JUDGMENT 1. - By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing of the order Annexure-P/4 dated 16th October, 1996 and Annexure-P/6 dated 26th November, 1996. 2. Briefly stated facts to the extent they are relevant and necessary for the decision of this writ petition are that the petitioner was appointed was Assistant Secretary by the respondent No. 2 Gram Panchayat vide order dated 16th April, 1981, Annexure-P/1 under the Rajasthan Panchayat (General) Rules, 1961 (for short "the Rules of 1961" hereinafter) on permanent basis. After appointment of the petitioner as Assistant Secretary and some other persons on different posts, the respondent No. 2 approached to the Vikas Adhikari (Development Officer), Panchayat Samiti, Anoopgarh for according sanction in respect of the employees appointed by the respondent No. 2 mentioned in the order Annexure-P/2 dated 28th December, 1983. In pursuance thereof, the order Annexure-P/3 dated 18th January, 1984 came to be passed by Vikas Adhikari, Panchayat Samiti, Anoopgarh with reference to the letter dated 28th December, 1983 and accorded sanction for making the payment to the employees whose names find place in Annexure-P/2. The respondent No. 2 Gram Panchayat was directed to pay the salary of the employees from its income. However, by order Annexure-P/4 dated 16th October, 1996, the respondent No. 1 State Government directed all the Panchayat Samities, Vikas Adhikaris and Zila Parishads that neither the post of Assistant Secretary in Gram Panchayats has been created nor any pay scale for the said post has been sanctioned and, therefore, no Assistant Secretary will be appointed by the Gram Panchayat. In pursuance to the letter Annexure-P/4 dated 16th October, 1996, Vikas Adhikari, Panchayat Samiti, Anoopgarh communicated to the Sarpanch of the respondent No. 2 that no Assistant Secretary be retained in service. Thereafter, the order Annexure-P/6 dated 26th November, 1996 under challenge came to be passed by the respondent No. 2 Gram Panchayat terminating the services of the petitioner in compliance of the order of State Government dated 16th October, 1996, Annexure-P/4. Hence, the petitioner being aggrieved by the order Annexures-P/4 and P/6 has filed this writ petition. 3. Thereafter, the order Annexure-P/6 dated 26th November, 1996 under challenge came to be passed by the respondent No. 2 Gram Panchayat terminating the services of the petitioner in compliance of the order of State Government dated 16th October, 1996, Annexure-P/4. Hence, the petitioner being aggrieved by the order Annexures-P/4 and P/6 has filed this writ petition. 3. A reply to the writ petition has been filed by the respondents stating therein that there being no post of the Assistant Secretary in the Gram 5 Panchayat, the respondent No. 1 was justified in directing the respondent No. 2 Gram Panchayat to terminate the services of the petitioner, who was appointed on the post of Assistant Secretary by Gram Panchayat.I have heard learned counsel for the parties. 4. It is contended by learned counsel for the petitioner that the petitioner was appointed as Assistant Secretary on permanent basis under the Rules of 1961. The appointing Authority of the petitioner is the respondent No. 2 and the State Government has no authority to terminate the services or to direct the termination of services of the petitioner. Learned counsel has relied on two decisions of Hon'ble Supreme Court in Purtabpur Company Ltd. v. Cane Commissioner of Bihar & Ors., AIR 1970 SC 1896 and Mansukhlal Vithaldas Chauhan v. State of Gujarat, (1997) 7 SCC 622 . 5. It is further contended that there had been the post of Assistant Secretary and the State Government subsequently on 28th February, 2000, D took a policy decision for absorption of the persons who were working on the post of Assistant Secretaries in different Gram Panchayats, on the post of Secretary, Gram Panchayat. The decision taken by the Government for absorption of Assistant Secretaries on the post of Secretary, Gram Panchayat is indicative of the fact that there had been the post of Assistant Secretary. However, subsequently, the State Government decided not to keep the posts and, therefore, the persons who have been engaged on the posts of Assistant Secretaries by the various Gram Panchayats, were directed to be absorbed on the post of Secretary, Gram Panchayat. However, subsequently, the State Government decided not to keep the posts and, therefore, the persons who have been engaged on the posts of Assistant Secretaries by the various Gram Panchayats, were directed to be absorbed on the post of Secretary, Gram Panchayat. Learned counsel has relied on the decision of this Court in Krishan Chand Sharma v. State of Rajasthan & Ors., S.B. Civil Writ Petition No. 959/2005 decided on 19th August, 2008 and a common decision of this Court in Roop Chand @ Rupa Ram v. State of Rajasthan & Ors., S.B. Civil Writ Petition No. 958/2005 and Roop Singh v. State of Rajasthan & Ors., S.B. Civil Writ Petition No. 948/2005, decided on 5th May, 2008 . 6. Learned Deputy Government Counsel appearing for the respondent-State submits that there is no sanctioned post of Assistant Secretary and, therefore, the respondent-State was justified in directing all the Gram Panchayats, of the State for removing such Assistant Secretaries or to terminate their services. 7. I have given my thoughtful consideration to the rival submissions advanced by learned counsel for the parties. 8. On the date of appointment of the petitioner on the post of Assistant Secretary i.e. on 16th April, 1981, the governing provision for such appointment is Section 23 of the Rajasthan Panchayat Act, 1953 (since repealed) and the Rules made thereunder i.e. Rajasthan Panchayat (General) Rules, 1961. Section 23 of the Act of 1953 (since repealed) provides the appointment of Secretary or Group Panchayat Secretary and other staff. Section 23(1) (b) provides that every Panchayat, may, with the previous approval of the Panchayat Samiti, appoint such other staff as may be necessary for carrying out the duties imposed on it by or under this Act on such conditions of service as may be prescribed and, therefore, according to learned counsel for the petitioner, the expression "other staff" in Section 23(1)(b) of the Act of 1953 includes the appointment of the Assistant Secretary to Gram Panchayat. Thus, the Gram Panchayat is competent to appoint the petitioner on the post of Assistant Secretary and keep him continue to work as Assistant Secretary we.f. the date of appointment i.e. 16th April, 1981 till his services came to be terminated by order impugned Annexure-P/6 dated 26th November, 1996. Thus, the Gram Panchayat is competent to appoint the petitioner on the post of Assistant Secretary and keep him continue to work as Assistant Secretary we.f. the date of appointment i.e. 16th April, 1981 till his services came to be terminated by order impugned Annexure-P/6 dated 26th November, 1996. According to learned counsel for the petitioner, the petitioner continuously worked as Assistant Secretary with the respondent Gram Panchayat more than fifteen and half years and abruptly, without affording any opportunity of hearing in violation of principles of natural justice, his services came to be terminated. Learned counsel has also relied on a decision of this Court in Jai Singh Bhati v. State of Rajasthan, RLW 1992 (2) 140 wherein this Court in para 6 observed as under " jktLFkku iapk;r vf/kfu;e dh /kkjk 23 ds v/khu iapk;r dks deZpkfj;ksa dh fu;qfDr dk vf/kdkj izkIr gS vkSj ,sls vf/kdkj dk iz;ksx iapk;r lfefr ds vuqeksnu ls fd;k tk ldrk gSA orZeku ekeys esa ;kph dh fu;qfDr xzke iapk;r }kjk iapk;r lfefr ds vuqeksnu ls dh xbZ Fkh vkSj ;kph dks osru J`a[kyk Hkh iapk;r lfefr ds vuqeksnu ls gh nh xbZ Fkh] tSlk fd vkns'k izn'kZ 3 vkSj 4 ls Li"V gks tkrk gSA ,slh fLFkfr esa v;kphx.k ds bl rdZ dks Lohdkj ugha djrk fd ;kph dh fu;qfDr vfu;fer ;k fof/k fo:) FkhA Hkaojyky o vU; cuke E;qfufliy cksMZ ukxkSj ( 3 ) esa ,slh gh vkifRr mBkbZ xbZ Fkh] fdUrq bl U;k;ky; ds rRdkyhu U;k;kf/kifr Jh fd'kksjflag yks<+k us vkifRr dks vLohdkj dj fn;k vkSj ;g Li"V er izdV fd;k fd ;fn ;kph dh izkjfEHkd fu;qfDr vfu;fer Hkh ekuh tkos rks Hkh fu;kstd dk nkf;Ro Fkk fd og vkS|kSfxd fookn vf/kfu;e dh /kkjk 25 ,Q dh ikyuk djsA eSa llEeku bl er ls lger gwaA oSls bl ekeys esa ;g dgus dk dksbZ vkSfpR; ugha gS fd ;kph dh fu;qfDr vfu;fer ;k fof/k lEer ugha FkhA esjh jk; esa ;kph dh fu;qfDr fu'p; gh fof/k lEer Fkh vkSj v;kphx.k dks vkS|ksfxd fookn vf/kfu;e dh /kkjk 25 ,Q dh ikyuk fd, fcuk NaVuh djus dk vf/kdkj ugha FkkA ;g mYys[kuh; gS fd vkS|ksfxd fookn vf/kfu;e dh /kkjk 25 ,Q vkKkid gS vkSj mldh ikyuk fd;k tkuk vfuok;Z gSA " 9. In Jai Singh Bhati v. State of Rajasthan (supra), this Court held that the appointment of the petitioner therein was in accordance with the provisions of Section 26 of the Act of 1953 and even assuming that the initial appointment was irregular then also it was incumbent on the employer to comply with the provisions of Section 25-F of the Industrial Disputes Act before terminating the services of the employer. 10. In the Purtabpur Company Ltd. v. Cane Commissioner of Bihar & Ors. (Supra), the Hon'ble Supreme Court observed as under "The power exercisable by the Cane Commissioner under cI. 6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone - not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case what has happened is that the power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognised by cl. (6) read with cl. (11) but the responsibility for making those orders was asked to be taken by the Cane Commissioner. 11. It was further held that the executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior. 12. In Mansukhlal Vithaldas Chauhan v. State of Gujarat (supra), the Hon'ble Supreme Court held that if in the performance of the duty, the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter and issue a mandamus to that authority to exercise its own discretion. 13. In Roop Chand & Rupa Ram v. State of Rajasthan & Ors. and Roop Singh v. State of Rajasthan & Ors. 13. In Roop Chand & Rupa Ram v. State of Rajasthan & Ors. and Roop Singh v. State of Rajasthan & Ors. (supra), the petitioner therein was appointed by Gram Panchayat on the post of Assistant Secretary in the year 1991 and the sanction was issued by Vikas Adhikari, Panchayat Samiti, Sardarshahar. A decision was taken by the State Government for absorption of Assistant Secretaries who were appointed in different Gram Panchayats on the post of Secretary, Gram Panchayat by a communication dated 28th February, 2000, Annexure-5 annexed to that writ petition and subsequent to that order, a relaxation was granted by the State Government vide communication dated 14th November, 2000 for absorption. While allowing the writ petition, this Court directed the respondent to consider the cases of the petitioners therein at par with the similarly situated persons while taking into consideration the fact that both the petitioners therein were working on the post of Assistant Secretary on the date of taking decision by the Government for absorption, on the post of Secretary. However, it was made clear that the petitioners therein will not be entitled for back wages and they shall be entitled for notional benefits only. 14. Similarly, in Krishan Chand Sharma v. State of Rajasthan & Ors. (supra) while allowing the writ petition, this Court directed the respondents therein to consider the candidature of the petitioner therein for absorption from the post of Assistant Secretary to the post of Secretary while treating the petitioner in service on the date of taking decision by the Government for absorption and, if the petitioner is found suitable after consideration, the petitioner may be granted the same with all consequential benefits. 15. From the decision referred hereinabove, it is clear that the contention raised by learned counsel for the respondents that there had not been any post of Assistant Secretary with the respondents cannot be accepted. No occasion would have been arisen to the State Government in taking the policy decision for absorption of Assistant Secretaries to the post of Secretary, Gram Panchayat, had there been no such post of Assistant Secretary existing on the date of such policy decision. In the instant case, undisputedly, the respondent No. 1 is not the Appointing Authority. No occasion would have been arisen to the State Government in taking the policy decision for absorption of Assistant Secretaries to the post of Secretary, Gram Panchayat, had there been no such post of Assistant Secretary existing on the date of such policy decision. In the instant case, undisputedly, the respondent No. 1 is not the Appointing Authority. The Appointing Authority and Disciplinary Authority of the petitioner is the respondent No. 2-Gram Panchayat and the order terminating the services of the petitioner was passed at the instance of the respondent No. 1 without affording any opportunity of hearing to the petitioner. The power exercised by the respondent No. 1- State is beyond its competency to the extent that the provisions governing such termination under the Act of 1953 and Rules framed thereunder is by the appointing Authority. Undisputedly, in the instant case, neither any opportunity of hearing was provided nor any enquiry as contemplated under Rule 30 of the Rules of 1961 was conducted. In the circumstances, therefore, in my view, the order impugned cannot sustain and is liable to be quashed and set aside. 16. Consequently, the writ petition is allowed. The order impugned Annexure-P/6 dated 26th November, 1996 is quashed and the respondents are directed to consider the candidature of the petitioner for absorption from the post of Assistant Secretary to the post of Secretary while treating the petitioner in service on the date of taking decision by the Government dated 28th February, 2000 for absorption and if the petitioner fulfils the requisite eligibility criteria including the age and educational qualification and found suitable, the petitioner may be absorbed on the post of Secretary, Gram Panchayat with all consequential benefits as granted to the similarly situated persons. However, the petitioner will not be entitled for the back wages and he shall be entitled for the notional benefits only. This exercise be completed by the respondents within a period of four months from producing the certified copy of this order. There shall be no order as to costs.Writ Petition Allowed. *******