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Karakapally Pusparaju v/s The State of Telangana, Rep., by its Principal Secretary, Panchayat Raj & Rural Development Department & Others

Company & Directors' Information:- RAJ CORPORATION LIMITED [Active] CIN = U74900UP2008PLC035742

Company & Directors' Information:- RAJ COMPANY PRIVATE LIMITED [Active] CIN = U74999PB1949PTC000515

Company & Directors' Information:- G RAJ & COMPANY PVT LTD [Active] CIN = U67120WB1993PTC058140

Company & Directors' Information:- R M RAJ AND CO PRIVATE LIMITED [Strike Off] CIN = U99999DL1952PTC002146

Company & Directors' Information:- S R RURAL INDIA DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U80302TN2005PTC058249

Company & Directors' Information:- RAJ & RAJ PVT. LTD. [Active] CIN = U51109WB1991PTC052055

    W.P. No. 444 of 2020

    Decided On, 13 August 2020

    At, High Court of for the State of Telangana


    For the Petitioner: Ch. Janardhan Reddy, Advocate. For the Respondents: R1, R2, R5, R6, G.P. for Panchayat Raj & Rural Development, R3 & R4, G.P. for Revenue Counsel, R7, G. Narender Reddy, Advocate.

Judgment Text

1. The father of petitioner was employed by Chathakonda Gram Panchayat which was later merged in Laxmidevipalli Mandal, Bhadradri Kothagudem District (7th respondent). On the death of father of petitioner, he was employed under the compassionate appointment scheme as sweeper by proceedings dated 08.10.1994 of the District Panchayat Officer. The appointment was treated as temporary in the pay scale of Rs.1375/- to Rs.2375/- and was posted to Chathakonda Gram Panchayat, which later became part of Gram Panchayat of Laxmidevipalli. On a request made by the petitioner, he was appointed by transfer as watchman by proceedings dated 24.03.2012. On 29.08.2017, petitioner made an application to the Gram Panchayat requesting to recommend his case for granting promotion as attender, as he is eligible and qualified to be promoted. On the request of petitioner, the matter was processed and by the order impugned in the Writ petition, the District Panchayat Officer, rejected his request to grant promotion on the ground that petitioner is working against a non-provincialized post, therefore, not eligible to be considered for promotion in a provincialized post.

2. Heard learned counsel for the petitioner, learned Government Pleader appearing for Panchayat Raj and Rural Development and learned Standing Counsel appearing for the respondent-Gram Panchayat.

3. From the order of initial appointment, the appointment as watchman and the entries in service records, it is seen that no where, it reflects the nature of appointment of petitioner as one made to a non-provincialized post. Petitioner was treated as a regular employee and was granted scales of pay as applicable to the posts; increments; whenever there is revision of pay, the revision of pay was applied; special increments wherever applicable were sanctioned and all along petitioner enjoyed all the service benefits as applicable to a regular employee. For the first time, when a claim was made for granting promotion as Attender, the issue of petitioner working against a non-provincilized post is invented to reject his claim.

4. It appears from the material on record, submissions of learned Standing counsel and learned Government Pleader that Government employees are paid salaries through 010 Head of Account, whereas all other employees employed directly by the Gram Panchayat are paid from its funds; that though petitioner was appointed on compassionate grounds and has been working continuously in the scale of pay and granted all other benefits, as salary and allowances are drawn and paid by the Gram Panchayat from its own funds and not by the Government, he is treated as a non-provincialized employee, and that only Government employees paid out of 010 Head of Account are eligible to seek further promotion in service.

5. It is not in dispute that petitioner was appointed by following regular procedure, as envisaged in the scheme for appointment on compassionate grounds, on account of death of serving employee and has been continuously working without blemish of service and was granted all the benefits as applicable to any other regular employee. It is also not the case of respondents that petitioner was informed that he is not a provincialized employee. Therefore, it is strange to notice that when a claim for promotion is made, after 26 years of his appointment, it is held that petitioner is in non-provincialized service and declared as not eligible for promotion. Thereby, castigating him and permanently depriving him further service benefits. He is made to stagnate for the last 26 years at the same level, is deprived promotion or benefits in lieu of such promotion. Till this date, the petitioner also had no occasion to complain as he is getting all the benefits as extended to any other employee.

6. Once a person enters into any service, whether you name it provincialized or non-provincialized, he must be provided avenues to advance into higher posts. It is emphasized that avenues to advance in service is a necessary concomitant to a well-organized service and stagnation is anti-thesis to a well-organized service. While holding that right of an employee is only to seek consideration for promotion to higher post, but has no right to ask to be promoted, consistently Hon’ble Supreme Court emphasized the need to provide advancement in service.

6.1 In Council of Scientific and Industrial Research v. K.G.S. Bhatt and another (1989) 4 SCC 635), after referring to the research documents on Personnel Management, the Hon’ble Supreme Court held;

“9. …. It is often said and indeed, adroitly, an organisation public or private does not “hire a hand” but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. [See Principles of Personnel Management, Flipo Edwin B., 4th Edn., p. 246] Every management must provide realistic opportunities for promising employees to move upward. “The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors.” [See Personnel Management, Dr. Udai Pareek, p. 277] There cannot be any modern management much less any career planning, manpower development, management development etc. which is not related to a system of promotions. [ See Management of Personnel in Indian Enterprises, Prof. N.N. Chatterjee, Ch. 12, p. 128] The appellant appears to have overlooked this basic requirement of management so far as Respondent 1 was concerned till NR & AS was introduced.”

6.2. In Food Corporation of India and others v. Parashotam Das Bansal and others (2008) 5 SCC 100), the Hon’ble Supreme Court considered earlier decisions on the aspect of providing promotional avenues and went to the extent of holding that in a given case Superior Court can issue necessary direction to remove stagnation. The Hon’ble Supreme Court held:

“12. When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground that they fell within a category of employees excluded from promotional prospect, the superior court will have the jurisdiction to issue necessary direction.

13. If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a superior court of the country.”

7. Thus, advancement in service is an essential concomitant of any establishment. Therefore, the issue for consideration is whether by treating the petitioner as non-provincialized employee, he can be deprived of promotion.

8. In the Constitutional framework of our nation, the Gram Panchayat occupies pivotal position. Part-IX of the Constitution incorporates various provisions dealing with Panchayats. The Gram Panchayat is an integral and inseparable part of the democratic polity of the country. If not more, it is as important as a Zilla Parishad, State Legislature or Union Parliament. It is the foundation on which the democratic edifice is built. In fact, it is the nerve center of the polity.

9. Giving effect to the mandate of the Constitution the State Legislature enacted the Telangana State Panchayat Raj Act, 2018. It is a comprehensive enactment dealing with all aspects of Panchayat Raj institutions. Three tier Panchayat Raj system is established. At gross root level is Gram Panchayat, next in hierarchy is Mandal Praja Parishad and at the District level it is Zilla Praja Parishad. As per Section 277 of the Act, 2018 (Section 277 reads as under: The Chairperson, the Vice-Chairperson or a member of a Zilla Praja Parishad, the President, the Vice-President or a member of a MandalPrajaParishad, the Sarpanch, Upa Sarpanch or a member of a Gram Panchayat, the Chief Executive Officer, the Mandal Parishad Development Officer, the Panchayat Secretary or any officer or servant of a Zilla Praja Parishad or a Mandal Praja Parishad or the Gram Panchayat shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code) any officer or servant of Gram Panchayat is deemed to be a ‘public servant’ within the meaning of Section 21 of Indian Penal Code. According to Section 21 of IPC (Section 21 reads as under : [(Twelfth) —Every person— (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).] Illustration A Municipal Commissioner is a public servant. Explanation 1.—Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not. Explanation 2.—Wherever the words “public servant” occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.), ‘Public Servant’ denotes a person in the service or pay of a ‘Local Authority’. Section 2 (17)(h (…. Sec 2 (17) (h):-- every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty;) of Code of Civil Procedure also defines ‘Public Officer’ similarly. Section 3 (31) ((31) “local authority” shall mean a municipal committee, district board, body of port Commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund;) of the General Clauses Act, 1897 defines ‘Local Authority’. According to this definition, ‘local authority’ is an authority which is legally entitled to, or entrusted by the Government with, the control or management of ‘local fund’ [In Telangana State General Clauses Act, 1891, same definition is incorporated to the term ‘Local Authority’.].

10. Section 70 (2) of Act, 2018 enumerates the sources of funds of Gram Panchayat. They include house tax and any other tax or any cess or fee, Market Committee Payments, taxes and tolls levied in the village on vehicles and animals, fees for temporary occupation of villages sites, income from endowments and trusts, income from assessment on service inams, income from the village fisheries and ferries, unclaimed deposits and forfeitures etc. It also deals with grants received from Zilla Praja Parishad and Mandal Praja Parishad. Thus, the funds of a Gram Panchayat is accumulation of money from various sources. They are public funds and each rupee spent has to be accounted for and spent for the welfare of the villagers. Section 71 (Rule 71 : The purposes to which the Gram Panchayat Fund may be applied include all objects declared under section 52 of this Act or any rules made thereunder; or by any other laws or rules; and the fund shall be applicable thereto within the village as per the sectoral allocations subject to such rules or special orders as the Government may prescribe or issue and shall, subject as aforesaid, be applicable to such purposes outside the village if the expenditure is authorized by this Act or specially sanctioned by the Commissioner) requires how to utilize the Gram Panchayat funds. Even assuming that there exist non-provincial employment system which is outside public employment/Government employment, the payment to these non-provincial employees is also from the Gram Panchayat funds which include funds received from the Government. There is no separate fund created to deal with non-provincial employees, assuming such service exists.

11. In the following decisions, the Hon’ble Supreme Court considered what makes a ‘Public Service’ and who can be called a ‘Public Servant’.

11.1. In “State of Gujarat v. Raman Lal Keshav Lal (1980) 4 SCC 653)”, the Hon’ble Supreme Court held as under :

“15. According to the above decision, the true test for determination of the question whether a person is holding a civil post or is a member of the civil service is the existence of a relationship of master and servant between the State and the person holding a post under it and that the existence of such relationship is dependent upon the right of the State 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 and remuneration. It is further held that the relationship of master and servant may be established by the presence of all or some of the factors referred to above in conjunction with other circumstances. Applying these tests, this Court held that a Mauzadar in the Assam Valley who was engaged in the work of collection of land revenue and other government dues and in the performance of certain other special duties was a person holding a civil post under the State. Following the above decision in Superintendent of Post Offices v. P.K. Rajamma [(1977) 3 SCC 94 : 1977 SCC (L&S) 374 : (1977) 3 SCR 678] this Court held that persons who were working as extra departmental agents of the Posts and Telegraphs Department were persons holding civil post.”

[emphasis supplied]

11.2. In “Ramesh Balkrishna Kulkarni v. State of Maharashtra (1985) 3 SCC 606)”, the Supreme Court in Paragraph No.5 it was held as under :

“5. In view of this decision, therefore, we need not go to the other authorities on the subject. Even so, we are of the opinion that the concept of a “public servant” is quite different from that of a Municipal Councillor. A “public servant” is an authority who must be appointed by Government or a semi-governmental body and should be in the pay or salary of the same. Secondly, a “public servant” is to discharge his duties in accordance with the rules and regulations made by the Government. On the other hand, a Municipal Councillor does not owe his appointment to any governmental authority. Such a person is elected by the people and functions undeterred by the commands or edicts of a governmental authority. The mere fact that an MLA gets allowance by way of honorarium does not convert his status into that of a “public servant”. In Antulay case [(1984) 2 SCC 183 : 1984 SCC (Cri) 172 : AIR 1984 SC 684] the learned Judges of the Constitution Bench have referred to the entire history and evolution of the concept of a “public servant” as contemplated by Section 21 of the Penal Code, 1860.”

[emphasis supplied]

11.3. In “G.A. Monterio v. State of Ajmer (AIR 1957 SC 13)”, in paragraph No.13 it was held as under :

“13. The true test, therefore, in order to determine whether a person is an officer of the Government, is:

(1) whether he is in the service or pay of the Government, and

(2) whether he is entrusted with the performance of any public duty.

If both these requirements are satisfied it matters not the least what is the nature of his office, whether the duties he is performing are of an exalted character or very humble indeed.”

12. The Gram Panchayat is an institution of the State. It’s funds are public funds. Employees of Gram Panchayat are public servants. Source of payment of remuneration is one of the aspects to determine status of a person but not the only criteria. A person does not lose his status as a public servant merely because his pay is not drawn from a particular head of account. It is thus beyond pale of doubt that a person will be called as a public servant, if he works in Gram Panchayat or is paid from the Gram Panchayat funds and Gram Panchayat funds are public funds. Admittedly, petitioner is working in Gram Panchayat and is paid from the funds of the Gram Panchayat.

13. The word ‘provincialized’ is traceable to the British Era when the country was divided into provinces ruled by the British. Literally it means to give provincial character of a decision/ employment traceable to a territory under its control. Sections 3 (45) ((45) “Province” shall mean a Presidency, a Governor’s Province, a Leiutenant Governor’s Province or a Chief Commissioner’s Province.)and (47) ((47) “Provincial Government” shall mean, as respects anything done before the commencement of the Constitution, the authority or person authorized at the relevant date to administer executive Government in the Province in question;)of General Clauses Act, 1897 defines ‘province’ and ‘Provincial Government’, referable to Pre-independence era. After the independence, India is divided into States and Union Territories, which are administrated in accordance with the mandate of the Constitution of India. After independence, ‘Province’ is an alien word and has no legal significance in India. The bureaucracy is not shedding the colonial past and sticking to archaic procedures followed by Britishers. Even otherwise, in the present context, the word ‘province’ must be understood as the State or a Union Territory. Therefore, in the present context, ‘provincialized’ means working in the State or Union Territory service, as the case may be. Thus, even going by the skewed understanding of the respondents regarding source of money paid to petitioner as pay and allowances petitioner does not seize to be a public servant/government servant.

14. The posts of Sweeper, Watchman and Attender in the Gram Panchayat Service are governed by Telangana State Last Grade Service Rules. These Rules have not defined what is meant by ‘appointed to a service’, ‘member of a service’ and ‘Service’. On all aspects, which are not specifically provided in these Rules, the Telangana State and Subordinate Service Rules, 1996 (hereinafter referred to as ‘General Rules’) are adopted.

15. Rule 2 of the General Rules incorporates definition of various terms/words used in the General Rules. Rule 2 (2) defines the term ‘appointed to a service’, Rule 2 (19) defines term ‘member of a service’ and Rule 2 (32) defines word ‘service’. A person is said to be ‘appointed to a service, if on appointment in accordance with the Rules, he discharges for the first time the duties of the post borne on the cadre of a service or commenced the probation/training. A person is called a ‘member of service’ who is ‘appointed to that service’, where he is a probationer or approved probationer or confirmed in that service. ‘Service’ means a post or group of posts or categories of posts classified by the Government as State or Subordinate service, as the case may be. It is not the case of respondents that petitioner was not appointed to posts born on Gram Panchayat service. Thus, a cumulative reading of the above provisions, makes it clear that petitioner was appointed to Last Grade Service post in Gram Panchayat and is a ‘member of that service’.

16. The provisions in Telangana State Last Grade Service Rules do not make any distinction among employees based on source of payment of pay and allowances. The Last Grade Service Rules envisage consideration of all feeder cadres for promotion as Attender based on seniority. Having regard to the nature of appointment granted to petitioner as a sweeper, later as Watchman, which is of equivalent cadre, a lateral movement, and the relevant entries in the service record, merely on the ground that pay and allowances are drawn and paid from the Gram Panchayat account, an employee can not be treated differently and to deprive him promotion. More so, having utilized the services of petitioner for 26 years, merely because salary and allowances are drawn from the funds of the Gram Panchayat, he can not be prevented from advancing to higher post only on that ground.

17. Though, the Constitution assigns greater autonomy to the Gram Panchayat, the State controls its administrative affairs. The officers of the Panchayat Raj, Revenue and other Departments conttrol the affairs of the Gram Panchayat. The District Panchayat Officer is the head of the Panchayat Raj Administration in the District and over and above him is the District Collector. From the material on record, it is also seen that orders of appointment as Sweeper, as Watchman and other orders governing petitioner’s employment were issued by the District Panchayat Officer. That being so, when it comes to promotion these very officers are looking in an other direction by taking a lame excuse.

18. At this stage, learned Standing counsel sought to point out that all along various orders are passed by the District Panchayat Officer concerning the petitioner, including the initial appointment, whereas, normally such decisions are made at the Gram Panchayat level and therefore for payment of pay and allowances to petitioner the Head of Account should be changed. It is strange to have such an objection raised by the Gram Pan

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chayat when claim for promotion is made by its employee. It would have been otherwise a case of higher authority complaining against Panchayat Secretary, if he takes decisions at the Gram Panchayat level without prior approval of the competent authority and without following due process. Whereas, in this case, the District Panchayat Officer, who is the head of Panchayat Raj establishment in the district has taken conscious decisions to provide employment on compassionate grounds on account of death of father of petitioner and all consequential decisions to regulate his service conditions. No illegality is pointed out on the decisions taken by the District Panchayat Officer, nor, as fairly submitted by learned Standing Counsel, an objection was raised against such appointment or drawing pay and allowances from the Gram Panchayat funds. It appears at no point of time request was made to draw the pay and allowances under 010 Head of account. In other words, legality of his appointment is never doubted. 19. Thus, the feeble attempt of the learned Standing counsel to direct the Government to draw the pay and allowances of petitioner from 010 Head of account can not be acceded in a collateral proceeding. 20. Having regard to the facts and circumstances of this case, I am of the considered opinion that rejection of case of petitioner to grant promotion, by taking hyper technical plea that petitioner is drawing pay and allowances from the funds of Gram Panchayat, and thus to be treated as non-provincilized employee and therefore, not entitled to promotion as attender is illegal. Even otherwise, an employee can not be deprived promotional avenue and made to stagnate at the same level for the entire service, more so, for no fault of him. The proceedings under challenge are set aside and the matter is remanded to the District Panchayat Officer to consider the claim of petitioner for promotion as per his suitability, eligibility, seniority, against any existing or future vacancies in the cadre of Attender / Office Subordinate. It is made clear that if petitioner has any grievance with regard to drawing pay and allowances from the Gram Panchayat account and not under 010 Head of account, it is open to him to work out his remedies as available in law. 21. Writ Petition is accordingly, allowed. Pending miscellaneous petitions, if any, shall stand closed.