded the village and adopted the individual as its unit. " The expression of such a view by Ambedkar had evoked strong resentment and protests from a number of members, C. A. Deb. Vol VII. pp. 39-9 (The Framing of Indias Constitution. A study ; published by the Indian Institute of Public Administration, New Delhi page 330 foot note 3 ). Subsequently, an amendment (Article 31 A) was adopted on November 22, 1948, without any comments from Dr. Ambedkar. This became Article 40 of the Constitution, one of the Directive principles of State Policy. It lays down that the State shall take steps to organise panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. ( 4 ) SRI Jai Prakash Narain in a foreword to the book panchayat Raj and Indian Politics, dharampal, Collected Writings says : "during the freedom struggle, because of Gandhijis formative influence upon the political thinking of those who fought for freedom, it was more or less taken for granted that gramraj would be the foundation of swaraj. In other words, the concept of political and economic decentralisation was axiomatic with the fighters for freedom. But when the Constitution came actually to be constructed, that concept somehow was forgotten, or to be more precise, remembered only as an afterthought. " ( 5 ) OUR experience with panchayats in independent India had not been happy. These institutions were not able to acquire the status and dignity of viable and responsible peoples bodies due to a number of reasons Including absence of regular elections, prolonged suppressions, insufficient representation of weaker sections like scheduled castes, scheduled tribes and women, inadequate devolution of powers, and lack of financial resources. It was considered necessary that some basic and essential features of Panchayati Raj Institutions be enshrined in the Constitution to impart certainty, continuity and strength to them. Accordingly, a new Part IX relating to panchayats was added in the Constitution by 73rd Constitutional Amendment Act. It was considered necessary that some basic and essential features of Panchayati Raj Institutions be enshrined in the Constitution to impart certainty, continuity and strength to them. Accordingly, a new Part IX relating to panchayats was added in the Constitution by 73rd Constitutional Amendment Act. So far as relevant for this case, it, inter alia, provides for : * devolution by the State Legislature of powers and responsibilities upon the panchayats with respect to the preparation of plans for economic developments and social justice and for the implementation of development schemes (Article 243g) : * sound finance of the panchayats by securing authorisation from State Legislatures for grants-in-aid to the panchayats from the Consolidated Fund of the State, as also assignment to, or appropriation by, the panchayats of the revenues of designated taxes, duties, tolls and fees (Article 243h) ; * bringing existing laws in conformity with provisions contained in Part IX of the Constitution within one year, (Article 243n), (The relevant articles of the Constitution are in Appendix-1 to this judgment ). ( 6 ) ARTICLE 243b in Part IX envisages three-tier system of panchayats ; one at village level, one at district level, and one at intermediate level. In our State, rural area of a district is divided into blocks that in turn consists of villages and three levels of panchayats were already in existence. A Gram Panchayat is a local body governing a village, it could comprise more than one village also. It isgoverned by the U. P. Panchayat Raj Act, 1947 (the Panchayat Raj Act ). Under U. P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, Kshettra Panchayat, govern a block (Intermediate level) and Zila Panchayat a district. After 73rd Constitutional amendment many amending Acts were enacted to bring the existing law in conformity with the 73rd Constitutional amendment U. P. Act No. 9 of 1994 is the first of many such amending Acts. Reference to earlier law and amended law in this judgment refers to law as it stood before U. P. Act No. 9 of 1994 and the law as it stands today. ( 7 ) CHAPTER IV of the Panchayat Raj Act is headed as powers : Duties and Functions ; administration of Gram Panchayat. The earlier Section 15 under this chapter was titled as duties and Functions. ( 7 ) CHAPTER IV of the Panchayat Raj Act is headed as powers : Duties and Functions ; administration of Gram Panchayat. The earlier Section 15 under this chapter was titled as duties and Functions. It allowed the Gram Panchayats to take reasonable provision for the things mentioned in that section. This was drastically amended ; it is now titled, as functions of gram Panchayat and now Gram Panchayats are required to perform functions regarding the things mentioned in this section. A comparison of old and new section shows vast difference between the two and it includes matters enumerated in Schedule XI of the Constitution, as required under Article 243g of the Constitution. (Earlier and amended Section 15 is in appendix-2 to this judgment ). ( 8 ) SECTIONS 25 and 25a of Panchayat Raj Act provide for staff and disciplinary proceedings. (Earlier and amended Sections 25 and 25a are Appendix-3 to this judgment ). Under earlier section 25a, the State Government was to appoint Panchayat Sewak for a panchayat who was to be its Secretary, U. P. Panchayat Sewak Service Rules, 1978, were framed for recruiting them. This cadre of U. P. Panchayat Sewak Service was re-named as U. P. Gram Panchayat Adhikari service with effect from 27. 3. 1989 by amending the rules though there was no corresponding amendment in Section 25a. The State promulgated an Ordinance that was later replaced by U. P. Act No. 27 of 1999. This amending Act was enforced on 27th June, 1999. It substituted sections 25 and 25a in the U. P. Panchayat Raj Act. New Section 25 (1) (a) empowered the State government to transfer employees under supervision and control of Gram Panchayats. ( 9 ) THE State Government initially issued a G. O. dated 12th April. 1999. It was partly modified on 29th April, 1999. Under this G. O. at least one multipurpose worker was to be appointed in every gram Panchayat from the employees of eight departments of the Government who were transferred and kept under control and supervision of Gram Panchayats. At that time, there was no statutory provision in the Panchayat Raj Act empowering the State Government to transfer the employees. This G. O. was cancelled on 30. 6. 1999 and a fresh G. O. was issued on 1. 7. 1999 after enforcement of U. P. Act No. 27 of 1999, empowering such transfers. At that time, there was no statutory provision in the Panchayat Raj Act empowering the State Government to transfer the employees. This G. O. was cancelled on 30. 6. 1999 and a fresh G. O. was issued on 1. 7. 1999 after enforcement of U. P. Act No. 27 of 1999, empowering such transfers. This G. O. was partly modified on 12. 7. 1999 (Relevant part of these G. Os. are in Appendix-4 ). ( 10 ) THE G. O. dated 1. 7. 1999 (as modified) is similar to the G. O, dated 12. 4. 1999 in many respects. It has similar provisions. Similarly at least one multi-purpose worker, known as Gram panchayat Evam Vikas Adhikari, was to be appointed in every Gram Panchayat. He is to be from the employees of stated posts of the eight departments of the Government who were transferred to the Gram Panchayats (paragraph 4 of this G. O. ). He is to be the secretary of the Gram panchayat. The multipurpose workers are to perform all functions of the eight departments except some which are to be performed by the Lekhpals of the Revenue Department (paragraph 5 of this G. O. ). The transferred employees are to work under control and supervision of the gram Panchayats. Apart from this, employees of four other departments were also placed under control and supervision of Gram Panchayats, but they are not multi-purpose workers but are required to do the work of their departments only (paragraph 6 of this G. O. ). ( 11 ) THIS arrangement continued for some time. Thereafter Sinchai Sangh Uttar Pradesh made two representations dated 12. 4. 2000 and 21. 3. 2001 and Uttar Pradesh. Basic Health Workers association made a representation dated 19. 5. 2000, bringing out difficulties to the knowledge of the State Government and for changing the arrangement. The State Government also appointed a committee to look into difficulties in January, 2001, then on the basis of its recommendation, the g. O. dated 6. 6. 2001 was issued. This was modified by the G. O. dated 6. 7. 2001 and 21. 9. 2001. By these G. Os. , Sinchpal (Canal Division) and Male Health Workers are sent back to their parent departments. 6. 2001 was issued. This was modified by the G. O. dated 6. 7. 2001 and 21. 9. 2001. By these G. Os. , Sinchpal (Canal Division) and Male Health Workers are sent back to their parent departments. The tube-well operators and cane supervisors having qualification up to High school were re-designated as Gram Panchayat Evam Vikas Adhlkari (Karyakram) and they were to look after the work of their department only. The tube-well operators and cane supervisor having higher qualification were continued to work as multi-purpose workers ; they were to perform work of other departments also (the relevant part of G. O. dated 6. 6. 2001, as modified by the G. O. dated 6. 7. 2001 and 21. 9. 2001 is Appendix-5 to this Judgment ). By G. O. dated 19. 11. 2001, Sinchpal cadre belonging to the department of Bhumi Vikas and Jal Sansadhan department were also sent back to their parent departments. (The relevant part of this G. O. is appendix-6 to this judgment ). Thus, by the impugned three G. Os. , the employees of the three departments were repatriated and employees of two departments were re-designated and confined in their duties on the basis of educational qualification. POINTS FOR DETERMINATION ( 12 ) I have heard Sri U. N. Sharma, Sri B. N. Singh and Sri R. N. Singh counsel for the petitioners. Sri Kripa Shanker Singh and Sri Ajay Bhanot have been heard for the respondents. The following points arise for decision : (i) Whether G. O. dated 6. 6. 2001 is violative of Article 166 of the Constitution of India? is it a decision of the State Government? (ii) Is the cadre of the transferred employees a dead cadre? What is the status of the transferred employees? Have they been absorbed in a new cadre? Are they merely transferred or are on deputation to Gram Panchayats? (iii) Can Sinchpal (canal division), Male Health Workers, and Sinchpal (Bhumi Vikas and Jal sansadhan Department) be sent back to their parent departments? Could the power to transfer them be exercised only once? is this action of sending them back to their parent departments arbitrary or discriminatory? (iv) Is there any prejudice to the employees re-designated as Gram Panchayat Evam Vikas adhlkari (Karyakram)? Can they be divided into two classes on the basis of educational qualifications? point NO. 1 : G. O. DATED 6. 6. is this action of sending them back to their parent departments arbitrary or discriminatory? (iv) Is there any prejudice to the employees re-designated as Gram Panchayat Evam Vikas adhlkari (Karyakram)? Can they be divided into two classes on the basis of educational qualifications? point NO. 1 : G. O. DATED 6. 6. 2001 IS BY THE STATE GOVERNMENT ( 13 ) THE Chief Secretary has issued the G. O. dated 6th June, 2001. Initially there was neither any assertion in this G. O. that it is issued with the approval of the Governor, nor it was mentioned at the end that the Chief Secretary has issued it on behalf of the Governor. It was modified by the g. O. dated 6. 7. 2001. A line has been substituted in the body of the G. O. mentioning that the governor has given his approval for issuing this order. Though even after this correction, it does not say that it is issued on behalf of the Governor or the Chief Secretary has authenticated it on behalf of the Governor. Does this make the G. O. personal decision of the Chief Secretary and not that of the State Government? ( 14 ) ALL executive actions of a Government of State are to be taken in the name of the Governor as mentioned in Article 166 (1) of the Constitution but : "it is,. . . . . settled law that provisions of Article 166 of the Constitution are only directory and not mandatory in character and, if they are not complied with, it can be established as a question of fact that the Impugned order was issued in fact by the State. . Government or the Governor. " (Chitralekha v. State of Mysore. AIR 1964 SC 1823 ). ( 15 ) AFTER modification, the G. O. dated 6. 6. 2001 expressly states that it is Issued with the approval of Governor. The Chief Secretary, the highest officer of the State, has issued it. The joint Secretary in the Panchayat Raj department, who is also entitled to authenticate any government order under U. P. Authentication Orders and Other Instrument Rules, 1975, has filed an affidavit along with amending G. O. dated 6. 7. 2001. He also states that this is the decision of the State Government. In view of this, the G. O. dated 6. 6. 2001 is the decision of the State government. 7. 2001. He also states that this is the decision of the State Government. In view of this, the G. O. dated 6. 6. 2001 is the decision of the State government. POINT NO. 2 : NOT A DEAD CADRE ON DEPUTATION ( 16 ) SECTIONS 25 and 25a of the Panchayat Raj Act, deal with appointment of the staff and the secretary. A reading of earlier Section 25a shows that Panchayat Sewak (later Panchayat Raj adhikari) was Secretary of the Gram Panchayat. The State Government appointed him. Section 25 of the Panchayat Raj Act provides for appointment of other staff by Gram Panchayat and drawing up of disciplinary proceedings against them. ( 17 ) THE State Government can transfer any of its employees to work in the Gram Panchayats under same terms and conditions as were there before their transfer. (Section 25 (1) (a) and (b) ). Gram Panchayats can employ anyone after obtaining prior approval of the Prescribed Authority (Section 25 (2) ). Gram Panchayats also have power to punish the employees appointed by it (Section 25 (3 ).) ( 18 ) THE State Government or such officer (empowered in this regard) is to appoint a Secretary of gram Panchayat (amended Section 25a ). He has to be among the persons who are transferred by the Gram Panchayats under Section 25 (1) (b) or a person appointed by Gram Panchayat under section 25 (2 ). The State Government has also framed rules known as U. P. Gram Panchayat niyamawali, 1999 (the Niyamawali) providing for appointment of Gram Panchayat Evam Vikas adhikari. Under the Niyamawali, they are to be appointed by Gram Panchayats. It is true that transferred employees were appointed by the State Government, but once they retire, then under the G. O. dated 1. 7. 1999, the State Government cannot appoint any one on their vacancy and the new appointments will be made by the Gram Panchayats. Then the Secretary would be the one, among the persons, appointed by the Gram Panchayats. ( 19 ) PETITIONERS submit that : * Their cadre is a dead cadre. * Their old cadre does not exist and they should be presumed to have been absorbed in the new cadre. * They cannot now be transferred back to their parent departments. ( 20 ) THE heading of the paragraph 11 of the G. O. dated 12. 4. * Their old cadre does not exist and they should be presumed to have been absorbed in the new cadre. * They cannot now be transferred back to their parent departments. ( 20 ) THE heading of the paragraph 11 of the G. O. dated 12. 4. 1999 (as modified by the G. O. dated 29. 4. 1999 (quoted in Appendix-7 to this Judgment) is panchayat karmi ki sewa short--mrit samvarg. This paragraph also declares the cadres of transferred employees to be dead cadres. It further says that in future, the State Government will not appoint any person over these posts in case of vacancy arising due to retirement, death, resignation or by any other means. These G. Os. were cancelled on 30. 6. 1999 and a fresh G. O. dated 1. 7. 1999 was issued. In the G. O. dated 1. 7. 1999, the heading of similar clause, namely 11, is not the same, the words mrit samvarg in the heading is missing. The first line of paragraph 11 under the G. O. dated 12. 4. 1999 (as modified by the G. O. dated 29. 4,1999) that expressly had declared the cadres to be mrit samvarg is also not there. Though paragraph 11 still says that the State Government will not make any appointment over these posts in case of vacancy arising due to retirement, death, resignation, or by any other means. This condition applies to the future. But to say that because of this clause their cadre is dead is not correct ; especially when now there is no such declaration. The earlier G. O. containing such declaration has been cancelled. ( 21 ) IT is true that some persons were transferred in pursuance of the G. O. dated 12. 4. 1999 but this G. O. was cancelled by the G. O. dated 30. 6. 1999. Thereafter, in the G. O. dated 1. 7. 1999, it was clarified that the transfers already made were validated under G. O. dated 1. 7. 1999 and newly substituted Section 25 of the Panchayat Raj Act. In these circumstances, no inference regarding cadre being dead can be drawn. ( 22 ) AMENDED Section 25 (1) (a) of the Panchayat Raj Act gives power to State Government to transfer any employee or class of any employee to serve under Gram Panchayat. 7. 1999 and newly substituted Section 25 of the Panchayat Raj Act. In these circumstances, no inference regarding cadre being dead can be drawn. ( 22 ) AMENDED Section 25 (1) (a) of the Panchayat Raj Act gives power to State Government to transfer any employee or class of any employee to serve under Gram Panchayat. Section 25 (1) (b) of the Act clearly states that these transferred employees have the same right and privileges as to retirement benefit and other matters including the promotion as were applicable immediately before such transfer. This is further clarified in paragraphs 10 and 11 of the G. O. dated 1. 7. 1999. Earlier service conditions including the ones for promotion are applicable and the petitioners continue to be the State employees. ( 23 ) THE employees of a post in a department have been transferred under control and supervisions of the Gram Panchayats by G. O. dated 1. 7. 1999. The employees to the post to which these transferred employees could be promoted before transfer have not been transferred. Under the Gram Panchayats, there is only one post, namely, the post of Gram Panchayat Evam vikas Adhikari. There is no other post on which these persons can be promoted in the Gram panchayats. This shows that the Intention of the Legislature was that petitioners are to continue in their parent department. ( 24 ) THERE is no provision in the Panchayat Raj Act or in the Niyamawali to absorb transferred employees. Under the Niyamawali, the future appointments are to be made by the Gram panchayats and not by the State Government. No options were asked from the transferred employees, whether they wish to be transferred or absorbed in the new service. The petitioners, or other employees transferred under G. O. dated 1st July, 1999, have not been absorbed in the new cadre but have been merely designated as Gram Panchayat Evam Vikas Adhikari to work under control and supervision of Gram Panchayats. The petitioners, or other employees transferred under G. O. dated 1st July, 1999, have not been absorbed in the new cadre but have been merely designated as Gram Panchayat Evam Vikas Adhikari to work under control and supervision of Gram Panchayats. ( 25 ) THE Supreme Court in Umapati Chaudhari v. State of Bihar (Umapatis case), (1999) 4 SCC 659 , explained : "deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority ). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a correspondent acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. " ( 26 ) HERE the employees from different departments have been sent to Gram Panchayats to perform the functions that they were earlier performing, as Gram Panchayats neither had experience, nor employees to do the work. This was done in public interest. In view of Umaptis case, the transferred employees are on deputation to Gram Panchayats. POINT NO. 3 : ACTION IS NOT ARBITRARY OR DISCRIMINATORY ( 27 ) PETITIONERS submit that they are working with the Gram Panchayats and even if they are not absorbed or merged with the cadre of Gram Panchayat Evam Vtkag Adhikari, they cannot be re-transferred to their parent department, as power to transfer cannot be exercised again. They have also cited some decisions to support this proposition. But these decisions do not relate to service jurisdiction and are of other branches of law. They are not applicable here. While deciding point No. 2, I have already held that the petitioners are not absorbed in any new service, but are on deputation to Gram Panchayats. They have also cited some decisions to support this proposition. But these decisions do not relate to service jurisdiction and are of other branches of law. They are not applicable here. While deciding point No. 2, I have already held that the petitioners are not absorbed in any new service, but are on deputation to Gram Panchayats. The Supreme Court in Kunaj Nanda v. Union of india, (2000) 5 SCC 362 held : "the basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. In view of this, the petitioners can always be transferred back to their parent department. ( 28 ) THE action to repatriate employees of the three departments was not taken in haste : * Sinchai Sangh Uttar Pradesh and U. P. Basic Health Workers Association made representations (paragraph 12 of the judgment) bringing out the difficulties that had arisen. They are on record of this case. A committee was also constituted in the month of January, 2001. It submitted its report in May, 2001, which was accepted and thereafter G. O. dated 6th June. 2001 was issued. * So far as Sinchpal (Bhumi Vikas and Jal Sansadhan Department) are concerned, the G. O. dated 19. 11. 2001 states that development work was adversely affected and in order to provide better water facilities, these employees were being repatriated. There is nothing to show these assertions are Incorrect. In view of this it cannot be said that decision to repatriate the employees of the three departments is arbitrary. ( 29 ) IT is correct that by G. O. dated 1st July, 1999, employees of 8 departments were transferred and were to perform the work of all departments. The fact that employees of 8 departments were transferred and were designated as Gram Panchayat Evam Vikas Adhikari does not mean that all of them merged into one cadre. All of them maintained seniority of their department and were to be promoted in their own department. All workers of three departments were being sent back as difficulties were being faced. There is no discrimination. All of them maintained seniority of their department and were to be promoted in their own department. All workers of three departments were being sent back as difficulties were being faced. There is no discrimination. POINT NO. 4 : CLASSIFICATION IS ILLEGAL ( 30 ) TUBE-WELL operators and cane supervisors have been divided into two classes by paragraphs 2 and 4 of the G. O. dated 6. 6. 2001. One class has been designated as Gram Panchayat Evam Vikas adhikari (Karyakram ). Initially this class consisted of persons whose education qualification was less than High School but later on this qualification clause has been amended by G. O. dated 21. 9. 2001 andnow this class consists of person having qualification up to High School. These persons have to perform the same functions as they were performing before their transfer though the persons who are more qualified than High School will continue to be known as Gram panchayat Evam Vikas Adhikari and would perform multi-purpose functions, i. e. . to say they could perform the functions of all departments. This is objected to by the petitioners designated as Gram Panchayat Evam Vikas Adhikari (Karyakram) on the ground that : * All tube-well operators and cane supervisors are in one class. * They cannot be divided on the basis of educational qualification. * They cannot become Secretary of the Gram Panchayat though their juniors can if they have qualification more than High School. ( 31 ) TUBE-WELL operators and cane supervisors having qualification up to High School are designated as Gram Panchayat Evam Vikas Adhikari (Karyakram ). They are not multi-purpose workers. Under G. O. dated 1. 7. 1999, only a multi-purpose worker called Gram Vikas Adhikari can become the Secretary. Sri Kripa Shankar Singh standing counsel also made a statement before the Court that Gram Panchayat Evam Vikas Adhikari (Karyakram) cannot be made secretary of Gram Panchayat but according to him, the petitioners cannot object as : * there is no prejudice to them and they continue to perform the same function as they were performing before their transfers. * there are valid reasons for classification. ( 32 ) THE submissions of the respondents, so far as point Nos. 1 to 3 (already decided), is that : * The transferred employees are neither absorbed nor merged in the new service. * there are valid reasons for classification. ( 32 ) THE submissions of the respondents, so far as point Nos. 1 to 3 (already decided), is that : * The transferred employees are neither absorbed nor merged in the new service. * They continue in their old service and are on deputation to Gram Panchayats. * It is only for convenience that they have been re-designated as Gram Panchayat Evam Vikas adhikari but their lien is in their parent department. * The same service condition, as were applicable to them before transfer, are applicable to them. * They can be promoted in their parent department only. I have also accepted these submissions. Thus, all tube-well operators form one class so do all cane supervisors. But have they been prejudiced? ( 33 ) GRAM Panchayat Evam Vikas Adhikari (Karyakram) can neither perform multi-purpose functions (functions of the other departments) nor can they become Secretary of a Gram panchayat though his juniors can if they have qualification more than High School. Rule 169 of panchayat Raj Rules (quoted in Appendix-8 to this Judgment) explains duties of a secretary. It is clear from this that secretary is an important person in a Gram Panchayat. He is the one who sees that the Act, Rules, and bye-laws are followed and all orders by the State Government and prescribed authority are complied with. He also carries out orders of Gram Panchayat, Pradhan, up-Pradhan and performs any other duties assigned to him. He also exercises supervision and control over servants of Gram Panchayats. The secretary does not exercise control over Gram panchayat Evam Vikas Adhikari (Karyakram), as they are not servants of the Gram Panchayat, nonetheless as Gram Panchayat has supervision and exercises control over them, he can exercise indirect control. A junior could be in better position than his seniors. In view of this, prejudice is caused to the employees re-designated as Gram Panchayat Evam Vikas Adhikari (Karyakram), especially when Section 25 (1) (b) specifically says that all transferred employees will have same terms and conditions that they had before their transfer. ( 34 ) SRI Kripa Shankar Singh gave two reasons for making this classification. (i) Secretary has to write down minutes of the meeting and should be more qualified. (ii) Job of tube-well operators and cane supervisors is a technical job and a person of other department cannot do this. ( 34 ) SRI Kripa Shankar Singh gave two reasons for making this classification. (i) Secretary has to write down minutes of the meeting and should be more qualified. (ii) Job of tube-well operators and cane supervisors is a technical job and a person of other department cannot do this. It is for this reason that some of the tube-well operators and cane supervisors have been asked to perform the job of their department only. Lets consider these reasons. ( 35 ) THE Courts have been upholding classification on basis of educational qualification for giving higher pay scales barring promotions, and fixing quotas in promotions. The Supreme court in T. R. Kothandaraman v. T. N. Water Supply and Drainage Board, JT 1994 (6) SC 157 : 1994 (6) SCC 282 , after considering almost all cases decided till then, laid down following principles : (i) Higher educational qualification is a permissible basis of classification, accountability of which will depend on the facts and circumstances of each case. (ii) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion. (iii) Restriction placed cannot, however, go to the extent of seriously jeopardising the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable. Even if in a case the classification would not be acceptable to the Court on principle, it would, before pronouncing its judgment, bear in mind the historical background, while judging the validity of the classification, the Court shall have to be conscious about the need for maintaining efficiency in service and also whether the required qualification is necessary for the discharge of duties in the higher post. Apart from the aforesaid propositions there are two other determinants viz. the call of social justice and importance of education. Court has to see, while examining the provisions on the anvil of Articles 14 and 16 of the Constitution, whether Article 21 is offended in any way. The subsequent cases have approved it. They, on the facts of the cases, have upheld the classification in all cases (quoted below) except in two cases (quoted below) where classification on the basis of educational qualification was quashed, as there was nothing before the Court to show that it had nexus with higher efficiency for the post. So is the case here. They, on the facts of the cases, have upheld the classification in all cases (quoted below) except in two cases (quoted below) where classification on the basis of educational qualification was quashed, as there was nothing before the Court to show that it had nexus with higher efficiency for the post. So is the case here. ( 36 ) ALL employees holding particular posts in 8 departments were transferred by G. O. dated 1. 7. 1999. It is not disputed that they did not have minimum educational qualification at the time of appointment over the posts. The classification (on the basis of educational qualification) is made only in two departments. In other 6 departments persons that are qualified up to High school can perform multi-purpose functions and become the secretary. If the persons of other 6 departments-qualified up to High School - can become secretary, then there is no justification for denying the persons equally qualified in these two departments. In the facts of these cases, transferred employees have sufficient educational qualification to act as a secretary and higher educational qualification cannot be a valid reason for classification. ( 37 ) THE second reason is also not valid. By G. O. dated 1. 7. 1999, apart from employees of 8 departments, employees of four departments were also transferred. They have not been asked to perform multi-purpose duty but are performing duties of their department only (paragraph) 6 of the G. O. dated 1. 7. 1999 ). In case, the job of the tube-well operators and cane supervisors is so technical that persons of other department cannot perform it, then all of them may be required to do work of their department only as the employees of other four departments are doing. There could be other means : option could be asked or difference could be made on basis of seniority, but there is no justification asking all the employees who are qualified up to High School to do job of their department and others to perform multi-purposes functions and become secretary. ( 38 ) THE action of the respondent will result into juniors doing more Important work and exercising indirect control over their senior in case they become secretary. All tube-well operators fall in one class and so do the cane supervisors. There is no justification to give them different treatment. ( 38 ) THE action of the respondent will result into juniors doing more Important work and exercising indirect control over their senior in case they become secretary. All tube-well operators fall in one class and so do the cane supervisors. There is no justification to give them different treatment. Paragraphs 3, 4 and 5 of G. O. dated 6. 6. 2001 as modified by G. O. dated 21. 9. 2001 are discriminatory and are quashed. A CLARIFICATION ( 39 ) THE State Government has mentioned in paragraphs 3 and 4 of the G. O. dated 6. 6. 2001 that some difficulties are being faced and in order to improve the functioning that the aforesaid classification was made. I have quashed this classification but this does not mean that I disagree with the conclusion of the State Government about the difficulties faced by it. It is open to the state Government to frame fresh scheme consistent with constitutional provisions and Section 25 of the Panchayat Raj Act for sorting out its difficulties. CONCLUSIONS ( 40 ) MY conclusions are as follows : (i) G. O. dated 6. 6. 2001 is a decision of the State Government. (ii) The employees who were transferred by G. O. dated 1. 7. 1999, are not absorbed in any new service but are on deputation to Gram Panchayats. They can always be transferred back to their parent department. (iii) There is no illegality in transferring Sinchpal (canal department), Male Health Workers (Medical Department) and Sinchpal (Bhumi Vikas Evam Jal Sansadhan ). The provisions of the g. Os. dated 6. 6. 2001 and 19. 11. 2001 transferring them back to their parent departments are valid. (iv) Paragraphs 3, 4 and 5 of G. O. dated 6. 6. 2001, as amended by the G. O. dated 21. 9. 2001 by which tube-well operators and cane supervisors have been divided into two classes and the persons having qualification up to High School have been re- designated as Gram Panchayat evam Vikas Adhikari (Karyakram) are discriminatory and are quashed. APPENDIX-1 (Articles 40, 243g, 243h and 243n relating to panchayat are as follows)40. Organisation of village panchayats.--The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. 243g. APPENDIX-1 (Articles 40, 243g, 243h and 243n relating to panchayat are as follows)40. Organisation of village panchayats.--The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. 243g. Powers authority and responsibilities of panchayats.--Subject to the provisions of the constitution, the Legislature of a 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 provision 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. 243h. Powers to impose taxes by, and funds of the panchayat.--The Legislature of a State may, by law : (a) authorise a panchayat to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits ; (b) assign to a panchayat such taxes, duties, tolls and fees levied and collected by the State government for such purposes and subject to such conditions and limits ; (c) provide for making such grant-in-aid to the panchayats from the consolidated fund of the state ; and (d) provide for Constitution of such funds for crediting all moneys received, respectively by or on behalf of the panchayats and also for the withdrawal of such moneys therefrom. as may be specified in the law. 243n. as may be specified in the law. 243n. Continuance of existing laws and panchayats.--Notwithstanding anything in this part, any provision of any law relating to panchayats in force in a State Immediately before the commencement of the Constitution (Seventy-second Amendment) Act, 1992, which is inconsistent with the provisions of this part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier : provided that all the panchayat existing immediately before the such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a legislative Council, by each House of the Legislature of that State. APPENDIX-2 (Earlier Section 15 of the Panchayat Raj Act was as follows)15. APPENDIX-2 (Earlier Section 15 of the Panchayat Raj Act was as follows)15. Duties and Functions.--It shall be the duty of every Gaon Panchayat so far as its funds may allow to take reasonable provisions within its jurisdiction for : (a) Construction, repair, maintenance, cleansing and lighting and lighting of public streets ; (b) Medical relief ; (c) Sanitation and taking curative and preventive measures to remove and stop the spread of an epidemic ; (d) Up keep protection and supervision of any building or other property which may belong to the Gaon Sabha or which may be transferred to it for management ; (e) Registering births, deaths and marriages, and maintenance of the resisters mentioned in section 9 ; (f) Removal of encroachment on public streets public places and property vested in the Gaon sabha ; (g) Regulating places for the disposal of (dead bodies and carcasses) and of other offensive matter ; (h) Regulation of meals, markets and hats within its area, except those managed by the State government (or the Zila Parishad) and without prejudice to the provisions of the U. P. Meals Act, 1938; (i) Establishing and maintaining village primary schools for boys and girls : (j) Establishment management and race of common grazing grounds and land for common behalf of the persons residing within its jurisdiction ; (k) Construction, repair and maintenance of public wells, tanks and ponds for the supply of water for drinking, washing and bathing purpose and regulation of sources of water supply for drinking purposes ; (l) Regulating the construction of a new building or the extension or alteration of any existing building ; (m) Assisting the development of agriculture, commence and industry ; (n) Rendering assistance in extinguishing fire and protecting life and property when fire occurs ; (o) The administration of civil and criminal justice : (p) The maintenance of such records relating to cattle census, population census and other statistics as may be prescribed ; (q) Maternity and child welfare and promotion of family welfare ; (r) Allotment of places for storing manure (and for tanning and curing of hide) ; (s) Fulfilling any other obligation imposed by (or under this Act or) by any other law on a Gaon sabha ; (t) The maintenance and control of class (1) and Kaiseri Hind forests, waste land (benap), water channels and drinking places (panghat) in the hill patties of the Kumaon Division ; (u) Construction, repair and maintenance of such small Irrigation projects of such classes or types thereof, as may be specified by the State Government by general or special order in this behalf, and regulation of supply of water therefrom for irrigation purposes ; (v) Maintenance and repair of walls, bunds, raised platform and other works for protection from floods. (Amended Section 15 is as follows)Amended Section 15. Functions of Gram Panchayat.--Subject to such conditions as may be specified by the State Government from time to time, a Gram Panchayat shall perform the following functions, namely : (i) Agriculture including agricultural extension : (a) Promotion and Development of agriculture and horticulture. (b) Development of waste land and grazing lands and preventing their unauthorised alienation and use. (ii) Land, development, land reform implementation land consolidation and soil conservation : (a) Assisting the Government and other agencies in land development, land reform and soil conservation. (b) Assisting in land consolidation. (iii) Minor irrigation, water management and watershed development : (a) Managing and assisting in water distribution from minor irrigation projects. (b) Construction, repair and maintenance of minor irrigation projects, regulation of supply of water for irrigation purpose. (iv) Animal husbandry, dairying, and poultry : (a) Improving breed of cattle, poultry, and other livestock. (b) Promotion of dairying, poultry, piggery etc. (v) Fisheries : development of fisheries in the villages. (vi) Social and farm forestry : (a) Planting and preserving trees on the sides of roads and public lands. (b) Development and promotion of social and farm forestry and sericulture. (vii) Minor forest produce : promotion and development of minor forest produce. (viii) Small industries : (a) Assisting the development of small industries. (b) Promotion of local trades. (ix) Cottage village industries : (a) Assisting in the development of agricultural and commercial Industries. (b) Promotion of cottage industries. (x) Rural housing : (a) Implementation of rural housing programmes. (b) Distributing house sites and maintenance of records relating to them. (xi) Drinking water : construction, repair and maintenance of public wells, tanks and ponds for supply of water for drinking, washing, bathing purposes and regulation of sources of water supply for drinking purposes. (xii) Fuel and fodder land : (a) Development of grass and plants relating to fuel and fodder land. (b) Control on irregular transfer of fodder land. (xiii) Roads, culverts, bridges, ferries, water-ways and other means of communication : (a) Construction and maintenance of village roads, bridges, ferries and culverts. (b) Maintenance of waterways. (c) Removal of encroachment on public places. (xiv) Rural electrification : provision for and maintenance of lighting of public street and other places. (xv) Non-conventional energy source : promotion and development of programmes of non-conventional energy source and its maintenance in village. (b) Maintenance of waterways. (c) Removal of encroachment on public places. (xiv) Rural electrification : provision for and maintenance of lighting of public street and other places. (xv) Non-conventional energy source : promotion and development of programmes of non-conventional energy source and its maintenance in village. (xvi) Poverty alleviation programmes : promotion and implementation of poverty alleviation programmes. (xvii) Education including primary and secondary schools : public awareness about education. (xviii) Technical training and vocational education : promotion of rural art artisans. (xix) Adult and informal education : promotion of adult literacy. (xx) Library : establishment and maintenance of libraries and reading rooms. (xxi) Sports and cultural affairs : (a) Promotion of social and cultural activities. (b) Organising cultural seminars and different festivals. (c) Establishment and maintenance of rural clubs for sports. (xxii) Markets and fairs : regulation of meals, markets and hats in panchayat areas. (xxiii) Medical and sanitation : (a) Promoting rural sanitation. (b) Prevention against epidemics. (c) Programmes of human and animal vaccination. (d) Preventive actions against stray cattle and livestock. (e) Registering births, deaths and marriages. (xxiv) Family welfare ; promotion and implementation of family welfare programmes. (xxv) Plan for economic development : preparation of plan for economic development of the area of the Gram Panchayat. (xxvi) Maternity and child development : (a) Participation in the implementation of woman and child welfare programmes at Gram panchayat level. (b) Promoting child health and nutrition programmes. (xxvii) Social welfare Including welfare of the handicapped and mentally retarded : (a) Assisting in old-age and widow pension schemes. (b) Participation in the social welfare programmes including welfare of the handicapped and mentally retarded. (xxviii) Welfare of the weaker sections and in particular of the Scheduled Castes and the scheduled Tribes : (a) Participation in the implementation of the specific programmes for the Scheduled Castes, the scheduled Tribes and other weaker sections of the society. (b) Preparation and implementation of scheme for social justice. (xxix) Public distribution system : (a) Promotion of public awareness with regard to the distribution of essential commodities. (b) Monitoring the public distribution system. (xxx) Maintenance of community assets : preservation and maintenance of community assets. APPENDIX-3 (Earlier Sections 25 and 25a were as follows)25. (b) Preparation and implementation of scheme for social justice. (xxix) Public distribution system : (a) Promotion of public awareness with regard to the distribution of essential commodities. (b) Monitoring the public distribution system. (xxx) Maintenance of community assets : preservation and maintenance of community assets. APPENDIX-3 (Earlier Sections 25 and 25a were as follows)25. Staff (1 ).-- A Gram Panchayat may appoint such staff (other than the secretary) as may from time to time be necessary : provided that it shall not create any post not already provided for in the budget except with the previous approval of the prescribed authority : provided further that it may in an emergency create any such post and make appointment thereto without such approval but its intimation shall be sent forthwith to the prescribed authority and the post including the appointment thereto shall terminate if the prescribed authority does not approve creation of the post. (2) The power to appoint, punish, discharge, dismiss or control a servant of the Gram Panchayat other than a secretary shall be vested in the Gram Panchayat, but the Gram Panchayat may delegate to such officer, subject to such conditions and restrictions as may be prescribed, the power to impose any punishment other than discharge or dismissal. (3) An appeal from an order punishing, discharging or dismissing a servant shall lie : (a) to the prescribed authority where such an order is passed by the Gram Panchayat, and (b) to the Gram Panchayat, where such an order is passed by an officer to whom such powers have been delegated under Sub-section (2 ). (4) The prescribed authority may, subject to the conditions as may be prescribed, transfer one person from the staff of one Gram Panchayat to the staff of any other Gram Panchayat within the same district and the State Government may similarly transfer any such person from one district to another. (5) A Nyaya Panchayat may, with the previous sanction of the prescribed authority, appoint persons on its staff in the manner prescribed. Persons so appointed shall be under the administrative control of the prescribed authority, who shall have power to transfer, punish, discharge or dismiss them. (6) Appeal shall lie from an order of the prescribed authority punishing, discharging or dismissing a person under Sub-section (5) to an authority appointed in this behalf by the State government. Persons so appointed shall be under the administrative control of the prescribed authority, who shall have power to transfer, punish, discharge or dismiss them. (6) Appeal shall lie from an order of the prescribed authority punishing, discharging or dismissing a person under Sub-section (5) to an authority appointed in this behalf by the State government. 25-A. Panchayat Sewak.--The State Government or such officer or such authority as may be empowered by it in this behalf shall appoint a panchayat sewak for every Gram Panchayat or group of Gram Panchayats who shall act as secretary of such Gram Panchayat or Gram panchayats, the Gram Sabhas concerned and the nyaya panchayats within whose circle such gram Panchayats are situated and perform such other duties as may be specified by the prescribed authority. (Amended Sections 25 and 25a are as follows)25. Staff.-- (1) Notwithstanding anything contained in any other provisions of this Act, any uttar Pradesh Act, Rules, Regulations, or bye-laws or in any judgment, decree or order of any court : (a) the State Government may, by general or special order, transfer any employees or class of employees serving in connection with the affairs of the State to serve under Gram Panchayats with such designation as may be specified in the order and thereupon posting of such employee or employees in Gram Panchayats of a district shall be made by such authority in such manner as may be notified by the State Government. (b) the employee or employees on being transferred and posted in Gram Panchayat, shall under the supervision and control of the Gram Panchayat on the same terms and conditions and with the same right and privilege as to retirement benefit and other matters including promotion as would have been applicable to him Immediately before such transfer and shall perform such duties as may be specified from time to time by the State Government. (2) Subject to the provisions of Sub-section (1), a Gram Panchayat may, after prior approval of the prescribed authority, appoint from time to time such employee as may be considered necessary for efficient discharge of its function under this Act in accordance with such procedure as may be prescribed : provided that the Gram Panchayat shall not create any post except with the previous approval of the prescribed authority. (3) The Gram Panchayat shall have power to impose punishment of any description upon the employees appointed under Sub-section (2) subject to such conditions and restrictions and in accordance with such procedure as may be prescribed. (4) The Gram Panchayat may delegate to the Pradhan or to any of its committees, subject to such conditions and restrictions as may be prescribed, the power to impose any minor punishment upon the employees appointed under Sub-section (2 ). (5) An appeal from an order imposing any punishment on an employee under Sub-section (3)shall lie to such officer or committee as may be specified by the State Government by notification. (6) The prescribed authority may, subject to such conditions as may be prescribed, transfer any employee referred to in Clause (b) of Sub-section (1) from one Gram Panchayat to any other gram Panchayat within the same district and the State Government or such other officer as may be empowered in this behalf by the State Government may similarly transfer any such employees from one district to another. (7) A Nyaya Panchayat may, with the previous approval of the prescribed authority, appoint any person on its staff in the manner prescribed. The person so appointed shall be under the administrative control of the prescribed authority who shall have power to transfer, punish, suspend discharge or dismiss him. (8) Appeal shall lie from an order of the prescribed authority punishing, suspending, discharging or dismissing a person under Sub-section (7) to an authority appointed in this behalf by the State government. 25-A. Secretary.--The State Government, or such officer or authority as may be empowered by it in this behalf shall appoint a secretary from amongst the employees referred in Clause (b) of sub-section (1) or Sub-section (2) of Section 25, who shall act as secretary of such Gram panchayat or Gram Panchayats the Gram Sabhas concerned and Nyaya Panchayats within whose territorial limits such Gram Panchayats are situated and perform such other duties as may be specified by the Stale Government or such officer or authority as may be empowered in this behalf by the State Government. APPENDIX-4 (Relevant paragraphs of the G. O. dated 1. 7. 1999 and 12. 7. 1999 are as follows ). . (VERNACULAR MATTER OMMITED ). . APPENDIX-5 (Relevant paragraphs of the G. O. dated 6. 6. 2001 as modified by the G. O. dated 6. 7. 2001 and 21. 9. APPENDIX-4 (Relevant paragraphs of the G. O. dated 1. 7. 1999 and 12. 7. 1999 are as follows ). . (VERNACULAR MATTER OMMITED ). . APPENDIX-5 (Relevant paragraphs of the G. O. dated 6. 6. 2001 as modified by the G. O. dated 6. 7. 2001 and 21. 9. 2001, are as follows)The underlined portion was substituted by the G. O. dated 6. 7. 2001 and 21. 9. 2001:. . (VERNACULAR MATTER OMMITED ). . A appendix-7 (Relevant paragraphs of the G. O. dated 12. 4. 1999, as modified by the G. O.) dated 29. 4. 1999, are as follows ). . (VERNACULAR MATTER OMMITED ). . APPENDIX-8 (Rule 169 of the U. P. Panchayat Raj Rules that provides for duties of Secretary of a panchayat is as follows)169. Duties of Secretary.--It shall be duty of the Secretary : (a) to comply with and see that all provisions of the Act and rules and bye-laws made thereunder and all orders, Issued or authorised by the State Government or the prescribed authority are complied with by the Gram Panchayat and Nyaya Panchayat and shall bring to their notice any irregularity or omission on their part. (b) to carry out orders of the Gram Panchayat and the Pradhan or Up-Pradhan, passed by or under the Act, and to perform any other duties and to exercise any other powers assigned to or conferred on him by or under the Act or any other law ; and (c) to exercise the supervision and control of servants of Gram Panchayat.