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Himachal Pradesh High Court · body

2017 DIGILAW 1061 (HP)

Santosh v. State of H. P.

2017-09-13

TARLOK SINGH CHAUHAN

body2017
JUDGMENT : Tarlok Singh Chauhan, J. A learned Division Bench of this Court vide order dated 20.04.2017 directed this Court to decide the question of jurisdiction. 2. Before deciding the issue, I have heard the learned counsel for the parties and gone through the records. 3. The question of jurisdiction, as referred to above, is as to whether the “Takniki Sahayaks” are holding a civil post and their disputes are required to be adjudicated at the first instance only by the learned Tribunal or that they do not hold any civil post, there only exists a relationship of employer and employee by and between the State and the “Takniki Sahayaks” and, therefore, their cases are not maintainable before the learned Tribunal and thus are required to be adjudicated by this Court alone. 4. Section 15 of the Administrative Tribunals Act, 1985, reads thus:- “15. Jurisdiction, powers and authority of State Administrative Tribunals.- (1) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court 1 [***]) in relation to- (a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State; (b) all service matters concerning a person [not being a person referred to in clause (c) of this sub-section or a member, person or civilian referred to in clause (b) of sub-section (1) of section 14] appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation 2 [or society] owned or controlled by the State Government; (c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose services have been placed by any such local or other authority or corporation 2 [or society] or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment. (2) The State Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities and corporations2 [or societies] controlled or owned by the State Government: Provided that if the State Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations 2 [or societies]. (3) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation 2 [or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court 1 [***]) in relation to- (a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation 2 [or society]; and (b) all service matters concerning a person [other than a person referred to in clause (b) of sub-section (1) of this section or a member, person or civilian referred to in clause (b) of subsection (1) of section 14] appointed to any service or post in connection with the affairs of such local or other authority or corporation 1 [or society] and pertaining to the service of such person in connection with such affairs. (4) For the removal of doubts, it is hereby declared that the jurisdiction, powers and authority of the Administrative Tribunal for a State shall not extend to, or be exercisable in relation to, any matter in relation to which the jurisdiction, powers and authority of the Central Administrative Tribunal extends or is exercisable.” 5. The post in questi on is nomenclatured as “Takniki Sahayak” and the process for filing up of the same was initiated by the Executive Officer, Panchayat Samiti, Ghumarwin vide Annexure P-1. The post in questi on is nomenclatured as “Takniki Sahayak” and the process for filing up of the same was initiated by the Executive Officer, Panchayat Samiti, Ghumarwin vide Annexure P-1. It is not in dispute that the recruitment of the “Takniki Sahayak” is as per the scheme floated by the Government of Himachal Pradesh vide notification Annexure P-2 and the objective thereof is to strengthen “Takniki Sahayaks” to ensure that the quality and cost effectiveness of civil works being carried out and executed by the Gram Panchayats under the National Rural Employment Guarantee Scheme (now MANREGA). The scheme provides for accreditation of technically qualified person at the block level for which minimum educational and other qualifications required for accreditation in the panel is as under:- “1. Minimum Educational and other qualifications required for accreditation in the panel. a. Degree/Diploma in Civil Engineering from recognized institution. However, the existing persons who are in the panel are also eligible for accreditation in the panel. b. Basic knowledge of computer. c. The Candidate should be of sound mind and good physical health. d. The candidate should not have any criminal record. e. The candidate should not have any outstanding dues payable to the State Government or the Gram Panchayat. f. The candidate should not have been disqualified under any law for the time being in force from holding any office under the government. 2. Minimum age limit: The candidate should have attained the age of 18 year as on 1st January of the year in which he/she applied to the post.” 6. The mode of accreditation is provided in Clause 3 of the scheme which reads thus:- “Mode of accreditation in the panel. Any person possessing aforementioned qualification can apply for accreditation in the panel to concerned Executive Officer Panchayat Samiti. The Executive Officer Panchayat Samiti will invite the applications for this purpose by putting a notice on the notice board of the Panchayat Samiti, Block Development Office as well as Gram Panchayat Office and all other conspicuous places. At least 15 days notice will be given for inviting applications. The panel will be an open ended. There would no restrictions on the number of eligible to be accredited.” 7. The mode of allocation of Gram Panchayat is provided in Clause 4 of the scheme and reads as thus:- “4. Mode of allocation of Gram Panchayats. At least 15 days notice will be given for inviting applications. The panel will be an open ended. There would no restrictions on the number of eligible to be accredited.” 7. The mode of allocation of Gram Panchayat is provided in Clause 4 of the scheme and reads as thus:- “4. Mode of allocation of Gram Panchayats. The Executive Officer, Panchayat Samiti, in consultation with concerned Pradhan Gram Panchayats will constitute a group of 3 to 12 Gram Panchayats keeping in view the geographical condition, contiguity and quantum of work in the concerned Gram Panchayats. The group should be such that a Takniki Sahayak get sufficient work and service charges. The number of Panchayats in a group could further be modified by Director (PR) in special cases. After constituting the groups of Panchayats in the block, the Executive Officer Panchayat Samiti will invite applications from the accredited engineers from the panel for allocation of a group of Panchayats to a Takniki Sahayak. He will also fix the headquarters of the Takniki Sahayak in one of the Gram Panchayats of the group. The allocation of group of Panchayats to a specific Takniki Sahayak will be made by a selection committee. The composition of the selection committee will be as under:- (i) Sub Divisional Officer (Civil) : Chairman (ii) Chairman Panchayat Samiti : Member (iii) Assistant Engineer (Dev.) : Member (iv) Executive Officer, Panchayat Samiti: Member Secretary.” 8. In order to work out merit of the candidates, who appear before the selection committee, the maximum marks allocated are 100 which are to be distributed as per Clause 5 of the scheme which reads thus:- “5. Distribution of Marks: Sr. No. Qualification Total Marks Procedure of calculation (a) Performance in degree/diploma 47 1. Percentage of marks in degree divided by 2.127 or 2. Percentage of marks in 3 years Diploma divided by 2.5 Or 3. Percentage of marks in 2 years I.T.I. diploma divided by 3 (only for existing Takniki Sahayaks. For new Takniki Sahayaks the qualification will be Degree /3 years Diploma in civil Engineering). (b) Experience 10 @ 2 marks per year of experience of relevant nature. (c) Candidates belonging to the category of BPL SC/ST/OBC 10 (d) Candidate having no Family member in Government service. 10 (e) Preference for resident of concerned Block 5 (f) Handicapped 3 (g) Interview 15 Total 100” 9. (b) Experience 10 @ 2 marks per year of experience of relevant nature. (c) Candidates belonging to the category of BPL SC/ST/OBC 10 (d) Candidate having no Family member in Government service. 10 (e) Preference for resident of concerned Block 5 (f) Handicapped 3 (g) Interview 15 Total 100” 9. After selecting the required number of “Takniki Sahayaks”, a waiting list is prepared in order of merit of selected candidates and the same is valid for one year. 10. The powers of the “Takniki Sahayak” as enumerated in Clause-6 for according technical approval and assessment of work is Rs.1,50,000/-. The Executive Officer of the Panchayat Samiti is required to issue Measurement Books (for short MB) to the “Takniki Sahayak” and also maintain proper records for the MBs so issued. The “Takniki Sahayaks” are to be paid fee in the following manner:- “(i) Works costing up to 50,000/- : @ 2% of the total cost of the work. (ii) Work costing more than 50,000/- upto 1,50,000/-: @ 1.5% of the total cost of the work.” 11. The payment is to be made on the basis of the assessment made by the Panchayat Sahayak and actual expenditure incurred on the work whichever is less. The payment of service fee can be made either by pooling the resources at Panchayat Samiti level or by the concerned Gram Panchayats as deemed proper by the Executive Officer, Panchayat Samiti. The fee structure can be changed by the Director, Panchayati Raj, from time to time. 12. As per Clause 8 of the scheme, job charts are to be given to the “Takniki Sahayaks”, who are then required to render all such assistance to the Gram Sabha, Gram Panchayat right from the preparation of estimate till the completion of the work/scheme which would include the following:- “(i) Preparation of estimates, execution/supervision of works. (ii) Making entries in M.B. (M.B.s to be provided by E.O. Panchayat Samiti). (iii) Maintenance of all registers relating to work. (iv) Reporting of physical and financial progress of departmental works. (v) Any other related works assigned by the Department Panchayat Samiti or the Executive Officer.” 13. Clause 9 of the scheme envisages de-accreditation of Takniki Sahayaks in the following eventualities:- “9. De-accreditation of Takniki Sahayaks: 1. (iii) Maintenance of all registers relating to work. (iv) Reporting of physical and financial progress of departmental works. (v) Any other related works assigned by the Department Panchayat Samiti or the Executive Officer.” 13. Clause 9 of the scheme envisages de-accreditation of Takniki Sahayaks in the following eventualities:- “9. De-accreditation of Takniki Sahayaks: 1. The Takniki Sahayak will be de-accredited from the panel by Executive Officer Panchayat Samiti and he will not be assigned any Panchayat if the work assessed/measured by him/her is found wrong on consecutive occasions on test check done by other Technical persons or the majority of Panchayats of the group assigned to him/her, has passed resolutions for his/her removal. Provided that before de-accreditation of Takniki Sahayaks opportunities of being heard shall be provided to him/her. 2. If it comes to the notice of the Rural Development or Panchayati Raj Departments that there has been gross misconduct or misappropriation of developmental scheme, money by the Takniki Sahayak or he has failed to perform the duties assigned to him/her by the Gram Panchayats or any authority of the above departments and his/her continuance in the office is undesirable, the services of the Takniki Sahayak can be de-accredited and no Panchayats will be assigned to him/her. The order in this behalf will be based on the enquiry report conducted by E.O. Panchayat Samiti or any other officer appointed by Director (Panchayati Raj).” 14. Clause 10 provides for assignment of Group of Panchayats (3 to 12 Panchayats) to new “Takniki Sahayak” wherein it is envisaged that in the event of de-accreditation of a “Takniki Sahayak”, the new “Takniki Sahayak” will be selected for a group of Gram Panchayats by E.O., Panchayat Samiti from the waiting list. In the event of non availability of candidate in the waiting list, new “Takniki Sahayaks” as will be selected by following the procedure as detailed at Sr.No.3 to 5 of the Scheme. 15. As regards the dispute resolution regarding accreditation and allocation of Gram Panchayats, the same is envisaged under Clause 11 of the scheme which states that an aggrieved party may prefer an appeal before the Deputy Commissioner of the concerned District within 30 days from the accreditation and allocation of Gram Panchayats or from the date of de-accreditation from the panel, as the case may be. It is further provided that the decision of the Deputy Commissioner in such matters shall be final. 16. Lastly, Clause 12 of the scheme provides for power to remove difficulties, wherein it is provided that if any difficulty arises in the implementation or interpretation of the scheme, the matter may be referred to the State Government for clarification/guidance, who shall be competent, by an order, to do anything to remove such difficulty not inconsistent with the provisions of the scheme. 17. From the entire conspectus of the scheme, it would be noticed that the posts of “Takniki Sahayak” are non-statutory posts. They are being created in terms of the scheme. It is one thing to say that there exists a relationship of employer and employee by and between the State and the “Takniki Sahayaks”, but it is another thing to say that they are holders of the civil post. 18. What is a “civil post” was considered in detail by a Constitution Bench of the Hon’ble Supreme Court in The State of Assam and others vs. Kanak Chandra Dutta AIR 1967 SC 884 wherein the question posed as to whether Mauzadar appointed for the purpose of collection of revenue under the scheme prevalent in the Assam Valley would be a holder of “civil post”. The answer to this question was rendered in affirmative by observing as under:- “9. The question is whether a Mauzadar is a person holding a civil post under the State within Art. 311 of the Constitution. There is no formal definition of "post" and "civil post". The sense in which they are used in the Services Chapter of Part XIV of the Constitution is indicated by their context and setting. A civil post is distinguished in Art. 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State. See marginal note to Art. 311. In Art. 311, a member of a civil service of the Union or an all-India service or a civil service of a State is mentioned separately, and a civil post means a post not connected with defence outside the regular civil services. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State. See the marginal notes to Arts. 309, 310 to 311. The heading and the subheading of Part XIV and Chapter I emphasise the element of service. There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post. 10. In the context of Arts. 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds "office" during the pleasure of the Governor of the State, except as expressly provided by the Constitution, see Article 310. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post." 19. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post." 19. Applying the said principles of law, it was held that a Mauzadar holds a civil post under the State as: “(i) the State has the power and the right to select and appoint him; (ii) he is subordinate to public servant; (iii) he receives remuneration by way of a commission and sometimes a salary; (iv) there exists a relationship of master and servant; (v) he holds an office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State are attached; (vi) the office falls vacant on the death or removal of the incumbent; (vii) he is a responsible officer exercising delegated powers of the Government; (viii) he is appointed Revenue Officer.” 20. The aforesaid principle was thereafter applied by the Hon’ble Supreme Court to “Anganwadi” workers, in State of Karnataka and others vs. Ameerbi and others (2007) 11 SCC 681 wherein it was observed as under:- “20. Anganwadi workers, however, do not carry on any function of the State. They do not hold post under a statute. Their posts are not created. Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional scheme existed. We do not think that the said decision has any application in the instant case.” 21. Applying the tests as have been applied by the Hon’ble Supreme Court in Ameerbi’s case (supra), it would be noticed that:- (i) “Takniki Sahayaks” do not carry on any function of the State. (ii) They do not hold post under a statute. (iii) Their posts are not created. (iv) Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. (ii) They do not hold post under a statute. (iii) Their posts are not created. (iv) Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. (v) The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. (vi) No process of selection for the purpose of their appointment within the constitutional scheme exists. 22. However, learned counsel for the respondents would at this stage refer to the judgment of the Hon’ble Supreme Court in R.N.A. Britto vs. Chief Executive Officer and others (1995) 4 SCC 8 wherein after following the judgment in Kanak Chandra’s case (supra), it was held by the Hon’ble Supreme Court that the Panchayat Secretaries having regard to the Karnataka Village and Local Boards Act are government servants by observing as under:- “13. Another significant provision is sub-section (2) of Section 80 of the Act which says that subject to the provisions of Rules made under the proviso to Article 309 of the Constitution, the qualifications, powers, duties, remuneration and conditions of service including disciplinary matters of such Secretary shall be such as may be prescribed. 14. The provisions in the Act to which we have adverted, clearly show that several functions which were required to be performed by the State are entrusted to the Panchayats. They also show that the properties vested in the Panchayats and the funds of the Panchayat are that of the Government and those collected by way of tax or fee by exercising the power of taxation vested in the Panchayat by the Government. Above all, provisions of the Act make it abundantly clear that the Panchayats have to function under the ultimate control of the State Government. When it comes to the Secretaries of the Panchayats appointed under the Act, their selection for appointment, their termination from service, their liability for transfer and all other conditions of their services are as provided for under the Rules made under the Act or other rules made under Article 309 of the Constitution in respect of services of the State Government servants. When Sub-section (2) of Section 80 of the Act to which we have adverted states that subject to the provisions of Rules made under the proviso of Article 309 of the Constitution, the qualifications, powers, duties, remuneration and conditions of service including disciplinary matters of such Secretary shall be such as may be prescribed, it leaves no room for doubt that the Secretaries of the Panchayats are Government servants, like other Government servants, who are subjected to the Rules to be made under the proviso to Article 309 of the Constitution as regards their service conditions." 23. Noticeably, the aforesaid judgment in R.N.A. Britto’s case (supra) was also a subject matter of discussion before the Hon’ble Supreme Court in Ameerbi’s case (supra) and it was held that the said decision ex facie cannot be said to be applicable to the case of “Anganwadi Workers”. The reason for the same was because the Secretaries of the Panchayats were appointed under the Karnataka Village and Local Boards Act, their selection for appointment, their termination from service, their liability for transfer and other conditions of the services were provided for under the rules made under the Act or other rules made under Article 309 of the Constitution in respect of the services of the State Government servants, which obviously is not a fact situation obtaining even in the instant case. 24. As observed above, the “Takniki Sahayaks” do not hold a “civil post” as:- (i) “Takniki Sahayaks” do not carry on any function of the State; (ii) they do not hold post under a statute; (iii) their posts are not created; (iv) recruitment rules ordinarily applicable to the employees of the State are not applicable in their case, (v) the State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India; and (vi) no process of selection for the purpose of their appointment within the constitutional scheme exists. 25. Therefore, the learned Tribunal will have no jurisdiction to entertain much less to adjudicate their claims and since there exists a relationship of employer and employee between the State and the “Takniki Sahayaks”, it would be this Court which would have the jurisdiction to entertain and adjudicate the matters of instant kind. The question of jurisdiction is answered accordingly.