THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) WP(C) No.5135/2015

Transcription

1 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) WP(C) No.5135/ Sadau Assam Panchayat Casual Karmachary Santha, Represented by its President & Secretary, 2. Md. Abdul jalil, S/o. Lt. Mohammad Ali, R/o. Chandra Village, P.O.- Simila Tarbari, P.S. Boko Chhaygaon, Dist- Kamrup. 3. Sri Jitumoni Das, S/o. Lt. Prafulla Das, R/o. Patbausi, District- Barpeta.... Petitioners... Vs State of Assam, Represented by the Commissioner & Secretary to the Government of Assam, Panchayat & Rural Development Department, Dispur, Guwahati Director, Panchayat & Rural Development, Assam, Dispur, Guwahati. 3. Commissioner & Secretary to the Government of Assam, Finance Department, Dispur, Guwahati Deputy Secretary to the Government of Assam, Finance (EC-1) Department, Dispur, Guwahati Joint Secretary to the Government of Assam, Panchayat & Rural Development Department, Assam, Dispur, Guwahati-6. WPC Nos.5135/2015 & 6170/2014 Page 1 of 33

2 6. Chief Executive Officer, Zilla Parishad, Kamrup. 7. Chief Executive Officer, Zilla Parishad, Nagaon. 8. Chief Executive Officer, Zilla Parishad, Sonitpur. 9. Chief Executive Officer, Zilla Parishad, Lakhimpur. 10. Chief Executive Officer, Zilla Parishad, Barpeta. 11. Chief Executive Officer, Zilla Parishad, Jorhat. 12. Chief Executive Officer, Zilla Parishad, Bongaigaon. 13. Chief Executive Officer, Zilla Parishad, Sivasagar. 14. Chief Executive Officer, Zilla Parishad, Cachar. 15. Chief Executive Officer, Zilla Parishad, Karimganj. 16. Chief Executive Officer, Zilla Parishad, Dhubri. 17. Chief Executive Officer, Zilla Parishad, Darrang. 18. Chief Executive Officer, Zilla Parishad, Nalbari. 19. Chief Executive Officer, Zilla Parishad, Hailakandi. 20. Chief Executive Officer, Zilla Parishad, Golaghat. 21. Chief Executive Officer, Zilla Parishad, Dibrugarh. 22. Chief Executive Officer, Zilla Parishad, Tinsukia. WPC Nos.5135/2015 & 6170/2014 Page 2 of 33

3 23. Chief Executive Officer, Zilla Parishad, Goalpara. 24. Chief Executive Officer, Zilla Parishad, Dhemaji.... Respondents WP(C) No.6170/ Sadau Assam Panchayat Casual Karmachary Santha, Represented by its President & Secretary, 2. Md. Abdul jalil, S/o. Lt. Mohammad Ali, R/o. Chandra Village, P.O.- Simila Tarbari, P.S. Boko Chhaygaon, Dist- Kamrup. 3. Sri Jitumoni Das, S/o. Lt. Prafulla Das, R/o. Patbausi, District- Barpeta.... Petitioners... Vs State of Assam, Represented by the Commissioner & Secretary to the Government of Assam, Panchayat & Rural Development Department, Dispur, Guwahati Director, Panchayat & Rural Development, Assam, Dispur, Guwahati. 3. Finance Department, Assam, Represented by Commissioner & Secretary, Dispur, Guwahati Chief Executive Officer, Zilla Parishad, Kamrup. 5. Chief Executive Officer, Zilla Parishad, Nagaon. WPC Nos.5135/2015 & 6170/2014 Page 3 of 33

4 6. Chief Executive Officer, Zilla Parishad, Sonitpur. 7. Chief Executive Officer, Zilla Parishad, Lakhimpur. 8. Chief Executive Officer, Zilla Parishad, Barpeta. 9. Chief Executive Officer, Zilla Parishad, Jorhat. 10. Chief Executive Officer, Zilla Parishad, Bongaigaon. 11. Chief Executive Officer, Zilla Parishad, Sivasagar. 12. Chief Executive Officer, Zilla Parishad, Cachar. 13. Chief Executive Officer, Zilla Parishad, Karimganj. 14. Chief Executive Officer, Zilla Parishad, Dhubri. 15. Chief Executive Officer, Zilla Parishad, Darrang. 16. Chief Executive Officer, Zilla Parishad, Nalbari. 17. Chief Executive Officer, Zilla Parishad, Hailakandi. 18. Chief Executive Officer, Zilla Parishad, Golaghat. 19. Chief Executive Officer, Zilla Parishad, Dibrugarh. 20. Chief Executive Officer, Zilla Parishad, Tinsukia. 21. Chief Executive Officer, Zilla Parishad, Goalpara.... Respondents WPC Nos.5135/2015 & 6170/2014 Page 4 of 33

5 BEFORE HON BLE MR. JUSTICE UJJAL BHUYAN Advocates for the petitioners : Mr. KN Choudhury, Sr. Advocate, Mr. DP Borah, Advocate, Mr. FU Borbhuiya, Advocate, Mr. B Khan, Advocate, Mr. B Choudhury, Advocate, Mr. MZ Quadir, Advocate, Mr. G Baishya, Advocate. Advocates for the respondents : Mr. D Saikia, Addl. Advocate General, Assam, Ms. A Verma, SC, Finance Department & Special Counsel, Rural Development Department. Dates of hearing : & Date of judgment : Judgment & Order 1. These two writ petitions were heard as part of a bunch of writ petitions. As a matter of fact, WP(C) No.5135/2015 was treated as the lead case. However, Court is of the view that it would be more practicable and appropriate to take up these two writ petitions for judgment separately. Accordingly, those two writ petitions are disposed of by this common judgment. 2. Petitioners are same in both the writ petitions. However, for better adjudication, facts of the two writ petitions are briefly narrated separately. WP(C) No.6170/ Sadau Assam Panchayat Casual Karmachary Santha, its President and Secretary are the three petitioners in this case. Petitioner No.1 is an association of casual employees serving in the Panchayats in the State of Assam and is registered under the Trade Unions Act, 1926 (petitioner-association hereafter). As stated above, petitioner No.2 is the President and petitioner No.3 is the Secretary of the petitioner-association. It is stated that there are a total of 1812 numbers of members of the petitioner-association, whose details have been annexed to the writ petition. WPC Nos.5135/2015 & 6170/2014 Page 5 of 33

6 4. It is further stated that members of the petitioner-association are casual employees working in Grade-III and Grade-IV posts in the Panchayati Raj Institutions as per staffing pattern introduced by the Assam Panchayati Raj Act, 1986 and endorsed by the Assam Panchayati Raj (Administrative) Rules, They are working as Tax Collector, Road Mohorar, Peon, Chowkidar etc. in Zilla Parishads, Anchalik Panchayats and Gaon Panchayats having been engaged during the period from 1992 to Their appointments were preceded by adoption of resolutions by the respective Gaon Panchayats etc. The posts of Lower Division Assistant, Tax Collector and Road Mohorar are in Grade-III and posts of Peon and Chowkidar are in Grade-IV. 5. Assam Panchayati Raj Act, 1972 provided for a two tier system of Panchayati Raj Institutions (PRIs) i.e., Mahkuma Parishad and Gaon Panchayat. 6. Government of Assam in the then Panchayat and Community Development Department vide communication dated tentatively decided that the staffing pattern of Mahkuma Parishad and Gaon Panchayat would be as follows: - Mahkuma Parishad i) Head Assistant 1, ii) Accountant 1, iii) Upper Division Assistant 2, iv) LD Assistant 4, v) Tax Supervisor 2, vi) Tax Collector 5, vii) Duftry 1, viii) Peon 5, ix) Chowkidar 1, and x) Driver 1. WPC Nos.5135/2015 & 6170/2014 Page 6 of 33

7 Gaon Panchayat i) Secretary 1, ii) Office Assistant 1, iii) Mohorar 1, iv) Tax Collector 2, v) Chowkidar 1, and vi) Peon Assam Panchayati Raj Act, 1972 was repealed and was replaced by the Assam Panchayati Raj Act, 1986 providing for three tier Panchayati Raj Institutions comprising of Mahkuma Parishad, Anchalik Panchayat and Gaon Panchayat. Because of transition from two tier system to three tier system, there was corresponding increase in the number of Panchayati Raj Institutions. 8. Assam Panchayati Raj (Administrative) Rules, 1990 was framed and notified. Rule 2 thereof, provided the staffing pattern as under: - Mahkuma Parishad i) Upper Division Assistant 1, ii) Lower Division Assistant-cum-Typist 1, iii) Driver 1, iv) Peon 3, and v) Chowkidar 1. Anchalik Panchayat i) Head Assistant 1, ii) Upper Division Assistant 2, iii) Lower Division Assistant-cum-Typist 4, iv) Tax Collector 2, v) Peon 3, and vi) Chowkidar 2. WPC Nos.5135/2015 & 6170/2014 Page 7 of 33

8 Gaon Panchayat i) Road Mohorar-cum-Tax Collector 1, and ii) Peon-cum-Chowkidar A notification dated was issued by the Commissioner & Secretary to the Government of Assam, Panchayat & Rural Development Department notifying that the services of 4565 numbers of Panchayat employees serving in the Gaon Panchayats and Mahkuma Parishads constituted under the Assam Panchayati Raj Act, 1972 were provincialised w.e.f Thus by the notification dated casual employees of Gaon Panchayat and Mahkuma Parishad constituted under the Assam Panchayati Raj Act, 1972 were only considered for provincialisation. It is contended that having regard to the increase in the number of Panchayati Raj Institutions following transition to three tier system, the number of employees whose services were so provincialised was wholly inadequate. 11. Assam Panchayati Raj Act, 1986 gave way to Assam Panchayat Act, Assam Panchayat Act, 1994 retained the three tier system, but replaced Mahkuma Parishad by Zilla Parishad. 12. Thereafter, Assam Panchayat (Administrative) Rules, 2002 provided the staffing pattern for Gaon Panchayats, Anchalik Panchayats and Zilla Parishads as under:- Zilla Parishad Grade-III i) Head Assistant 1, ii) Upper Division Assistant 2, iii) Lower Division Assistant 4, iv) Accountant 1, v) Junior Engineer 1, vi) Tax Collector 2, and vii) Driver 1. WPC Nos.5135/2015 & 6170/2014 Page 8 of 33

9 Grade-IV i) Peon 4, and ii) Chowkidar 2. Anchalik Panchayat Grade-III i) Upper Division Assistant 1, ii) Lower Division Assistant 2, and iii) Tax Collector 2. Grade-IV i) Peon 2, and ii) Chowkidar 1. Gaon Panchayat Grade-III i) Secretary 1, and ii) Road Mohorar-cum-Tax Collector 1. Grade-IV i) Peon cum-chowkidar There is substantial difference between the number of posts created for the Panchayati Raj Institutions and requirement of employees in the Panchayati Raj Institutions as per staffing pattern provided under the Assam Panchayat (Administrative) Rules, Consequently, those employees who were appointed against the posts created were considered to be regular employees of the Panchayati Raj Institutions whereas, those appointed as per the staffing pattern, but for whom no posts were created, were considered to be casual employees. It is contended that in so far nature of post and job requirement is concerned, as well as WPC Nos.5135/2015 & 6170/2014 Page 9 of 33

10 the procedure followed for recruitment, there is no distinction between the two groups of employees in the Panchayati Raj Institutions. 14. Petitioner-association represented before the Government to regularize the services of the casual employees. However, it has not yielded any fruitful result. On the other hand, internal communications between various Government officials disclose that number of posts created for the Panchayati Raj Institutions were substantially less than the actual number of posts required to be created as per staffing pattern provided in the Assam Panchayat (Administrative) Rules, In the meanwhile, an advertisement dated came to be issued by the Commissioner, Panchayat & Rural Development to fill up 28 vacancies in the post of Junior Assistant (Lower Division Assistant) and 333 numbers of vacancies in the post of Tax Collector-cum-Road Mohorar. Be it stated that the office of Commissioner, Panchayat & Rural Development was earlier known as Director of Panchayat & Rural Development. However, the advertisement did not mention as to whether the vacancies were under the Commissionerate of Panchayat & Rural Development or under the Panchayati Raj Institutions. According to the petitioners, if these vacancies pertain to Panchayati Raj Institutions and if these vacancies are filled up as per the advertisement, it would cause serious prejudice to the members of the petitioner-association as it would jeopardize their claim to regularization. Such advertisement was also violative of the provisions of the Assam Panchayat Employees (Provincialisation) Act, 1999, which provides for provincialisation of the services of the employees working in the Panchayati Raj Institutions. 16. It is with the above grievance that this writ petition came to be filed seeking a direction to the respondents to create adequate number of posts in the Panchayati Raj Institutions as per the staffing pattern of the Assam Panchayat (Administrative) Rules, 2002 and thereafter to regularize the service of the members of the petitioner-association against the posts so created. Further prayer made is to set aside the advertisement dated WPC Nos.5135/2015 & 6170/2014 Page 10 of 33

11 17. This Court by order dated had admitted the writ petition for hearing with the observation that any selection made pursuant to the advertisement dated would be subject to the final order that may be passed in the writ petition. 18. An affidavit has been filed on behalf of respondent No.2 i.e., Director of Panchayat & Rural Development. Court has been informed that the nomenclature of the office of Director has been changed and it is now known as Commissioner, Panchayat & Rural Development, Assam. 19. In the affidavit, it is stated that members of the petitioner-association were not engaged against any existing vacant posts. They were not engaged by the competent authority. Engagement of the members of the petitioner-association were not made as per provisions of the Assam Panchayati Raj Act, 1986 and the Assam Panchayat Act, Regarding the posts created and sanctioned under the provincialisation set up, it is the Commissioner, Panchayat & Rural Development, Assam, who is the competent authority to appoint such person as per provisions of section 30(1), section 62(2) and section 102(5) of the Assam Panchayat Act, However, it is admitted that there is no corresponding number of sanctioned posts as per staffing pattern as prescribed under the Assam Panchayat (Administrative) Rules, However, claim of the petitioners that members of the petitionerassociation are working without any break has been admitted as borne out by the record. 20. It is stated that Government vide notification dated had provincialised the services of 4565 numbers of Panchayat employees and to accommodate these employees, Government created 4259 numbers of posts vide letter dated Thus out of the 4565 provincialised Panchayat employees, 306 numbers of employees remained ex-cadre. However, subsequently, the remaining 306 provincialised Panchayat employees were also encadred under the provincialised set up. Contrasting this with the claim of the petitioners, it is stated that members of the petitioner-association were engaged without creation of posts by giving them designation as per staffing pattern. WPC Nos.5135/2015 & 6170/2014 Page 11 of 33

12 21. It is admitted that although there is shortfall of employees in Grade-III and Grade-IV in the Panchayati Raj Institutions as per staffing pattern, it was on account of non-creation and non-sanction of posts. It is also admitted that Government did not sanction posts of Gaon Panchayat Secretary, Tax Collector-cum-Road Mohorar and Grade-IV posts against each Gaon Panchayat. Only a small number of posts against man in position at the time of provincialisation were sanctioned by the Government and accordingly, they were re-deployed against those posts in the Gaon Panchayats. Regarding regularisation of service of the casual employees serving in the Panchayati Raj Institutions, it is stated that Finance Department had rejected the same on Regarding the advertisement dated , it is stated that the advertisement pertain to vacancies against regular sanctioned posts which had occurred on account of promotion, retirement and death of the incumbents; these posts were created by the Government on While conceding that petitioners were engaged in the Panchayati Raj Institutions as per the approved staffing pattern, it is however, stated that they were not engaged in accordance with the relevant provisions of the Assam Panchayati Raj Act, 1986 and Assam Panchayat Act, It is further stated that Commissioner, Panchayat & Rural Development had submitted proposal vide his letter dated before the Panchayat & Rural Development Department, Government of Assam for creation of about 3000 posts at different levels of the Panchayati Raj Institutions as per the staffing pattern. Contending that members of the petitioner-association can participate in the recruitment process pursuant to the advertisement dated , respondent No.2 contends that the prayer for regularization of service is legally untenable and, therefore, should be rejected. WP(C) No.5135/ Petitioners of WP(C) No.6170/2014 are the petitioners in this case. They have filed this writ petition with the grievance that while WP(C) No.6170/2014 was subjudiced before this Court, Deputy Secretary to the Government of Assam, Finance (EC-I) Department, vide his letter dated , had requested the WPC Nos.5135/2015 & 6170/2014 Page 12 of 33

13 Additional Chief Secretary to the Government of Assam, Panchayat & Rural Development Department stating that a number of cases have been filed before the High Court by persons appointed/engaged unauthorizedly by Gaon Panchayats/Block Development Officers/Project Directors, District Rural Development Agencies etc. Those engagements/appointments were made unauthorizedly without the approval of the Panchayat & Rural Development Department and the Finance Department. Addl. Chief Secretary was, therefore, requested to take suitable action, including departmental action, against those officials found responsible for making such appointments without authority. Thereafter Joint Secretary to the Government of Assam, Panchayat & Rural Development Department wrote to the Commissioner, Panchayat & Rural Development, Assam vide letter dated requesting the latter to examine the matter and to take action immediately, including departmental action against officials found responsible for making such appointment without authority. 24. These two communications have been challenged in this writ petition by contending that engagement/appointment of the members of the petitionerassociation cannot be termed as illegal or unauthorized. That apart, they had continued with their engagement for more than 10 years. In such circumstances, petitioners seek quashing of the aforesaid communications dated and This Court by order dated had issued notice. 26. Respondent No.4 i.e., Deputy Secretary to the Government of Assam, Finance (EC-I) Department in his affidavit has stated that members of the petitionerassociation were engaged as Grade-III and Grade-IV staff by the Panchayati Raj Institutions, but they were not appointed against any sanctioned posts. Their appointments were also not made as per due procedure. As such, their appointments are ab initio void; therefore, they cannot claim regularization of service. It is for this reason that instructions were issued on and to terminate the illegal appointees. Finance Department had also issued letter dated to Addl. Chief Secretary, Panchayat & Rural Development WPC Nos.5135/2015 & 6170/2014 Page 13 of 33

14 Department to take action against those officials responsible for making such illegal appointments. 27. An affidavit has been filed on behalf of Commissioner & Secretary to the Government of Assam, Panchayat & Rural Development Department i.e., respondent No.1. In this affidavit, stand taken is that the casual workers working in Grade-III and Grade-IV in the Panchayats were not engaged against vacant posts and as per the staffing pattern provided under the Assam Panchayat (Administrative) Rules, Reference has been made to various provisions of the Assam Panchayat Act, 1994 and the Assam Panchayat (Administrative) Rules, 2002 to contend that members of the petitioner-association were not engaged by the competent authority. No person can be engaged by a Panchayat adopting a resolution. Claim of the casual employees to be working continuously since their engagement has been disputed. Based on the reports of the Chief Executive Officers of the Zilla Parishads, proposal for regularization of 1812 numbers of casual workers were submitted to the Government by the Commissioner of Panchayat & Rural Development on Thereafter approval was granted by the Government for payment of fixed wages at the rate of Rs.4,500/- per month to 1812 numbers of casual workers which was informed vide Government letter dated , but several complaints were received that many undeserving persons were included in the list of Thereafter instructions were issued by the Government for re-verification of the claims. Upon re-verification, it has been found that these casual workers were not engaged by any competent authority. They were not engaged in accordance with the provisions of the Assam Panchayat Act, 1994 and that their engagements were not made against sanctioned vacant posts. Scrutiny of the Cash Books revealed that these casual workers have not been paid monthly wages regularly. The Committee constituted by the Government to look into this aspect of the matter on found such engagement of casual workers to be irregular, illegal and invalid; therefore, their cases cannot be considered for regularization. WPC Nos.5135/2015 & 6170/2014 Page 14 of 33

15 28. During the course of hearing on , Court took the view that for effective adjudication, the following information should be placed before the Court: - 1) The number of Gaon Panchayats, Anchalik Panchayats and Zilla Parishads constituted under the Assam Panchayat Act, 1994 and existing as on date. 2) Whether the posts for each of the panchayati raj institutions as per staffing pattern provided in the Assam Panchayat (Administrative) Rules, 2002 are created and sanctioned by the State? 3) The impact of the Assam Panchayat Employees (Provincialisation) Act, 1999 on the status of employees who may be recruited post the 1999 Act. 4) Whether the State has constituted District Selection Boards in terms of Section 140 of the Assam Panchayat Act, 1994; if not whether there is any proposal for such constitution? 5) Mr. Saikia may also obtain instruction if such Boards have not been constituted, how recruitments have been made since enactment of the 1994 Act. 29. Following the order dated , an affidavit was filed by respondent No.5 i.e., Joint Secretary to the Government of Assam, Panchayat & Rural Development Department on It is stated that there are at present 2201 numbers of Gaon Panchayats, 185 numbers of Anchalik Panchayats and 21 numbers of Zilla Parishads under the Assam Panchayat Act, Posts in the Panchayati Raj Institutions have not been created as per staffing pattern provided under the Assam Panchayat (Administrative) Rules, As per Cabinet decision, certain posts in the Panchayati Raj Institutions have been earmarked for absorption of District Rural Development Agency (DRDA) staff. It has also been stated that for recruitment of employees post Assam Panchayat Employees (Provincialisation) Act, 1999 within the sanctioned provincialized posts, Commissioner, Panchayat & Rural Development, Assam is the appointing authority. It has also been clarified that no District Selection Board in terms of section 140 of the Assam Panchayat Act, 1994 has been constituted by the Government till date. Government is yet to sanction posts for all WPC Nos.5135/2015 & 6170/2014 Page 15 of 33

16 the Panchayati Raj Institutions of the State and, therefore, District Selection Boards have not been constituted. However, a reference has been made to the minutes of the meeting held on under the chairmanship of Addl. Chief Secretary whereby, it has been decided that State Government will not terminate the work charged, muster roll and similarly placed employees working with the State Government since last more than 10 years, but not against sanctioned posts till their normal retirement age, except on disciplinary ground or on ground of criminal offence; State Government will ensure payment of minimum wages to these employees who will also be entitled to get accidental and death insurance benefits. 30. Petitioners have filed reply-affidavit stating that the State Government has paid fixed wages at the rate of Rs.4,500/- per month to the members of the petitioner-association who are working as casual workers. Their status is that of casual workers. Therefore, they cannot be termed as illegal appointees. Moreover, the so called verification was carried out behind the back of the petitioners. Members of the petitioner-association are now rendering service as casual workers for about 25 years. SUBMISSIONS 31. Heard Mr. KN Choudhury, learned Senior Counsel, Mr. DP Borah, Mr. FU Borbhuiya, Mr. B Khan, Mr. B Choudhury, Mr. MZ Quadir and Mr. G Baishya, learned counsel for the petitioners. Also heard Mr. D Saikia, learned Senior Addl. Advocate General, Assam and Ms. A Verma, learned Standing Counsel, Finance Department and Special Counsel for the Panchayat and Rural Development Department, Assam. 32. Primary contention of Mr. KN Choudhury, learned Senior Counsel and other learned counsel for the petitioners is that when there was a two tier panchayat system in the State of Assam under the Assam Panchayati Raj Act, 1972, State Government took a policy decision to provincialise 4565 numbers of Panchayat employees. Petitioners are identically placed as those employees whose services were provincialised as above. There is no intelligible differentia to distinguish the two groups. While services of one group were provincialised, the other group i.e., the petitioners have been left out. Thus, there is violation of Article 14 of the WPC Nos.5135/2015 & 6170/2014 Page 16 of 33

17 Constitution of India. After coming into force of the Assam Panchayat Act, 1994, there is a transition from two tier to three tier Panchayat system. Naturally this would mean more requirement of posts and personnel. But there is no corresponding creation of posts though the State Government is under obligation to create the requisite numbers of posts as per the staffing pattern provided under the Assam Panchayat (Administrative) Rules, Following the 73 rd Constitution amendment, Panchayats have been given a constitutional status. Therefore, for proper functioning of the Panchayats, it is essential that Panchayats would have to be provided with adequate infrastructure and man power. Reference has been made to the provisions of Assam Panchayat Employees (Provincialisation) Act, 1999 in support of the plea for regularization of service. Members of the petitionerassociation are working as casual employees in the Panchayati Raj Institutions for last more than 20 years; in recognition of which, State has provided fixed wages at the rate of Rs.4,500/- per month. Therefore, prayer made by the petitioners is most justified and the Court may grant necessary relief to the petitioners. Learned counsel for the petitioners have placed reliance on the following decisions: - i) (2002) 10 SCC 432, UT. Chandigarh & Ors. Vs. Avtar Singh & Ors., ii) (2013) 14 SCC 65, Nihal Singh & Ors. Vs. State of Punjab & Ors., iii) (2015) 8 SCC 265, Amarkant Rai Vs. State of Bihar & Ors., iv) (2015) 6 GLR 163, Bijit Saikia Vs. State of Assam. 33. On the other hand, Mr. Saikia, learned Senior Addl. Advocate General vehemently argues that claim of the petitioners to regularization cannot be entertained. Their appointments or engagements as casual employees were contrary to the provisions of the Assam Panchayat Act, 1994 and, therefore, they are also not entitled to the benefit of Assam Panchayat Employees (Provincialisation) Act, An appointment which is void ab-initio, cannot be regularized, he submits. Mr. Saikia has extensively referred to the provisions of the Assam Panchayat Act, 1994 and the Assam Panchayat (Administrative) Rules, 2002 to counter the claim of the petitioners. In support of his submissions, Mr. Saikia has placed reliance on the following decisions: - WPC Nos.5135/2015 & 6170/2014 Page 17 of 33

18 i) (1994) 2 SCC 630, J & K Public Service Commission & Ors. Vs. Dr. Narinder Mohan & Ors., ii) 2006 (2) GLT 654, Jitendra Kalita & Ors. Vs. State of Assam & Ors., iii) (2006) 4 SCC 1, Secretary, State of Karnataka & Ors. Vs. Umadevi (3) & Ors., iv) (2006) 5 SCC 493, National Fertilizers Ltd. & Ors. Vs. Somvir Singh, v) (2007) 15 SCC 129, State of Orissa & Ors. Vs. Prasana Kumar Sahoo, vii) (2007) 15 SCC 161, Nagar Mahapalika, Kanpur Vs. Vibha Shukla & Ors., viii) (2010) 2 SCC 422, Union of India & Anr. Vs. Kartick Chandra Mondal & Anr. 34. Submissions made have received the due consideration of the Court. Also perused the materials on record as well as the decisions cited at the Bar. DISCUSSIONS 35. Article 40 of the Constitution of India provides that the State shall take steps to organize village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. Article 40 as above, forms part of the Directive Principles of State Policy. 36. Article 246 of the Constitution of India deals with subject-matter of laws made by Parliament and by the Legislatures of States. Sub-clause (3) of Article 246 provides that subject to Union List and Concurrent List, Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule, which is also referred to as the State List. As per Entry 5 of List II, State Legislature is empowered to make law relating to local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration. 37. Thus local self-government or decentralization of powers upto the grass root level is an avowed constitutional objective finding its manifestation in Article 40 with the State Legislature empowered to make laws in this regard. None other than the WPC Nos.5135/2015 & 6170/2014 Page 18 of 33

19 father of the nation Mahatma Gandhi was a great proponent of grass root level administration through Panchayati Raj Institutions. 38. From the Assam perspective, the first enactment dealing with local selfgovernment in the rural areas was the Assam Rural Panchayati Act, 1948 which was replaced by the Assam Panchayat Act, However, this Act gave way to the Assam Panchayati Raj Act, 1972, which introduced two tier system of Panchayats. However, this Act was repealed and in its place, the Assam Panchayati Raj Act, 1986 was enacted reverting back to the three tier system of Mahkuma Parishad, Anchalik Panchayat and Gaon Panchayat. 39. The Constitution 73 rd Amendment Act, 1992, which came into effect from , introduced Article 243 in the Constitution dealing with Panchayats. Infact, by the said amendment, Part-IX dealing with Panchayats was inserted in the Constitution. Article 243-B provides that there shall be constituted in every State, Panchayats at the village, intermediate and district levels ushering in decentralization of the Government administration and transferring power to grass root level institutions which is the Panchayats. Panchayats which have always been recognized and accepted as a model of local self-government at the grass root level and a constitutional objective by virtue of its being one of the Directive Principles of State Policy, found its full play in Part-IX of the Constitution. By this amendment Act, Panchayats have been given constitutional recognition and status as units of local self-government. Elaborate provisions have been incorporated in Part-IX of the Constitution to provide democratic local self-government institutions in the rural areas. As already noticed above, Article 243-B provides for constitution of Panchayats at three levels in every State. Panchayats are to be elected bodies having duration of 5 years. Article 243-G authorizes the Legislature of a State to make law endowing the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of local self-government. Article 243-H mandates the Legislature of a State to authorize Panchayats to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits as may be specified. It also provides for constitution of funds for crediting of monies received by the Panchayats and also for withdrawal of WPC Nos.5135/2015 & 6170/2014 Page 19 of 33

20 monies from such funds. Constitution of Finance Commission to review the financial position of the Panchayats and to make recommendation is provided in Article 243-I. 40. Thus by the aforesaid amendment, Panchayats have not only received constitutional recognition and status, they have also been mandated to undertake a vast range of activities to ensure that there is devolution of powers to the grass root level in the real sense. 41. Supreme Court in Bhanumati Vs. State of UP, reported in (2010) 12 SCC 1 had elaborately examined the constitutional import and significance of the Panchayats in the light of the 73 rd Amendment Act. Objects and reasons behind the amendment were examined, the relevant portion of which was extracted as under: - 25.In order to understand the purport of the Seventy-third Constitutional Amendment in Part IX of the Constitution, it is important to keep in view the Statements of Objects and Reasons behind the amendment. Excerpts from the same are set out: THE CONSTITUTION (SEVENTY-THIRD AMENDMENT) ACT, 1992 Statement of Objects and Reasons appended to the Constitution (Seventy-second Amendment) Bill, 1991 which was enacted as the Constitution (Seventy-third Amendment) Act, 1992 Though the Panchayati Raj institutions have been in existence for a long time, it has been observed that these institutions have not been able to acquire the status and dignity of viable and responsive people s bodies due to a number of reasons including absence of regular elections, prolonged supersessions, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women, inadequate devolution of powers and lack of financial resources. 2. Article 40 of the Constitution which enshrines one of the directive principles of State Policy lays down that 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. In the light of the experience in the last forty years and in view of the shortcomings which have been observed, it is considered that there is an imperative need to enshrine in the Constitution certain basic and essential features of Panchayati Raj WPC Nos.5135/2015 & 6170/2014 Page 20 of 33

21 institutions to impart certainty, continuity and strength to them. 41A. Thereafter, Supreme Court held as follows: - 22.Under the Seventy-third Amendment of the Constitution, panchayat became an institution of selfgovernance which was previously a mere unit, under Article 40. The Seventy-third Amendment heralded a new era but it took nearly more than four decades for our Parliament to pass this epoch-making Seventy-third Constitution Amendment a turning point in the history of local self-governance with sweeping consequences in view of decentralisation, grass-root democracy, people s participation, gender equality and social justice. *************************************************** 24.This Seventy-third Amendment is a very powerful tool of social engineering and has unleashed tremendous potential of social transformation to bring about a sea change in the ageold, oppressive, anti-human and status quoist traditions of Indian society. It may be true that this amendment will not see a quantum jump but it will certainly initiate a thaw and pioneer a major change, may be in a painfully slow process. *************************************************** 32.The Seventy-third Amendment of the Constitution, this Court thinks, is a forward step to bring about the radical changes in our social structure which inspired the struggle of Bhagat Singh, the great martyr. When faced with a challenge to interpret such laws, courts have to discharge a duty. The Judge cannot act like a phonographic recorder but he must act as an interpreter of the social context articulated in the legal text. The Judge must be, in the words of Krishna Iyer, J. animated by a goal-oriented approach because the judiciary is not a mere umpire, as some assume, but an active catalyst in the constitutional scheme. (See Authorised Officer v. S. Naganatha Ayyar 1.) *************************************************** 33.The Panchayati Raj institutions structured under the said amendment are meant to initiate changes so that the rural feudal oligarchy lose their ascendancy in village affairs and the voiceless masses, who have been rather amorphous, may realise their growing strength. Unfortunately, effect of these changes by way of constitutional amendment has not been fully realised in the semi-feudal set-up of Indian politics in which still voice of reason is drowned in an uneven conflict with the mythology of individual infallibility and omniscience. Despite WPC Nos.5135/2015 & 6170/2014 Page 21 of 33

22 high ideals of constitutional philosophy, rationality in our polity is still subordinated to political exhibitionism, intellectual timidity and petty manipulation. The Seventy-third Amendment of the Constitution is addressed to remedy these evils. 34.The changes introduced by the Seventy-third Amendment of the Constitution have given Panchayati Raj institutions a constitutional status as a result of which it has become permanent in the Indian political system as a third Government. On a careful reading of this amendment, it appears that under Article 243-B of the Constitution, it has been mandated that there shall be panchayat at the village, intermediate and district levels in accordance with the provisions of Part IX of the Constitution. *************************************************** 38.Under the constitutional scheme introduced by the Seventy-third Amendment, Government of the State is no longer a service provider but is a felicitator for the people to initiate development on the basis of equity and social justice and for the success of the system people have to be sensitised about their role and responsibility in the system. 39.Thus, the composition of the panchayat, its function, its election and various other aspects of its administration are now provided in great detail under the Constitution with provisions enabling the State Legislature to enact laws to implement the constitutional mandate. Thus, formation of panchayat and its functioning is now a vital part of the constitutional scheme under Part IX of the Constitution. Obviously, such a system can only thrive on the confidence of the people, on those who comprise the system. 41B. It is in the light of the above interpretation given by the Supreme Court acknowledging the permanency of the Panchayats as the third Government with constitutional status, the functioning and requirements of the Panchayats would have to be examined. 42. Following the constitutional amendment as above, Assam Panchayati Raj Act, 1986 was repealed and Assam Panchayat Act, 1994 was enacted with the objective of amending and consolidating the laws relating to Panchayats in Assam. This Act provides for a three tier Panchayat system, viz, Gaon Panchayats at the village level, Anchalik Panchayats at the intermediate level and Zilla Parishads at the district level. WPC Nos.5135/2015 & 6170/2014 Page 22 of 33

23 Powers, functions and duties of the Panchayats at each of the three levels have been elaborately dealt with under the Assam Panchayat Act, 1994 which may not be necessary to be gone into in this proceeding. 43. Section 30 of Assam Panchayat Act, 1994 deals with staff of Gaon Panchayat. As per sub-section (1) thereof, there shall be a Secretary and other staff as may be prescribed by the Government in every Gaon Panchayat, who shall be appointed as per section 140 (1) of the said Act and/or deputed by the Government from time to time. In respect of the provincialised employees, Director of Panchayat & Rural Development (since re-designated as Commissioner of Panchayat & Rural Development) shall be the appointing authority. As per sub-section (2), Secretary shall be the In-charge of the office of the Gaon Panchayat. Salaries etc. of the employees of the Gaon Panchayat shall be paid in the manner as may be prescribed by the State Government, which is provided in sub-section (3). As per sub-section (4) of section 30, Gaon Panchayat shall not appoint or engage any person for any post in the Gaon Panchayat. 44. Section 62 deals with staff of Anchalik Panchayat. As per sub-section (1) thereof, an Anchalik Panchayat being co-terminus to a Development Block, shall have an Executive Officer appointed by the Government who shall be the ex-officio Secretary. Sub-section (2) says that other staff of the Anchalik Panchayat shall be appointed as provided in section 140. In respect of the provincialised Panchayat employees working under the Anchalik Panchayat, Director of Panchayat & Rural Development (since re-designated as Commissioner of Panchayat & Rural Development) shall be the appointing authority. As per sub-section (3), Government may post or depute staff if considered necessary, to work in Anchalik Panchayat. Government as well as Director (Commissioner) shall also have the power to effect transfer of the concerned officers and provincialised staff in consultation with the concerned Zilla Parishad in terms of sub-section (4). 45. Staff of Zilla Parishad is dealt with in section 102. As per sub-section (1), Government shall appoint an officer not below the rank of Addl. Deputy Commissioner of a district as Chief Executive Officer of the Zilla Parishad. Under sub- WPC Nos.5135/2015 & 6170/2014 Page 23 of 33

24 section (2), Government is also empowered to appoint a Chief Accounts Officer and a Chief Planning Officer for each Zilla Parishad. As per sub-section (3), Government shall post such number of other officers of the State Government to work under every Zilla Parishad as the Government considers necessary. Power of transfer of the officials so posted in the Zilla Parishad has also been vested with the Government under sub-section (4). Sub-section (5) of section 102 is relevant. It says that under every Zilla Parishad, there shall be such number of Grade-III and Grade-IV staff, including technical staff as per staffing pattern prescribed by the Government. In respect of the provincialised Panchayat employees, Director (Commissioner) shall be the appointing authority. 46. Section 140 of the Assam Panchayat Act, 1994 provides that Grade-III and Grade-IV staff in the Zilla Parishad, Anchalik Panchayat and Gaon Panchayat shall be appointed by the Chief Executive Officer of the concerned Zilla Parishad on the recommendation of the District Selection Committee constituted by the Panchayat & Rural Development Department, Government of Assam. As per the proviso, no appointment shall be made by the Chief Executive Officer without the prior approval of the State Government. In so far, Grade-I and Grade-II Officers are concerned, they shall be posted in the Panchayats and Zilla Parishads by the State Government. Section 141 is the rule making provision. 47. From a careful analysis of the aforesaid provisions dealing with recruitment of Grade-III and Grade-IV staff in Panchayati Raj Institutions, with which this litigation is concerned, appointment has to be made by the Chief Executive Officer of the concerned Zilla Parishad on the recommendation of the District Selection Committee constituted by the Government of Assam in the Panchayat and Rural Development Department but the Chief Executive Officer shall not make such appointment without the prior approval of the State Government. In so far provincialised employees are concerned, Director of Panchayat & Rural Development (since re-designated as Commissioner of Panchayat & Rural Development) shall be the appointing authority; be it the Gaon Panchayat, Anchalik Panchayat or Zilla Parishad. However, there is an embargo on the Gaon Panchayats on making appointment or on engaging any person in any post. This embargo under section 30(4) would have to be read WPC Nos.5135/2015 & 6170/2014 Page 24 of 33

25 together with section 30(1) as per which Commissioner of Panchayat & Rural Development is the appropriate authority in respect of the posts created (4565) for provincialisation of the services of the incumbents to mean that Gaon Panchayats are debarred from making appointments/engagements against those provincialised posts. 48. In exercise of the powers conferred by section 141 of the Assam Panchayat Act, 1994, the Assam Panchayat (Administrative) Rules, 2002 have been framed. Rule 2 deals with staffing pattern for Gaon Panchayat, Anchalik Panchayat and Zilla Parishad. Sub-Rule (i) says that the following shall be the staffing pattern for Zilla Parishad, Anchalik Panchayat and Gaon Panchayat: - Zilla Parishad Grade-III i) Head Assistant 1, ii) Upper Division Assistant 2, iii) Lower Division Assistant 4, iv) Accountant 1, v) Junior Engineer 1, vi) Tax Collector 2, and vii) Driver 1. Grade-IV i) Peon 4, and ii) Chowkidar 2. Anchalik Panchayat Grade-III i) Upper Division Assistant 1, ii) Lower Division Assistant 2, and iii) Tax Collector 2. Grade-IV WPC Nos.5135/2015 & 6170/2014 Page 25 of 33

26 i) Peon 2, and ii) Chowkidar 1. Gaon Panchayat Grade-III i) Secretary 1, and ii) Road Mohorar-cum-Tax Collector 1. Grade-IV i) Peon cum-chowkidar Thus as per the staffing pattern provided under the aforesaid Rule, a Gaon Panchayat is required to have 1 Grade-IV staff and 2 Grade-III staff; Anchalik Panchayat 3 Grade-IV staff and 5 Grade-III staff; and Zilla Parishad 6 Grade-IV staff and 12 Grade-III staff. Rule 2(ii) says that as far as practicable, the posts should be manned by provincialised Panchayat employees at all levels and as per sub-rule (iii), the posts which could not be filled up from out of the provincialised Panchayat employees shall be filled up by re-deploying excess staff of the Department as well as other Departments having requisite qualification. If posts still remain vacant thereafter, those shall be recruited in the manner provided under section 140(1) of the Assam Panchayat Act, Rule 3 says that post of Tax Collector should be filled up from out of the provincialised Panchayat employees to the extent of the sanctioned strength. In case of non-availability of such employees, Panchayats may engage a person in one of the two posts on commission basis at the rate of 30% of the tax collected by such engaged person. Provisions of section 140(1) of the Assam Panchayat Act, 1994 shall not be applied in respect of Tax Collector. 51. As per Rule 4(1), salary of provincialised Panchayat employees serving in Zilla Parishad, Anchalik Panchayat and Gaon Panchayat shall be paid by the State Government and as per sub-rule (2), salary and other allowances of Panchayat employees appointed/engaged under section 140(1) of the Assam Panchayat Act, WPC Nos.5135/2015 & 6170/2014 Page 26 of 33

27 1994 shall be borne by the respective Zilla Parishad, Anchalik Panchayat and Gaon Panchayat out of their resources. However, as per the first proviso, the pay scale and other allowances of such staff shall be equal to that of State Government employee working in the district cadre in the corresponding grade. Employees appointed under sub-section (1) of section 140 will be under the disciplinary control of the Chief Executive Officer of the concerned Zilla Parishad. Rule 7 says that in consideration of financial resources and work load of different Panchayats, the staffing pattern under Rule 2(1) may be changed, but it should be with the prior approval of the State Government 52. From a careful analysis of the relevant provisions of the Assam Panchayat (Administrative) Rules, 2002, what is clearly discernible is that it is mandatory for each Panchayati Raj Institution, be it Gaon Panchayat, be it Anchalik Panchayat or be it Zilla Parishad to maintain the staffing pattern as per Rule 2 (i). The use of the expression shall is clearly indicative of the obligatory nature of Rule 2(i). To the extent possible, the posts should be manned by the provincialised Panchayat employees; after that, from amongst excess employees of the Panchayat & Rural Development Department and other departments and thereafter the remaining vacancies should be filled up by way of recruitment under section 140 (1) of the Assam Panchayat Act, The post of Tax Collector should be manned by provincialised Panchayat employees, but in the event of non-availability of such employees, one of the two posts may be filled up on commission basis. While salary of the provincialised employees are to be paid by the State Government, those employees appointed under section 140(1) are to be paid by the respective Zilla Parishad, Anchalik Panchayat or Gaon Panchayat out of their own resources; but such salary shall be equal to the salary of a Government employee holding corresponding grade in the district cadre. Thus, the aforesaid Rules visualize existence of provincialised Panchayat employees as well as other Panchayat employees appointed under section 140(1) of the Assam Panchayat Act, Having noticed the above, the last of the relevant enactments may now be adverted to. WPC Nos.5135/2015 & 6170/2014 Page 27 of 33

28 54. Assam Panchayat Employees (Provincialisation) Act, 1999 was enacted to provincialise the services of the employees working in the Panchayat at all levels established under the Assam Panchayat Act, As per section 1(3), the said Act had come into force retrospectively from , which is also defined as the appointed day under section 2(a) of the said Act. Under section 2(h), provincialisation has been defined to mean taking over of the liabilities for payment of salary etc. as admissible under the existing rules to the Government servants serving under the Government of Assam. Under section 3, subject to Article 30 of the Constitution of India, services of all employees of the Panchayats under the State Government shall be deemed to have been provincialised on and from the appointed day on the terms and conditions mentioned therein. As per section 9, which is the repeal and saving provision, the State Government notification provincialising the services of 4565 numbers of Panchayat employees of Gaon Panchayats and Mahkuma Parishads constituted under the Assam Panchayati Raj Act, 1972 was repealed. However, it was clarified that notwithstanding such repeal, anything done or any action taken under the decision so repealed shall be deemed to have been done or taken under the corresponding provisions of this Act. 55. An analysis of the aforesaid Act would disclose that this Act was enacted by the State Legislature to provincialise the services of all employees working in the Panchayats at all levels, the objective being improvement and better management and control of Panchayats in the State of Assam. It has been given effect to from to cover the provincialisation of 4565 numbers of Panchayat employees, which was carried out earlier w.e.f vide Government notification dated Mandate of section 3 is that all employees of the Panchayats shall be deemed to have been provincialised on and from the appointed date which is Section 3 does not visualize any classification or categorization of employees of the Panchayats. It covers all employees of the Panchayats and they would be deemed to have been provincialised on and from the appointed date. 56. Having broadly surveyed the relevant legal provisions as above, grievance expressed by the petitioners and the stand taken by the State may now be analyzed. WPC Nos.5135/2015 & 6170/2014 Page 28 of 33